United States v. Brendan Allen Shaw

SUTTON, Circuit Judge,

dissenting. I agree with the majority that:

(1) probable cause requires “reasonably trustworthy information ... sufficient to warrant a prudent man in believing that the [arrestee has] committed or [is] committing an offense,” Beck v. Ohio, 379 U.S. 89, 91 , 85 S.Ct. 223 , 13 L.Ed.2d 142 (1964); Maj. Op. at 623;

(2) a “totality-of-the-circumstances analysis” applies to “probable-cause determinations,” Illinois v. Gates, 462 U.S. 213, 238 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983); see Maj. Op. at 625;

(3) when reviewing the denial of a suppression motion, an “appellate court must consider the evidence in the light most favorable to the government,” United States v. Herndon, 393 F.3d 665, 667 (6th Cir.2005) (internal quotation marks omitted); see Maj. Op. at 621;

(4) “[a] law enforcement officer is entitled to rely on an eyewitness identification to establish adequate probable cause with which to sustain an arrest,” Ahlers v. Schebil, 188 F.3d 365, 370 (6th Cir.1999); see United States v. Harness, 453 F.3d 752, 754 (6th Cir.2006); Maj. Op. at 623;

*632 (5) hearsay testimony by itself may establish probable cause, Gates, 462 U.S. at 241-42 , 103 S.Ct. 2317 ; Maj. Op. at 623; and

(6) the age of this victim (three years old) does not disqualify him from supplying probable-cause evidence that he was sexually abused, Maj. Op. at 624.

If a three year old may tell his mother that he has been sexually molested, if the mother may tell the police about the allegation and if the police may rely on her statement to establish probable cause, as all of this shows, what is it about the circumstances of this case that show probable cause did not exist to arrest Shaw? Nothing, I respectfully submit.

And plenty shows that the police could fairly find probable cause. The boy was the only eyewitness to this crime aside from Shaw, as invariably and problematically will be true in a sexual abuse case. What the boy told his mother amounted to a serious allegation, one that it is difficult to imagine any parent taking lightly. Shaw plainly had the opportunity to commit the crime because he was the cousin of the victim and was living with the victim’s family at the time. See Harness, 453 F.3d at 754-55 (family member “corroborated that the victim was at Harness’s house and separated from his brother at the time of the incident, confirming that there was a window of time within which the alleged sexual assault could have occurred”) (internal quotation marks omitted). How the boy described the incident (“he touched my pee pee” and “Mr. Shaw’s pee pee touched my butt”) is consistent with what a three year old could observe, sense and understand. Cfi Josephine A. Bulkley, The Impact of New Child Witness Research on Sexual Abuse Prosecutions, in Perspectives on Children’s Testimony 208, 226 (S.J. Ceci ed., 1989) (“[Sjtudies indicate that in many cases of child sexual abuse, younger children’s honesty combined with lack of cognitive abilities may make them more credible witnesses.”). And of course he was not describing an intricate securities fraud but an incident concerning his body and two body parts that even the most casual toilet training would acquaint him with.

In hearing her son’s description of the incident, the mother was as well-positioned as anyone to know whether her son may have misinterpreted what had happened and to know whether her cousin could have (or would have) done such a thing. The mother believed her son. She took her child to the hospital, where he underwent a medical examination and where she shared his statements with others, all of whom took the accusations seriously.

Conspicuously missing from this sequence of events is any evidence that diminishes the likelihood that Shaw committed the crime. Nothing indicates that the boy was a pawn in one spouse’s efforts to obtain leverage over the other in the course of a bitter divorce. Nothing indicates that some other form of family tension might have prompted the mother to contrive such a serious allegation. Nothing indicates that this boy lacked the capacity to report this incident truthfully. And the fact that the medical examination of the boy was inconclusive does not undercut the allegations given that there is little reason to think that either of the acts described by the boy would have left any evidence. See Joyce A. Adams, The Role of the Medical Evaluation in Suspected Child Sexual Abuse, in True and False Allegations of Child Sexual Abuse 231, 239 (Tara Ney ed., 1995) (“[T]he child’s statement is the most important evidence of molestation .... [T]he results of the medical examination will usually be normal or nonspecific ... the medical examination will rarely be diagnostic of sexual abuse.”).

*633 As I read the majority’s opinion, it rejects the district court’s finding of probable cause on one ground and one ground alone: that the police could' not believe the statements of a three year old. I realize the majority disclaims announcing such a bright-line rule, but I cannot see any other reason for the decision. While I share the majority’s anxiety about premising an individual’s deprivation of liberty on the observations of a three year old, it is well to remember that that is not all that happened. The police interviewed the mother, who knew both the victim and the perpetrator; they interviewed the medical staff; they learned that Shaw had the opportunity and necessary access to the child to commit the crime; and they learned nothing inconsistent with the accusation. And of course we are not being asked to affirm a criminal conviction. We are being asked a question of probabilities — whether a trained law enforcement officer could reasonably believe that Shaw had committed a crime. If the majority is right, the officers not only lacked authority to take Shaw into custody to ask him about the accusations, they also lacked authority to obtain a search warrant (also based on probable cause) of the suspect’s room — which seems untenable if, say, the allegations had included sexual abuse involving a physical object or photographs.

Law enforcement, to be sure, may consider the age of the victim in considering other circumstances of the investigation, and particularly any indicia of untrustwor-thiness, but the status of being a three year old does not as a matter of law discredit the victim’s accusations. See Rankin v. Evans, 133 F.3d 1425, 1441 (11th Cir.1998) (holding that the police could rely upon a three-year-old girl’s allegations of sexual abuse (as told to her mother and repeated to the police) in finding probable cause); Marx v. Gumbinner, 905 F.2d 1503, 1506 (11th Cir.1990) (observing that police could rely upon a four-year-old girl’s allegations of sexual abuse in finding probable cause); Myers v. Morris, 810 F.2d 1437, 1456-57 (8th Cir.1987) (holding that police could rely upon the sexual-abuse allegations of two children (ages five and twelve) in finding probable cause), cert. denied 484 U.S. 828 , 108 S.Ct. 97 , 98 L.Ed.2d 58 (1987), overruled on other grounds by Burns v. Reed, 500 U.S. 478 , 111 S.Ct. 1934 , 114 L.Ed.2d 547 (1991); cf. 18 U.S.C. § 3509 (c)(2), (4) (“A child is presumed to be competent.... A child’s age alone is not a compelling reason” to hold a competency hearing.).

Cortez v. McCauley, 438 F.3d 980 (10th Cir.2006), does not prompt a different conclusion. The child victim in that case was two years old, which proves only that there may be an age (perhaps two and younger is it) when children lack the capacity both to understand what has happened to them and to describe it accurately. But nothing in Cortez, nothing in the majority’s opinion, nothing in the defendant’s briefs and nothing that I have been able to find on my own says that three year olds as a group lack the capacity to tell a parent that someone “touched my pee pee.” Until we have such evidence, I am hard pressed to understand why police — who are better equipped to assess the veracity of witnesses than appellate judges are— may not consider such accusations in making probable cause determinations. No less importantly, the police in Cortez spoke only to a nurse over the phone, who relayed the mother’s statement relaying the child’s statement. Here, by contrast, the officers interviewed the child’s mother and the nurse and spoke to both of them in person. In Cortez , in short, there was no “totality” of circumstances, just one circumstance — a phone conversation with a nurse who had presumably met the child for the first time just hours before. I have *634 no problem with the outcome in Cortez ; I just find it of little assistance here.

Nor may we reverse the district court’s decision on the ground that the officers could have taken other investigatory steps to confirm their suspicions by, say, arranging for a child psychologist to interview the victim. Perhaps if the police and family could have ensured that Shaw would be separated from the victim while they arranged for a psychological interview (remember that Shaw was living in the victim’s home), this option would have made considerable sense and would have been a preferable police practice. But that is not the inquiry precedent tells us to make. “Once probable cause is established,” we have explained, “an officer is under no duty to investigate further or to look for additional evidence which may exculpate the accused ... nor should a plausible explanation in any sense require the officer to forego arrest pending further investigation if the facts as initially discovered provide probable cause.” Ahlers, 188 F.3d at 371 (internal quotation marks and citations omitted). It bears adding that none of the litigants in this case, quite understandably, thought that it would have been wise for the police officers in uniform to add to the child’s trauma by interviewing him personally. See Oral Arg. Tr. (In response to this precise question, Shaw’s appellate attorney stated: “I have a two- and-a-half year old and I perfectly agree with the court.”).

Finally, everyone understands that “a defendant’s Fourth Amendment rights are not suspended when he is suspected of committing murder, rape or ... child sexual abuse.” Maj. Op. at 625. My point is not that we should lessen Fourth Amendment protections in child-sexual-abuse cases; it is that we should not increase them. In murder and rape cases, one does not need corroborating evidence at the probable-cause stage to support the testimony of someone who witnessed (or experienced) the crime. Eyewitness testimony alone will suffice, unless there is a reason for “the officer to believe that the eyewitness was lying, did not accurately describe what he had seen, or was in some fashion mistaken regarding his recollection.” Ah-lers, 188 F.3d at 370 . But in this case the eyewitness testimony does not suffice, the court holds, absent corroborating evidence, and that is true even though there is nothing about the child’s accusation suggesting he was mistaken. To say that child-sexual-abuse cases require corroborating evidence thus not only increases the Fourth Amendment protections for this one crime but does so for the one type of crime most likely not to yield such evidence. I respectfully dissent.