D.Kan.: Video showed that defendant did not understand officer’s Spanish; consent invalid

The video showed that the officer’s Spanish was bad, and the defendant never understood what he was consenting to, if he was consenting at all. The court apologizes to the officers for suppressing. United States v. Mora-Morales, 807 F. Supp. 2d 1017 (D. Kan. 2011)*:

The evidence in this case is that defendants had significant difficulties understanding the troopers. The video demonstrates that the troopers repeatedly had to ask questions several times and utilize hand motions in an attempt to communicate. Rose’s attempt to gain consent to an extended encounter was never understood by defendants. Rose then attempted to ask for permission to search which was also not understood. By the time Goheen attempted to ask the question in Spanish, both Rose and Goheen had made several hand motions to defendants which could be seen on the video as motions to exit the Ford. It is the government’s burden to establish that consent was “unequivocal and specific and freely given,” and it has not met its burden in this case. Thus, the validity of the search and subsequent seizure of the ecstasy turns on the existence of a reasonable and articulable suspicion of illegal activity.

. . .

Based on many cases such as this one, the court knows that experienced, well-trained officers such as Trooper Rose have the ability to distinguish between innocent and suspicious circumstances. The court is always reluctant to make a ruling which seems to be second-guessing an officer who was on the scene. Nevertheless, this is one of those relatively rare cases where the totality of the circumstances does not give rise to reasonable suspicion. Accordingly, defendants’ joint motion to suppress is granted.