United States v. Leiva

Defendant disputed the officer’s attempt at asking for consent in Spanish using a translation app on his iPhone. The defense called expert Spanish speakers that the query was essentially “may I look [at or for] your car” not in it. The USMJ, District Court, and Court of Appeals disagree that he didn’t understand what was said. He seemed to, and the testimony would have him responding to a “nonsensical” question. United States v. Leiva, 2016 U.S. App. LEXIS 7956 (7th Cir. April 29, 2016):

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?” It does not indicate a question regarding a search of the interior of the car. Rather, the proper phrase for “May I search [the interior of] your car?” would be “Puedo revisar su carro?” or “Puedo registrar su carro?” One expert testified that if Weiss had said, “Puedo buscar en su coche?”, a native Spanish speaker may have understood the phrase to mean “May I search inside your car?”

Although determining that Weiss’ Spanish phrase was not properly phrased, the magistrate judge still found that Leiva had consented to the search and that both the search and subsequent seizure of evidence in the car were proper, and recommended that the district court deny Leiva’s motion to suppress. The district court adopted the recommendation and denied the motion to suppress.

. . .

Even accepting that Weiss’ 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. The magistrate judge found that, as in similar consent to search cases, “it was clear that the officer did not need to search for or locate the car. Rather, it was clear that the officer was asking permission to search the car.” The magistrate judge determined that “Leiva understood that Weiss was asking permission to take an action with respect to the Hyundai [Elantra],” because Leiva responded to Weiss’ question “without hesitation” and did not seem “boggled by the question as nonsensical.”

In accepting the recommendation of the magistrate judge, the district court also cited Leiva’s immediate response to Weiss and his lack of confusion at the question. It further stated that it would be unreasonable for Leiva to think that Weiss wanted to find or locate Leiva’s car: “Because the rental car had not been moved since the traffic stop, there was no reason for the officer to ask the Defendant if he could ‘locate’ or ‘look for’ a car that was 20 to 25 feet away from them.” The district court also noted that Leiva’s actions towards Martin and Gallego—telling them to give him their fake licenses and to be quiet—”suggest[ed] that [Leiva] was afraid that evidence of illegal activity might be discovered if a search was conducted.” These actions indicated to the district court that Weiss had asked for consent to search Leiva’s car and Leiva had given consent to search.