United States v. Charles Perkins

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 15-30035

Plaintiff-Appellee,

D.C. No.

v. 2:13-cr-00096-RSM-1

CHARLES GLENN PERKINS, OPINION

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Washington

Ricardo S. Martinez, Chief District Judge, Presiding

Argued and Submitted June 22, 2016

San Francisco, California

Filed March 13, 2017

Before: Andrew J. Kleinfeld, A. Wallace Tashima, and

Mary H. Murguia, Circuit Judges.

Opinion by Judge Tashima;

Dissent by Judge Murguia

2 UNITED STATES V. PERKINS

SUMMARY*

Criminal Law

The panel reversed the district court’s denial of a motion

to suppress evidence obtained from the defendant’s

computers pursuant to a search warrant, vacated his

conviction for receipt of child pornography, and remanded for

further proceedings.

The panel held that (1) the district court clearly erred in

finding that a DHS special agent did not omit relevant

information with at least reckless disregard for whether the

omissions would render the warrant application misleading;

and (2) had the omitted information been included, the

application would not have supported probable cause.

Dissenting, Judge Murguia wrote that the majority fails to

afford the district court its due deference, retroactively

applies a new rule that is likely unsupported by case law, and

improperly weighs the totality of circumstances in a probable

cause determination.

COUNSEL

Corey Endo (argued) and Vicki Lai, Federal Public

Defender’s Office, Seattle, Washington, for Defendant-

Appellant.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V. PERKINS 3

Teal Luthy Miller (argued), Assistant United States Attorney;

Annette L. Hayes, United States Attorney, Western District

of Washington; Office of the United States Attorney, Seattle,

Washington; for Plaintiff-Appellee.

OPINION

TASHIMA, Circuit Judge:

Charles Perkins appeals his conviction for receipt of child

pornography. Perkins entered a conditional guilty plea,

reserving the right to appeal the district court’s denial of his

motion to suppress evidence obtained from his home

computers pursuant to a search warrant. The district court

denied the motion, concluding that the investigating agent did

not deliberately or recklessly mislead the magistrate judge by

omitting material information from the warrant application.

The court also found that there was probable cause to justify

the search. We have jurisdiction pursuant to 28 U.S.C.

§ 1291, and we reverse.

I.

A. The Canadian Investigation

On December 29, 2012, Charles Perkins, a then-52-year-

old citizen of the United States, was traveling through

Toronto International Airport on his way home to

Washington State after taking a trip to Chile with his wife and

mother-in-law. Canadian Border Services Agency (“CBSA”)

officers stopped Perkins after learning that he was a

registered sex offender. Perkins had a 1987 first-degree

incest conviction and a 1990 first-degree child molestation

4 UNITED STATES V. PERKINS

conviction. A CBSA officer searched the laptop that Perkins

was carrying and, in a folder labeled “cperk,” found two

images that he believed to be child pornography. A Peel

Regional Police (“PRP”) officer also reviewed the images

and, based on his review, arrested Perkins for possession of

child pornography. CBSA authorities seized the laptop, along

with a digital camera and a memory card.

The next day, Constable Andrew Ullock, a PRP officer

specializing in the investigation of child exploitation crimes,

interviewed Perkins. Perkins stated that the laptop belonged

to his wife and that his computers were at his home in

Washington. Perkins’ wife, T.W., confirmed that she mostly

used the laptop, but that Perkins occasionally used it.

Constable Ullock examined Perkins’ luggage and additionally

seized a digital memory card, a memory stick, and a cellular

phone. Pursuant to a Canadian search warrant, Constable

Ullock searched the laptop and found the two images that the

CBSA officer had originally discovered. Constable Ullock

did not find any other suspected contraband in the laptop or

in any of the other digital devices.

After reviewing the images, Constable Ullock concluded

that they did not constitute child pornography under Canadian

law. In his report of the investigation, he describes the two

images as follows:

Image 1: Filename 997.jpg

...

Description: This is a Caucasian female that

I would estimate to be between the ages of 13

to 15 years of age. The image shows her only

UNITED STATES V. PERKINS 5

from the mid torso up, including her face.

The girl appears to be nude and her breasts are

clearly visible . . . . In spite of the fact that this

girl is under the age of 18, her breasts are not

the dominant feature of the image, and there

is no obvious sexual purpose to the image.

Therefore this image does not meet the

Canadian Criminal Code definition of child

pornography.

Image 2: Filename 989.jpg

...

Description: This is an image of a Caucasian

female that I would estimate to be between the

ages of 13 to 14 years of age. This girl is

sitting and appears to be taking a picture of

herself by holding out a camera with her right

arm slightly above her head looking down on

her. . . . This girl is completely nude and

towards the bottom of the picture a small

portion of her vagina can be seen. . . .

However in this photo the view of the girls’

[sic] vagina makes it a minor aspect of the

photo, and her hair drapes over much of her

breasts, which decrease[s] their prominence.

Again there is no clear and obvious sexual

purpose to the picture, which means it does

not meet the Criminal Code of Canada

definition of child pornography.

Based on Constable Ullock’s recommendation, the charge

against Perkins was dropped on January 10, 2013.

6 UNITED STATES V. PERKINS

B. The American Investigation

The case was forwarded to Special Agent Tim Ensley of

the United States Department of Homeland Security. Agent

Ensley received the two images for first-hand review on

January 14, 2013. Prior to receiving the images, Agent

Ensley drafted an affidavit, based on Constable Ullock’s

report, in support of a warrant application to search all the

digital devices in Perkins’ home in Washington. The

affidavit explained that Canadian officers stopped Perkins

because of his prior convictions and arrested him after

reviewing the images. The affidavit did not state that the

charge had been dropped pursuant to Constable Ullock’s

determination that the images were not pornographic.

After reviewing the images for himself, Agent Ensley

included the following descriptions in his affidavit:

Filename 997.jpg

...

Description: This color image depicts a white

female (hereinafter referred to as “child

victim”) sitting on the edge of what appears to

be a bed. The child victim appears to be

naked at least from the waist up, and can be

seen from mid-abdomen to the top of her

head. The child victim’s breasts are clearly

visible . . . . The child victim is young in

appearance and appears to be between twelve

and fourteen years of age.

Filename 989.jpg

UNITED STATES V. PERKINS 7

...

Description: This color image depicts a white

female (hereinafter referred to as “child

victim”) sitting on what appears to be a bed

with one arm stretched out taking a picture of

herself. The child victim is completely nude

and can be seen in the image from her upper

thigh area to the top of her forehead. The

child victim’s breasts and genital area are

clearly visible. . . . The child victim is young

in appearance and appears to be between

twelve and fourteen years of age.

Agent Ensley concluded that the second image (hereinafter

referred to as the “989.jpg image”) met the federal definition

of child pornography. The warrant application did not

include copies of either image. On January 16, 2013, the

magistrate issued the warrant.

C. Perkins’ Motion to Suppress and Request for a Franks

Hearing

The search pursuant to the warrant revealed several

images of child pornography on Perkins’ computers, and he

was charged with one count of receipt of child pornography

and one count of possession of child pornography. Perkins

moved to suppress the evidence, arguing that the warrant

lacked probable cause. Alternatively, Perkins argued that

Agent Ensley deliberately or recklessly omitted material facts

from the affidavit, entitling him to a hearing under Franks v.

Delaware, 438 U.S. 154 (1978). The district court denied the

motion in its entirety. On June 6, 2013, Perkins conditionally

pleaded guilty to one count of receipt of child pornography,

8 UNITED STATES V. PERKINS

reserving the right to appeal the district court’s decision on

his motion to suppress and for a Franks hearing. The district

court sentenced Perkins to an 180-month term of

imprisonment.

Perkins appealed. On July 25, 2014, we reversed the

district court’s denial of a Franks hearing. United States v.

Perkins, 583 F. App’x 796, 797 (9th Cir. 2014).1 We

concluded that, based on Agent Ensley’s omissions of: the

dropping of the Canadian charge; portions of Constable

Ullock’s description of the images; and copies of the images,

Perkins had made a substantial preliminary showing that

Agent Ensley deliberately or recklessly omitted potentially

material information. Id. We remanded to the district court

to hold a Franks hearing. Id.2

D. The Franks Hearing

The district court held the Franks hearing on November

13, 2014. Agent Ensley was the only witness. He testified

that it was the “general practice” in the Western District of

Washington not to provide copies of the images at issue.

1

We did not reach Perkins’ appeal from the denial of his motion to

suppress. Perkins, 583 F. App’x at 797 (“We do not reach his motion to

suppress.”).

2

The dissent reads our prior reversal more narrowly, concluding that

“the district court . . . was not required to consider whether Agent Ensley

recklessly or deliberately omitted the actual images from the search

warrant application.” Dissent at 29. But our earlier mandate contained no

such limitation. We reversed and remanded for further proceedings,

including the holding of a Franks hearing. Perkins, 583 F. App’x at 797.

As noted earlier, see footnote 1, supra, we did not reach the probable

cause issue on which the appeal from the denial of the motion to suppress

was based. See id.

UNITED STATES V. PERKINS 9

Agent Ensley further testified that he omitted the fact that

Canadian authorities dropped the charge against Perkins

because he believed this fact was “irrelevant to [his]

development of probable cause in the U.S., based on U.S.

laws.”

Agent Ensley also testified about his drafting process. He

stated that, prior to receiving the images, he had already

“fully drafted” the affidavit using Constable Ullock’s report.

He used Constable Ullock’s descriptions as a “temporary

filler” in the draft but ultimately omitted portions that he

deemed to be irrelevant “legal conclusions . . . based on

Canadian law.” However, when pressed about the differences

between Canadian and U.S. child pornography laws, Agent

Ensley conceded that the “sexual purpose” requirement under

Canadian law and the “lascivious” requirement under U.S.

law were “connected, obviously in a certain way. The

lascivious exhibition – It does have a sexual aspect to it, a

sexual exhibition of the genitalia, yes.” Agent Ensley

admitted that whether an image depicts the lascivious

exhibition of genitals or pubic area (and is therefore

pornographic under U.S. law) is “very subjective.” However,

he maintained that it was “very clear to [him]” that the

989.jpg image was child pornography.

On February 11, 2015, the district court concluded that

Agent Ensley did not intentionally or recklessly mislead the

magistrate. The court reaffirmed its prior 2013 determination

that the affidavit established probable cause and again denied

Perkins’ motion to suppress. United States v. Perkins, 2015

WL 630934 (W.D. Wash. 2015). Perkins timely appealed.

10 UNITED STATES V. PERKINS

II.

We review for clear error a district court’s findings that

an affidavit did not contain purposefully or recklessly false

statements or omissions. United States v. Elliott, 322 F.3d

710, 714 (9th Cir. 2003). “Review under the clearly

erroneous standard is significantly deferential, ‘requiring for

reversal a definite and firm conviction that a mistake has been

committed.’” Id. (quoting United States v. Maldonado, 215

F.3d 1046, 1050 (9th Cir. 2000)). We review de novo the

district court’s determination “whether probable cause is

lacking because of alleged misstatements or omissions in the

supporting affidavit.” Id. (quoting United States v. Reeves,

210 F.3d 1041, 1044 (9th Cir. 2000)). “Whether any

omissions or misstatements are material is a mixed question

of law and fact which we also review de novo.” Id. (citation

omitted).

“We are also obligated, where possible, to review de novo

the legal determination that a given image depicts a

‘lascivious exhibition of the genitals.’” United States v.

Brunette, 256 F.3d 14, 17 (1st Cir. 2001) (footnote omitted)

(quoting United States v. Amirault, 173 F.3d 28, 32–33 (1st

Cir. 1999). In this respect, “[o]ur task [is just] like that of the

magistrate judge and district court . . . ‘simply to make a

practical, common-sense decision . . . .’” Id. at 16 (quoting

Illinois v. Gates, 462 U.S. 213, 238 (1983).

III.

Preliminarily, we note that in the search warrant affidavit,

Agent Ensley opined that the 989.jpg image met the federal

definition of child pornography under 18 U.S.C.

§ 2256(2)(A)(v), the “lascivious exhibition of the genitals or

UNITED STATES V. PERKINS 11

pubic area of any person.” While “[t]he first four categories

[of ‘sexually explicit conduct’ under § 22546(2)(A)] deal

with specific conduct that is easy to identify and describe . . .

[t]he fifth category, which turns on the meaning of

‘lascivious,’ is far more subjective and open to interpretation

than the first four.” United States v. Battershell, 457 F.3d

1048, 1051 (9th Cir. 2006) (citing Brunette, 256 F.3d at 18)).

In Battershell, we further noted that in Brunette, the First

Circuit “held that ‘ordinarily, a magistrate judge must view

an image in order to determine whether it depicts the

lascivious exhibition of a child’s genitals.’” Id. at 1053

(quoting Brunette, 256 F.3d at 19).

Perkins argues that Agent Ensley intentionally or

recklessly omitted material information from the warrant

application and that, had that information been included, the

application would not have supported probable cause. Under

Franks, a criminal defendant has the right to challenge the

veracity of statements made in support of an application for

a search warrant. 438 U.S. at 155–56. To prevail on a

Franks challenge, the defendant must establish two things by

a preponderance of the evidence: first, that “the affiant

officer intentionally or recklessly made false or misleading

statements or omissions in support of the warrant[,]” and

second, that the false or misleading statement or omission

was material, i.e., “necessary to finding probable cause.”

United States v. Martinez-Garcia, 397 F.3d 1205, 1214–15

(9th Cir. 2005). If both requirements are met, “the search

warrant must be voided and the fruits of the search excluded

. . . .” Franks, 438 U.S. at 156. Because we conclude that

Perkins has established both prongs under Franks, we hold

that the district court erred in denying his motion to suppress.

12 UNITED STATES V. PERKINS

A. Intentional or Reckless Disregard for the Truth

Under the first step of Franks, the defendant must show

by a preponderance of the evidence that the affiant knowingly

and intentionally, or with reckless disregard for the truth,

made false or misleading statements or omissions in support

of the warrant application. Martinez-Garcia, 397 F.3d at

1214. A negligent or innocent mistake does not warrant

suppression. Franks, 438 U.S. at 171. “[A] warrant affidavit

must set forth particular facts and circumstances . . . so as to

allow the magistrate to make an independent evaluation of the

matter.” Id. at 165 (emphasis added). “Sufficient

information must be presented to the magistrate to allow that

official to determine probable cause; his action cannot be a

mere ratification of the bare conclusions of others.” Illinois

v. Gates, 462 U.S. at 239. An officer presenting a search

warrant application has a duty to provide, in good faith, all

relevant information to the magistrate. United States v. Hill,

459 F.3d 966, 971 n.6 (9th Cir. 2006).

Agent Ensley omitted from the search warrant

application: (1) the fact that Canadian authorities dropped the

child pornography possession charge against Perkins because

the images were not pornographic; (2) important portions of

Constable Ullock’s description of the 989.jpg image; and (3)

copies of the images. At the time he submitted the affidavit,

Agent Ensley knew of the dropped charge and of Constable

Ullock’s description, and had possession of the images.

Indeed, he testified that he used Constable Ullock’s report as

the starting point – a template – in drafting his own affidavit.

We conclude that Agent Ensley omitted relevant information

from the affidavit that resulted in the misleading impression

that image 989.jpg was unequivocally child pornography.

Given these circumstances, we conclude that the district

UNITED STATES V. PERKINS 13

court’s finding that Agent Ensley did not intentionally or

recklessly mislead the magistrate is clearly erroneous. He

acted with at least a reckless disregard for the truth by failing

to furnish copies of the images to the magistrate and by his

omissions of portions of Constable Ullock’s report, which

had to be fresh in his mind, for the magistrate’s independent

review.

The district court accepted Agent Ensley’s explanation

that he omitted legal opinions from Canadian authorities,

which he deemed irrelevant to the question of probable cause

under U.S. law. Notwithstanding the significant deference

afforded to the district court, we cannot agree that this is a

credible explanation. First, Agent Ensley’s testimony that

Canadian and U.S. laws are “extremely different” is not

plausible. During the Franks hearing, Agent Ensley

accurately described the respective definitions of child

pornography under Canadian and U.S. laws.3 He summarized

Canadian law as containing three requirements: (1) the

individual must be under 18 years old; (2) the genital or pubic

area must be the prominent feature of the visual depiction;

and (3) there must be a sexual purpose. But Agent Ensley

conceded that the first two requirements are similar under

3

Canadian Criminal Code 163.1(1)(ii) defines child pornography as

a visual representation of a child where the “dominant characteristic . . .

is the depiction, for a sexual purpose, of a sexual organ.” Under U.S. law,

child pornography is the visual depiction of a minor engaging in “sexually

explicit conduct.” 18 U.S.C. § 2256(8). As relevant here, “sexually

explicit conduct” includes the “lascivious exhibition of the genitals or

pubic area.” Id. § 2256(2)(A)(v). Whether a depiction is “lascivious”

depends on several factors, including whether the focal point is on the

child’s genitalia or pubic area and whether the depiction is intended or

designed to elicit a sexual response in the viewer. United States v.

Overton, 573 F.3d 679, 686 (9th Cir. 2009).

14 UNITED STATES V. PERKINS

U.S. law. As for the third requirement, he could not articulate

a meaningful difference between Canada’s “sexual purpose”

requirement and the U.S.’s “lascivious” requirement. He also

acknowledged that whether either requirement is met is a

subjective determination. Thus, he could hardly identify any

material distinction between the two laws, despite his own

opinion that they were “extremely different.”

Second, Agent Ensley’s testimony is belied by his own

affidavit. Agent Ensley’s repeatedly stated that he omitted

Constable Ullock’s opinions about the images because they

were based on irrelevant Canadian law. Yet Agent Ensley

did include the opinions of Canadian officials who, after

viewing the images, concluded, presumably under Canadian

law, that they were pornographic. Specifically, he explained

that “the CBSA officer believed [one of the images] to be

child pornography,” and that a PRP officer arrested Perkins

after reviewing the images. Along those lines, the affidavit

stated that Perkins was arrested after the PRP officer

reviewed the two images, but omitted the fact that the charge

was dropped after a 15-year veteran officer, specializing in

the investigation of child exploitation crimes, examined those

same two images and concluded they were not pornographic.

These omissions reveal a clear, intentional pattern in

Agent Ensley’s actions: he selectively included information

bolstering probable cause, while omitting information that did

not. We have recognized that an affiant can mislead a

magistrate “[b]y reporting less than the total story, [thereby]

. . . manipulat[ing] the inferences a magistrate will draw.”

United States v. Stanert, 762 F.2d 775, 781 (9th Cir. 1985),

amended by 769 F.2d 1410 (9th Cir. 1985). Agent Ensley

presented a skewed version of events and overstated the

incriminating nature of the images. This is not unlike the

UNITED STATES V. PERKINS 15

situation in United States v. Jacobs, 986 F.2d 1231 (8th Cir.

1993), where the affiant acted at least recklessly when he

correctly stated that the drug dog showed an “interest” in the

defendant’s package, but omitted the fact that the drug dog

failed to make an official “alert.” Id. at 1234–35. Similarly,

although Agent Ensley correctly stated that Perkins was

arrested based on two Canadian officers’ review of the

images, he failed to inform the magistrate that an expert

review of those same images led to the charge being dropped.

Nor was Agent Ensley’s description of the 989.jpg image

a reliable substitute for the image itself. Agent Ensley

knowingly excluded relevant information contained in

Constable Ullock’s description of the 989.jpg image.

Specifically, he omitted Constable Ullock’s explanation that

“[t]owards the bottom of the picture a small portion of her

vagina can be seen” and that “the view of the girls’ [sic]

vagina makes it a minor aspect of the photo[.]” Details about

the placement and prominence of genitalia is highly relevant

to determining whether an image is lascivious. See Overton,

573 F.3d at 686 (factors in determining lasciviousness include

whether the focal point of the depiction is on the child’s

genitalia or pubic area and whether the visual depiction is

intended or designed to elicit a sexual response). Agent

Ensley knowingly excised unfavorable parts of Constable

Ullock’s description.4 In their place, he opined in a

4

Agent Ensley’s testimony that he removed portions of the

description that were legal conclusions based on irrelevant Canadian law

is not credible. As recited above, he could not explain any significant

difference between the U.S. and Canadian definitions of child

pornography. Additionally, the omitted details were factual descriptions,

not legal conclusions.

16 UNITED STATES V. PERKINS

conclusory manner that the genital area was “clearly visible”

— a characterization that was misleading, at best.5

By providing an incomplete and misleading recitation of

the facts and withholding the images, Agent Ensley

effectively usurped the magistrate’s duty to conduct an

independent evaluation of probable cause. See United States

v. Lull, 824 F.3d 109, 116–17 (4th Cir. 2016) (holding that an

affiant acted at least recklessly by omitting facts about an

informant’s credibility and “usurp[ed] the magistrate’s role”

in determining probable cause). Whether an image depicts

the “lascivious exhibition of the genitals or pubic area of any

person,” and therefore constitutes child pornography, is a

subjective determination. Battershell, 457 F.3d at 1051.

“[S]uch ‘inherent subjectivity is precisely why the

determination should be made by a judge,’ not the affiant.”

United States v. Pavulak, 700 F.3d 651, 662 (3d Cir. 2012)

(quoting Brunette, 256 F.3d at 18). Given the circumstances

of this case, Agent Ensley was required to provide copies of

the images for the magistrate’s independent review.6 Instead,

5

Agent Ensley’s description of the 989.jpg image states that the girl

is “sitting on what appears to be a bed.” Constable Ullock’s description

omits, accurately, any mention of a “bed.” Agent Ensley’s apparent

purpose in attesting to that speculation as a fact is because it is one of the

Dost factors. See United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal.

1986) (“whether the setting of the visual depiction is sexually suggestive,

i.e., in a place . . . generally associated with sexual activity”), aff’d sub

nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987). The Dost

factors are fully discussed in Part III.B.2, infra.

6

The dissent asserts that we make a “fatal error” by “retroactively

appl[ying] a new rule.” Dissent at 27; see also id. at 35 n.4 (contending

that the district court did not err because “our case law did not establish

that Agent Ensley was required to include copies of the images in the first

place”). But it has been clearly established law at least since Griffith v.

UNITED STATES V. PERKINS 17

he merely proffered his own conclusion about the 989.jpg

image, based on an incomplete and misleading description of

the image. This was a breach of the duty Agent Ensley owed

to the court. See United States v. Ruiz, 758 F.3d 1144, 1149

(9th Cir. 2014).

In sum, the record leaves us with a definite and firm

conviction that the district court clearly erred in finding that

Agent Ensley did not act with at least a reckless disregard for

the truth. Because Agent Ensley “omitted facts required to

prevent technically true statements in the affidavit from being

misleading,” we now turn to the question of whether the

affidavit, “once corrected and supplemented, establishes

probable cause.” Id. at 1148 (quoting Ewing v. City of

Stockton, 588 F.3d 1218, 1223 (9th Cir. 2009)).

B. Probable Cause

Under the second step of Franks, the question is whether

the omitted fact is “material”; that is, whether it is “necessary

to the finding of probable cause.” 438 U.S. at 156. The key

inquiry is “whether probable cause remains once the evidence

presented to the magistrate judge is supplemented with the

challenged omissions.” Ruiz, 758 F.3d at 1149. Probable

cause to search a location exists if, based on the totality of the

circumstances, there is a “fair probability” that evidence of a

crime may be found there. Hill, 459 F.3d at 970 (citation

omitted).

Kentucky, 479 U.S. 314 (1987), “that a new rule for the conduct of

criminal prosecutions is to be applied retroactively to all cases, state or

federal, pending on direct review or not yet final, with no exception for

cases in which the new rule constitutes a ‘clear break’ with the past.” Id.

at 328.

18 UNITED STATES V. PERKINS

Once corrected, the search warrant application would

include a copy of the 989.jpg image (and the 997.jpg image)

and any probable cause determination would be based on a

direct review of the images themselves. Thus, Agent

Ensley’s written description of the images are extraneous.

Apart from the images, which were found in the “cperk”

folder of the laptop, Perkins’ two 20-year-old convictions are

the only other potentially suspicious fact.7 Under these

circumstances, we conclude that a corrected warrant

application would not support probable cause.

1. Prior Convictions

We are persuaded that the convictions are only marginally

relevant, if at all. A suspect’s criminal history “can be

7

Citing United States v. Krupa, 658 F.3d 1174 (9th Cir. 2011), the

government gestures to the “circumstances” under which the images were

found and argues that they support probable cause. In Krupa, we held that

there was probable cause to search the defendant’s computers, based on

the “unquestionably suspicious” circumstances of “15 computers under

the control of a civilian with no apparent ties to the military in a home on

a military base in which children resided and for which the military police

had received a report of child neglect.” Id. at 1178–79. By contrast,

Perkins was not found in an unusual place where his mere presence was

questionable. He arrived in Toronto with his wife and mother-in-law after

completing a cruise to Chile. No ongoing incident or contemporaneous

report led Canadian border authorities to stop Perkins. No children were

involved. Perkins was stopped only because of his prior convictions,

which, as explained below, do not support probable cause. Given that he

had been traveling, the amount of technology he was carrying (a laptop,

digital camera, three memory cards, and a cell phone) was not suspicious.

Moreover, a search of all these devices revealed only the two images as

possible contraband. And, as it turned out, Perkins was not in possession

of any contraband, i.e., child pornography, at the locus where he possessed

the suspected images, in Canada. Krupa does not support the

government’s position.

UNITED STATES V. PERKINS 19

helpful in establishing probable cause, especially where the

previous arrest or conviction involves a crime of the same

general nature as the one the warrant is seeking to uncover.”

United States v. Nora, 765 F.3d 1049, 1059 (9th Cir. 2014)

(quoting Greenstreet v. Cty. of San Bernardino, 41 F.3d 1306,

1309 (9th Cir. 1994)). However, a past conviction is relevant

only to the extent it increases the likelihood that evidence of

the suspected crime will be found. See id. (holding that the

defendant’s prior firearms convictions did not speak to the

issue of “whether a fair probability existed that [he] owned

other firearms . . . and thus are of marginal relevance to the

probable cause issue before us”). “[T]he bare inference that

those who molest children are likely to possess child

pornography . . . does not establish probable cause to search

a suspected child molester’s home for child pornography.”

United States v. Needham, 718 F.3d 1190, 1195 (9th Cir.

2013).

Perkins had two prior convictions: one for first-degree

incest in 1987 and one for first-degree child molestation in

1990. The affidavit does not explain why these convictions,

both more than twenty years old, made it more likely that

child pornography would be found on Perkins’ home

computers. At most, Agent Ensley offers a boilerplate

description of a child pornography collector, characterized as

someone who “may receive sexual gratification, stimulation,

and satisfaction from contact with children[.]” Such a

generalized statement, which “was not drafted with the facts

of this case or this particular defendant in mind,” does little

to support probable cause. United States v. Weber, 923 F.2d

1338, 1345 (9th Cir. 1990); see also Pavulak, 700 F.3d at 663

(“Pavulak’s prior child-molestation convictions are not

sufficient to establish or even to hint at probable cause as to

the wholly separate crime of possessing child pornography

20 UNITED STATES V. PERKINS

absent any allegation of a correlation between the two types

of crimes.” (citation omitted)).

The age of Perkins’ convictions further diminishes any

marginal relevance they may have had. As explained in

United States v. Falso, 544 F.3d 110 (2d Cir. 2008), the

length of time that elapses between a prior crime and the

suspected offense is relevant to the probable cause analysis.

Id. at 123. In Falso, the court deemed the defendant’s 18-

year-old sexual abuse of a minor conviction as “only

marginally relevant” to the suspected child-pornography

offense. Id. Although the court recognized that “there are

cases where it may be appropriate for a district court to

consider a dated sex crime[,] for example, where there is

evidence of ongoing impropriety,” the affidavit did not

“bridge the temporal gap between Falso’s eighteen-year old

sex offense and the suspected child-pornography offense.”

Id. (citation omitted). Likewise here, there is nothing to

connect Perkins’s 20-year-old convictions to whether there

was a fair probability that Perkins had child pornography on

his home computer.

The government, citing United States v. Colbert, 605 F.3d

573 (8th Cir. 2010), argues that “[t]here is an intuitive

relationship between acts such as child molestation or

enticement and possession of child pornography.” Id. at 578.

The government’s reliance on Colbert is misplaced. In

Colbert, police obtained a warrant to search the defendant’s

home for child pornography after receiving a report that the

defendant had attempted to entice a five-year-old at a park to

follow him to his apartment, “where he claimed he had

movies for her to watch and other things for her to do.” Id. at

577–78. Thus, the warrant was for “the very place where

UNITED STATES V. PERKINS 21

Colbert had expressed a desire to be alone with a

five-year-old girl.” Id. at 578. The court explained:

Colbert’s attempt to entice a child was a

factor that the judicial officer reasonably

could have considered in determining whether

Colbert likely possessed child pornography,

all the more so in light of the evidence that

Colbert heightened the allure of his attempted

inveiglement by telling the child that he had

movies she would like to watch. That

information established a direct link to

Colbert’s apartment and raised a fair question

as to the nature of the materials to which he

had referred.

Id. (emphasis added). In other words, the warrant to search

the defendant’s home for child pornography was based on the

defendant’s “contemporaneous attempt to entice a child,”

during which the defendant referenced viewing materials,

establishing a common link between the two crimes. Id. at

577 (emphasis added). This is a far cry from a suspicion that

Perkins’ home computers contained child pornography based

on his child molestation conviction from more than 20 years

ago.

Absent any explanation as to why Perkins’ 20-year-old

convictions made it more likely that he possessed child

pornography, we conclude that the convictions do not support

probable cause.

22 UNITED STATES V. PERKINS

2. Images

We now turn to the question of whether the two images,

found in the “cperk” folder of the laptop that Perkins carried

while passing through Canada, are sufficient to establish a

fair probability that there was child pornography on Perkins’

home computer in Washington. We conclude that the answer

is no.

In cases of suspected possession of child pornography

where the warrant application relies on the individual’s

possession of certain images, we assess whether those images

constituted child pornography. See, e.g., Battershell, 457

F.3d at 1051–53; Hill, 459 F.3d at 970–71 (“Thus the more

precise question we must answer is whether the officer’s

affidavit established probable cause that the images on the

defendant’s computer were—as described—lascivious.”).

The typical starting point for determining whether a particular

image is lascivious, and therefore pornographic, is the six-

factor test articulated in Dost, 636 F. Supp. 828. Those factors

are:

1) whether the focal point of the visual

depiction is on the child’s genitalia or pubic

area;

2) whether the setting of the visual depiction

is sexually suggestive, i.e., in a place or pose

generally associated with sexual activity;

3) whether the child is depicted in an

unnatural pose, or in inappropriate attire,

considering the age of the child;

4) whether the child is fully or partially

clothed, or nude;

UNITED STATES V. PERKINS 23

5) whether the visual depiction suggests

sexual coyness or a willingness to engage in

sexual activity;

6) whether the visual depiction is intended or

designed to elicit a sexual response in the

viewer.

Id. at 832. The Dost factors “are neither exclusive nor

conclusive,” and courts may consider “any other factor that

may be relevant in a particular case.” Overton, 573 F.3d at

686–87.

We first note that Perkins legally possessed both the

989.jpg and 997.jpg images in Canada. When all was said

and done, Canadian authorities concluded that neither image

was pornographic. We conclude that the 997.jpg image does

not constitute child pornography, and the government does

not contend otherwise. That leaves the 989.jpg image.8 The

image appears to be a selfie, taken by the subject of herself,

who is holding the camera at an angle slightly above her head

and shooting downwards. The image captures the subject’s

forehead down to her upper thigh. Because of the angle, her

head and torso predominate the image and cast a shadow on

the genital area, which is pictured in the far bottom right-hand

corner. She is sitting down, although it is unclear on what.

Other than the fact that the subject is nude, the image

lacks any traits that would make it sexually suggestive. But

8

Neither the 989.jpg image nor the 997.jpg image is a part of the

record. The government, however, concurrently with the filing of its

answering brief, filed a motion for leave to file electronic copies of these

two images under seal. We granted the unopposed motion and commend

the government for its candor. The panel has viewed both images.

24 UNITED STATES V. PERKINS

“not all images of nude children are pornographic.” Hill, 459

F.3d at 970; see also Dost, 636 F. Supp. at 832 (“[T]he visual

depiction may not constitute a ‘lascivious exhibition’ of the

genitals, despite the fact that the genitals are visible.”). The

subject is not posed in a sexual position with, for example,

“her open legs in the foreground.” Dost, 636 F. Supp. at 832.

She is not pictured with any sexual items. She is sitting in an

“ordinary way for her age.” Id. Indeed, if the subject were

clothed, this would be a completely unremarkable photo.

Viewing the image as a whole, we conclude, under the Dost

six-factor test, that it does not depict the “lascivious

exhibition of the genitals or pubic area.”9 18 U.S.C.

§ 2256(2)(A)(v).

In short, a warrant application explaining that an

individual with two 20-year-old convictions was in legal

possession of two non-pornographic images while traveling

through Canada is insufficient to support probable cause to

search his home computers in Washington for child

pornography.10 We therefore conclude that Agent Ensley’s

9

We note that “[o]ur task, like that of the magistrate judge and the

district court, ‘is simply to make a common-sense decision . . . .’”

Brunette, 256 F.3d at 16 (quoting Illinois v. Gates, 462 U.S. at 238).

10

Quoting United States v. McCarty, 648 F.3d 820, 839 (9th

Cir.2011), that “the government is not required to prove that all or any of

the photographs actually exhibited child pornography in order to establish

probable cause for [the defendant’s] arrest,” the dissent implies an

obverse rule under which photos are never required, regardless of the

circumstances. Dissent at 38. But that statement must be read against the

backdrop of controlling law that McCarty recognizes, that “the officers

[must have] an objectively reasonable belief that [the defendant]

committed a crime, based on the totality of the relevant circumstances.”

648 F.3d at 839. Here, given that the images were not pornographic and

were legally possessed by Perkins in Canada, and the only other evidence

UNITED STATES V. PERKINS 25

omissions, including particularly a copy of the 987.jpg image,

were material under the second step of Franks.11

We emphasize that this was an investigation of a

suspected “lascivious” image under § 2256(2)(A)(v), the

meaning of which is subjective. Battershell, 457 F.3d at

1051. And to make that subjective determination, “we rely

on the judgment of neutral and detached magistrates to

determine whether probable cause exists . . . .” Id. at 1050.

As the First Circuit noted in Brunette, “[t]hat inherent

subjectivity is precisely why the determination should be

made by a judge, not an agent.” And that “[a] judge cannot

ordinarily make this determination without . . . a look at the

allegedly pornographic images . . . .” 256 F.3d at 18.12

tendered in support of probable cause was two 20-year-old convictions,

Agent Ensley’s “belief that [Perkins] committed crimes related to child

pornography was [not] an objectively reasonable one.” Id. at 840.

11

The dissent criticizes the majority for “fail[ing] to adequately

address the fact that Agent Ensley’s expert conclusion that one of the

images was child pornography would remain in a corrected affidavit.”

Dissent at 36. But a corrected affidavit would also contain Constable

Ullock’s expert conclusion that the image was not pornography – that the

image had “no obvious sexual purpose.” This split of expert opinion only

heightens the need to make the image available for the magistrate’s

independent review. In this regard, we note that the best the dissent can

muster up is that the image is “borderline.” Id.

12

Our determination that in § 2256(2)(A)(v) investigations, search

warrant applications should ordinarily include copies of the offending

images is not contrary to Battershell, in which we observed that “failing

to include a photograph in a warrant application is not fatal to establishing

probable cause.” 457 F.3d at 1053. There, we were concerned with

investigations into possible violations of § 2256(2)(A)(i)–(iv), not with a

possible violation of subdivision (v). Contrary to the dissent’s argument,

Battershell confirms, rather than contradicts, our approach. There, we

26 UNITED STATES V. PERKINS

IV.

We hold that the district court clearly erred in finding that

Agent Ensley did not omit relevant information with at least

a reckless disregard for whether the omissions would render

the warrant application misleading. Had the omitted

information been included, the application would not have

supported probable cause. We, therefore, reverse the district

court’s denial of the motion to suppress evidence obtained

pursuant to the search warrant, and vacate Perkins’

conviction. The case is remanded for further proceedings

consistent with this opinion.

REVERSED, conviction VACATED, and

REMANDED.

held that “[t]he fifth category, which turns on the meaning of ‘lascivious,’

is far more subjective and open to interpretation than the first four.”

Battershell, 457 F.3d at 1051. Because of this, the court in Battershell

concluded that “Officer Lobdell’s terse description, absent an

accompanying photograph, is insufficient to establish probable cause that

the photograph lasciviously exhibited the genitals or pubic area because

his conclusory statement is an inherently subjective analysis and it is

unclear if the photograph exhibited the young female’s genitals or pubic

area.” Id. (emphasis added) (citations omitted). Moreover, the Battershell

court’s subsequent statement that “failing to include a photograph in a

warrant application is not fatal to establishing probable cause” was in

reference to a second photograph that depicted a child engaged in sexual

intercourse, which was deemed to be sexually explicit under one of the

first four categories of § 2256(2)(A). Id. at 1053. The 989.jpg image here

more closely resembles the first image in Battershell, which depicts a

naked young female in a bathtub, than it does the second image, which

depicts intercourse.

UNITED STATES V. PERKINS 27

MURGUIA, Circuit Judge, dissenting:

Charles Perkins was arrested when he attempted to pass

through airport security in Toronto, Canada while carrying a

laptop that contained two images of nude female children. A

later search of his home computer revealed that Perkins

collected more than 600 images and 10 videos of child

pornography. Today, the majority holds that Perkins cannot

be convicted for his collection. The majority makes three

fatal errors: it fails to afford the district court its due

deference, retroactively applies a new rule that is likely

unsupported by our case law, and improperly weighs the

totality of circumstances in a probable cause determination.

First, the majority’s review of cold hearing transcripts

leads it to mistakenly conclude that the district court judge

who heard live testimony could not plausibly believe Agent

Ensley. Second, even assuming that Agent Ensley made

reckless omissions in his probable cause affidavit, his failure

to include the two images in his search warrant application

cannot be considered reckless or deliberate because Agent

Ensley was under no obligation at that time to produce the

images in the first place. Finally, even assuming Agent

Ensley was somehow reckless in not including the images in

the search warrant application, the totality of the

circumstances described in a corrected application—which

would include copies of the images, Agent Ensley’s expert

conclusion that one of the images was child pornography, and

Perkins’ previous convictions for incest and child

molestation—would have supported probable cause for the

search warrant. Because the majority misinterprets the

evidence and misapplies the law, I respectfully dissent.

28 UNITED STATES V. PERKINS

I.

In 2014, Perkins appealed to this panel the district court’s

denial of his motion to suppress evidence and alternative

request for a Franks hearing. Under Franks, a criminal

defendant may challenge a probable cause determination that

was based on false or incomplete information. Franks v.

Delaware, 438 U.S. 154, 155–56 (1978). A Franks hearing

has two steps. United States v. Martinez-Garcia, 397 F.3d

1205, 1214–15 (9th Cir. 2005). First, the court evaluates

whether the affiant officer intentionally or recklessly lied or

omitted material information in attempting to secure a search

warrant. Id. If the officer did not act intentionally or

recklessly, the Franks challenge fails. Ewing v. City of

Stockton, 588 F.3d 1218, 1224 (9th Cir. 2009). If the officer

did act intentionally or recklessly, the court proceeds to the

second step and inquires “whether the affidavit, once

corrected and supplemented, establishes probable cause.” Id.

If there is still probable cause for the warrant after

considering the wrongfully omitted information, the

defendant’s motion to suppress must be denied. United States

v. Ruiz, 758 F.3d 1144, 1148 (9th Cir. 2014) (“If probable

cause remains after amendment, then no constitutional error

has occurred.” (internal quotation marks omitted)).

In 2014, we concluded that the district court erred by not

granting Perkins a Franks hearing, because “Perkins . . . made

a substantial preliminary showing that two factual omissions

were recklessly or deliberately made by [Agent Ensley]

applying for a warrant to search Perkins’ home for child

pornography.” United States v. Perkins, 583 F. App’x 797,

797 (9th Cir. 2014) (emphasis added). We clearly identified

the two factual omissions. “First, although the warrant

affidavit stated that Perkins had been charged with possession

UNITED STATES V. PERKINS 29

of child pornography in Canada, it did not state that the

charge was dropped.” Id. “Second, the affidavit omitted . . .

details of the images suggesting that the images were not

pornographic,” including “the Canadian official’s observation

that the images had no ‘obvious sexual purpose.’” Id.

Contrary to the majority’s claim, we did not conclude that

Perkins made a substantial preliminary showing that Agent

Ensley recklessly or deliberately omitted “copies of the

images.” In fact, we merely noted that the two omissions

described above “were compounded by the omission of

copies of the images,” but that “failure to attach the images is

not necessarily fatal to the establishment of probable cause.”

Id.

On remand, the district court held a Franks hearing and

determined, under the first step of Franks, that Agent Ensley

did not recklessly or deliberately omit from his probable

cause affidavit the Canadian official’s descriptions of the

images or the fact that Canada dropped the charges against

Perkins. United States v. Perkins, No. CR13–96 RSM, 2015

WL 630934, at *3 (W.D. Wash. Feb. 12, 2015). Given that

we identified these two factual omissions as the only two

potentially reckless or deliberate omissions Agent Ensley

made, Perkins, 583 F. App’x at 797, the district court did not,

and was not required to, consider whether Agent Ensley

recklessly or deliberately omitted the actual images from the

search warrant application. The district court’s final order is

now before this panel.

After holding a Franks hearing, a district court’s

determination that an officer did not intentionally or

recklessly omit information is reviewed for clear error.

Martinez-Garcia, 397 F.3d at 1215 n.5. This is a high

standard, which by design is difficult to meet. See, e.g.,

30 UNITED STATES V. PERKINS

Ocean Garden, Inc. v. Marktrade Co., Inc., 953 F.2d 500, 502

(9th Cir. 1991) (“[T]o be clearly erroneous, a decision must

strike us as wrong with the force of a five-week old,

unrefrigerated dead fish.” (internal quotation marks and

ellipsis omitted)). “If the district court’s account of the

evidence is plausible in light of the record viewed in its

entirety, the court of appeals may not reverse it even though

convinced that had it been sitting as the trier of fact, it would

have weighed the evidence differently.” Anderson v. City of

Bessemer City, 470 U.S. 564, 573–74 (1985).

In this case, the majority fails to give the district court the

deference that our case law requires. The district court found

that “Agent Ensley was completely truthful and forthright”

and concluded that “Agent Ensley did not intentionally or

recklessly omit material information in order to mislead the

magistrate judge.” Perkins, 2015 WL 630934, at *3.

The district court’s conclusion is not clearly erroneous.

Agent Ensley, an expert in combatting child pornography and

child exploitation crimes, adequately explained to the district

court that he omitted the Canadian no-charge decision

because of the differences between the Canadian and

American definitions of child pornography. He explained

that the genital or pubic area of an individual has to be the

prominent feature in the image to qualify as child

pornography in Canada. Canadian law defines child

pornography as the visual representation of a child where the

“dominant characteristic . . . is the depiction, for a sexual

purpose, of a sexual organ.” Criminal Code of Canada,

R.S.C. 1986, ch. C-46, § 163.1(1)(ii). This “dominant

purpose” test is a strict requirement that does not have a

perfect match in U.S. law. In the United States, an image can

be pornographic if it is “lascivious”—a test that involves a

UNITED STATES V. PERKINS 31

non-exclusive list of six factors that we have said is “merely

a starting point for determining whether a particular image is

so presented by the photographer as to arouse or satisfy the

sexual cravings of a voyeur.” United States v. Overton, 573

F.3d 679, 686 (9th Cir. 2009) (internal quotation marks

omitted). Agent Ensley also said that it never occurred to him

to mention the Canadian detective’s no-charge decision, and

that foreign officials’ charging decisions do not affect his

evaluation of whether a suspect has violated U.S. law. Agent

Ensley’s decision for omitting the Canadian no-charge

decision was reasonable.

More importantly, the district court’s account of Agent

Ensley’s explanation was surely plausible. See Anderson,

470 U.S. at 573–74. After watching and listening to Agent

Ensley testify in court about his thought process, the district

court credited Agent Ensley’s testimony in its entirety and

found that he did not intentionally or recklessly omit

information. Given that a reviewing court’s level of

deference is even greater “[w]hen findings are based on

determinations regarding the credibility of witnesses”

because “only the trial judge can be aware of the [witness’s]

demeanor,” id., at 575, it is not a surprise that we have

apparently never before held that a district court committed

clear error by crediting an officer’s explanation for an

omission. This case should not be the first time we do so.

I cannot agree with the majority’s determination that the

district court judge, who observed Agent Ensley’s testimony,

came to an implausible conclusion about Agent Ensley’s

motivations. I would affirm the district court’s decision at the

first step of the Franks analysis and limit the probable cause

inquiry to Agent Ensley’s affidavit. See Ewing, 588 F.3d at

1224 (finding that good faith or negligent omissions will not

32 UNITED STATES V. PERKINS

invalidate an affidavit that establishes probable cause).

Instead, the majority is putting itself in the shoes of the

district court and weighing the evidence differently, which we

are not allowed to do.

II.

Even assuming that Agent Ensley committed some

reckless omissions in his probable cause affidavit, Agent

Ensley’s failure to include the two challenged images in his

search warrant application cannot be considered a reckless

omission. At the time Agent Ensley submitted his

application, it was the custom in the Western District of

Washington to not produce the images as part of a search

warrant application. And our case law did not clearly

establish that copies of images alleged to be “lascivious”

under § 2256(2)(A)(v) needed to be included in a search

warrant application.

The majority concludes that Agent Ensley recklessly

omitted from the search warrant application: “(1) the fact that

Canadian authorities dropped the child pornography

possession charge against Perkins; (2) important portions of

[the Canadian detective’s] description of the 989.jpg image;

and (3) copies of the images.” Thus, according to the

majority, a corrected affidavit would have included Agent

Ensley’s affidavit, supplemented by (1) statements that the

Canadian authorities dropped any charges against Perkins, (2)

the Canadian detective’s descriptions of 989.jpg, and (3) the

actual images. Since the images would be produced, the

majority concludes, Agent Ensley’s written description of the

images would be irrelevant. I disagree with the majority’s

description of what was required to be included in the

corrected affidavit. Because Agent Ensley did not recklessly

UNITED STATES V. PERKINS 33

omit the images, the corrected affidavit need not include the

images, and Agent Ensley’s expert descriptions of the images

would not be extraneous.

The majority justifies its conclusion that Agent Ensley

recklessly omitted copies of the images by stating “[g]iven

the circumstances of this case, Agent Ensley was required to

provide copies of the images for the magistrate’s independent

review.” In so holding, the majority does not clearly identify

what “circumstances of this case” required production of the

image. The majority’s holding appears to suggest that any

search warrant application based on potential violations of 18

U.S.C. § 2256(2)(A)(v), which defines child pornography as

the “lascivious exhibition of the genitals or pubic area of any

person,” must be accompanied by copies of the images. The

majority relies heavily on United States v. Battershell, 457

F.3d 1048 (9th Cir. 2006), in support of this new rule. But

Battershell never articulated a rule that search warrant

applications based on violations of § 2256(2)(A)(v) must

always contain copies of the images. In fact, the Battershell

court specifically stated that “failing to include a photograph

in a warrant application is not fatal to establishing probable

cause. Indeed, a judge may properly issue a warrant based on

factual descriptions of an image.” Id. at 1053 (citations

omitted).1

Certainly, the Battershell court stated that the fifth

category of child pornography, identified in § 2256(2)(A)(v),

1

The majority argues that this statement does not apply to images

defined under § 2256(2)(A)(v). Opinion at 25–26 n.12. I respectfully

disagree. By using the plural form of “copies” and “photographs,” the

Battershell court was referring to both types of images: those based on

§ 2256(2)(A)(i)-(iv) and § 2256(2)(A)(v). Battershell, 457 F.3d at 1053

(“It would have been preferable if the affiant in this case had included

copies of the photographs in the warrant application.” (emphasis added)).

34 UNITED STATES V. PERKINS

is more subjective and open to interpretation than the first

four categories, identified in § 2256(2)(A)(i)-(iv). Id. at

1051.2 But Battershell stopped short of establishing the rule

that the majority sets forth today. The majority relies heavily

on the statement in Battershell that the officer’s “terse

description, absent an accompanying photograph, is

insufficient to establish probable cause that the photograph

lasciviously exhibited the genitals.” Id. But the description

of the image in Battershell was significantly terser than Agent

Ensley’s thorough description in this case. In Battershell, the

officer described a photograph as “a young female (8-10

YOA) naked in a bathtub.” Id. That description likely fails

to meet § 2256(2)(A)(v)’s definition of “lascivious exhibition

of the genitals or pubic area of any person.” As the

Battershell court pointed out, the description fails to make

clear whether the photograph even “exhibited the young

female’s genitals or pubic area.” Id. Contrast that “terse”

description with Agent Ensley’s, which clearly states that the

girl’s genitals are visible:

Filename 989.jpg

File Path: c\users\cperk\pictures\0989.jpg

Description: This color image depicts a white

female (hereinafter referred to as “child

victim”) sitting on what appears to be a bed

with one arm stretched out taking a picture of

herself. The child victim is completely nude

and can been [sic] seen in the image from her

upper thigh area to the top of her forehead.

The child victim’s breasts and genital area are

2

The definitions in § 2256(2)(A)(i)-(iv) are not entirely objective.

UNITED STATES V. PERKINS 35

clearly visible. The child victim’s breasts

indicate characteristics of possible early

stages of puberty. However, the child victim

has no visible pubic hair. The child victim is

young in appearance and appears to be

between twelve and fourteen years of age.

Battershell simply does not stand for the majority’s

proposed rule that search warrant applications based on

violations of § 2256(2)(A)(v) must contain copies of the

images.3 Since there was no clear rule requiring an agent to

include copies of the images at the time Agent Ensley

submitted his search warrant application, Agent Ensley could

not have recklessly or deliberately omitted the copies.4

3

The majority also relies heavily upon United States v. Brunette, 256

F.3d 14 (1st Cir. 2001). Battershell discussed Brunette because

Battershell had argued that the Ninth Circuit should adopt the First

Circuit’s rule that “[o]rdinarily, a magistrate judge must view an image in

order to determine whether it depicts the lascivious exhibition of a child’s

genitals.” Battershell, 457 F.3d at 1053 (quoting Brunette, 256 F.3d at

19). Not only is Brunette inapplicable in this Circuit, but also Battershell

specifically refused to adopt the Brunette rule. Id. (“Thus, the more

demanding standard for establishing probable cause of ‘lascivious’ images

that the First Circuit employed in Brunette does not apply.”).

4

As noted above, this panel previously held that the district court

erred by not granting a Franks hearing based on only two potential factual

omissions: that Perkins’ Canadian child pornography charge had been

dropped and that Agent Ensley’s description of the images was different

than the Canadian detective’s description. Perkins, 583 F. App’x at 797.

Thus, the district court never considered whether the omission of the

images was reckless. Perkins, 2015 WL 630934. The district court was

not clearly erroneous for two reasons. First, we did not tell the district

court to consider whether the omission of the images was reckless.

Second, our case law did not establish that Agent Ensley was required to

include copies of the images in the first place.

36 UNITED STATES V. PERKINS

I therefore disagree that a corrected affidavit in this case

must include copies of the images. Instead, I believe a

corrected affidavit need only include what the majority

describes as “(1) the fact that Canadian authorities dropped

the child pornography possession charge against Perkins

[and] (2) important portions of [the Canadian Detective’s]

description of the 989.jpg image.”

III.

Finally, even assuming Agent Ensley was somehow

reckless in not producing the images, probable cause for the

search warrant would still exist based on a corrected affidavit

that included copies of the images, Agent Ensley’s expert

conclusion that one of the images was child pornography, and

Perkins’ previous convictions for incest and child

molestation.

Ultimately, the omissions identified by the majority were

immaterial. A corrected affidavit that included the images

would still have included Agent Ensley’s statement “I have

reviewed these images of suspected child pornography and

would conclude that the image ‘989.jpg.’ meets the federal

definition of child pornography.” The majority fails to

adequately address the fact that Agent Ensley’s expert

conclusion that one of the images was child pornography

would remain in a corrected affidavit. The images in this

case are at the very least borderline child pornography. And

a magistrate judge reviewing the images would have been

assisted by Agent Ensley’s conclusion, based on his working

over 200 cases involving child pornography and child

exploitation, that 989.jpg qualified as child pornography.

UNITED STATES V. PERKINS 37

Moreover, the images alone support probable cause. The

majority concludes that the images are not pornographic

because the subject is not posed in a sexual position, and

there is not a lascivious exhibition of her genitals. I

respectfully disagree. The child in the 989.jpg image is fully

nude, her pubic area is visible, and the image suggests

“sexual coyness.” United States v. Dost, 636 F. Supp. 828,

832 (S.D. Cal. 1986), aff’d sub nom. United States v.

Wiegand, 812 F.2d 1239 (9th Cir. 1987). This is not a child

in a bathtub. It is hard to imagine a purpose for the image

other than to “elicit a sexual response in the viewer.” Id. The

majority, citing language from Dost, argues that 989.jpg is

not lascivious because the child is not sitting with her open

legs in the foreground and is sitting in an ordinary way for her

age. But the majority’s references to Dost are based on

examples in which the court was hypothesizing about images

that included at least partially clothed children. See id. (“If,

for example, she is dressed in a sexually seductive manner,

with her open legs in the foreground, the photograph would

most likely constitute a lascivious exhibition of the genitals.

. . . [I]f the girl is wearing clothing appropriate for her age

and is sitting in an ordinary way for her age, the visual

depiction may not constitute a ‘lascivious exhibition’ of the

genitals, despite the fact that the genitals are visible.”

(emphasis added)). The majority concludes, “Other than the

fact that the subject is nude, the image lacks any traits that

would make it sexually suggestive” and that “if the subject

were clothed, this would be a completely unremarkable

photo.” However, if we could assume away the nudity in any

image of child pornography, it would dramatically affect the

pornographic nature of the image. Here, the child in 989.jpg

is nude.

38 UNITED STATES V. PERKINS

But even if the majority were correct that the images are

not lascivious, I must point out that such a borderline image

could support a finding of probable cause. There is probable

cause to search a location if there is a “fair probability” that

contraband would be found there. United States v. Gourde,

440 F.3d 1065, 1069 (9th Cir. 2006) (en banc). The majority

oddly focuses on whether the images are in fact child

pornography. But our case law is absolutely clear that the

images need not necessarily be pornographic in order to

suggest a fair probability that the suspect possesses

contraband. United States v. McCarty, 648 F.3d 820, 839

(9th Cir. 2011) (“[T]he government is not required to prove

that all or any of the photographs actually exhibited child

pornography in order to establish probable cause for [the

defendant’s] arrest.”).5 We have been clear that an affidavit

does not need to set forth a prima facie case in order to

establish a fair probability that the defendant possesses

contraband. Gourde, 440 F.3d at 1069, 1073. Therefore,

considering the totality of the circumstances, a corrected

affidavit that included copies of the images would support

probable cause for a search warrant.

5

The majority discovers an implicit rule in my citation to McCarty

that photos are never required in a search warrant application, regardless

of the circumstances, and criticizes this “obverse” rule because Agent

Ensley’s belief that Perkins committed child pornography crimes was, in

their opinion, not objectively reasonable. Opinion at 24, n.10. Having

thoroughly searched my dissent, I disagree that I have implied such a rule.

In fact, I am not opposed to a rule that generally requires images to be

included in a search warrant affidavit. But, as McCarty makes clear, our

case law simply does not command it, and I certainly cannot say that the

district court clearly erred by concluding that Agent Ensley did not

recklessly omit relevant information.

UNITED STATES V. PERKINS 39

IV.

After conducting a live hearing with in-person testimony

from Agent Ensley, the district court credited Agent Ensley’s

explanation for omitting the Canadian description of the

images and the Canadian no-charge decision and

affirmatively concluded that Agent Ensley was truthful. Yet

the majority reverses the district court’s decision because it

did not accept Agent Ensley’s explanation for distinguishing

Canadian from American law. Even assuming that the

district court clearly erred in crediting Agent Ensley, the

majority inappropriately holds Agent Enlsey reckless for not

following a rule that was not clearly established at the time he

submitted his search warrant application. I would conclude,

consistent with our holding in Battershell that, although it is

preferable to include copies of the images, a corrected

affidavit did not require including copies of the images.

Agent Enlsey therefore could not have recklessly omitted

copies of the images. But even assuming for the sake of

argument that the majority is correct and that Agent Enlsey

recklessly omitted copies of the images, the totality of the

circumstances in a corrected affidavit that included copies of

the images, Agent Ensley’s expert conclusion that one of the

images was child pornography, and Perkins’ previous

convictions for incest and child molestation, would still

demonstrate a fair probability that Perkins possessed child

pornography.

Again, because the majority fails to afford the district

court its due deference, retroactively applies a new rule that

is likely unsupported by our case law, and improperly weighs

the totality of circumstances in a probable cause

determination, I respectfully dissent.