IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA,
Plaintiff,v.

Case No. 17-40100-CM

OMAR CRUZ-ZAMORA,
Defendant.

MEMORANDUM AND ORDER
Defendant Omar Cruz-Zamora was indicted on October 18, 2017 and charged with two countsof Possession with Intent to Distribute a Controlled Substance. On March 30, 2018, defendant filed a
Motion to Suppress (Doc. 18) seeking suppression of the seized substances. The court held a hearing on
the motion on May 9, 2018. After considering the briefing and the evidence and arguments presented at
the hearing, the court is now ready to rule on the motion.
I.

Backgrounda. The Search
On September 21, 2017 at approximately 3:00 am, Kansas Highway Patrol Trooper Ryan

Wolting was driving on I-70 in Lincoln County, Kansas. He noticed a red Hyundai Elantra with asuspended registration and initiated a traffic stop. As Wolting approached the vehicle, defendant, who
was the sole occupant, asked him if he spoke Spanish. Wolting, recognizing defendant spoke very
limited English, responded he did not. Wolting was able to communicate with defendant enough tounderstand that defendant had left his Mexican driver’s license at home. Defendant, however, produced
the car’s registration and a visa entitling him to be present in the United States. He also informed Wolting
he was traveling from Denver to Kansas City.

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Wolting asked defendant in English if he would come back to his patrol vehicle. Defendant
complied and was patted down before getting into the patrol car. Once in the patrol car, Wolting used afingerprint scanner to try to identify defendant as he did not produce a driver’s license. Unable topositively identify him, Wolting began using Google Translate, a translation service offered by Google,
on his in-car laptop to communicate with defendant. Wolting would type a question in English into theservice, selected “Spanish” as the language he wanted for the translation, and then clicked “OK.” Theservice then translated the English phrase into Spanish. Wolting testified that because he did not speak
Spanish, he could not verify the accuracy of the translation, but felt that defendant’s answers were“appropriate” or within the scope of the question being asked. He did acknowledge there were a few
times that defendant did not understand the question and that he had to rephrase the question to get ananswer. Wolting testified that there was no department policy against using Google Translate, but
admitted a live translator would be more reliable. He, however, did not know that a live translator wasavailable for his use.
Using Google Translate, Wolting was able to learn that defendant was from El Paso, Texas, wastraveling to Kansas City to see his uncle, and that the car belonged to defendant’s girlfriend. Wolting
issued defendant a warning for the suspended registration and then told defendant “Adios.” As defendant
got out of the patrol car, Wolting asked him in English whether he could ask him a couple more questions.
Defendant responded “What?” and returned to the patrol car. Trooper Wolting testified he thought heused Google Translate to ask defendant if he could ask him more questions. Defendant agreed andWolting began asking more questions using Google Translate. Defendant eventually revealed he had$7,700 in cash in his car that he was using to buy a car to take back to Mexico. At this point, Wolting,again using Google Translate, asked defendant if he could search his car. Wolting testified that he typed
in either “Can I search the car” or “Can I search your car” and used his two fingers to point to his eyes-2-and then to the car. Wolting testified that defendant responded “yeah, yeah go,” and told him not to steal
his money. Wolting directed defendant to stand near the edge of the road while he searched the car. He
testified defendant never protested the search or asked him to stop searching the vehicle. Wolting
eventually found approximately 14 pounds total of methamphetamine and cocaine.
Defendant testified at the hearing that he had trouble understanding the questions asked by
Wolting and did not understand that Wolting was asking his permission to search his car. He also
claimed he was confused and did not believe he could tell Wolting to stop searching the car.
b. Google Translate
At issue in this case is the use of Google Translate, a Google product used for translation. As
mentioned above, Wolting used Google Translate to translate his questions for defendant from English
into Spanish. Wolting would type the question into Google Translate and defendant would read thetranslation off the screen, sometimes out loud, and then answer the question in Spanish or sometimes inlimited English. This interaction was captured by Wolting’s in-car camera. With the help of aninterpreter, the audio from the stop was transcribed and relevant parts were translated from Spanish into
English. While defendant’s audible answers were captured in the transcript, there is no documentationof what questions Wolting typed into Google Translate, and what Google Translate translated for
defendant to read.
Two professional interpreters testified at the hearing; one who translated the audio from the carstop and prepared the transcript and one who provided expertise on the reliability of Google Translate.
Johana Garcia, who did the translation for the transcript, testified that she may use Google Translate asa tool but never to translate a full conversation. She said Google Translate can be used for literaltranslations but not for slang or distinct dialects and that a live translator is a more reliable way for two
people to communicate.

-3-Sara Gardner, a professional interpreter who reviewed the audio and video from the car stop,
testified that in her opinion defendant did not understand the questions asked by Wolting because Google
Translate is not a reliable translation service. Gardner noted that Google Translate uses feedback fromusers to help improve its translations and there is no way of knowing whether the translations areaccurate. She also testified that context is very important when performing interpretations, and that
Google Translate offers only a literal translation and cannot take context into account. For example,
Wolting testified that he asked defendant “Can I search the car?” When put into Google Translate, “CanI search the car” translates to “¿Puedo buscar el auto?” When put in reverse order into Google Translate,“¿Puedo buscar el auto?” translates to “Can I find the car.” Gardner 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 thequestion 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 toolfor 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 onnine 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.
II.

Analysis-4-a. Consent
Defendant moves to suppress the fruits of Wolting’s search, arguing his Fourth Amendment
rights were violated.
The Fourth Amendment to the United States Constitution prohibits unreasonable searches andseizures. U.S. Const. amend. IV. Warrantless searches are per se unreasonable under the Fourth
Amendment, “subject only to a few specifically established and well-delineated exceptions.” Katz v.
United States, 389 U.S. 347, 357 (1967). One such exception to the warrant and probable cause
requirements is “a search that is conducted pursuant to consent.” Schneckloth v. Bustamonte, 412 U.S.
218, 219 (1973). And while a “search authorized by consent is wholly valid,” the government has theburden of proving the consent was “freely and voluntarily given.” Id. at 222. Courts must consider the
totality of the circumstances when deciding whether consent was voluntary. United States v. Price, 925
F.2d 1268, 1270 (10th Cir. 1991) (citing Schneckloth, 412 U.S. at 227, 232–33, 249). According to theTenth Circuit, courts must determine—considering the totality of the circumstances—whether (1)“consent was unequivocal and specific and freely and intelligently given,” and (2) the officers used no“implied or express duress or coercion.” United States v. Sanchez, 608 F.3d 685, 690 (10th Cir. 2010).
Further, mere submission to lawful authority does not equate to valid consent. United States v. Manuel,992 F.2d 272, 275 (10th Cir. 1993).
Language barriers are relevant when determining whether consent was freely given. UnitedStates v. Hernandez, 893 F. Supp. 952, 961 (D. Kan. 1995). In a situation where a defendant is not fluent
in the same language as the officer, the court can infer from the circumstances whether the defendantunderstood the officer’s questions.

Id.

For example, in Hernandez, the defendant responded

appropriately to all of the officer’s requests, was able to tell the officer what he did for a living and where
he was travelling, and responded “yes” when the officer asked him, in English, whether he could search-5-his vehicle. Id. The officer also had defendant read a request to search which was written in Spanish,
and the defendant also responded affirmatively. Id. The court found that the evidence demonstrated thedefendant understood the officer’s requests and voluntarily consented to the search. Id.
Similarly, in United States v. Zhang, No. 04-40084-01-JAR, 2005 WL 627978 (D. Kan. March
10, 2005), a defendant moved to suppress evidence seized from her vehicle, arguing her consent was notvoluntary because, as a native Mandarin Chinese speaker, she did not understand the officer’s questions.
And while an expert testified that the defendant could not understand simple questions in English
because of her limited English skills, the court put more weight on the defendant’s conduct in responseto the officer’s questions, noting “[a]lthough [the defendant] does not speak English well, she apparently
understands more English than she speaks.” Id. at *4–5. The court emphasized that the defendant’s
responses indicated she understood the officer’s English questions and that in one of her recorded phone
conversations while in jail, the defendant described the traffic stop saying it was a mistake to open thetrunk when the officer asked if he could look in it. Id. at *5. Also on the call, defendant stated, “[o]nthat day, the police…the police stopped and wanted to look into the back [of the car],” and that she gave
the officer permission to look. Id. This invalidated her argument that she did not understand that theofficer was asking her for her consent; rather, he was commanding her to open the trunk.
Here, defendant argues any evidence obtained as a result of the car search should be suppressed
because he did not understand Wolting and therefore could not knowingly consent to the search.1
Defendant focuses his argument primarily on Wolting’s use of Google Translate, claiming that based on
the audio and video of the encounter, it was obvious he was struggling to understand many of the1
In his briefing, defendant also argues the evidence should be suppressed because he did not consent to further questioning
after the initial stop was complete. At the hearing, defense counsel conceded Wolting had probable cause to arrest
defendant, as he stopped defendant for an arrestable offense, and therefore he did not need defendant’s consent to extend
the stop. While defense counsel did argue that Wolting would have been required to read defendant his Miranda warnings,
counsel largely abandoned this argument to instead focus on whether the consent was knowing and voluntary.

-6-translations. Importantly, defendant notes that the Google Translate translation of “Can I search yourcar?”—which Wolting testified is the question he asked defendant through Google Translate—was
confusing and that he had trouble understanding exactly what Wolting was asking him.
Upon review of the evidence, it is clear that defendant had some basic understanding of some of
Wolting’s questions and commands. And defendant was able to answer some of Wolting’s questions inbasic, broken English. Wolting testified that when he typed in “Can I search the car?” defendant
responded “yeah, yeah go.” In the transcript from the video, there is point in which defendant says “Ah,okay. Yeah…yeah. Go. Yes.” However, there is no evidence of what question defendant was responding
to, as there is no documentation of what questions Wolting was typing into Google Translate.
Immediately prior to his “Yeah…Yeah. Go. Yes,” response, defendant was struggling to understand
Wolting’s questions:
Officer: [Background Sound: Typing on Keyboard] 2
Defendant: Okay…it is in front of the car because I’m going to look for it … How?3
Officer: Do you understand?
Defendant: No, how?
Officer: [Background Sound: Typing on Keyboard]
Defendant: Ah, okay. Yeah…yeah. Go. Yes.
Assuming this is the point where Wolting claims defendant consented to the search, the court is hesitantto find defendant unequivocally consented, as defendant was clearly confused as to what Wolting was
asking. And this is not the only instance where defendant expressed confusion about Wolting’squestions. There are many times throughout the transcript where defendant says, “I don’t understand”

2

In the excerpts from the transcript from the car stop, anything in italics was spoken in Spanish and translated by Johana
Garcia into English.
3
Sara Gardner testified that here defendant said “Como?” which Johana Garcia translated as “How?” Gardner testified that
“Como?” can also be interpreted as “What?” or “What do you mean?”-7-

or seems confused as to the question that was interpreted through Google Translate. And, it is unclear,based on the Google Translate translation of “Can I search the car,” that defendant fully understood thequestion Wolting intended to ask. As mentioned above, the professional interpreters both testified thatwhile “¿Puedo buscar el auto?” is a literal translation of “Can I search the car,” defendant, who had
limited English skills, would not necessarily have been able to interpret that question as it was intended.
As mentioned above, Google Translate translated “¿Puedo buscar el auto?” to “Can I find the car.” 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 thepatrol 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 imprecisetranslation, the court does not find the government has met its burden to show defendant’s consent was“unequivocal and specific and freely and intelligently given.”b. Good-Faith Exception
The government argues that even if the court finds defendant’s consent was not voluntary, thecourt should not suppress the evidence because Wolting reasonably relied on Google Translate to provide
an accurate translation and then acted upon a reasonable belief that defendant granted him consent tosearch his car.
The ultimate touchstone in a Fourth Amendment inquiry is reasonableness. Brigham City, Utah
v. Stuart, 547 U.S. 398, 398 (2006). Under the Fourth Amendment, so long as a factual determination-8-

is reasonable, it doesn’t always have to be correct. Illinois v. Rodriguez, 497 U.S. 177, 185 (1990)(finding no Fourth Amendment violation so long as an officer reasonably (though erroneously) believes
he has attained valid consent to search). Determination of whether an officer may legally conduct asearch “must be judged against an objective standard . . .” Id. at 188. While officers are allowed roomfor factual mistakes, those mistakes “must be those of reasonable men, acting on facts leading sensibly
to their conclusions of probability.” Id. at 186 (citing Brinegar v. United States, 338 U.S. 160, 176(1949)).
The remedy for unreasonable searches and seizures is the exclusionary rule, which allows courts
to exclude the unlawfully seized evidence in a criminal prosecution. United States v. Herrera, 444 F.3d
1238, 1248 (10th Cir. 2006). The exclusionary rule is “harsh” and should only be invoked “when doing
so furthers the purpose of that rule, which is ‘designed to deter police misconduct.’” Id. at 1248–49.
Therefore, courts utilize the good-faith exception to the exclusionary rule, which is applied when officers
act with “objective good faith.” Id. at 1249. The good-faith exception is narrow and is used “ordinarily
only where an officer relies, in an objectively reasonable manner, on a mistake made by someone otherthan the officer.” Id. The Tenth Circuit has not extended the good-faith exception to apply in cases
where the officer’s own factual mistake led to the Fourth Amendment violation. Id. at 1249, 1251 (“[Thegood-faith exception] has not been applied when the mistake resulting in the Fourth Amendment
violation is that of the officer conducting the search and seizure, rather than a neutral third party notengaged in the ‘competitive endeavor of ferreting out crime.’” (citing United States v. Leon, 468 U.S.
897, 914 (1984))). And the Tenth Circuit had declined to apply the good-faith exception whenapplication of the exclusionary rule would effectively deter illegal police conduct that led to the Fourth
Amendment violation. Id. at 1253.

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The government argues the good-faith exception should apply in this case because even if
defendant did not knowingly consent because he did not understand the question, it was reasonable for
Wolting to rely on Google Translate’s translations. Defendant claims that the good-faith exception
should not apply because Wolting cannot reasonably rely on a mistake of his own making. The
government argues that Wolting did not create the mistake. Rather, he used a Google product to produce
translations and reasonably relied on Google’s translations. And, according to the government, a nonSpanish speaker would never be able to tell if an interpretation was accurate regardless of whether it wasfrom Google Translate or a live interpreter.
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—thecourt acknowledged that “Puedo buscar” is not a legally precise translation for “May I search,” but thatthe officer reasonably relied on the Google Translate translation and that the good-faith exception
applied. Id. at *5.
While the facts of Salas Antuna seem nearly identical to the present case, it is important to notethat the officer first asked defendant in English if he could search or look, and pointed to his eyes andthe trunk of the car. Id. at *1. In response, the defendant opened the trunk, indicating he could
understand the officer’s question in English. Id. Here, there is no indication Wolting asked to search
the car in English, and defendant made no affirmative acts to indicate he fully understood his question.
And even though the court in Salas Antuna found it was reasonable for the officer to rely on Google
Translate, the court did not elaborate on the intricacies of the Google Translate service. Here, both-10-

professional interpreters testified Google Translate should only be used for literal word-for-wordtranslations as Google Translate cannot take context into consideration. So, while it might be reasonable
for an officer to use Google Translate to gather basic information such as the defendant’s name or where
the defendant was travelling, the court does not believe it is reasonable to rely on the service to obtainconsent to an otherwise illegal search. And here, Wolting admitted a live interpreter would be a morereliable source for communicating with a non-English speaker and acknowledged he had other options
beyond using Google Translate.
For these reasons the court finds that the good-faith exception does not apply as it is notreasonable 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 Translatetranslation 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 whatquestion 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.
IT IS THEREFORE ORDERED that defendant’s Motion to Suppress (Doc. 18) is granted.

Dated June 4, 2018, at Kansas City, Kansas.

s/ Carlos Murguia
CARLOS MURGUIA-11-

United States District Judge-12-