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.

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 
-2-

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
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-

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
-4-

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). 
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-

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
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-

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
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-

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
-8-

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

 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-

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.
-10-

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
-11-

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.
-12-

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.