United States v. Charles Perkins
2017 WL 957205
9th Cir.2017Background
- Perkins, a U.S. citizen with 1987 and 1990 sex convictions, was stopped in Toronto carrying a laptop containing two images in a folder labeled "cperk." Canadian authorities initially arrested him but a Canadian detective (Constable Ullock) later concluded the images were not child pornography and the Canadian charge was dropped.
- U.S. agent Tim Ensley obtained the two images, drafted an affidavit (partly based on Ullock’s report), and sought a warrant to search Perkins’ home computers in Washington; the affidavit described the images but did not attach them and omitted that Canada had dropped charges.
- The magistrate issued a warrant; the subsequent search uncovered many additional child‑pornography images on Perkins’ home computers. Perkins was prosecuted, moved to suppress, and sought a Franks hearing claiming Ensley deliberately or recklessly omitted material facts.
- This Court previously remanded for a Franks hearing; after the hearing the district court found no reckless or intentional omission and denied suppression.
- On appeal the Ninth Circuit majority reversed: it found Ensley acted with at least reckless disregard by omitting (1) that Canada dropped the charge, (2) portions of Ullock’s description tending to show the image was not pornographic, and (3) the images themselves; it held that, with those omissions corrected, the affidavit would not establish probable cause and vacated Perkins’s conviction.
Issues
| Issue | Perkins' Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Ensley intentionally or recklessly omitted material facts from the warrant affidavit (Franks step one) | Ensley omitted that Canada dropped charges, omitted parts of Ullock’s description that undercut pornographic character, and withheld the images, thereby misleading the magistrate | Ensley reasonably omitted Canadian legal conclusions and followed local practice by not attaching images; omissions were not intentional or reckless | Reversed: Ensley acted with at least reckless disregard by selectively including favorable facts and withholding images and key portions of Ullock’s report |
| Whether the omitted facts were material so that, if included, the affidavit would lack probable cause (Franks step two) | Inclusion of images and Ullock’s non‑pornographic findings would defeat probable cause given only two images and two 20‑year‑old convictions | Even corrected, Ensley’s expert opinion and Perkins’ convictions would still make probable cause | Reversed: Corrected affidavit would not support probable cause; images not lascivious under Dost factors, convictions too remote and marginally relevant |
| Whether agents must ordinarily provide alleged lascivious images to the magistrate in §2256(2)(A)(v) cases | Magistrate must ordinarily view images in subjective lasciviousness inquiries—so images should be supplied for independent review | Prior precedent (Battershell) does not create a bright‑line rule requiring images in every §2256(2)(A)(v) warrant application | Held that, given the subjective nature of lasciviousness and the split expert views here, Ensley was required to provide the images for magistrate review in this case |
| Admissibility/suppression remedy | Suppression required if Franks established reckless omission and materiality | Evidence should not be suppressed because probable cause would remain | Held suppression warranted: warrant voided, conviction vacated, case remanded |
Key Cases Cited
- Franks v. Delaware, 438 U.S. 154 (establishes standard for attacking warrant affidavits based on false statements or omissions)
- Illinois v. Gates, 462 U.S. 213 (totality‑of‑circumstances standard for probable cause in search warrants)
- United States v. Battershell, 457 F.3d 1048 (9th Cir. 2006) (noting subjective nature of “lascivious” and that magistrates ordinarily should view images when inquiry turns on lasciviousness)
- United States v. Brunette, 256 F.3d 14 (1st Cir. 2001) (advocates magistrate review of images to decide lasciviousness)
- United States v. Ruiz, 758 F.3d 1144 (9th Cir. 2014) (Franks materiality inquiry: whether probable cause remains after correcting omissions)
- United States v. Needham, 718 F.3d 1190 (9th Cir. 2013) (prior sexual‑offense convictions are not sufficient, by themselves, to establish probable cause for child‑pornography search)
- United States v. Stanert, 762 F.2d 775 (9th Cir. 1985) (an affiant can mislead a magistrate by reporting less than the whole story)