This is the second case in three days on this issue:
Officers stopped a car in Kansas and spoke to the driver in limited Spanish. After returning the paperwork and saying “Adios” and stepping back two steps, the officer hesitated and stepped forward to the car and asked if he could ask more questions. Because it was not in a threatening or coercive manner, the continuation of the stop was consensual. United States v. Bastidas-Figueroa, 2007 U.S. Dist. LEXIS 58490 (D. Kan. August 6, 2007):
After returning defendants’ documents, Trooper Epperly told defendants “adios” and then took a couple of steps away from the vehicle. Trooper Epperly testified that he never leaned into the car, did not grab his weapon, and did not use an aggressive or commanding tone of voice when he asked for consent. Instead, after taking a couple of steps away, he asked if the defendants had a problem with him searching the vehicle.
Trooper Epperly testified that he speaks a small amount of Spanish and that the defendants spoke a small amount of English, but that his Spanish was good enough to establish basic communication during a traffic stop. Trooper Epperly further testified that although his Spanish is broken, he is able to obtain correct responses to his questions and he can tell when someone he is questioning does not understand him. When he asked to search, Trooper Epperly asked if he could “buscar su caro.” While this is not a literal translation for asking if he can search the vehicle, he testified that he had never had anyone indicate that they did not understand that question. Trooper Epperly testified that the defendants did not appear confused when he asked them this question and never attempted to ask him any questions before saying yes.
While Trooper Epperly never advised defendants that they had the right to refuse consent, the Tenth Circuit has “reject[ed] the suggestion that the trooper’s failure to advise [defendant] that he was free to leave, or that he could refuse consent to search, render[s] the consent involuntary” when the events occurring before the search were lawful. Further, defendants do not explain why the troopers were required to Mirandize defendants at this point given that it was a consensual encounter and no illegal activity had turned up prior to the search. The Court determines that Trooper Epperly lawfully obtained consent to search the vehicle under the totality of the circumstances.
Comment: See United States v. Jones, 501 F. Supp. 2d 1284 (D. Kan. 2007), posted August 12th, involving the same technique.
Motion to suppress 233 kgs of cocaine from defendant’s car was denied. The testimony of one of his witnesses testifying in Spanish was hopelessly confusing, and her claim that she did not understand English but understood certain phrases based on facial expressions just could not be credited. The uncontested testimony about where he parked and strange comings and goings from his car and parking his car two blocks from his house and walking home with the proferred justifications just made the defendant’s version incredible. United States v. Arreola, 2007 U.S. Dist. LEXIS 58596 (N.D. Ill. August 7, 2007).*
The police had plenty of probable cause for a search of defendant’s apartment under a search warrant where they received an anonymous call about drug dealing and surveilled the comings and goings. A little later, they had information from a CI that he bought drugs inside. Then officers did a trash pull from the premises. The product of all that made probable cause for issuance of the search warrant. State v. Kidd, 2007 Ohio 4113, 2007 Ohio App. LEXIS 3727 (11th Dist. August 10, 2007).*
Stop of vehicle was valid for no license plates. When the officer approached the car, he smelt burnt marijuana. The license plate was in the trunk, but neither the driver nor the passenger had valid driver’s licenses. The impoundment of the vehicle was valid rather than leave it where it was. Informant information and a dog alert led to a warrant for the car as well. The warrant was valid and not based on bare bones information. State v. Berry, 2007 Ohio 4122, 2007 Ohio App. LEXIS 3742 (5th Dist. August 6, 2007).*
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"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, Let it Bleed (album, 1969)
"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]
“Children grow up thinking the adult world is ordered, rational, fit for purpose. It’s crap. Becoming a man is realising that it’s all rotten. Realising how to celebrate that rottenness, that’s freedom.” – John le Carré, The Night Manager (1993), line by Richard Roper
"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)
The book was dedicated in the first (1982) and sixth (2025) editions to Justin William Hall (1975-2025). He was three when this project started in 1978.
