
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
