case law update

Imprecise Translation Does Not Necessarily Invalidate Consent

Defendant’s acquiescence to the question, “May I look for your car?” constituted his valid consent to a search of his vehicle under the circumstances, the Seventh Circuit recently held.

Illinois State Trooper Dustin Weiss pulled over driver Pavel Leiva, a Cuban immigrant and only speaks Spanish, for improper lane use on June 26, 2013. Weiss approached the car, explained why he pulled over the car and he asked some initial questions. Leiva said something in Spanish to his front seat passenger, Paola Gallego, who then told Weiss that Leiva did not speak English. Weiss asked Gallego to explain to Leiva why he had stopped the car and that he was only going to issue Leiva a warning.

After running computer checks on Leiva and the car from his patrol vehicle, Weiss called for Leiva to come to the patrol car. Leiva complied and sat himself in the front passenger seat of Weiss’s vehicle. In the patrol car, Weiss noticed that Leiva was visibly stressed. After several more attempts to communicate with Leiva and after a trip to the Elantra to speak with Leiva’s passengers, Weiss returned to the patrol car and gave Leiva a written warning. Weiss then entered the phrase, “You are free to go,” into the iTranslate app on his iPhone, and he read the translated Spanish to Leiva.

As Leiva began to exit the patrol car, Weiss said, “Un momento,” and asked in English to speak with Leiva further. Leiva stopped and looked at Weiss. Weiss then asked, “Puedo buscar su coche?” Leiva said, “Yes,” in English, nodded, and then said, “Sí.” Weiss asked, “Sí?” and Leiva again said, “Sí.”

Weiss then searched the Elantra with assistance from other responding state troopers and police officers. In the car, the officers found 65 fraudulent credit cards, five iPad minis, women’s purses, mail and store receipts, and five Walmart gift cards. They also found four typewritten pages containing credit card numbers, expiration dates, and the names and addresses of the actual cardholders. Leiva was subsequently indicted on charges related to credit card fraud.

During the hearing on Leiva’s motion to suppress the evidence found in the Elantra, Leiva called three expert witnesses who stated that “Puedo buscar su coche?” does not mean, “Can I search your car?” All three witnesses stated that “Puedo buscar su coche?” means “May I look for your car?”, “May I get your car?”, or “May I locate your car?” The court accepted that Weiss’s question “d[id] not indicate a question regarding a search of the interior of the car.” Nevertheless, the district court denied Leiva’s motion and a jury subsequently convicted Leiva of the charges against him.

Leiva then argued on appeal to the U.S. Court of Appeals for the Seventh Circuit, in part, that he did not consent to the search of the Elantra and that the district court erred by not suppressing the evidence seized during that search.

Reviewing the district court’s determination that Leiva consented to the search at issue for “clear error,” the appeals court began its analysis observing, “Here, Leiva’s consent is particularly important, because Weiss did not have either probable cause or reasonable suspicion to search Leiva’s car.”

The appeals then went on to hold, “[e]ven accepting that Weiss’s Spanish question does not mean exactly what he intended, the district court was not clearly erroneous in finding that based on the totality of the circumstances Leiva voluntarily consented to the search.” As basis, the court wrote that it was not clearly erroneous for the district court to rely on the lack of need to search for or locate the car, Leiva’s immediate response to Weiss’s question, Leiva’s lack of confusion, and Leiva’s apparent fear “that evidence of illegal activity might be discovered if a search was conducted” to determine that Weiss had asked for consent to search Leiva’s car and that Leiva had consented.

The Seventh Circuit thus affirmed the district court’s denial of Leiva’s motion to suppress, and it went on to deny the remained of Leiva’s appeal, affirming his conviction.

Read the full case: United States v. Pavel Leiva

 


This case law update was written by James G. Heelan, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update

Tags: case law update, james p. garay heelan

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