                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 98-3103
                                   ___________

United States of America,            *
                                     *
           Plaintiff-Appellant,      * Appeal from the Untied States District
                                     * Court for the District of Minnesota
                                     *
     v.                              *
                                     *
Skye Renee Davis,                    *
                                     *
           Defendant-Appellee.       *
                                ___________

                            Submitted: December 15, 1998
                                Filed: April 22, 1999
                                    ___________

Before McMILLIAN, LAY, and HALL,1 Circuit Judges.
                            ___________

HALL, Circuit Judge.

       The United States appeals the district court's2 order suppressing a statement
made by Skye Renee Davis to local and federal authorities because it was obtained
in violation of the Fourth Amendment to the U.S. Constitution. The district court


      1
       The Honorable Cynthia Holcomb Hall, United States Circuit Judge for the
Ninth Circuit, sitting by designation.
      2
       The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
suppressed the statement because the officers' delay in presenting Davis to a
magistrate for a determination of whether probable cause supported her warrantless
arrest was for the sole purpose of investigating whether Davis had committed federal
firearm offenses. We have jurisdiction to review the district court's suppression order
pursuant to 18 U.S.C. § 3731, and we affirm.

                                           I.
       On May 2, 1997, Davis reported to the St. Paul, Minnesota, police that several
guns had been stolen from her car. Officer Michael Johnson responded to the report,
and went to Davis' residence to investigate the matter. After hearing Davis' version
of events, however, Johnson revealed to Davis that he doubted the veracity of her
story, and suspected that she was actually involved in the illegal trafficking of
firearms. He informed her that if she did not tell him the truth, he would investigate
his suspicions. Johnson also told Davis that if he uncovered evidence implicating
Davis in illegal activities, she could go to jail and lose custody of her two-year-old
child.

       Davis then admitted that she had just made a false report of theft. In response,
Johnson arrested Davis and took her to the police station to "talk to an investigator
downtown" and to "see what happens from there." Davis was placed in a holding cell
at the police station while Johnson conferred with Sergeant Joe Flaherty. After this
conversation, Johnson had no further involvement in the case, and did not file a
police report documenting his arrest of Davis.

       After a delay of over two hours, Flaherty and Special Agent Catherine Kaminski,
of the Federal Bureau of Alcohol, Tobacco and Firearms, interviewed Davis. Davis
received her proper Miranda warnings, and made a third statement wherein she
confessed to helping her boyfriend illegally traffic in firearms. Davis was not charged
with any crime that day, however, and was released after agreeing to cooperate with



                                          -2-
federal authorities in obtaining evidence against her boyfriend.3 Despite the fact that
she was detained for over two hours before her interview with Flaherty and Kaminski,
administrative booking procedures were never initiated, and Davis was never presented
to a magistrate for a determination of whether probable cause supported her
warrantless arrest by Johnson.

       Kaminski later testified that she thought that Davis' statements to her and
Flaherty constituted probable cause to arrest Davis on federal charges. Kaminski
stated that she knew on the day of the interview with Davis that she would recommend
to the United States Attorney that Davis be prosecuted for federal firearm offenses.
Nonetheless, it was not until nine months later, on February 19, 1998, that the grand
jury returned an indictment alleging that Davis had made false statements to acquire
sixteen firearms, in violation of 18 U.S.C. § 922(a)(6).

      In response to the indictment, Davis moved to suppress, among other statements,
her admission of guilt to Kaminski and Flaherty. Chief Magistrate Judge Franklin
Noel recommended that the statement be suppressed because Davis was not provided
with a prompt judicial determination of probable cause following her arrest. District
Judge John Tunheim adopted the recommendation of the magistrate judge because the
statement "was the product of defendant's being detained for over two hours for the
sole purpose of investigating whether she had committed a federal gun crime."4




      3
        Approximately a month after these events, in June of 1997, Kaminski began
to suspect that Davis had revealed to her boyfriend that she was cooperating with
authorities.
      4
        The district court also adopted the magistrate judge's recommendation to
suppress Davis' admission to Johnson that she had made a false report of stolen
firearms because Johnson had failed to give Davis her Miranda warnings before that
statement was made. The government does not appeal this ruling.

                                         -3-
     The government now appeals the district court's suppression of Davis' statement
to Kaminski and Flaherty.

                                          II.
       We must decide whether the failure to present Davis to a magistrate for a
probable cause determination violated the Fourth Amendment to the U.S. Constitution.
If it did, then Davis' statement to Kaminski and Flaherty was unconstitutionally
obtained. "We review the district court's factual determinations concerning the
detention for clear error; the district court's ultimate conclusion as to whether the
Fourth Amendment was violated is a question of law subject to de novo review."
United States v. Pereira-Munoz, 59 F.3d 788, 791 (8th Cir. 1995).

       We have previously stated that "[t]he fourth amendment requires prompt judicial
determination of probable cause as a prerequisite to an extended restraint on liberty
following an arrest without a warrant." Wayland v. City of Springdale, 933 F.2d 668,
670 (8th Cir. 1991). Importantly, "[a] defendant may be detained only for as long as
it takes to process 'the administrative steps incident to arrest.'" Id. (quoting Gerstein v.
Pugh, 420 U.S. 103, 114 (1975)).

       The Supreme Court has held that "judicial determinations of probable cause
within 48 hours of arrest will, as a general matter, comply with the promptness
requirement of Gerstein." County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991).
Nevertheless, the Court has also made clear that a probable cause determination in a
particular case is not constitutional simply because it was conducted within 48 hours
of arrest. See id. "Such a hearing may . . . violate Gerstein if the arrested individual
can prove that his or her probable cause determination was delayed unreasonably." Id.
Cases establish that a delay may be unreasonable if it is motivated by a desire to
uncover additional evidence to support the arrest or to use the suspect's presence solely
to investigate the suspect's involvement in other crimes. See id.; Willis v. City of
Chicago, 999 F.2d 284, 288-89 (7th Cir. 1993).

                                            -4-
        Here, Davis has met her burden of establishing that her probable cause
determination was unreasonably delayed by police efforts to investigate her possible
involvement in federal gun crimes. In reaching this conclusion, we assume, as did the
district court, that probable cause supported Johnson's initial arrest of Davis, ostensibly
for filing a false police report.5 Nevertheless, the fact that probable cause supported
the initial arrest does not make Davis' subsequent detention constitutional. See
Wayland, 933 F.2d at 669 ("Gerstein may be violated even in situations where
probable cause for the arrest exists.").
        Evidence adduced before the magistrate judge established that Johnson
"detained defendant with the singular intent of investigating further the possibility that
[Davis] . . . had violated federal gun laws."6 Johnson arrested Davis and transported
her not to the jail, but directly to the police station, where she was placed in a holding
cell for over two hours. Johnson never filed any report recording his arrest of Davis
for making a false police report or for committing any other crime. In addition,
booking procedures were never initiated–Davis was never fingerprinted or otherwise
administratively processed. Kaminski's testimony indicates that the sole purpose of
Davis' interrogation was to uncover evidence of federal gun crimes. Davis was not
permitted to leave the station until she had incriminated herself and agreed to assist the
authorities in their investigation. Based on these facts, we cannot say that the district
court committed clear error by concluding that Davis was detained for the sole purpose


      5
       While at the suppression hearing Johnson had difficulty naming any particular
crime that he suspected Davis had committed at the time he arrested her, it appears
from the facts of this case that probable cause existed to find that Davis had made a
false police report to Johnson in violation of Minnesota law. See Minn. Stat. §
609.505.
      6
        For example, Johnson testified that he brought Davis to the police station to
"talk to an investigator downtown and then we'll see what happens from there."
Johnson had previously testified that he had told Davis that he "wanted her to come
with me down to the St. Paul Police Department, that we would talk to an
investigator, and then we'll see at that time where this case goes."

                                           -5-
of investigating whether she had committed other criminal offenses, not to process her
on charges of making a false police report.

       Although Riverside only explicitly stated that delays in probable cause
determinations resulting from police efforts to justify the suspect's original arrest
would be unreasonable, later cases have clarified that this principle applies with equal
force to situations where the delay is based solely on police efforts to investigate
additional crimes in which the suspect might have participated. See id. at 56; Willis,
999 F.2d at 289; see also Kanekoa v. City & County of Honolulu, 879 F.2d 607, 612
(9th Cir. 1989) ("[T]he fourth amendment does not permit the police to detain a suspect
merely to investigate.").

       In Willis, which involved a section 1983 claim, the court found that the suspect
"was detained solely to permit the police to place him in lineups relating to other
uncharged crimes." Willis, 999 F.2d at 288. The court found that Riverside
condemned this action because, as in situations where a suspect is detained to allow
officers to obtain additional evidence to justify their initial arrest, the suspect was
"subjected to unreasonably prolonged custody without judicial scrutiny so that the
police [could] undertake further investigatory steps that require[d] the presence of the
defendant, a presence that cannot properly be required without a prior judicial
determination of probable cause." Id. at 289. Similarly here, Davis was detained only
so that officers could question her about further crimes that she may have committed.7

      7
        We reject the government's attempt to distinguish Willis by relying on the
Seventh Circuit's subsequent decision in United States v. Sholola, 124 F.3d 803 (7th
Cir. 1997). In Sholola, police had arrested the suspect on suspicion of credit card
fraud, but later uncovered evidence of the suspect's involvement in drug trafficking.
See id. at 810. This incriminating evidence was revealed in part by a search of a
locker to which the suspect had consented during the approximately forty hours that
he waited to be presented to a magistrate for a probable cause determination. See id.
at 809-10. The Seventh Circuit rejected the suspect's attempt to suppress evidence
seized from the locker on the grounds that Gerstein had been violated because

                                          -6-
      The government attempts to bolster its position by relying on the relatively brief
period for which Davis was detained–well under three hours. The government points
out that the detention in Willis lasted for forty-five hours. In addition, the Supreme
Court has emphasized that "[i]n evaluating whether the delay in a particular case is
unreasonable . . . courts must allow a substantial degree of flexibility." Riverside, 500
U.S. at 56.

       But the Supreme Court has also indicated that this flexibility is required to
account for the inevitable administrative delays that are necessary to process
individuals before they may be presented to a magistrate for a probable cause
determination. See id. at 56-57; Wayland, 933 F.2d at 670 ("A defendant may be
detained only for as long as it takes to process the administrative steps incident to
arrest.") (internal quotation omitted); Kanekoa, 879 F.2d at 612 (noting that
investigation of a suspect is not an administrative step incident to arrest). Here, there




officers had continued to investigate the suspect before he had been presented to a
magistrate for a probable cause determination.
       Sholola is readily distinguishable from the case at hand. First, nothing we say
today prevents police from investigating a detained suspect on the crime for which
he or she was arrested, or for other unrelated charges, while the suspect is being
booked or waiting for an available magistrate. Here, however, no administrative
processing was ever initiated. Second, Sholola merely held that the suspect had been
unable to meet his burden of rebutting the Riverside 48-hour presumption of
reasonableness. See id. at 819; see also id. at 823 (Wood, J., concurring). Here,
Davis has. Third, the suspect in Sholola was eventually presented to a magistrate for
a probable cause determination on the offense for which he was arrested, unlike
Davis. Fourth, while statements in Sholola could be seen as undercutting Willis,
Sholola expressly noted that its situation was different from that in Willis because
Willis involved an instance where the police "had detained [the suspect] . . . solely
for the purpose of using his physical presence to further investigate other crimes."
Id. at 820 (emphasis removed). That is precisely what happened with Davis in this
case.

                                          -7-
were no such administrative delays–no booking process was ever initiated. Riverside
does not establish a per se rule that an individual may be detained for 48 hours by local
authorities for any purpose whatsoever. Nor does it stand for the proposition that
authorities may violate the Constitution as long as they do so for only a brief period of
time.

       The result we reach today is also entirely consistent with our prior decisions in
Warren v. City of Lincoln, 864 F.2d 1436 (8th Cir. 1989) (en banc) (plurality opinion),
and United States v. Boyer, 574 F.2d 951 (8th Cir. 1978). In both of those cases,
administrative processing provided an adequate explanation for the delay in presenting
the detained individual to a magistrate for a probable cause determination. See
Warren, 864 F.2d at 1442 (noting that delay of two hours and twenty minutes in
presenting the suspect to a magistrate was explained by the fact that during the delay
the suspect was "questioned about his background and activities that night,
fingerprinted, photographed, processed [on the charge for which he was arrested], and
allowed to acquire money with which to post bond"); Boyer, 574 F.2d at 955 & n.10
(permitting admission of statements at trial that were made during an interview that
was conducted before the suspect was presented to a magistrate because the delay was
occasioned by the fact that by the time the suspect was booked, it was too late to obtain
the services of a magistrate until the next morning).

       The police in Boyer did question the suspect about his crime before he was
presented to a magistrate for a probable cause determination. The government seizes
on this fact to argue that the questioning of Davis here was also permissible. But that
aspect of Boyer is irrelevant to our holding today. Police may well have been able to
question Davis about various aspects of her suspected gun trafficking pending
completion of the booking process and location of an available magistrate. What is
objectionable here is that Davis was detained for the sole purpose of enabling local and
federal authorities to interrogate her about other possible crimes that she may have
committed. No process was ever initiated that would have culminated in Davis being

                                          -8-
presented to a magistrate to determine whether probable cause existed to arrest Davis
for filing an allegedly false police report.

      As a result, the district court did not err as a matter of law in finding that Davis'
statement to Kaminski and Flaherty was the product of a Fourth Amendment violation.8
Davis has established that her probable cause determination was unreasonably delayed
by the officers' attempts to investigate her role in additional crimes.9

                                           III.



      8
        We do not decide whether suppression is necessarily the appropriate remedy
for a Gerstein/Riverside violation. The Supreme Court has not decided the issue, and
we decline to do so here because the government did not argue before the district
court that suppression was an improper remedy. See Powell v. Nevada, 511 U.S. 79,
85 n.* (1994) (stating that "[w]hether a suppression remedy applies in . . . [the
Riverside] setting remains an unresolved question," and declining to decide the issue
because it "was not raised, argued, or decided below"); see also Perkins v. Grimes,
161 F.3d 1127, 1130 (8th Cir. 1998); Warren, 864 F.2d at 1439 ("As a general rule,
we do not consider arguments or theories on appeal that were not advanced in the
proceedings below.") (internal quotations omitted). Indeed, the government only asks
that we consider the propriety of suppression insofar as we might direct the district
court to consider the issue if we were to remand the case for further proceedings.
Since we find no error that would justify such a remand, see infra, Part III, we need
not address the matter further.
      9
        In reaching our conclusion, we also reject the government's reliance on United
States v. Clarke, 110 F.3d 612 (8th Cir. 1997), which, as the government concedes,
did not even purport to discuss Riverside. Similarly, we decline the government's
invitation to import 18 U.S.C. § 3501, which addresses the voluntariness of
confessions made while a suspect is in custody but has not yet been presented to a
magistrate, into the Fourth Amendment context. Finally, the delays approved of in
United States v. Alvarez-Sanchez, 511 U.S. 350 (1994), do not affect our analysis
because Alvarez-Sanchez was careful to note that it did not consider these delays in
the context of Riverside. See id. at 360 n.5.

                                           -9-
        The government also claims that the district court erred by refusing to grant the
government a second evidentiary hearing to further explore the circumstances of Davis'
detention. We review the district court's decision to deny an evidentiary hearing for
an abuse of discretion. See United States v. Vig, 167 F.3d 443, 450 (8th Cir. 1999);
United States v. Hiveley, 61 F.3d 1358, 1360 (8th Cir. 1995) (per curiam).
        The government first argues that it had insufficient notice of the fact that the
magistrate judge was considering suppressing Davis' statement to Flaherty and
Kaminski because of a Gerstein violation. But the government was on notice that
Davis was moving to suppress her statements because of alleged constitutional
violations. At the evidentiary hearing before the magistrate judge, Davis testified as
to the length of her detention before she was interrogated by authorities. In addition,
at the close of the hearing, the magistrate judge specifically requested the government's
position as to Davis' right to a probable cause determination on the charge for which
Johnson had arrested her. As a result, we cannot say that the district court abused its
discretion in declining the government's request for an additional evidentiary hearing,
a request that was made only after the magistrate judge had issued his unfavorable
ruling.

      The government also argues that a second evidentiary hearing is required
because insufficient evidence supports the district court's conclusion that Davis was
detained solely for the purposes of investigating additional crimes. Specifically, the
government contends that Flaherty's testimony is vital to ascertaining the reasons for
Davis' incarceration because he was the official who had primary custodial
responsibility for Davis during most of her detention. The government claims that the
testimony of Johnson cannot adequately establish the reasons for the delay in
presenting Davis to a magistrate because he was not involved in Davis' detention after
he delivered her to the police station and placed her in a holding cell.

       The government correctly notes that Johnson's intent in arresting Davis is
irrelevant as long as there is sufficient objective evidence establishing probable cause

                                          -10-
for the arrest. See Whren v. United States, 517 U.S. 806, 813 (1996); United States v.
Clarke, 110 F.3d 612, 614 (8th Cir. 1997) ("In analyzing [defendant's] . . . arrest under
the fourth amendment, we . . . ignore the officers' subjective intentions and focus solely
on the objective question of whether probable cause existed."). Here, probable cause
presumably existed for Johnson to arrest Davis for filing a false police report.

       But the subjective intent of police officers is an appropriate consideration in
evaluating the reasonableness of the delay in presenting a suspect to a judicial officer
for a probable cause determination. See Riverside, 500 U.S. at 56 (examining whether
delay in presentation to magistrate was unreasonable because the delay was "for the
purpose of gathering additional evidence to justify the arrest, . . . motivated by ill will
against the arrested individual, or [represented] delay for delay's sake").

       Johnson's testimony clearly establishes that the delay itself, not the arrest, was
subjectively unreasonable. Johnson testified that he detained Davis and brought her
to the police station so that she could be interrogated by investigators on possible
federal gun crimes. Johnson never attempted to charge defendant for making a false
police report. Instead, Johnson informed Flaherty of his gun trafficking suspicions,
turned defendant over to Flaherty and Kaminski for interrogation on possible firearm
offenses, and left the station without ever filing a report on Davis' arrest. This
evidence, when combined with Kaminski's description of Davis' questioning by her
and Flaherty, provides ample support for the district court's finding that the delay in
presenting Davis for a probable cause determination was unreasonable. The district
court's conclusion is further supported by the fact that no booking procedures were
ever initiated, Davis was never charged with making a false police report, and Davis
was never presented to a magistrate for a probable cause determination.

      While Flaherty's testimony would doubtlessly have been relevant, it was by no
means necessary. If the government thought that his testimony was vital to the court's
inquiry, it could have requested that Flaherty testify at the first evidentiary hearing.

                                           -11-
Indeed, the magistrate judge had already delayed the first hearing once so that Johnson
could be located to offer testimony on the circumstances of Davis' arrest and detention.
There is no indication that the government could not have made a similar request to
obtain Flaherty's attendance at that hearing.



                                         IV.
       The district court properly found that the delay in presenting Davis to a
magistrate for a probable cause determination constituted a violation of the Fourth
Amendment because that delay was for the sole purpose of using Davis' presence to
investigate other crimes with which she might have been involved. The decision of the
district court is AFFIRMED.

A true copy.

  ATTEST:

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




                                         -12-
