United States District Court, D. Montana, Billings Division
P.WATTERS, United States District Judge
Joshua James Cooley (Cooley) is charged with Possession of
Methamphetamine with Intent to Distribute and Possession of a
Firearm in Furtherance of a Drug Trafficking Crime. (Doc. 1).
He has moved to suppress evidence under the Indian Civil
Rights Act (ICRA) and the Fourth Amendment. (Doc. 33).
January 6, 2017, the Court held an evidentiary hearing. The
Court heard testimony from Tribal Highway Safety Officer
James Saylor and Bureau of Indian Affairs Special Agent Kevin
Proctor. Having read and reviewed the parties'
submissions and having heard the testimony of the witnesses
noted above, the Court GRANTS Cooley's motion.
Statement of facts
1:00 AM on February 26, 2016, Tribal Highway Safety Officer
James Saylor (Officer Saylor) was traveling eastbound on
State Highway 212 within the exterior boundaries of the Crow
Reservation when he noticed a white pickup truck stopped on
the shoulder of the westbound lane. Officer Saylor, knowing
this portion of Highway 212 has bad cellphone reception,
turned his vehicle around and pulled up behind the truck to
see if the truck's occupants needed assistance. As he
pulled up behind the truck, Officer Saylor turned on his rear
emergency lights but did not turn on his overhead lights. The
truck had an extended cab and Wyoming plates.
truck's engine was running. With his flashlight on,
Officer Saylor approached the driver's side of the truck
and knocked on the truck's side. The rear driver's
side window rolled partway down and then back up. In the
backseat, Officer Saylor saw a child's car seat and a
small child crawling to the front of the truck. As Officer
Saylor came to the front driver's side window, he saw
Cooley in the driver's seat. Officer Saylor asked Cooley
to roll his window down, which Cooley did about six inches.
The child was sitting in Cooley's lap, content.
Saylor observed Cooley was non-Indian and had bloodshot,
watery eyes. Officer Saylor did not smell any alcohol.
Officer Saylor asked Cooley if everything was okay. Cooley
responded that everything was fine, he pulled over because he
was tired. In Officer Saylor's experience, it is common
for travelers along this stretch of highway to pull over
because they are tired. Officer Saylor asked Cooley where
he'd come from, to which Cooley responded Lame Deer,
about 26 miles away. Officer Saylor could not tell whether
Cooley's speech was slurred.
Saylor pressed Cooley on his answer, asking him what his
business was in Lame Deer, who he had seen, and why he was
traveling so late. Cooley explained he had been there to
purchase a vehicle but the vehicle had broken down. He
further explained the truck he was in was loaned to him by
either a Thomas Spang or a Thomas Shoulderblade. Officer
Saylor knew both a Thomas Spang and a Thomas Shoulderblade.
Thomas Spang was a person Officer Saylor suspected of drug
activity on the Northern Cheyenne Reservation. Thomas
Shoulderblade was a former probation officer with the Bureau
of Indian Affairs on the Northern Cheyenne Reservation.
Saylor suspected Cooley was not telling the truth and asked
Cooley to roll his window down further. When Cooley rolled
the window down, Officer Saylor saw the butts of two
semiautomatic rifles in the front passenger seat and observed
the center console was folded down. Officer Saylor asked
Cooley about the rifles. Cooley stated they belonged to the
owner of the truck, Thomas. Officer Saylor asked Cooley for
some identification. The child was still sitting in
reached into his right pants pocket and pulled out a wad of
cash, which he placed on the dashboard. Cooley did this two
or three times. The last time Cooley reached toward his
pocket, his breath became shallow and his hand hesitated
slightly around his pocket area. Officer Saylor drew his
service pistol, held it to his side, and ordered Cooley to
stop and show his hands. Cooley immediately complied,
attempting to raise both his hands while holding onto the
child in his lap. Officer Saylor told Cooley he was no longer
allowed to move his hands unless told to do so. Officer
Saylor instructed Cooley to slowly reach into his pocket and
retrieve his identification. Cooley complied and produced a
Wyoming driver's license.
his portable unit, Officer Saylor, attempted to radio
dispatch to run Cooley's identification. Officer Saylor
could not reach dispatch because the portable unit had poor
reception in this area. The unit in Officer Saylor's
patrol car was capable of reaching dispatch because it had
much better reception than the portable unit. Instead of
returning to his patrol unit, Officer Saylor maneuvered
around the truck to the passenger side and opened the door.
Officer Saylor saw that the two semiautomatic rifles in the
passenger seat were unloaded. He also saw there was a pistol
tucked underneath the folded down center console. Officer
Saylor asked Cooley why he hadn't said anything about the
pistol. Cooley responded he did not know it was there because
the truck and its contents belonged to Thomas.
Saylor reached into the truck under the center console,
removed the pistol, removed the magazine from the pistol, and
removed a round from the pistol's chamber. Officer Saylor
ordered Cooley out of the truck. Cooley, holding the child,
exited the truck and met Officer Saylor at the rear of the
truck. Officer Saylor patted Cooley down and, after finding
no weapons, ordered Cooley into the back of the patrol unit.
Cooley asked Officer Saylor if he could empty his pockets
first, to which Officer Saylor said yes. Cooley removed cash,
credit cards, and a few small Ziploc bags from his pockets
and placed the items on the patrol car's hood. The Ziploc
bags were empty.
Saylor placed Cooley and the child in the patrol car's
backseat and radioed dispatch to send another unit and,
because Cooley was non-Indian, a county unit. Officer Saylor
returned to the truck to retrieve the rifles. The truck was
still running. From the passenger side, Officer Saylor
reached across the seats to remove the keys from the
ignition. While reaching for the keys, Officer Saylor saw a
glass pipe and a plastic bag containing a white powder wedged
between the driver seat and middle seat. Shortly thereafter,
Bureau of Indian Affairs Lieutenant Sharon Brown and Big Horn
County Deputy Gibbs arrived. Lt. Brown instructed Officer
Saylor to seize all contraband in the truck within plain
view. Subsequent searches discovered more white powder, which
was later determined to be methamphetamine.