PA Superior Court: Defendant’s Consent to Search Invalid Due To Language Barrier Between Defendant and Officer

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Carmenates, holding that a defendant’s consent to search his vehicle and luggage was not knowing, voluntary, or intentional because of the considerable language barrier between the defendant and the officer. This decision is significant because there are so many individuals in the United States who do not speak English. As such, this decision protects them and requires that the police show that they made a truly knowing, voluntary, and intelligent waiver of rights when they interact with a police officer in Pennsylvania. 

Commonwealth v. Carmenates

The defendant was pulled over by police on Interstate 80 because, according to the police, he was following a tractor-trailer at an unsafe distance and at a speed slower than the flow of traffic. As the police officer approached the defendant’s vehicle, he noticed in the back seat several large duffel bags and a suitcase that was covered by a tan sheet and large stuffed toy bear. It should be noted that this entire interaction was recorded on the officer’s dashboard camera. The officer also observed numerous fast food and snack items, a fast-food drink items, air freshener spray bottles, and “religious paraphernalia” hanging from his rearview mirror. The officer did not observe any drugs or paraphernalia, nor did he smell any marijuana. Further, while interacting with the officer, the defendant did not make any furtive movements nor did he attempt to conceal anything. 

When the officer attempted to speak with the defendant, the defendant immediately indicated that he only spoke Spanish. The officer did not speak Spanish, but told the defendant that they “could make it work.” To “make it work,” the officer used Google Translate on his cell phone to translate his statements from English to Spanish and the defendant’s statements from Spanish to English. The officer indicated that he did not have any problems understanding the responses he received from the defendant and the defendant never told the officer that he did not understand a question that was asked to him via Google Translate. The officer would later concede that Google Translate is “not 100 percent accurate at times.” 

The defendant provided the officer with his driver’s license, insurance card, and registration card. After which, the officer requested that the defendant exited the vehicle. The defendant complied and the officer searched him for weapons. The officer then instructed the defendant to stand outside in the cold while he performed a criminal history check. The officer would later testify that he intended to issue a warning to the defendant, but before doing so asked him about his travel plans. A large portion of the defendant’s responses were not translated by Google Translate and some that were nonsensical. Despite this poor translation, the officer decided to continue using Google Translate to ask for the defendant’s consent to “see his luggage.” The officer could have used the Spanish-language consent form in his car and that would have been more specific, but for whatever reason he chose not use that form.

The defendant then opened his vehicle and retrieved the suitcase. However, the officer using gestures rather than words, directed the defendant to one of his black duffel bags. The defendant then grabbed the black duffel bag and complied with the officer’s non-verbal direction to open it. The bag contained a large amount of marijuana that was vacuum sealed in plastic bags. The defendant was subsequently placed in handcuffs and then the officer searched the remaining duffel bags and located approximately 39 pounds of marijuana. The defendant was subsequently arrested and charged with Possession with the Intent to Deliver a Controlled Substance and Possession of Drug Paraphernalia.  

The defendant then filed a motion to suppress. At the motion to suppress hearing, the above facts were placed into evidence. The testimony and video recording indicated that the officer never informed the defendant that he was free to leave or that he was allowed to refuse consent to search his vehicle or his personal effects. Additionally, the record also showed that the defendant was never read his Miranda rights. The defendant would also testify at this hearing, through a translator. In short, he stated that he just spoke a few words of English and that he understood the officer’s request to see his luggage in the literal sense. He also testified that he thought he had to follow the officer’s orders because “he didn’t think that he had the option to say no.” At the conclusion of the hearing, the suppression court granted the defendant’s motion to suppress, concluding that the Commonwealth had failed to establish that the defendant had voluntarily, knowingly, and intelligently consented to the search of his vehicle and luggage. The Commonwealth then filed a timely appeal.  

The Pennsylvania Superior Court’s Panel Decision  

The Pennsylvania Superior Court reversed the suppression court’s order granting the defendant’s motion to suppress. For a more detailed analysis, please refer to our September 8, 2020 blog “Pennsylvania Superior Court: Consent to Search Defeats Motion to Suppress Even if Suspect Doesn’t Speak English.” The defendant then filed for an Application for Re-argument En Banc. The Superior Court granted re-argument and withdrew the panel’s previous decision. 

Pennsylvania Superior Court’s En Banc Decision

The Pennsylvania Superior Court affirmed the suppression court’s order granting the defendant’s motion to suppress. The full panel of the Superior Court held that the defendant’s consent was not knowing, intelligent, and voluntary. The Superior Court was persuaded by the fact that Google Translate is “not 100 percent accurate at times” and that there was evidence that it produced inaccurate and nonsensical translations. Further, the officer’s use of the word “see” rather than a more precise term such as “search,” “examine,” or “look inside” was persuasive to the Superior Court that the defendant did not make a legally valid waiver of his constitutional rights. As such, the Commonwealth will not be able to use the recovered drugs and paraphernalia against him at his trial. 

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