Defendant disputed the officer’s attempt at asking for consent in Spanish using a translation app on his iPhone. The defense called expert Spanish speakers that the query was essentially “may I look [at or for] your car” not in it. The USMJ, District Court, and Court of Appeals disagree that he didn’t understand what was said. He seemed to, and the testimony would have him responding to a “nonsensical” question. United States v. Leiva, 2016 U.S. App. LEXIS 7956 (7th Cir. April 29, 2016):
Leiva called three expert witnesses who stated that “Puedo buscar su coche?” does not mean, “Can I search your car?” All three witnesses stated that “Puedo buscar su coche?” means “May I look for your car?”, “May I get your car?”, or “May I locate your car?” It does not indicate a question regarding a search of the interior of the car. Rather, the proper phrase for “May I search [the interior of] your car?” would be “Puedo revisar su carro?” or “Puedo registrar su carro?” One expert testified that if Weiss had said, “Puedo buscar en su coche?”, a native Spanish speaker may have understood the phrase to mean “May I search inside your car?”
Although determining that Weiss’ Spanish phrase was not properly phrased, the magistrate judge still found that Leiva had consented to the search and that both the search and subsequent seizure of evidence in the car were proper, and recommended that the district court deny Leiva’s motion to suppress. The district court adopted the recommendation and denied the motion to suppress.
. . .
Even accepting that Weiss’ Spanish question does not mean exactly what he intended, the district court was not clearly erroneous in finding that based on the totality of the circumstances Leiva voluntarily consented to the search. The magistrate judge found that, as in similar consent to search cases, “it was clear that the officer did not need to search for or locate the car. Rather, it was clear that the officer was asking permission to search the car.” The magistrate judge determined that “Leiva understood that Weiss was asking permission to take an action with respect to the Hyundai [Elantra],” because Leiva responded to Weiss’ question “without hesitation” and did not seem “boggled by the question as nonsensical.”
In accepting the recommendation of the magistrate judge, the district court also cited Leiva’s immediate response to Weiss and his lack of confusion at the question. It further stated that it would be unreasonable for Leiva to think that Weiss wanted to find or locate Leiva’s car: “Because the rental car had not been moved since the traffic stop, there was no reason for the officer to ask the Defendant if he could ‘locate’ or ‘look for’ a car that was 20 to 25 feet away from them.” The district court also noted that Leiva’s actions towards Martin and Gallego—telling them to give him their fake licenses and to be quiet—”suggest[ed] that [Leiva] was afraid that evidence of illegal activity might be discovered if a search was conducted.” These actions indicated to the district court that Weiss had asked for consent to search Leiva’s car and Leiva had given consent to search.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)