U.S. v. Cooley, 17-30022

• Citation: 919 F.3d 1135
• Decision Date: 21 March 2019
• Docket Number: No. 17-30022,17-30022
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Joshua James COOLEY, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

919 F.3d 1135

UNITED STATES of America, Plaintiff-Appellant,

v.Joshua James COOLEY, Defendant-Appellee.

No. 17-30022

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 14, 2018 Seattle, Washington

Filed March 21, 2019

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.

BERZON, Circuit Judge:

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 in the cab a glass pipe and a plastic bag that appeared to have methamphetamine in it.

After County and Bureau of Indian Affairs officers arrived, the Bureau of Indian Affairs officer directed Saylor to conduct an additional search of the truck. He did, and discovered more methamphetamine.

Cooley was charged in the District of Montana with one count of possession with intent to distribute methamphetamine, under 21 U.S.C. § 841(a)(1), and one count of possession of a firearm in furtherance of a drug trafficking crime, under 18 U.S.C. § 924(c)(1)(A). He moved to suppress evidence obtained as a result of his encounter with Saylor. The motion argued that Saylor was acting outside the scope of his jurisdiction as a Crow Tribe law enforcement officer when he seized Cooley, in violation of the Indian Civil Rights Act of 1968 ("ICRA").

The district court granted Cooley’s motion. It determined that Saylor had identified Cooley as a non-Indian "when Cooley initially rolled his window down," and that Saylor seized Cooley when he drew his gun, ordered Cooley to show his hands, and demanded his driver’s license. The court reasoned that a tribal officer cannot detain a non-Indian on a state or federal right-of-way unless it is apparent at the time of the detention that the non-Indian has been violating state or federal law, and that Saylor therefore had no authority to seize Cooley when and where he did. The district court also concluded that ICRA, which contains language mirroring the Fourth Amendment, requires suppression in federal court of evidence obtained by tribal officers in violation of ICRA.

The government appealed the order under 18 U.S.C. § 3731. We review the factual findings underlying the district court’s determination for clear error and the ultimate grant or denial of a motion to suppress de novo. United States v. Zapien , 861 F.3d 971, 974 (9th Cir. 2017).

I

We consider first whether the district court correctly determined that Saylor exceeded his jurisdiction in detaining Cooley. We cannot agree that Saylor appropriately determined that Cooley was a non-Indian just by looking at him. But Saylor did act outside of his jurisdiction as a tribal officer when he detained Cooley, a non-Indian, and searched his vehicle without first making any attempt to determine whether Cooley was in fact an Indian.

A

An Indian tribe’s authority to enforce criminal laws on tribal land is nuanced. On tribal land, a tribe has inherent powers as a separate sovereign to enforce criminal laws, but only as to its tribal members and nonmember Indians. United States v. Lara , 541 U.S. 193, 197–99, 124 S.Ct. 1628, 158 L.Ed.2d 420 (2004). An Indian tribe’s authority over non-Indians is more limited. A tribe has no power to enforce tribal criminal law as to non-Indians, even when they are on tribal land.² Oliphant v. Suquamish Indian Tribe , 435 U.S. 191, 195, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978). But a tribe may exclude non-Indians from tribal land. Duro v. Reina , 495 U.S. 676, 696–97, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990). Therefore, tribal officers can investigate crimes committed by non-Indians on tribal land and deliver non-Indians who have committed crimes to state or federal authorities. Id. Thus, "tribes retain considerable control over non-member conduct on tribal land." Strate v. A-1 Contractors , 520 U.S. 438, 454, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997).

Tribes have less power over non-Indians on public rights-of-way that cross over tribal land — such as Route 212 — than on non-encumbered tribal property. If a tribe has granted an easement allowing public access to tribal land, the tribe cannot exclude non-Indians from a state or federal highway constructed on that easement. See Strate , 520 U.S. at 454–56, 117 S.Ct. 1404. Tribes also lack the ancillary power to investigate non-Indians who are using such public rights-of-way. See Bressi , 575 F.3d at 895–96. But where, as here, a public highway is within the boundaries of a tribal reservation, tribal authorities may arrest Indians who violate tribal law on the public...