A federal judge in Kansas tossed out evidence of illegal drug possession, ruling that a limited English proficient criminal defendant did not give consent to a police search of his car because he did not understand Google Translate translations. The search of defendant’s car was effectively unconstitutional because the consent to search was not “unequivocal and specific and freely and intelligently given” because of translation errors, the Court decided.
Defendant Omar Cruz-Zamora was indicted on October 18, 2017 and charged with two counts of Possession with Intent to Distribute a Controlled Substance. On March 30, 2018, defendant filed a Motion to Suppress seeking suppression of drugs seized from Cruz-Zamora’s car by the Kansas Highway Patrol. A Motion to Suppress is a request to a judge to toss out and not consider evidence that has been illegally or unconstitutionally obtained.
This case began with a traffic stop. As the Court recounted:
“On September 21, 2017 at approximately 3:00 am, Kansas Highway Patrol Trooper Ryan Wolting was driving on I-70 in Lincoln County, Kansas. He noticed a red Hyundai Elantra with a suspended registration and initiated a traffic stop. As Wolting approached the vehicle, defendant, who was the sole occupant, asked him if he spoke Spanish. Wolting, recognizing defendant spoke very limited English, responded he did not.
Wolting began using Google Translate, a translation service offered by Google, on his in-car laptop to communicate with defendant. Wolting would type a question in English into the service, selected “Spanish” as the language he wanted for the translation, and then clicked “OK.” The service then translated the English phrase into Spanish. Wolting testified that because he did not speak Spanish, he could not verify the accuracy of the translation, but felt that defendant’s answers were “appropriate” or within the scope of the question being asked. He did acknowledge there were a few times that defendant did not understand the question and that he had to rephrase the question to get an answer. Wolting testified that there was no department policy against using Google Translate, but admitted a live translator would be more reliable. He, however, did not know that a live translator was available for his use.
[U]sing Google Translate, he asked defendant if he could search his car. Wolting testified that he typed in either “Can I search the car” or “Can I search your car” and used his two fingers to point to his eyes and then to the car. Wolting testified that defendant responded “yeah, yeah go,” and told him not to steal his money.
Wolting directed defendant to stand near the edge of the road while he searched the car. [Wolting] testified defendant never protested the search or asked him to stop searching the vehicle. Wolting eventually found approximately 14 pounds total of methamphetamine and cocaine.
Defendant testified at the hearing that he had trouble understanding the questions asked by Wolting and did not understand that Wolting was asking his permission to search his car. He also claimed he was confused and did not believe he could tell Wolting to stop searching the car.”
To provide the Court with background and opinions about Google Translate and its reliability, the judge had two interpreters testify as experts at the hearing to determine the car search’s constitutionality. The interpreters described their opinions of Google Translate.
As the Court explains:
“Johana Garcia, who did the translation for the transcript, testified that she may use Google Translate as a tool but never to translate a full conversation….
Sara Gardner, a professional interpreter who reviewed the audio and video from the car stop, testified that in her opinion defendant did not understand the questions asked by Wolting because Google Translate is not a reliable translation service. Gardner noted that Google Translate uses feedback from users to help improve its translations and there is no way of knowing whether the translations are accurate. She also testified that context is very important when performing interpretations, and that
Google Translate offers only a literal translation and cannot take context into account. For example, Wolting testified that he asked defendant “Can I search the car?” When put into Google Translate, “Can I search the car” translates to “¿Puedo buscar el auto?” When put in reverse order into Google Translate, “¿Puedo buscar el auto?” translates to “Can I find the car.” Gardner testified that while “¿Puedo buscar el auto?” is a literally correct interpretation, it is not the question Wolting intended to ask defendant.
Gardner noticed several other instances in the video where Google Translate provided a literal but nonsensical translation.
….Both interpreters noted there were multiple times defendant responded that he did not understand Wolting’s questions. According to Gardner, defendant claimed he did not understand the question on nine different occasions during the stop. And in regard to the specific question as to whether Wolting could search defendant’s car, Garcia testified that “¿Puedo buscar el auto?” is not exactly how a Spanish speaker would ask to “search in your car.” Defendant, as a native Spanish speaker with very limited English skills, would instead have to make an assumption about what the question actually is.”
Was this search considered constitutional?
The next step for the Court was deciding whether the search of Cruz-Zamora’s car was lawful and whether the use of Google Translate was unreasonable for communication between Officer Wolting and Mr. Cruz-Zamora.
The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. Warrantless searches are per se unreasonable under the Fourth Amendment with some exceptions such as “a search that is conducted pursuant to consent” Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). The government has the burden of proving the consent to search was “freely and voluntarily given.” Courts must consider the totality of the circumstances when deciding whether consent for the police to search was voluntary.
Analyzing Cruz-Zamora’s consent here, the Court opined that English proficiency was relevant to its inquiry. The Court decided:
“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…
[I]t 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.”
Is Google Translate considered a reliable source for legal communication?
In deciding whether Trooper Wolting’s search of the car and seizure of the drugs was unconstitutional, U.S. District Court Judge Carlos Murguia ruled:
“[W]hile it might be reasonable for an officer to use Google Translate to gather basic information such as the defendant’s name or where the defendant was travelling, the court does not believe it is reasonable to rely on the service to obtain consent to an otherwise illegal search. And here, Wolting admitted a live interpreter would be a more reliable source for communicating with a non-English speaker and acknowledged he had other options beyond using Google Translate.
For these reasons the court finds that…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 … therefore grants defendant’s motion to suppress.”
This decision, which may be the first time a federal judge holds that Google Translate use can be unconstitutional, has major implications. Judge Murguia ‘s analysis and his reliance upon two interpreters’ opinions may be applied in other cases where Google Translate is used exclusively without the benefit of qualified human translator review. This case is a stark reminder of the risks involved in relying upon Google Translate or other online translation aids to provide accurate translations.
**Read some of Bruce Adelson’s other blog posts to learn about more developments in language access law, and be sure to contact us if you’re interested in a consultation about your own organization’s compliance with federal language access law.
© Bruce L. Adelson 2018, special for Bromberg, All Rights Reserved The material herein is educational and informational only. No legal advice is intended or conveyed.
Bruce L. Adelson, Esq, CEO of Federal Compliance Consulting LLC is nationally recognized for his compliance expertise concerning many federal laws. Mr. Adelson is a former U.S Department of Justice Civil Rights Division Senior Trial Attorney.
Mr. Adelson teaches cultural and civil rights awareness and implicit bias at Georgetown University School of Medicine in Washington, D.C.
He most recently taught at Cornell University.