The opinion of the court was delivered by: Daniel L. Hovland, District Judge United States District Court
ORDER DENYING DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO PRESERVE EVIDENCE
Before the Court is Defendant Ivanna Red Bow's motion to dismiss filed on February 29, 2012. See Docket No. 45.
At approximately 4:32 a.m. on December 30, 2010 units from the Bureau of Indian Affairs (BIA) Police Department, Standing Rock Agency, were dispatched to 878 Blue Jay Street, Cannonball, North Dakota, for a 911 call for medical assistance involving a stabbing. The caller was identified as Carol White Eagle, Loren Uses Arrow's biological mother.
While Carol White Eagle was calling 911, her husband, Lyle Uses Arrow, and her daughter, Arianna Uses Arrow, followed what appeared to be a blood trail in the snow leading to Ivanna Red Bow's residence. Red Bow was Loren Uses Arrow's girlfriend and they shared the residence. When Lyle Uses Arrow and Arianna Uses Arrow approached Red Bow's residence they observed Red Bow in the dining room on the phone. Arianna Uses Arrow observed blood on Red Bow's hands. She then knocked Red Bow to the floor and began to punch and hit her.
Officer Stacy LaRocque was the first law enforcement officer to arrive on scene and discovered Loren Uses Arrow lying on the floor inside the back door of his parents' residence, with blood pooled underneath him. Loren Uses Arrow's brother, Milan Uses Arrow, was present and indicated to Officer LaRocque that Loren had been stabbed and was not breathing. Officer LaRocque quickly assessed that Loren's pupils were dilated and it appeared he had no pulse. Officer LaRocque began to give Loren Uses Arrow CPR.
As Officer LaRocque was providing emergency medical assistance to Loren Uses Arrow, family members told the officer that Loren Uses Arrow lived with Ivanna Red Bow in a house a short distance away and that whatever happened to Loren happened at the Red Bow residence. Officer LaRocque continued to provided first responder medical assistance to Loren Uses Arrow, but did convey the information he received to Sergeant Garry Weasel.
Sergeant Weasel, who had arrived on scene less than ten minutes after Officer LaRocque, proceeded to the Red Bow residence. He immediately observed what appeared to be blood on the porch and the front door. The door was slightly ajar. Sergeant Weasel knocked and after a moment the door was fully opened by Ivanna Red Bow. As Red Bow opened the door Sergeant Weasel observed blood all over the floor of the residence. Sergeant Weasel asked Red Bow what happened and Red Bow responded that Loren Uses Arrow had tried to stab Red Bow and then he ran outside.
Sergeant Weasel detained Red Bow and began to clear the residence. In clearing the residence Sergeant Weasel discovered Red Bow's two children lying asleep in one of the back bedrooms, with an adult male lying asleep beside them. Sergeant Weasel identified the adult male as Clayton Ayutapi. Sergeant Weasel noticed that Ayutapi had what appeared to be blood on his hands and clothes. Ayutapi was then detained. As Sergeant Weasel cleared the remainder of the residence, he observed and photographed what appeared to be blood in the living room area. He also identified and seized what appeared to be a bloody knife in the kitchen sink.
While securing the residence Sergeant Weasel heard from Sergeant Garry Sandland that off-duty Officer Thomas Delong reported that Red Bow called and told him that she had just stabbed her boyfriend, Loren Uses Arrow. Officer Delong had previously been in a relationship with Red Bow and had a child in common with her.
Officer Raymond Webb arrived on scene and took Ivanna Red Bow and Clayton Ayutapi into custody. Red Bow was taken into custody for violating the condition of her Standing Rock tribal court probation prohibiting alcohol consumption. Ayutapi was placed under arrest for disorderly conduct. Officer Webb transported both Red Bow and Ayutapi to the Fort Yates Police Station where they were processed by the Standing Rock Detention Center personnel.
During processing, detention personnel took possession of Red Bow's and Ayutapi's clothing and an inventory of their clothing was made. The records show Ayutapi was wearing a green jacket, white t-shirt with what appeared to be blood stains, denim blue jeans with blood stains, black and white shoes with blood stains, and black and grey socks. Photographs also show what appears to be blood on Ayutapi's hands. See Defendant's Exhibit No. 2. Red Bow was wearing a black t-shirt, denim blue jeans, and black shoes. The record does not indicate blood on any of Red Bow's clothing.
After booking, law enforcement officers interviewed both Red Bow and Ayutapi at the Fort Yates Police Station. At approximately 2:30 p.m. on December 20, 2010, Special Agents Jacob O'Connell, Federal Bureau of Investigation ("FBI"), and David Lawrence, BIA, interviewed Ayutapi. During the interview, Ayutapi stated that he consumed alcohol to the point of intoxication, but could not recall any of the events of the previous night and early morning, including how blood got onto his clothing, or how Loren Uses Arrow was stabbed. At approximately 3:55 p.m., Special Agents O'Connell and Lawrence interviewed Red Bow. During the interview, Red Bow provided incriminating statements regarding stabbing Loren Uses Arrow. See Defendant's Exhibit No. 1.
Red Bow made further incriminating statements while in custody at the Standing Rock Detention Center. At approximately 7:30 p.m. on January 2, 2011, Detention Officer Amber Mershon processed an older female into the facility. While the female was being booked, she stated that her nephew Loren Uses Arrow had been murdered. As Officer Mershon walked back through the facility Red Bow asked if ...