United States v. Brendan Allen Shaw

464 F.3d 615, 2006 U.S. App. LEXIS 24257, 2006 WL 2728761
Court of Appeals for the Sixth Circuit·Decided September 26, 2006·No. 05-6110·Published·Cited by 71 cases

Opinions

WISEMAN, D.J., delivered the opinion of the court, in which GILMAN, J., joined. SUTTON, J. (pp. 631-34), delivered a separate dissenting opinion.

OPINION

WISEMAN, Senior District Judge.

Defendant-Appellant Brendan Allen Shaw (“Shaw” or “Defendant”) appeals the denial of his motion to suppress three written statements made while he was held in custody for nearly twenty hours at Fort Campbell Army Base on June 22, 2004. As a result of the statements, Shaw was charged in a ten-count indictment, all ten counts of which involve child sexual abuse in violation of 18 U.S.C. §§ 2241(c) and 2246(2). After Shaw’s Motion to Suppress was denied, he entered a conditional plea of guilty while reserving the right to appeal the district court’s denial of his suppression motion. Because we conclude that Shaw was arrested without probable cause and in violation of his Fourth Amendment rights, the order of the district court denying Shaw’s Motion to Suppress is REVERSED and this matter is REMANDED for further proceedings consistent with this opinion.

I. FACTUAL BACKGROUND

At the time of his arrest in June 2004, Brendan Shaw was two months shy of his nineteenth birthday and had an eleventh-grade education. He was living with his cousin and cousin’s wife, Aaron and Angie Shaw, and their three children (all boys), ages one, three, and five,1 as a live-in babysitter. He had been living with his cousin’s family for approximately four months.

On the evening of June 21, 2004, Angie Shaw brought her three-year-old son to the Blanchfield Army Community Hospital [618]*618(“BACH” or “Hospital”) emergency room (“ER”) to be examined. She told medical personnel at the ER that the three-year-old had claimed that Shaw had “touched his pee-pee” and that Shaw’s “pee-pee had touched his butt.” (Joint Appendix (“JA”) 7.) The doctor who examined the child found no physical evidence of trauma or sexual penetration. Military Police (“MP”) were nonetheless called to the hospital and told of the allegation.

MP Investigator Edgar J. Ford was on duty the evening of June 21, 2004. He was notified by the MP station of a possible sexual assault reported at BACH, so he went to the Hospital to investigate. On the way there, he placed a telephone call to Special Agent (“SA”) Rebecca Fagan, who was on call for the Army Criminal Investigation Division (“CID”), to inform her that he was responding to a possible sexual assault. He arrived at BACH at approximately 11:20 p.m. where he met initially with a Nurse Slaughter, who told him what Angie Shaw had said. He then spoke with Angie Shaw, who repeated the allegation. He did not interview or speak with the three-year-old child.

At that point, Ford called SA Fagan back and asked her to join him at the Hospital. After she arrived, Fagan spoke with Angie Shaw and asked her to come down to the CID office. Angie Shaw was concerned about needing to drop off the three-year-old child at a neighbor’s and did not want to have any kind of confrontation with the Defendant, nor did she want the children to see him. Consequently, SA Fagan directed Ford to “[go] over and get him [Defendant].” (JA 84.) As directed, Ford went to the Shaw family’s “quarters,” accompanied by a trainee officer who was riding with him that night. They were in an unmarked police car. Ford was not in uniform but he was armed. Ford was not sure what time it was when they arrived at the Shaws’ residence, but it was after midnight. Another police car carrying Sergeant Wilburn and his military working dog also arrived on the scene shortly after Ford.

At the Shaws’ residence, Ford found the Defendant in front of the house with another teenager who also lived on base. Ford told the other teenager to go home and told Shaw “they needed to talk to him down at CID.” (JA 85.) Ford did not tell Shaw why “they” wanted to talk to him at CID. He also testified that he did not place Shaw under arrest at that point, but neither did he tell him he was not under arrest. Instead, he frisked him and handcuffed him before placing him in the backseat of the police car. Ford stated he handcuffed Shaw only because the MP’s standard operating procedure required handcuffing anyone going into the back of an uncaged car for officer safety. Ford did not explain that fact to Shaw either, however. Ford also did not permit Shaw to go inside and put shoes on before leaving — Shaw arrived at CID fully dressed except that he was wearing socks and no shoes.

Ford and Shaw arrived at the CID office shortly after 2:00 a.m., and Shaw was placed in an interview room. Shortly thereafter, SA Richard Woffington went into the interview room, introduced himself, removed Shaw’s handcuffs, and made sure Shaw was comfortable and did not need any type of medical attention. Woff-ington left to attend to another matter,2 [619]*619and Shaw waited in the interview room for approximately thirty to fifty minutes before Wolfington returned.3

After this brief delay, at some time between 2:30 and 2:50 a.m., Wolfington moved Shaw from the interview room into another room. This second room (the “Polygraph Suite”) had a two-way mirror/window4 in it as well as a desk, a few chairs, and a polygraph chair. From an adjacent room, other agents could watch and listen to the interrogation taking place in the Polygraph Suite.

The first thing Wolfington did when he began his session with Shaw was to go over “DA Form 3881,” which is the Army’s version of a Miranda rights waiver. This waiver was introduced into evidence at the suppression hearing, and Wolfington testified that he went over each section of the waiver with Shaw, and had Shaw initial each block in it and then sign it in the indicated place. The waiver form notes that Shaw signed it at 3:10 a.m. on the morning of June 22, 2004.

After Shaw signed the waiver, Wolfing-ton spent the next four to five hours questioning him about the three-year-old’s alleged statement to his mother. During that time frame, Shaw was given the opportunity to take bathroom breaks and cigarette breaks when he requested. He was not handcuffed but he was escorted at all times. During the interrogation, Shaw initially denied ever touching the three-year-old’s penis, but by 7:45 a.m., he signed a written statement in which he admitted touching the three-year-old incidentally in the course of bathing and dressing him on one occasion, when the three-year-old was having difficulty getting dressed.

Shortly after giving this first statement, Shaw was moved to another room where he was given the opportunity to eat, which he declined, and to sleep. He was given a cot and a tarp-like cover. This room also had an observation window that appeared, from inside the room, to be a mirror. The government witnesses claimed they checked on Shaw several times and believe Shaw slept for nearly six hours. Shaw denies sleeping for much of that time, claiming he was too upset.

Shaw later learned that around 1:45 the same morning he was taken into custody, his uncle, Paul Shaw, received a phone call from Aaron Shaw. Aaron seemed upset and asked Paul to come pick up the Defendant.

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United States v. Brendan Allen Shaw, 464 F.3d 615, 2006 U.S. App. LEXIS 24257, 2006 WL 2728761 (6th Cir. 2006).

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