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.

Yet one more way that federal agents often come across incriminating evidence is through cooperating witnesses, or as some people call them, “snitches.”  Here is a very common scenario that was at the heart of a recent case I tried. My client and others operated a series of businesses.  They had a trusted employee who basically ran the office, and most importantly, handled all the IT operations for the upper-level managers. This IT person made a backup copy of my client’s computer hard drive as part of regular maintenance, but never told my client about this.   This person later got real mad and decided to leave.  Before leaving, he pulls a bunch of files off the mirror image from my client’s computer and puts them on a thumb drive he takes with him.  Later, he tells the feds, who then open up the thumb drive and start looking at the files, all without getting a warrant.  Usually, a “private search” like this is not covered by the Fourth Amendment.  However, when law enforcement then looks through privately obtained information, they take a chance if they exceed “the scope of the initial private search.”  We were able to demonstrate that my client never authorized the former employee to keep the mirror image, and certainly had no idea that the former employee later made copies which he dragged on to the thumb drive.  Bottom line, we were either going to get the evidence suppressed or force the prosecutors to give in.  They took the latter approach and the evidence could not be used.

There are a many ways that federal agents and prosecutors can obtain evidence.  Some methods make it difficult to “suppress” that evidence if there is a later criminal case.  Other times, we have better luck.  Either way, it requires a lot of work for the criminal defense lawyer.

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.”

The opinion notes that the actual translations provided by the app simply are not  good enough to accurately communicate the question. For example, the officer asked “¿Puedo buscar el auto?” — the literal meaning of which is closer to “can I find the car,” not “can I search the car”  or “can I search for the car,” which is very different. The Judge found no evidence that the Defendant made any connection between this “literal but nonsensical” translation. Furthermore, the Judge believed that the translation was insufficient to demonstrate that the driver understood the real question of whether he consented to a search, let alone whether he understood that he had a choice at all.

Again, I love how our legal system struggles to keep up with the rapid pace of technological change.  I know that the government will likely appeal this ruling, but I look forward to this and other cases like it in the future that will help all of us understand just how far our constitutional protections go in the digital age.