Post details: D.S.D.: DV call here did not provide exigency for house entry
05/09/12
D.S.D.: DV call here did not provide exigency for house entry
Officers responding to a DV call did not have exigent circumstances or a reason to believe that defendant was in need of aid inside to justify an entry. United States v. Ladeaux, 2012 U.S. Dist. LEXIS 64302 (D. S.D. May 8, 2012), reconsideration denied 2012 U.S. Dist. LEXIS 64830 (D. S.D. May 9, 2012)*:
Similarly, the court finds a reasonable, experienced officer with knowledge of the facts of this case would not have a legitimate concern for the safety of Mr. LaDeaux. There is no evidence he was injured or was a threat to himself. See Uscanga-Ramirez, 475 F.3d at 1029 (finding exigent circumstances were present when defendant's wife told officers defendant locked himself in the bedroom with a gun and was very upset). The government also argued Officer Ten Fingers was justified in entering the residence to protect his safety in the event Mr. LaDeaux used a firearm or other weapon. However, there is no evidence Mr. LaDeaux owned a firearm or, if he owned one, would use a firearm against anyone, much less law enforcement. See United States v. Church, No. 1:06:CR:292, 2007 WL 689890 at *2, (W.D. Mich. March 2, 2007) (noting "[t]he presence of a weapon creates an exigent circumstance, provided the government is able to prove they possessed information that the suspect was armed and likely to use a weapon or become violent") (citation and internal quotation marks omitted). The government presented no evidence Mr. LaDeaux ever used any kind of weapon, whether a firearm, a knife, or his fists, against Ms. Belt, a police officer, or anyone else. Further, no shots were heard or reported on September 5, 2011, nor did anyone (a neighbor, a caller to police dispatch, or Ms. Belt herself) inform the police they saw or knew of a firearm in the residence or they saw Mr. LaDeaux brandishing a firearm. There is no evidence Mr. LaDeaux ever physically assaulted anyone, used a weapon against anyone, or threatened to use a weapon against anyone, whether on September 5, 2011, or any other time. There is no evidence Officer Ten Fingers observed wounds, blood, scratch marks, or any signs of violence on Ms. Belt as she fled the residence. This is not a situation where Officer Ten Fingers asked Mr. LaDeaux to exit the residence and Mr. LaDeaux threatened to use a weapon to harm himself or Officer Ten Fingers. Nor is this a situation where Officer Ten Fingers observed through a window Mr. LaDeaux pick up a weapon. In such situations, warrantless entry into a residence may be justified.
If there was any danger to Officer Ten Fingers, it was the result of his own actions, that is, his entry into the residence without backup and without knowing the situation. ...
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