                   United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT


                                      ___________

                                      No. 98-1101
                                     ___________

UNITED STATES OF AMERICA,                 *
                                          *
            Plaintiff/Appellee,           * Appeal from the United States
                                          * District Court for the Eastern
      v.                                  * District of Missouri
                                          *
PHILLIP W. HAMMONS,                       *
                                          *
            Defendant/Appellant.          *
                                          *


                                     ___________

                                  Submitted: May 12, 1998
                                      Filed: August 26, 1998
                                    ____________

Before BEAM and MURPHY, Circuit Judges, and MELLOY,1 Chief District Judge.

                                    ___________




      1
        The Honorable Michael J. Melloy, Chief Judge, United States District Court
for the Northern District of Iowa, sitting by designation.
       MELLOY, Chief District Judge.



       On October 6, 1997, Phillip Hammons entered a conditional guilty plea
pursuant to Fed. R. Crim. P. 11(a)(2), to possession of cocaine with intent to
distribute in violation of 21 U.S.C. § 841(a)(1). The district court1 sentenced
Hammons to 80 months imprisonment and five years supervised release. The only
issue Hammons raises on appeal is whether the district court clearly erred in
denying his motion to suppress. After a careful review of the record, we affirm the
district court.


                                    I. Background
       Around 8:30 a.m. on June 20, 1997, a highway patrol officer stopped Mr. and
Mrs. Hammons as they were driving a rental car east through Missouri. According
to the officer, Mr. Hammons was driving in the passing lane of Interstate 70 without
changing into the center or left lane, and traffic had begun to back up behind him.
When the officer pulled them over and asked Mr. Hammons for his identification,
Mr. Hammons gave the officer a state identification card, then admitted that his
California driver’s license had been suspended. Hammons explained that his wife,
who was sitting next to him in the passenger seat, had been driving, but that he had
taken over because she was tired.




       1
         The Honorable Donald J. Stohr, United States District Judge for the Eastern
District of Missouri.
                                          2
      The officer took Mr. Hammons back to the patrol car while Hammons’ wife
waited in the rental car. The officer checked Mrs. Hammons’ driver’s identification
to confirm that it was valid. The officer also examined the rental agreement, which
indicated that the car had been rented in Mrs. Hammons’ name in Las Vegas. After
writing a ticket and summons for Mr. Hammons for driving without a valid license,
the officer asked Hammons why he and his wife had rented a car in Las Vegas when
they lived in California. Hammons said that flying to Las Vegas and renting a car
there was less expensive than renting one in California.


      After speaking with Mr. Hammons, the officer walked back to the rental car
to speak with Mrs. Hammons; as he did this, Mr. Hammons remained at the front
door of the police car. The officer told Mrs. Hammons that she would have to
drive, so Mrs. Hammons slid over to the driver’s seat. When she slid over, the
officer noticed that she seemed very nervous. He motioned to Mr. Hammons to
return to the rental car and told him that he was “free to go.” He then turned back
to Mrs. Hammons and asked if they had any drugs or guns in the car. When Mrs.
Hammons said no, the officer asked if he could search the vehicle to make sure that
she was telling the truth. Mrs. Hammons agreed to the search and handed the
officer the car keys so he could search the trunk. When the officer opened the
trunk, he saw several pieces of luggage, a box of shirts, a briefcase, and a silver
garment bag. Working his way toward the front of the trunk, he found a brown
garment bag and felt the outside of it. After feeling a hard rectangular object, he
opened the garment bag and pulled out a black jacket. A large manila envelope was
inside the jacket, stapled shut.



                                           3
      At this point, Mr. Hammons had finished walking back to the rental car. He
was standing nearby when the officer pulled the envelope out of the garment bag, so
the officer asked Hammons what it was. When Hammons said that he did not
know, the officer–who had realized that the garment bag contained men’s
clothing–asked Hammons if the garment bag belonged to him. Hammons
acknowledged that it did, so the officer asked Hammons twice again if he could
open the package. When Hammons said nothing and simply stared at the ground,
the officer told Hammons that he could answer “yes” or “no,” to which Hammons
responded that he did not want to say yes. The officer told Hammons that he
thought the package contained drugs and that he would call a drug dog to conduct a
sniff test of the package. When Hammons heard this, he said that he did not want
his wife to get in trouble. The officer continued to speak with him, and eventually,
Hammons said there was “contraband” in the package. The officer then gave
Hammons his Miranda rights and asked Hammons yet again if he could open the
envelope, at which point Hammons said to “go ahead.” The envelope contained
four packages of cocaine. Both Mr. and Mrs. Hammons were arrested and taken to
the police station, where Mr. Hammons made several inculpatory statements.
Mrs. Hammons was not charged with any crime.


      Mr. Hammons filed a motion to suppress evidence of the cocaine and the
statements that he had made. After an evidentiary hearing, the court ruled that Mrs.
Hammons’ consent to search the trunk extended to the brown garment bag in the
trunk. The court also found that Mr. Hammons’ consent to open the envelope was
involuntary, but that nevertheless, the cocaine was admissible because of the
inevitable discovery doctrine. The statements that Mr. Hammons made while

                                          4
standing next to the trunk were suppressed, but the cocaine and the statements he
made later at the police station were not. The sole issue before this Court is
whether the cocaine was admissible.2


                                   II. Discussion
      The Fourth Amendment protects citizens from unreasonable searches and
seizures. U.S. CONST. amend. IV. Mr. Hammons argues that this right was
violated when the officer searched Mr. Hammons’ personal garment bag without
having obtained Mr. Hammons’ consent to search it. Because the officer also failed
to obtain Mr. Hammons’ voluntary consent to open the envelope found inside the
garment bag, Mr. Hammons asserts that his Fourth Amendment right was again
violated when that envelope was opened without his permission. He argues that the
inevitable discovery doctrine provides no basis for refusing to suppress the cocaine
found inside the envelope.




      2
          The government did not file any objections to the magistrate judge’s report
and recommendation to suppress the statements that Mr. Hammons made while
standing next to the trunk. See Report and Recommendation issued by the
Honorable David D. Noce, Magistrate Judge for the Eastern District of Missouri,
dated September 17, 1997. The defendant did object to part of the report and
recommendation, which included objecting to the finding that the statements made
at the station were lawfully obtained.
       The district court adopted the report and recommendation and suppressed the
statements that Mr. Hammons had made while standing next to the trunk. The
statements Mr. Hammons made later at the police station were not suppressed.
       Neither the government nor the defendant appealed this ruling suppressing the
statements made near the trunk but admitting the statements made later at the
station, so that issue is not before this Court.
                                          5
      We review the facts supporting a district court’s denial of a motion to
suppress for clear error, although we review de novo the legal conclusions that are
based upon those facts. United States v. Cunningham, 133 F.3d 1070, 1072 (8th
Cir. 1998), cert. denied, –U.S.–, 118 S.Ct. 1823 (1998), citing Ornelas v. United
States, 517 U.S. 690, 698-99 (1996).


                             A. Mrs. Hammons’ Consent
      Both parties agree that because the car was rented in Mrs. Hammons’ name,
she had authority to consent to its search. By obtaining Mrs. Hammons’ consent to
search the car, the officer also obtained consent to search a closed container in that
car, provided that it was objectively reasonable for the officer to believe that Mrs.
Hammons’ consent extended that far and that the closed container might be
concealing drugs. See Florida v. Jimeno, 500 U.S. 248, 251-52 (1991) (general
consent to search car included consent to search containers within that car which
might bear drugs); Illinois v. Rodriguez, 497 U.S. 177, 185-86 (1990) (Fourth
Amendment requires that factual determinations about authority to search be
reasonable, not that they always be correct); United States v. Sanchez, 32 F.3d
1330, 1333-36 (8th Cir. 1994) (discussing Jimeno and Rodriguez), cert. denied, 513
U.S. 1158 (1995).


      Because the “closed container” in this case is the garment bag, the issue is
whether it was objectively reasonable for the officer to believe that Mrs. Hammons’
consent to search extended to the garment bag. The defendant argues that because
the garment bag had airline identification tags on it, clearly indicating that it
belonged to Mr. Hammons, it was unreasonable for the officer to believe that Mrs.

                                            6
Hammons owned the bag. In addition, the officer saw that there were men’s clothes
inside of the garment bag, so the defendant argues that it was all the more
unreasonable for the officer to believe that the bag belonged to Mrs. Hammons or
that she had authority to consent to its search. The government counters these
assertions by stating that the officer did not realize that it was Mr. Hammons’ bag
until he had already opened it and searched through it.


      The first question we must examine is whether it was objectively reasonable
for the officer to believe that the garment bag belonged to Mrs. Hammons. If such a
belief was reasonable, then it was also reasonable for the officer to believe that Mrs.
Hammons had authority to consent to the search of that bag. See Rodriguez, 497
U.S. at 185-86; Sanchez, 32 F.3d at 1334-35. We review the facts supporting the
district court’s decision for clear error, mindful that “[w]hen applying this standard,
we give deference to the fact finder, who had an opportunity to observe the
demeanor and credibility of the witnesses.” Cunningham, 133 F.3d at 1072.


      The district court found that when the officer opened the trunk and felt the
garment bag, the officer did not see the airline identification tag revealing that the
bag belonged to the defendant. The district court also found that the officer did not
guess that it was the defendant’s bag until after the officer had already opened it,
begun searching through it, and discovered men’s clothing inside of it. The district
court had the best opportunity to observe the officer’s credibility in making these
factual determinations, and nothing in the record persuades us that these findings
were clearly erroneous. The initial search of the garment bag was therefore lawful
because when the officer opened the bag and began to search through it, he did so

                                            7
with an objectively reasonable belief that the garment bag belonged to Mrs.
Hammons, and that she had given her consent to the officer’s searching through it.


                             B. Opening the Envelope
      The more difficult question is whether the action of opening the manila
envelope found inside the garment bag violated Mr. Hammons’ Fourth Amendment
right against unreasonable searches and seizures. By the time the officer was ready
to open the envelope, the officer knew that the defendant owned the garment bag in
which the envelope was found because the defendant had admitted to the officer that
he did. With this knowledge, the officer could not reasonably believe that Mrs.
Hammons’ consent to search the car extended to the envelope. The officer needed
to obtain the defendant’s consent to open the envelope—which the officer did
obtain—but the district court found that the defendant did not consent voluntarily.
See Michigan v. Mosley, 423 U.S. 96, 103 n.9 (1975) (right to remain silent must be
scrupulously honored before questioning is resumed); United States v. Cody, 114
F.3d 772, 775 (8th Cir. 1997) (citing Mosley).


      The issue thus boils down to the district court’s conclusion that despite the
police misconduct in opening the envelope after obtaining involuntary consent,
the cocaine found inside the envelope was admissible because the officer would
have inevitably discovered the cocaine if the police misconduct had not occurred.
The factual findings made in support of this determination were as follows:
             As he had indicated he would, Sgt. Moore requested the
             services of a drug-trained canine unit, which later joined
             the investigation. Without reasonable doubt the trained
             dog would likely have discovered the cocaine hidden in

                                          8
              the envelope and the defendant would nevertheless have
              been lawfully arrested.

In addition to these findings, the district court noted that the drug dog later joined
the group while they were en route to the police station, although no evidence was
adduced that the dog ever examined the envelope. The court found that if the dog
would have sniffed the envelope, it would have alerted on it, and the officer would
have inevitably discovered the cocaine.


       Based on the district court’s factual findings, a reasonable view of the
evidence is that the officer called the drug dog after the officer had opened the
envelope: when the officer was talking with Hammons and trying to obtain his
consent to open the envelope, the officer told Hammons that “he believed that the
envelope possibly contained contraband and that he would request a drug canine to
come to the scene and sniff the search package.”3 The officer and Hammons
continued talking until Hammons gave his involuntary consent, at which point the
officer opened the envelope. The district court then applied these facts to the
holding of Nix v. Williams, 467 U.S. 431, 446-47 (1984), to find that because the
officer would have called a drug dog and the dog would have alerted on the envelope, the
government would have acquired the contents of the envelope lawfully and inevitably.




       3
         Because the officer stated that he “would” request a drug dog, rather than he
“had” requested a drug dog, we assume that the drug dog was not called until after
the envelope had been opened. See United States v. Bloomfield, 40 F.3d 910, 914
(8th Cir. 1994) (en banc) (applying the “reasonable view of the evidence” test to the
district court’s decision to deny a motion to suppress), cert. denied, 514 U.S. 1113
(1995).
                                               9
       To decide whether the cocaine inside the envelope would have been
inevitably discovered, this Court must not only examine whether there was a
reasonable probability that the evidence would have been discovered by lawful
means if the police misconduct had not occurred, but it must also examine whether
the government was pursuing a substantial, alternative line of investigation at the
time of the police misconduct. See Nix, 467 U.S. at 449; United States v. Conner,
127 F.3d 663, 667 (8th Cir. 1997). In Nix, a ten-year-old girl was murdered and the
police coerced the defendant into leading them to the girl’s body. Id. at 436.
Before the police misconduct occurred, the Iowa Bureau of Criminal Investigation
had already initiated a large-scale search of the area where they believed the girl’s
body would be found. Id. at 435. The area had been separated into quadrants and
volunteers were systematically searching those quadrants. Id. Although the search
had been called off before the body was found, id. at 436, the Supreme Court
determined that the search would have resumed had the defendant not led the police
to the body. Id. at 449-50. Because the body was found “essentially within the area
to be searched,” id. at 436, the Supreme Court determined that the body would have
inevitably been discovered without any reference to the police misconduct. Id. at
450.


       Following the holding in Nix, this Court noted in Conner that “[t]o succeed
under the inevitable-discovery exception to the exclusionary rule, the government
must prove by a preponderance of the evidence: (1) that there was a reasonable
probability that the evidence would have been discovered by lawful means in the
absence of police misconduct, and (2) that the government was actively pursuing a



                                          10
substantial, alternative line of investigation at the time of the constitutional
violation.”4 Conner, 127 F.3d at 667; see also United States v. Halls, 40 F.3d 275,
276-77 (8th Cir. 1994) (applying inevitable discovery doctrine because the evidence
showed that an alternative line of investigation existed prior to the misconduct), cert.
denied, 514 U.S. 1076 (1995); United States v. Ivey, 915 F.2d 380, 384 (8th Cir.
1990) (same).


      The first prong of this analysis is easily satisfied in this case. The district
court did not clearly err in finding that had the defendant not consented to the search,
the officer would have called a drug-canine unit, the drug dog would have alerted on
the envelope, and the drugs would have been found through lawful means. See
United States v. Bloomfield, 40 F.3d 910, 919 (8th Cir. 1994) (en banc) (drug dog’s
identification of drugs in luggage provides probable cause that drugs are present),
cert. denied, 514 U.S. 1113 (1995). While the first prong is easily met, the second
prong poses a closer question.


      The second prong of the analysis is whether the government was actively
pursuing a substantial, alternative line of investigation at the time of the
constitutional violation. In this case, the officer did not actually call the drug-canine

      4
        The circuits appear to be split on the issue of whether it is necessary that
the separate investigation be ongoing at the time of the police misconduct. For
example, the Tenth Circuit has held that the inevitable discovery exception applies
“whenever an independent investigation inevitably would have led to discovery of
the evidence, whether or not the investigation was ongoing at the time of the illegal
police conduct.” United States v. Larsen, 127 F.3d 984, 986 (10th Cir. 1997), cert.
denied, –U.S.–, 118 S.Ct. 1105 (Feb. 23, 1998); see also United States v. Warren,
997 F.Supp. 1188, 1193-94 (E.D.Wis. 1998) (noting circuit split).
                                            11
unit before the misconduct occurred, but the officer did tell Hammons that he would
call a drug-canine unit if Hammons did not consent to the search. The officer’s
assertion that he would call a drug dog indicates that the officer had initiated an
alternative plan at the time of the constitutional violation: if Hammons did not
consent, the officer was prepared to walk back to his patrol car and radio the drug-
canine unit.


      In short, the only event that stopped the officer from calling the drug-canine
unit before the officer opened the envelope was the defendant’s consent. Similarly,
the only event that stopped the Nix search team from resuming its search was the
defendant’s coerced agreement to lead the police to the body. We therefore find that
a substantial, alternative line of investigation was underway which would have led to
the inevitable discovery of the cocaine absent the police misconduct.


                                    III. Conclusion
      The officer was operating under an objectively reasonable belief that he had
consent to open the garment bag, and the officer would have inevitably discovered
the cocaine inside the envelope in that garment bag through a substantial, alternative
line of investigation that was underway prior to the police misconduct. We therefore
affirm the district court’s denial of the defendant’s motion to suppress the cocaine.




                                           12
A true copy.


           Attest:


               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                  13
