-
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. 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
Document Info
Docket Number： 93-1349
Filed Date： 3/25/1994
Precedential Status： Precedential
Modified Date： 9/21/2015