government's position too so this is equal opportunity worrying that what concerns me about your position is that there is some evidence that the officers have that the child whether he's nineteen months old or twelve months old or whatever is not material to me has a puffy head which it some reason to believe that there's a head injury and head injuries do have to abused small children and they can rapidly turn life threatening so so i mean i'm not as worried about the bruises on mom in terms of the urgency of this i understand your point that they could have phoned in for a warrant or maybe try to just taken the two hours to have driven back and gotten one but but the child there's some reason i believe maybe something pretty urgent is going on with a child thousand month old whole month old whatever it is can also have a bad cold i understand that but should the police roll the dice that way well i don't think that they need to roll the dice i think that they need to actually talk to the seven year old which they didn't do the officer when he arrives at the primary school simply talk to the school counselor the school counsellor it to talk to the child earlier and so you officer just reviews yet that that was the direct that was chichi who write you off for never spoke to the seven year old right duran is land but when you are outlying everything i didn't hear that part of it i didn't hear you say that he actually spoken with that to think that the seven year old child is going to be more forthcoming with a familiar person such as the school counselor and that she might not really have anything else you seven is pretty young well there's a couple of different ways to approach that i suppose the officer could go with the councilor to speak with the seven year old the officer could say to the counselor can you for the answers to these questions for me these are things that i'm curious about what did the child see were guarding her broker on a whim did that happen regarding her brother and we think talking to the seven year old directly as well gives the officer an idea that the subset of this that i'm focusing on this is the only this is the part that worries me because i think you've got a very strong case on some other parts of it that her brother's face looked puffy that morning and that unusual word to use you know about a face and it it seems potentially quite trouble sometimes well and it doesn't matter who made a posse you know whether it was the mother the boyfriend you know a next door neighbor but if that's ok that's not in her original note her original note just talks about her mother getting kicked in the ribs and then a black guy right the puffy face portion comes from the e mail extreme between two other staff members that were shown to the office so that might even be one more step removed from a case that will keep talking to the the trial directly to try to answer the court's question but we're trying to parse the word puffy i don't know what that means it could mean any number of things so maybe being alarming some may be deemed none of this and without it and what do we do with that fact i mean you're we're talking about a very young child under the age of two and even though a puffy face you know might be you know that you just have bad head cold or something i'm not sure that's the edge of it let's just say but it might mean a fractured s which of course is what it does turn out to mean that the officers just take no action don't regard assume as an emergency i don't think that they should take no action i think that they should take more action than what they do have to do because they just took that puffy and went to the scene they didn't do anything to actually even talk to the seven year old be able to when they get to the scene they  hear that they see the curtain move out the corner and they hear this fast pace walking in the front door in the back being locked in they call the prosecutor and the prosecutor says it's ok they didn't need a war that reliance on the prosecutor i think takes them off the hook well i think you're on about being the information given to the prosecutor was factually incorrect and so the prosecutor's advice is faulty because it's based on an incorrect premise that this is a motion to suppress that we're dealing with obviously you know preserved here and you know we have concepts of good faith in the question of whether the police you know even if they should have gotten a warrant they made a mistake but  they think that their actions were justifiable anyway they've checked with a lot of people they have some evidence to suggest something very troublesome may be going on  so i say i i think your point that they could have gotten a warrant is is it's a serious point but they do a lot of stuff they go straight to the house because they're worried about what's going on they call the prosecutor then i realize they don't do too much you know they kind of knock on the door a few times and they kick it down which is obviously very very intrusive well when they get there because what we're talking about i have to go back to the beginning what we're talking about is whether there is an emergency you know and they would argue that there is not an emergency you describe it the school there is not an emergency on the way to the residence and there is not in emergency when we arrive at the residence when they arrive they don't find anything the cases suggest you know where there is an exit you need to get into a home that there is something get they certainly don't hear you know sounds of combat or anything like that an emergency could be that somebody is lying on the floor to impaired to do anything as well like th little boy but they don't know that the boy is even in the home at the time that they are true that's true on the other hand some middle of the week he's a very young child suppose they could be shopping that you know well in the fact that  fifteen minutes way from the trailer home where the events occurred their school bus or to parents get them there i don't know the answer to that question or unless the court has other question no you can save your last minute that's fine thank you the court my name is daniel campbell and i represent the united states here today so my problem on your side is really in some sense the deliberateness with which the officers do take the steps they get out to that they have very little information about what's going on that would indicate an emergency and nothing particularly with the possibility of phone warrants that nothing that to any belief that you'd actually bash in somebodies front door or you're you're in the home without a warrant and i don't know if the word puffy is quite enough to get you there to excuse the first of all i think your honor use the term deliberate and i think that's true i think these officers were measured and reasonable and deliberate all risks are reason to get a warrant you know they would this have been probable cause i suspect a judge would have issued a warrant on the basis of this much first let me get to the puffiness and then i'll go to the search warrant you i think your honor was absolutely correct when you say puffiness on a one year old one thousand month old isn't is in and of itself the concern no matter what no matter what the situation you take that child to a doctor or you see sometimes medical attention for puffiness to an infant i think it's also remarkable that a seven year old just using common sense for we know about seven year olds would even find remarkable the fact that her brother had a puffy head the sterile record use of the term puffy but put it in the text of a seven year old seven year old uses the terms that they could use and i think the brothers had with puffy was puffy were using that in the context of also describing the injuries to her mother's give a pretty clear picture of the officers that there's something in this and she said the word in the e mail with his face her brother's face was puffy again i think what what seven year old walks out the door to go to school and notices what's going out there for the brother i think it's the rare seven year old who does that but again the officers receive this information they are deliberate they are reasonable they get to see yes worker the child protection worker they don't as is mentioned in the brief and i think it unnerves to their benefit they do not throw on the lights and sirens tear off across the reservation going to go kick in the door why because they don't know what they're coming up on but they will learn nothing else if they see you know a curtain hear some doors being locked that could be people who just don't want the police coming into their house and it certainly could and but that doesn't mean that they can't take what they're seeing and hearing at that residence and make their own inferences and it's not like any of the other cases i can think of serves no preexisting reason to think there's an emergency which is the nine one one case people call nine one one without some urgency when the lusts and abusive call which was not in the case at hand face nothing well i think this this court inventors cited to the black case in the ninth circuit and i think that's also a situation where they were unaware of whether the victim was even in the apartment and they made the decision to go in there and in that instance the ninth circuit which this court adopted the reasoning essentially said we expect these officers to be conscientious we don't expect them to hold trials outside the door trying to weigh all of the evidence whether it's beyond a reasonable doubt we want them to do what's safety risk for others but then they get there and they just have the success nip it's of information so why not rather than kick the dorrian you know why not get a warrant well yeah i think you have to put it in the context of what is alleged domestic the domestic abuse situation because as the child reported the boyfriend was beating up hurts my brother and we know that the injuries to the mother so unlike as you spoke of there's no combat there's no gunshots there's no glass breaking put in the context what are we actually talking about we're talking about a false imprisonment type situation somebody who's being prevented from getting medical attention you wouldn't expect to hear a loud argument inside if they know the police are outside what you would expect to hear is the furtive movements inside locking the doors looking out the curtain to see who was actually there if i could go to the search warrant issued and then no response to the announcement that they were there right i'm sorry  you want to clear something up counsel sites in his brief to the fact that was conscious state statute allows for telephonic application of search warrants as well as the federal but he does not say to the manami tribal code which is the real question here and testimony was very clear from the officer that that would take at least an hour and a half if not two hours and he uses thirty officers talking about that finding a tribal judge yes and he says act and i'm quoting he says apple minimum we're talking an hour and a half to two hours and that reasonable was at seventy nine dash fourteen eleven point sixteen i just want to make sure it's menominee tribal legislature portland's number seventy nine dash fourteen and then it appears to be a subsection of section eleven point sixty i believe that it is a political to the tribal officers but i can't say for certain wisconsin it's a public law whatever it is to eighty state right so that has something to do with the noisy i think it does have something to do with the degree of tribal authority and the applicability of general standards then i see i'm getting close here in my time if i could also just say to the court that should this court determine that there presented of attenuation or inevitable discovery i believe that's proper but as far as the exclusionary rule goes your honor going to that we do that to punish law enforcement essentially to say hey you acted improperly what conduct of law enforcement here we had to attempting to punish they did along with hanssen in the black if they did what we expect them to do they were conscientious they were again the thought of will they didn't just make an assumption and boom go they went got the c p s worker they called the prosecutor they called a supervisor they waited they observed and their observations led them to one reasonable objectively reasonable conclusion that there was an injured child inside and probably knew your mother and of course when they do get inside that's turns out that is the case so unless your hours have any other questions i will go and sit down i cannot thank you very much and exception and measured activity is not emergent activity doesn't respond the nature of your argument is that they should have taken more time interviewed more people and done more  take it your argument is as soon as they do that then they are of course precluded from making an emergency entry because you said they didn't take enough time before making an emergency entry when they had time to do things other than what they did they could from the start of when they got the call they could have gone to the tribal court to start getting the warrant rather than going to the residence and kicking in the door the purpose of the exclusionary rule is to deter the officers not necessarily to punish but to try to deter them and here we would be deterring them from kicking down the door of home exactly the kind of thing that the fourth amendment is designed to prevent thank you all right thank you very much thanks to both council vote take the case under advisement in the court then recess