In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3410

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KENNETH L. KIRKLAND,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 07 CR 30137—Michael J. Reagan, Judge.

ARGUED FEBRUARY 23, 2009—DECIDED JUNE 1, 2009

Before EASTERBROOK, Chief Judge, and KANNE and

EVANS, Circuit Judges.

KANNE, Circuit Judge. On the morning of September 2,

2007, officers of the Fairview Heights Police Department

arrested Kenneth Kirkland after a search of his vehicle

revealed crack cocaine. On September 4, Kirkland was

transferred to the custody of the Drug Enforcement

Agency. While in DEA custody, Kirkland made several

inculpatory remarks, and he was arraigned later that

afternoon. On April 30, 2008, Kirkland was convicted of
2 No. 08-3410

possession with intent to distribute fifty grams or more of

cocaine base. He now appeals, arguing that his statements to DEA agents were inadmissible under Federal

Rule of Criminal Procedure 5(a), 18 U.S.C. § 3501(c), and

the Fourth Amendment. Because defense counsel did not

adequately develop these arguments in the district court,

Kirkland has forfeited his right to appeal these issues, and

his conviction will be affirmed.

I. BACKGROUND

In the early morning hours of September 2, 2007, Fairview

Heights police responded to a report of suspicious activity

related to Kenneth Kirkland at the Ramada Inn. A drug

detection dog brought to the scene conducted an exterior

“sniff” of Kirkland’s vehicle and alerted to the presence of

controlled substances. After the positive alert, police

continued to monitor the hotel and Kirkland’s vehicle.

As Kirkland left the Ramada Inn later that morning,

Officer Brian Rogers stopped him for driving with a

cracked windshield and failing to wear his seatbelt. After

Rogers asked Kirkland some initial questions and issued

him a warning for the traffic violations, Sergeant Mike

Origliosso and DEA Task Force Officer (“TFO”) Chris

Modrusic arrived at the scene. Without notifying Kirkland

of his rights, Rogers asked Kirkland to step out of the

vehicle, told him he was free to leave, and asked if he

would answer some questions. Kirkland agreed and gave

consent for Rogers, Origliosso, and Modrusic to search the

vehicle. The search revealed rifle cartridges and crack

cocaine.
No. 08-3410 3

The precise timing of Kirkland’s arrest and transfer to the 1

DEA office is unclear. The warning ticket was issued at 9:31 a.m.

on September 2, and the search and arrest followed. Rigel’s

interview of Kirkland began at 10:10 a.m. on September 4, but

it is unclear how long Kirkland had been at the DEA office.

Although this time frame would be relevant to the forty-eighthour window under County of Riverside v. McLaughlin, 500 U.S.

44 (1991), see infra, we will not reach the merits of this issue and

therefore need not delve into the question of timing.

Kirkland was arrested at around 10:00 that morning. He

was held in police custody until he was transferred to the

DEA’s office on the morning of September 4, approximately forty-eight hours later. TFO Mark Rigel read

Kirkland his Miranda rights, and Kirkland agreed to

speak with him. When Rigel asked if Kirkland wanted 1

to make a written statement, Kirkland responded that

he would accept responsibility for the cocaine. Kirkland

was arraigned before a magistrate judge at approximately 3:00 p.m. that afternoon. He was later indicted for

possession with intent to distribute fifty grams or more

of a mixture or substance containing cocaine base, in

violation of 21 U.S.C. § 841(a)(1).

On November 30, Kirkland filed a motion to suppress

“certain evidence in this matter.” After reciting the

events that occurred while in the custody of the Fairview

Police Department, Kirkland claimed that his detention

was “unreasonable, illegal, unlawful and unconstitutional.” Specifically, he claimed that the length of the

detention was constitutionally unreasonable and that the

police violated the Fourth Amendment by detaining him
4 No. 08-3410

without a reasonable articulable suspicion that he was

involved in criminal activity. He also argued that the

interrogation roadside was coercive and conducted before

he was advised of his constitutional rights under Miranda.

He claimed that all subsequent statements and admissions

were thus tainted by this illegal conduct.

On February 1, 2008, Kirkland filed a memorandum in

support of this motion, in which he repeated his Fourth

Amendment argument and requested that the seized

crack be suppressed. Conspicuously absent from both

the motion and memorandum was any mention whatsoever of the DEA or Kirkland’s statements to TFO Rigel.

On February 28, the court held a suppression hearing.

Defense counsel repeated the arguments made in his

motion and memorandum and added:

Regarding the statements that he ultimately makes

at the DEA office several days later, I believe those

warrant suppression as well, Your Honor, based

upon the fact that he had been in custody for over

48 hours at that point, apparently had not even had

a change of clothing. My understanding is that he

was brought to Court later that day, but not before

being interviewed at the DEA office.

The District Court issued an order on April 15. The

court declined to suppress the physical evidence because

the search was supported by probable cause and was

consensual. However, it held that any statements made

at the side of the road were in violation of Miranda. In

deciding which statements to suppress, the district court

noted:
No. 08-3410 5

[I]n his motion, Kirkland does not specify which

particular statements were unconstitutionally

obtained, and this Court “need not try to fish a

gold coin from a bucket of mud” in determining

which specific statements Kirkland intends to

challenge. United States ex rel. Garst v. LockheedMartin Corp., 328 F.3d 374, 378 (7th Cir. 2003).

Nonetheless, at the hearing, Kirkland referred

specifically to statements he made at the scene . . .

as well as the September 4, 2007[,] statement he

made to Officer Rigel.

United States v. Kirkland, No. 07-CR-30137, 2008 WL

1774602, at *6 (S.D. Ill. Apr. 15, 2008). The court then

determined that, with respect to his statements to TFO

Rigel, Kirkland had received Miranda warnings and

indicated a willingness to speak to officers. Thus, the

court determined that these statements were constitutionally obtained and admissible.

On April 30, following a jury trial, Kirkland was convicted. On September 19, he was sentenced to 240

months’ imprisonment and ten years’ supervised release.

II. ANALYSIS

On appeal, Kirkland argues that he was held for an

unreasonable amount of time prior to being brought before

a magistrate for a probable cause determination. The

Fourth Amendment requires that a defendant receive

a judicial determination of probable cause promptly

after arrest or detention. Gerstein v. Pugh, 420 U.S. 103, 114
6 No. 08-3410

(1975). In County of Riverside v. McLaughlin, 500 U.S. 44, 56

(1991), the Supreme Court held that, absent evidence of

ill will or unreasonable justifications for delay, a judicial

probable cause determination is generally prompt for

purposes of the Fourth Amendment if it occurs within

forty-eight hours after arrest or detention. Where a defendant does not receive a probable cause determination within forty-eight hours, the burden shifts to the

government to justify the delay. Id. at 57.

Similarly, Rule 5(a) of the Federal Rules of Criminal

Procedure requires that a person arrested on a federal

charge be presented to a magistrate judge “without

unnecessary delay.” Even given a delay in presentment,

however, a voluntary confession made within six hours of

arrest remains admissible. 18 U.S.C. § 3501(c). On the other

hand, a voluntary confession made after the six-hour safeharbor period may be inadmissible as a Rule 5(a) violation

and pursuant to McNabb v. United States, 318 U.S. 332, 344-

47 (1943), and Mallory v. United States, 354 U.S. 449, 455-56

(1957). Corley v. United States, 129 S. Ct. 1558, 1571 (2009)

(holding that § 3501 did not supplant McNabb-Mallory and

that “[i]f the confession occurred before presentment and

beyond six hours . . . the court must decide whether

delaying that long was unreasonable or unnecessary under

the McNabb-Mallory cases”).

Time spent in state custody does not generally count

toward § 3501(c)’s six-hour limitation. United States v.

Carter, 910 F.2d 1524, 1528 (7th Cir. 1990). To suppress a

statement in a federal prosecution based on excessive time

spent in state custody, the defendant must establish a clear
No. 08-3410 7

We note that at oral argument, Kirkland conceded that he had 2

forfeited this issue. However, neither of his briefs makes such a

concession. Considering that Kirkland’s briefs both contain

a lengthy Rule 5(a) discussion and that our analysis of this

issue is parallel to the Fourth Amendment inquiry, we will

discuss Kirkland’s forfeiture of both issues together.

“working arrangement between federal agents and state or

local officials.” Id. It is not enough to provide a “bare

suspicion” of such a working arrangement. United States v.

Gaines, 555 F.2d 618, 622 (7th Cir. 1977). Instead, the

defendant must “show that state custody was ‘designingly

utilized’ to circumvent Rule 5(a).” Id. at 625 (quoting United

States v. Chadwick, 415 F.2d 167, 171 (10th Cir. 1969)); see

also Carter, 910 F.2d at 1528.

Kirkland claims that the district court erred in failing

to suppress his confession to TFO Rigel. He argues that

his extended detention before presentment to a magistrate

judge violated Rule 5(a), § 3501(c), and the McNabb-Mallory

line of cases because TFO Modrusic’s involvement in the

state investigation constituted a collusive working arrangement between federal and state authorities. He also 2

claims that the length of time he spent in custody before

receiving a probable cause determination—over forty-eight

hours—violated the Fourth Amendment under Riverside.

For the reasons that follow, we find that Kirkland has

forfeited his right to raise these issues on appeal.

It is well established that a criminal defendant seeking

to suppress evidence must do so prior to trial. See Fed. R.

Crim. P. 12(b)(3)(C); United States v. Brodie, 507 F.3d 527,
8 No. 08-3410

530 (7th Cir. 2007). Under Federal Rule of Criminal Procedure 12(e), “a defendant who does not assert a timely

motion to suppress ‘waives’ the defense.” Brodie, 507

F.3d at 530; see Fed. R. Crim. P. 12(e). We have held that the

term “waiver” in Rule 12(e) encompasses not only the

typical definition of waiver, where a defendant intentionally relinquishes a known right, but also forfeiture,

where a defendant fails to assert a right in a timely

fashion. Brodie, 507 F.3d at 530-31. Thus, we apply Rule

12(e) where a defendant has either waived or forfeited

his right to seek suppression of evidence. See id.

Under ordinary circumstances, waiver precludes appellate review altogether, whereas we review a forfeited

issue for plain error. Id. A forfeited suppression argument

presents a special situation because, under Rule 12(e), “the

defendant must first show good cause for failing to make

that argument in the district court” before we may review

it. United States v. Murdock, 491 F.3d 694, 699 (7th Cir. 2007).

Kirkland does not make a good cause argument, and we

therefore will review his claims only if we find that he

adequately raised them in the district court, i.e., that he did

not forfeit them in the first place. See United States v.

Hargrove, 508 F.3d 445, 450 (7th Cir. 2007) (holding that a

defendant who gave no explanation for his failure to seek

suppression had not made the good cause showing required by Rule 12(e)).

Not only must the defendant move to suppress

evidence to preserve an issue for appeal, but he also

must identify the grounds upon which he believes suppression is warranted. United States v. Pope, 467 F.3d 912,
No. 08-3410 9

919 (5th Cir. 2006); United States v. Dewitt, 946 F.2d 1497,

1502 (10th Cir. 1991); cf. Brodie, 507 F.3d at 531 (“This

court has repeatedly held that there is no good cause to

excuse a Rule 12 forfeiture where a defendant files a

timely motion to suppress on one ground, and later

seeks to assert a new ground for suppression for the

first time on appeal.”). Kirkland maintains that, although

his memoranda did not raise the specific issues he now

appeals, his counsel’s statement at the suppression hearing

was sufficient to preserve them. We disagree.

Near the end of the suppression hearing, defense

counsel requested for the first time that the court

suppress Kirkland’s statements to the DEA. He noted

that Kirkland had been in custody for more than fortyeight hours without a change of clothing. He also stated

that Kirkland had been brought before the court later

that day, but not before being interviewed at the

DEA office. In this context, he did not mention the Fourth

Amendment, Riverside, Rule 5(a), § 3501(c), McNabb,

Mallory, or a “working arrangement” between federal and

state officials. In other words, he failed to develop the

argument with citation to any relevant authority or meaningful discussion. Such a failure results in forfeiture, see

Jarrard v. CDI Telecomm., Inc., 408 F.3d 905, 916 (7th Cir.

2005), because it does not give the government a meaningful opportunity to rebut Kirkland’s claims, nor does it

notify the district court that it needs to address them, see

Pope, 467 F.3d at 919.

We do not demand that a defendant’s argument be a

“model[] of trial advocacy” to avoid forfeiture. United
10 No. 08-3410

States v. Roque-Espinoza, 338 F.3d 724, 727 (7th Cir. 2003).

For example, in Roque-Espinoza, we held that the

defendant did not forfeit his right to raise a due process

challenge on appeal, even though he had failed to label

his argument as such in the court below. See id. In that case,

however, the defendant cited the applicable law, and the

district judge was “plainly able to discern” from the

defendant’s filings which combination of cases formed the

basis of his argument. Id. In contrast, Kirkland’s counsel

did not cite any applicable cases at the suppression hearing, nor did he articulate any of their underlying principles. The district court was, therefore, unable to ascertain

the grounds upon which Kirkland based his argument.

This is evident from the district court’s order, which mentioned counsel’s comments only insofar as they related

to Kirkland’s Miranda argument. For us to rule on these

additional issues when the district court had no opportunity to do so “would run counter to axiomatic

principles of appellate review.” Pope, 467 F.3d at 919.

Perhaps in hindsight we can discern a plausible connection between defense counsel’s comments and the

grounds Kirkland now raises on appeal. After all, counsel

did mention the forty-eight-hour detention and the fact

that Kirkland had not been brought before the court

prior to the interview at the DEA office. But these comments could just as easily have been directed to the

argument in Kirkland’s suppression motion that his

statement was involuntary. Courts “are not in the

business of formulating arguments for the parties,” United

States v. McClellan, 165 F.3d 535, 550 (7th Cir. 1999); it is

defense counsel’s job to develop suppression arguments
No. 08-3410 11

in a meaningful way so that the government has an

adequate opportunity to respond and the district court to

make an informed decision, cf. Pope, 467 F.3d at 919

(holding that forfeiture had occurred where neither the

government nor the district court was put on notice of

the issue). Thus, just as the district court “ ‘need not try

to fish a gold coin from a bucket of mud’ ” in determining

which evidence to suppress, Kirkland, 2008 WL 1774602,

at *6 (quoting Lockheed-Martin Corp., 328 F.3d at 378), it

also need not try to imagine every plausible argument

that could be extracted from an attorney’s comments.

Finally, we also note that defense counsel’s perfunctory

comments were untimely. The district court set a November 28, 2007, deadline for Kirkland’s suppression

motions, and Kirkland’s final reply brief was due on

January 25, 2008. Yet Kirkland did not mention the statement to the DEA until his suppression hearing on

February 28. Not only must the defendant raise a suppression motion prior to trial to avoid waiver or

forfeiture, but he must also comply with any timing

requirements set by the district court. Fed. R. Crim. P.

12(c); see United States v. Mancillas, 183 F.3d 682, 703 (7th

Cir. 1999). If a defendant makes a motion or raises an

argument in an untimely manner, it is within the discretion of the district court to refuse to address it. United

States v. Moralez, 964 F.2d 677, 680-81 (7th Cir. 1992); see

also Mancillas, 183 F.3d at 703-04 (affirming the district

court’s refusal to consider a motion to suppress where

it was raised for the first time at a suppression hearing

that took place after the period set by the court had

ended). Considering that Kirkland gives no explanation
12 No. 08-3410

for his failure to raise these arguments in his initial

motion, it would have been within the district court’s

discretion to refuse to consider them in the first instance. See Mancillas, 183 F.3d at 703-04.

III. CONCLUSION

Defense counsel’s comments at the sentencing hearing

were not sufficiently developed to preserve the issues

Kirkland now raises on appeal. Kirkland has therefore

forfeited his right to appeal these issues under Rule 12(e).

We AFFIRM the judgment of the district court.

6-1-09