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United States v. Cruz-Zamora

United States District Court, D. Kansas

June 4, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
OMAR CRUZ-ZAMORA, Defendant.

          MEMORANDUM AND ORDER

          CARLOS MURGUIA UNITED STATES DISTRICT JUDGE.

         Defendant Omar Cruz-Zamora was indicted on October 18, 2017 and charged with two counts of 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. Background

         a. 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 a suspended 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 to understand 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.

         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 a fingerprint scanner to try to identify defendant as he did not produce a driver's license. Unable to positively 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 the service, selected “Spanish” as the language he wanted for the translation, and then clicked “OK.” The service 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 an answer. 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 was available for his use.

         Using Google Translate, Wolting was able to learn that defendant was from El Paso, Texas, was traveling 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 he used Google Translate to ask defendant if he could ask him more questions. Defendant agreed and Wolting 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 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 the translation off the screen, sometimes out loud, and then answer the question in Spanish or sometimes in limited English. This interaction was captured by Wolting's in-car camera. With the help of an interpreter, 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 documentation of 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 car stop 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 as a tool but never to translate a full conversation. She said Google Translate can be used for literal translations but not for slang or distinct dialects and that a live translator is a more reliable way for two people to communicate.

         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 from users to help improve its translations and there is no way of knowing whether the translations are accurate. 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, “Can I 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 the question 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 tool for 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 on nine 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. ...


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