FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

JOSHUA JAMES COOLEY,

Defendant-Appellee.

No. 17-30022

D.C. No.

1:16-cr-00042-

SPW-1

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 rightof-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 nonNative” — was not. The panel explained that officers cannot 

presume for jurisdictional purposes that a person is a nonIndian — 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 nonIndians, 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-ofway. 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 selfgovernment 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 BecerraGarcia, 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 socalled “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 magistratesto 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 nonIndians 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 

 9 A 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.