                        United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 96-3641
                                 ___________

United States of America,             *
                                      *
     Plaintiff - Appellee,            *
                                      * Appeal from the United States
     v.                               * District Court for the
                                      * Eastern District of Missouri.
Charles E. McGill,                    *
                                      *
     Defendant - Appellant.           *
                                 ___________

                              Submitted: April 18, 1997
                                  Filed: September 15, 1997
                                 ___________

Before LOKEN, MAGILL, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                               ___________

LOKEN, Circuit Judge.


      After the district court1 denied his motion to suppress, Charles E.
McGill entered a conditional plea of guilty to being a felon in possession
of a firearm. See 18 U.S.C. § 922(g)(1). McGill now raises suppression
issues on appeal, based upon his contention that a police officer searched
his vehicle in a manner contrary to New York v. Class, 475 U.S. 106 (1986).
We affirm.




     1
        The HONORABLE STEPHEN N. LIMBAUGH, United States District Judge
for the Eastern District of Missouri.
      After McGill’s truck rear-ended another vehicle on a public street
in East Prairie, Missouri, police officer Timothy Parker was summoned to
investigate. The district court found that:

     In the course of his investigation, Parker sought to obtain the
     vehicle identification numbers (VIN) of the vehicles.        To
     obtain the VIN of McGill’s truck, Officer Parker put only his
     head inside the open driver’s window while standing outside the
     vehicle with McGill standing next to him. The VIN was visible
     and legible to a person reading it by standing outside the
     vehicle and looking through the front windshield.

           When his head was thus inside the truck, Officer Parker
     smelled marijuana. He told McGill that he smelled the odor of
     marijuana in the vehicle and asked him, “Can I have permission
     to search your vehicle?” McGill answered in the affirmative.

Parker then searched the cab of the truck, finding marijuana cigarettes in
the ashtray and baggies of marijuana behind a loose dashboard panel plate.
After arresting McGill, Parker conducted a further criminal investigative
search of the truck at the police station and found the firearm. Police
subsequently conducted a routine inventory search of the impounded truck.
      After a suppression hearing, the magistrate judge ruled that Officer
Parker violated McGill’s Fourth Amendment rights as defined in Class when
he put his head in the window of McGill’s truck, rather than reading the
VIN from outside the truck. However, the magistrate judge recommended not
suppressing the firearm because it would inevitably have been found during
the inventory search. In denying McGill’s motion to suppress, the district
court did not reach this issue. Rather, it upheld McGill’s arrest and the
subsequent truck searches on the ground that marijuana was inevitably
discoverable at the accident scene because Parker would eventually have
smelled marijuana fumes coming out the open window or by opening the
vehicle’s door




                                   -2-
to search for the VIN inside the door jamb, a procedure the Supreme Court
approved, at least for older model cars, in Class, 475 U.S. at 118.

      In Class, a police officer searching for a vehicle’s VIN during a
routine traffic stop opened the vehicle door, reached into the interior to
move papers obscuring the area of the dashboard where the VIN is located,
and observed a firearm protruding from under the driver’s seat.         In
upholding seizure of the firearm, the Supreme Court cautioned:

           We note that our holding today does not authorize police
     officers to enter a vehicle to obtain a dashboard-mounted VIN
     when the VIN is visible from outside the automobile. If the
     VIN is in the plain view of someone outside the vehicle, there
     is no justification for governmental intrusion into the
     passenger compartment to see it.

475 U.S. at 119. Relying on this passage in Class, McGill argues that
Officer Parker violated the Fourth Amendment when he put his head inside
the cab of a late-model truck whose VIN was observable from outside the
vehicle, and that the district court’s finding that the fumes were
otherwise inevitably discoverable is clearly erroneous. Therefore, the
initial search was invalid, and the firearm must be suppressed as the fruit
of that unlawful search under Wong Sung v. United States, 371 U.S. 471
(1963).

      Assuming without deciding that McGill’s Fourth Amendment rights were
violated when Officer Parker put his head through the truck’s open window,
we conclude that the subsequent search of the truck was validated by
McGill’s voluntary consent to search. Even if consent is the result, in
a “but for” sense, of a Fourth Amendment violation, the consent will
validate a subsequent search if the consent is “sufficiently an act of free
will to purge the primary taint.” United States v. Ramos, 42 F.3d 1160,
1164 (8th Cir. 1994) (quoting Wong Sun, 371 U.S. at 486), cert. denied, 115
S. Ct. 2015 (1995); accord United States v. Thomas, 83 F.3d 259 (8th Cir.
1996).




                                    -3-
That question turns on whether McGill understood his right to withhold
consent, the temporal proximity of his consent and the prior Fourth
Amendment violation, the presence of intervening circumstances, “and,
particularly, the purpose and flagrancy of the official misconduct.” Brown
v. Illinois, 422 U.S. 590, 604 (1975).

      Here, as in Ramos and Thomas, the request for consent followed
immediately upon the assumed Fourth Amendment violation, without relevant
intervening circumstances. But here, as in those cases, it is apparent
that McGill understood his right to withhold consent. At the suppression
hearing, McGill testified that he did not consent to the search at all, but
instead told Officer Parker that “in most cases before you get in someone’s
private property and start filtering around you need a Search Warrant.”
The district court credited Officer Parker’s description of the encounter
and found that McGill did in fact consent. On appeal, McGill does not
contend that his consent was coerced or that he did not understand his
right to withhold it.

      Turning to the most critical factor -- the nature of Officer Parker’s
Fourth Amendment violation -- we note that Officer Parker was investigating
a traffic accident in which McGill was apparently at fault. Ascertaining
the vehicle’s VIN number and determining whether McGill’s driving had been
impaired by drugs or alcohol were highly relevant to that investigation.
Thus, even if Parker had not smelled marijuana fumes, he could quite
properly have asked McGill for permission to search the cab of the truck.
See Cady v. Dombrowski, 413 U.S. 433, 441-42 (1973).              In these
circumstances, McGill’s voluntary consent was “sufficiently an act of free
will,” even if Parker’s motive in requesting consent was supplied by an
unlawful prior search. Accord United States v. Liss, 103 F.3d 617, 621-22
(7th Cir. 1997); United States v. Sheppard, 901 F.2d 1230 (5th Cir. 1990);
cf. Whren v. United States, 116 S. Ct. 1769 (1996).




                                    -4-
      For the foregoing reasons, the judgment of the district court is
affirmed.

          A true copy.

                Attest:

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




                                 -5-
