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United States v. Cooley

United States Court of Appeals, Ninth Circuit

March 21, 2019

United States of America, Plaintiff-Appellant,
Joshua James Cooley, Defendant-Appellee.

          Argued and Submitted May 14, 2018 Seattle, Washington

          Appeal 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

          Leif M. Johnson (argued), Assistant United States Attorney, Office of the United States Attorney, District of Montana, Billings, Montana, for Plaintiff-Appellant.

          Eric Ryan Henkel (argued), Cotner Law, PLLLC, Missoula, Montana, for Defendant-Appellee.

          Before: Marsha S. Berzon, Stephanie Dawn Thacker, [*] and Andrew D. Hurwitz, Circuit Judges.


         Criminal Law

         The 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.

         The 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.

         The 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.

         The 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.



         At 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.[1] 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.

         Saylor 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.

         Saylor 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 right hand.

         Saylor 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 front.

         Cooley 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 cetera."

         But 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.

         Cooley's 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.

         According 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.

         Saylor 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.

         Still, 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.

         Cooley 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.

         Saylor 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 disarmed it.

         At that 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.

         Saylor 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 ...

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