Articles Posted in Search and Seizure

I’m currently working on a federal criminal case in a court near Atlanta, and am plowing through the manner by which various law enforcement agents seized evidence that the Assistant United States Attorney (also called the “AUSA”)  wants to use against my client.  This process has me thinking about the many ways that law enforcement can obtain evidence, and the questions of whether the lawyer representing the Defendant should, or should not, file a “Motion to Suppress.”  Lots of people know that our wonderful Constitution contains the Fourth Amendment, which says the government cannot search for or seize evidence unless they have “probable cause”, and usually a warrant issued by a judge.  When they do not have sufficient grounds for a search or seizure, sometimes the Court will “suppress” the evidence, meaning it cannot be used during the trial.

My clients and others sometimes do not realize that law enforcement officials are allowed to gather evidence in many other situations where they do not have a warrant, or any level of suspicion at all. For example, the law does not prevent a police officer from walking up to your front door, ringing the doorbell, and asking you some questions.  This is sometimes called a “police-citizen encounter”, and federal agents lovingly refer to this as a “knock and talk.”  Anyone foolish enough to talk to law enforcement in this situation needs to know full well that anything coming out of their mouth, as the old saying goes, “can and will be used against you in court.”  A Motion to Suppress will not help any Defendant in this context, if he or she voluntarily made statements (although there certainly are situations where the police at the front door make it seem as if the person is obligated to talk; that is a totally different matter).

Another way that federal law enforcement officials get evidence without a warrant is by using various administrative processes that result in an order that some person or company turn over information.  It usually works like this:  a company in an area regulated by some federal agency has an obligation to cooperate with that agency’s investigations.  The agency sends an order, directing the company to turn over a boatload of information.  If the company fails to do so, the agency can go to court to enforce the court order, and can make other bad things happen to the company.  Again, no search warrant, and no Motion to Suppress will help if the company or its officials are later charged with a crime.

I love it, a perfect example of the intersection between modern technology and federal criminal cases!   A United States District Court in Kansas recently threw out, by granting a Motion to Suppress, a federal criminal case in which the Defendant was charged with carrying drugs in the vehicle he was driving.  The police officer who stopped the vehicle wanted the Defendant’s to consent to look in the car, but the driver spoke limited English.  The resourceful officer turned to the Google Translate application on the laptop computer in his police vehicle in an attempt to fully communicate with the stopped driver.  Even though the officer believed that the Defendant consented to a search (which resulted in a large quantity of drugs hidden in the car), the federal judge said that Google Translate is not a sufficiently accurate tool to assure that the Defendant was aware of what he was agreeing to.  The case is  US v. Omar Cruz-Zamora.

So, let’s start with a couple of basic principles.  Everybody, and I mean everybody, is against large-scale illegal drug dealing.  However, everybody also needs to be reminded from time to time that our constitutional protections apply to all people, innocent and guilty, native-born and immigrants.  When we decide to take away constitutional rights from some, it makes those same protections weaker for the rest of us.  Second, our Constitution and the Bill of Rights were purposely designed to make it sometimes difficult for the government to search our private property.  That is why the people who wrote the Bill of Rights created the Fourth Amendment. The Fourth Amendment generally requires that the police get a search warrant from an independent judicial officer before a search can happen.  One exception to this rule is “consent”, meaning that we are always able to waive or dispense with out constitutional rights, but here’s the important part, only if we know about and clearly indicate that such a waiver is what we really want to do!

In this recent case, the Judge heard lots of evidence from the police officer, from his videotaping equipment in his vehicle, from two interpreters, and from Mr. Cruz-Zamora.  After considering all this, the Judge concluded that the Defendant doesn’t speak English well and that the consent to search the car was obtained through an exchange in which the police officer used Google Translate.  The Judge decided that this translation tool was insufficiently accurate to constitute consent given “freely and intelligently.”