                         United States Court of Appeals


                             FOR THE EIGHTH CIRCUIT




                                    No. 96-2583


United States of America,                    *
                                             *
      Appellant,                             *
                                             * Appeal from the United States
           v.      *                         District Court for the Western
                                             * District of Missouri.
Maude C. Clarke, Also Known as               *
Tina Clarke, Also Known as                   *
Angela,                                      *
                                             *
      Appellee. *




                       Submitted:   January 13, 1997

                           Filed: April 8, 1997


Before LOKEN, BRIGHT, and MORRIS SHEPPARD ARNOLD, Circuit Judges.


MORRIS SHEPPARD ARNOLD, Circuit Judge.

     The United States appeals the suppression of a confession by a
defendant charged with running an interstate prostitution ring.                We
reverse.


                                        I.
     Late in 1994, a team of federal and state officers in Kansas City,
Missouri, began a seven-month investigation of Maude C.      Clarke, whom they
suspected of running an interstate prostitution ring.            By monitoring
incoming and outgoing calls on Ms. Clarke's five telephone lines, watching
her apartment and her car,
collecting and examining her trash, following the women who worked for her,
talking to clients, and examining checks and credit card records secured
pursuant to federal grand jury subpoenas, the team developed an extensive
picture of Ms. Clarke's operations.         Based on this knowledge, in June,
1995, a Kansas City Police Department ("KCPD") detective issued "pick-up
orders" for Ms. Clarke and her employees.      "Pick-up orders" are entered in
the KCPD computer when officers believe that probable cause exists to
arrest an individual for a particular crime; the orders relevant to
Ms. Clarke indicated that probable cause existed to believe that she was
promoting prostitution in violation of both state and federal law and that
she should be arrested if encountered.


       The morning that the orders were issued, the KCPD arrested Ms. Clarke
and took her downtown to the detention unit.       After approximately twelve
hours, a case agent from the United States Secret Service and a KCPD vice
officer jointly questioned her for one and a half to two hours.            After
obtaining some personal information from Ms. Clarke, the officers read her
Miranda rights to her.     Ms. Clarke stated that she understood her rights
and that she had nothing to hide.       During the questioning, Ms. Clarke
admitted that she had operated the prostitution ring for several years and
that she laundered the ring's proceeds through a sham remodeling company.
Ms. Clarke also named all of the women who worked for her.              When the
officers asked her to give a written statement, however, she refused,
saying   that she would not sign anything without an attorney.                 The
interrogation then concluded and Ms. Clarke was returned to the detention
unit   and   later   released.   Officers    executed   a   search   warrant   for
Ms. Clarke's residence shortly after she was picked up, and they found
records that suggested the existence of a long-running, financially
successful interstate prostitution ring.




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     Approximately three months later, Ms. Clarke was indicted and charged
with a range of federal offenses relating to the conduct of a prostitution
ring, including conspiracy, Travel Act violations, money laundering, and
wire fraud.   She was arraigned the next day and later moved to suppress the
statement obtained from her when she was picked up in June.      Ms. Clarke
initially alleged only that her Miranda rights had been violated, but later
argued as well that her arrest by local officers had been a pretext to
allow federal officers to question her about a federal investigation.   The
district court, adopting the report and recommendation of a magistrate
judge, suppressed the statement on the grounds that Ms. Clarke's arrest was
pretextual and that the officers had intentionally circumvented Fed. R.
Crim. P. 5(a) by not presenting her before a magistrate judge.   The United
States appeals the statement's suppression.


                                    II.
     The United States first argues that the district court's finding that
Ms. Clarke's arrest was pretextual is immaterial under Whren v. United
States, 116 S. Ct. 1769 (1996).     In that case, police officers who were
patrolling a neighborhood known for drug trafficking stopped a truck after
it turned without signaling and then sped away.     The officers approached
the truck, spotted two large bags of crack cocaine in the passenger’s
hands, arrested both of the truck’s occupants, and retrieved several kinds
of illegal drugs from the truck.


     The petitioners in that case challenged the legality of the stop,
arguing that although probable cause existed to believe that they had
committed a traffic violation, no reasonable officer would have stopped
them solely on that basis and that the officers’ decision to stop them was
merely a pretext to investigate possible




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drug activity, for which no probable cause existed before the stop.     The
Supreme Court flatly rejected that argument, stating that "[s]ubjective
intentions play no role in ordinary, probable-cause Fourth Amendment
analysis" and holding that such motives cannot invalidate police conduct
that is justified by probable cause.         Id. at 1774.   Although Whren
specifically concerned a traffic stop, we believe that its principle is
applicable to all police activities for which probable cause is required.
See, e.g., United States v. Hathcock, 103 F.3d 715, 719 (8th Cir. 1997)
(drug trafficking arrest at airport).


     In analyzing Ms. Clarke's arrest under the fourth amendment, we
therefore ignore the officers' subjective intentions and focus solely on
the objective question of whether probable cause existed.        Whren, 116
S. Ct. at 1774; Hathcock, 103 F.3d at 719.    The district court found that
the information gathered by the officers during the investigation of
Ms. Clarke and her activities established probable cause that she was
promoting prostitution in violation of both state and federal law, and that
finding is neither clearly erroneous nor incorrect as a matter of law.
Indeed, Ms. Clarke does not even contend that it is.     We therefore agree
with the United States that the suppression of Ms. Clarke's confession was
erroneous under Whren.


     The district court recognized that we have held numerous times that
the validity of an arrest is to be determined not by reference to the
motive for effecting it but rather by making an objective inquiry into what
the fourth amendment would allow in the circumstances that the particular
case presents.   See, e.g., United States v. Cummins, 920 F.2d 498, 501 (8th
Cir. 1990), cert. denied, 502 U.S. 962 (1991).     The district court also
recognized that federal agents may make arrests without warrants if there
is




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probable cause to do so, but it believed that because the officers making
the arrest in this case did so "pursuant to" Mo. Rev. Stat. § 544.170, the
arrest, from a federal point of view, was illegal from the beginning.   That
is because, the district court found, the federal officers were taking
advantage of the cover provided by the Missouri statute to circumvent Fed.
R. Crim. P. 5(a), which requires that a person arrested be brought before
a magistrate judge "without unnecessary delay."       The Missouri statute
requires the release of an arrested person unless he or she is charged with
a crime within twenty hours of the arrest.


     We believe that the district court has confused the question of
whether an arrest was valid with the very different question of whether
Fed. R. Crim. P. 5(a) was violated.    The Missouri statute, first of all,
does not purport to give anyone a power to arrest.         That statute is
concerned not with the authority to arrest but with the rights of persons
who have already been arrested.   Contrary to what the district court held,
therefore, arrests cannot be made "pursuant to" this statute.      We note,
moreover, that even if the statute conferred an authority to arrest, and
even if the federal officers were somehow relying on it to effect the
arrest in this case, that would still not alter the fact that they had
probable cause to make the arrest in the first place.       The arrest was
objectively valid, no fourth amendment violation occurred, and the evidence
cannot therefore be suppressed on that account.


     Nor is the case of Abel v. United States, 362 U.S. 217 (1960), also
relied on by the district court, of any avail to Ms. Clarke.   In that case,
the Court held that the FBI could not employ an administrative warrant
appropriate for the initiation of deportation proceedings as a subterfuge
for gathering evidence against a person for espionage.   We wonder, in the
first place,




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about the continued validity of Abel in light of Whren.           But we believe,
in any event, that the present case is distinguishable, because the
gravamen of the defendant's complaint in Abel was that the FBI did not have
probable cause to arrest him for espionage.       Here it is admitted that there
was ample cause to arrest Ms. Clarke for the very offense with which she
was eventually charged.      There was thus no attempt to circumvent the fourth
amendment in this case and the rule of Abel, even if it retains some
validity, is, accordingly, not potentially applicable.


                                       III.
        The United States also contests the district court's ruling that the
failure of officers to present Ms. Clarke before a magistrate judge in a
timely    manner, as required by Fed. R. Crim. P. 5(a), automatically
compelled the suppression of her statement under 18 U.S.C. § 3501.          We note
at the outset that the United States concedes, for reasons that we do not
fully comprehend, that Ms. Clarke’s arrest was for violation of federal law
and that it therefore triggered the application of both Fed. R. Crim. P.
5(a),    which requires presentment before a magistrate judge "without
unnecessary delay," and 18 U.S.C. § 3501, which governs the admissibility
of confessions in federal criminal prosecutions.         The United States argues,
however, that the three-month delay between Ms. Clarke’s arrest and her
arraignment (which resulted from the decision to release Ms. Clarke after
the June arrest) does not by itself mandate the suppression of her
statements, but is simply one of several matters that must be considered
in evaluating whether her statements were voluntary.            The United States
further    contends   that   because   it   is   clear   from   this   record   that
Ms. Clarke's statements were voluntary, the district court erred in
suppressing them.      We agree, even assuming that the failure to bring
Ms. Clarke before a magistrate judge was a violation of Fed. R. Crim. P.
5(a).




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      18 U.S.C. § 3501 governs the admissibility of confessions in federal
prosecutions.         It     directs     the     admission    of    "voluntarily      given"
confessions, see § 3501(a),        and requires trial courts to consider all of
the   circumstances        surrounding       a   confession    when       determining    its
voluntariness, see § 3501(b).          The statute enumerates some circumstances
that ought to be considered in making a decision on a motion to suppress,
including (1) the time between the arrest and the arraignment of a
defendant who makes a confession in that interim; (2) whether the defendant
knew of the nature of the offense of which he or she was suspected or
charged at the time he or she made the confession; (3) whether the
defendant was advised or knew that he or she was not required to make any
statements and that if he or she did, any such statements could be used
against    him   or   her;   (4)   whether       the   defendant    was     advised   before
questioning of his or her right to counsel; and (5) whether the defendant
had counsel during questioning and when making his or her confession.                   Id.
The statute also specifically states, however, that the presence or absence
of any one of those circumstances "need not be conclusive" on the issue of
admissibility.    Id.; see also United States v. Pugh, 25 F.3d 669, 675 (8th
Cir. 1994).


      In   Ms.    Clarke’s     case,     a   consideration     of     the    circumstances
surrounding her arrest and interrogation compels us to conclude, as a
matter of law, that her statement should not have been suppressed.                    First,
the district court found, as a factual matter, that Ms. Clarke’s statements
were not coerced.      Specifically, the district court found that Ms. Clarke
was told that she had been arrested for promoting prostitution and was
advised of her Miranda rights, and that she then knowingly waived those
rights before interrogation, giving her statement freely to the detectives
who




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questioned her.     These factual findings have ample support in the record
and, in fact, are not challenged, and we therefore believe that the second,
third, fourth, and fifth considerations enumerated in the statute incline
in favor of admitting Ms. Clarke’s statement.


     Second, because the underlying concern of § 3501 is to ensure that
a suspect’s will is not overborne when making a confession,               see, e.g.,
United States v. Makes Room, 49 F.3d 410, 414 (8th Cir. 1995), we believe
that, for the purposes of Ms. Clarke’s case, the time period relevant to
a consideration of the first statutory factor is the interval between her
arrest and her release.     That is because upon her release she became free
from any possible danger of coercion.          Other than the twelve-hour delay
between Ms. Clarke's arrest and her release, there is no evidence that her
confession was anything other than voluntary, and we do not believe that
a delay of this duration, standing alone, could establish that a suspect's
will was overborne.       In the present case, moreover, the district court
specifically found that there was no evidence that this delay coerced
Ms. Clarke into making her statement.


     Since, therefore, none of the statutory considerations tends to
undermine the voluntariness of Ms. Clarke’s statement, the district court
erred in suppressing it.
                                       IV.
     For   the     foregoing   reasons,   we    reverse    the     district   court's
suppression   of    Ms.   Clarke's   confession   and     remand    for   proceedings
consistent with this opinion.


     A true copy.


           Attest:


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




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