Lead Opinion
Dissent by Judge MURGUIA
OPINION
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.
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 Ul-lock 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
[[Image here]]
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
[[Image here]]
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^] 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 firsthand review on January 14, 2013. Prior to receiving the images, Agent Ensley drafted an affidavit, based on Constable Ul-lock’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
After reviewing the images for himself, Agent. Ensley included the following descriptions in his affidavit:
Filename 997.jpg
[[Image here]]
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
[[Image here]]
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,
Perkins appealed. On July 25, 2014, we reversed the district court’s. denial of a Franks hearing. United States v. Perkins,
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 Ul-lock’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,
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,
‘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,
III.
Preliminarily, we note that in the search warrant affidavit, Agent Ensley
Perkins argues that Agent Ens-ley 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.
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,
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
The district court accepted Agent Ens-ley’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.
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] ... manipulating] the infer-
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,
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,
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,
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.”
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.
1. Prior Convictions
We áre persuaded that the convictions are only marginally relevant, if
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 ehildren[.]” 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,
The age of Perkins’ convictions further diminishes any marginal relevance they may have had. As explained in United States v. Falso,
The government, citing United States v. Colbert,
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.
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,
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;
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,
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
Other than the fact that the subject is nude, the image lacks any traits that would make it sexually suggestive. But “not all images of nude children are pornographic.” Hill,
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.
We emphasize that this was an investigation of a suspected “lascivious” image under § 2256(2)(A)(v), the meaning of
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 furthér proceedings consistent with this opinion.
REVERSED, conviction VACATED, and REMANDED.
Notes
. We did not reach Perkins’ appeal from the denial of his motion to suppress. Perkins,
. 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 1125. But our earlier mandate contained no such limitation. We reversed and remanded for further proceedings, including the holding of a Franks hear-
. Canadian Criminal Code 163.l(l)(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,
. 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.
. 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,
.The dissent asserts that we make a "fatal error” by "retroactively appl[ying] a new rule.” Dissent at 1123-24; see also > id. at
. Citing United States v. Krupa,
. 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.
. 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,
. Quoting United States v. McCarty,
.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 1128. 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.
. 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.”
Dissenting Opinion
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 con
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,
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,
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,
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,
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,
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(l)(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 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,
More importantly, the district court’s account of Agent Ensley’s explanation was surely plausible. See Anderson,
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 Énsley’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,
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 ease 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 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,
Certainly, the Battershell court stated that the fifth category of child pornography, identified in § 2256(2)(A)(v), is more subjective and open to interpretation than the first four categories, identified in § 2256(2) (A) (i)-(iv). Id. at 1051.
Filename 989.jpg
File Path: c*users*eperk*pie-tures*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' 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.
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.
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,
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,
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 Ensley 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 Bat-tershell that, although it is preferable to include copies of the images, a corrected affidavit did not require including copies of the images. Agent Ensley 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 Ensley recklessly omitted copies of the images, the totality of the circumstances in a corrected affidavit that included copies of the images, Agent Ens-ley’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
. The majority argues that this statement does not apply to images defined under § 2256(2)(A)(v). Opinion at 1123 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 § 225 6(2)(A)(i) — (iv) and § 2256(2)(A)(v). Battershell,
. The definitions in § 2256(2)(A)(i)-(iv) are not entirely objective. ■ t
. The majority also relies heavily upon United States v. Brunette,
.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
. 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 1122, 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, oúr 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.