United States v. Joshua Cooley , 919 F.3d 1135 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-30022
Plaintiff-Appellant,
D.C. No.
v. 1:16-cr-00042-
SPW-1
JOSHUA JAMES COOLEY,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Argued and Submitted May 14, 2018
Seattle, Washington
Filed March 21, 2019
Before: Marsha S. Berzon, Stephanie Dawn Thacker, * and
Andrew D. Hurwitz, Circuit Judges.
Opinion by Judge Berzon
*
The Honorable Stephanie Dawn Thacker, United States Circuit
Judge for the U.S. Court of Appeals for the Fourth Circuit, sitting by
designation.
2 UNITED STATES V. COOLEY
SUMMARY **
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.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. COOLEY 3
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.
COUNSEL
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.
4 UNITED STATES V. COOLEY
OPINION
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
1
The facts presented here come largely from the district court’s
order granting the motion to suppress, but include material from Saylor’s
testimony at the hearing held on Cooley’s motion to suppress and from
the police report Saylor wrote after the encounter with Cooley.
UNITED STATES V. COOLEY 5
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.
6 UNITED STATES V. COOLEY
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.
UNITED STATES V. COOLEY 7
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
8 UNITED STATES V. COOLEY
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 (2004). An
UNITED STATES V. COOLEY 9
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 (1978). But a
tribe may exclude non-Indians from tribal land. Duro v.
Reina, 495 U.S. 676, 696–97 (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 (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. 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 right-of-way. Strate, 520 U.S. at
2
Tribal officers are often delegated authority by a state or the federal
government to act broadly on its behalf. See, e.g., Bressi v. Ford, 575
F.3d 891, 894, 897 (9th Cir. 2009); see also United States v. Wilson, 699
F.3d 235, 239 (2d Cir. 2012) (noting that tribal officers “had full
authority to act as New York police officers within the boundaries of the
St. Regis Reservation” under New York law, and that some tribal officers
were cross-designated as United States customs officers); Olson v. N.D.
Dep’t of Transp., 909 N.W.2d 676, 681–82 (N.D. 2018), State v. Eriksen,
259 P.3d 1079, 1083 (Wash. 2011). The limitations discussed here do
not apply to deputized officers. See Bressi, 575 F.3d at 894, 897;
Eriksen, 259 P.3d at 1083.
10 UNITED STATES V. COOLEY
456; Bressi, 575 F.3d at 896; see also 18 U.S.C. § 1151(defining Indian country as including rights-of-way within
Indian reservations).
Finally, tribal authorities may stop those suspected of
violating tribal law on public rights-of-way as long as the
suspect’s Indian status is unknown. In such circumstances,
tribal officials’ initial authority is limited to ascertaining
whether the person is an Indian. Bressi, 575 F.3d at 896; see
also United States v. Patch, 114 F.3d 131, 134 (9th Cir.
1997). The detention must be “a brief [and] limited” one;
authorities will typically need “to ask one question” to
determine whether the suspect is an Indian. Patch, 114 F.3d
at 134. If, during this limited interaction, “it is apparent that
a state or federal law has been violated, the [tribal] officer
may detain the non-Indian for a reasonable time in order to
turn him or her over to state or federal authorities.” 3 Bressi,
575 F.3d at 896; see also Strate, 520 U.S. at 456 n.11.
We have not elaborated on when it is “apparent” or
“obvious” that state or federal law is being or has been
violated. Bressi, 575 F.3d at 896–97. But Bressi made clear
that the power to detain non-Indians on public rights-of-way
for “obvious” or “apparent” violations of state or federal law
3
Bressi held that “a roadblock on a public right-of-way within tribal
territory, established on tribal authority, is permissible only to the extent
that the suspicionless stop of non-Indians is limited to the amount of
time, and nature of inquiry, that can establish whether or not they are
Indians.” 575 F.3d at 896–97. The government contends that Bressi
applies only to roadblocks. The government’s cabined reading of Bressi
is not persuasive. Although Bressi involved a roadblock, the opinion sets
forth general principles governing the scope of tribal officers’ authority
to seize and question on a public right-of-way within an Indian
reservation non-Indians and those whose Indian status is unknown. Id.
at 896.
UNITED STATES V. COOLEY 11
does not allow officers to search a known non-Indian for the
purpose of finding evidence of a crime. Id.B
Here, the district court noted that when Saylor first
observed Cooley through the truck’s partially open driver’s
window, Cooley “seemed to be non-Native,” and held that
Saylor had no authority to detain Cooley from
thenceforward. The holding regarding Saylor’s lack of
authority was correct, but the district court’s basis for its
conclusion — how Cooley looked to Saylor — was not.
Saylor never asked Cooley whether he was an Indian or
otherwise ascertained that he was not. Instead, he reached a
conclusion about Cooley’s status as a non-Indian based on
physical appearance alone. Officers cannot presume for
jurisdictional purposes that a person is a non-Indian — or an
Indian — by making assumptions based on that person’s
physical appearance.
Indian status is a political classification, not a racial or
ethnic one. Indian status requires only “(1) proof of some
quantum of Indian blood, whether or not that blood derives
from a member of a federally recognized tribe, and (2) proof
of membership in, or affiliation with, a federally recognized
tribe.” United States v. Zepeda, 792 F.3d 1103, 1113 (9th
Cir. 2015) (en banc). A person can have significant Native
American ancestry and nonetheless not be an Indian for
tribal law enforcement purposes. See id. at 1114. And a
person can be an Indian for tribal law enforcement purposes
even if that person does not have any of the physical
characteristics associated with Native American heritage.
See United States v. Bruce, 394 F.3d 1215, 1223 (9th Cir.
2005); William C. Canby, Jr., American Indian Law in a
Nutshell 9–11 (6th ed. 2014). United States v. Antelope,
12 UNITED STATES V. COOLEY
emphasized this distinction, explaining that the Indian
defendants “were not subjected to federal criminal
jurisdiction because they [were] of the Indian race but
because they [were] enrolled members of the Coeur d’Alene
Tribe.” 430 U.S. 641, 646 (1977).
A law enforcement officer can, of course, rely on a
detainee’s response when asked about Indian status. See
Patch, 114 F.3d at 134. But Saylor posed no such question
to Cooley.
Nonetheless, his assumption based on physical
appearance aside, Saylor did exceed his legal authority as a
Crow officer during the interaction with Cooley. The district
court correctly found that Saylor seized Cooley when he
drew his weapon and ordered him to provide identification. 4
Although Saylor had been questioning Cooley for a
significant period by that point, he had not asked Cooley
whether he was an Indian. Yet, still not having ascertained
whether Cooley was an Indian, Saylor detained Cooley and
twice searched his truck. Continuing to detain — and
searching — a non-Indian without first attempting to
ascertain his status is beyond the authority of a tribal officer
on a public, nontribal highway crossing a reservation. See
Bressi, 575 F.3d at 896; see also Strate, 520 U.S. at 456.
II
Because we conclude that Saylor acted outside his
authority as a tribal officer when he seized Cooley and later
twice searched Cooley’s truck, we next must consider
4
As the issue has not been raised, we do not address whether there
was a seizure earlier in the encounter.
UNITED STATES V. COOLEY 13
whether the district court properly suppressed the evidence
obtained during the searches.
A
The district court held that the exclusionary rule applies
in federal court to violations of ICRA’s Fourth Amendment
counterpart. The government agrees, stating in its opening
brief that “suppression of evidence in a federal proceeding
would be appropriate if the [officer’s] conduct violated
ICRA,” quoting United States v. Becerra-Garcia, 397 F.3d
1167, 1171 (9th Cir. 2005). 5 We also agree with the district
court, but because Becerra-Garcia did not squarely decide
the exclusionary rule issue, we address it.
The Fourth Amendment expressly limits federal power
to conduct searches and seizures, and equally limits state
power to do so via its incorporation into the Fourteenth
Amendment. Mapp v. Ohio, 367 U.S. 643, 650 (1961). But
the Fourth Amendment — like the rest of the Bill of Rights
— “does not apply to Indian tribal governments.” Duro, 495
U.S. at 693 (citing Talton v. Mayes, 163 U.S. 376 (1896));
see also Santa Clara Pueblo v. Martinez, 436 U.S. 49, 57
(1978).
“[H]owever, Congress has plenary authority to limit,
modify or eliminate the powers of local self-government
which the tribes otherwise possess.” Santa Clara Pueblo,
436 U.S. at 56. The Indian Civil Rights Act of 1968, Pub.
L. No. 90-284, 82 Stat. 73, enacted pursuant to that authority,
“impos[es] certain restrictions upon tribal governments
5
Likewise, the government does not argue that the district court
erred in applying exclusionary rules principles in this case. Thus, we
have no occasion to consider whether any exception to the exclusionary
rule applies in this context.
14 UNITED STATES V. COOLEY
similar, but not identical, to those contained in the Bill of
Rights and the Fourteenth Amendment.” Santa Clara
Pueblo, 436 U.S. at 57; see also 25 U.S.C. § 1302(a).
Before ICRA, Indian litigants could not “claim
protection from illegal search and seizure protected by the
[F]ourth [A]mendment.” S. Rep. No. 90-841, at 10 (1967).
To address that concern, ICRA includes a prohibition on
unreasonable searches and seizures nearly identical to the
prohibition in the Fourth Amendment. See United States v.
Lester, 647 F.2d 869, 872 (8th Cir. 1981). The section of
ICRA parallel to the Fourth Amendment states:
No Indian tribe in exercising powers of self-
government shall . . . violate the right of the
people to be secure in their persons, houses,
papers, and effects against unreasonable
search and seizures, nor issue warrants, but
upon probable cause, supported by oath or
affirmation, and particularly describing the
place to be searched and the person or thing
to be seized.
25 U.S.C. § 1302(a)(2).
This parallelism does not directly settle whether the
exclusionary rule applies to violations of § 1302(a)(2). The
exclusionary principle is a “judicially created rule . . .
designed to safeguard Fourth Amendment rights generally
through its deterrent effect,” United States v. Herring, 555
U.S. 135, 139–40 (2009) (quoting United States v. Calandra,
414 U.S. 338, 348 (1974)); there is no language in the Fourth
Amendment — or its ICRA counterpart — alluding to it.
But the exclusionary principle is now firmly embedded in
our judicial tradition, interwoven with our understanding of
the Fourth Amendment’s protections. As the Supreme Court
UNITED STATES V. COOLEY 15
wrote in 1914, “[i]f letters and private documents can thus
be seized and held and used in evidence against a citizen
accused of an offense, the protection of the [Fourth]
Amendment, declaring his right to be secure against such
searches and seizures, is of no value, and, so far as those thus
placed are concerned, might as well be stricken from the
Constitution.” Weeks v. United States, 232 U.S. 383, 393
(1914). 6
Congress enacted language in ICRA that mirrors the
Fourth Amendment’s protections, and it expressed concern
that tribal authorities were violating the protections of that
Amendment. The exclusionary rule would play the identical
safeguarding function for subsection (a)(2) of ICRA, as it
does for the Fourth Amendment. Given that the
exclusionary rule applied in federal court to both state and
federal Fourth Amendment violations at the time ICRA was
enacted and was understood as essential to the effective
functioning of the Fourth Amendment, the most reasonable
inference is that the substantive parallelism between the
Fourth Amendment and ICRA continues at the remedy level.
The exclusionary rule therefore applies in federal court
prosecutions to evidence obtained in violation of ICRA’s
6
In Weeks, the Court applied the exclusionary rule only to violations
of the Fourth Amendment by federal officers and only to prosecutions in
federal court. 232 U.S. at 398. After determining that the Fourth
Amendment binds the states via the Fourteenth Amendment in Wolf v.
Colorado, 338 U.S. 25 (1949), the Court then held that the exclusionary
rule for evidence sought to be introduced in federal court applies to
evidence seized by state officers in violation of the Fourth and
Fourteenth Amendments. Elkins v. United States, 364 U.S. 206, 213–
15, 223 (1960). The next year, in Mapp, the Court held that the
exclusionary rule also applies to state court proceedings. 367 U.S. at
655.
16 UNITED STATES V. COOLEY
Fourth Amendment counterpart. We have previously so
assumed, see Becerra-Garcia, 397 F.3d at 1171, United
States v. Manuel, 706 F.2d 908, 911 & n.3 (9th Cir. 1983),
and now so hold. 7
B
The district court determined that Saylor violated
ICRA’s Fourth Amendment analogue by seizing Cooley, a
non-Indian, while operating outside the Crow Tribe’s
jurisdiction. We agree in the main, but with a caveat. In our
view, a tribal officer does not necessarily conduct an
unreasonable search or seizure for ICRA purposes when he
acts beyond his tribal jurisdiction. But the tribal authority
consideration is highly pertinent to determining whether a
search or seizure is unreasonable under ICRA. And in this
case, taking into account both the jurisdictional defect and
other factors, Saylor violated ICRA’s Fourth Amendment
counterpart.
1
We rely on Fourth Amendment jurisprudence to analyze
the validity of a search or seizure under ICRA. See Becerra-
Garcia, 397 F.3d at 1171. Whether a search or seizure is
unreasonable under the Fourth Amendment often depends
on whether the officer had probable cause for a search or
arrest, or reasonable suspicion for an investigatory detention.
See, e.g., Virginia v. Moore, 553 U.S. 164, 171 (2008);
Illinois v. Gates, 462 U.S. 213, 243–44 (1983), Terry v.
Ohio, 392 U.S. 1, 27–28 (1968). In some circumstances,
7
We do not decide whether the exclusionary rule also applies in
tribal court proceedings to evidence obtained in violation of ICRA’s
Fourth Amendment analogue. Cf. Elkins, 364 U.S. at 213–15, 223.
UNITED STATES V. COOLEY 17
however, a search or seizure may be unreasonable even if the
officer had sufficient substantive grounds to conduct it. See,
e.g., Wilson v. Arkansas, 514 U.S. 927, 936 (1995); Payton
v. New York, 445 U.S. 573, 586 (1980); see also Wilson, 699
F.3d at 245.
United States v. Henderson, 906 F.3d 1109 (9th Cir.
2018), a case somewhat analogous to this one, recently
addressed such a circumstance. In Henderson, a magistrate
judge in the Eastern District of Virginia signed off on a so-
called “network investigative technique” (“NIT”) warrant,
which allowed the Federal Bureau of Investigation to obtain
the IP address for computers “wherever located” that
connected to a site suspected of distributing child
pornography. Id. at 1112. Using this NIT warrant, the FBI
identified the IP address of “a computer at the San Mateo,
California, home of Bryan Henderson’s grandmother, with
whom Henderson lived.” Id. at 1112. The FBI obtained a
separate warrant to search the grandmother’s home. Id. That
search uncovered child pornography belonging to
Henderson. Id. at 1112–13.
Henderson held that the initial NIT warrant violated
Federal Rule of Criminal Procedure 41(b), which at the time
authorized magistrates to “issue a warrant to search for and
seize a person or property located within the district” of that
magistrate. 8 Id. at 1113 (quoting Fed. R. Crim. P. 41(b)(1)).
Henderson further decided that because the magistrate
violated Rule 41(b), she had exceeded her jurisdictional
authority. The magistrate’s only jurisdictional basis for
issuing the NIT warrant was 28 U.S.C. § 636, which allows
8
Rule 41(b) was subsequently amended to allow magistrates to issue
warrants like the one at issue in Henderson. Id. at 1119; Fed. R. Crim.
P. 41(b)(6).
18 UNITED STATES V. COOLEY
magistrates “to exercise ‘all powers and duties conferred or
imposed’ by the Federal Rules of Criminal Procedure,” id.
at 1115 (quoting 28 U.S.C. § 636(a)(1)). The magistrate was
not exercising a power conferred or imposed by those Rules,
as her issuance of a warrant for a search outside her district
exceeded Rule 41(b)’s authorization. Id.Because “the magistrate judge issued a warrant in excess
of her jurisdictional authority,” Henderson concluded, the
search supported by the NIT warrant violated the Fourth
Amendment. Id. at 1116. In reaching this conclusion,
Henderson relied on the well-settled principle that the Fourth
Amendment “must provide at a minimum the degree of
protection it afforded when it was adopted.” Id. (quoting
United States v. Jones, 565 U.S. 400, 411 (2012)). When
assessing the protections afforded at the Amendment’s
adoption, courts examine the protections provided by
“statutes and common law of the founding era.” Moore, 553
U.S. at 168; see also Atwater v. City of Lago Vista, 532 U.S.
318, 326 (2001). Henderson determined that under the
common law of the founding era, a search was unreasonable
unless the warrant authorizing that search was issued by “a
court or magistrate empowered by law to grant it.” 906 F.3d
at 1116 (quoting Thomas M. Cooley, The General Principles
of Constitutional Law in the United States of America 210
(1880)).
The common law of the founding era often deemed
searches and seizures unreasonable when police officers
acted outside the bounds of their sovereign’s jurisdiction.
When the Fourth Amendment was adopted, the common law
drew clear distinctions based on whether an officer was
acting within or outside the scope of his sovereign’s
authority. When attempting to execute a warrant, for
example, an officer could execute the warrant only “so far as
UNITED STATES V. COOLEY 19
the jurisdiction of the magistrate and himself extends.”
Henderson, 906 F.3d at 1116 (quoting 4 William
Blackstone, Commentaries *291). And “[a]t common law,
an officer [could not] arrest a person outside of his precinct,
even though the offense was committed within it.” 2 David
S. Garland & Licius P. McGehee, The American and English
Encyclopaedia of Law 863 (2d ed. 1896).
The Constitution provides support for the principle that
police officers’ legitimate power was limited under the
common law by the jurisdictional reach of the sovereign that
officer served. The Extradition Clause requires states to
comply with requests made by other states to extradite
accused felons. U.S. Const. art. IV, § 2, cl. 2; see also Puerto
Rico v. Branstad, 483 U.S. 219, 226 (1987); Engleman v.
Murray, 546 F.3d 944, 949 (8th Cir. 2008). This
requirement necessarily rests on the assumption that one
state’s officers could not lawfully seize a felon in another
state, regardless of where the felony had been committed.
At the same time, under the common law of the founding
era, an officer operating without any sovereign authority
could lawfully conduct a seizure in limited circumstances.
At the time of the Fourth Amendment’s adoption, private
individuals who personally observed the commission of a
felony could lawfully seize the perpetrator. 4 Blackstone,
supra, at *293; see also Garlan & McGehee, supra, at 884–
89. Officers had this same power when operating outside
their sovereign’s jurisdiction. 4 Blackstone, supra, at *293.
Under the historical approach relied upon in Henderson (and
many other cases, see, e.g., Moore, 553 U.S. at 168–69), a
seizure of a felon by an officer acting outside of the scope of
his sovereign’s authority may be reasonable if the common
law would allow a private person to seize the felon in the
20 UNITED STATES V. COOLEY
same circumstances. 9 This principle roughly comports with
our holding in Bressi — that tribal officers can seize non-
Indians on a state highway within Indian territory who have
obviously committed a crime, even when the officers have
no authority to exclude the perpetrator from Indian territory.
575 F.3d at 896.
The Tenth and Third Circuits, outside the context of
tribal authority, have suggested that a state officer does not
violate the Fourth Amendment by seizing a suspect in
another state. 10 See United States v. Jones, 701 F.3d 1300,
1309–10 (10th Cir. 2012); United States v. Sed, 601 F.3d
9A private citizen’s ability to seize felons at common law did not
also provide private citizens the ability to conduct searches. See 4
Blackstone, supra, at *293; cf. Bressi, 575 F.3d at 896.
10
Jones and Sed both involved officers who unwittingly seized a
felon across state lines. Jones, 701 F.3d at 1305; Sed, 601 F.3d at 226–
27; see also Engleman, 546 F.3d at 946, 949 (same). Saylor took no such
unwitting actions. He assumed that Cooley was a non-Indian, yet
continued to investigate him, detain him, and search his possessions. We
do not today address circumstances in which, for example, a tribal officer
asks whether the individual is an Indian and is told, incorrectly, that he
is.
We also do not address whether an officer violates the Fourth
Amendment when conducting a search or seizure in another political
subdivision of the same state. See Rose v. City of Mulberry, 533 F.3d
678, 680 (8th Cir. 2008); Pasiewicz v. Lake Cty. Forest Preserve Dist.,
270 F.3d 520, 526 & n.3 (7th Cir. 2001). We leave open as well whether
there are other circumstances in which an officer may comply with the
Fourth Amendment even if acting outside his geographical authority —
for example, if in hot pursuit of a suspect or in another exigent
circumstance he arrests a suspect. See Patch, 114 F.3d at 134; United
States v. Goings, 573 F.3d 1141 (11th Cir. 2009); Ross v. Neff, 905 F.2d
1349, 1354 (10th Cir. 1990); Eriksen, 259 P.3d at 1083 n.6.
UNITED STATES V. COOLEY 21
224, 228 (3d Cir. 2010); but see Ross, 905 F.2d at 1354(holding that a warrantless arrest by a state officer within
Indian country violated the Fourth Amendment). But, the
defendants in both Jones and Sed principally argued that
their arrests violated the Fourth Amendment because those
arrests violated state law. Jones, 701 F.3d at 1308–09
(relying on Moore, 553 U.S. at 176); Sed, 601 F.3d at 228(same). Those courts rightly rejected that argument; it is
well-established that a search is not unreasonable under the
Fourth Amendment simply on the ground that the search
violated state statutes. 11 Jones, 701 F.3d at 1309–10; Sed,
601 F.3d at 228; see also Moore, 553 U.S. at 176; Goings,
573 F.3d at 1143.
In this case, however, the problem is not that the tribal
officer was acting in violation of state (or federal) law. The
divisions between tribal authority on the one hand, and
federal and state authority on the other, have deep roots that
trace back to the nation’s founding. Whether a tribal
officer’s actions violate ICRA’s Fourth Amendment
analogue does not turn on whether his actions are lawful
under current statutory law. Rather, the limitations on tribal
authority derive from the recognition that “Indian tribes are
unique aggregations possessing attributes of sovereignty
over both their members and their territory; they are a
separate people possessing the power of regulating their
internal and social relations.” Antelope, 430 U.S. at 645(internal citations and quotation marks omitted). The tribes
11
The defendants in Jones and Sed did not, it appears, present a
historical analysis similar to the one in Henderson. That analysis
demonstrates that the common law of the founding era, not contemporary
statutory law, is most pertinent to whether a search by an officer acting
beyond his sovereign’s power is invalid under the Fourth Amendment.
We therefore do not read Jones and Sed as inconsistent with Henderson.
22 UNITED STATES V. COOLEY
are “separate sovereign[s]” that possess the “inherent or
sovereign authority” over tribal members and other Indians,
Lara, 541 U.S. at 197, but not others. Consistent with the
fundamental nature of the sovereignty concepts governing
the scope of tribal authority, the Tenth Circuit in Ross held
that state officers violate the Fourth Amendment if they
make an arrest in tribal territory. 905 F.2d at 1352–54; see
also Jones, 701 F.3d at 1311–12.
In sum, when a tribal officer exceeds his tribe’s
sovereign authority, his actions may violate ICRA’s Fourth
Amendment counterpart because, when the Fourth
Amendment was adopted, officers could not enforce the
criminal law extra-jurisdictionally in most circumstances.
The tribal officers’ extra-jurisdictional actions do not violate
ICRA’s Fourth Amendment parallel only if, under the law of
the founding era, a private citizen could lawfully take those
actions. Whether the officer’s actions violate current state,
federal, or tribal law is not the fulcrum of this inquiry.
Moore, 553 U.S. at 176.
2
There is also no doubt that under the standard we have
set forth, Saylor violated ICRA’s Fourth Amendment
parallel when he twice searched Cooley’s truck after seizing
him. At those times, Saylor was acting outside the tribe’s
jurisdictional authority. Under the law of the founding era,
Saylor would not have had authority as a private citizen to
seize Cooley and detain him in his patrol car until state or
federal officers arrived on the scene, as it was not obvious to
that point that a crime had been or was being committed. In
any event, Saylor lacked authority, by analogy to a private
person, to return to Cooley’s truck and enter the car to
retrieve the rifles still in the truck, or to search the truck a
second time. See supra 18–22 & n. 9.
UNITED STATES V. COOLEY 23
III
We affirm the district court’s grant of the motion to
suppress evidence. Saylor exceeded his jurisdictional
authority when he twice searched Cooley’s truck. We hold
that the exclusionary rule applies to violations of ICRA’s
Fourth Amendment counterpart, and that Saylor violated
ICRA’s Fourth Amendment parallel. Suppression of the
fruits of this unlawful search was therefore proper.
AFFIRMED, AND REMANDED.