D.Neb.: Consent derived from smartphone app Spanish translation was voluntary on totality

Defendant was riding a Greyhound bus from Denver to Indianapolis, and it had a bus change in Omaha. Luggage was pulled off the bus, and an interdiction officer noticed the new bag with defendant’s name on it. He also detected the smell of a masking agent. The officer had to communicate in Spanish with a translation app on the phone. The defense called a court certified translator that the translation could have been confusing to defendant. Nevertheless, the court finds the consent in Spanish off a smartphone app voluntary on the totality. The colloquy had been recorded. United States v. Garcia-Garcia, 2017 U.S. Dist. LEXIS 204049 (D. Neb. Oct. 17, 2017), adopted, 2017 U.S. Dist. LEXIS 203189 (D. Neb. Dec. 11, 2017):

Moreover, as stated above, the Court’s inquiry is “not whether the defendant subjectively consented, but whether ‘a reasonable officer would believe consent was given.’” Rodriguez, 834 F.3d at 940. Immediately after Defendant gestured to the passenger area of the bus, Investigator Finn pointed to the checked bag and asked Defendant if it was his bag. Investigator Finn verified that the luggage tag had Defendant’s name on it, and Defendant nodded to indicate it was his bag. Investigator Finn asked, “permite?” In response, Defendant put up his hands and stepped back. As Investigator Finn searched the checked bag, Defendant stood by silently and motionlessly, and took no affirmative action or otherwise indicated a desire for the search to stop. Investigator Finn reasonably could infer from Defendant’s gesture prior to the search, and subsequent conduct during the search, that he provided consent to the search of his checked bag. See Rodriguez, 834 F.3d at 940 (quoting Pena-Ponce, 588 F.3d at 584) (“Consent may be inferred from the defendant’s ‘words, gestures, or other conduct[.]‘”); and Correa, 641 F.3d at 967 (concluding defendant’s “contemporaneous reaction to the search–compliance and silence–was consistent with consent.”).

Additionally, as discussed above, at the time Defendant provided this consent, he was in a public place, was not confronted by multiple officers, was not threatened, and was not handcuffed or detained in anyway. The entire duration of Investigator Finn’s encounter with Defendant from the initial contact until the search took place was only four and a half minutes. (Ex. 1 at 0:33-5:03). Upon review of the record, the undersigned magistrate judge concludes that the totality of the circumstances reflects Defendant’s consent was voluntary, and that a reasonable officer in Investigator Finn’s position would believe Defendant consented to the search. See United States v. Smith, 260 F.3d 922, 925 (8th Cir. 2001) (finding defendant voluntarily consented to search of his luggage at bus station where “the encounter occurred in a public place during daylight hours, … the entire episode leading up to the search lasted only a few minutes, [the defendant] expressed no reluctance to speak with the officers or to permit the search of his bag, and [where], at the very least, [the defendant] indicated his consent to the search by raising his hands.”).

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