D.Kan.: Officer’s attempt to use Google Translate to get consent to search car led to confusion; and govt failed in its burden of proof of voluntariness

Defendant was a native Spanish speaker, and the officer tried to use Google translate on his phone to ask him to consent to a search of this car. The result was confusing, and the court finds that the government failed in its burden of proving unequivocal consent. Moreover, the good faith exception does not apply here. United States v. Zamora, 2018 U.S. Dist. LEXIS 93906 (D. Kan. June 5, 2018):

Language barriers are relevant when determining whether consent was freely given. United States v. Hernandez, 893 F. Supp. 952, 961 (D. Kan. 1995). In a situation where a defendant is not fluent in the same language as the officer, the court can infer from the circumstances whether the defendant understood the officer’s questions. Id. For example, in Hernandez, the defendant responded appropriately to all of the officer’s requests, was able to tell the officer what he did for a living and where he was travelling, and responded “yes” when the officer asked him, in English, whether he could search his vehicle. Id. The officer also had defendant read a request to search which was written in Spanish, and the defendant also responded affirmatively. Id. The court found that the evidence demonstrated the defendant understood the officer’s requests and voluntarily consented to the search. Id.

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Assuming this is the point where Wolting claims defendant consented to the search, the court is hesitant to find defendant unequivocally consented, as defendant was clearly confused as to what Wolting was asking. And this is not the only instance where defendant expressed confusion about Wolting’s questions. There are many times throughout the transcript where defendant says, “I don’t understand” or seems confused as to the question that was interpreted through Google Translate. And, it is unclear, based on the Google Translate translation of “Can I search the car,” that defendant fully understood the question Wolting intended to ask. As mentioned above, the professional interpreters both testified that while “¿Puedo buscar el auto?” is a literal translation of “Can I search the car,” defendant, who had limited English skills, would not necessarily have been able to interpret that question as it was intended. As mentioned above, Google Translate translated “¿Puedo buscar el auto?” to “Can I find the car.” It is impossible to know how defendant translated “¿Puedo buscar el auto?” and whether he was affirmatively consenting to a search of his vehicle or responding to a perceived command. And while he did exit the patrol car and stand by the side of the road without objection while Wolting performed the search, defendant testified that he did not understand the question, and did not know he had a choice when Wolting told him to stand near the side of the road.

Unlike other cases where the defendants’ actions implied that they understood the officers’ questions, here it is not so clear. Yes, defendant did demonstrate some basic understanding of Wolting’s English questions and commands; however, when reviewing the transcript and considering the imprecise translation, the court does not find the government has met its burden to show defendant’s consent was “unequivocal and specific and freely and intelligently given.”

For these reasons the court finds that the good-faith exception does not apply as it is not reasonable for an officer to use and rely on Google Translate to obtain consent to a warrantless search, especially when an officer has other options for more reliable translations. The government has not met its burden to show defendant’s consent was “unequivocal and specific and freely and intelligently given,” because defendant claims he did not understand the question, the transcript from Wolting’s in-car camera supports defendant’s claim that he did not understand many of his questions, and the Google Translate translation allegedly used by Wolting was not a precise translation of “Can I search the car?” Even though defendant answered “Ah, okay. Yeah… yeah. Go. Yes,” it is not clear from the evidence what question was asked and what defendant was agreeing to, and the court will not interpret defendant’s compliance with Wolting’s instructions to stand by the side of the road during the search as implied consent, considering the totality of the circumstances. The court finds that application of the exclusionary rule is appropriate in this case, and therefore grants defendant’s motion to suppress.