18 F.3d 971 (1st Cir. 1994), 93-1349, United States v. Zapata

Docket Nº:93-1349.
Citation:18 F.3d 971
Party Name:UNITED STATES of America, Appellee, v. Walter DeJesus ZAPATA, Defendant, Appellant.
Case Date:March 24, 1994
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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18 F.3d 971 (1st Cir. 1994)

UNITED STATES of America, Appellee,


Walter DeJesus ZAPATA, Defendant, Appellant.

No. 93-1349.

United States Court of Appeals, First Circuit

March 24, 1994

Heard Feb. 11, 1994.

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[Copyrighted Material Omitted]

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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.


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

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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.


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 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 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 self-incrimination in compliance with the Miranda requirements. Accordingly, the court denied the motion to suppress.

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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.


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...

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