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

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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.

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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

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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

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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

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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.

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