“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

In a March decision, Eighth Circuit Judge Ralph Erickson was the deciding vote in a 2-1 panel ruling upholding a warrantless search of a man’s suitcase. Adan Garcia-Garcia spoke no English, Nebraska police officer Kevin Finn spoke no Spanish, and Finn used the wrong Spanish word for what he was asking permission to search. Nevertheless, the majority found that Officer Finn reasonably believed the search was consensual, and they allowed the police to use the drugs he found as evidence. The case is U.S. v. Garcia-Garcia.

Garcia brought two items with him for a bus journey of several hundred miles: his checked suitcase (Spanish: equipaje or maleta) in the luggage compartment and a small carry-on bag (Spanish: bolsa) at his seat. At a stop in Omaha, Garcia went into the terminal and was approached by Officer Finn. After realizing that Garcia did not speak English, Finn—who did not speak Spanish at all well—asked for permission to search his bolsa. Garcia agreed, and the two men went back outside. Garcia started boarding the bus so Finn could search his bolsa. But Finn searched the checked suitcase instead.

Judge Erickson concluded that Finn had reasonably believed that Garcia had “knowingly” and “voluntarily” consented to the search of the suitcase. The majority cited testimony that the word bolsa can be used for a suitcase, even if it is not ordinarily used that way. The opinion also relied on the fact that when he was about to open the suitcase, Finn asked “may I” in Spanish while pointing to the receipt for checked luggage that Garcia was holding, and that Garcia did not object to the search.

In dissent, Judge Jane Kelly disagreed that the officer could reasonably believe that Garcia consented to the search “knowingly and voluntarily.” Although Finn had told Garcia of his right not to allow the search and to walk away, he only did this in English when he first approached him. It was clear that Garcia did not understand him, and Finn continued the conversation in Spanish as best he could but without explaining Garcia’s rights. Kelly noted that the officer actually had a Spanish-language “consent-to-search” form but chose not to use it.

In addition, Judge Kelly explained that when they went outside, signs of miscommunications continued. Garcia started to board the bus to get his bolsa, but Finn stopped at the checked luggage area. Garcia “appeared to be confused and again gestured to the bus.” They had clearly been talking about different things. And the officer’s question of “may I” was ambiguous, especially since he had preceded it with an English-language question that he knew Garcia had not understood. Rather than make clear that he understood and consented to a search of his suitcase, Garcia “put his hands in the air, took a step back, dropped his chin, and quickly shook his head.” As Kelly explained, silent assent to a police action that you haven’t been told you can say no to cannot reasonably be assumed to be knowing and voluntary consent.