USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
_________________________
No. 93-1349
UNITED STATES OF AMERICA,
Appellee,
v.
WALTER DeJESUS ZAPATA,
Defendant, Appellant.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
___________________
_________________________
Before
Selya, Circuit Judge,
_____________
Bownes, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________
_________________________
Steven J.

Rappaport, with

whom Rappaport, Freeman

& Pinta

____________________
___________________________
was on brief, for appellant.
R. Bradford Bailey, Assistant United States Attorney, with
___________________
whom A. John Pappalardo, United States Attorney, was on brief,
___________________
for appellee.
_________________________
March 24, 1994
_________________________

SELYA, Circuit Judge.

SELYA, Circuit Judge.
_____________
concerning the
automobile

This appeal presents questions

legality of an investigatory

search, and

an ensuing

stop, a warrantless

interrogation.

Contrary to

appellant's importuning, we hold that the Supreme Court's opinion

in

California v.
__________

Hodari D.,
__________

reconfigure the doctrine

and,

therefore,

did

investigatory stops.
that a

of Terry
_____
not

U.S.

621

v. Ohio, 392
____

transmogrify

the

(1991),

did

U.S. 1
law

not

(1968),

governing

Thus, we conclude on the facts of this case

slight physical

under circumstances

499

touching by

a police

officer, effected

falling short of probable cause,

did not in

itself

transform a lawful Terry

_____

arrest.

Discerning

no

remaining findings
search

(a

inevitably
seized

would

evidence

suppressed
I.
I.

search

stop into an

clear

error in

the

that defendant consented

that

yielded

have been
nor

evidence

discovered)

the statements

to

unlawful de facto
__ _____
district

court's

to the challenged

which in

any

event

and

that neither

the

the

police should

be

we affirm the judgment of conviction.

FACTUAL BACKGROUND
FACTUAL BACKGROUND

We offer a decurtate summary of the events pertinent to

this

appeal, recounting

them in

a manner

consistent with

the

district court's supportable findings of fact.

Upon

being

narcotics-related

alerted

activity

by

at

reliable

a certain

informant

dwelling

in

about

Lowell,

Massachusetts, the federal

Drug Enforcement Administration (DEA)

mounted

On February

surveillance.

4, 1992,

federal agents

observed defendant-appellant Walter DeJesus Zapata drive from the

2

site

of

the surveillance

to another

address.1

He

entered a

house at that address and helped to load two duffel bags into the

trunk of a second car.

Appellant departed

He drove

in an unorthodox manner,

changing

lanes, and

swerved

sharply from

and radioed for help.

that

the

car

bobbing, weaving, continually

alternating

driving speeds.

a high-speed

rest area, without signalling.

in the laden vehicle.

Finally,

throughway into

The trailing DEA

he

an adjacent

agent followed

By this time, the authorities had verified

driven

by

appellant

his

vehicle and

was

unregistered

and

uninsured.2
Appellant left
restaurant.

Four law enforcement officers

only one of the

and

carrying

entire

a visible

weapon.

appellant,

from

A
a

Trooper

in uniform

fifth officer

distance.
Dockrey

fast-food

followed him inside;

officers, state trooper Dockrey, was

exchange, unseen,

approached

entered

As

placed

watched the
the

his

quartet
palm

on

appellant's back for two or three seconds, gestured away from the
crowd, and politely asked appellant
a

secluded corner

discussion

ensued.

of the
When

to accompany the officers to

restaurant.
appellant

Appellant complied.
stated

that he

had

been

dropped off at the rest area by anonymous "friends," the officers

____________________

1The
trial record
reflects, and
appellant's counsel
confirmed at oral argument, that contrary to the more prevalent
Hispanic custom appellant prefers to use the last of his given
names as his surname. We will, therefore, honor his nomenclative
preference and refer to him as "Zapata."

2In Massachusetts, it is unlawful to operate on a public

highway a motor vehicle that is unregistered, see Mass. Gen. Laws
___
ch. 90,
9 (1986), or one that is uninsured, see id.
34J.
___ ___
3

informed

him

that they

They

then

suggested that appellant accompany them to the parking lot.

Once

again, appellant

knew

this

to be

agreeably acquiesced.

the spot where appellant

lie.

The party

proceeded to

had parked the vehicle in

which he had

arrived.
The
automobile
right

officers
but they

to withhold

ahead," and, upon

found

the

bags

did not

they

tell appellant that

Appellant replied,

bags

in the

trunk.

appellant denied knowing who

spied a type of
removed the
as

Through

dropped it

emitted

puff

onto
of

examination disclosed approximately 25

that point,

the DEA

search

the

he had

the

"Sure, go

The officers

In

response

owned them.

to a

One of the

the opening, the officers

packaging commonly used for cocaine.

package,
it

might

request, relinquished the keys.

was partially unzipped.

watched

if

his consent.

two duffel

question,

inquired

the nearby
white

An officer
fender,

powder.

Further

kilograms of cocaine.

agents arrested appellant,

and

At

handcuffed him,

and read his Miranda rights once in Spanish and twice in English.
_______

Appellant promptly confessed that he was en route to a rendezvous

with drug traffickers.

II.
II.

PROCEEDINGS BELOW
PROCEEDINGS BELOW
On

February 26, 1992, a

two-count indictment

charging Zapata

conspiracy to possess cocaine,

and

federal grand jury returned a

and two

codefendants with

intending to distribute the drug,

with the underlying substantive

846, 841(a)(1); see also 18 U.S.C.

___ ____

offense.

See
___

21 U.S.C.

2 (aiding and abetting).

On

March 26, Zapata

an

filed a motion to suppress

illegal search

and seizure.

alia, the cocaine found

____

He

in which he claimed

sought to

suppress, inter
_____

in the automobile and the

statements he

had made to law enforcement officers after his arrest.

Following
below concluded
appellant,
suspicion.
tip,

the

they

a three-day

that, when
had

In light of

in which

the court

officers originally

approached

satisfactory

basis

the factual predicate

observations made

elusive manner

the

evidentiary hearing,

during

the

for

reasonable

the informer's

surveillance, and

appellant drove to

the rest area

the

we

regard this finding as irreproachable.

v.

Sokolow, 490 U.S. 1, 7-8

_______

suspicion" sufficient
based on

(1989) (explaining that "reasonable

to undergird

"articulable

See, e.g., United States

___ ____ _____________

investigatory

facts" drawn

from "the

totality of

circumstances"); United States v. Villanueva, ___

______________
__________
(1st

Cir. 1994) [No. 93-1502, slip op.

stop must

be

the

F.3d ___, ___

at 5] (similar).

And we

note that the officers' suspicions were understandably heightened

as events at the rest area unfolded.
Turning
pointed out

to

the nature

that, in the

of

scene.

At all

times,

the

coercive; they spoke courteously,

and
back

with

the lone

refrained

brandishing

officers'

leaving

demeanor was

non-

in low, non-threatening tones,

Dockrey's pat on

touching appellant,

weapons.

court

police neither

prevented him from

exception of Trooper

from

their

detention, the

initial encounter, the

restricted appellant's movements nor

the

the

The court

encircling him,

also

determined

the

or

that

appellant fully understood what

to

cooperate."

was happening, and "seemed eager

In sum, the initial detention amounted merely to

an investigatory stop, justified

e.g.,
____

by reasonable suspicion.3

See,
___

Terry, 392 U.S. at 21; United States v. Streifel, 781 F.2d

_____
_____________
________

953, 957 (1st Cir. 1986).

Taking matters
because
basis
The

a step

appellant voluntarily

further, the court

consented to

ruled that,

the car

search, no

existed for suppression of the items taken from the trunk.

court also

ruled

appellant's confession

to be

admissible

because he had waived his Fifth Amendment privilege against selfincrimination

in

compliance

with

the

Miranda
_______

requirements.

Accordingly, the court denied the motion to suppress.

Thereafter, a

jury

counts of the indictment.

imposed

found

appellant

On March 16,

ten-year incarcerative

guilty

on

both

1993, the district court

sentence.

In this

appeal,

appellant contests only the denial of his suppression motion.

III.
III.

STANDARD OF REVIEW
STANDARD OF REVIEW
A

district court's

suppress are reviewable only

United States v.
_____________
cert. denied,
_____ ______

Miller, 589
______

440 U.S. 958

States v. Aguirre,
______
_______
other factbound

findings of

fact on

for clear error as to

F.2d 1117, 1130
(1979), probable

839 F.2d 854,

857 (1st

a motion

to

consent, see
___

(1st Cir.

1978),

cause, see
___

United
______

Cir. 1988), and

all

matters, see, e.g., United States v. Rutkowski,

___ ____ ______________
_________

____________________

3The court also found that, had the initial seizure risen to
the level of an arrest, it would have been illegal because
probable cause did not exist at that time. The government says
that this finding is patently erroneous. We need not reach the
question and take no view of it.
6

877

F.2d 139,

141 (1st Cir.

1989) (reviewing

findings as to applicability of
"clearly erroneous" rule).
that an appellate
opportunity

to

district court's

"plain view" exception under the

This

deferential standard

requires

court exhibit great respect for the presider's

hear

the

testimony,

observe

the

witnesses'

demeanor, and evaluate the facts at first hand.

Notwithstanding

the

deference

with

which

factual

findings are to be treated, questions of law remain subject to de

__
novo review.
____

This phenomenon sets the

statement of appellate
scrutinizing a
the

court

error, while

stage for a more nuanced

practice in Fourth

district court's denial of

of appeals
at

the

ultimate constitutional

will review
same time

Amendment cases.

a suppression motion,

findings

subjecting

conclusions to

In

of fact
the

trial

for clear

court's

plenary oversight.

See
___

United States v. Infante-Ruiz, ___ F.3d ___, ___ (1st Cir. 1994)
______________
____________

[No. 93-1175, slip op. at 4];

United States v. Sanchez, 943 F.2d

_____________
_______

110, 112 (1st Cir. 1991).

IV.
IV.

ANALYSIS
ANALYSIS

Appellant argues that the initial seizure of his person

amounted
consent to
the

to a

de
__

facto arrest;
_____

the subsequent search;

car's trunk would not

the

fruits

inadmissible.

We

of

the

he did

not

voluntarily

that the contraband

found in

necessarily have been discovered; and

that the illegal practices in

both

that

which the agents engaged

search

subdivide this

and

the

ensuing

multi-layered

rendered

confession

argument

into

several components.
7

A.
A.

The Initial Encounter.

The Initial Encounter.
_____________________

There is no scientifically precise formula that enables

courts to

distinguish between investigatory stops,

justified by reasonable suspicion,

law

deems

sufficiently coercive

which can be

and other detentions that the

to

require

probable cause

detentions

that are

Florida v. Royer,
_______
_____

460 U.S.

J.); United States

_____________
The

sometimes called

detentions consists of

circumstances
arrest.

491, 506 (1983)

of

asking whether "a

Berkemer v. McCarty,
________
_______

Quinn, 815 F.2d at 157.

_____

White,

respect to

such

reasonable man in

would have understood his

to be

See
___

(1st Cir. 1987).

classification in

then obtaining,

this inquiry,

(opinion of

v. Quinn, 815 F.2d 153, 156

_____

conventional method

suspect's position

"de facto arrests."

__ _____

situation," in the

tantamount to

468 U.S. 420,

the

being under

442 (1984); accord

______

In suggesting an affirmative answer

appellant highlights two arguably

to

coercive facts:

the presence of five lawmen and the physical touching effected by

Trooper Dockrey.
Despite these
district
concluding

court

circumstances,

erred in

that

assessing

a reasonable

the

person,

shoes, would have felt unrestrained.

public place.
approach
bellicose.

we cannot

say that

the

initial encounter

and

standing in

appellant's

The encounter occurred in a

Most of the officers were in plain clothes.

was measured,
They

their

neither

words polite,

voiced threats

their conduct

nor brandished

Their

not

their

weapons.

Certainly, the atmosphere at the scene was visibly less

coercive

than

in

Quinn, a
_____

case

in

which

we overturned

the

district

court's finding

thought himself
officers,

that

a reasonable

under arrest given

a sniffing dog, and a

Quinn, 815 F.2d at 155.

_____
relevant

person would

the presence of

five police

vehicle obstructing egress, see

___

Taking into account the

facts, including

have

the

demeanor and

full panoply of

deportment of

the

investigating officers and the tenor of their remarks, we cannot,

without more, set aside the trial
the

initial encounter

Mere numbers

do not

did not

court's supported finding that

function as

a de
__

automatically convert

facto arrest.
_____

a lawful

Terry stop
_____

into something more forbidding.

Nonetheless, the government is
woods.

Appellant,

constructs
contained
Hodari,
______

arresting

group

of

who

were

panicked

The police pursued.

after, a police

based

physical touching,

on

certain

Hodari D., 499 U.S.

_________

youths

or otherwise

the fleeing youths

the slight

argument

in California v.
__________

reasonable
passed.

an

adverting to

not entirely out of the

discarded

under

and ran

language

621 (1991).
no

suspicion

when a

patrol car

During the chase, Hodari

a "rock" of crack cocaine.

officer tackled him.

See id.
___ ___

In

at 622-23.

one of

Soon

The

government charged

Hodari with

a narcotics offense

the cocaine as evidence against him.

The jury found him guilty.

On appeal, Hodari challenged

introduce the evidence.
of when

the police

writing

the government's right to

Its admissibility turned on the question

"seized" Hodari

at

began or at the time of the tackle.

Scalia,

for

and offered

the

Court,

the moment the

See id. at 623-24.

___ ___
stated

that

an

chase

Justice

arrest

may

transpire

in

one

physical force
assertion
breadth

of two

"An

this language,

Id. at
___
it

626.

Court made new law by

Despite

is important

Hodari focused on the second branch of

______
the

arrest requires

either
______

. . . or, where that is absent, submission to the

__
__________

of authority."
of

ways:

to

the

seeming

recognize that

this disjunctive furcula;

holding that, absent force, a seizure

is not effected until the suspect has submitted.

Appellant attempts to stretch

See id.
___ ___

Hodari past the breaking

______

point.

He uses as a

lever the Court's statement that "an arrest

is effected by the slightest application of physical force."

at

625.

Suggesting

that

this

statement be

read

Id.
___

literally,

appellant urges that courts must find an illegal arrest whenever,

in the

absence of

probable cause,

the most ephemeral

physical

contact is made between a police officer and a suspect.

This construct
recently rejected

is not

The

Seventh Circuit

a virtually identical argument,

Hodari notwithstanding, a
______
the

original.

constructive arrest

holding that,

occurs only

when

touch first effects a seizure, but not when an investigatory

stop (itself

a form of

time of the contact.

seizure) is

already in progress

See United States v. Weaver, 8

___ _____________
______

1244-45

(7th Cir.

1993).

correct

result and

that

We believe
there

is

that Weaver
______
simple,

at the

F.3d 1240,

reaches the

direct

way

to

reconcile Hodari with cases involving Terry stops.

______
_____

In Hodari, Justice Scalia used the term "arrest" in its

______
common

law sense.

coterminous

with

He
the

understood
modern

common

conception
10

law
of

arrest

"seizure

to
of

be

the

person."

Hodari, 499 U.S. at

______

distinguish between
two

reasons:

627 n.3.

The

Court neglected to

different types of seizures,

presumably for

the distinction was not directly relevant, and, in

any event, the Court's decision rested exclusively on authorities

dating from

the pre-Terry era

_____

congruence
624-27.

era when there

was perfect

between the terms "arrest" and "seizure."

Properly understood,

appellant
seizure.

an

relies
See,
___

the passage

merely restates

the

in Hodari
______

traditional

e.g., Terry, 392 U.S. at 19

____ _____

officer, by means

See id. at
___ ___

upon which
test for

n.16 ("Only when the

of physical force or show of authority, has in

some way restrained the liberty of a citizen may we conclude that

a `seizure' has occurred.").
add the requirement

Hodari's solitary innovation

______

that the

suspect submit.

is to

See Hodari,
___ ______

499

U.S. at 626.
Glimpsed in

this light, Hodari cannot

______

that appellant piles upon it.

jurisprudence has
arrest
right

long

to use

Connor, 490
______

some

After all, "[o]ur Fourth Amendment

recognized that

or investigatory stop
______________________
degree of

U.S. 386, 395

bear the weight

the

right to

necessarily carries
physical

make

with it

coercion."

(1989) (emphasis supplied).

Graham
______

an

the

v.

Indeed,

the
in

concept of an investigatory stop

was conceived and nurtured

cases involving protective pat-downs,

20-30; Ballou
______

v.

Massachusetts, 403
_____________

see Terry, 392 U.S. at

___ _____

F.2d

982, 985

(1st

Cir.

1968), cert. denied, 394 U.S. 909 (1969), and it is by definition

_____ ______
impossible

to

touching

frisk or

him.

pat down

Then,

too,

a suspect
the

Court

without physically
has

consistently

11

characterized actions

far more

corporal than mere

proper investigatory accouterments, see,

___
at 7 (upholding investigatory
suspect by

the arm and

United States v.
_____________
(1985)

defendant's
probable

prevalence of

stop although officers grabbed the

moved him onto

relatively

person without

cause).

e.g., Sokolow, 490 U.S.

____ _______

the sidewalk); see

___

Montoya de Hernandez, 473 U.S.

_____________________

(upholding

Given

touchings as

intrusive

requiring an
both

these precedents, we

the

531, 534,

border

search

antecedent
persuasiveness

join the Seventh

also
____

541

of

showing of
and

the

Circuit in

rejecting the notion that an unheralded dictum in Hodari worked a

______
sea

change in the law

for all de minimis

__ _______

by imposing a

probable cause requirement

uses of force, including those

incidental to

legitimate Terry stops.

_____

On this understanding of Hodari, we cannot say that the

______

lower court erred in concluding that no de facto arrest occurred.

__ _____
Although

an

officer

did

touch appellant,

establishes that a seizure

question of what sort of
in

this case

is

datum

merely

occurred; it does not dispose

of the

seizure took place.4

that nothing

the officers

that

What
did,

is decisive
alone or

in

combination, including the modest laying-on of hands, sufficed to

convert

the

investigatory

stop

already in

arrest.

See, e.g., United States v.

___ ____ _____________

progress

into

an

Willis, 967 F.2d 1220, 1223

______

____________________

4Of course, the fact of physical contact is relevant to the

reasonableness of a suspect's perception that he is under arrest.
See United States v. Perea, 986 F.2d 633, 645 (2d Cir. 1993). In
___ _____________
_____
this case, the district court, after factoring this information
into the calculus, determined that no de facto arrest occurred.
__ _____
That exercise in factfinding did not constitute clear error.
12

(8th

Cir.

1992)

(holding,

suspect does not

facto
_____

automatically convert

arrest); Tom v.
___

(similar;

post-Hodari, that
______

Terry stop
_____

into de
__

a Terry stop
_____

Voida, 963 F.2d 952,

_____

handcuffing of suspect

patting

down

into a

de
__

958 (7th Cir. 1992)

does not automatically convert

facto arrest).
_____

Since

there is

no serious

doubt that reasonable suspicion existed at the time of the stop

the

totality of

the

court's assessment

circumstances plainly

erred

in

Voluntariness of Consent.
Voluntariness of Consent.
________________________

appellant

concluding

automobile search.
evidence

of

of

asseverates that

that
We do

he

the

voluntarily

not agree.

express consent,

inferable from conduct.

both

lower

the "seizure" in this case was lawful.

B.
B.

Next,

supports the

along

district court

consented

The court had

with

to

the

before it

evidence of

consent

Appellant freely surrendered the keys to

the doors and the trunk; and it is settled law that the act
handing

support

an

over one's

car keys,

inference of

if

consent to

uncoerced, may
search

United States v.
______________

Patrone, 948
_______

cert. denied, 112

_____ ______

S. Ct. 2953 (1992); see also

___ ____

at

to

1131 (holding

vehicle upon request).

F.2d 813,

like effect

when

in itself

the vehicle.

816 (1st

See
___

Cir. 1991),

Miller, 589 F.2d

______

defendant unlocked

his

It is equally well settled that a general

consent

to search a motor

to search

any easily

vehicle subsumes the specific consent

accessible containers within

the vehicle.

See, e.g., Florida v. Jimeno, 500 U.S. 248, ___, 111 S. Ct. 1801,
___ ____ _______
______
1804 (1991).
Nothing

occurred

in

this

case

to

neutralize

the

13

inference of consent.

Although appellant harps on the

officers'

failure to inform him of his right to refuse permission, the rule

is that

a failure

withhold

to inform

a suspect that

entitled to

his consent to a vehicle search, though relevant to the

issue of voluntariness, does not

See, e.g.,
___ ____

he is

preclude a finding of

consent.

Schneckcloth v. Bustamonte, 412 U.S. 218, 231-32, 249

____________
__________

(1973); United States

_____________

v. Lopez,
_____

911 F.2d 1006,

1011 (5th

Cir.

1990); United States v.

_____________

Crespo, 834 F.2d 267, 271-72

______

(2d Cir.),

cert. denied, 485 U.S.

_____ ______

1007 (1988); United States v.

_____________

Lemon, 550
_____

F.2d 467, 472 n.5 (9th Cir.

F.2d

281,

284 (10th

1977); Leeper v. United States,

______
_____________

Cir. 1971),

cert.

denied, 404

446

U.S. 1021

_____

______

(1972); United States ex rel. Harris v. Hendricks, 423 F.2d 1096,

____________________________
_________
1101

(3d Cir. 1970); Gorman v. United States, 380 F.2d 158, 164
______
______________

(1st Cir. 1967).

Because
appellant's

the

general

duffel
consent

bags
to

were lying

in

search

the

of

constituted consent to a search of the duffel bags.

111 S. Ct.
(1982).

at 1804; United States v. Ross,

_____________
____
What is

more, there

is a

the

trunk,

automobile

See Jimeno,
___ ______

456 U.S. 798, 820-21

synergistic effect

at work

here, in that appellant's disclaimer of any ownership interest in

the bags strengthens the case for

a finding of consent.

One who

abandons ownership forfeits any

entitlement to rights of privacy

in

Abel v. United States, 362 U.S.

____
______________

217,

the abandoned property, see

___

240-41 (1960), and one who disclaims ownership is likely to

14

be found

to have abandoned ownership,5 see,

e.g., United States

___

____

_____________

v. Santos Ferrer, 999 F.2d 7, 9 (1st Cir.), cert. denied, 114 S.

______________
_____ ______
Ct.

562 (1992); United States v. Torres, 949

______________
______

Cir.

(1991); United States v. Frazier, 936 F.2d 262, 264-65 (6th

_____________
_______

Cir. 1991);

United States v. Ruiz,

_____________
____

1991);

United States v. Sweeting,

_____________
________

1991).

Phrased another

to

F.2d 606, 608 (2d

935 F.2d 982, 984

933 F.2d 962,

(8th Cir.

964 (11th Cir.

way, disclaiming ownership is tantamount

declaring indifference, and thus negates the existence of any

privacy

concern in a container's contents.

See Miller, 589 F.2d

___ ______

at 1131.
C.
C.
Even if
and

the

the defendant's consent

search invalid,

instance

for

discovered.

the

suppression

contraband

Evidence which

nonetheless can be
been

Inevitable Discovery.
Inevitable Discovery.
____________________

used at

would

inevitably

comes to

not

lie

would

light

trial if it

revealed in some other

were somehow tainted,

in

this

have

been

by unlawful

ineluctably would

(lawful) way, see

___

means

have

Nix v. Williams,
___
________

467 U.S. 431, 448 (1984); Infante-Ruiz, ___ F.3d at ___ [slip op.
____________
at

10], so

long as (i)

independent
discovery

and
by

would

that

the lawful
necessarily

means

application of the doctrine

is

in

means of
have
fact

been

its discovery are

employed,

inevitable,

in a particular case will

and

(ii)

(iii)

not sully

the

prophylaxis of the Fourth

Amendment.

See
___

United States v.
_____________

____________________

5We note that this principle is totally consistent with the

precept that ownership and a subjective expectation of privacy
are among the key factors that trigger the right to privacy. See
___
Aguirre, 839 F.2d at 856-57 (citing other cases).
_______
15

Silvestri, 787 F.2d 736,

_________

744 (1st Cir. 1986), cert.

_____

denied, 487
______

U.S. 1233 (1988).

In this case, all

the relevant criteria are satisfied.

The record establishes unequivocally

that the car containing the

contraband was unregistered and uninsured.

Because the car could

not lawfully be driven on a public highway, see supra note 2, the

___ _____
state police surely
with standard

practice, conducted

In the process,
trunk

would have impounded

the two large

a routine

inventory searches of

the absence

of probable cause,

accordance

inventory search.6

bags of cocaine in

would certainly have come to light.

approved

it and, in

the vehicle's

Courts have regularly

impounded motor vehicles despite

see, e.g., Colorado
___ ____ ________

v. Bertine,
_______

479 U.S.

367, 371

(1987); United States v. Ramos-Morales,

______________
_____________

F.2d 625, 626 (1st Cir.

113 S. Ct. 2384
F.2d

780, 785

(1992);

1992) (collecting cases), cert.

_____

denied,
______

(1993); United States v. Rodriguez-Morales,

_____________
_________________
(1st Cir.

United States
_____________

1986), and, by like

1991), cert.
_____

v. Trullo,
______

denied, 112
______

790 F.2d

S. Ct.

205, 206

token, courts often have held

981

929

868

(1st Cir.

that evidence

which would have turned up during an inventory search comes under

the umbrella of the inevitable

discovery rule, see, e.g., United

___ ____ ______

____________________

6An inventory search is a wholly independent legal procedure

serving legitimate
governmental ends and
circumscribed by
standardized rules. See Colorado v. Bertine, 479 U.S. 367, 372___ ________
_______
76 (1987). Here, pursuit of that means was ongoing, in the sense
that, by the time of the search, the authorities had already
secured the critical information concerning the car.
The fact
that legal means of discovery are underway at the time an
unlawful search transpires is highly relevant to, though not a
requisite of, the inevitable discovery inquiry.
See Silvestri,
___ _________
787 F.2d at 746.
16

States v. Seals, 987 F.2d 1102, 1107-08 (5th Cir.), cert. denied,
______
_____
_____ ______
114 S. Ct. 155 (1993);

United States v. Horn, 970 F.2d

_____________
____

728, 732

(10th Cir. 1992); United States v. Williams, 936 F.2d 1243, 1248_____________
________

49 (11th Cir. 1991), cert. denied, 112 S. Ct. 1279 (1992); United
_____ ______
______
States v. Mancera-Londono, 912 F.2d 373, 375-76
______
_______________

(9th Cir. 1990);

United States v. Arango, 879 F.2d 1501, 1507 n.2 (7th Cir. 1989),
_____________
______
cert. denied, 493
_____ ______

U.S. 1069

(1990); see also

___ ____

United States
_____________

v.

George, 971 F.2d 1113, 1121 (4th Cir. 1992) (agreeing in theory);
______
United States v.
______________
(same).

At

Jenkins, 876
_______

least one

F.2d 1085,

court has

so ruled

hauntingly reminiscent of the circumstances

1088 (2d

Cir. 1989)

under circumstances
at hand.

See People
___ ______

v. Nelson, 486 N.Y.S.2d 979, 983-84 (N.Y. Sup. Ct. 1985) (holding
______
discovery of evidence
impound,

and

unregistered,

conduct

inevitable because police

an

inventory search

uninspected, and

public highway).

We discern no

uninsured

had a right

of,
vehicle

an

to

apparently
driven on

valid reason why the same result

should not obtain in this case.7

____________________

7We decline to embrace the suggestion that courts should

confine the inevitable discovery rule to cases in which the
disputed evidence comprises a derivative, rather than primary,
fruit of unlawful police conduct. See United States v. $639, 558
___ _____________
_________
in United States Currency, 955 F.2d 712, 718-21 (D.C. Cir. 1992).
_________________________

Although the Nix case involved derivative evidence, we regard its

___
rationale
that the exclusion of inevitably discovered evidence
would "put the government in a worse position" than if no
illegality had occurred, Nix, 467 U.S. at 443
to be fully
___
applicable to cases involving primary evidence.
And we are
thrice fortified in this conclusion:
by the Nix Court's
___
approving citation to cases that had applied the rule in the
context of primary evidence, see id. at 440 n.2 (citing, inter
___ ___
_____
alia, United States v. Apker, 705 F.2d 293 (8th Cir. 1983);
____
______________
_____
United States v. Romero, 692 F.2d 699 (10th Cir. 1982); and
______________
______
United States v. Roper, 681 F.2d 1354 (11th Cir. 1982)); by the
_____________
_____
Court's
subsequent
endorsement
of
the
closely
related
17

D.
D.
Although

The Confession.
The Confession.
______________

appellant

challenges

the

district

court's

refusal to suppress his confession, he bases his challenge on the

taint

arising

encounter

and

from

the

vehicle

claimed shortcomings
search.

constitutional infirmity does not

Because

in

the

the
red

and the ensuing arrest

constitutional

because

and

flag

fly from these ramparts

investigatory stop, the search,

muster

initial

the

requisite

of

the

all pass

Miranda
_______

protections

were

scrupulously

observed,

the

court

below

appropriately declined to quarantine appellant's confession.

V.
V.

CONCLUSION
CONCLUSION
We need go no further.

No

reversible error appearing,

the judgment of conviction must be

Affirmed.
Affirmed.
________

____________________

"independent source" rule in a case involving primary evidence,

see Murray v. United States, 487 U.S. 533, 540-41 (1988); and by
___ ______
_____________
the fact that no fewer than seven other circuits have approved
application of the inevitable discovery rule in primary evidence
cases, see cases cited supra p.16.
___
_____
18