US v. Perkins, 15-30035 (3-13-17)(Tashima w/Kleinfeld; dissent by Murguia). The 9th suppressed evidence found on a defendant's computers because of a Franks violation in obtaining the search warrant. The defendant, traveling from abroad, was stopped in Canada and his laptop computer searched. The defendant had a prior sex offense. The Canadian police found two photos of underage females, but determined that they did not meet the Canadian definition of "sexual purpose." When the defendant got back to the United States, the Homeland Security agent took a look, and decided that the images met the federal definition. In seeking a warrant, he omitted the Canadian determination and images of the photos for the magistrate to make a neutral determination. The warrant issued for a further search and child porn was found. The defendant entered a conditional plea and appealed the denial of the motion to suppress.
The 9th suppressed. The district court clearly erred in not finding that the agent acted in reckless disregard in omitting relevant evidence. Such reckless disregard in omitting the evidence misled the magistrate. If the facts had been included, probable cause would not have been found. As such, under Franks, the evidence must be suppressed.Murguia dissented. She argued that the majority failed to give deference to the district court, fashions a new rule, and the decision is unsupported by the totality of circumstances.
Congrats to Corey Endo and Vicki Lai of the FPD Wash. West (Seattle). A tremendous Franks victory.
The decision is here: