Must a non-native English speaker be assisted by an interpreter during a police interrogation?

Police Interrogation

Gonzales v. State (Nev. Ct. App. – July 2, 2015)

The issue is whether the district court erred in ruling that a defendant’s confession was admissible even though English was not his native language and he was not provided with the assistance of an interpreter during his police interrogation.

Michelle was in the garage of her home vacuuming her car while her 22-month-old daughter Abigail napped inside the house. Three people, a woman and two men, entered through the open garage door and accosted Michelle. The shorter of the two men, later identified as Gonzales, was wearing a mask and had the hood of his sweatshirt pulled over his head so that Michelle could not immediately see his face. Gonzales pointed a gun at Michelle and told her, “we want your guns, we want your money.” The woman motioned for Michelle to go inside the house, and she complied.

At gunpoint, Michelle led the trio to the master bedroom, where they ransacked the room in search of valuables. The trio asked Michelle where any guns and money were kept, but Michelle answered that she did not know because her husband had recently moved his guns in order to prevent Abigail from accidentally finding them. The woman responded by calling Michelle stupid for not knowing where anything was. Eventually, after searching the entire room, the perpetrators found a safe and forced Michelle to open it. The perpetrators then forced Michelle to hold laundry baskets for them to fill with items from the safe.

Michelle asked if she could go get Abigail, but the perpetrators refused. Following repeated and increasingly insistent requests by Michelle, Gonzales eventually gave permission and Michelle retrieved her daughter. At some point Gonzales and the female perpetrator split up to search other rooms of the house while the taller man stayed in the master bedroom with Michelle and Abigail. The taller man continued searching the master bedroom and eventually discovered a hidden firearm owned by Michelle’s husband.

After a few minutes, the woman called Michelle to another room, where Michelle watched her go through the drawers of a desk. Michelle asked the taller man why they were there, and he replied that they had been hired to “come get your guns and money.” The trio then scattered throughout the house in search of more valuables, leaving Michelle and Abigail alone. Michelle ran to a side door that she had previously left unlocked, but apparently had been locked by the perpetrators during the crime, unlocked it, and fled the house with Abigail to a neighbor’s residence where she called 9-1-1. Police officers arrived moments later and quickly located the woman and the taller man who had accompanied Gonzales. They also found a car parked in Michelle’s driveway in which documents bearing Gonzales’ name were later discovered.

While police officers worked to establish a perimeter around the house, Gonzales voluntarily approached a police detective parked on the street and spontaneously uttered, in English, “I was involved. It was me. I was involved.” He was immediately arrested and searched, and property belonging to Michelle and her husband was found on his person. After the search, Gonzales asked, again in English, to be placed into the police car rather than be left standing in the street, and officers complied. Gonzales remained seated in the police car for approximately one hour with one back door open and the air conditioner turned on while the police continued to investigate the scene.

Gonzales was then transported to police headquarters and interrogated by Detective Flynn. Prior to the interrogation, Detective Flynn administered warnings, in English, pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). In English, Gonzales stated that he understood his rights and agreed to be questioned. Flynn repeated the warnings again, in slightly different and less formal language, later during the questioning Gonzales, whose native language is Tagalog, never requested the assistance of an interpreter, and none was provided. The entire interrogation was conducted in English and tape-recorded. Gonzales subsequently confessed to the offenses in detail in English.

Gonzales and his two codefendants were each charged with the crimes of conspiracy to commit robbery, burglary while in possession of a firearm, robbery with use of a deadly weapon, and first degree kidnapping with use of a deadly weapon.

Prior to trial, Gonzales filed a motion with the district court seeking to suppress incriminatory statements made during his recorded interrogation, asserting that he was under the influence of methamphetamine during the interrogation, and furthermore that he had not been provided with the assistance of a Tagalog interpreter even though English was not his native language. Following a two-day evidentiary hearing, the district court denied the motion. The recorded interrogation was played to the jury during Gonzales’ trial, and he was convicted of all counts Gonzalez appealed.

Gonzales argued, among other issues, that incriminatory statements made by him during his recorded interrogation should not have been admitted at trial because his grasp of the English language was insufficient for him to knowingly and intelligently waive his Miranda rights, and because the circumstances demonstrate that the interrogation was coercive as he was not provided with the assistance of an interpreter. Therefore, Gonzales contended his confession should have been deemed inadmissible under the standard set forth in United States v. Garibay, 143 F.3d 534 (9th Cir. 1998).

The Nevada Court of Appeals explained that when a confession is challenged and a hearing is requested under Jackson v. Denno, 378 U.S. 368 (1964), the State must prove by a preponderance of the evidence that the defendant’s incriminatory statements are admissible. When a defendant has been subjected to custodial interrogation, the State must first demonstrate the police administered Miranda warnings prior to initiating any questioning. If the warnings were properly given, the State must then prove the defendant voluntarily, knowingly, and intelligently understood his constitutional right to remain silent and/or to have an attorney present during any questioning, and agreed to waive those rights. Even where such warnings were properly administered and waived, the State must also separately show that the defendant’s incriminatory statements were voluntary under the totality of the circumstances.

The parties did not dispute that Gonzales was in custody at all times while being questioned, that the police questioning constituted an interrogation triggering the administering of Miranda warnings, or that detectives administered the proper warnings prior to commencing the interrogation. This was confirmed by the recording and transcript of the questioning. The parties also did not appear to dispute that Gonzales verbally acknowledged he understood his rights once they were read by saying “yes,” and waived those rights to participate in the police interrogation by answering questions without invoking his right to remain silent or asking for an attorney.

Gonzales contended, however, that his statements were inadmissible because he was not provided with the assistance of a Tagalog interpreter while being questioned, and also because he was intoxicated during the interrogation. Consequently, Gonzales contended his Miranda waiver was inadequate and the entire interrogation was unconstitutionally conducted.

The test of United States v. Garibay

Gonzales asked the Court to require district courts to apply the six-prong test set forth in United States v. Garibay, 143 F.3d 534, 538 (9th Cir. 1998), whenever the admissibility of a custodial police interrogation of a non-native English speaker is challenged. In Garibay, the Ninth Circuit canvassed existing case law and identified six factors that federal courts generally consider relevant to the voluntariness of a confession rendered by a non-native English speaking defendant. Specifically, the court stated:

In applying the “totality of circumstances” test, we further examine whether other circumstances surrounding Garibay’s interrogation indicate that he knowingly and intelligently waived his constitutional rights, despite his English-language difficulties, borderline retarded IQ, and poor verbal comprehension skills. The following considerations guide our inquiry: (1) whether the defendant signed a written waiver; (2) whether the defendant was advised of his rights in his native tongue; (3) whether the defendant appeared to understand his rights; (4) whether a defendant had the assistance of a translator; (5) whether the defendant’s rights were individually and repeatedly explained to him; and (6) whether the defendant had prior experience with the criminal justice system.

The Ninth Circuit held that Garibay’s confession was involuntary because he possessed a low IQ, had some history of mental illness, and spoke English very poorly, yet was not provided with the assistance of an interpreter during a custodial interrogation. Because the interrogation of Garibay failed to meet even a single one of the six factors identified by the Ninth Circuit, the confession was deemed inadmissible.

The Court explained that contrary to Gonzales’ characterization, Garibay did not articulate a comprehensive legal test that, by itself, determines the admissibility of any confession made by a non-native English speaker. Constitutionally, admissibility must be assessed in view of the totality of the circumstances. Garibay identified some of the myriad circumstances generally relevant to the admissibility of any confession within the existing constitutional framework that might have special relevance when the defendant is a nonnative speaker, but the Court noted the factors listed therein are nonexclusive. Thus, the Court explained that the framework of Garibay may provide helpful guidance to district courts grappling with the question of admissibility of such confessions, and the Garibay factors may be considered by district courts when reviewing those confessions. However, the mere fact that a particular confession fails to satisfy the six factors identified in Garibay does not, by itself, render the confession inadmissible any more than an otherwise involuntary confession becomes admissible merely because it meets those six factors.

The Court reasoned that questions relating to the admissibility of confessions by nonnative English speakers are far too complex and fact-specific to pigeonhole into any single legal test, even one with six elements. No single legal litmus test can possibly capture all of the relevant variations and iterations that could help determine the voluntariness of an interrogated suspect who speaks English as a second language, because non-native speakers who are somewhat familiar with English may possess different degrees of fluency that are not always easy to label or categorize. For example, some non-native English speakers may speak English conversationally yet not understand arcane or complex legal terms; some may speak English well but cannot read it; some may read and write English extremely well yet speak with accents that render their spoken words difficult for others to understand; some may understand the meaning of English words when they hear them without being able to generate those same words quickly during conversation; some may speak and understand English well when conversing with some people, but have difficulty understanding others who speak with a strong regional accent such as a southern drawl or northeastern inflection; and some may understand extremely complex English words and concepts when formally phrased yet not understand street jargon, slang, aphorisms, pop-culture references, or other colloquialisms that, to native speakers, might be far more conceptually simple. It is even possible that some non-native speakers may, based upon their education, understand the legal system extremely well yet not understand other words or concepts that might be conceptually simpler to others.

The Court explained that all of these subtleties are relevant to the voluntariness of a confession, but nonetheless are not captured well in the Garibay test. Consequently, while Garibay provides useful guidance for district courts grappling with the admissibility of confessions rendered by non-native English speakers, the Court declined the invitation to adopt the Garibay test as a comprehensive test of voluntariness in Nevada. The constitutional test for admissibility remains whether the confession was voluntary under the totality of all circumstances relevant to the confession, whether the circumstances are delineated in Garibay or not.

Consequently, the Court found that the district court did not err in this case merely because it failed to set forth its findings within the context of the Garibay analysis.

Admissibility of Gonzales’ confession

In this case, the district court concluded that Gonzales’ ability to speak and understand English was sufficiently high that he was fully capable of understanding and waiving his Miranda rights and making free and voluntary admissions. During the two-day evidentiary hearing, certified court interpreter Dooley testified that Tagalog speakers who can appear to speak English well may have trouble understanding complicated legal principles such as Miranda warnings, and there are words contained within the standard Miranda warnings, such as waiver, that cannot be easily translated directly into Tagalog. Dooley also testified that she had interpreted for Gonzales on approximately ten occasions and had witnessed him respond to questions inappropriately or incorrectly on a number of occasions. However, Dooley admitted she had also witnessed Gonzales begin to correctly answer questions posed to him in English before they were translated to him by her.

Two psychologists, Dr. Paglini and Dr. Lenkeit, were asked to conduct competency evaluations of Gonzales, and testified that Gonzales needed translation assistance during their evaluations. Dr. Paglini testified that Gonzales appeared to have good English comprehension skills, was pretty fluent in English, and had a higher-than-average IQ. Dr. Paglini described Gonzales as being able to respond in English approximately 30 to 50 percent of the time during the evaluation and that approximately 50 to 70 percent of the time Gonzales could respond in English, but would depend upon the interpreter to translate the questions for him before answering. Dr. Lenkeit testified that during his evaluation Gonzales relied upon the interpreter approximately 40 percent of the time, and appeared to particularly need translation assistance when asked questions relating to the legal system or to legal principles. Both Dr. Paglini and Dr. Lenkeit testified they could not have completed Gonzales’ assessment without the assistance of a Tagalog interpreter. Dr. Lenkeit also opined that, had Gonzales ingested methamphetamine hours before the interview, the drugs would have further impaired his already-limited understanding of the interview in English.

A police detective testified that he interacted with Gonzales at the scene of the crime and, based upon his training and experience, Gonzales did not appear to be intoxicated or under the influence of narcotics. He also testified that while Gonzales spoke with an accent, he conversed freely in English and spontaneously admitted his involvement in the crime in English before being arrested. Two other police detectives testified that although Gonzales spoke with a pronounced accent, he was able to speak and understand most or all of what was said to him in English. They testified that Gonzales claimed during the interview to have ingested methamphetamine at approximately 10:00 the morning of the crime. The interrogation occurred at 7:32 that evening, some nine hours later.

Another police officer testified that he had previously arrested Gonzales for an unrelated offense and had administered Miranda warnings in English that Gonzales acknowledged understanding. He also testified that Gonzales spoke with a heavy accent and occasionally gave answers that were difficult to understand or unintelligible, but Gonzales was able to answer most questions posed to him in proper English.

After hearing this testimony, the district court concluded that Gonzales presented insufficient evidence that he was under the influence of a narcotic that would render his statement involuntary. The Court’s review of the record revealed the only evidence presented by Gonzales of any drug use was his own claim to have ingested methamphetamine more than nine hours prior to the interrogation. No witness testified that Gonzales appeared to be intoxicated during the interrogation, and no medical evidence of drug usage was presented to the district court. Under these circumstances, the Court determined that the district court’s conclusion was not clearly erroneous.

The district court also concluded that Gonzales understood and spoke English sufficiently well that his incriminatory statements were free and voluntary and he could understand and thereby waive his Miranda rights even without the assistance of an interpreter. In reviewing the record, the Court noted the district court was presented with evidence suggesting that Gonzales’ grasp of the English language was limited and he had difficulty understanding legal concepts in English. The transcript of his interrogation includes certain confused descriptions, such as describing criminals as “the felonies people.”

The Court explained that the evidence before the district court also suggested that Gonzales understood most of what was said to him during the interrogation. Gonzales conceded in his appeal briefing that he appears to observers to be fluent in conversational English. The transcript of the interrogation further indicated Gonzales understood virtually every question asked of him, his answers were on the whole clear, appropriate, and responsive to the questions asked, and he even occasionally corrected erroneous information presented to him. Some of his answers consisted of lengthy narratives in English that included complex words and concepts such as “diversified,” “camouflage,” “informant,” “prescription,” and “discharging firearms.” Additionally, Gonzales was described as having a higher-than-average IQ and was familiar with the Miranda warnings from at least one previous police interrogation.

The district court also indicated it had listened to audio recordings of the interrogation and two phone calls made by Gonzales while incarcerated. Importantly, the district court noted that witnesses Dooley, Dr. Paglini, and Dr. Lenkeit had not been provided with either the videotape of Gonzales’ interrogation or audio recordings of Gonzales’ phone calls that the court reviewed. After considering all of the evidence, the district court concluded Gonzales had sufficient skills in English to not only understand the Miranda warnings, but to waive his rights and make a statement against interest.

Thus, the Court explained that he district court was presented with conflicting evidence. While reasonable minds could perhaps reach different conclusions based upon that evidence, the district court heard the witnesses and saw the evidence firsthand while this Court had only the written record. Based upon the evidence in the record, the Court could not say the district court’s factual findings constituted clear error, and therefore concluded the district court did not err as a matter of law by admitting Gonzales’ confession.

Finally, the Court noted that even if Gonzales’ custodial confession was improperly admitted, the collective evidence against him was overwhelming. Police found Gonzales near the scene moments after the crime with some of the victim’s stolen property in his pocket, and he immediately confessed to the crime (in a statement not challenged on appeal) before even being identified as a suspect or arrested. Thus, any error in admitting Gonzales’ statement, even if such error occurred, would have been harmless.

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