REVISED, June 28, 1999

                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT
                        ____________________

                              No. 97-50904
                          ____________________

                    UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                  versus

                            JASON W. MULLIN,

                                                      Defendant-Appellant.

_________________________________________________________________

           Appeal from the United States District Court
                 for the Western District of Texas

_________________________________________________________________
                          June 10, 1999

Before GARWOOD, BARKSDALE and BENAVIDES, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

     Military Police having arrested Jason W. Mullin, a civilian,

after seeing him commit a crime at an open military base, primarily

at issue is the legality of Mullin’s subsequent interrogation and

21-hour detention   by    the   Military     Police   prior   to   his   being

released to local police.       We AFFIRM.

                                    I.

     In April 1996, Military Police were investigating a number of

break-in burglaries of vehicles at a parking lot at Fort Hood,

Texas.   Fort Hood is an open post; in general, persons can enter

freely without restrictions.

                                    -1-
     At   8:00   p.m.   on   2   April,    Military   Policemen   conducting

surveillance of the parking lot observed Mullin and a female

attempting to break into an automobile.               The female was later

identified as Mullin’s sister, Teresa Bronner, a private in the

United States Army, who was stationed at Fort Hood but had an

apartment in the adjoining city of Killeen, Texas.

     When Military Policemen approached Mullin, he fled.                They

apprehended him shortly thereafter and took him to the Military

Police station at Fort Hood.

     Bronner, who remained in her vehicle as Mullin fled, was

apprehended and taken to the Military Police station; her vehicle

was impounded. She was read her rights, requested an attorney, was

released to her unit, and was placed on barracks restriction.

     At the station, Mullin told the Military Police that he was

“Jason J. Boe”, age 16 and homeless.          When Sergeant Hatfield, who

was investigating the burglaries, arrived, he told Mullin that he

was a military police investigator; displayed his credentials; and,

prior to questioning Mullin, advised him of his rights, using the

section for civilian suspects on the military’s rights warning

form. Mullin responded that he understood those rights and did not

request a lawyer.




                                     -2-
      Sergeant Hatfield talked to Mullin about the incident that

evening, other break-ins, and the misuse of a bank debit card taken

during one of them.        When the card misuse occurred, the bank

automatic teller machine photographed the perpetrator.                Sergeant

Hatfield showed the photograph to Mullin, noting that the person

pictured was dressed identically to Mullin.

      Because Mullin claimed to be 16, Sergeant Hatfield contacted

the Texas Child Protective Services Agency; it refused to assist

because the Military Police could not establish Mullin’s identity

or age. Sergeant Hatfield contacted the Bell County Juvenile

Detention Center; it refused custody.         And, the Sergeant contacted

the   local   police   (Killeen,    Texas),     knowing   that      they   were

investigating the debit card misuse; the police declined custody.

      At 12:30 a.m. on 3 April, approximately four hours after his

arrest, Mullin gave a written statement (still using the name

“Jason Boe”),    stating   that    he   had   broken   into   two    vehicles,

including the one witnessed by the Military Police; that he took

the debit card from the first of the two vehicles; that a different

female had helped in the first burglary; that Bronner was unaware

of, and had nothing to do with, the other break-ins; that he did

not know her last name or address and had met her at a store.




                                    -3-
     When Sergeant Hatfield ended the interview after 12:30 a.m.,

he instructed the watch manager that Mullin was a juvenile; that he

was to be placed in a detention cell with the door open at all

times; and that he was to have the opportunity to rest while the

Military Police continued their investigation.    The open cell had

a restroom, a sink, and a shower.

     The Military Police next searched Bronner’s impounded vehicle.

They discovered photographs of Mullin and Bronner, which indicated

that he had known her for more than the claimed 24-hour period.

     Around 1:30-2:00 a.m., Sergeant Hatfield returned to the

station, had Mullin escorted back to the interview room, and

readvised him of his rights.        When confronted with the newly

discovered photographs, Mullin stated that he had known Bronner for

two or three weeks; that she had been involved in the burglaries;

and that property stolen from the vehicles could be found in

Bronner’s apartment.   Mullin continued to lie about his identity

and age.

     At 2:30 a.m., Sergeant Hatfield obtained Bronner’s consent to

search her apartment in Killeen.    There, the Military Police found

items stolen in the burglaries and Mullin’s wallet, which provided

his true identity.




                               -4-
     At approximately 6:30 a.m., following the apartment search,

Sergeant Hatfield again retrieved Mullin from the detention cell

and readvised him of his rights, using Mullin’s actual name.

Mullin stated again that he understood his rights and did not

request an attorney.      Mullin gave his true identity and admitted

that he and his sister, Bronner, were involved in the burglaries.

     Mullin gave a second written statement around 7:00 a.m.,

admitting that: he worked with his sister on the vehicle break-ins;

they used the stolen debit card to obtain cash; they kept the

stolen property in Bronner’s apartment; and he had lied in his

earlier written statement.

     Finally having confirmed Mullin’s identity, Sergeant Hatfield

conducted a criminal history check and discovered that Mullin was

a convicted felon in California, on probation for assault with a

deadly weapon.     Sergeant Hatfield contacted California authorities

to discuss extradition; but, they advised that “the bond was not

high enough for extradition”.          Accordingly, Sergeant Hatfield

concluded   that    he   could   not   release   Mullin   to   California

authorities.

     Later that morning, the Military Police provided the debit

card evidence to the Killeen police.       That afternoon, around 5:30




                                   -5-
p.m., Mullin was turned over to them pursuant to a Texas arrest

warrant for debit card misuse.

     Following the state court charge, Mullin was charged in

federal    district      court    in    November       1996   with   the   following

misdemeanor offenses within the jurisdiction of the United States

at Fort Hood:      conspiracy with Bronner to commit theft of personal

property, 18 U.S.C. § 371 (count 1); such theft from vehicles, 18

U.S.C. § 661 (counts 2, 3, 4, and 5); and knowingly entering Fort

Hood for the purpose of committing such theft, 18 U.S.C. § 1382

(count 6).

     After seeking unsuccessfully to suppress evidence (including

the statements at issue here), followed by a jury trial before a

magistrate judge, see 18 U.S.C. § 3401, Mullin was found guilty on

all six counts.      He was sentenced to concurrent terms of ten months

imprisonment on counts 1 through 5, and to a consecutive term of

six months imprisonment on count 6.               The district court affirmed.

Mullin    began    serving     his     federal    sentence     in    February   1999,

following incarceration on his state sentence.

                                          II.

     Mullin       does   not     challenge       his   conviction     on   count   5,

pertaining to the 2 April break-in observed by the Military Police.

But, for the other five counts, he challenges his convictions,


                                          -6-
claiming that, on three alternative grounds, his statements given

the Military Police were inadmissible: the Military Police lacked

authority to detain and interrogate him; the statements were not

voluntary; and his arrest violated the Posse Comitatus Act.

                                 A.

     Regarding the authority of the Military Police to arrest,

detain, and question him, Mullin maintains that, on these facts,

Military Police had only “citizen’s arrest” authority; and asserts

that, accordingly, after the Military Police observed the break-in

and properly arrested him, they should have surrendered him to

civil authorities immediately.

                                 1.

     Acknowledging that there is no express statutory authority for

the arrest at issue, the Government claims it can be inferred from

the trespass statute Mullin was convicted under on count 6, 18

U.S.C. § 1382, discussed infra.        The Government’s contention is

less than half-hearted.   We need not decide whether, on the facts

before us, Military Police had statutory authority to arrest

Mullin; at the very least, they could make a citizen’s arrest.     As

noted, Mullin concedes this.

     The Texas Code of Criminal Procedure states:

          A peace officer or any other person, may,
          without a warrant, arrest an offender when the

                                 -7-
            offense is committed in his presence or within
            his view, if the offense is one classed as a
            felony or as an offense against the public
            peace.

TEX. CODE CRIM. PRO.   art.   14.01   (West   1979)    (emphasis   added).

Restated,   although   Military   Police   are   not   designated   peace

officers under TEX. CODE CRIM. PROC. art. 2.12, they can make an

arrest when Texas law authorizes such an arrest by a “private

person”. See United States v. Johnson, 

, 313 (5th Cir.

1987) (discussing such authority concerning federal secret service

agents); United States v. Garcia, 

, 1093 n.22 (5th

Cir. 1982), vacated on other grounds, 

(1983) (“Of

course, an employee of the Parks and Wildlife Department may, like

any other private citizen, effect a citizen’s arrest.          A private

citizen may arrest without warrant a person who has committed a

felony or offense against the peace in the arresting person’s

presence or within his or her view”); Sanchez v. State, 

, 815 (Tex. Crim. App. 1979) (federal border patrol agent could

arrest individual for public drunkenness when Texas law authorizes

such an arrest by a private citizen).

     In this regard, counsel for Mullin stated at oral argument

that, because the Military Police observed Mullin breaking into a

vehicle, they had probable cause to arrest him; that the arrest was

proper; and that this is the reason why, as noted, he is not

                                  -8-
challenging his conviction for the observed break-in (count 5).

See 

.

                                      2.

      In support of his claim that, following his arrest, he should

have been turned over immediately to civil (state or federal)

authorities, and that, therefore, the Military Police lacked the

authority to interrogate or further detain him, Mullin relies

primarily on Alexander v. United States, 

(5th Cir.

1968), which involved an investigation by postal inspectors of a

postal employee.      The inspectors misled the employee as to the

purpose of their investigation, extracted a confession, and then

told the employee to report back to the office the following day.

  Our   court   held    that   the   statements   were   not

voluntary:

            We are not reviewing the actions of one
            specifically authorized to protect the public.
            The inspectors’ chameleonic tactics, i.e.,
            arresting as federal officers and claiming
            legality as state citizens, cannot vest them
            with more rights than those granted by the
            Texas statutes. These statutes are careful in
            prescribing safeguards which must be respected
            in a citizens’ arrest, and rigid compliance
            must be required when citizens detain others
            for what may constitute even a putative
            arrest.




                                     -9-


  Mullin asserts that this means that detention and

interrogation    by   persons   vested   only   with   citizen’s   arrest

authority (such as the Military Police here) is improper.

      Relying on Kennedy v. United States, 

, 1123

(D.S.C. 1984), the magistrate judge rejected this argument, stating

that “the Military police are law enforcement officers who possess

the power to make arrest for violations of Federal law”.              In

affirming, the district court relied instead on United States v.

Banks, 

(9th Cir.), cert. denied, 

(1976).

      Kennedy was an action under the Federal Tort Claims Act (FTCA)

concerning an arrest by Military Police. In addressing whether the

Military Police were “persons with the power ‘to make arrest for

violations of Federal Law’”, 

(quoting

28 U.S.C. § 2680(h)), the court stated:

           Military police are law enforcement officers
           who   possess   power  to   make   arrest for
           violations of Federal law.         While they
           normally    confine   their    activities  to
           enforcement of military law, they do possess
           all powers that civilian law enforcement
           officers have, on military property. See Army
           Regulation 210-10 paras. 2-9; Army Regulation
           600-40 para. 3.

of the cited Army Regulations stated that, on

military property, Military Police have the same powers as civil


                                  -10-
law enforcement officers.     Along this line, Army Regulations are

not cited here by the Government.

     Likewise,    the   precedent    used   by   the   district   court   in

affirming Mullin’s convictions, Banks, is distinguishable because

“[t]he arrest [in Banks] followed a search, made pursuant to a

warrant for the search of the room [in the barracks] and the

persons found there issued by the base commander”.         

.   Additionally, an affidavit by an investigator provided the

probable cause for the search warrant.           

Ninth

Circuit relied upon the Air Force’s interpretation of the earlier-

referenced 18 U.S.C. § 1382 (proscribes entering a military base

for an unlawful purpose) as authorizing the detention of civilians

who commit crimes on military bases.        

n.2.    In the case

at hand, there was no warrant authorizing Mullin’s arrest; as

noted, no Army Regulation interpreting § 1382 in a comparable

manner has been identified; and, as also noted, § 1382 does not, on

its face, authorize the arrest and detention of civilians.

     This notwithstanding, the Military Police acted legally in

questioning and otherwise detaining Mullin.            Title 10 U.S.C. §

809(e) provides a framework for when members of the military may

make arrests.    It states generally that arrests may be made when an

order to arrest has been given and there is probable cause to


                                    -11-
arrest.   See § 809(a)-(d).      However, as noted by the Ninth Circuit

in Banks, § 809(e) provides that “[n]othing in this article limits

the authority of persons authorized to apprehend offenders to

secure the custody of an alleged offender until proper authority

may be notified”.

     Alexander, on which Mullin relies, is easily distinguishable.

There, although the postal inspectors were investigating a crime,

they misled Alexander as to the purpose of the investigation when

questioning him and gaining his consent to search.           

.

     The case at hand is quite different.             The Military Police

witnessed Mullin committing a crime on military property.                He was

never misled regarding the purpose of his detention or questioning.

Unlike Alexander, where our court expressed concern regarding

“detention, interrogation, and trickery by every self-appointed

detective”,    

  the    Military   Police   were   not   using

deception to investigate a crime, but were questioning a subject

they had witnessed committing a crime on the military base similar

in nature to several other recent crimes there.




                                       -12-
      Our court has affirmed the legality of similar arrests,

detentions, and interrogations.1          In 

,

federal secret service agents arrested the defendant in Texas based

on   an   outstanding    California   arrest   warrant.         “Immediately

following the arrest, secret service agents took Johnson into

federal    custody,     searched   him,    questioned     him    about   his

counterfeiting activities, and inventoried his car.” 

   Regarding Johnson’s challenge to the lawfulness of his

arrest, our court affirmed, based on the fact that the agents acted

upon reasonable information that Johnson had a felony charge in

California, thus rendering the arrest a valid citizen’s arrest


      1
      It is unclear whether Mullin challenges the introduction of
evidence discovered in the searches performed by the Military
Police (i.e., the search of Mullin when he was initially arrested,
and the searches of Bronner’s vehicle and apartment). At one point
in his brief, Mullin states that the Military Police “did not have
the authority to arrest, jail, question, and search [Mullin]”.
However, he does not make any further arguments in his brief
specifically in regard to the evidence from the searches.       Of
course, arguments not briefed are deemed waived. See, e.g., Hidden
Oaks Ltd. v. City of Austin, 

, 1045 (5th Cir. 1998).

     Further, we note that Texas courts have allowed the
introduction into evidence of items seized as the result of a
lawful citizen’s arrest. See Burkett v. State, 

, 346
(Tex. Ct. App. 1988) (affirming trial court’s decision to admit
evidence regarding items found on defendant’s person following
lawful citizen’s arrest); Douglas v. State, 

, 820
(Tex. Ct. App. 1985) (same).       Also, Texas Code of Criminal
Procedure article 18.16 states that private citizens may seize
stolen property from the alleged offender if there is “reasonable
ground to suppose the property to be stolen”. Finally, the Fourth
Amendment does not require the suppression of evidence taken
illegally by private citizens. Burdeau v. McDowell, 

,
475 (1921); see also 

.

                                   -13-
under Texas law.       

    See also United States v. Chapman,

, 926 (5th Cir. 1969) (arrest and seizure of evidence

by postal inspectors was valid Florida citizen’s arrest because

they acted on “credible information”).

      Moreover,      Texas   cases    indicate   that   the   actions   of    the

Military Police did not exceed their citizen’s arrest authority.

In Turner v. State, 

, 770 (Tx. Ct. App. 1995), “two

armed security guards compelled all of the men to get out of the

vehicle, took the gun from the glove box, patted the men down for

other weapons, took their identification, questioned them further,

and   called   the    sheriff’s      office”.    (Emphasis    added.)        This

citizen’s arrest was held lawful.          

  See also Douglas v.

State, 

, 819 (Tex. Ct. App. 1985).

      Therefore, the Military Police acted reasonably and within the

bounds of Texas citizen’s arrest authority.2             Mullin, for obvious

reasons, does not maintain that, after he was seen committing a



      2
      Alexander may imply that suppression is proper where state
officers exceed their authority under state law, even though they
did not otherwise violate the Fourth Amendment, as where an arrest
is made on probable cause but without a warrant required by state
law. In this respect, Alexander relies on United States v. Di Re,

(1948). See 

. However,
we have held that Di Re was superceded by subsequent Supreme Court
decisions. See United States v. Walker, 960 F2d 409, 415-16 (5th
Cir. 1992). Consequently, such an implication from Alexander is
likely no longer appropriate. In any event, we need not address
that question, because, as stated, the Military Police did not
exceed their Texas citizen’s arrest authority.

                                       -14-
crime, the Military Police should have simply escorted him off the

post and released him.       Instead, he contends that they should have

released him immediately to federal or state civil authorities.

But, how could they do that without at least knowing his identity

and age?    He lied immediately about that.      And, his lie that he was

a juvenile delayed the necessary interrogation process and his

ultimate release to civil authorities.

     On these facts, the Military Police acted reasonably and

lawfully:    they saw Mullin commit a crime on military property;

they were conducting an on-going investigation of such crimes; a

soldier (Bronner) was also involved in the observed crime; attempts

were made early on to release Mullin to civil authorities; and

Mullin’s    lies   greatly   delayed    that   release.   In   short,   the

detention and interrogation were lawful.

                                       B.

     In the alternative, Mullin maintains that his statements to

the Military Police were not voluntary, because they deceived him

into thinking they were law enforcement officers with authority

over him; and because he was held for 21 hours, during which the

Military Police are claimed to have yelled at, and cursed, him.

These contentions are totally without merit.




                                    -15-
     The Government has the burden of proving, by a preponderance

of the evidence, that a defendant voluntarily waived his rights and

that his statements were made voluntarily.                   United States v.

Restrepo, 

, 183 (5th Cir. 1993).                  A confession is

voluntary if it is the product of the defendant’s free and rational

choice; it is voluntary in the absence of official overreaching,

either by direct coercion or subtle psychological persuasion.                

confession is voluntary is determined by considering the

“totality of the circumstances”.          

a ruling on a

motion   to    suppress    a   confession,     we   give     credence   to   the

credibility choices and fact finding by the district court unless

they are clearly erroneous; the ultimate issue of voluntariness is

a legal question reviewed de novo.           

  judge   held    that     Mullin    “knowingly     and

voluntarily” waived his rights to remain silent and to have an

attorney; and that Mullin’s confession was not coerced.                      The

district court affirmed.

                                     1.

     At the suppression hearing, Military Police testified that

they questioned Mullin about the observed 2 April vehicle break-in,

other such break-ins on the base, and the debit card misuse that

had been reported; and that they confronted him with a photograph


                                    -16-
taken at a bank automatic teller machine showing a person dressed

identically to Mullin.

     Sergeant Hatfield identified himself to Mullin as a military

police investigator; displayed his credentials to Mullin; and,

prior to any questioning, informed Mullin of his rights.             Mullin

responded that he understood his rights and did not request an

attorney.

     Believing   that   Mullin   was    a   juvenile,   Sergeant   Hatfield

contacted several state authorities to take custody of Mullin, but

these attempts were initially unsuccessful.              After his first

interview and partial confession, Mullin was allowed to rest in an

open cell. After further investigation revealed Mullin’s true

identity, he was once again informed of his rights.         Again, Mullin

stated that he understood his rights and he did not request an

attorney.    At this point (early morning of 3 April), Mullin made a

full confession.     After being turned over to the Killeen police

later that day, Mullin was taken before a state magistrate for a

bond hearing.

     Our    having   concluded   that   the   Military    Police   had   the

authority to interrogate Mullin, his assertion that they deceived

him into thinking they had such authority is meritless.            Further,

the evidence adduced at the suppression hearing does not support


                                  -17-
Mullin’s   allegation   that   oppressive   circumstances   coerced   a

confession.

                                  2.

     In addition, Mullin’s 21-hour detention does not render his

confession involuntary.



                                  a.

     The 21-hour delay does not, per se, render Mullin’s confession

involuntary or inadmissible.      See, e.g., County of Riverside v.

McLaughlin, 

, 56-57 (1991) (probable cause hearing

within 48 hours of arrest is presumptively reasonable); West v.

Johnson, 

, 1404 (5th Cir. 1996), cert. denied, 

(1997) (confession taken 30 hours after arrest was voluntary);

Neumuller v. State, 

, 512 (Tex. Ct. App. 1997) (“Even

an unreasonable delay in bringing an accused before a magistrate,

of which we have no evidence here, will only render a confession

inadmissible upon a showing of some causal connection between the

delay and the making of the confession”).

                                  b.

     “[W]here there is no evidence to support a finding that the

delay was for the purpose of obtaining a confession, there is no

evidence that the delay had a coercive effect on the confession,


                                 -18-
there is no causal connection between the delay and the confession,

and   the   confession   was   otherwise    voluntarily    given   ...   the

defendant has not shown prejudice by the delay.”          United States v.

Perez-Bustamante, 

, 53 (5th Cir. 1992) (quoting United

States v. Bustamante-Saenz, 

, 120 (5th Cir. 1990)).

      There is no evidence that the Military Police delayed turning

Mullin over to civil authorities for the purpose of extracting a

confession, or that the delay caused him to confess. To the

contrary, the delay was caused by Mullin’s lies to the Military

Police, especially that he was a homeless juvenile named “Boe”.

Accordingly, the Government met its burden of establishing that

Mullin’s confession was voluntary.         

.

                                    C.

      Alternatively, Mullin asserts that his statements are not

admissible because the investigation by Military Police of a state

law matter – debit card misuse outside Fort Hood – violated the

Posse Comitatus Act, 18 U.S.C. § 1385:

            Whoever,   except    in   cases    and   under
            circumstances expressly authorized by the
            Constitution or Act of Congress, wilfully uses
            any part of the Army or Air Force as a posse
            comitatus or otherwise to execute the laws
            shall be fined not more than $10,000 or
            imprisoned not more than two years, or both.




                                   -19-
The Act is designed to restrict military involvement in civilian

law enforcement.   See United States v. Hartley, 

, 114

(5th Cir. 1986); see also generally Roger Blake Hohnsbeen, Note,

Fourth Amendment and Posse Comitatus Act Restrictions on Military

Involvement in Civil Law Enforcement, 54 GEO. WASH. L. REV. 404

(1986).

     We need not address whether the Act was violated.     “[E]ven

where a violation of the Posse Comitatus Act is found or suspected,

courts have generally found that creation or application of an

exclusionary rule is not warranted.”     

(citing United States v. Wolffs, 

(5th Cir. 1979)).   In

, our court pretermitted addressing whether

there was a violation of the Act in a case involving the use of

Army personnel in a narcotics investigation:

          We need not decide that complex and difficult
          issue because, assuming without deciding that
          there was a violation, application of an
          exclusionary rule is not warranted. If this
          Court should be confronted in the future with
          widespread and repeated violations of the
          [Act] an exclusionary rule can be fashioned at
          that time.

States v. Walden, 

(4th Cir. 1974)

and State v. Danko, 

(Kan. 1976)).   See also 

(noting that other courts have also found that

exclusionary rule is not warranted for violations of the Act);

                               -20-
Major Saviano, The Exclusionary Rule’s Applicability to Violations

of the Posse Comitatus Act, 1995-JUL ARMY LAW. 61, 62-64 (1995)

(same).

     The circumstances presented in Mullin’s case – gathering by

Military Police of limited information concerning debit card misuse

related to one of the on-base break-ins – provides no basis to

warrant the creation or application of an exclusionary rule.   See

.    Accordingly, Mullin’s claim under the

Posse Comitatus Act fails.

                               III.

     For the foregoing reasons, the judgment is

                                                      AFFIRMED.




                               -21-