Cultural Considerations in Motions and Sentencing
Connell, James G., Judicature
Cases involving immigrant defendants raise unique factors to be considered in challenges to searches and seizures, motions to suppress statements, and the sentencing process.
Because so many criminal cases are resolved by plea rather than trial, the only contested hearings most criminal defendants will see are motions hearings and sentencing proceedings. Cases involving immigrant defendants raise unique factors to be considered in several common situations, including challenges to searches and seizures, motions to suppress statements, and the sentencing process.
Searches and seizures
Ethnicity as reasonable cause. Ethnic identity or racial appearance alone cannot constitute reasonable suspicion or probable cause,1 unless the suspect's appearance is relevant to a description of the offender. The Supreme Court has held that the Equal Protection Clause, rather than the Fourth Amendment, protects against racial profiling in stops.2 But courts have puzzled over what remedy, if any, the Equal Protection Clause provides: suppression, dismissal, or civil suit?5 The meaning of the Equal Protection Clause in the law enforcement context will be fleshed out as defendants litigate the issue in the future.
Consent to search. The Supreme Court has held that background is an important factor in assessing the validity of a consent to search,4 and cultural background is no exception. The first question, of course, is whether the person consenting knew what she or he was agreeing to. If an officer requests consent to search in English, the consent is involuntary if the person consenting did not understand the request.5 Likewise, an officer cannot obtain consent in a foreign language if the officer's command of that language is so poor that he or she cannot clearly communicate the request for consent.6
Compared to the role of language in consent to search, the role of cultural understanding and expectations is much less straightforward. Some courts have recognized that cultural attitudes may render some immigrant defendants more compliant with governmental authority, suggesting that, in an appropriate case, a defendant's cultural background might cast doubt on the knowing and voluntary nature of his or her consent to search.7 On the other hand, the Tenth Circuit has rejected cultural factors such as a defendant's attitude toward authority as "inherently unverifiable and unquantifiable."8
The cultural expectations of a foreign national may differ significantly from the assumptions of the court. When the police first ask permission to search, courts assume that people raised in the United States generally understand they have the right to refuse the request, even if the police do not explicitly explain that right. To aliens, however, a request by an official of the country that toler- ates their presence on sufferance may not carry the same subtie implication of the right to refuse.9 The assumption that the request to search carries with it the right to refuse thus may not be valid for many immigrants, particu- larly if the immigrant moved to the United States from a coun- try where police have an absolute right to search, or a country where such a "request" is (in effect) a police order (perhaps even carrying with it the implicit threat of physical force). While an officer may obtain valid consent from a U.S. national without expressly informing the person of the right to refuse, a much more complete explanation may be required in situations where an immigrant may not understand the nuance of the English language or relevant U.S. law.
Challenges to statements
As the Supreme Court has recognized, Miranda warnings "have become part of our national culture."10 But what about other cultures? Miranda warnings and waivers are inherently language-based, and an unfamiliar language and culture add a layer of complexity to the assessment of their validity.
Custody. Prior to 2004, at least one court had considered alienage, language, and culture in deciding whether a person was in custody for Miranda purposes. …