United States v. Roberts (928 F. Supp. 910, 1996)

United States District Court for the Western District of Missouri 1996-06-17

Crimes and Criminal Procedure

Citations

Full opinion text

ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

SMITH, District Judge.

On May 10,1996, the Honorable Robert E. Larsen, United States Magistrate Judge, issued his Report and Recommendation (the “Report”) that determined, inter, that (1) a photo spread shown to Mark Lograsso was impermissibly suggestive, (2) Lograsso’s identification of Defendant lacked independent reliability, (3) Defendant’s arrest was pretextual, (4) Defendant’s arrest was not supported by probable cause, (5) Defendant’s arrest violated Rule 5(a) of the Federal Rules of Criminal Procedure, and (6) all information obtained during Defendant’s detention was the result of coercion. Plaintiff has filed objections to the Report; the Court has reviewed the Report, the motions and responses that preceded the Report, the transcripts of the hearings held by Judge Larsen, and the Plaintiffs objections to the Report. The Court concludes that Judge Larsen’s careful and thorough analysis of the law and his application of the law to the facts of this case are correct, and the Report is therefore adopted as the opinion of this Court. The Court reinforces Judge Larsen’s legal conclusions with the following observations and comments.

Photo Spread

Based upon the record, there appears little doubt that the photo spread was impermissibly suggestive. The fact that Defendant was the only participant in the array that wore a paper suit and spit mask demonstrates this point. Beyond this, the varying ages and hair colors of the photos’ subjects presents additional concerns, particularly in light of the nature of the crime in question and Agent Gasvoda’s testimony that to avoid suggestiveness, one does not want a brunette suspect to be included in an array with only blonde participants. Tr. 295-96. Furthermore, as Judge Larsen aptly stated, suggestiveness of an array “does not depend upon the inventory of pictures the police department happens to have available as filler photos.”

With respect to the identification’s independent reliability, see Neil v. Biggers, 409 U.S. 188, 199-200, 193 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972); United States v. Rundell, 858 F.2d 425, 426-27 (8th Cir.1988), the Court is persuaded that Judge Larsen’s assessment of the identification’s independent reliability is correct. In addition, the Court notes that Lograsso himself stated that he might not have been able to identify the Defendant if all of the women in the photo spread were blondes. Given the witness’ admission that a non-suggestive array might not have resulted in identification of the Defendant, the Court cannot conclude that the witness’ identification has independent reliability.

Probable Cause

There is no need to add anything to Judge Larsen’s discussion of this issue. However, the Court feels compelled to respond to this discussion contained in footnote two of Plaintiffs Objections. The Court concludes that Plaintiffs intimation that it was somehow surprised by the topic of probable cause is not well-taken. The issue was raised at the November 9, 1995 hearing on co-defendant Maude Clarke’s suppression motion. More importantly, prior to this Defendant’s hearing, counsel for Defendant twice declared his intention to raise issues relating to the constitutionality of Defendant’s arrest. Tr. at 3-4, 8. Judge Larsen indicated that he would keep the record open if additional evidence or testimony were needed. Tr. at 8-9. At the conclusion of the hearing, Judge Larsen adhered to his statement at the beginning of the proceeding and kept the record open. Tr. at 331. It does not appear the Plaintiff was blindsided by this issue.

Pretextual Arrest — The 20-Hour Hold

Subsequent to Judge Larsen’s Report and Recommendation, the Supreme Court decided Whren v. United States, — U.S. - — —, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), which held that the test for reasonableness of a search or seizure under the Fourth Amendment is objective and not subjective. The Court does not believe Whren to be applicable to this case because in Whren the defendants were arrested and charged after an allegedly pretextual search; here, the Defendant’s arrest was nothing more than an investigative tool designed to coerce Defendant’s cooperation in Plaintiffs effort to gather evidence. Moreover, the Court notes that Judge Larsen correctly forecasted and utilized an objective standard. Report and Recommendation at 44-45 (“the Court, if presented with the question, would adopt what has been termed the ‘absolute objective approach.’ ”).

The Court also notes that the Plaintiff has directed the Court to an article written by Professor John Scurloek to demonstrate that “the concept of ‘arrest for investigation’ in Missouri has been recognized for many years and the 20-hour rule likewise recognized as part of the practice.” Plaintiffs Objections at 12 n. 8 (citing Scurloek, The Law of Arrest in Missouri, 29 UMKC L.Rev. 117, 127-29 (1961)). To clarify, Professor Scurloek actually stated that “ ‘[ajrrest for investigation’ seems to have become an accepted institution, the legality of which would be beyond doubt if frequency of occurrence were the same as legitimation. But use does not make authority.” Scurloek at 127. Professor Scurloek continued by opining that “[a]n intention that the arrestee shall not be held on a criminal charge or brought before a judge would be manifestly in derogation of the arrestee’s constitutional rights.” Id. at 128. Thus, though there is no “iron-clad rule that the arresting officer must forthwith charge the arrestee with the commission of a determinate crime,” the 20-hour hold was not intended to be an investigatory tool; “the evident design of the Twenty Hour Rule ... is to assure that no one shall be held in extended custody except upon process issued by a judge entailing the presentation of the arrestee before him----” Id. at 128-29. Although officers have obviously interpreted the rule as permitting “the apprehension of an individual for purposes of investigation, with the maximum period for which detention can endure for this purpose set at twenty hours,” this is not what the rule is for. Here, there was never any interest in presenting Defendant to a judge; the sole purpose of the pick-up was to hold Defendant until she either cooperated or twenty hours expired. This is not permissible.

Rule 5(a)

The Court concurs in Judge Larsen’s conclusion that the law enforcement officers were required to, but did not, comply with Rule 5(a). In addition to the authorities relied upon by Judge Larsen, the Court adds the following statement of law as set forth by the Eighth Circuit:

The requirements of [Rule 5(a)] and the teachings of the Supreme Court in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943) and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957) are designed to frustrate law-enforcing officers from detaining the arrested person for an unnecessary period of time to enable the officer to extract a confession from the arrested individual. But this salutary principle is not applicable where the person under arrest is in the custody and under the control of local and not federal officers, unless, of course, the state officers are acting at the direction of or in concert with the federal officers, or there is collaboration between the federal and state authorities.

United States v. Morris, 445 F.2d 1233, 1236 (8th Cir.), cert. denied, 404 U.S. 957, 92 S.Ct. 322, 30 L.Ed.2d 273 (1971) (citing cases) (emphasis added).

Accordingly, the Court grants Defendant’s motion to suppress Lograsso’s identification and all evidence obtained during her detention.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION TO GRANT DEFENDANT’S MOTION TO SUPPRESS PHOTO IDENTIFICATION TESTIMONY AND ALL FRUITS OF THE UNLAWFUL ARREST

LARSEN, United States Magistrate Judge.

Before the court are defendant’s motion and supplemental motion to suppress photo identification testimony on the grounds that (1) the photo spread was impermissibly suggestive, (2) the identifications lacked independent reliability, (3) defendant’s arrest pursuant to a Missouri pick-up order was unconstitutional as it was a pretextual arrest and was not supported by probable cause and all of the fruits thereof are inadmissible, and (4) all evidence obtained during defendant’s investigatory detention was coerced either by use of the Grand Jury subpoena or the length of the detention. I conclude that the photo array was impermissibly suggestive, Lograsso’s identification was not independently reliable, defendant’s arrest was not supported by probable cause, defendant’s arrest pursuant to the Missouri 20-hour hold law was an unlawful pretext for investigative purposes, the government intentionally circumvented procedures in place to protect defendant’s constitutional rights, Rule 5(a) applies to this case because of the working arrangement between the state police and federal agents, the requirements of Rule 5(a) were not met since defendant was never taken before a judge after her arrest, and defendant’s consent to be photographed was the product of coercion. Therefore, defendant’s motion to suppress evidence resulting from her unlawful arrest and detention and the fruits of that unlawful detention should be granted.

I. BACKGROUND

On December 6, 1995, an indictment was returned charging defendant with one count of conspiracy to violate the Travel Act, in violation of 18 U.S.C. § 371, and one count of crossing state lines with intent to carry on a business enterprise involving a prostitution offense, in violation of 18 U.S.C. § 1952(a)(3).

On February 1, 1996, defendant filed a motion to suppress photo identification testimony on the grounds listed above (document number 135). On February 9, 1996, the government filed its motion in opposition (document number 142) stating that “[a]ny singularity of the defendant as depicted in the photospread was not the fault of the law enforcement officers, but was the product of the defendant’s uncooperative and abusive manner and belligerent attitude toward her custodians.” On March 4, 1996, the defendant filed supplemental suggestions in support of her motion (document number 163) arguing that Section 544.170, the statute relied upon by the Missouri police in arresting suspects pursuant to a 20-hour hold, “does not independently authorize arrest, let alone an arrest made for the purpose of gathering evidence for a federal investigation”; defendant’s arrest was pretextual; and defendant’s arrest was not supported by probable cause.

On March 4, 1996, the government filed its supplemental response (document number 164) arguing that photographs and fingerprints are not testimonial in nature and have no fourth amendment protections. Finally, on March 8, 1996, the government filed a second supplemental response (document number 165).

On February 26,1996, an evidentiary hearing was held before me. The defendant was present represented by Phillip Greenfield. The government was represented by Assistant United States Attorney Pat Melnerney. Seven witnesses testified and nine exhibits were admitted. Those witnesses and exhibits were:

1. Detective John Rooney, Kansas City, Missouri Police Department;

2. Officer Rita Olson-Stawicki, Kansas City, Missouri Police Department;

3. Linda Hutson, Kansas City, Missouri Police Department Detention Unit;

4. Detective Doug Panuco, Kansas City, Missouri Police Department;

5. Detective Karl Oakman, Kansas City, Missouri Police Department;

6. Mark Lograsso, a client of MCC Remodeling who paid money for sexual acts by prostitutes;

7. Steve Gasvoda, Special Agent with the United States Secret Service.

P.Ex. 1 Photo lineup of defendant Marilyn Roberts;

P.Ex. 1A One of three photographs taken of defendant Marilyn Roberts by Detective Rooney on June 30,1995;

P.Ex. 2 Photograph from a passport; P.Ex. 3 Credit card receipt of Mark P. Lograsso from MCC Remodeling with “Elizabeth” handwritten on it;

P.Ex. 4 Photocopy of photo lineup with defendant’s picture circled and initialled by Mark Lograsso;

P.Ex. 5 Property slip from the booking procedure;

D.Ex. 4 Report of Agent Gasvoda dated February 8,1996;

D.Ex. 8 Report by Detective Rooney written on the day of the search; and Court’s Ex. 1 Kansas City, Missouri Police Department’s pick-up order on defendant Marilyn Roberts.

II. FINDINGS OF FACT

On the basis of the evidence adduced at the suppression hearing, I submit the following findings of fact:

1. In approximately November 1994 a joint federal-state investigation involving an escort service known as MCC Remodeling began (2Tr. at 12, 140). The investigation involved officers and agents from the United States Secret Service; the Internal Revenue Service; the Bureau of Alcohol, Tobacco and Firearms; the Kansas City, Missouri Police Department; the Johnson County, Kansas Sheriffs Office; and the Mission, Kansas Police Department (2Tr. at 12, 274). The agents and officers had numerous meetings with Assistant United States Attorney Pat Mclnemey during the investigation (2Tr. at 73). State prosecutors had no involvement whatsoever in this investigation (2Tr. at 73, 74, 79). Rather, the investigation was run solely by the Organized Crime Strike Force Unit of the United States Attorney’s Office (2Tr. at 73, 318, 321).

2. From February 1, 1995, until the end of June 1995, pen registers and trap and trace devices in the office of the United States Secret Service monitored telephone lines at the residence of codefendant Maude Clarke and at four escort services listed in the phone book (lTr. at 54-55, 75, 105-106; 2Tr. at 76). The police learned through the telephone company that all of those numbers were either call forwarded or remote call forwarded to Clarke’s residence and were in the names of MCC Remodeling Company or in Clarke’s name (lTr. at 106).

3. Agents learned from the telephone devices that calls would come into Clarke’s residence, often from hotels and motels; and then shortly thereafter, a call would go out of Clarke’s residence to a pager, a mobile phone or a residence of one of the women working for Clarke (lTr. at 107-108, 113). The person phoned would then immediately call Clarke’s residence (lTr. at 108, 113). Approximately one hour later, another call would come into Clarke’s residence from the original number, i.e., the hotel or motel (ITr. at 108, 114). While that party was still on the line, the private line would go off hook, and someone at that number would make a phone call to Visa or Mastercard to verify a credit card (ITr. at 108,114). Finally, either 20, 30 or 60 minutes later, someone at Clarke’s residence would again call the original number (ITr. at 108, 114). This along with surveillance indicated to the police that the final call was a notification that “time was up” (ITr. at 108). From the first part of March through the middle of June, approximately 40,000 calls were made or received at Clarke’s residence (ITr. at 109).

4. The Kansas City, Missouri Police Department conducted trash pick-ups at Clarke’s residence, conducted mobile and stationary surveillance of Clarke, and interviewed some of the suspected clients (ITr. at 104) .

5. Through the trash pick-ups, police recovered documents containing women’s names, amounts of money, and “tips” (ITr. at 105) . The documents also contained names from hotels, directions to a house or motel, deposit slips, and a telephone credit card listed to Maude Clarke d/b/a Affairs D’Amour (ITr. at 105).

6. Physical surveillance of Clarke’s residence was conducted from a nearby apartment rented by the police (ITr. at 110; 2Tr. at 37). Women were seen carrying documents into Clarke’s residence, remaining inside only briefly, then returning to their cars and leaving without the documents (ITr. at 110). Clarke was observed meeting women in various parts of the city. During these meetings, the women would get into Clarke’s car with documents, then get back out of the car without the documents (ITr. at 111). On one occasion, approximately February 22, 1995, a woman believed to be defendant was observed leaving Clarke’s residence late at night and driving to a coffee shop then to a residence at 6611 Barry Road in Kansas (2Tr. at 36, 37, 39). Detective Rooney was not the officer who observed the woman exit the house but he saw her enter and exit the coffee shop (2Tr. at 37, 39). He was, however, unable to identify her (2Tr. at 40). There was no testimony that the woman believed to be defendant was observed delivering documents to Clarke on this day.

7. The police used the license plate numbers of the women dealing with Clarke along with the information obtained from the pen registers to identify women working for Clarke (ITr. at 111). When possible, those women were surveilled leaving their homes and arriving at and leaving the motels and hotels (ITr. at 112). The agent monitoring the pen registers alerted other officers which woman would probably be meeting a client at which hotel, and the other officers attempted to reach the woman’s house before she left in order to follow her to the hotel or motel (ITr. at 112,114). Then, if possible, an undercover officer would follow the woman into the hotel, ride the elevator with her, and follow her to her room in order to learn her room number (ITr. at 112-113). At times, a detective or special agent would conduct a “knock and talk” with the client after the woman had left (ITr. at 115). The officer would knock on the door, identify himself or herself as a law enforcement officer, and ask to speak to the man about what had just occurred (ITr. at 115). The officers were often told by the clients that they had paid with a credit card for sex (ITr. at 115). The credit card receipts provided by the clients showed prices ranging from $185 to $1,700 and listed the merchant as MCC Company (ITr. at 116). The police were able to follow all of these events approximately four to six times (ITr. at 118-119).

8. Federal grand jury subpoenas were used to obtain copies of checks written on the account of MCC Remodeling (ITr. at 117; 2Tr. at 73-74, 318). Checks written to the women suspected of working as prostitutes were recovered (ITr. at 117).

9. On one occasion late at night, defendant’s car was observed arriving at the Holiday Inn on Northeast Parvin Road (2Tr. at 31, 40). A woman believed to be defendant exited the car and walked into the hotel followed by an undercover officer who observed the room defendant entered and timed her visit (2Tr. at 31). Approximately 45 minutes to one hour later, defendant was observed leaving the room, entering her car, and driving to a residence in Kansas (2Tr. at 31). After defendant’s departure from the hotel room, Detective Rooney and Agent Gasvoda went to the room, identified themselves, and obtained a written statement from the “gentleman” who had just participated in the encounter indicating that he had just paid money for sex (2Tr. at 32, 62). Detective Rooney does not remember if the man was asked to give a description of the prostitute (2Tr. at 42). This incident was the only one involving defendant that Detective Rooney personally knew of (2Tr. at 32). Although defendant’s height, appearance and hair coloring were similar to that of the-woman he observed on February 22 at the coffee shop, he was unable to determine whether it was the same woman (2Tr. at 41). No other officer or agent was able to identify the woman as Marilyn Roberts (2Tr. at 43).

10. Sometime prior to June 22,1995, Special Agent Steven Gasvoda of the United States Secret Service, as case agent for this investigation, prepared an affidavit for the purpose of obtaining a warrant to search Clarke’s residence (ITr. at 76, 91). The warrant was obtained on June 21, 1995, from Chief United States Magistrate Judge John Maughmer (2Tr. at 48-49, 74, 319). In addition, a federal temporary restraining order was issued on June 21,1995, to seize Clarke’s real estate and personal property including bank accounts (ITr. at 92; 2Tr. at 319). The temporary stay was issued by U.S. District Judge Joseph E. Stevens, Jr., and the 90-day stay was issued by Chief U.S. District Judge D. Brook Bartlett (ITr. at 92; 2Tr. at 319).

11. Detective Rooney asked Agent Gasvoda about issuing pick-up orders on the suspects in this case (ITr. at 98). Agent Gasvoda consulted with AUSA Pat Mclnerney to find out whether it would be legal and told Detective Rooney that he believed issuing pick-up orders was a good idea tactically and investigatively (ITr. at 98; 2Tr. at 328, 329). AUSA Mclnerney stated that he did not believe there was a problem with issuing the pick-up orders (2Tr. at 328, 330).

12. The purpose of a pick-up is to “bring [the] individual into custody, get them fingerprinted, photographed, see if they want to talk and tell their side of the story before [the police] present the case” (2Tr. at 14). In determining whether to issue a pick-up order, a detective determines whether he or she “has enough information that if we wanted to charge them, we could at that time” (2Tr. at 76). A pick-up gives police “the authority to arrest [people] and bring them down and book them where they would be held for 20 hours” (2Tr. at 15). The federal agents here knew that they are not permitted to arrest people pursuant to a state pickup order, and suspects cannot be arrested on a pick-up order outside of Missouri (2Tr. at 165-166). According to Detective Hernandez, a pick-up is entered in the police computer once an officer believes he or she has enough information and evidence to allow the police to “pick up an individual, hold them for 20 hours’ investigation.” (ITr. at 37). According to Detective Rooney, a pick-up “allows [an] individual to be placed under arrest and taken to Headquarters and be booked for 20 hours.” (ITr. at 38). When an individual is arrested on a “20-hoiir hold,” a detective interviews the arrestee; and then sometime during the 20 hours, the detective “can either present the ease to filing of charges on an individual, or they can release an individual pending further investigation.” (ITr. at 39; 2Tr. at 137-138). With approval of a supervisor, a detective may authorize an individual’s arrest merely by entering a pickup into the computer (ITr. at 67; 2Tr. at 14). The pick-up order does not reflect the probable cause on which it is based (2Tr. at 33). Federal agents here understood that they have no authority to arrest people for an investigative purpose (2Tr. at 325, 326).

13. Approximately one week before the execution of the search warrant, a meeting was held involving AUSA Pat Mclnerney, various federal agents, Sergeant Hargarden and Detective Rooney (2Tr. at 77, 319). During that meeting, it was decided which individuals would be the subject of “pick-up orders” (ITr. at 72, 77).

14. It was decided that federal grand jury subpoenas would be obtained for all of the suspects residing in Kansas in the event they were found in Kansas and refused to voluntarily provide fingerprints and photographs, since Missouri pick-up orders were no good in Kansas and Kansas has no comparabie “20-hour hold” law (ITr. at 65; 2Tr. at 165, 191, 194, 195, 290-291, 320). However, if the Kansas resident was found in Missouri, the officers made the investigative arrests rather than serve the subpoenas (2Tr. at 190-191, 193-194, 291, 293). The police officers were instructed by the United States Secret Service to attempt to get fingerprints, photographs and statements from those individuals who were found in Kansas before actually serving the grand jury subpoenas (2Tr. at 165, 192). The subpoenas were obtained the same time as the search warrant (2Tr. at 190). The pick-up orders were issued the same day the warrant was executed (2Tr. at 48).

15. In issuing the pick-up orders, no one at this meeting intended to present any of these individuals to a state prosecutor (ITr. at 72, 100; 2Tr. at 30, 51, 75, 155, 326, 328). The sole purpose of issuing the pick-up orders was to interrogate the women and obtain photographs and fingerprints (2Tr. at 30, 74-75,154, 290, 291, 326, 328).

16. On June 21, 1995, Sergeant Hargarden, Supervisor of the Kansas City, Missouri Police Department Vice Unit, conducted a strategy session during which it was decided that Detective John Rooney of the Kansas City, Missouri Police Department would enter in the police computer (the ALERT system) pick-up orders the following morning— June 22, 1995 (ITr. at 14, 33, 38, 55, 57). A tactical team was organized to execute the search warrant on Clarke’s residence, and it was decided that detectives from the various police departments would be paired up with agents from the federal agencies to conduct interviews of those individuals who were arrested pursuant to the pick-up orders (ITr. at 39; 2Tr. at 292, 322).

17. At approximately 7:00 a.m. on June 22, 1995, Detective Rooney arrived at the police station to enter pick-ups in the ALERT system on some 14 individuals, including defendant Marilyn Roberts, in connection with the prostitution investigation (ITr. at 37, 39, 52, 55, 64). The pick-ups were issued for “20 hour holds” (2Tr. at 51). At the time he entered the pick-up orders, Detective Rooney knew that it was likely federal charges would be brought as a result of this investigation and that the evidence that would be gathered as a result of these pick-ups would be utilized in a federal investigation (2Tr. at 22). He had not reviewed the affidavit in support of the search warrant which had been prepared by Agent Gasvoda and presented to U.S. Magistrate Judge John Maughmer the preceding day (2Tr. at 49, 58). The pick-up orders were entered prior to the search and were not based on anything found in Clarke’s residence during the search (2Tr. at 55).

18. The search of Clarke’s residence at 907 East 42nd Street began at approximately 8:00 a.m. on June 22, 1995 (2Tr. at 12). The entry team consisted of six officers and one sergeant (ITr. at 56). Detective Rooney arrived at the residence after the entry team had gone into the house (ITr. at 56). There he encountered codefendant Jennifer Hatch-er (2Tr. at 45). He detained her and asked her if she would be willing to talk (2Tr. at 45). She said she would not talk without an attorney present, so Detective Rooney stopped his questioning and took her picture then let her go (2Tr. at 46).

19. If a person arrested pursuant to a pick-up order invokes his or her right to counsel, no questioning is conducted (2Tr. at 55). Further, if arrestees voluntarily give photographs and fingerprints, they are normally released as there is no further reason to hold them (2Tr. at 55).

20. A total of 9 or 10 of the original 14 individuals entered into the ALERT system were actually picked up on June 22, 1995 (ITr. at 64, 65). Those 9 or 10 were taken to various detention units throughout the city in outlying patrol divisions (ITr. at 64). The reason the individuals were separated was the police and agents did not want to give the individuals an opportunity to “get their stories together” (ITr. at 66). Subsequent to being interrogated, the arrestees were transferred to the main detention unit (ITr. at 66). None of these individuals were processed through the state system (ITr. at 69, 99).

21. After the women were interrogated, a detective released them without conferring with the federal prosecutor or with the county prosecutor (2Tr. at 79).

22. Prior to defendant’s arrest, Detective Rooney checked with the Kansas Department of Revenue in an attempt to obtain a driver’s license photograph of defendant (2Tr. at 17).

23. On two occasions after the issuance of the pick-up, Detective Panuco and a Secret Service Agent went to defendant’s residence in Kansas City, Kansas, but were told the first time defendant was out of town and the second time that defendant did not want to talk to them (2Tr. at 143-144) . Approximately 45 minutes after leaving defendant’s residence on the second occasion, they arrived at TWA where they had been told defendant was employed (2Tr. at 144). Someone at TWA verified defendant’s employment but said she was not working that day (2Tr. at 144). On June 29, 1995, Detectives Panuco and Oak-man went to eodefendant Maude Clarke’s residence, saw defendant’s ear parked in front, and set up surveillance (2Tr. at 144-145) . Late that night, they saw two females exit the house, get into Clarke’s car, and drive away (2Tr. at 145). The detectives followed the ear to the Wal-Mart Hypermart located at 9051 Hillcrest Road and saw the women enter the store (2Tr. at 145-146).

24. At approximately 11:19 p.m. on June 29, 1995, Officers Rita Olson-Stawicki and Laura Huggens were in the vicinity of the Wal-Mart Hypermart and were flagged down in the parking lot by Detectives Panuco and Oakman (2Tr. at 83, 84, 95, 147). The detectives advised that a woman had entered the store who was the subject of a pick-up order (2Tr. at 83-84, 95). The detectives handed Officer Olson-Stawicki a photograph (P.Ex. 2) of a passport photograph which had been seized during the search of Clarke’s residence (2Tr. at 84-85, 95,148,161).

25. Detectives Panuco and Oakman did not enter the store to arrest defendant themselves because they were dressed in plain clothes (2Tr. at 86, 147). For safety reasons and to make sure there is no mistake as to the identity of the parties making the arrest, uniformed officers are preferred (2Tr. at 147).

26. Officers Olson-Stawicki and Huggens entered the store and looked for defendant (2Tr. at 86). Officer Olson-Stawicki was able to identify defendant from the photograph, approached her and asked her name (2Tr. at 86-87, 96, 161). After defendant identified herself, Officer Olson-Stawicki advised defendant that she would have to go to police headquarters pursuant to a pick-up order (2Tr. at 87). Defendant was very cordial at the time (2Tr. at 87). She requested that the officers contact Maude Clarke with whom she was shopping (2Tr. at 77). The officers handcuffed defendant, then went to the front of the store and had Clarke paged (2Tr. at 87). At the time Clarke was being told of defendant’s arrest, defendant was still behaving in a cordial manner (2Tr. at 88).

27. Officer Olson-Stawicki took defendant outside the store and placed her in the front seat of the patrol car (2Tr. at 88). At that time, defendant was still behaving OK (2Tr. at 89). Officers Olson-Stawicki and Huggens transported defendant to police headquarters (2Tr. at 89). Detectives Panuco and Oakman followed in their separate vehicle (2Tr. at 150). During the trip, defendant got progressively upset (2Tr. at 90,105). By the tíme the officers turned defendant over to the detention facility officer, which was a little after midnight, defendant appeared to be agitated as she was mumbling things such as “This is a bunch of crap, this is a bunch of shit” (2Tr. at 92, 110). Officer Olson-StawieM went to a nearby room to complete forms (2Tr. at 93).

28. If a detective had been present, defendant’s photograph could have been taken prior to booking while she was still in her street clothes, a procedure which has been used in the past (2Tr. at 121).

29. Although it normally takes anywhere from five to twenty minutes to book an arrestee, Detectives Panuco and Oakman waited on the second floor of the police station for one and one half hours before going up to the eighth floor detention unit to talk to defendant (2Tr. at 150-151,174).

30. Detention facility officer (“DFO”) Linda Hutson began the booking process on defendant by asking her questions about medications, diseases, etc. (2Tr. at 114). Defendant refused to answer each question, stating that she refused to answer until she could talk to her attorney (2Tr. at 114).

31. Because defendant refused to answer any questions, she was placed in a paper suit, which is a shirt and pair of pants made out of paper (2Tr. at 115). Defendant was first taken to a room and was asked to remove her clothes (2Tr. at 116). Defendant was still handcuffed at the time (2Tr. at 116). Defendant cussed at Officer Hutson, so Officer Tina Morales entered the room and held defendant while Officer Hutson stripped her and put the paper clothing on her (2Tr. at 116).

32. From the other room, Officer OlsonStawicki heard a loud “ruckus” from the booking area (2Tr. at 93). She looked out and observed three to four detention facility officers placing leg shackles on defendant (2Tr. at 93, 104-105). Defendant was wearing paper clothes at this time and was still handcuffed (2Tr. at 97).

33. Officer Hutson placed a spit mask on defendant because defendant tried to spit at Officer Hutson and because it was unknown whether defendant had tuberculosis since she had refused to answer the question (2Tr. at 117). The policy of the Kansas City, Missouri Police Department is to put spit masks on arrestees who are uncooperative and “possibly spitting at the officers” (2Tr. at 19). Defendant was placed in detention and held until her release late the next morning (2Tr. at 118). Although defendant requested to make a phone call, she was not allowed to do that (2Tr. at 129).

34. When Detectives Panuco and Oakman arrived in the detention unit, Panuco told Officer Hutson that he was there to talk to defendant (2Tr. at 151, 199). Hutson told Panuco that he might not want to talk to her because they had to restrain her (2Tr. at 151). Detectives Panuco and Oakman were taken to defendant’s cell and introduced themselves (2Tr. at 152). At the time, defendant was wearing a paper suit and a spit mask, was handcuffed to the bars of the cell and was “messed-up looking” (2Tr. at 152). When Detective Panuco asked defendant if she wanted to talk to him, she said she had nothing to say and that she would talk to him in front of her lawyer (2Tr. at 152, 182). Detective Panuco first testified that he interpreted that statement as an invocation of her right to an attorney (2Tr. at 153). A minute later, however, he testified that he did not pass on to Detective Rooney that defendant had requested a lawyer because “She to me didn’t invoke her right to an attorney____ She said she would talk in front — with her lawyer. She says I’ll talk to you in front of my lawyer.” (2Tr. at 153-154).

35. Detective Panuco asked defendant to submit to fingerprinting and photographing but she refused (2Tr. at 176, 178-179). Although he was in possession of a federal grand jury subpoena ordering defendant to do just that on July 25, 1996, he left it at the front desk and did not serve it (2Tr. at 176-177). Detective Panuco told defendant that she could be served a federal subpoena requiring her to be photographed and fingerprinted (2Tr. at 176). His purpose in saying that to defendant was to entice her to voluntarily submit to those things in his custody (2Tr. at 176). Defendant replied, “You don’t look like a subpoena” (2Tr. at 179).

36. That evening, Detective Rooney was notified that defendant had been arrested pursuant to the pick-up order (2Tr. at 16). Several hours later, he received a page from Detective Panuco notifying him that there had been no statement or photograph taken of defendant and that he might want to try again in the morning (2Tr. at 16, 25, 26, 52). Detective Panuco was hopeful that if defendant stayed in custody for another seven or eight hours, she would decide to cooperate (2Tr. at 174-175). He also believed that defendant could not be released until the federal authorities were notified and concurred in the decision to let her go (2Tr. at 175-176).

37. Detective Rooney waited until the next day to go down to the police station to question defendant and obtain her photograph (2Tr. at 16,17-18, 28-30). It is not his normal practice to go to the police station right away when he is notified that someone is arrested because “normally they’re good for 20 hours and you’ve got time left to go down the next day or that afternoon when you come in” (2Tr. at 54).

38. The next morning, on June 30, 1995, Detective Rooney went to the Detention Unit of the police station to obtain photographs of defendant and to see if she wanted to talk (2Tr. at 18). Officer Hutson told Detective Rooney that defendant had stated that she wanted to talk to an attorney regarding the medical questions (2Tr. at 130). Detective Rooney knew at the time that the evidence he would attempt to obtain would be utilized in a federal investigation (2Tr. at 22). When the detention officer delivered defendant to Detective Rooney, defendant was wearing a blue paper suit and a surgical mask, referred to as a spit mask, around her neck (2Tr. at 19, 36).

39. Detective Rooney asked defendant if she wanted to talk (2Tr. at 19). Defendant said she had nothing to say (2Tr. at 19). Detective Rooney told defendant that he needed to take her photograph, and defendant replied that Rooney was not going to take a photograph (2Tr. at 19). Detective Rooney told defendant he could either do it the easy way or do it the hard way and asked her to remove the mask (2Tr. at 19, 48). Defendant replied that if Detective Rooney wanted to take her picture, he would have to “take it the way it was” (2Tr. at 19). She also stated that he was taking her picture against her will to which Detective Rooney replied it was “duly noted” (2Tr. at 48). Although Detective Rooney did not testify that he advised defendant what the hard way was, during the hearing he stated that the “hard way” is where officers hold a suspect still in order to take his or her picture (2Tr. at 19-20).

40. Without having officers hold defendant still, Detective Rooney took three pictures of her (2Tr. at 20). Although he could have, Detective Rooney did not remove the mask from around defendant’s neck because he thought it might agitate the defendant (2Tr. at 35, 48). One of the pictures was given to Special Agent Steve Gasvoda for use in a photo lineup (P.Ex. 1A; 2Tr. at 20-21). One picture was placed in Detective Rooney’s working file and the other was placed in the case file (2Tr. at 21). All three of the pictures looked the same, all showing defendant wearing a blue paper suit and having a spit mask around her neck (2Tr. at 21).

41. The picture that was placed in the photo spread showed defendant with mascara smeared under her eyes, which is not how she appeared when she was arrested (2Tr. at 106). In addition, she appeared to be more fatigued than at the time of her arrest and was “worn-out looking” (2Tr. at 106-107).

42. At detective school, Detective Rooney learned that it is important to try to have photographs of people with similar features when preparing a photo spread (2Tr. at 23-24). He also was aware that photographs showing some people in hospital gowns or paper suits while others are wearing casual clothes can “taint the photo spread” (2Tr. at 24).

43. When presenting a photo spread to a witness, Detective Rooney tells the witness to remember that appearances do change, especially in females because they have a tendency to cut their hair short or wear it a different way and that make-up has a lot to do with it (2Tr. at 42).

44. The photograph of defendant which was used by Officer Olson-Stawicki to locate defendant in the Hypermart store was not used for a lineup because the detectives did not want to take evidence out of the property room, rather they wanted to safekeep it and “preserve its value” (2Tr. at 163).

45. Detective Oakman was responsible for finding filler photographs for the approximately ten photo spreads used on all of the alleged prostitutes (2Tr. at 200, 223). He searched for photographs in several units of the Kansas City, Missouri Police Department (2Tr. at 200). He first gathered all of the available photographs of white females of which there were few (2Tr. at 201). Working with the photos available, Detective Oakman searched through approximately ten photos and from them picked the filler photos for defendant’s photo spread (2Tr. at 202). None of the photographs of white females that Detective Oakman looked at showed the person wearing a spit mask or a paper suit (2Tr. at 202). Because defendant was wearing those two things, it was a “challenge” for Detective Oakman to find photographs which could be used as fillers in this photo spread (2Tr. at 214).

46. Agent Gasvoda collected photographs of white females from the files of the Secret Service and combined them with the ones provided by Detective Oakman (2Tr. at 277-278). He had a total of approximately 100 to 125, and from those he was required to use 75 to complete the number of photo spreads he was preparing (2Tr. at 278). When compiling the photo spread of defendant, he could not find five photos showing women who had similar characteristics (2Tr. at 280-281). In addition, he had no pictures of women who were wearing spit masks (2Tr. at 281). He described the process of putting together this line up with what he had available as difficult (2Tr. at 296).

47. After the photo spreads were prepared by the Secret Service, Detective Oak-man met with a Mark Lograsso at the Secret Service Office to show him the photo lineup containing defendant’s picture (2Tr. at 204, 225). In July 1995, Mr. Lograsso had been told that he was going to be questioned about an escort service called MCC Remodeling, to identify credit card receipts, and to look at photo lineups (2Tr. at 204). Specifically Detective Oakman told Lograsso that he had photo spreads of the “girls” and he would like Lograsso to identify the woman if he could (2Tr. at 205).

48. At the beginning of the interview with Lograsso on July 6, 1995, he relayed to Agent Gasvoda and Detective Oakman the way he had contacted the agency, how the initial contact was set up, the financial transaction, the services performed by the women and the names of the women he paid for (2Tr. at 234-235, 249). On the seven occasions he used the service, Lograsso had sex with women whom he knew as Christie, Krystal, Cherry and Elizabeth (2Tr. at 235, 258).

49. Lograsso was shown four photo spreads during the interview (2Tr. at 237, 238). Although Lograsso was not told that one of the prostitutes was depicted in each spread, he assumed that was the case (2Tr. at 238, 250, 304). It took Lograsso two to three minutes to choose defendant’s photo as the person he knew as Elizabeth with whom he had met once for approximately 30 minutes on May 17, 1995 (2Tr. at 239-240, 245, 246, 247, 258). The process of choosing defendant’s photo included ruling out two pictures — number 2 and number 5 — right away (2Tr. at 240). He ruled out number 5 because she was a brunette (2Tr. at 252). Christie was the only brunette he had been with and did not look like the woman in number 5 at all (2Tr. at 262). Number 2 is obviously older than any of the other women in the spread (P.Ex. 1). Lograsso had not been with any prostitute who appeared to be as old as the woman depicted in photo number 2 (2Tr. at 261). Lograsso described Elizabeth as being around 33 or 34 (2Tr. at 260, 268). He then eliminated number 1 since she looked like his niece and he had not been with any prostitute who looked like his niece (2Tr. at 240, 249-250). He then eliminated number 3 because she looked familiar but not like any of the prostitutes he had been with (2Tr. at 240). That left him with numbers 4 and 6 to choose from (2Tr. at 240, 250). Lograsso thought the mask around defendant’s neck looked strange and did not know why she was wearing it (2Tr. at 242). When he identified number 6 as one of the women he had been with, he was pretty certain although not 100% certain (2Tr. at 243).

50. After Lograsso identified the photo of defendant, he stated, “Why does she look like that? She doesn’t look the same.” (2Tr. at 207, 227, 286, 287). Detective Oakman thought Lograsso was referring to the spit mask and paper suit (2Tr. at 227). Lograsso stated that this photo spread was the hardest one to identify one of the prostitutes from (2Tr. at 244, 253, 269). Lograsso was told by Agent Gasvoda that defendant had been uncooperative, and proceeded to recount for Lograsso the fact that the other women had not put up a struggle and had taken the time to fix their make-up before being photographed (2Tr. at 216-217, 227, 244, 287, 300). Lograsso told Agent Gasvoda that if all the women in the pictures had been blonde, he was not sure if he could have picked out defendant (2Tr. at 252, 304).

51. Mr. Lograsso, who needs corrective lenses, did not wear his glasses while he was engaging in sexual intercourse with the woman he knew as Elizabeth (2Tr. at 248). The lights were dimmed in the bedroom (2Tr. at 267). During the sexual encounter, on a scale of 1 to 10, one being that Lograsso paid no attention to the way Elizabeth appeared and 10 being that Lograsso paid a lot of attention, he rated his attention at a 4 or a 5 (2Tr. at 255). After the sexual encounter, Lograsso put on Ms glasses and talked with Elizabeth as she got cleaned up and dressed (2Tr. at 255). He was also able to observe her when she first arrived (2Tr. at 266). At that time, they discussed the transaction and she telephoned for credit card approval (2Tr. at 265-266). During those few minutes, Lograsso was wearing Ms glasses and was looking at Elizabeth’s face (2Tr. at 265-266).

III. IDENTIFICATION

Defendant argues that the photo spread was impermissibly suggestive and that the identification of her photograph by Mark Lograsso was not independently reliable.

A. IMPERMISSIBLY SUGGESTIVE PHOTO SPREAD

Due process challenges to an out-of-court identification are reviewed by a two part test. Imtially, the court must decide whether the identification procedure was “impermissibly suggestive.” United States v. Johnson, 56 F.3d 947, 953 (8th Cir.1995). If it was, the court must then determine whether, under the totality of the circumstances, the suggestive procedure created a very substantial likelihood of irreparable misidentification. Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 2253-54, 53 L.Ed.2d 140 (1977); United States v. Johnson, 56 F.3d at 953; United States v. Murdock, 928 F.2d 293, 297 (8th Cir.1991). The second part of the test reflects the fact that not all impermissibly suggestive confrontations give rise to a very substantial likelihood of irreparable misidentification. United States v. Henderson, 719 F.2d 934, 936 (8th Cir.1983).

I find that the photo array in this case was impermissibly suggestive. The lineup consists of six photographs. All of the photos depict females, and there is where the similarity of the photos ends. The woman in photo number 1 appears to be either a teenager or in her very early 20s. The woman in photo number 2, however, appears to be at least in her 50s. The women in numbers 1 and 4 have blonde hair, the woman in number 2 has gray hair, the woman in number 3 has red hair, and the woman in number 5 has brown hair. None of the women in pictures 1 through 5 are wearing a paper suit or a spit mask like defendant was wearing when her photograph was taken. Even Detective Oakman testified that having a mask around one’s neck is an important factor in compiling a photo array (2Tr. at 214). Agent Gasvoda testified that the subjects in the photo array should have similar characteristics, “race, hair, and everything, if possible, should be as close as possible.” (2Tr. at 295). During the hearing, the following testimony was presented through Agent Gasvoda:

Q. All right. So you don’t want to have five people that are markedly different in age from the suspect, correct?

A With what you had to work with, yes.

Q. Okay. Well, whether you have it to work with or not, to put together a photo lineup that’s appropriate, you don’t want your filler pictures to be markedly different in age than your suspect. That’s true, isn’t it?

A. Unduly, yes.

Q. And the same thing is true, you wouldn’t want the suspect to be one race, arid all the fillers to be another race, correct?

A. Correct.

Q. You wouldn’t want your suspect to be one hair color, and all your fillers to be another hair color, correct?

A When possible.

Q. Well, whether it’s possible or not ... to meet your test of suggestiveness or non-suggestiveness, you don’t want the suspect to have brunette hair and all the fillers to have blonde, right?

A. Yes.

Q. Okay. Now, you testified that you had a lot of trouble putting together the photo lineup that’s been marked as Exhibit # 1, is that correct?

A. Correct.

Q. And the reason was you could not find, or had difficulty finding photographs that would not make the photograph of the suspect unduly suggestive, isn’t that correct? And you’ve defined that term for me.

A. Yes.

Q. And, as it turned out, you were not completely satisfied with the photo array that you were able to put together, right? It wasn’t as good as you would have liked it to have been.

A. As an optimum, no. I mean, of course, a photo spread could be better, it could be continuously better. Is it the best that I could do? Yes.

(2Tr. at 295-296). Agent Gasvoda later testified that “[T]he fact that I don’t have any other blondes that look like that, I don’t think it’s unduly suggestive [to use a redhead].” (2Tr. at 298). Detective Oakman testified that none of the photographs of white females he looked at showed the person wearing a spit mask or a paper suit (2Tr. at 202).

Whether the photo array is impermissibly suggestive does not depend upon the inventory of pictures the police department happens to have available as filler photos. The individuals in a photo array should be the same race, should possess similar physical features and should be alike in size, age and dress. Salam v. Lockhart, 874 F.2d 525, 529 (8th Cir.1989). In this case, it appears that all of the individuals are the same race. However, they do not have similar physical features and are not alike in age or dress. Indeed, Mr. Lograsso testified that he immediately ruled out numbers 2 and 5 due to age and hair color.

Because the photos in the array used for identification of defendant contained women who did not have similar physical features, hair color and age as defendant, and because defendant was wearing a blue paper suit, a spit mask around her neck and appeared extremely fatigued and “messed-up” with makeup smeared under her eyes, I find that the photo array was impermissibly suggestive.

B. INDEPENDENT RELIABILITY OF IDENTIFICATION

If it is determined that a photo array was impermissibly suggestive, the court must then determine whether, under the totality of the circumstances, the suggestive procedure created a very substantial likelihood of irreparable misidentification. Mamón v. Brathwaite, 432 U.S. at 116, 97 S.Ct. at 2253-54. In determining whether an impermissibly suggestive confrontation creates a very substantial likelihood of irreparable misidentification, the court must weigh five key factors:

1. The witness’s opportunity to view the criminal;

2. The witness’s degree of attention;

3. The accuracy of the witness’s prior description of the defendant;

4. The witness’s level of certainty when identifying the suspect at the confrontation; and

5. The length of time which has elapsed between the crime and the confrontation.

Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382-383, 34 L.Ed.2d 401 (1972); United States v. Rundell, 858 F.2d 425, 426-27 (8th Cir.1988); Hulsey v. Sargent, 821 F.2d 469, 473 n. 5 (8th Cir.), cert. denied, 484 U.S. 930, 108 S.Ct. 299, 98 L.Ed.2d 258 (1987).

In determining whether the identification procedure was impermissibly suggestive, defendant bears the burden of proof by a preponderance of the evidence. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

1. OPPORTUNITY TO VIEW SUSPECT

Mr. Lograsso, who needs corrective lenses, did not wear his glasses while he was engaging in sexual intercourse with the woman he knew as Elizabeth. The lights were dimmed in the bedroom where they were the majority of the time. After the sexual encounter, Lograsso put on his glasses and talked with Elizabeth as she got cleaned up and dressed. He was also able to observe her when she first arrived. At that time, they discussed the transaction and she telephoned for credit card approval. During those few minutes, Lograsso was wearing his glasses and was looking at Elizabeth’s face. Under these circumstances, there were a few minutes when Lograsso had the opportunity to view Elizabeth. However, it is unclear whether he was actually focusing his attention on her face during that brief time.

2. DEGREE OF ATTENTION

Lograsso testified that during the sexual encounter, on a scale of 1 to 10, one being that Lograsso paid no attention to the way Elizabeth appeared and 10 being that Lograsso paid a lot of attention, he rated his attention at a 4 or a 5. Afterward when she was getting cleaned up and they were talking, she was using the bathtub while he stood at the sink cleaning himself. He no doubt was required to spend at least some of that time watching what he was doing rather than staring at the prostitute’s face.

3. ACCURACY OF PRIOR DESCRIPTION

There is absolutely no evidence in this record that Lograsso ever gave a physical description of the prostitute he knew as Elizabeth prior to his viewing the photo arrays.

4. WITNESS’ LEVEL OF CERTAINTY

Lograsso testified that he was “pretty certain although not 100% certain” that the woman in number 6 was a prostitute he had paid for services. He also testified that he assumed the photo array contained the photograph of one of the women he had been with, and that he ■ identified number 6 through a process of elimination. It took him several minutes to choose defendant as one of the prostitutes he had been with, and indicated that this was the most difficult lineup to choose someone from. He told Agent Gasvoda that if all of the women in the array had had blonde hair, he was not sure if he could have picked out defendant.

5. LENGTH OF TIME

The date of the act of prostitution involving Mr. Lograsso occurred on May 17, 1995, and lasted thirty minutes. He was called to the offices of the U.S. Secret Service on July 6,1995, to make the identification. Lograsso had used the escort service on at least seven occasions during a six-month period and had sex with women whom he knew as Christie, Krystal, Cherry and Elizabeth.

Considering the totality of the circumstances, I find that the identification of defendant by Mark Lograsso was not independently reliable. There were only a few minutes of the entire 30-minute encounter during which Lograsso had his glasses on and the two individuals were in a lighted room together. Lograsso was obviously a frequent customer of the escort service and had paid for the services of at least four different prostitutes. Seven months after the initial identification, Lograsso referred to defendant as Sheri rather than Elizabeth, stated that his memory was getting worse with time, but immediately picked out photo number 6 when shown the photo array for a second time (2Tr. at 304-305). Lograsso repeatedly confused defendant with prostitutes named Sheri and others, and was unable to put a name with a face (2Tr. at 305). Lograsso admittedly was not paying much attention to the way the prostitute looked during the encounter which occurred almost two months before his identification, he had never given police an identification of her prior to the photo i.d., was not 100% certain that he had chosen a prostitute, but assumed so since he had eliminated everyone else and was under the assumption that each lineup contained the photograph of one prostitute he had been with. All of these factors indicate that the identification was not independently reliable but was the product of the impermissible suggestive photo array.

Therefore, because the photo array was impermissibly suggestive and because under the totality of the circumstances, the suggestive procedure created a very substantial likelihood of irreparable misidentification, defendant’s motion to suppress on this basis should be granted.

TV. UNCONSTITUTIONAL ARREST

Defendant next argues that her arrest pursuant to a Missouri pick-up order was unconstitutional as it was a pretextual arrest and was not supported by probable cause. I find that the arrest — pursuant to the Missouri 20-hour hold law and admittedly solely for investigative purposes in an investigation run by a federal prosecutor — was without probable cause; the arrest was pretextual, that is, defendant was arrested for the sole purpose of interrogating her and collecting evidence resulting in an unconstitutional arrest; and defendant’s detention violated Federal Rule of Criminal Procedure 5(a) since she was never presented before a judge.

A PROBABLE CAUSE

Defendant argues that her arrest was not supported by probable cause because (1) until her arrest on June 29, 1995, defendant had not been identified as the woman leaving Maude Clarke’s residence on February 22,1995; and even if she had been, there was absolutely nothing criminal about her visit to Clarke on that occasion; and (2) the woman who allegedly engaged in an act of prostitution on March 20, 1995, at the Holiday Inn was not identified as defendant until the day of her arrest.

In its response, the government argues that, after reviewing the 41-page affidavit, Judge Maughmer issued a warrant to search Maude Clarke’s residence. Then:

Some twenty-two hours later, acting on precisely the same information contained in Agent Gasvoda’s affidavit, Detective Rooney entered pick-up orders for all subjects whom the investigation had determined were involved with MCC Remodeling, into the Kansas City, Missouri Police Department’s ALERT system computer, to be distributed metrowide.

Probable cause exists if the facts and circumstances within the arresting officer’s knowledge were sufficient to warrant a prudent person’s belief that the suspect had committed or was committing an offense. Hunter v. Bryant, 502 U.S. 224, 228, 112 S.Ct. 534, 537,116 L.Ed.2d 589 (1991); United States v. Magness, 69 F.3d 872, 874 (8th Cir.1995). Probable cause may be based on the collective knowledge of all law enforcement officers involved in an investigation and need not be based solely upon the information within the knowledge of the officer on the scene. United States v. Home, 4 F.3d 579, 585 (8th Cir.1993), cert. denied, 510 U.S. 1138,114 S.Ct. 1121, 127 L.Ed.2d 430 (1994).

During the evidentiary hearing on codefendant Maude Clarke’s motion to suppress, the government concluded its presentation of evidence without putting -on any evidence of probable cause. After a suggestion that probable cause evidence might be helpful since it was an issue, the government did indeed present that evidence (ITr. at 100-102). At this hearing, held subsequent to the Clarke hearing, the government again failed to put on evidence of probable cause apparently (from the briefs) relying on the affidavit in support of the warrant to search Maude Clarke’s home, which is not in evidence and was not attached to any pleading in this case. During this hearing, defendant referred to what was marked as Defendant’s Exhibit 1 (Request for Indictment) which is the formal report submitted by the United States Secret Service to the United States Attorney’s Office containing 70 pages of information about this investigation. That exhibit was not offered or admitted by anyone; however, in order to make an accurate determination of whether probable cause did exist, I will take judicial notice of that exhibit as well as the affidavit in support of the search warrant.

After reviewing all of that material, I conclude that the police did not have probable cause to arrest defendant Marilyn Roberts on June 29,1995. Following are the portions of D.Ex. 1 and the affidavit in support of the search warrant where defendant Marilyn Roberts is mentioned:

Defendant’s Exhibit 1:

On February 1995, a black Honda CRX was observed arriving at 907 E.