United States v. Charles Perkins

1326(a).7 rely tencing provision theless conclude that it could not on 8 U.S.C. Vera, See United States v. accuracy specif- those documents for the 1232, 2014). especially ic dates. This is true because susceptible such details are more to inac- However, the district court judge ex- by cutting curacies caused actions like and pressed during views both a pre-trial hear- pasting from other documents. ing following his failure to consult

counsel when he jury received the note reasonably that could lead the defendant question jury’s There is no task question presence of bias. Because in answering special finding was sim- we do not think that the district court ple: either the date of Martinez’s removal judge put would be able to these views out was after or it December was not. of his mind and in order preserve However, there is much cause to conclude appearance justice, upon remand the finding by was influenced Clerk of the United States District Court court’s error: the evidence of the docu- for the Southern District of California unreliability, ments’ the failure to instruct reassign shall this case to a different dis- proof, on the the court’s burden mis- trict court judge for further proceedings. leading response jury to the note that Working, See United States v. effectively lessened the government’s bur- proof, den of eight the bare minutes VACATED; that elapsed jury’s between the note and REMANDED. guilty

its return of the verdict with the finding. say

removal date cannot We unlikely

the court’s error was so to affect special finding it was harmless

beyond a reasonable doubt. V. America, UNITED STATES hold that We the court erred re- Plaintiff-Appellee, sponding jury to the note without consult- 43(a) counsel,

ing in violation of Rule PERKINS, Charles Glenn Furthermore, the Sixth Amendment. we Defendant-Appellant. hold that the court’s error was not harm- beyond less a reasonable doubt with re- No. 15-30035 spect jury’s to the special finding. Because Appeals, United States Court of finding statutory increased the maxi- Ninth Circuit. mum sentence for which Martinez eli- was gible, we vacate Martinez’s sentence and 22, 2016, Argued and Submitted June remand, special finding. strike the On Francisco, San California government may retry elect to the removal Filed March date issue a sentencing jury, before or it may request that the district court resen- two-year

tence Martinez under the sen- special 7. We finding, only do not reverse Martinez's conviction lated to its which bore on jury properly because the instructed on statutory maximum sentence. charge guilty and returned a verdict unre- Lai, Corey (argued) Endo and Vicki Office, Seattle, Federal Public Defender’s Washington, Defendanb-Appellant. Luthy (argued), Teal Miller Assistant Attorney; Hayes, United States Annette L. Attorney, United States Western District Washington; Office of the United States Seattle, Attorney, Washington; for Plain- tiff-Appellee. KLEINFELD,

Before: J. A. ANDREW TASHIMA, and MARY H. WALLACE MURGUIA, Judges. Circuit by Judge Dissent MURGUIA OPINION TASHIMA, Judge: Circuit appeals Perkins Charles his conviction receipt pornography. of child Perkins guilty plea, reserving entered a conditional the right appeal the district court’s de- nial of motion suppress his evidence obtained from his home computers pursu- ant to a search warrant. The district court motion, concluding denied the in- vestigating agent not deliberately did magistrate judge by mislead the omitting material information from the application. warrant The court also found there was justify cause to jurisdiction pursuant the search. We have to 28 U.S.C. and we reverse. I. Investigation A. The Canadian 29, 2012, Perkins, On December Charles then-52-year-old citizen of the United States, traveling through Toronto In- Airport ternational way on his home to Washington taking trip State after Chile with his wife and mother-in-law. Ca- (“CBSA”) Agency nadian Border Services stopped learning officers Perkins after registered that he was a sex offender. first-degree Perkins had a 1987 incest con- are not the dominant feature of the im- first-degree and a 1990 viction moles- age, and there is no obvious sexual pur- tation conviction. A CBSA officer searched pose to image. Therefore this image and, laptop carrying that Perkins was does not meet the Canadian Criminal “cperk,” in a im- folder labeled found two Code definition of pornography. ages pornogra- that he believed to be child Image 2: Filename 989.jpg (“PRP”) Aphy. Regional Peel Police offi- and, cer also reviewed based on Description: This is an aof Cau- review, his arrested Perkins for casian female that I would estimate to CBSA authorities ages be between the years of 13 to 14 laptop, along digital seized the cam- age. girl This sitting and appears to memory era and a card. taking be a picture of herself holding Ullock, day, The next Constable Andrew out a camera with right slightly her arm specializing investiga- a PRP officer looking above her head down on her.... crimes, exploitation tion of child inter- girl completely This nude and towards viewed Perkins. Perkins stated that the bottom of picture a small portion belonged to laptop his wife and that his vagina of her can be seen.... However computers were at his in Washing- home photo the view of girls’ [sic] wife, T.W., ton. Perkins’ confirmed that vagina makes it a minor aspect of the mostly laptop, she used the but that Per- photo, drapes and her hair over much of occasionally it. kins used Constable Ullock breasts, her which their decrease^] examined luggage Perkins’ and additional- prominence. Again there is no clear and card, ly memory a digital memory seized a purpose obvious sexual to picture, the stick, phone. and cellular Pursuant to a which means it does not meet the Crimi- warrant, Canadian search Constable Ul- nal Code of Canada definition of child laptop lock searched the and found the two pornography. images original- that the CBSA officer had Based on Constable Ullock’s recommenda- ly discovered. Constable Ullock did not tion, charge against Perkins was any suspected find other contraband in the 10, dropped January on digital or in of laptop the other de- vices. Investigation B. The American reviewing images, After Constable The case was Special forwarded to they Ullock concluded that did not consti- Agent Tim of the United States pornography tute child under Canadian Department Security. Agent of Homeland In report investigation, law. his he Ensley images received the for first- two describes the two as follows: 14, January hand review on 2013. Prior to Image 1: Filename 997.jpg receiving images, Agent Ensley draft- affidavit,

ed based on Constable Ul- Description: This is a Caucasian female report, support appli- lock’s of a warrant that I would to digital estimate be between the cation to search all the devices in ages years age. to Washington. of 13 of Perkins’ home The affida- only her from up, explained shows the mid torso vit that Canadian officers including girl appears stopped prior her face. The to Perkins because of his con- clearly be nude and her are him reviewing breasts victions arrested after spite images. visible.... of the fact that this The affidavit not did state 18, girl age charge is under the of her breasts had been dropped pursuant 2013, January magistrate issued determination that the On Ullock’s Constable the warrant. pornographic. images were Suppress Perkins’ Motion to C. himself, reviewing After Hearing Request for a Franks following de- Agent. Ensley included scriptions in his affidavit: pursuant The search to the warrant re- pornography vealed several of child 997.jpg

Filename computers, on Perkins’ and he was receipt one count of of child charged with image depicts This color Description: and one count of (hereinafter referred to as white female Perkins moved to victim”) edge sitting on “child evidence, suppress arguing to be a bed. The appears what lacked cause. Alterna- warrant to be naked at least from appears victim tively, argued Perkins and can be seen from mid- up, the waist deliberately omitted material her top to the head. The abdomen affidavit, entitling from the him to a facts are visi- child victim’s breasts Delaware, hearing under Franks young in .... The child victim is ble U.S. 98 S.Ct. 57 L.Ed.2d 667 to be appearance appears between (1978). The district court denied the mo- years age. and fourteen twelve 6, 2013, entirety. tion its On June Per- conditionally guilty pleaded kins to one Filename pornography, count of receipt re- serving right appeal the district Description: depicts This color suppress court’s decision on his motion to (hereinafter referred to as white female hearing. and for a Franks The district victim”) sitting appears what “child on court sentenced Perkins to an 180-month be a bed with one arm stretched out imprisonment. term of taking picture of herself. The child 2014, 25, appealed. July Perkins On we and can completely victim is nude be reversed the district denial of a court’s. in upper thigh seen from her Perkins, hearing. Franks v. United States top area to the of her forehead. The (9th 2014).1 796, Fed.Appx. 583 797 Cir. genital child victim’s breasts and area that, concluded based on Ens- We clearly are The child victim visible.... ley’s dropping omissions of: the of the young appears appearance and charge; portions Canadian of Constable years be between twelve and fourteen description images; Ullock’s age. copies images, Perkins had made a Agent Ensley concluded that the second preliminary showing substantial (hereinafter referred to as the “989.- Agent Ensley deliberately recklessly or jpg image”) met the federal definition of potentially omitted material information. applica- The warrant Id. remanded to the district We court to image. hearing. of either hold a Franks Id.2 tion did include required appeal We reach from the ... was not to consider whether 1. did not Perkins’ Perkins, Agent Ensley recklessly deliberately suppress. omit- denial of his motion to 583 ("We ted the actual from the search warrant Fed.Appx. at 797 do not reach his mo- application.” Dissent at 1125. But our earlier suppress.”). tion to mandate contained no such limitation. We prior proceed- 2. The dissent reads our reversal more reversed and remanded for further ings, including holding narrowly, concluding of a Franks that "the district court hear- The Franks Hearing probable again D. cause and denied Perkins’ motion to suppress. United States v. Per- The district court held the Franks hear- kins, (W.D. 2015). 2015 WL 630934 Wash. 13, Agent Ensley ing on November timely appealed. Perkins only was the witness. He testified that it “general practice” in the was the Western II. Washington provide cop- District of not to review for We clear error a dis at issue. ies findings trict court’s that an affidavit did further testified that he omitted the fact not contain purposefully false dropped that Canadian authorities statements or omissions. United States v. charge against Perkins because he be- Elliott, (9th 322 F.3d Cir. lieved this fact was “irrelevant to [his] “Review under the erroneous stan U.S., development probable cause deferential, significantly dard is ‘requiring based on U.S. laws.” for reversal a firm definite and conviction Agent Ensley also testified about his ” that a mistake has been committed.’ Id. that, drafting process. prior He stated Maldonado, United States (quoting images, already “fully had receiving the he 2000)). F.3d Cir. We review using drafted” the affidavit Ul- Constable de novo the district court’s determination report. lock’s He used' Constable Ullock’s “whether lacking be descriptions “temporary as a filler” in the alleged cause of misstatements or omis ultimately portions draft but omitted affidavit.” Id. supporting sions “legal he deemed to be irrelevant conclu- Reeves, (quoting United States v. sions ... based on Canadian law.” Howev- 2000)). “Whether er, pressed when about the differences omissions or are misstatements material is pornog- between Canadian U.S. child question a mixed of law fact which we laws, raphy conceded that (citation omitted). also review de novo.” Id. purpose” requirement the “sexual under require- law and the Canadian “lascivious” are also obligated, pos ‘We where “connected, ment under law were ob- U.S. sible, legal to review de novo the determi viously way. in a certain The lascivious given image depicts nation that a a ‘lascivi ” aspect exhibition —It does have a sexual United genitals.’ ous exhibition of the it, genitalia, yes.” a sexual exhibition of the Brunette, (1st States v. 14, 17 Agent Ensley admitted that whether an 2001) (footnote omitted) (quoting United image depicts the lascivious exhibition of Amirault, (1st States v. 28, 173 F.3d 32-33 (and genitals pubic or area is therefore 1999). In respect, Cir. task “[o]ur [is law) “very pornographic under U.S. sub- just] like magistrate judge that of the and However, jective.” he maintained that it district court ... ‘simply prac to make a “very was clear to [him]” tical, common-sense Id. at decision....’” was child Gates, 213, Illinois v. (quoting 16 462 U.S. 11, 2015, (1983). February 238, 2317,

On the district court 103 S.Ct. 76 L.Ed.2d 527 concluded that did not inten- III. tionally recklessly magis- or mislead the prior Preliminarily, trate. The court reaffirmed its we note that in the affidavit, Agent Ensley determination that the affidavit established search warrant Perkins, tag. Fed.Appx. suppress at 797. As noted from the denial of the motion to earlier, 1, supra, see footnote we did reach based. See id. probable appeal cause issue on which the Franks, 989.jpg image met we hold that the district opined court pornography denying un- erred in suppress. federal definition his motion to 2256(2)(A)(v), § the “lascivi- der 18 U.S.C. Disregard A. Intentional or Reckless genitals pubic or area ous exhibition of for the Truth any person.” first four cate- “[t]he While gories ‘sexually explicit conduct’ under [of Franks, step Under the first 22546(2)(A) specific conduct deal ] the defendant show a preponder must identify to and describe ... easy ance of the evidence that the affiant know category, fifth which turns on the [t]he ingly intentionally, or with reckless ‘lascivious,’ subjec- is far meaning of more truth, disregard for the made false or mis interpretation to than the open tive and leading in support statements or omissions Battershell, first four.” States v. United application. of the warrant Martinez-Gar 2006) 1048, (citing cia, negligent 397 F.3d at 1214. A or inno 18)). Brunette, Battershell, 256 F.3d at cent mistake does suppres not warrant Brunette, noted that we further Franks, 171, sion. 438 U.S. at 98 S.Ct. ‘ordinarily, mag- First Circuit “held that warrant affidavit must set forth “[A] judge istrate must view an in order particular facts and ... circumstances so depicts to determine whether it the lascivi- magistrate as to allow the an make ” genitals.’ of a child’s at ous exhibition Id. independent evaluation of the matter.” Id. 19). Brunette, (quoting 256 F.3d at added). (emphasis 98 S.Ct. 2674 presented “Sufficient information must be argues Perkins Ens- magistrate to the to allow that official to ley intentionally recklessly ma omitted cause; probable determine his action can appli terial information from the warrant not be a mere ratification of the bare that, cation and had that information been Gates, conclusions of others.” Illinois included, application would not have 462 U.S. at 103 S.Ct. 2317. An officer Franks, supported cause. Under presenting a application search warrant right a criminal defendant has the to chal faith, duty provide, good has a all veracity lenge of statements made relevant magistrate. information to the support application for a search war Hill, United States v. 971 n.6 155-56, rant. 438 U.S. at 2674. To 98 S.Ct. prevail challenge, on Franks the defen things by pre dant must establish two omitted from the first, (1) ponderance of the evidence: that “the application: search warrant the fact intentionally affiant officer that Canadian authorities dropped the made false or misleading statements or charge warrant[,]” in support against omissions Perkins because the were second, (2) misleading that the false or state not pornographic; important portions of material, i.e., ment or omission was description “neces Constable Ullock’s of the 989.- (3) sary finding probable cause.” jpg image; images. United At Martinez-Garcia, affidavit, States v. the time Agent he submitted the 2005). If require Ensley 1214-15 both knew of the dropped charge and of met, ments are “the search warrant must description, Constable Ullock’s and had images. Indeed, be voided and the fruits of the search he testi ” Franks, excluded.... report 438 U.S. 98 fied that he used Constable Ullock’s starting point S.Ct. 2674. Because we conclude that Per as the template —a —in prongs drafting kins has established both under own his affidavit. We conclude Ensley Agent that omitted relevant infor- ence between Canada’s “sexual purpose” in requirement mation from the affidavit that resulted and the U.S.’s “lascivious” re- quirement. misleading impression that 989.- He also acknowledged that whether jpg unequivocally requirement was child either is met is a circumstances, subjective Thus, Given these we conclude determination. he could hardly identify any finding that the district court’s that material distinction be- laws, tween the two intentionally despite opin- did not or his own they ion that “extremely were magistrate mislead the different.” errone- ous. He acted at least a reckless Second, Agent Ensley’s testimony is be- disregard by failing for the truth to fur- by lied his own affidavit. Agent Ensley’s magistrate nish to the repeatedly stated that he omitted Consta- his omissions of portions of Consta- opinions ble Ullock’s about the be- which, report, ble Ullock’s had to be fresh they were based on irrelevant Cana- mind, magistrate’s indepen- his for the dian Agent Ensley law. Yet did include the dent review. opinions who, of Canadian officials after viewing concluded, the images, presumably accepted Agent The district court Ens- law, under Canadian they porno- were ley’s explanation legal that he omitted graphic. Specifically, explained he authorities, from opinions Canadian which “the CBSA officer believed [one question he deemed irrelevant to the images] to pornography,” be child and that probable cause under U.S. law. Notwith- a PRP officer arrested Perkins after re- standing significant deference afforded lines, viewing images. Along those court, agree to the district we cannot affidavit stated that Perkins was arrested First, explanation. this is credible PRP after the officer reviewed the two Ensley’s testimony that Canadian and U.S. images, but omitted the fact “extremely are different” is not plau- laws charge dropped 15-year after veter- During hearing, Agent sible. the Franks officer, specializing investigation in the Ensley accurately respective described the crimes, exploitation examined pornography definitions of child under Ca- those they same two and concluded nadian and U.S. laws.3 He summarized were not pornographic. containing Canadian law as require- three (1) clear, ments: individual must be under 18 These reveal a inten- omissions (2) old; years genital pubic pattern Agent Ensley’s area tional actions: prominent selectively must be the feature of the visu- he included information bolster- (3) cause, depiction; al ing probable omitting there must be sexual while infor- purpose. recognized But conceded that mation that not. did We have requirements magistrate the first two are similar un- that an affiant can mislead a “[b]y der law. As for requirement, reporting story, U.S. the third less than the total meaningful [thereby] he could not articulate a ... manipulating] differ- the infer- 163.l(l)(ii) genitals pubic 3. Canadian Criminal Code defines hibition of the area.” Id. representation 2256(2)(A)(v). as a visual depiction § Whether a is “las- aof child where the "dominant characteristic factors, depends including civious” on several depiction, purpose, ... is the for a sexual of a point geni- on whether the focal the child’s law, organ.” pornog- sexual Under U.S. pubic depiction talia or area and whether the raphy depiction is the visual of a minor en- designed elicit a re- is intended or sexual gaging "sexually explicit conduct.” 18 Overton, sponse in the viewer. United States v. 2256(8). here, "sexually U.S.C. As relevant explicit conduct” includes the "lascivious ex- magistrate point will draw.” United ness include whether the focal enees a (9th Stanert, v. 762 F.2d depiction genitalia pubic States is on the child’s (9th 1985), by amended 769 F.2d 1410 Cir. depiction area and whether the visual is 1985). Ensley Agent presented a Cir. designed intended or to elicit a sexual events and overstated skewed version of response). Agent Ensley knowingly ex- incriminating images. nature of the the parts cised unfavorable of Constable Ul- This is not unlike the situation United description.4 place, lock’s In their he (8th Jacobs, 986 F.2d 1231 Cir. States conclusory in a manner that opined the 1993), where the affiant acted at least genital “clearly area was visible”—a char- correctly he stated that when misleading, acterization that was at best.5 an “interest” in the drug dog the showed By incomplete an providing and mislead package, but omitted the fact defendant’s ing withholding recitation of the facts and drug dog failed to an official make images, effectively Similarly, although at “alert.” Id. 1234-35. usurped magistrate’s duty to conduct Ensley correctly Agent stated that Perkins independent an of probable evaluation was arrested based on two Canadian offi- Lull, cause. See United States v. 824 F.3d images, cers’ review of the he failed to 2016) 109, 116-17 (holding Cir. that an magistrate expert that an inform the re- recklessly by affiant acted at least omitting view of those same led to the credibility facts about an informant’s charge being dropped. “usurp[ed] magistrate’s role” deter Ensley’s description Nor was of cause). mining probable image Whether 989.jpg image a substitute for reliable depicts the exhibition of the “lascivious Agent Ensley knowingly itself. genitals pubic any person,” area of excluded relevant information contained in therefore constitutes child pornography, is description Constable Ullock’s of the 989.- Battershell, subjective determination. jpg image. Specifically, he omitted Consta- subjec 457 F.3d 1051. ‘inherent “[S]uch explanation ble Ullock’s that “[t]owards tivity precisely why is the determination picture portion the bottom of the a small of judge,’ should be made not the affi- vagina her can be and that “the view seen” Pavulak, ant.” United States v. girls’ vagina of a minor makes it [sic] (3d 2012) Brunette, (quoting aspect 'photo[.]” Details about 18). 256 F.3d at Given the circumstances of placement prominence genitalia is case, required highly determining relevant to whether an Overton, provide copies magis image is lascivious. See (factors Instead, in determining independent at 686 trate’s lascivious- review.6 he Agent Ensley's testimony Agent Ensley’s apparent purpose 4. that he removed “bed.” portions description legal attesting speculation that were to that as a fact is be conclusions based on irrelevant Canadian law cause it is one of the See Dost factors. United above, Dost, (S.D. F.Supp. credible. recited is not As he could not States v. Cal. 1986) ("whether explain any significant setting difference between the de visual i.e., por- piction sexually suggestive, place U.S. and Canadian definitions in a activity”), Additionally, nography. generally the omitted details ... associated sexual descriptions, legal Wiegand, factual were conclu- d sub nom. United States v. af f' sions. 812 F.2d 1239 The Dost fac III.B.2, fully tors are discussed in Part infra. Agent Ensley's description girl "sitting states that the we on what 6.The dissent asserts that make a "fatal appears by "retroactively appl[ying] to be a bed.” Constable Ullock's de- error” a new > omits, 1123-24; scription accurately, any mention of a rule.” Dissent at see also id. at merely proffered his own conclusion about remains once the presented evidence to incomplete based on an 989.jpg image, magistrate judge the the is supplemented with Ruiz, misleading description image. challenged omissions.” duty Agent Ens- This was a breach of the 1149. Probable cause to search a loca- to the court. See United States v. if, ley tion totality owed exists based on the (9th Ruiz, 1144, circumstances, Cir. there ais “fair probability” that may evidence of a crime be found sum, the record leaves us with a Hill, (citation there. 459 F.3d at 970 omit- definite and firm conviction that the dis- ted). clearly finding trict court erred that corrected, Agent Ensley did not act with at least a Once the search ap- warrant disregard plication reckless for the truth. Because would include a copy of the 989.- (and required jpg image “omitted facts 997.jpg image) any technically prevent probable true statements cause determination would be being misleading,” affidavit from we now based on a direct images review of the Thus, question turn to the of whether the affida- Agent Ensley’s themselves. written vit, supplemented, description “once corrected and es- of images are extraneous. cause.” Id. at 1148 probable Apart images, tablishes from the which were found Stockton, City (quoting Ewing v. “cperk” 588 in the laptop, folder of the Per- 2009)). 1218,1223 20-year-old F.3d kins’ two convictions are the only potentially other suspicious fact.7 Un- B. Probable Cause circumstances, der these we conclude that step Under second application corrected warrant would not Franks, question support is whether the omit probable cause. “material”; is,

ted fact is whether it is 1. Prior Convictions “necessary finding to the of probable 156, cause.” 438 U.S. at 98 S.Ct. 2674. The persuaded We áre relevant, key inquiry probable only marginally is “whether convictions are if (contending 1127-28 n.4 the district base in which children resided for which court did not err because "our case law did military police report had received a required not establish that was contrast, neglect.” By Id. at 1178-79. to include in the first place Perkins was not found in an unusual place”). But it has been established presence questionable. where his mere was Kentucky, law at least since Griffith He arrived in Toronto with his wife and moth- U.S. 107 S.Ct. 93 L.Ed.2d 649 completing er-in-law after a cruise to Chile. (1987), "that a new rule conduct of ongoing contemporaneous No incident or re- prosecutions applied criminal is to be retroac- port stop led Canadian border authorities to cases, federal, tively pending state or on all Perkins. No children were involved. Perkins final, yet excep- direct review or not with no only prior stopped was because of his convic- tion for cases in which the new rule consti- tions, which, below, explained sup- as do not past.” tutes a ‘clear break’ with the Id. at port probable 107 S.Ct. 708. cause. Given that he had been traveling, technology the amount of he was Citing Krupa, United States v. 658 F.3d 1174 (a camera, carrying laptop, digital three mem- 2011), government gestures cards, ory phone) suspi- and a cell was not the "circumstances” under which the Moreover, cious. a search of all these devices argues they support were found and only possible revealed the two as con- probable Krupa, cause. In we held that there And, out, traband. as it turned Perkins was cause to search the defendant’s contraband, i.e., not in computers, "unquestionably based on the sus- pornography, possessed at the locus where he picious” computers circumstances of "15 un- suspected images, Krupa Canada. does apparent der the control of a civilian no military government’s position. military support ties to the in a home on history pornography “can possessing criminal be child absent suspect’s at all. A cause, es establishing any allegation of a correlation probable in. between helpful (citation omitted)). or con previous arrest types two crimes.” pecially where gener of the same a crime involves viction age of convictions The Perkins’ further seeking the one the warrant al as nature any marginal they diminishes relevance Nora, v. 765 to United States uncover.” had. in may explained have As United (9th 2014) (quoting 1059 Cir. F.3d (2d Falso, 110 States v. Cir. Bernardino, Cty. 41 San Greenstreet 2008), length elapses time that be- 1994)). (9th However, Cir. 1309 F.3d prior a crime and the suspected tween only to is relevant a conviction past probable offense is relevant to the cause that evi increases the likelihood extent it Falso, analysis. Id. at In the court suspected will be found. crime dence of 18-year-old deemed defendant’s sexual (holding prior that the defendant’s See id. of a minor as “only abuse conviction mar- speak did not to the firearms convictions suspected relevant” ginally to child- a probability “whether fair existed issue of pornography Although offense. Id. ... owned other firearms that [he] recognized “there are court cases marginal prob to the thus are of relevance may a appropriate where it be for district us”). issue before bare “[T]he able cause crime[,] court to consider a dated sex for those children who molest inference example, where ongo- there is evidence of ... likely possess child are ing impropriety,” the affidavit did probable to search not establish does “bridge gap between temporal Falso’s child home for molester’s child suspected eighteen-year old sex offense the sus- Needham, pornography.” United States v. (ci- pected child-pornography offense.” Id. (9th 1190, 1195 F.3d Cir. 718 omitted). here, tation Likewise there is Perkins had prior two convictions: nothing 20-year-old to connect Perkins’s first-degree one for incest 1987 one convictions to there was whether a fair first-degree for child molestation 1990. probability that had child pornog- Perkins why explain affidavit does not these The raphy on his computer. home convictions, twenty years both more than government, citing United States v. old, pornog it more likely made that child Colbert, 2010), 605 F.3d 573 ar- raphy would be found on Perkins’ home gues that is an intuitive relation- “[t]here most, At offers computers. child ship between acts such as molesta- boilerplate description pornogra of a child tion enticement and collector, phy characterized as someone pornography.” The govern- Id. at 578. “may gratification, who receive sexual misplaced. ment’s reliance on Colbert stimulation, and satisfaction from contact Colbert, police obtained a warrant Such state generalized ehildren[.]” por- search the defendant’s home for ment, which “was not drafted with the report after nography receiving a particular facts of this case or defen had mind,” attempted defendant to entice a five- proba support dant does little to year-old park at a him Weber, to follow to his ble cause. United States v. 1990); he apartment, “where he claimed had mov- F.2d see also (“Pavulak’s Pavulak, prior things at ies for her watch and other Thus, not suffi her to do.” Id. at child-molestation convictions are 577-78. war- proba very place hint at rant was for where cient to establish even to “the Colbert alone wholly separate expressed ble cause as to the crime had a desire to be with a five-year-old girl.” Id. 578. The court whether those constituted child explained: See, Battershell, e.g., 1051-53; Hill, F.3d at attempt

Colbert’s to entice a child was a 459 F.3d at 970-71 (“Thus judicial factor that the reasonably precise question officer more we must could have considered in answer determining is whether the officer’s affidavit whether likely possessed Colbert established cause that the pornography, all the in light more so of on the computer defendant’s were—as de- the evidence that heightened Colbert the lascivious.”). typical The starting scribed — allure of his attempted inveiglement by point for determining particular whether a telling the child that he had movies she image lascivious, is porno- therefore would like to watch. That information graphic, is the six-factor test in articulated established a direct link to Colbert’s Dost, 636 F.Supp. 828. Those factors are: apartment question and raised a fair as 1) whether the focal point of the visual to the nature of the materials to which depiction is on the genitalia child’s or he had referred. area; pubic added). words, (emphasis Id. In other the 2) setting whether of the visual warrant to search the defendant’s home depiction sexually i.e., is suggestive, in a for child pornography was based on the place or pose, generally associated with defendant’s “contemporaneous attempt activity; sexual child,” during entice a which the defendant materials, viewing establishing referenced 3) whether the child is depicted in an a common link between the two crimes. Id. pose, unnatural or in inappropriate at- added). (emphasis cry at 577 This ais far tire, child; considering age suspicion from a that Perkins’ home com- 4) fully whether the child partially is or puters pornography contained child based clothed, nude; on his child molestation conviction from years ago. more than 20 5) whether the visual depiction sug- any Absent explanation why as to Per- gests coyness sexual or a willingness to 20-year-old kins’ convictions made it more engage in sexual activity; likely that possessed he child pornography, 6) depiction whether the visual in- is we conclude that the convictions do not designed tended or to elicit a sexual support probable cause. response in the viewer. Images at Id. 832. The Dost factors “are neither conclusive,” exclusive nor may and courts question

We now turn to the “any may consider other factor that be images, whether the two found Overton, in particular relevant case.” “cperk” laptop folder of the that Perkins F.3d 686-87. Canada, passing through carried while are sufficient to establish a fair probability legally We first note that Perkins pos- pornography there was child on Per 989.jpg sessed both 997.jpg images computer kins’ home in Washington. We done, in Canada. When all was said and conclude the answer is no. Canadian authorities concluded that nei-

In cases of suspected posses ther pornographic. We conclude sion of where the war that the 997.jpg image does not constitute rant application relies on the pornography, government individual’s and the images, of certain we assess does contend otherwise. That leaves sitting tured with sexual items. She is image.8 image appears The herself, selfie, subject age.” In- “ordinary way taken in an for her Id.

be a angle clothed, the camera at an holding deed, subject who is if the were shooting her head and slightly above pho- completely would be a unremarkable image captures sub- downwards. whole, we con- Viewing to. as thigh. upper to her ject’s forehead down clude, test, six-factor under Dost angle,' her head and torso Because depict it does not the “lascivious exhibition image and cast a shadow predominate pubic area.”9 18 U.S.C. genitals area, pictured which is genital on 2256(2)(A)(v). right-hand corner. She the far bottom short, application explain- a warrant down, although it is unclear on sitting 20-year-old ing that an individual with two what. legal possession of two convictions was subject fact that Other than the non-pornographic traveling while nude, any traits that would image the lacks through support is insufficient' to Canada sexually But all suggestive. it “not make comput- his probable cause to search home images pornographic.” of nude children are Washington pornography.10 ers in for child 970; Dost, Hill, F.3d at see also 636 Agent Ensley’s that therefore conclude We (“[T]he depiction visual F.Supp. at 832 omissions, including particularly copy a of may not constitute a ‘lascivious exhibition’ 987.jpg image, the were material under the fact that the genitals, despite step of Franks.11 second visible.”). subject The is not genitals are an emphasize We that this was investi- with, position in a sexual for exam- posed image gation suspected of a “lascivious” foreground.” in open legs “her ple, 2256(2)(A)(v), Dost, pic- meaning at is not under of F.Supp. 832. She image 997.jpg objectively an reasonable belief [must have] 8. Neither the nor crime, govern- image part a of the record. The that committed a based [the defendant] is however, ment, concurrently filing totality with the of on the of the relevant circumstances.” brief, Here, answering given images leave to filed a motion for F.3d at 839. that the its un- pornographic legally pos- file electronic of these two were not and were Canada, granted unopposed We motion only der seal. sessed Perkins in and the government for its candor. support proba- and commend other evidence tendered in convictions, images. panel 20-year-old has viewed both The ble was two cause Agent Ensley’s "belief that commit- [Perkins] pornography ted crimes related to child task, that like that of the "[o]ur 9. We note objectively court, reasonable one.” Id. at [rcoi] judge magistrate and the district ‘is 840. simply to make a common-sense deci- Brunette, (quoting ..” 256 F.3d at 16 sion. Gates, Illinois v. 462 U.S. at 103 S.Ct. majority 11.The dissent criticizes the (cid:127) "fail[ing] adequately the fact that address Agent Ensley’s expert conclusion that one of pornography was child would re- McCarty, Quoting 10. United States in a corrected- affidavit.” Dissent at main (9th Cir.2011), government that "the But a corrected affidavit would also required prove that all or is not expert contain Constable Ullock’s conclusion photographs actually pornog- exhibited image that the was not probable raphy in order to establish cause for —that arrest,” image purpose.” had "no obvious sexual This implies the dissent [the defendant’s] split expert heightens opinion only the need photos under which are never an obverse rule magis- regardless to make the available for the required, the circumstances. independent regard, review. In this we at 1129. But that must be trate’s Dissent statement up controlling that the best the dissent can muster is against backdrop of law note read Id. McCarty recognizes, that "the officers is "borderline.” that Battershell, subjective. REVERSED, which VACATED, conviction subjective at 1051. And to make de- REMANDED.

termination, rely judgment “we on the MURGUIA, Circuit Judge, dissenting: magistrates neutral and detached to deter- ” probable mine cause exists.... whether Charles Perkins was arrested when he Id. 1050. As First Circuit noted attempted to pass through airport security Brunette, subjectivity inherent “[t]hat Toronto, carrying Canada while laptop a precisely why the determination should be contained two of nude female by judge, agent.” made not an And that A children. later search of his home com- judge ordinarily cannot make “[a] this de- puter revealed Perkins collected more termination without ... a look at alleg- than 600 images and 10 videos of child ” edly pornographic images.... 256 F.3d at pornography. Today, majority holds 18.12 that Perkins cannot be convicted for his collection. majority makes three fatal IV. errors: it fails to afford the district court deference, retroactively its due applies a We hold that the district court likely new rule that is unsupported by our finding erred in did not law, case and improperly weighs the totali- omit relevant information with at least ty of circumstances disregard for reckless whether the omis- determination. application sions would render the warrant First, misleading. Had the omitted information the majority’s review of cold hear- included, application ing transcripts been would not it mistakenly leads to con- We, supported probable have cause. there- clude that judge the district court who fore, reverse the district court’s denial of heard -live testimony plausibly could not suppress Second, the motion to evidence obtained Agent Ensley. believe even assum- warrant, to the pursuant ing search and vacate made reckless omis- affidavit, Perkins’ conviction. The case is remanded in probable sions his his proceedings for furthér images consistent with failure to include the two in his opinion. application search warrant cannot con- be 2256(2)(A)(v) 12. Our determination that in § probable fident to establish cause that the investigations, applications photograph lasciviously genitals search warrant exhibited the ordinarily copies pubic conclusory should include of the offend- or area because his state- Battershell, ing images contrary inherently subjective analysis is not to in ment is an "failing photograph which we observed that a to include it is unclear if the exhibited the photograph application young genitals pubic in a warrant is not female's area.” Id. added) (citations omitted). establishing probable (emphasis fatal cause.” 457 More- There, over, subsequent F.3d at 1053. we were concerned with the Battershell court’s state- investigations possible "failing photograph into ment violations of include a in to. 2256(2)(A)(i)-(iv), § possible application not with a viola- a warrant is not fatal to establish- (v). Contrary ing probable tion of to the subdivision dis- cause” was in reference to a confirms, argument, photograph depicted sent's Battershell rather second a child en- contradicts, There, intercourse, approach. gaged than our we in sexual which was category, sexually explicit "[t]he held that fifth which turns on deemed to be under one of 'lascivious,' 2256(2)(A). meaning categories far more sub- the first four Id. at jective open interpretation 989.jpg image closely than the 1053. The here more Battershell, Battershell, first four.” 457 F.3d at 1051. Be- resembles the first which this, bathtub, depicts young cause of court in Battershell conclud- a naked female in description, image, depicts ed that "Officer Lobdell’s terse than it does the second which accompanying photograph, absent is insuf- intercourse. 2014) (“If 1144, or deliberate because reckless sidered amendment, obligation under no after then no Ensley was cause remains (inter- the first produce that time error has occurred.” constitutional Ens- assuming Agent Finally, omitted)). even place. quotation nal marks including in not ley reckless was somehow that the district In we concluded applica- images in the search warrant granting Perkins a court erred de- tion, totality of the circumstances Franks “Perkins ... hearing, because application in a corrected scribed —which preliminary showing made a substantial images, Agent include would that two factual omissions were conclusion that one of the Ensley’s expert by [Agent Ensley] deliberately made and Per- pornography, images was Perkins’ applying for a warrant to search convictions for incest and previous kins’ United pornography.” home for child supported have molestation —would Perkins, States Fed.Appx. Be- for the search warrant. probable cause 2014) added). (emphasis We misinterprets the evi- majority cause the law, the two factual omissions. respectful- I identified misapplies dence “First, affidavit stat- although the warrant ly dissent. charged that Perkins had been ed I. Canada, panel charge appealed Perkins to this it not state did “Second, Id. his motion to the district court’s denial of the affidavit omit- dropped.” request and alternative suppress images suggesting evidence ... ted details Franks, for a Franks hearing. Under pornographic,” were not may challenge proba- criminal defendant official’s observa- including “the Canadian on ble cause determination that was based had no ‘obvious sexual tion that the ” incomplete information. Franks v. false or Id. Contrary majority’s to the purpose.’ Delaware, 154, 155-56, 98 S.Ct. 438 U.S. claim, that Perkins we did not conclude (1978). A Franks 2674, 57 L.Ed.2d 667 showing preliminary made a substantial States v. United steps. hearing has two Ensley recklessly or deliberate- Martinez-Garcia, 1205, 1214-15 397 F.3d fact, ly “copies images.” omitted of the (9th 2005). First, the court evaluates Cir. merely noted that the two omissions we intentionally affiant officer or whether the by the compounded above “were described recklessly lied or omitted material infor- images,” but that omission of a search attempting mation in secure “failure to attach the is not neces- Id. If the officer did not act warrant. sarily proba- fatal to the establishment of the Franks recklessly, intentionally or cause.” Id. ble Stockton, Ewing City challenge fails. remand, the district court held a On (9th 2009). 1218, 1224 If the 588 F.3d Cir. determined, under the Franks hearing and officer did intentionally recklessly, act or Franks, step first did step proceeds the court to the second recklessly deliberately not or omit from his affidavit, inquires “whether the once cor- offi- probable cause affidavit Canadian supplemented, rected establishes descriptions or the fact cial’s probable cause.” Id. proba- If still there is dropped charges against that Canada considering ble for the warrant after Perkins, States v. United Perkins. No. information, wrongfully omitted RSM, 630934, 2015 at *3 CR13-96 WL suppress must be defendant’s motion (W.D. Ruiz, 12, Given that we denied. United States v. Wash. Feb. these two factual omissions as identified differences between the Canadian and only potentially two reckless or delib- American definitions of made, erate omissions Per- explained that genital or pubic area He. kins, 797, Fed.Appx. the district of an individual has to prominent be the not, to, not required court did feature in the qualify as child Agent Ensley recklessly consider whether pornography in Canada. Canadian law de- deliberately or omitted the actual fines child pornography as the rep- visual application. from the search warrant resentation of a child where the “dominant final district court’s' order is now before characteristic ... is the depiction, for a panel. purpose, sexual of a organ.” sexual Crimi- Canada, 1986, nal Code of C-46, R.S.C. ch. holding hearing, After a Franks a dis- 163.1(l)(ii). This “dominant purpose” trict court’s determination that an officer requirement test is strict that does not intentionally in- did omit perfect have a match in U.S. law. In the formation is reviewed for clear error. Mar- States, United an image porno- can be tinez-Garcia, 397 F.3d at 1215 n.5. This is graphic if it is “lascivious”—a test standard, high by design which is diffi- involves a non-exclusive list of six factors See, Garden, e.g., cult to meet. Ocean Inc. that we “merely starting have said is Co., Inc., v. Marktrade point determining particular whether a 1991) (“[T]o erroneous, be presented is so photographer wrong a decision must strike us as satisfy as to arouse cravings the sexual old, unrefrigerated the force of a five-week voyeur.” Overton, of a (internal United States v. quotation dead fish.” marks and 2009) (internal F.3d omitted)). quo- “If ellipsis the district court’s omitted). Agent Ensley tation marks also plausible account of the evidence is in light said that it never him occurred to to men- entirety, record viewed its tion the no-charge Canadian detective’s de- appeals may court of not reverse it even cision, foreign and that officials’ charging though convinced that had it been sitting decisions do not affect his evaluation of fact, it weighed as trier of would have whether a suspect has violated U.S. law. differently.” City the evidence Anderson v. Agent Ensley’s decision for omitting the 564, 573-74, City, Bessemer 470 U.S. no-charge Canadian decision was (1985). reason- 105 S.Ct. 84 L.Ed.2d 518 able. case, majority give In this fails to

the district court the deference that our importantly, More the district court’s ac- requires. case law The district court found Agent Ensley’s explanation count of was “Agent Ensley that completely was truth- Anderson, surely plausible. See U.S. forthright” ful and and concluded that 573-74, at watching 105 S.Ct. 1504. After “Agent Ensley intentionally did not or listening Agent Ensley testify and to recklessly omit material information in or- thought process, court about his the dis- der to magistrate judge.” mislead the Per- trict Agent Ensley’s court credited testi- kins, 2015 WL at *3. mony in entirety its and found that he did

The district intentionally recklessly court’s conclusion is not not or omit infor- clearly Agent Ensley, expert reviewing erroneous. an mation. Given that a court’s lev- “[wjhen in combatting greater and child el of deference is even crimes, exploitation adequately explained findings are based on determinations re- to the garding credibility district court that he omitted the of witnesses” be- no-charge “only judge Canadian decision because of cause the trial can be aware of (3) of the demeanor,” id., image; copies 105 the the [witness’s] Thus, majority, according to the images.” that we have surprise not a it is S.Ct. have included affidavit would corrected held that a district before never apparently affidavit, Ensley’s supplemented Agent by crediting clear error court committed omission; (1) authori- that the Canadian statements for explanation an officer’s Perkins, any charges against dropped ties time we not be the first should This case (2) descriptions the Canadian detective’s do so. (3) images. 989.jpg, and the actual of majority’s deter- with the agree I cannot images produced, be Since the would judge, who the district court that mination concludes, Ensley’s majority Agent writ- testimony, came Ensley’s Agent observed ir- description images of the would be ten Agent conclusion about implausible 'to an disagree majority’s I relevant. I would affirm motivations. Énsley’s in- description required of to be what of step decision at the first court’s district in the corrected affidavit. Because cluded analysis probable and limit the the Franks Ensley not omit the Agent did Ensley’s affidavit. inquiry Agent cause need not images, the corrected affidavit (finding that 588 F.3d at Ewing, See Ensley’s images, Agent include the not negligent omissions will good faith descriptions images of the would expert an affidavit that establishes invalidate not be extraneous. cause). Instead, majority probable in the itself shoes district putting justifies its conclusion that majority The weighing the evidence different- court Ensley recklessly copies omitted of Agent are not allowed to do. ly, which we images by stating “[g]iven the circum- case, Agent Ensley was stances of this. II. required provide copies assuming Agent com- Even magistrate’s independent review.” in his some reckless omissions mitted majority clearly holding, In so does affidavit, Ensley’s “circumstances of this case” identify what im- challenged failure to include two image. The ma- required production can- application in his search warrant ages suggest jority’s holding appears At considered a omission. not be reckless based on any application search warrant appli- submitted his the time of 18 U.S.C. potential violations cation, in the it was the custom Western 2256(2)(A)(v), por- § which defines Washington produce of to not District nography as the “lascivious exhibition applica- part as of search warrant genitals pubic person,” area law did not tion. And our ease accompanied by copies of im- must be alleged to establish heavily ages. majority The relies on Unit- 2256(2)(A)(v) § need- “lascivious” under be Battershell, ed 457 F.3d 1048 States in a search warrant ed to be included 2006), this new rule. But support application. never articulated a rule that Battershell based on viola- applications search warrant majority concludes 2256(2)(A)(v) always tions of must con- Ensley recklessly omitted from the warrant, “(1) fact, the copies images. the fact tain of the application: search stated that specifically the Battershell court dropped that authorities Canadian in a “failing photograph include a war- charge (2) establishing Perkins; is not fatal to portions application of rant against important Indeed, judge may prop- probable cause. a description of detective’s] Canadian [the

1127 Ensley’s, Agent which clear- scription de- on factual based erly issue a warrant are (cita- girl’s genitals that the visible: ly states image.” Id. at of an scriptions Filename omitted).1 tions c*users*eperk*pie- File Path: court stated Certainly, the Battershell tures*0989.jpg pornogra- category fifth

that the image depicts a Description: This color 2256(2)(A)(v), § is more in identified phy, (hereinafter referred to as female white than interpretation open to subjective and victim”) appears sitting on what “child categories, identified four the first out a bed with one arm stretched to be 2256(2)(A)(i)-(iv). 1051.2But Bat- Id. at § The child taking picture a of herself. establishing short of stopped tershell can been completely nude and victim today. majority sets forth rule her upper in the from seen [sic] on the state- heavily majority relies her forehead. thigh top area to the of the officer’s “terse ment Battershell genital The child victim’s breasts accompanying pho- an description,- absent clearly visible. The child vic- area are' proba- to establish insufficient of tograph, is indicate characteristics tim’s breasts lasciviously photograph early stages puberty. of Howev- possible that the ble cause er, pubic child victim has no visible But the de- genitals.” Id. exhibited young ap- The child victim is hair. was image in Battershell scription to be between appears pearance Ensley’s Agent than terser significantly years age. and fourteen twelve Bat- in this case. In description thorough tershell, photograph officer described for the simply does not stand Battershell YOA) (8-10 naked in female young as “a rule that search war- majority’s proposed likely fails description That Id. bathtub.” violations of based on applications rant 2256(2)(A)(v)’s of “las- 2256(2)(A)(v) § definition copies to meet must contain § ' genitals pubic no clear rule civious exhibition there was images.3 Since the Battershell agent As to include person.” requiring area Ensley out, description fails to submit- at the time pointed court application, even warrant photograph ted his search clear whether make recklessly or delib- not have genitals or could young female’s “exhibited copies.4 erately omitted de- that “terse” Id. Contrast pubic area.” Batter- because discussed Brunette Battershell argues statement does majority that this 1. The argued Ninth Circuit should that the shell had under defined apply not "[ojrdinari rule that adopt the First Circuit’s 2256(2)(A)(v). Opinion n.12. I re at 1123 § image in view an ly, magistrate must judge plural By using the form disagree. spectfully depicts it whether to determine order Batter "photographs,” the "copies” and genitals.” child's of a lascivious exhibition referring types of to both shell court Battershell, (quoting Bru F.3d at 1053 6(2)(A)(i) (iv) § 225 images: based on those — nette, 19). only Brunette Not F.3d at Battershell, 2256(2)(A)(v). § Circuit, also Batter- this but inapplicable in (“It preferable if the been would have adopt Brunette specifically refused shell copies of the had included in this case affiant ("Thus, demanding stan the more rule. Id. (em application.” in the warrant photographs establishing probable cause of ‘las dard added)). phasis Circuit em the First civious’ ' apply.”). ployed does not in Brunette 2256(2)(A)(i)-(iv) are definitions in 2. The n entirely objective. above, previously not held panel 4.As noted t granting a erred district court potential only hearing on two based heavily upon Franks majority United also relies 3. The Canadian Perkins’ Brunette, (1st factual omissions: F.3d 14 States disagree Moreover, I that a therefore corrected images the support alone in copies affidavit this case must include of probable majority cause. The concludes Instead, I believe a images. the corrected images are not pornographic be only major- affidavit need include what the subject cause the not posed is in a sexual “(1) ity as the fact describes that Canadian position, and there is not a lascivious exhi dropped pornography authorities the child bition of her genitals. respectfully I dis (2) possession charge against Perkins [and] agree. The child in the 989.jpg image is important portions of Canadian Detec- [the nude, fully pubic visible, her area is description 989.jpg image.” of the tive’s] image the suggests coyness.” “sexual Unit Dost, ed States v. F.Supp. III. (S.D. 1986), Cal. sub nom. United aff'd Finally, assuming even Wiegand, States v. 812 F.2d 1239 was somehow reckless in producing This is not a in child a bathtub. It is images, probable the cause for the search hard to imagine purpose for the warrant would still exist based on a cor- other than to “elicit a sexual response rected affidavit that copies included of the the majority, viewer.” Id. The citing lan images, Agent Ensley’s expert conclusion Dost, guage argues from that 989.jpg is that images one the was child pornogra- not lascivious because the child is not sit phy, and Perkins’ previous convictions for ting open with her legs in the foreground incest and child molestation. sitting and is in an ordinary way for her age. But the majority’s references to Dost

Ultimately, the by omissions identified are based on examples in which the court majority were immaterial. A corrected hypothesizing was images about in affidavit that included images would cluded at partially least clothed children. Agent Ensley’s still have included state- (“If, See id. example, for she is dressed in ment “I have images reviewed these sexually manner, seductive with her open suspected child pornography and would legs foreground, in the the photograph conclude that image ‘989.jpg.’ meets likely would most constitute a lascivious federal definition of pornogra- child exhibition of genitals. ... phy.” majority girl The [I]f fails to adequately ad- wearing clothing appropriate Agent dress the fact that for her Ensley’s expert age and is sitting ordinary conclusion way that one of the images was child age, her pornography depiction visual may would remain in a not con corrected stitute a images affidavit. The ‘lascivious exhibition’ geni this case are at the tals, very despite least borderline child the fact that genitals are added)). magistrate judge And a visible.” reviewing (emphasis the im- majority ages concludes, would have been Agent assisted “Other than the fact that Ensley’s conclusion, nude, subject based on his working lacks traits over involving 200 cases sexually would make it suggestive” exploitation, and child quali- subject and that “if clothed, were fied as child pornography. would completely be a pho- unremarkable pornography charge dropped had been trict .court was not erroneous for two First, Ensley’s description reasons. we did not tell the district images was different than the Canadian de- court to consider whether the omission of the Perkins, description. Second,

tective's Fed.Appx. was reckless. our case law Thus, at 797. the district court never consid- did not establish that was re- ered whether the omission of quired to include in the Perkins, reckless. place. 630934. The dis- WL first Agent Ensley’s ex- away the district court credited However, could assume if we to.” pornography, de- any omitting in for the Canadian nudity planation porno- the dramatically affect it would scription images of the and the Canadian Here, image. the nature of the graphic affirmatively and con- no-charge decision nude. in is child Ensley truthful. Yet Agent cluded that majority majority were correct reverses the district court’s But if the the even lascivious, I are not must images accept Agent that it did not decision because such a borderline out that point Ensley’s explanation distinguishing for Ca- finding probable of cause. support a could assuming Even nadian from American law. a cause to search loca- probable There clearly that the district court erred probability” a “fair tion if there is crediting Ensley, majority inap- Agent be found there. United would contraband Ensley reckless propriately Agent holds Gourde, v. States following a rule that was not clear- banc). 2006) (en majority oddly time he his ly established submitted are in fact focuses on whether con- application. warrant I would search case law is But our pornography. child clude, holding with our Bat- consistent images need not absolutely that the clear that, although preferable it is tershell in order to pornographic necessarily be images, a corrected copies include suspect probability a fair suggest including copies of require affidavit did not United States possesses contraband. could images. Agent therefore 2011) 820, 839 McCarty, 648 F.3d recklessly copies omitted not have (“[T]he required to is not government assuming for the sake of images. But even photographs all or prove that majority is correct and argument that the in or- child actually exhibited cop- omitted cause for [the der to establish totality the cir- images, the ies of the arrest.”).5 clear have been We defendant’s] affidavit that a corrected cumstances need to set forth does not that an affidavit Ens- images, Agent copies included a in order to establish facie case prima that one of the expert conclusion possess- ley’s that the defendant fair probability Gourde, 440 F.3d at and Per- pornography, was child es contraband. Therefore, considering totality for incest convictions previous kins’ circumstances, affidavit a corrected molestation, still demonstrate would child would that included possessed that Perkins probability fair a search war- cause for support probable

rant. majority fails to af- Again, because

IV. deference, court its due ford the district rule retroactively applies new in- hearing with conducting a live After law, our case Ensley, likely unsupported testimony Agent from person implied such a rule. disagree that I have implicit rule in majority 5. The discovers fact, general- opposed to a rule that I am not McCarty photos are never my citation to in a search requires images to be included ly application, re- required in a search warrant But, circumstances, McCarty makes as warrant affidavit. and criticizes gardless of the clear, simply command does not Ensley’s oúr case law rule because this "obverse” it, certainly say that the district I cannot pornogra- that Perkins committed belief by concluding that was, objec- court erred opinion, not phy in their crimes recklessly omit relevant infor- Ensley did not tively Opinion at n.10. reasonable. dissent, thoroughly my I mation. Having searched weighs totality of circum- improperly determination,

stances in a

I dissent. respectfully America, STATES of

UNITED

Plaintiff-Appellee,

Miguel BUSTAMANTE-CONCHAS,

Defendant-Appellant.

The National Association Criminal Lawyers,

Defense Curiae. Amicus

No. 15-2025 Court of Appeals,

United States

Tenth Circuit.

FILED March

Case Details

Case Name: United States v. Charles Perkins

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 13, 2017

Citation: 850 F.3d 1109

Docket Number: 15-30035

Court Abbreviation: 9th Cir.