suppressed evidence gathered in a traffic stop on the crow reservation remote highway in the crow reservation in february and late at night and on the grounds that the tribal officer in this case was acting without to detain a non indian person for something less than an obvious violation of law i want to understand i want to make sure i understand the record correctly in this case the the district courts are pressed soley on the basis of the indian civil rights act violation without regard to finding whether there was a fourth amendment violation right so essential issue in this case for me police officer may ever arrest anybody and reservation except a native you know it doesn't say that but let's assume that it did in a tribal police officer with lots of probable cause  arrested someone would we would we exclude the fruits of that search consequence search perfectly legal under the fourth amendment because there was a violation of it no because now i'm trying to find the case law that makes that distinction well i think so so this relates to our second issue which is under basara garcia tribal officer acting outside of his authority under there i mean i found your previous really not very helpful because you are going a bunch of things that don't work like like that because this person in this hit the problem here isn't the tribal law is the problem is what the federal indian  e this guy under federal law doesn't have jurisdiction to move and in some sense all over this state highway after straitened and if after the supreme court case law and then you're arguing the old case which was before the supreme court cases  as to the state highway but we know that he doesn't have jurisdiction or the state highway broadly although he does apparently to stop somebody to find out whether he's an indian and to detain him on some standard as we have a violation of the yes but no violation of the no violation of the fourth amendment what case tells me that we should not suppress the fruits of the search in that circumstance well i think the  case would be to look at the sort of extraterritorial search case that we submitted in our twenty j letter if you look at it right there there was a park service officer who paid arrest outside of the so he l to do so and he did and there was a federal regulation under federal regulatory law he lacked authority to make the stop and yet he made the stop in the court and that was the first circuit basically question about it it involved regulations yes there is it make a difference that this involves a statute decided by court implemented by congress the words congress said tribal officers as a matter of federal law not tribal law you won't be allowed to do certain things how do we enforce congress's will if we don't exclude the fruits of the search well we we think that the pursuant to the the shmuck decision which the supreme court acknowledged in straight in footnote eleven of st we think that the tribal officer does have authority and i guess you assume that he didn't i understand you one of your arguments is this was a perfectly ok search under that he had authority right to but i'm asking you to assume that it was not ok assume that we affirmed the district judge on parallel to the fourth amendment the exclusionary rule does apply yes but so the real question is whether and if i still have a version of judge her with this question as i understand the person is just the wrong person and he has no authority to do this to that for the purposes of the search and seizure as well as to whether the evidence is usable in this case the fourth amendment procedures are the protection number of other cases having to do with state law violations but in those cases the court applied a rule that we think should apply here which is was the search reasonable if a federal law is your hand i want to on that i want to go back to i don't understand how it our well so those are two questions our position is that the court should have applied the fourth amendment analysis from the beginning it didn't it applied what was it created this obviousness test from a roadblock case which we think is are important to function i e the stopping to begin with but i don't see why and senator frenchman and the case doesn't say it's different with regard to what the authority of the tribal was not intending to set a new rule for the ordinary case it was distinguishing the ordinary case and by the way the pressie decision had nothing to do with the reasonable miss of the stop and that's where we get into  those questions but if we get back to the trial authority matter bressie set out the the general rule from ortiz and from shmuck and in the reference to smush mark is really important here because the overarching error in the district court's reasoning was that without the power to exclude on a public highway that the tribe really has no power to detain someone for anything other than an obvious violation and number one we have a couple problems with that number one there doesn't seem to be any reason why an officer would gain jurisdiction for an obvious violation and not for something else but more importantly the shmuck case dealt directly early on that issue the whole case the court said there's a question as to whether the court has a right to exclude and the court said there are other powers there are other inherent sovereign powers the give  the tribe the right to detain on a public highway consistent with ortiz memorising even though that case was predicated on the issue of the student there's no doubt there's no doubt here that the tribal officer has the ability to walk up to the car and do the initial stuff the question is whether the tribal officer may detain and search under the conditions in this case yes or those cases are helpful to well so they're helpful because that is the fourth amendment so the officer needs to have authority to proceed and in this case we think he does under which by the way is washington state it was a washington state case and it was cited with approval in for you know eleven of the street dealt with it as i was explaining shmuck states that there are other sovereign powers at issue here and that the that the power even though was it was predicated on power to exclude in ortiz bra's really really included other the district judge applied the right standard with regard to the authority of this tribe officer the question remains whether that gets the defendant to the exclusion percentage sign that the ultimate search was unreasonable and that it was the court never reached that it never reached that it should have reached that question i mean the district court should have actually at the time of detention made that made that the finding as to whether or not that was the judge bers honest and i think i used to yeah let's assume you have a violation of let's assume that i think you can see there are some things the tribal officer can't do on  but he would not have been violating the fourth of may but that is what he does does not violate the fourth amendment yes you're saying the only remedy for that is is a tort is a federal tort act claim against the tribal office a violation of federal law yet that doesn't violate the fourth amendment and your position is i think at the end of the day well you don't get the evidence excluded and there's probably no remedy for it and that is we're dealing with the evidence that was gathered in that case and the issue in this case the sole issue is not sort of what remedy the defendant has for an outrageous search it's whether the evidence can be used in this case it can be used in this case because the search was  assume that the tribal officer did not have the authority to conduct the search but that had he been a federal officer or state officer if the search would not have while he could have done so and the search would not have violated the fourth amendment under any circumstance is there any case where we've suppressed the fruits of a search solely because of the tribal officer exceeded his authority none that i'm aware of your honor but that is not what the government is arguing here well  what i'm asking because here's the problem the district judge maybe quite correctly said the officer exceeded the scope of his authority because because of the interplay between in federal indian law and and another law but the federal district judge never said the officer violated the fourth amendment and so my question is under that circumstance but which basically says that that the fact that for example you're violating state law when you arrest somebody is no nevermind with regard to the fourth amendment you know those are the the line of cases cited by the government about the lack of authority now and then they're a little different and i don't know have they ever signed infringe on your person's maurice but they have to do with whether state is a violation of state law and it's not really about the authority of the of the officer but rather than the fact that well in a way it is because state law said you couldn't arrest somebody for this and for what they arrested him for and the supreme court said well that's no nevermind the question is whether it's a violation of the fourth amendment  file their supplemental authority about last week and both of those cases you had federal a federal act or invest in basara garcia the court expressly found that the tribal rangers in that case were acting at the direction of the us border patrol and so they found state action in that case in ryan it was a federal national park officer who had the it was not disputed in that case that he had the authority to detain and investigate but not by not off the not off the no no in ryan if you read ryan he did there was a statute that expressly gave him so what i want to get back to the question that both of us are trying to ask and make it a state law unless a state law that says state law this is constables may only arrest people for misdemeanors and a constable or arrest somebody for a felony and then conducts a search would we suppress the fruits of that search because he violated state law if you found that it was on reasonable yes no i mean no just solely because it violated state law not because it violated the fourth amendment o differently is it on reasonable simply because it violates state law virginia vs more seems to say no i don't believe not simply because of the violation of so ok so at the end of the day here don't we have to find an unreasonable seizure or search which is to say a fourth amendment violation absolute for we can suppress yeah but that's where bressie comes in if all the mit li a stop by a tribal officer of a no on indian on a state highway if all you needed to justify that stop was the objective objective lee reasonable suspicion that we traditionally apply that's what the court resi would have set but instead problem because if he wasn't a federal officer and as tribal officer he was a state officer right and so they were just trying to figure out whether he was or operating under tribal authority under state authority any ultimately said well they had to be operating under state  determine it's a look at the sequence of events to determine which actions the officers were authorized to take under purely tribal law and alternately they had to do that in order to determine whether bressie had stated a viable  right and bressie says once you do that then we look under nine hundred eighty three to see whether there's a constitutional violation right and so i'm not sure how bressie helps you when we don't have a constitutional violation pressing is it is it is a you know sort of artifact but it isn't the stand the subset of standard you're right let's assume that you're right about the subset of standards and that the district judge was right about the subset of standard i understand that the government has not until now and not even that much now really joined issue on the question of then why but then what the well and that's important because the government has not argued that the exclusion y rule doesn't apply well the government has look the district court suppressed in this case soley on the basis of what it thought was an excess of authority issue right right what if  dist and what if the district court was right using the government has waived a fourth amendment argument but it certainly made one and the district court declined to get to it it did the government is not argue that the district court erred because it applied the exclusionary rule that they're arguing that the fact that a particular officer may lack authority does not and mount to a per se on the reasonable seizure well that's it's really the same argument though isn't it because it goes to the reasonableness of the detention but you're put your argument is that reasonable this is measured against something other than the fourth amendment and the government's argument throughout has been that reasonable this is measure the fourth amendment stance no i think what i'm arguing about what i'm arguing is that in an reasonable the tension is what this court says in this context is what this court said it was and bressie which is a detention for something other than an obvious violation of state or federal law that's on reason that i've put put prescious icas i don't think it gets you where you need to go it's one of stand your position your position is that you want we can have an unreasonable detention that suppression of resulting evidence that's that's seized and then reasonable is measured against the authority of the officer to engage in the tension not the traditional fourth amendment standard lack of authority into the reasonable man standard yeah that's right definitely and so i and there are two questions about that one is given ryan in virginia versus moore  is there any authority for that and is in that regard doesn't matter that this is that the rule that's being enforced here is is kind of lack of authority should be feeding into the fourth amendment when we know that others don't the well i think in your honor it goes to what you said and then there if the evidence of this detention is not suppressed in excluded from trial then there is literally no remedy for the violation but the exclusionary rule the supreme court tells us is an extraordinary remedy to be imposed for constitutional to the authority over non indians is that you know of sufficient and special authority somehow i don't like the fourth of a memo doesn't strictly apply because we're dealing with well i understand that  it sort of goes to state the erickson which is a washington supreme court case from two thousand and eleven which is different from smart but that was sort of the issue is the reverse there where you had a tribal officer chasing an on indian from on the reservation off the  fourth amendment violations no it's the rest of the language of that that section seems to match seems to say what we want to do is apply the fourth amendment on any reservations to exclude stuff under iqra since you think there's exclusion who under iqra why does it go broader than the language of thirteen o two which talks about which has really a fourth amendment standard why why would we read an exclusionary rule and to broader than the broader than the language of thirteen o two or i mean the exclusionary rule we we apply this the exclusionary rule to the exact same language that we find in the fo and i understand your argument to be that we're not going beyond your ground we are saying that it's an unreasonable search and seizure for somebody who doesn't have the authority to search your search that's not technically what i'm arguing because  miss of the stop i think there's two different types of lack of authority you have the true the pure lack of authority when somebody is out outside of their tort territorial jurisdiction in a place where they cannot act but then you have the other scenario where they the fourth amendment that's right absolutely as opposed to terms of who's doing yes that's our basic problem is what is the authority for the position that the wrong person searches you you have an unreasonable search under the fourth amendment and therefore i  think in that is not the issue raised by the government's appeal here why because they're not arguing that the exclusionary rule does not apply they've never said that they've never ever knew that it's about the subset of fourth amendment violation i understand that they're arguing bunch of other things which are probably wrong but you think they're doesn't squarely meet this but i do think you're arguing that the judge erred because the search didn't violate the fourth amendment yeah yeah if you set aside the obviousness standard in just want to analyze this based on reasonable suspicion discussing the issue becomes then was this violation of a crow which is a statute was it still was it reasonable under the meaning of the fourth amendment as of course cases have interpreted it and if th no authority it can be factored in to the reasonable in this equation right it is a factor to be considered for it actually in the four case that we cited it actually discussed is that a little bit it says look just because he's ten feet outside of the reservation or the park in that case doesn't make it per se unreasonable now it may be a factor to be considered let's say the trial officer here drive one hundred fifty miles away to another town and arrest somebody in that case  the officers authority would certainly be a factor for you to consider even the reasonableness of fourth amendment rather wise violators not a word satisfied even if the fourth a man were otherwise satisfied i think that could be factored into the reasonableness equation and i don't think the case law for close is that what poseur garcia says is it's not a perceived fourth amendment violation but to get to your question judge who is i don't think it's that it's difficult for us to make the argument that if it is is reviewed under the fourth amendment case law and standards and these are all judge made standards exclusion being primary among them that they come in a package and applied it that is an unreasonable search under a statute is remedied by the package that this court was asking a slightly different question which is thirteen zero two and it talks about constitutional rights and so we might well say that a violation of thirteen o two in accra requires exclusion because it might it lead matches up with the constitution but they're not all other violations of it if you will  authority violations require exclusion and i was trying to figure out where the line is and that would be the line because it isn't the entire bill of rights package the the thing about it grow is it contains some of the bill of rights you know you don't have a right counsel for instance but you do have a right to be apprised of your charge and arraigned on a charge so the fourth amendment the fourth amendment package comes with a crow that's essentially what the court said in basara garcia and that means that that exclusion remedy applies but it applies under the same circumstances that is reasonable and if you want to consider authority it's only one factor to be considered in this larger reasonable this package and bressie did not reach that question re