US v. Cooley, No. 17-30022 (3-21-19)(Berzon w/Thacker & Hurwitz). This is an interesting Indian jurisdiction/ICRA case. The 9^th affirms the district court’s suppression of evidence (meth) arising from a tribal officer’s encounter, on a public nontribal road, with a non-Indian defendant. The encounter occurred when the officer stopped to help a parked truck on the side of a public road.  The officer noted that the driver “seemed to be non-Indian.” One thing led to another (blood shot eyes, rifles, affected speech), and meth was uncovered in two searches of the truck.  The district court suppressed for lack of jurisdiction: a tribal officer does not have authority to detain an individual on a public road unless it is obvious or apparent the individual as violating state or federal law.

The 9^th affirmed suppression, although not because the individual “seemed like a non-Indian.” The 9^th stressed that appearances vary widely; the officer cannot make assumptions based on appearances.  Rather, the officer should have asked about status. After all, Indian jurisdiction is political (Antelope) and based on sovereignty.  Here, though, the officer went beyond his jurisdiction.  Since the officer did not inquire about status, and the defendant was a non-Indian, the detention was invalid.

The 9^th then makes clear that under ICRA (Indian Civil Rights Act), exclusion of evidence is proper. The opinion discusses the sovereignty of the tribes; the role of the exclusionary rule as protecting the 4^th amendment, and the presumed incorporation of the exclusionary rule when ICRA was enacted. The exclusionary rule extends to Indian jurisdiction.  The Reservation is covered.  What was assumed to be implicit by the 9^th is now made explicit.

There is more. The 9^th does find another possible basis for a tribal officer to arrest a nontribal member. The basis would be reasonableness. It requires considering the extent of tribal authority pursuant to ICRA; and whether, at the time of the founding era (!), an individual could execute lawful arrest.

There are not many ICRA cases.  This is a significant one.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/03/21/17-30022.pdf