CA8: District court’s findings of voluntary consent supported by record despite language barrier and defense language expert

Despite a language barrier and a Spanish-language expert saying the officer’s request was ambiguous, the district court found that defendant consented to a search of his luggage. That finding is not clearly erroneous, even considering all the record. The officer also used a language app on his phone to converse with defendant. Finally, a Spanish-language consent form is desirable, but not a Fourth Amendment requirement. United States v. Garcia-Garcia, 2020 U.S. App. LEXIS 13722 (8th Cir. Apr. 29, 2020):

Here, Finn asked Garcia if he had one bag—”uno bolsa”—while pointing to Garcia’s checked-baggage ticket.3 The only bag Garcia checked was his suitcase. Finn then used the same word when requesting permission to search Garcia’s bag while the men conversed inside the station. It was therefore reasonable for Finn to believe the two men were discussing the same bag—the only bag Garcia checked. See Leiva, 821 F.3d at 818-19; see also United States v. Rojas-Millan, 234 F.3d 464, 470 (9th Cir. 2000) (holding that it was reasonable for officers to believe suspect consented to a search when a Spanish-language expert testified that though the relevant Spanish term could be translated in different ways, its meaning was reasonably apparent in the relevant context).

Garcia argues that Finn knew at the time he searched the suitcase that Garcia had a backpack on the bus and that Garcia had only consented to a search of his backpack. Garcia relies on a brief statement Finn made to an unidentified officer after the search, when Finn stated that Garcia mentioned “another [bag]” when they “first started talking.” Garcia did not question Finn about this comment during the suppression hearing, and as a result, it is unclear what Finn meant. Regardless, immediately following that remark, Finn explained that, in fact, he did not believe Garcia actually had a bag on the bus. Having reviewed the video and a transcript of the audio, we are confident that prior to the search of the suitcase, Finn never saw that Garcia had a second bag nor did Garcia ever mention a second bag. As a result, while this discrepancy might give us pause were we considering this as an original matter, the magistrate judge, whose findings were adopted by the district court, found that Finn was credible, and based on the record, we are unable to conclude that the district court clearly erred. See United States v. Coleman, 909 F.3d 925, 929 (8th Cir. 2018).

We find a case from a sister circuit particularly illustrative. In Leiva, the Seventh Circuit held that it was not clearly erroneous to find that a defendant voluntarily consented to a search even though the officer’s request to search was not properly phrased in Spanish. 821 F.3d at 818-19. There, the officer asked a suspect “¿Puedo buscar su coche?”, which the officer believed meant, “May I search your car?” Id. at 813. According to the defendant’s Spanish-language experts, the phrase meant “May I look for your car?”, “May I get your car?”, or “May I locate your car?” Id. at 814. The defendant argued he had not consented to a search of his car but instead had permitted the officer to “look for” his car. The court was unpersuaded, finding that the context made the officer’s meaning apparent and that the defendant responded in a way that indicated he understood the request. Id. at 818-19. The officer and the defendant were standing near the defendant’s car, which had not moved since the officer initiated the traffic stop, and as a result it would have been clear to a reasonable person that the officer did not need to look for the car. Id.

As in Leiva, so too here. Although Finn’s Spanish translation may have been imperfect, the context of the interaction and Garcia’s response mean it was not clearly erroneous to find that a reasonable officer would believe Garcia understood Finn’s request.

The relative ease with which Garcia and Finn communicated using the translation application further supports the district court’s finding that it was reasonable for Finn to believe Garcia consented based in part on a request using the term bolsa—a translation produced by the application. See Cedano-Medina, 366 F.3d at 687 (emphasizing that the officer and suspect “convers[ed] without difficulty for a very substantial portion of their conversation”). ….