United States v. Zapata

                  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.    This appeal presents questions
                    SELYA, Circuit Judge.
                                        

concerning the  legality of an investigatory  stop, a warrantless

automobile  search, and  an ensuing  interrogation.   Contrary to

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

in  California v.  Hodari  D.,  499  U.S.  621  (1991),  did  not
                                       

reconfigure the doctrine  of Terry  v. Ohio, 392  U.S. 1  (1968),
                                                     

and,   therefore,  did   not  transmogrify   the   law  governing

investigatory stops.  Thus, we conclude on the facts of this case

that a  slight physical  touching by  a police  officer, effected

under circumstances  falling short of probable cause,  did not in

itself  transform a lawful Terry  stop into an  unlawful de facto
                                                                           

arrest.   Discerning  no  clear  error in  the  district  court's

remaining findings    that defendant consented  to the challenged

search  (a  search  that  yielded  evidence  which in  any  event

inevitably  would  have been  discovered)  and  that neither  the

seized  evidence  nor  the statements  to  the  police should  be

suppressed   we affirm the judgment of conviction.

I.  FACTUAL BACKGROUND
          I.  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  alerted  by  a  reliable  informant  about

narcotics-related  activity  at  a certain  dwelling  in  Lowell,

Massachusetts, the federal  Drug Enforcement Administration (DEA)

mounted  a  surveillance.   On February  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  in the laden vehicle.

He drove  in an unorthodox manner,  bobbing, weaving, continually

changing  lanes, and  alternating  driving speeds.   Finally,  he

swerved  sharply from  a high-speed  throughway into  an adjacent

rest area, without signalling.   The trailing DEA  agent followed

and radioed for help.  By this time, the authorities had verified

that   the  car   driven  by   appellant  was   unregistered  and

uninsured.2

          Appellant left  his  vehicle and  entered  a  fast-food

restaurant.   Four law enforcement officers  followed him inside;

only one of the  officers, state trooper Dockrey, was  in uniform

and  carrying  a visible  weapon.   A  fifth officer  watched the

entire  exchange, unseen,  from  a  distance.    As  the  quartet

approached  appellant,   Trooper  Dockrey  placed  his   palm  on

appellant's back for two or three seconds, gestured away from the

crowd, and politely asked appellant  to accompany the officers to

a  secluded corner  of the  restaurant.   Appellant complied.   A

discussion  ensued.   When  appellant  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  knew  this  to be  a  lie.   They  then

suggested that appellant accompany them to the parking lot.  Once

again, appellant  agreeably acquiesced.   The party  proceeded to

the spot where appellant  had parked the vehicle in  which he had

arrived.

          The  officers  inquired   if  they  might   search  the

automobile    but they  did not  tell appellant that  he had  the

right  to withhold  his consent.    Appellant replied,  "Sure, go

ahead," and, upon  request, relinquished the keys.   The officers

found  the  two duffel  bags  in the  trunk.   In  response  to a

question,  appellant denied knowing who  owned them.   One of the

bags  was partially unzipped.  Through  the opening, the officers

spied a type of  packaging commonly used for cocaine.  An officer

removed the  package,  dropped it  onto  the nearby  fender,  and

watched   as  it  emitted  a  puff  of  white  powder.    Further

examination disclosed approximately 25  kilograms of cocaine.  At

that point,  the DEA  agents arrested appellant,  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.  PROCEEDINGS BELOW
          II.  PROCEEDINGS BELOW

          On  February 26, 1992, a  federal grand jury returned a

two-count indictment  charging Zapata  and two  codefendants with

conspiracy to possess cocaine,  intending to distribute the drug,

and  with the underlying substantive  offense.  See  21 U.S.C.   
                                                             

846, 841(a)(1); see also 18 U.S.C.   2 (aiding and abetting).  On
                                  

                                4

March 26, Zapata  filed a motion to suppress  in which he claimed

an  illegal search  and seizure.   He  sought to  suppress, inter
                                                                           

alia, the cocaine found  in the automobile and the  statements he
              

had made to law enforcement officers after his arrest.

          Following  a three-day  evidentiary hearing,  the court

below concluded  that, when  the  officers originally  approached

appellant,  they   had  a   satisfactory  basis  for   reasonable

suspicion.   In light of  the factual predicate    the informer's

tip,  the  observations made  during  the  surveillance, and  the

elusive manner  in which  appellant drove to  the rest area    we

regard this finding as irreproachable.   See, e.g., United States
                                                                           

v.  Sokolow, 490 U.S. 1, 7-8  (1989) (explaining that "reasonable
                     

suspicion" sufficient  to undergird  investigatory  stop must  be

based on  "articulable  facts" drawn  from "the  totality of  the

circumstances"); United  States v. Villanueva,      F.3d    ,    
                                                       

(1st  Cir. 1994) [No. 93-1502, slip op.  at 5] (similar).  And we

note that the officers' suspicions were understandably heightened

as events at the rest area unfolded.

          Turning  to  the nature  of  the  detention, the  court

pointed out  that, in the  initial encounter, the  police neither

restricted appellant's movements nor  prevented him from  leaving

the  scene.    At all  times,  the  officers'  demeanor was  non-

coercive; they spoke courteously,  in low, non-threatening tones,

and   with  the lone  exception of Trooper  Dockrey's pat on  the

back    refrained  from  touching appellant,  encircling him,  or

brandishing  their  weapons.    The court  also  determined  that

                                5

appellant fully understood what  was happening, and "seemed eager

to  cooperate."  In sum, the initial detention amounted merely to

an investigatory stop, justified  by reasonable suspicion.3  See,
                                                                          

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

953, 957 (1st Cir. 1986).

          Taking matters  a step  further, the court  ruled that,

because  appellant voluntarily  consented to  the car  search, no

basis  existed for suppression of the items taken from the trunk.

The  court also  ruled  appellant's confession  to be  admissible

because he had waived his Fifth Amendment privilege against self-

incrimination  in  compliance  with  the   Miranda  requirements.
                                                            

Accordingly, the court denied the motion to suppress.

          Thereafter, a  jury  found  appellant  guilty  on  both

counts of the indictment.  On March 16,  1993, the district court

imposed  a  ten-year incarcerative  sentence.    In this  appeal,

appellant contests only the denial of his suppression motion.

III.  STANDARD OF REVIEW
          III.  STANDARD OF REVIEW

          A  district court's  findings of  fact on  a motion  to

suppress are reviewable only  for clear error as to  consent, see
                                                                           

United States v.  Miller, 589  F.2d 1117, 1130  (1st Cir.  1978),
                                  

cert. denied,  440 U.S. 958  (1979), probable  cause, see  United
                                                                           

States v. Aguirre,  839 F.2d 854,  857 (1st  Cir. 1988), and  all
                           

other factbound  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  district court's

findings as to applicability of  "plain view" exception under the

"clearly erroneous" rule).   This  deferential standard  requires

that an appellate  court exhibit great respect for the presider's

opportunity  to  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  stage for a more nuanced
              

statement of appellate  practice in Fourth  Amendment cases.   In

scrutinizing a  district court's denial of  a suppression motion,

the  court  of appeals  will review  findings  of fact  for clear

error, while  at  the  same time  subjecting  the  trial  court's

ultimate constitutional  conclusions to  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.  ANALYSIS
          IV.  ANALYSIS

          Appellant argues that the initial seizure of his person

amounted  to a  de  facto arrest;  that  he did  not  voluntarily
                                   

consent to  the subsequent search;  that the contraband  found in

the  car's trunk would not  necessarily have been discovered; and

that the illegal practices in  which the agents engaged  rendered

both  the  fruits  of  the  search  and  the  ensuing  confession

inadmissible.   We  subdivide this  multi-layered  argument  into

several components.

                                7

                    A.  The Initial Encounter.
                              A.  The Initial Encounter.
                                                       

          There is no scientifically precise formula that enables

courts to  distinguish between investigatory stops,  which can be

justified by reasonable suspicion,  and other detentions that the

law  deems  sufficiently coercive  to  require  probable cause   

detentions  that are  sometimes called  "de facto arrests."   See
                                                                           

Florida v. Royer,  460 U.S.  491, 506 (1983)  (opinion of  White,
                          

J.); United States  v. Quinn, 815 F.2d 153, 156  (1st Cir. 1987).
                                      

The  conventional method  of  classification in  respect to  such

detentions consists of  asking whether "a  reasonable man in  the

suspect's position  would have understood his  situation," in the

circumstances  then obtaining,  to be  tantamount to  being under

arrest.   Berkemer v. McCarty,  468 U.S. 420,  442 (1984); accord
                                                                           

Quinn, 815 F.2d at 157.   In suggesting an affirmative answer  to
               

this inquiry,  appellant highlights two arguably  coercive facts:

the presence of five lawmen and the physical touching effected by

Trooper Dockrey.

          Despite these  circumstances,  we cannot  say that  the

district  court  erred in  assessing  the  initial encounter  and

concluding  that  a reasonable  person,  standing in  appellant's

shoes, would have felt unrestrained.  The encounter occurred in a

public place.  Most of the officers were in plain clothes.  Their

approach  was measured,  their  words polite,  their conduct  not

bellicose.   They  neither  voiced threats  nor brandished  their

weapons.  Certainly, the atmosphere at the scene was visibly less

coercive  than  in  Quinn, a  case  in  which  we overturned  the
                                   

                                8

district  court's finding  that  a reasonable  person would  have

thought himself  under arrest given  the presence of  five police

officers,  a sniffing dog, and a  vehicle obstructing egress, see
                                                                           

Quinn, 815 F.2d at 155.  Taking into account the  full panoply of
               

relevant  facts, including  the  demeanor and  deportment of  the

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

without more, set aside the trial  court's supported finding that

the  initial encounter  did not  function as  a de  facto arrest.
                                                                   

Mere numbers  do not  automatically convert  a lawful  Terry stop
                                                                      

into something more forbidding.

          Nonetheless, the government is  not entirely out of the

woods.   Appellant,  adverting to  the slight  physical touching,

constructs  an  arresting  argument  based  on  certain  language

contained  in California v.  Hodari D., 499 U.S.  621 (1991).  In
                                                

Hodari,  a  group  of  youths  who  were  under  no  suspicion   
                

reasonable  or otherwise    panicked  and ran  when a  patrol car

passed.  The police pursued.   During the chase, Hodari    one of

the fleeing youths   discarded  a "rock" of crack cocaine.   Soon

after, a police  officer tackled him.   See id.  at 622-23.   The
                                                         

government charged  Hodari with  a narcotics offense  and offered

the cocaine as evidence against him.  The jury found him guilty.

          On appeal, Hodari challenged  the government's right to

introduce the evidence.  Its admissibility turned on the question

of when  the police  "seized" Hodari    at  the moment the  chase

began or at the time of the tackle.   See id. at 623-24.  Justice
                                                       

Scalia,  writing  for  the  Court,  stated  that  an  arrest  may

                                9

transpire  in  one  of two  ways:    "An  arrest requires  either
                                                                           

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

assertion  of authority."    Id. at  626.   Despite  the  seeming
                                          

breadth  of  this language,  it  is important  to  recognize that

Hodari focused on the second branch of  this disjunctive furcula;
                

the  Court made new law by  holding that, absent force, a seizure

is not effected until the suspect has submitted.  See id.
                                                                   

          Appellant attempts to stretch  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."  Id.
                                                                           

at  625.   Suggesting  that  this  statement be  read  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  is not  original.  The  Seventh Circuit

recently rejected  a virtually identical argument,  holding that,

Hodari notwithstanding, a  constructive arrest  occurs only  when
                

the  touch first effects a seizure, but not when an investigatory

stop (itself  a form of  seizure) is  already in progress  at the

time of the contact.   See United States v. Weaver, 8  F.3d 1240,
                                                            

1244-45  (7th Cir.  1993).   We believe  that Weaver  reaches the
                                                              

correct  result and  that  there  is  a  simple,  direct  way  to

reconcile Hodari with cases involving Terry stops.
                                                     

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

common  law sense.    He  understood  common  law  arrest  to  be

coterminous  with  the  modern  conception  of  "seizure  of  the

                                10

person."   Hodari, 499 U.S. at  627 n.3.  The  Court neglected to
                           

distinguish between  different types of seizures,  presumably for

two  reasons:  the distinction was not directly relevant, and, in

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

dating from  the pre-Terry era    an  era when there  was perfect
                                    

congruence  between the terms "arrest" and "seizure."  See id. at
                                                                        

624-27.  Properly understood,  the passage  in Hodari  upon which
                                                               

appellant  relies  merely restates  the  traditional  test for  a

seizure.  See,  e.g., Terry, 392 U.S. at 19  n.16 ("Only when the
                                     

officer, by means  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.").  Hodari's solitary innovation  is to
                                              

add the requirement  that the  suspect submit.   See Hodari,  499
                                                                     

U.S. at 626.

          Glimpsed in  this light, Hodari cannot  bear the weight
                                                   

that appellant piles upon it.  After all, "[o]ur Fourth Amendment

jurisprudence has  long  recognized that  the  right to  make  an

arrest  or investigatory  stop  necessarily carries  with it  the
                                        

right  to use  some  degree of  physical  coercion."   Graham  v.
                                                                       

Connor, 490  U.S. 386, 395  (1989) (emphasis supplied).   Indeed,
                

the  concept of an investigatory stop  was conceived and nurtured

in  cases involving protective pat-downs,  see Terry, 392 U.S. at
                                                              

20-30; Ballou  v.  Massachusetts, 403  F.2d  982, 985  (1st  Cir.
                                          

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

impossible  to  frisk or  pat down  a suspect  without physically

touching   him.     Then,   too,  the   Court  has   consistently

                                11

characterized actions  far more  corporal than mere  touchings as

proper investigatory accouterments, see,  e.g., Sokolow, 490 U.S.
                                                                 

at 7 (upholding investigatory  stop although officers grabbed the

suspect by  the arm and  moved him onto  the sidewalk); see  also
                                                                           

United States v.  Montoya de  Hernandez, 473 U.S.  531, 534,  541
                                                 

(1985)   (upholding  relatively   intrusive   border  search   of

defendant's  person without  requiring an  antecedent  showing of

probable  cause).     Given  both  the   persuasiveness  and  the

prevalence of  these precedents, we  join the Seventh  Circuit in

rejecting the notion that an unheralded dictum in Hodari worked a
                                                                  

sea  change in the law  by imposing a  probable cause requirement

for all de minimis  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,  that  datum  merely

establishes that a seizure  occurred; it does not dispose  of the

question of what sort of  seizure took place.4  What  is decisive

in  this case  is  that nothing  the officers  did,  alone or  in

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

convert  the  investigatory  stop  already in  progress  into  an

arrest.  See, e.g., United States v.  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,  post-Hodari, that  patting  down  a
                                                   

suspect does not  automatically convert  a Terry stop  into a  de
                                                                           

facto  arrest); Tom v.  Voida, 963 F.2d 952,  958 (7th Cir. 1992)
                                       

(similar;  handcuffing of suspect  does not automatically convert

Terry stop  into de  facto arrest).   Since  there is  no serious
                                    

doubt that reasonable suspicion existed at the time of the stop  

the  totality of  the  circumstances plainly  supports the  lower

court's assessment   the "seizure" in this case was lawful.

                  B.  Voluntariness of Consent.
                            B.  Voluntariness of Consent.
                                                        

          Next,  appellant  asseverates that  the  district court

erred  in  concluding  that   he  voluntarily  consented  to  the

automobile search.   We do  not agree.   The court had  before it

evidence  of  express consent,  along  with  evidence of  consent

inferable from conduct.  Appellant freely surrendered the keys to

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

of  handing  over one's  car keys,  if  uncoerced, may  in itself

support  an  inference of  consent to  search  the vehicle.   See
                                                                           

United  States v.  Patrone, 948  F.2d 813,  816 (1st  Cir. 1991),
                                    

cert. denied, 112  S. Ct. 2953 (1992); see also  Miller, 589 F.2d
                                                                 

at  1131 (holding  to  like effect  when  defendant unlocked  his

vehicle upon request).  It is equally well settled that a general

consent  to search a motor  vehicle subsumes the specific consent

to search  any easily  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  to inform  a suspect that  he is  entitled to

withhold  his consent to a vehicle search, though relevant to the

issue of voluntariness, does not  preclude a finding of  consent.

See, e.g.,  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.  1977); Leeper v. United States,  446
                                                                     

F.2d  281,  284 (10th  Cir. 1971),  cert.  denied, 404  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  the  duffel  bags  were lying  in  the  trunk,

appellant's  general  consent  to  a  search  of  the  automobile

constituted consent to a search of the duffel bags.   See Jimeno,
                                                                          

111 S. Ct.  at 1804; United States v. Ross,  456 U.S. 798, 820-21
                                                    

(1982).   What is  more, there  is a  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  the abandoned property, see  Abel v. United  States, 362 U.S.
                                                                 

217,  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  F.2d 606, 608 (2d
                                                   

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

Cir. 1991);  United States v. Ruiz,  935 F.2d 982, 984  (8th Cir.
                                            

1991);  United States v. Sweeting,  933 F.2d 962,  964 (11th Cir.
                                           

1991).  Phrased another  way, disclaiming ownership is tantamount

to  declaring indifference, and thus negates the existence of any

privacy  concern in a container's contents.  See Miller, 589 F.2d
                                                                 

at 1131.

                    C.  Inevitable Discovery.
                              C.  Inevitable Discovery.
                                                      

          Even if  the defendant's consent  were somehow tainted,

and  the  search invalid,  suppression  would  not  lie  in  this

instance   for  the   contraband  inevitably   would   have  been

discovered.   Evidence which  comes to  light  by unlawful  means

nonetheless can be  used at  trial if it  ineluctably would  have

been  revealed in some other  (lawful) way, see  Nix v. Williams,
                                                                          

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

at  10], so  long as (i)  the lawful  means of  its discovery are

independent  and  would  necessarily  have  been  employed,  (ii)

discovery  by  that  means  is  in  fact  inevitable,  and  (iii)

application of the doctrine  in a particular case will  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  would have impounded  it and, in  accordance

with standard  practice, conducted  a routine  inventory search.6

In the process,  the two large  bags of cocaine in  the vehicle's

trunk  would certainly have come to light.  Courts have regularly

approved  inventory searches of  impounded motor vehicles despite

the absence  of probable cause,  see, e.g., Colorado  v. Bertine,
                                                                          

479 U.S.  367, 371  (1987); United  States v. Ramos-Morales,  981
                                                                     

F.2d 625, 626 (1st Cir.  1992) (collecting cases), cert.  denied,
                                                                          

113 S. Ct. 2384  (1993); United States v. Rodriguez-Morales,  929
                                                                     

F.2d  780, 785  (1st Cir.  1991), cert.  denied, 112  S. Ct.  868
                                                         

(1992);  United States  v. Trullo,  790 F.2d  205, 206  (1st Cir.
                                           

1986), and, by like  token, courts often have held  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.  Jenkins, 876  F.2d 1085,  1088 (2d  Cir. 1989)
                                    

(same).   At  least one  court has  so ruled  under circumstances

hauntingly reminiscent of the circumstances  at hand.  See People
                                                                           

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

discovery of evidence  inevitable because police  had a right  to

impound,  and  conduct  an  inventory search  of,  an  apparently

unregistered,  uninspected, and  uninsured  vehicle  driven on  a

public highway).  We discern no  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.  The Confession.
                                 D.  The Confession.
                                                   

          Although  appellant  challenges  the  district  court's

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

taint  arising  from  the  claimed shortcomings  in  the  initial

encounter  and  vehicle  search.     Because  the  red  flag   of

constitutional infirmity does not  fly from these ramparts    the

investigatory stop, the search,  and the ensuing arrest  all pass

constitutional  muster     and   because  the  requisite  Miranda
                                                                           

protections   were  scrupulously   observed,   the  court   below

appropriately declined to quarantine appellant's confession.

V.  CONCLUSION
          V.  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