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United States v. Perkins

United States Court of Appeals, Ninth Circuit

March 13, 2017

United States of America, Plaintiff-Appellee,
v.
Charles Glenn Perkins, Defendant-Appellant.

          Argued and Submitted June 22, 2016 San Francisco, California

         Appeal from the United States District Court for the Western District of Washington D.C. No. 2:13-cr-00096-RSM-1 Ricardo S. Martinez, Chief District Judge, Presiding

          Corey Endo (argued) and Vicki Lai, Federal Public Defender's Office, Seattle, Washington, for Defendant-Appellant.

          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.

          Before: Andrew J. Kleinfeld, A. Wallace Tashima, and Mary H. Murguia, Circuit Judges.

         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.

          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 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 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.

         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
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, 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. 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 ...


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