CA9: Exclusionary rule applies to tribal officers

The exclusionary rule applies to tribal officers conducting illegal searches or searches off their tribal lands under the Indian Civil Rights Act or the Fourth Amendment. United States v. Cooley, 919 F.3d 1135 (9th Cir. Mar. 21, 2019), reh. en banc den. 2020 U.S. App. LEXIS 2275 (9th Cir. Jan. 24, 2020). Summary by the court:

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 is 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.