Federal Appeals Court Vacates Washington Man’s Conviction Due to Investigating Agent’s Misleading Omissions

United States v. Perkins (2017)

by David S. Marshall

The Ninth Circuit Court of Appeals has vacated the conviction of Charles Perkins for receipt of child pornography. On this appeal, Mr. Perkins challenged the lower court’s denial of his motion to suppress. Mr. Perkins had argued in the motion to suppress that evidence obtained from his home computer could not be used against him at trial because the investigating agent deliberately used misleading and incomplete information to obtain a search warrant for Mr. Perkins’s home computer.

The Ninth Circuit agreed with Mr. Perkins, finding there was no probable cause (a reasonable basis for believing a crime may have been committed) to justify the search of his home computer.

Investigation in Toronto Airport

Mr. Perkins was flying home to Washington State after a trip to Chile with his wife and mother-in-law. At a layover in Toronto, Canadian Board Services Agency (CBSA) officers stopped Mr. Perkins after learning he was a registered sex offender. CBSA officers searched the laptop computer Mr. Perkins was carrying with him and discovered two images files, both of which were pictures of a girl in her early teens, one naked, one partially naked.

CBSA officers arrested and detained Mr. Perkins. However, after further review of the files by an officer specializing in the investigation of child exploitation crimes, who also interviewed Mr. Perkins, the Canadian officials determined that the images on the laptop did not meet the Canadian legal definition of child pornography. They released Mr. Perkins.

Further Investigation in Washington State

After releasing Mr. Perkins, Canadian officials forwarded his case to Agent Tim Ensley with the United States Department of Homeland Security. Before receiving the images involved in the case, however, Agent Ensley fully drafted an application for a warrant to search all digital devices in Mr. Perkins’s home in Washington, based only on the Canadian report.

In the warrant application, Agent Ensley explained that CBSA officers had stopped Mr. Perkins because of his prior convictions and arrested him after reviewing the images. However, he did not include that Canadian officials had thereafter dropped the charges after they determined the images were not pornographic under Canadian law.

After receiving and viewing those images, Agent Ensley determined the image with the entirely naked teen girl met the U.S. federal definition of child pornography, but he did not include the images themselves with his application for a warrant.

The warrant to search Mr. Perkins’s home digital devices was granted. The resulting search found child pornography on Mr. Perkins’s home computer. He was charged with one count of receipt of child pornography and one count of possession of child pornography.

Motion to Suppress Evidence from Home Computer

Mr. Perkins and his legal counsel objected right away to the way the search warrant was obtained. They filed a motion to suppress the evidence found on his home computer, and the court held a hearing. Agent Ensley testified that he had omitted the fact that Canadian authorities dropped the charge against Mr. Perkins because he believed it was “irrelevant to his development of probable cause in the U.S., based on U.S. laws.” He also said that it was the “general practice” in the Western District of Washington not to provide copies of the images at issue.

After the hearing, the district court concluded that Agent Ensley did not intentionally or recklessly mislead the judge who decided to issue the warrant. The evidence obtained from Mr. Perkins’s home computer could therefore be admitted at trial.

Mr. Perkins’s Appeal Before the Ninth Circuit: Intentional or Reckless Disregard for the Truth

Mr. Perkins argued on appeal that Agent Ensley either intentionally or recklessly omitted important information from the warrant application. Had that information been properly included, Mr. Perkins said, the application would not have supported probable cause. Under the law, to win on this claim, Mr. Perkins had to establish by a preponderance of the evidence:

  • first, that the officer intentionally or recklessly made false or misleading statements or omissions in support of the warrant
  • second, that the false or misleading statement or omission was necessary to finding probable cause

Agent Ensley omitted from the search warrant application:

  • that Canadian authorities dropped the child pornography possession charge against Mr. Perkins because the images were not pornographic
  • portions of the Canadian official’s description of the two images on the laptop
  • copies of the actual images

The Ninth Circuit found that these omissions revealed a clear, intentional pattern in Agent Ensley’s actions: selectively included information in his warrant application that bolstered probable cause and omitting information that did not. By reporting less than the total story, presenting a skewed version of events, and overstating the incriminating nature of the images, he attempted to manipulate the inferences a magistrate would draw in favor of granting the search warrant.

Did the Images Discovered on the Laptop Establish Probable Cause?

Next, the court considered whether probable cause to issue a search warrant remained when the information Agent Ensley provided to the magistrate judge was supplemented with the information he omitted. Probable cause to justify a search warrant exists if all the circumstances point to a “fair probability” that evidence of a crime may be found in the place to be searched.

In cases of suspected possession of child pornography, the court must assess whether the images in the defendant’s possession constituted child pornography. The Ninth Circuit found that neither of the photos on Mr. Perkins’s laptop was pornographic. Even the one photo that Agent Ensley had determined to be pornographic was not because, though the child was nude, nothing else in the photo conveyed sexual suggestiveness or purpose. Not all nude photographs of children constitute child pornography.

In the end, the appeals court determined that a warrant application which explained that an individual with two 20-year-old convictions was in legal possession of two non-pornographic images in Canada was insufficient to support probable cause to search his home computer in Washington for child pornography.

Therefore, the Ninth Circuit reversed the district court’s denial of the motion to suppress the seized evidence and vacated Mr. Perkins’s conviction.