                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-2763
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Minnesota.
Ramon Louis Rivera,                      *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: February 9, 2004

                                   Filed: June 3, 2004
                                    ___________

Before MORRIS SHEPPARD ARNOLD, HANSEN, and SMITH, Circuit Judges.
                        ___________

SMITH, Circuit Judge.

      We must determine the constitutionality of a warrantless arrest of Ramon Louis
Rivera and the voluntariness of his custodial statement. Because we conclude that
there was probable cause for Rivera's arrest, that there was no unreasonable delay in
presenting him to a magistrate after arrest, and that his statements were voluntary, we
affirm the district court's1 judgment of conviction for two narcotics offenses. We also
affirm the sentence imposed by the district court.

      1
        The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.
                                      I. Facts
      In February of 2002, Minnesota law-enforcement officers received a tip from
a cooperating individual ("CI") that methamphetamine was being sold by a person
known as "Junior." In response to the tip, officers conducted two successful
controlled purchases of methamphetamine from "Junior," who was later identified as
Brian Peter McQuillan.

      A third scheduled purchase took place on February 27, 2002. Officers observed
a vehicle enter a parking lot near the designated location for the transaction. Two
individuals, McQuillan and Rivera, were in the vehicle. Rivera exited the vehicle,
walked across the street, and entered a Burger King restaurant. While Rivera was in
Burger King, McQuillan drove the vehicle to the Burger King parking lot. Rivera
exited the restaurant and stood at the southeast corner of the building watching
McQuillan and the undercover officer in the parking lot. McQuillan entered the
undercover officer's vehicle and sold 14.6 ounces of methamphetamine.

       At this point, officers moved in to arrest Rivera and McQuillan. Rivera saw the
officers approaching and began walking away from the scene. However, as officers
pursued Rivera he stopped and lay on the ground with his hands out. The officers
performed a pat-down search,2 handcuffed Rivera, and placed him in the back seat of
a police car. While waiting in the vehicle, Rivera voluntarily began talking to the
officers and asking questions about his arrest. Specifically, he inquired about the
potential for securing a "deal" for useful cooperation with authorities. Rivera's
voluntary statements came prior to any police interrogation or Miranda warning. In
response to his inquiry, police simply instructed Rivera to speak with the lead
investigator about the possibility of any "deal."



      2
        No drugs, large sums of cash, or weapons were found on Rivera or in his
flight path.

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       At the jail, Rivera was read his Miranda rights, informed that he was under
arrest, and asked if he was willing to speak with the officers. He agreed. The
interview was tape-recorded (all but the introduction) and lasted approximately
fifteen minutes. Rivera admitted that he had possessed and sold methamphetamine.
He also reiterated his willingness to cooperate with officials. The tape reveals no
threats or promises of leniency as inducements for his cooperation. After consulting
with government officials, the federal charges were deferred pending Rivera's
cooperation in further investigations of his drug source.

      Rivera was released and was given a recorder to tape a conversation with his
drug source. The first attempt to contact his drug source (Gordo) failed, and Rivera
was instructed to keep in contact with the officers on a daily basis. However, Rivera
did not contact the officers, and there was no other contact with law enforcement until
Rivera was apprehended approximately one year later.

      On March 20, 2002, a grand jury returned a two-count indictment charging
Rivera and McQuillan with conspiracy to possess with the intent to deliver
methamphetamine, and with possessing with the intent to deliver methamphetamine.
Rivera filed pretrial motions challenging the constitutionality of his February 27,
2002, warrantless arrest, his confession, and the delay in presenting him to a
magistrate after his arrest. Each of these motions was denied. After a bench trial,
Rivera was found guilty on each count charged.

      At sentencing, the government requested an obstruction of justice enhancement
based on Rivera's testimony at the motions hearing. Rivera requested a reduction for
acceptance of responsibility. The district court denied both motions and sentenced
Rivera to 168 months' imprisonment. This appeal followed.




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                                     II. Discussion
                                 A. Probable Cause
      The first issue we address is whether the officers had probable cause to arrest
Rivera. Probable cause for an arrest exists if, at the moment the arrest was made, the
facts and circumstances within the officers' knowledge and of which they had
reasonably trustworthy information were sufficient to warrant a prudent person in
believing that an offense has been committed. United States v. Wajda, 810 F.2d 754,
758 (8th Cir. 1987). We evaluate probable cause not from the perspective of an
omniscient observer, but on the facts as they would have appeared to a reasonable
person in the position of the arresting officer. Id.

       We believe there was probable cause for Rivera's arrest. On the day of his
arrest, officers observed Rivera in McQuillan's Grand Am–the same vehicle used in
the two initial controlled buys. After a couple of minutes, Rivera exited the vehicle
and walked across the street to the Burger King lot. Moments later, McQuillan drove
the Grand Am to the Burger King lot and parked next to the undercover vehicle. At
this point, Rivera came out of the restaurant and surveilled the entire parking-lot area
during the meeting. When officers converged on the scene, he suspiciously departed
from his location, heading away from the police.

       Based upon these facts, a reasonably prudent person could conclude that Rivera
was a participant in the methamphetamine sale. His actions and behavior, although
perhaps seemingly innocuous to the general public, were reasonably suspicious to
officers trained to recognize behaviors consistent with those of a lookout for a drug
deal. As such, we find there was probable cause for Rivera's arrest. Therefore, the
district court properly denied his motion to suppress.

                      B. Suppression of Interview Statement
     Rivera next claims that the statement he made to officers following his arrest
was conditionally offered in exchange for a promise of leniency. He urges us to

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suppress this statement because it was taken in contravention of his constitutional
rights. The government responds that Rivera gave his statement willingly and
voluntarily, was not coerced, and acknowledged that he was not threatened. United
States v. Reinholz, 245 F.3d 765, 779–781 (8th Cir. 2001). We agree.

       Police read Rivera his Miranda rights, and he acknowledged understanding of
those rights. The record reflects that he fully understood the questions presented. The
record does not show that he was either threatened or promised freedom in exchange
for his cooperation. Rivera presents no facts consistent with coercion. Further, Rivera
contends that police promised him leniency, but he makes no showing that his
cooperation was not voluntary. Indeed, Rivera initiated much of the contact and
conversation with the officers–he was eager to cooperate, and his free will was not
overborne. We see no basis to support suppression of the evidence. Finding no
constitutional infirmity, we affirm the district court's refusal to suppress Rivera's
interview statement.

                                 C. Court Appearance
       Rivera next takes issue with the time that elapsed before he was presented to
a judicial officer for a probable-cause hearing. He asks us to suppress his statement
and other evidence as a result of the alleged unreasonable delay in presenting him to
a magistrate for a hearing on whether there was sufficient probable cause to justify
his warrantless arrest.

       A person taken into custody without a warrant is constitutionally guaranteed
a hearing on the propriety of the warrantless arrest. The Fourth Amendment requires
that a procedure exist whereby a judicial officer can make a "fair and reliable
determination of probable cause as a condition for any significant pretrial restraint of
liberty." Gerstein v. Pugh, 420 U.S. 103, 125 (1975). And, as noted by Rivera, we
have previously concluded that even a time-period of two hours could be too long.
In United States v. Davis, 174 F.3d 941 (8th Cir. 1999), Davis was in a holding cell

                                          -5-
for two hours; no booking procedures were initiated; Davis was not finger-printed;
and no police report was filed. We concluded that "Davis was detained for the sole
purpose of investigating whether she had committed other criminal offenses," and not
for the purpose of processing her on the arrest charges. Id. at 944–945.

       However, unlike Davis, Rivera was taken to the county jail, formally booked,
and finger-printed. Although he was subject to an overnight detention, this detention
was reasonable considering his late-evening arrest and his desire to cooperate. This
overnight stay allowed officers to consult with government attorneys regarding
Rivera's expressed desire to cooperate with authorities. The record shows that Rivera
chose to cooperate and that the detention was not a charade conducted for the sole
purpose of investigating Rivera's other crimes. Accordingly, we find no constitutional
violation and affirm the district court's suppression denial.

                          D. Acceptance of Responsibility
       Lastly, Rivera argues that the district court erred in its decision to deny an
acceptance of responsibility reduction during sentencing. The burden of
demonstrating–by affirmative conduct–that Rivera did indeed accept responsibility
rests solely on Rivera. United States v. Janis, 71 F.3d 308, 310 (8th Cir. 1995). We
will not disturb the district court's determination that Rivera failed to carry this
burden unless it is clearly erroneous. United States v. Arellano, 291 F.3d 1032,
1034–35 (8th Cir. 2002).

       Rivera claims that his willingness to enter a conditional plea and to waive his
right to a jury trial established his entitlement to the two-level reduction. He argues
that he did not contest the essential factual elements of his guilt, but put the
government to its burden of proof solely to preserve his appeal rights for suppression
of evidence. In fact, Rivera did admit–during his presentence interview–that he
provided a pound of methamphetamine to McQuillan, that he knew it was going to
be sold, and that he paid $5,000 for the methamphetamine and sold it for $6,500.

                                         -6-
       However, Rivera never stipulated to his conduct. Instead, he stipulated to the
record of the motions and hearing in which he stated his confession was coerced.
Further, Rivera notified the government of his decision to accept a bench trial one
business day before his scheduled jury trial. Thus, the government had fully prepared
its case and arranged witness travel. Also, Rivera did not stipulate to the authenticity
of the methamphetamine. The government was required to offer a chemist's report
into evidence to authenticate the drug. Rivera also continued to file motions in
preparation for trial until the business day before trial.

      Application note 2 to U.S.S.G. § 3E1.1. states, "In rare situations a defendant
may clearly demonstrate an acceptance of responsibility for his criminal conduct even
though he exercises his constitutional right to trial. This may occur for example,
where a defendant goes to trial to assert and preserve issues that do not relate to
factual guilt (e.g. to make a constitutional challenge to a statute or a challenge to the
applicability of a statute to his conduct). In each such instance, however, a
determination that a defendant has accepted responsibility will be based primarily
upon pre-trial statements and conduct."

       Rivera's single pre-trial statement contended that his confession was coerced
and not voluntary. Rivera's other conduct, primarily requiring the government to
prove its case at trial, is inconsistent with an acceptance of responsibility. Therefore,
we affirm the district court's determination that Rivera failed to establish his
entitlement to an adjustment under § 3E1.1.

      For the foregoing reasons, the judgment of the district court is affirmed in all
respects.
                      ______________________________




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