from the almost-habla-espanol dept
The quickest way to a warrantless search is obtaining consent. But consent obtained by officers isn’t always consent, no matter how it’s portrayed in police reports and court testimony. Courts have sometimes pointed this out, stripping away ill-gotten search gains when consent turned out to be [extremely air quotation marks] “consent.”
Such is the case in this court decision, brought to our attention by FourthAmendment.com. Language barriers are a thing, and it falls on officers of the law to ensure that those they’re speaking with understand clearly what they’re saying, especially when it comes to actions directly involving their rights.
It all starts with a stop. A pretextual one at that, as you can see by the narrative recounted by the court.
On February 11, 2020, Corporal Mark Conrad of the Pennsylvania State Police initiated a traffic stop of a vehicle driven by Ramirez-Mendoza on Interstate 80 (“I-80”) in Union County, Pennsylvania. Conrad chose to conduct a stop because Ramirez-Mendoza was driving above the speed limit and he suspected that her vehicle’s window tints were illegal. While standing by Mendoza-Lopez’s car, Conrad observed that there were two cell phones in the car’s center console area and a single key in the ignition. Conrad also detected a strong odor of air freshener emanating from the vehicle.
“Suspected tint was illegal.” Check. “Multiple cell phones.” Check. “Air freshener.” Check. All the things needed to cause a state trooper to be somewhat reasonably suspicious. The language barrier only heightened the suspicion, apparently. Corporal Conrad tried to get details on Mendoza’s travel plans, but was unable to because, while he asked questions in English, he was only able to get Spanish in return.
The trooper decided tech could get the job done. He retrieved his phone and turned on Google’s translation app. Using this, he asked questions and received answers, all filtered through Google’s translation service. This process introduced the possibility of erroneous translations, something the trooper was incapable of recognizing.
Because Conrad does not speak or understand Spanish, he did not and could not confirm whether Google Translate accurately interpreted and articulated what he was saying.
A mistranslation wasn’t just a probability. It was an actuality, something that was captured by the trooper’s body camera. There was a mistranslation at a very crucial juncture of this traffic stop.
Later in the stop, Conrad asked Ramirez-Mendoza if she had anything illegal in the car. She responded no. Conrad then said: “would like to search the car to make sure, okay?” Google Translate converted this into Spanish, and from the video recording, it appears that the word “registrar” was used in place of the phrase “to search.” The FBI linguist translated the app’s Spanish translation into the statement: “I like to search the car to make sure that it is all right.” Again, however, the Government did not offer any testimony to verify the accuracy of this translation.
Ramirez-Mendoza then responded “uh-huh” and nodded her head. Conrad subsequently directed her to the shoulder of the highway and proceeded to search the vehicle. In the car, he found a large package of fentanyl. Ramirez-Mendoza testified that she believed that Conrad had meant “I like check the cars, revise the cars” and that she did not understand this to mean that he intended to search her vehicle. She acknowledged that she had responded that it was “fine” because he had not indicated to her that he was asking to look inside the car or through her belongings. In any event, at no point did Ramirez-Mendoza protest the search or ask for clarification.
The court says this effort — as well-intentioned as it might have been — is not enough. Google Translate is simply not reliable enough to be used in a situation where rights are on the line. While some courts have said the service performs well enough, the translation errors observed in the recording suggest it didn’t in this case.
The Court is not convinced that Google Translate accurately translated Conrad’s request for consent into Spanish. The Government bears the burden of proof, but failed to introduce any evidence showing that the word “registrar” actually means “to search.” Unlike in cases such as Salas-Antuna or United States v. Leiva which found the word “buscar” sufficient to communicate to a suspect that an officer would like to search her property, the Court has no legal or factual basis for interpreting the term “registrar” in a similar manner. Precision is important, particularly in this context, and the Court believes that more was needed to establish the accuracy of Google Translate.
Moreover, even if the Court credited the transcript’s translation, it would not be enough to bear the Government’s burden. While the transcript tends to prove that Ramirez-Mendoza knew that Conrad intended to search her car, the translation would still undercut the Government’s case as the transcript shows that Google Translate revised Conrad’s question into a statement. As a statement that one “like[s] to search” is significantly more coercive than a request, this alone would not be enough to establish voluntary consent. The transcript thus presents strong evidence of coercion which would suggest that Ramirez-Mendoza felt unable to refuse given Conrad’s declaration.
The court isn’t going to give the trooper a pass by giving Google Translate a pass. It declines the state’s invitation to give the app a five-star rating.
The Court declines to infer that Google Translate accurately translated and communicated Conrad’s request to search Ramirez-Mendoza’s vehicle solely because it may work well generally. A review of the record shows that Google Translate is a useful tool with an alarming capacity for miscommunication and error. That the app can facilitate basic communication does not make it an adequate method for soliciting consent. It need only fail once to obviate a suspect’s consent.
The court points out Trooper Conrad had a whole bunch of better options, but used none of them. He could have located someone to translate. He could have used pre-printed consent forms that include a Spanish version. He could have run his drug dog around the car and looked for an alert, which would have made consent a non-issue. And he could not explain why he failed to use any of these options, but continued to utilize Google’s app, even after it became apparent it was generating un-useful junk.
Courts may not expect officers to be legal experts, but this substantial footnote suggests they should at least be aware that there’s one truly acceptable way to obtain consent from someone who doesn’t speak the same language as the officer.
The Court finds Conrad’s failure to use a consent form odd. When communication issues are present and a translator is not available, the gold standard appears to be an accurately translated foreign-language consent form which the defendant reads and signs. See Cedano-Medina, 366 F.3d at 687; United States v. Gaviria, 775 F.Supp. 495, 500 (D.R.I. 1991); e.g., United States v. Palomino, 100 F.3d 446, 450-51 (6th Cir. 1996); United States v. Zapata-Tamallo, 833 F.2d 25, 27 (2d Cir. 1987); United States v. Marin, 761 F.2d 426, 433-34 (7th Cir. 1985); United States v. Guevara-Miranda, 640 Fed. Appx. 319, 321 (5th Cir. 2016); United States v. Gonzalez-Ramirez, 317 Fed. Appx. 790, 796 (10th Cir. 2009); United States v. Camilo, 287 F.Supp.2d 446, 454 (S.D.N.Y. 2003); United States v. Soto-Teran, 44 F.Supp.2d 185, 194 (E.D.N.Y. 1996); United States v. Hernandez, 872 F.Supp. 1288, 1296 (D. Del. 1994); United States v. Tavarez, 834 F.Supp. 55, 56 (D.P.R. 1993); United States v. Garcia-Restrepo, 648 F.Supp. 1188, 1194 (S.D. Fla. 1986); see also United States v. Hernandez, 224 F.Supp.2d 1156, 1160-61 (W.D. Tenn. 2002) (finding no consent where the consent form “contained numerous linguistic mistakes which distorted its content to the point of rendering it nonsensical”); United States v. Suarez, 694 F.Supp. 926, 939 n.10 (S.D. Ga. 1988) (holding it inappropriate to use an English consent form as evidence of consent where the defendant spoke Spanish and the form was not translated). Conrad has provided no valid explanation for his failure to use such a form and, had he simply employed a consent form, there would be no dispute regarding Ramirez-Mendoza’s consent, or lack thereof.
Pre-printed consent forms have been vetted and edited. Google Translate, as powerful as it is, generates what it thinks is the best translation of what it’s hearing, and its best is years away from being at the level of someone truly bilingual. Thus, it’s fallible enough it shouldn’t be used to ask people who speak other languages to waive their rights.
Unfortunately, that only invalidates the consent. The court says there was enough reasonable suspicion present to support the search, even without consent. While tech tools can make some things easier, there’s a lot more involved in actually making things better. Google fell down here. As did a trooper who should have known better than to rely on a service that was generating nonsense to talk someone into letting their rights be violated.