On March 13, 2017, the Ninth Circuit Court of Appeal held, in the case of United States v. Perkins, 2017 U.S. App. LEXIS 4364, that a United States Homeland Security agent acted with reckless disregard for the truth when the agent omitted exculpatory information from an application for a search warrant in a child pornography investigation. As a result, the Ninth Circuit vacated the conviction for receipt of child pornography that was found as a result of the search following the issuance of the warrant.
Charles Perkins, a registered sex offender, was arrested while traveling through Canada after Canadian authorities found two potentially pornographic images of underage girls on his computer. Canadian authorities eventually decided not to prosecute Perkins because, in their determination, the images were not pornographic even though they depicted nude and underage girls. Under the Canadian definition of child pornography, the image must have a sexual purpose, and the composition of the images on Perkin’s computer did not suggest one.
However, American authorities undertook their own investigation when Perkins returned to his home in the State of Washington. Homeland Security Special Agent Ensley obtained the two images and the Canadian authorities’ description of those images, and used those descriptions to apply for a search warrant to search Perkin’s home. In his search warrant application, Ensley omitted the fact that Canadian officials determined the two images were not considered child pornography under Canadian law, omitted the description that genitalia was not prominently depicted, and did not attach the images themselves for the Magistrate’s review. The warrant application also made mention of Perkins’ 20-year-old prior convictions for sex-related crimes.
The Magistrate issued the search warrant, child pornography was found in Perkins’ home, and he was charged in Federal District Court with receipt of child pornography. Perkins moved to suppress these pornographic images, arguing that the search warrant lacked probable cause, or in the alternative, that Agent Ensley deliberately or recklessly omitted material facts from the search warrant application which would entitle Perkins to a special hearing under Franks v. Delaware, 438 U.S. 154 (1978). The District Court denied the motion, Perkins appealed, and the Ninth Circuit ordered the District Court to conduct the Franks hearing to determine (1) if Agent Ensley “intentionally or recklessly made false or misleading statements or omissions” in support of the search warrant application, and if so, (2) whether these false or misleading statements or omissions were necessary to the finding of probable cause.
At the Franks hearing, Agent Ensley testified that he didn’t attach the photos from Canadian authorities because it was not general practice to do so. He also testified that he omitted the fact that Canadian authorities determined the images were not child pornography because he believed this was irrelevant to establishing probable cause under United States law. When pressed, Ensley could not articulate a difference between the Canadian requirement that child pornography have a “sexual purpose” and the American requirement that it be “lascivious.”
The District Court determined that Agent Ensley did not intentionally or recklessly mislead the Magistrate when applying for the search warrant. Again the motion to suppress was denied, and Perkins appealed.
Ninth Circuit Decision
In reviewing the District Court’s determinations, the Ninth Circuit first noted that ordinarily, “a Magistrate must view an image to determine whether it depicts the lascivious exhibition of a child’s genitals” rather than relying on an officer’s characterization. Also, the Ninth Circuit held that “sufficient information must be presented to the Magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others.”
The Ninth Circuit held that by omitting the fact that Canadian authorities determined the images were not pornographic, omitting descriptions from Canadian authorities that only a small portion of the child’s genitalia was shown, and omitting the images themselves, Agent Hensley misled the Magistrate and “acted with at least a reckless disregard for the truth.” Further, these actions demonstrated a “clear, intentional pattern” of selectively including information bolstering probable cause while omitting information that did not. The Court stated that prior case law established that an officer can mislead a Magistrate by “reporting less than the total story, thereby manipulating the inferences a Magistrate will draw.” Further, the Ninth Circuit stated that “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.”
Because the Ninth Circuit held that Agent Ensley acted with a reckless disregard for the truth, it moved on to the second step in the Franks analysis; namely, whether probable cause remains once the evidence presented to the Magistrate is supplemented with the challenged omissions. The Ninth Circuit found that if the images themselves were properly submitted to the Magistrate, Agent Ensley’s misleading descriptions of them would be unnecessary. Thus, the only potentially suspicious fact upon which to base a finding of probable cause would be Perkins’ 20-year-old convictions, and the images themselves, both of which the Ninth Circuit found did not establish probable cause.
The Ninth Circuit noted that prior precedent established that “the bare inference that those who molest children are likely to possess child pornography…does not establish probable cause to search a suspected child molester’s home for pornography.” Further, Agent Ensley’s search warrant application did not explain why these 20-year-old convictions made it more likely that child pornography would be found in Perkins’ home.
Finally, after reviewing the images, the Ninth Circuit applied the six-factor test articulated in United States v. Dost, 636 F. Supp. 828 (S.D. Cal., 1986) and found that the images were not “lascivious” and therefore not pornography. It found the images, while depicting nude children, did not depict a “lascivious exhibition of the genitals or pubic area.”
For these reasons, the Ninth Circuit reversed the District Court and vacated Perkins’ conviction.
HOW THIS AFFECTS YOUR AGENCY
This case serves as a reminder that all relevant facts and evidence available to a law enforcement officer should be provided in a search warrant affidavit in order to avoid later challenges to the warrant under the Franks doctrine. This is particularly true of any exculpatory facts or other evidence in the possession of the officer applying for a warrant. In the context of applying for search warrants to investigate child pornography cases, officers may wish to consider attaching any potentially pornographic image upon which the officer may be relying on in part to establish probable cause for the warrant to the reviewing Magistrate, instead of merely describing it in the supporting affidavit. This would undermine the argument in later challenges to the warrant, that the officer’s description of the image selectively omitted details that do not support probable cause.
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