Reckless omission of material facts from search warrant application mandates reversal of federal receipt of child pornography conviction. After his motion to suppress evidence was denied, Perkins entered a guilty plea to receipt of child pornography. On his first appeal the Ninth Circuit reversed the district court’s denial of Perkins’ Franks hearing (Franks v. Delaware (1978) 438 U.S. 154) and remanded for further hearing. The district court concluded the affiant did not intentionally or recklessly omit material information from the warrant application and again denied the suppression motion. Perkins appealed. Held: Reversed. To prevail on a Franks challenge to a warrant affidavit, defendant must establish by a preponderance of the evidence that “the affiant officer intentionally or recklessly made false or misleading statements or omissions in support of the warrant” and that the false statement or omission was material, i.e., “necessary to finding probable cause.” Here, the affiant deliberately omitted from the warrant application the fact that Canadian authorities had dropped charges against Perkins after finding that the images relied upon to support the warrant were not pornographic; deleted the Canadian constable’s description of the images; and withheld copies of the images from the magistrate’s review. The omission of this data resulted in the misleading impression the images were unequivocally pornographic. The omitted facts and images were material to the finding of probable cause and, if the affidavit were supplemented with the challenged omissions, it would not have provided probable cause for the warrant.
The full opinion is available on the court’s website here: http://cdn.ca9.uscourts.gov/datastore/opinions/2017/03/13/15-30035.pdf