18 F.

3d 971

UNITED STATES of America, Appellee,

v.
Walter DeJesus ZAPATA, Defendant, Appellant.
No. 93-1349.

United States Court of Appeals,

First Circuit.
Heard Feb. 11, 1994.
Decided March 24, 1994.

Steven J. Rappaport, with whom Rappaport, Freeman & Pinta, Boston,

MA, was on brief, for defendant, appellant.
R. Bradford Bailey, Asst. U.S. Atty., with whom A. John Pappalardo, U.S.
Atty., Boston, MA, was on brief, for appellee.
Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and
STAHL, Circuit Judge.
SELYA, Circuit Judge.

This appeal presents questions 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, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), did not
reconfigure the doctrine of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20
L.Ed.2d 889 (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
2

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 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 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
6

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. Secs. 846, 841(a)(1); see also 18 U.S.C. Sec. 2 (aiding and
abetting). On 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, 109 S.Ct. 1581, 1585, 104
L.Ed.2d 1 (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, 15 F.3d 197, 199 (1st
Cir.1994) (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 noncoercive; 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 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, 88 S.Ct. at 1879-80; 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 selfincrimination in compliance with the Miranda requirements. Accordingly, the
court denied the motion to suppress.
10

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

11

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, 99 S.Ct. 1499, 59 L.Ed.2d 771
(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, 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.

12

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, 13 F.3d 498, 501 (1st Cir.1994);
United States v. Sanchez, 943 F.2d 110, 112 (1st Cir.1991).

IV. ANALYSIS
13

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.

A. The Initial Encounter.

14
15

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, 103 S.Ct. 1319, 1329, 75 L.Ed.2d 229 (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, 104 S.Ct. 3138, 3151-52, 82 L.Ed.2d 317 (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.
16

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 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.

17

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,
111 S.Ct. 1547, 113 L.Ed.2d 690 (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, 111 S.Ct. at 1548-49. The government charged
Hodari with a narcotics offense and offered the cocaine as evidence against
him. The jury found him guilty.

18

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, 111
S.Ct. at 1549-50. Justice Scalia, writing for the Court, stated that an arrest may
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, 111
S.Ct. at 1551. 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.
19

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, 111 S.Ct. at 1550. 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.

20

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.

21

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 person." Hodari, 499 U.S. at 627 n. 3, 111 S.Ct. at 1551 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, 111 S.Ct. at 1549-51. 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, 88 S.Ct.
at 1879 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, 111 S.Ct. at
1550-51.

22

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, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (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, 88 S.Ct. at
1879-85; Ballou v. Massachusetts, 403 F.2d 982, 985 (1st Cir.1968), cert.
denied, 394 U.S. 909, 89 S.Ct. 1024, 22 L.Ed.2d 222 (1969), and it is by
definition impossible to frisk or pat down a suspect without physically touching
him. Then, too, the Court has consistently characterized actions far more
corporal than mere touchings as proper investigatory accoutrements, see, e.g.,
Sokolow, 490 U.S. at 7, 109 S.Ct. at 1585 (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, 105 S.Ct. 3304, 3310-11, 87 L.Ed.2d 381 (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.
23

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
(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.
24
25

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, --U.S. ----, 112 S.Ct. 2953, 119 L.Ed.2d 575 (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, 251-52, 111 S.Ct. 1801,
1804, 114 L.Ed.2d 297 (1991).
26

Nothing occurred in this case to neutralize the 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, 93 S.Ct. 2041, 2049-50, 2059, 36
L.Ed.2d 854 (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, 108 S.Ct. 1471, 99 L.Ed.2d 700 (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, 92 S.Ct. 695, 30
L.Ed.2d 671 (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).

27

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, 500 U.S. at 251-52, 111 S.Ct. at 1804; United States v. Ross, 456 U.S.
798, 820-21, 102 S.Ct. 2157, 2170-71, 72 L.Ed.2d 572 (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, 80 S.Ct.
683, 697-98, 4 L.Ed.2d 668 (1960), and one who disclaims ownership is likely
to be found to have abandoned ownership,5 see, e.g., United States v. Santos
Ferrer, 999 F.2d 7, 9 (1st Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 562, 126
L.Ed.2d 462 (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.
28
29

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, 104 S.Ct.
2501, 2511, 81 L.Ed.2d 377 (1984); Infante-Ruiz, 13 F.3d at 503, 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. Silvestri, 787 F.2d 736, 744 (1st
Cir.1986), cert. denied, 487 U.S. 1233, 108 S.Ct. 2897, 101 L.Ed.2d 931
(1988).

30

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, 107 S.Ct. 738, 740-41, 93 L.Ed.2d 739
(1987); United States v. Ramos-Morales, 981 F.2d 625, 626 (1st Cir.1992)
(collecting cases), cert. denied, --- U.S. ----, 113 S.Ct. 2384, 124 L.Ed.2d 287
(1993); United States v. Rodriguez-Morales, 929 F.2d 780, 785 (1st Cir.1991),
cert. denied, --- U.S. ----, 112 S.Ct. 868, 116 L.Ed.2d 774 (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
States v. Seals, 987 F.2d 1102, 1107-08 (5th Cir.), cert. denied, --- U.S. ----, 114
S.Ct. 155, 126 L.Ed.2d 116 (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, --- U.S. ----, 112 S.Ct. 1279, 117 L.Ed.2d 504 (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, 110 S.Ct. 1111, 107 L.Ed.2d 1019 (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, 127 Misc.2d 583, 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
D. The Confession.
31
32

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
33

We need go no further. No reversible error appearing, the judgment of

conviction must be

34

Affirmed.

The 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."

In Massachusetts, it is unlawful to operate on a public highway a motor vehicle

that is unregistered, see Mass.Gen.Laws ch. 90, Sec. 9 (1986), or one that is
uninsured, see id. Sec. 34J

The 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

Of 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

5

We 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)

An 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, 107 S.Ct. 738, 741-43, 93 L.Ed.2d 739 (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

We 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,
104 S.Ct. at 2509--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, 104 S.Ct. at 2507 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 "independent
source" rule in a case involving primary evidence, see Murray v. United States,
487 U.S. 533, 540-41, 108 S.Ct. 2529, 2534-35, 101 L.Ed.2d 472 (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.
978