The opinion of the court was delivered by: Veronica L. Duffy United States Magistrate Judge
REPORT AND RECOMMENDATION
This matter is before the court on an indictment charging defendant James LaDeaux with assault of a federal officer, in violation of 18 U.S.C. § 111. Mr. LaDeaux has moved to suppress all evidence gained during the warrantless entry into his home by police on September 5, 2011. See Docket No. 19. The government resists the motion. The district court, the Honorable Jeffrey L. Viken, referred this matter to this magistrate judge for an evidentiary hearing and a recommended disposition pursuant to the court's standing order and 28 U.S.C. § 636(b)(1)(B).
An evidentiary hearing in connection with Mr. LaDeaux's motion was held on Wednesday, March 14, 2012, at 9:00 a.m. Present at the hearing were Mr. LaDeaux and his attorney, Assistant Federal Public Defender Gary Colbath, Jr. Assistant United States Attorney Heather Thompson was present on behalf of the government. Two witnesses testified at the hearing, James M. Hooper, Special Agent with the Bureau of Indian Affairs, and Clayton Ten Fingers, patrol officer with the Oglala Sioux Tribe ("OST") Department of Public Safety. Four exhibits were introduced: an audio recording of 911 calls made to OST dispatch on September 5, 2011; two logs of transcriptions of 911 calls made to OST dispatch on the same date; and a video automatically created when the taser of OST officer Terry Demasters was deployed. The following are this court's findings of fact drawn from this evidence.
At approximately 2:20 a.m. on September 5, 2011, a 911 call was made to the OST Public Safety dispatch. The call was made from a third party, a neighbor of Mr. LaDeaux's, reporting that Mr. LaDeaux was chasing his girlfriend outside in the neighborhood. The caller reported that the girlfriend was asking Mr. LaDeaux to leave her alone, but that Mr. LaDeaux was yelling at the girlfriend that she had cheated on him. The caller reported that Mr. LaDeaux and his girlfriend appeared to be drunk.
The call was relayed by dispatch to Officer Clayton Ten Fingers, a police officer with the OST Department of Public Safety who was on duty and assigned to the area of Pine Ridge village. Officer Ten Fingers drove to the LaDeaux residence, arriving at approximately 2:29 a.m. Officer Ten Fingers was familiar with both Mr. LaDeaux and his wife, Amy Belt, as well as being familiar with which trailer belonged to Mr. LaDeaux. Mr. LaDeaux lived in an area local residents refer to as the "old IHS [Indian Health Services] trailer court." This trailer court is located north of the Pine Ridge village police department and north of a small creek running through the area.
Mr. LaDeaux's trailer was pink and white and the lengthwise axis of the trailer ran north and south. The trailer was on a corner lot and had a door facing east with a parking area adjacent to the east door.
Officer Ten Fingers knew Mr. Ladeaux and Ms. Belt from seeing them around town and at the tribe's casino. He also knew them from receiving on at least one prior occasion a report from Amy that she was the victim of domestic abuse at the hands of Mr. LaDeaux. However, on that prior occasion, which occurred approximately several months before September, 2011, Amy had refused to press charges against Mr. LaDeaux.
After receiving the dispatch call around 2:20 a.m. on September 5, 2011, Officer Ten Fingers drove to the LaDeaux residence. He knocked several times on the east door to Mr. LaDeaux's residence, announcing that he was the police and asking if anyone needed help. Officer Ten Fingers got no response. Officer Ten Fingers heard no noises from inside the residence either, so he left. Officer Ten Fingers testified that his training and experience have indicated that domestic violence situations often involve hostage-taking. When he did not get a response from the LaDeaux trailer on this first contact, he testified that his concern over the situation increased.
One-half hour later, at 3:06 a.m., another series of 911 calls were placed to dispatch. On eleven of these calls, all that is heard is the sound of a woman crying and then the call is terminated. On one of the calls, the woman did not speak directly to dispatch, but left the phone off the hook so that dispatch could hear what was going on in the room. Dispatch heard a female crying and screaming, "Stay away from me," and "Get away from me." Dispatch also heard a male saying, "Give me that phone."
When calls are made to OST dispatch, there is a "CAD" system that tracks the geographic location of the call and assigns coordinates. From this, law enforcement has a general idea of where the call is coming from. The woman's unidentified calls to dispatch after 3 a.m. on September 5, 2011, were given coordinates showing that the call came from an area north of the police department and north of the creek. This was an area consistent with the old IHS trailer court, but the coordinates did not narrow the location of the 911 caller to a specific trailer.
Officer Terry Demasters was contacted by dispatch regarding this second call. He drove to the area of the old IHS trailer court and began looking for victims in the area of the creek.
Officer Ten Fingers was on a computer at the OST police station at the time these post-3 a.m. calls came in. He could see on the computer all the information that was coming in to OST dispatch as well as the coordinates assigned to the call by the CAD system. Acting on this information, Officer Ten Fingers drove in his patrol vehicle to the area of the LaDeaux trailer, arriving at approximately 3:14 a.m. He did not have his siren or flashing red lights ...