This is an interesting article that was published on The Volokh Conspiracy blog on June 21, 2018. It was written by Orin Kerr. The publisher has given us permission to reproduce the article here.
¿Puedo buscar el auto?
Orin Kerr | Jun. 21, 2018 3:10 pm
Here’s an interesting question I’ve started to see in Fourth Amendment cases: If an officer asks for consent to search from a non-English speaker, using Google Translate to ask for consent in the person’s own language, is the resulting consent valid if there are possible misunderstandings from the translation? And relatedly, does the good-faith exception apply based on the officer’s good-faith reliance on the reliability of Google Translate?
This issue came up recently in United States v. Cruz-Zamora, decided by Judge Carlos Murguia of the federal district court in Kansas. The case involves consent to search a car during a traffic stop. The officer typed in “can I search the car” or “can I search your car” into
Google translate, which came up with a Spanish translation. When put into Google Translate, “can I search the car” translates to “¿Puedo buscar el auto?” The officer then showed the translated text to the driver, who responded by saying “yeah, yeah go.” The officer then searched the car and found a lot of drugs inside it.
The problem is that the English word “search” has several different meanings. It might mean “to look through,” for example, or it might just mean “to look for.” The officer was trying to ask for consent to search assuming the first meaning; he wanted to look through the car. But Google’s translation picked the word “buscar,” which means “to look for.” As the court explains:
“When put in reverse order into Google Translate, “¿Puedo buscar el auto?” translates to “Can I find the car.” Gardner [an expert interpreter] 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. For example, at one point, Wolting likely asked defendant about his driver’s license and defendant responded “Do you have a driver for the license?” as if he was repeating the question as translated. And while defendant could guess the intent of the question, Gardner felt that because Google Translate sometimes provides literal but nonsensical translations, it is not a reliable tool for interpretations.
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.”
The court rules that under the circumstances of this case, the government did not meet its burden to show consent:
“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.
Unlike other cases where the defendants’ actions implied that they understood the officers’ questions, here it is not so clear. Yes, defendant did demonstrate some basic understanding of Wolting’s English questions and commands; however, when reviewing the transcript and considering the imprecise translation, the court does not find the government has met its burden to show defendant’s consent was “unequivocal andspecific and freely and intelligently given.”
The next question was whether the good faith exception to the exclusionary rule could apply based on good faith reliance on Google Translate. Another case had so held, and the government relied on that case here:
“The government cites a recent case from the Southern District of Texas in which an officer used Google Translate to look up how to ask for consent to search in Spanish and then asked the defendant “Puedo buscar?” while pointing to his eyes and then to defendant’s vehicle. United States v. Salas Antuna, No. 6:16–86, 2017 WL 2255565 at *1 (S.D. Tex, May 23, 2017). In denying defendant’s motion to suppress—in which defendant argued his consent was invalid because of the language barrier—the court acknowledged that but that the officer reasonably relied on the Google Translate translation and that the good-faith exception applied. Id. at *5.”
The court rules that the good faith exception based on the facts of this case, however:
“[T]he court finds that the good-faith exception does not apply as 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 finds that application of the exclusionary rule is appropriate in this case, and therefore grants defendant’s motion to suppress.”
Interesting case. But let me step back a bit.
Off the top of my head, I would be inclined to think that the good faith exception shouldn’t apply to reliance on Google Translate at all. It’s true that in Herring v. United States, the Court applied the good faith exception when the police relied on an incorrect database entry. The idea was that it wasn’t the officer’s fault that the database erroneously said a warrant was wanted for Herring’s arrest, so you can’t fault the officer so much (enough to apply the exclusionary rule) to suppress the evidence following from the arrest.
But I see a big difference between relying on a police database of open arrest warrants and relying on Google Translate for a consent search. The police create databases of open arrest warrants to know who they should arrest on warrants. The police rely on those databases for that purpose, and they’re usually pretty accurate for it.
In contrast, it’s common knowledge that Google Translate gets you in the rough ballpark of a literal translation but no better. It’s a neat service if you have no alternative and want to get a rough sense of what someone is saying. But no one would think that Google Translate is accurate enough to generate an error-free translation or be anything like the equivalent of an expert interpreter. If the government wants to use such an inaccurate tool to get beyond a language barrier, they can try that. But I don’t think the good-faith exception should apply
when an entirely predictable mistranslation occurs.