and Submitted May 14, 2018 Seattle, Washington
from the United States District Court D.C. No.
1:16-cr-00042-SPW-1 for the District of Montana Susan P.
Watters, District Judge, Presiding
M. Johnson (argued), Assistant United States Attorney, Office
of the United States Attorney, District of Montana, Billings,
Montana, for Plaintiff-Appellant.
Ryan Henkel (argued), Cotner Law, PLLLC, Missoula, Montana,
Before: Marsha S. Berzon, Stephanie Dawn Thacker, [*] and Andrew D.
Hurwitz, Circuit Judges.
panel affirmed the district court's order granting a
motion to suppress evidence obtained as a result of the
defendant's encounter with a Crow Indian Reservation
police officer while the defendant's truck was parked on
the shoulder of United States Route 212, which is a public
right-of-way that crosses the Reservation.
panel held that the district court's holding regarding
the officer's lack of authority was correct, but the
basis for its conclusion - that the defendant "seemed to
be non-Native" - was not. The panel explained that
officers cannot presume for jurisdictional purposes that a
person is a non-Indian - or an Indian - by making assumptions
based on physical appearance. The panel wrote that an officer
can rely on a detainee's response when asking about
Indian status, but that the officer posed no such question to
the defendant. The panel held that the officer exceeded his
authority as a tribal officer on a public, nontribal highway
crossing a reservation when he detained the defendant and
twice searched the truck without having ascertained whether
the defendant was an Indian.
panel held that the exclusionary rule applies in federal
court prosecutions to evidence obtained in violation of the
Indian Civil Rights Act's Fourth Amendment counterpart.
panel agreed in the main, but with a caveat, with the
district court's determination that the officer violated
the ICRA's Fourth Amendment analogue by seizing the
defendant, a non-Indian, while operating outside the Crow
Tribe's jurisdiction. The panel wrote that a tribal
officer does not necessarily conduct an unreasonable
search or seizure for ICRA purposes when he acts beyond his
tribal jurisdiction, but that the tribal authority
consideration is highly pertinent to determining whether a
search or seizure of unreasonable under ICRA. The panel
explained that tribal officers' extra-judicial actions do
not violate the ICRA's Fourth Amendment parallel only if,
under the law of a founding era, a private citizen could
lawfully take those actions. Under this standard, the panel
concluded that the officer violated the ICRA's Fourth
Amendment parallel when he twice searched the defendant's
truck after seizing him.
BERZON, CIRCUIT JUDGE.
around one in the morning, Joshua James Cooley and his young
child were parked in a white truck on the westbound shoulder
of United States Route 212, within the Crow Indian
Reservation in southern Montana. James D. Saylor, a highway
safety officer for the Crow Police Department, passed
Cooley's truck while driving eastbound on Route 212.
Saylor regularly found motorists on the highway in need of
assistance. He also knew that this particular section of
Route 212 lacked consistent cellphone reception.
turned around and pulled up behind the truck. He left his
patrol car and approached the driver's side of the truck.
The truck's engine was running; its headlights were on.
The truck's windows were closed and tinted, and the truck
appeared to be on a raised suspension. So it was difficult
for Saylor to see into the passenger compartment.
knocked on the side of the truck. When he did that, the rear
driver's side window briefly lowered, then went up again.
Saylor shined his flashlight into the driver's side front
window and saw Cooley making a thumbs-down sign with his
next asked Cooley to lower his window. Cooley complied - he
lowered the front driver's side window around six inches,
just enough for Saylor to see the top of his face. According
to Saylor, Cooley had "watery, bloodshot eyes," and
"seemed to be non-native." Saylor also noticed a
young child climbing from the back seat of the truck into the
told Saylor that everything was okay - he had stopped driving
just because he was tired, "which isn't
uncommon" in Saylor's experience. "A lot of
travelers go through that particular stretch of
highway," Saylor testified, "and they will pull
over because of various reasons, tired, bathroom, et
Saylor did not leave at that point. Instead, he asked Cooley
more questions. In response, Cooley reported that he had come
from the town of Lame Deer, which is around 26 miles from
where the truck was stopped; he was in town to purchase a
vehicle from a man named Thomas; and he was not sure of
Thomas's last name, but it may have been Spang or
Shoulder Blade. Saylor knew men with both names - Thomas
Spang and Thomas Shoulder Blade: Shoulder Blade had been a
tribal officer for the Northern Cheyenne tribe; Saylor
believed Spang was associated with drug trafficking.
explanations did not add up for Saylor, and he conveyed that
sentiment to Cooley. In response, Cooley "became
agitated and stated[, ] '[I] don't know how it
doesn't make any sense, I told you I cam[e] up to buy a
vehicle.'" At some point during this conversation,
Cooley brought his child onto his lap.
to Saylor, as this exchange continued Cooley's hands
started to shake. He "began to speak in a lower volume[,
] making it difficult . . . to hear him." And he started
to take long pauses before answering questions.
asked Cooley to lower the front window further. When Cooley
did so, Saylor noticed what appeared to be two semiautomatic
rifles on the front passenger seat of the truck. But
"just having weapons in a vehicle, especially in
Montana, isn't cause for too much alarm, in my
mind," Saylor testified.
Saylor continued to ask Cooley about why he had traveled to
Lame Deer. At some point during this additional questioning,
Saylor asked Cooley for written identification. Instead of
retrieving his identification, Cooley twice pulled small
bills from his right pocket and placed them in the
truck's center console.
then put his hand in his pocket yet another time. His
breathing became shallow and rapid, according to Saylor, and
Cooley "stared straight forward out of the windshield of
his truck, as if he was looking through his" child.
Saylor testified that such a "thousand-yard" stare
is, to him, an indication that a suspect is possibly about to
use force. So, while Cooley's hand was in his pocket,
Saylor unholstered his pistol, drew the pistol to his side,
and ordered Cooley to stop what he was doing and show his
hands. Cooley complied. Saylor then again ordered Cooley to
provide him with his identification; this time, Cooley handed
over his Wyoming driver's license.
attempted to call in Cooley's license number to dispatch
but failed, as he was unable to connect. When he then moved
to the other side of the truck and opened the passenger side
door, Saylor noticed a loaded semiautomatic pistol in the
area near Cooley's right hand. Asked why he had not
mentioned the pistol earlier, Cooley stated that he did not
know the pistol was there. Saylor then took the pistol and
point, Saylor ordered Cooley to get out of the truck, which
he did. After conducting a pat down, Saylor escorted Cooley
and his child to the patrol car. Once there, Cooley took some
more of his belongings out of his pocket - this time, a few
small, empty plastic bags - and placed them on the hood of
Saylor's car. In Saylor's experience, such bags are
commonly used to package methamphetamine.
then placed Cooley in the back of his patrol car and called
for additional assistance from Crow Reservation officers. He
also called for assistance from Bighorn County officers,
because Cooley "seemed to be non-[n]ative." While
waiting for backup, Saylor returned to the truck to turn off
the engine: There, he found ...