                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,             No. 15-30035
          Plaintiff-Appellee,
                                       D.C. No.
             v.                  2:13-cr-00096-RSM-1

CHARLES GLENN PERKINS,                   OPINION
      Defendant-Appellant.


     Appeal from the United States District Court
        for the Western District of Washington
  Ricardo S. Martinez, Chief District Judge, Presiding

         Argued and Submitted June 22, 2016
              San Francisco, California

                  Filed March 13, 2017

 Before: Andrew J. Kleinfeld, A. Wallace Tashima, and
          Mary H. Murguia, Circuit Judges.

              Opinion by Judge Tashima;
              Dissent by Judge Murguia
2                  UNITED STATES V. PERKINS

                            SUMMARY*


                           Criminal Law

    The panel reversed the district court’s denial of a motion
to suppress evidence obtained from the defendant’s
computers pursuant to a search warrant, vacated his
conviction for receipt of child pornography, and remanded for
further proceedings.

    The panel held that (1) the district court clearly erred in
finding that a DHS special agent did not omit relevant
information with at least reckless disregard for whether the
omissions would render the warrant application misleading;
and (2) had the omitted information been included, the
application would not have supported probable cause.

    Dissenting, Judge Murguia wrote that the majority fails to
afford the district court its due deference, retroactively
applies a new rule that is likely unsupported by case law, and
improperly weighs the totality of circumstances in a probable
cause determination.


                             COUNSEL

Corey Endo (argued) and Vicki Lai, Federal Public
Defender’s Office, Seattle, Washington, for Defendant-
Appellant.


    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                 UNITED STATES V. PERKINS                     3

Teal Luthy Miller (argued), Assistant United States Attorney;
Annette L. Hayes, United States Attorney, Western District
of Washington; Office of the United States Attorney, Seattle,
Washington; for Plaintiff-Appellee.


                          OPINION

TASHIMA, Circuit Judge:

    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. Perkins had a 1987 first-degree
incest conviction and a 1990 first-degree child molestation
4               UNITED STATES V. PERKINS

conviction. A CBSA officer searched the laptop that Perkins
was carrying and, in a folder labeled “cperk,” found two
images that he believed to be child pornography. A Peel
Regional Police (“PRP”) officer also reviewed the images
and, based on his review, arrested Perkins for possession of
child pornography. CBSA authorities seized the laptop, along
with a digital camera and a memory card.

    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
Ullock 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

       ...

       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
                UNITED STATES V. PERKINS                       5

      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

      ...

      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[s] 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.
6               UNITED STATES V. PERKINS

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 first-hand review on
January 14, 2013. Prior to receiving the images, Agent
Ensley drafted an affidavit, based on Constable Ullock’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 Constable Ullock’s
determination that the images were not pornographic.

    After reviewing the images for himself, Agent Ensley
included the following descriptions in his affidavit:

       Filename 997.jpg

       ...

       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
                UNITED STATES V. PERKINS                    7

       ...

       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, 438 U.S. 154 (1978). The district court denied the
motion in its entirety. On June 6, 2013, Perkins conditionally
pleaded guilty to one count of receipt of child pornography,
8                   UNITED STATES V. PERKINS

reserving the right to appeal the district court’s decision on
his motion to suppress and for a Franks hearing. The district
court sentenced Perkins to an 180-month term of
imprisonment.

    Perkins appealed. On July 25, 2014, we reversed the
district court’s denial of a Franks hearing. United States v.
Perkins, 583 F. App’x 796, 797 (9th Cir. 2014).1 We
concluded that, based on Agent Ensley’s omissions of: the
dropping of the Canadian charge; portions of Constable
Ullock’s description of the images; and copies of the images,
Perkins had made a substantial preliminary showing that
Agent Ensley deliberately or recklessly omitted potentially
material information. Id. We remanded to the district court
to hold a Franks hearing. Id.2

D. The Franks Hearing

    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.

    1
     We did not reach Perkins’ appeal from the denial of his motion to
suppress. Perkins, 583 F. App’x at 797 (“We do not reach his motion to
suppress.”).
     2
       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 29. But our earlier mandate contained no
such limitation. We reversed and remanded for further proceedings,
including the holding of a Franks hearing. Perkins, 583 F. App’x at 797.
As noted earlier, see footnote 1, supra, we did not reach the probable
cause issue on which the appeal from the denial of the motion to suppress
was based. See id.
                UNITED STATES V. PERKINS                     9

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 Ullock’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, 2015
WL 630934 (W.D. Wash. 2015). Perkins timely appealed.
10                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, 322 F.3d
710, 714 (9th Cir. 2003). “Review under the clearly
erroneous standard is significantly deferential, ‘requiring for
reversal a definite and firm conviction that a mistake has been
committed.’” Id. (quoting United States v. Maldonado, 215
F.3d 1046, 1050 (9th Cir. 2000)). We review de novo the
district court’s determination “whether probable cause is
lacking because of alleged misstatements or omissions in the
supporting affidavit.” Id. (quoting United States v. Reeves,
210 F.3d 1041, 1044 (9th Cir. 2000)). “Whether any
omissions or misstatements are material is a mixed question
of law and fact which we also review de novo.” Id. (citation
omitted).

     “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, 256 F.3d 14, 17 (1st Cir. 2001) (footnote omitted)
(quoting United States v. Amirault, 173 F.3d 28, 32–33 (1st
Cir. 1999). In this respect, “[o]ur task [is just] like that of the
magistrate judge and district court . . . ‘simply to make a
practical, common-sense decision . . . .’” Id. at 16 (quoting
Illinois v. Gates, 462 U.S. 213, 238 (1983).

                               III.

    Preliminarily, we note that in the search warrant affidavit,
Agent Ensley opined that the 989.jpg image met the federal
definition of child pornography under 18 U.S.C.
§ 2256(2)(A)(v), the “lascivious exhibition of the genitals or
                 UNITED STATES V. PERKINS                     11

pubic area of any person.” While “[t]he first four categories
[of ‘sexually explicit conduct’ under § 22546(2)(A)] deal
with specific conduct that is easy to identify and describe . . .
[t]he fifth category, which turns on the meaning of
‘lascivious,’ is far more subjective and open to interpretation
than the first four.” United States v. Battershell, 457 F.3d
1048, 1051 (9th Cir. 2006) (citing Brunette, 256 F.3d at 18)).
In Battershell, we further noted that in Brunette, the First
Circuit “held that ‘ordinarily, a magistrate judge must view
an image in order to determine whether it depicts the
lascivious exhibition of a child’s genitals.’” Id. at 1053
(quoting Brunette, 256 F.3d at 19).

      Perkins argues that Agent Ensley 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. 438 U.S. at 155–56. To prevail on a
Franks challenge, the defendant must establish two things by
a preponderance of the evidence: first, that “the affiant
officer intentionally or recklessly made false or misleading
statements or omissions in support of the warrant[,]” and
second, that the false or misleading statement or omission
was material, i.e., “necessary to finding probable cause.”
United States v. Martinez-Garcia, 397 F.3d 1205, 1214–15
(9th Cir. 2005). If both requirements are met, “the search
warrant must be voided and the fruits of the search excluded
. . . .” Franks, 438 U.S. at 156. Because we conclude that
Perkins has established both prongs under Franks, we hold
that the district court erred in denying his motion to suppress.
12               UNITED STATES V. PERKINS

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, 397 F.3d at
1214. A negligent or innocent mistake does not warrant
suppression. Franks, 438 U.S. at 171. “[A] warrant affidavit
must set forth particular facts and circumstances . . . so as to
allow the magistrate to make an independent evaluation of the
matter.” Id. at 165 (emphasis added).              “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.” Illinois
v. Gates, 462 U.S. at 239. An officer presenting a search
warrant application has a duty to provide, in good faith, all
relevant information to the magistrate. United States v. Hill,
459 F.3d 966, 971 n.6 (9th Cir. 2006).

    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 that Agent Ensley omitted relevant information
from the affidavit that resulted in the misleading impression
that image 989.jpg was unequivocally child pornography.
Given these circumstances, we conclude that the district
                    UNITED STATES V. PERKINS                           13

court’s finding that Agent Ensley did not intentionally or
recklessly mislead the magistrate is clearly erroneous. He
acted with at least a reckless disregard for the truth by failing
to furnish copies of the images to the magistrate and by his
omissions of portions of Constable Ullock’s report, which
had to be fresh in his mind, for the magistrate’s independent
review.

    The district court accepted Agent Ensley’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.3 He summarized
Canadian law as containing three requirements: (1) the
individual must be under 18 years old; (2) the genital or pubic
area must be the prominent feature of the visual depiction;
and (3) there must be a sexual purpose. But Agent Ensley
conceded that the first two requirements are similar under


    3
       Canadian Criminal Code 163.1(1)(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, 573 F.3d 679, 686 (9th Cir. 2009).
14              UNITED STATES V. PERKINS

U.S. law. As for the third requirement, he could not articulate
a meaningful difference between Canada’s “sexual purpose”
requirement and the U.S.’s “lascivious” requirement. He also
acknowledged that whether either requirement is met is a
subjective determination. Thus, he could hardly identify any
material distinction between the two laws, despite his own
opinion that they were “extremely different.”

    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]
. . . manipulat[ing] the inferences a magistrate will draw.”
United States v. Stanert, 762 F.2d 775, 781 (9th Cir. 1985),
amended by 769 F.2d 1410 (9th Cir. 1985). Agent Ensley
presented a skewed version of events and overstated the
incriminating nature of the images. This is not unlike the
                   UNITED STATES V. PERKINS                          15

situation in United States v. Jacobs, 986 F.2d 1231 (8th Cir.
1993), where the affiant acted at least recklessly when he
correctly stated that the drug dog showed an “interest” in the
defendant’s package, but omitted the fact that the drug dog
failed to make an official “alert.” Id. at 1234–35. Similarly,
although Agent Ensley correctly stated that Perkins was
arrested based on two Canadian officers’ review of the
images, he failed to inform the magistrate that an expert
review of those same images led to the charge being dropped.

    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,
573 F.3d at 686 (factors in determining lasciviousness include
whether the focal point of the depiction is on the child’s
genitalia or pubic area and whether the visual depiction is
intended or designed to elicit a sexual response). Agent
Ensley knowingly excised unfavorable parts of Constable
Ullock’s description.4 In their place, he opined in a



    4
       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.
16                   UNITED STATES V. PERKINS

conclusory manner that the genital area was “clearly visible”
— a characterization that was misleading, at best.5

    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, 824 F.3d 109, 116–17 (4th Cir. 2016) (holding that an
affiant acted at least recklessly by omitting facts about an
informant’s credibility and “usurp[ed] the magistrate’s role”
in determining probable cause). Whether an image depicts
the “lascivious exhibition of the genitals or pubic area of any
person,” and therefore constitutes child pornography, is a
subjective determination. Battershell, 457 F.3d at 1051.
“[S]uch ‘inherent subjectivity is precisely why the
determination should be made by a judge,’ not the affiant.”
United States v. Pavulak, 700 F.3d 651, 662 (3d Cir. 2012)
(quoting Brunette, 256 F.3d at 18). Given the circumstances
of this case, Agent Ensley was required to provide copies of
the images for the magistrate’s independent review.6 Instead,


     5
        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, 636 F. Supp. 828, 832 (S.D. Cal.
1986) (“whether the setting of the visual depiction is sexually suggestive,
i.e., in a place . . . generally associated with sexual activity”), aff’d sub
nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987). The Dost
factors are fully discussed in Part III.B.2, infra.
     6
       The dissent asserts that we make a “fatal error” by “retroactively
appl[ying] a new rule.” Dissent at 27; see also id. at 35 n.4 (contending
that the district court did not err because “our case law did not establish
that Agent Ensley was required to include copies of the images in the first
place”). But it has been clearly established law at least since Griffith v.
                    UNITED STATES V. PERKINS                           17

he merely proffered his own conclusion about the 989.jpg
image, based on an incomplete and misleading description of
the image. This was a breach of the duty Agent Ensley owed
to the court. See United States v. Ruiz, 758 F.3d 1144, 1149
(9th Cir. 2014).

    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, 588 F.3d 1218, 1223 (9th Cir. 2009)).

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.” 438 U.S. at 156. The key
inquiry is “whether probable cause remains once the evidence
presented to the magistrate judge is supplemented with the
challenged omissions.” Ruiz, 758 F.3d at 1149. Probable
cause to search a location exists if, based on the totality of the
circumstances, there is a “fair probability” that evidence of a
crime may be found there. Hill, 459 F.3d at 970 (citation
omitted).


Kentucky, 479 U.S. 314 (1987), “that a new rule for the conduct of
criminal prosecutions is to be applied retroactively to all cases, state or
federal, pending on direct review or not yet final, with no exception for
cases in which the new rule constitutes a ‘clear break’ with the past.” Id.
at 328.
18                  UNITED STATES V. PERKINS

    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.7 Under these
circumstances, we conclude that a corrected warrant
application would not support probable cause.

     1. Prior Convictions

    We are persuaded that the convictions are only marginally
relevant, if at all. A suspect’s criminal history “can be


     7
       Citing United States v. Krupa, 658 F.3d 1174 (9th Cir. 2011), the
government gestures to the “circumstances” under which the images were
found and argues that they support probable cause. In Krupa, we held that
there was probable cause to search the defendant’s computers, based on
the “unquestionably suspicious” circumstances of “15 computers under
the control of a civilian with no apparent ties to the military in a home on
a military base in which children resided and for which the military police
had received a report of child neglect.” Id. at 1178–79. By contrast,
Perkins was not found in an unusual place where his mere presence was
questionable. He arrived in Toronto with his wife and mother-in-law after
completing a cruise to Chile. No ongoing incident or contemporaneous
report led Canadian border authorities to stop Perkins. No children were
involved. Perkins was stopped only because of his prior convictions,
which, as explained below, do not support probable cause. Given that he
had been traveling, the amount of technology he was carrying (a laptop,
digital camera, three memory cards, and a cell phone) was not suspicious.
Moreover, a search of all these devices revealed only the two images as
possible contraband. And, as it turned out, Perkins was not in possession
of any contraband, i.e., child pornography, at the locus where he possessed
the suspected images, in Canada. Krupa does not support the
government’s position.
                UNITED STATES V. PERKINS                    19

helpful in establishing probable cause, especially where the
previous arrest or conviction involves a crime of the same
general nature as the one the warrant is seeking to uncover.”
United States v. Nora, 765 F.3d 1049, 1059 (9th Cir. 2014)
(quoting Greenstreet v. Cty. of San Bernardino, 41 F.3d 1306,
1309 (9th Cir. 1994)). However, a past conviction is relevant
only to the extent it increases the likelihood that evidence of
the suspected crime will be found. See id. (holding that the
defendant’s prior firearms convictions did not speak to the
issue of “whether a fair probability existed that [he] owned
other firearms . . . and thus are of marginal relevance to the
probable cause issue before us”). “[T]he 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 child pornography.”
United States v. Needham, 718 F.3d 1190, 1195 (9th Cir.
2013).

    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 children[.]” 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, 923 F.2d
1338, 1345 (9th Cir. 1990); see also Pavulak, 700 F.3d at 663
(“Pavulak’s prior child-molestation convictions are not
sufficient to establish or even to hint at probable cause as to
the wholly separate crime of possessing child pornography
20              UNITED STATES V. PERKINS

absent any allegation of a correlation between the two types
of crimes.” (citation omitted)).

    The age of Perkins’ convictions further diminishes any
marginal relevance they may have had. As explained in
United States v. Falso, 544 F.3d 110 (2d Cir. 2008), the
length of time that elapses between a prior crime and the
suspected offense is relevant to the probable cause analysis.
Id. at 123. In Falso, the court deemed the defendant’s 18-
year-old sexual abuse of a minor conviction as “only
marginally relevant” to the suspected child-pornography
offense. Id. Although the court recognized that “there are
cases where it may be appropriate for a district court to
consider a dated sex crime[,] for example, where there is
evidence of ongoing impropriety,” the affidavit did not
“bridge the temporal gap between Falso’s eighteen-year old
sex offense and the suspected child-pornography offense.”
Id. (citation omitted). Likewise here, there is nothing to
connect Perkins’s 20-year-old convictions to whether there
was a fair probability that Perkins had child pornography on
his home computer.

    The government, citing United States v. Colbert, 605 F.3d
573 (8th Cir. 2010), argues that “[t]here is an intuitive
relationship between acts such as child molestation or
enticement and possession of child pornography.” Id. at 578.
The government’s reliance on Colbert is misplaced. In
Colbert, police obtained a warrant to search the defendant’s
home for child pornography after receiving a report that the
defendant had attempted to entice a five-year-old at a park to
follow him to his apartment, “where he claimed he had
movies for her to watch and other things for her to do.” Id. at
577–78. Thus, the warrant was for “the very place where
                UNITED STATES V. PERKINS                  21

Colbert had expressed a desire to be alone with a
five-year-old girl.” Id. at 578. The court explained:

       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.
22               UNITED STATES V. PERKINS

     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, 457
F.3d at 1051–53; Hill, 459 F.3d at 970–71 (“Thus the more
precise question we must answer is whether the officer’s
affidavit established probable cause that the images on the
defendant’s computer were—as described—lascivious.”).
The typical starting point for determining whether a particular
image is lascivious, and therefore pornographic, is the six-
factor test articulated in Dost, 636 F. Supp. 828. Those factors
are:

        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;
                    UNITED STATES V. PERKINS                            23

         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, 573 F.3d at
686–87.

    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 the 989.jpg image.8 The
image appears to be a selfie, taken by the subject of herself,
who is holding the camera at an angle slightly above her head
and shooting downwards. The image captures the subject’s
forehead down to her upper thigh. Because of the angle, her
head and torso predominate the image and cast a shadow on
the genital area, which is pictured in the far bottom right-hand
corner. She is sitting down, although it is unclear on what.

    Other than the fact that the subject is nude, the image
lacks any traits that would make it sexually suggestive. But


    8
      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.
24                  UNITED STATES V. PERKINS

“not all images of nude children are pornographic.” Hill, 459
F.3d at 970; see also Dost, 636 F. Supp. at 832 (“[T]he visual
depiction may not constitute a ‘lascivious exhibition’ of the
genitals, despite the fact that the genitals are visible.”). The
subject is not posed in a sexual position with, for example,
“her open legs in the foreground.” Dost, 636 F. Supp. at 832.
She is not pictured with any sexual items. She is sitting in an
“ordinary way for her age.” Id. Indeed, if the subject were
clothed, this would be a completely unremarkable photo.
Viewing the image as a whole, we conclude, under the Dost
six-factor test, that it does not depict the “lascivious
exhibition of the genitals or pubic area.”9 18 U.S.C.
§ 2256(2)(A)(v).

    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.10 We therefore conclude that Agent Ensley’s


     9
       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, 256 F.3d at 16 (quoting Illinois v. Gates, 462 U.S. at 238).
     10
       Quoting United States v. McCarty, 648 F.3d 820, 839 (9th
Cir.2011), that “the government is not required to prove that all or any of
the photographs actually exhibited child pornography in order to establish
probable cause for [the defendant’s] arrest,” the dissent implies an
obverse rule under which photos are never required, regardless of the
circumstances. Dissent at 38. But that statement must be read against the
backdrop of controlling law that McCarty recognizes, that “the officers
[must have] an objectively reasonable belief that [the defendant]
committed a crime, based on the totality of the relevant circumstances.”
648 F.3d at 839. Here, given that the images were not pornographic and
were legally possessed by Perkins in Canada, and the only other evidence
                    UNITED STATES V. PERKINS                             25

omissions, including particularly a copy of the 987.jpg image,
were material under the second step of Franks.11

    We emphasize that this was an investigation of a
suspected “lascivious” image under § 2256(2)(A)(v), the
meaning of which is subjective. Battershell, 457 F.3d at
1051. And to make that subjective determination, “we rely
on the judgment of neutral and detached magistrates to
determine whether probable cause exists . . . .” Id. at 1050.
As the First Circuit noted in Brunette, “[t]hat inherent
subjectivity is precisely why the determination should be
made by a judge, not an agent.” And that “[a] judge cannot
ordinarily make this determination without . . . a look at the
allegedly pornographic images . . . .” 256 F.3d at 18.12


tendered in support of probable cause was two 20-year-old convictions,
Agent Ensley’s “belief that [Perkins] committed crimes related to child
pornography was [not] an objectively reasonable one.” Id. at 840.
    11
       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 36. 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.
    12
        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.” 457 F.3d at 1053. There, we were concerned with
investigations into possible violations of § 2256(2)(A)(i)–(iv), not with a
possible violation of subdivision (v). Contrary to the dissent’s argument,
Battershell confirms, rather than contradicts, our approach. There, we
26                  UNITED STATES V. PERKINS

                                   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 further proceedings
consistent with this opinion.

  REVERSED,                 conviction          VACATED,              and
REMANDED.




held that “[t]he fifth category, which turns on the meaning of ‘lascivious,’
is far more subjective and open to interpretation than the first four.”
Battershell, 457 F.3d at 1051. Because of this, the court in Battershell
concluded that “Officer Lobdell’s terse description, absent an
accompanying photograph, is insufficient to establish probable cause that
the photograph lasciviously exhibited the genitals or pubic area because
his conclusory statement is an inherently subjective analysis and it is
unclear if the photograph exhibited the young female’s genitals or pubic
area.” Id. (emphasis added) (citations omitted). Moreover, the Battershell
court’s subsequent statement that “failing to include a photograph in a
warrant application is not fatal to establishing probable cause” was in
reference to a second photograph that depicted a child engaged in sexual
intercourse, which was deemed to be sexually explicit under one of the
first four categories of § 2256(2)(A). Id. at 1053. The 989.jpg image here
more closely resembles the first image in Battershell, which depicts a
naked young female in a bathtub, than it does the second image, which
depicts intercourse.
                UNITED STATES V. PERKINS                    27

MURGUIA, Circuit Judge, 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 considered reckless or deliberate because Agent
Ensley was under no obligation at that time to produce the
images in the first place. Finally, even assuming Agent
Ensley was somehow reckless in not including the images in
the search warrant application, the totality of the
circumstances described in a corrected application—which
would include 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—would have supported probable cause for the
search warrant. Because the majority misinterprets the
evidence and misapplies the law, I respectfully dissent.
28               UNITED STATES V. PERKINS

                               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, 438 U.S. 154, 155–56 (1978). A Franks hearing
has two steps. United States v. Martinez-Garcia, 397 F.3d
1205, 1214–15 (9th Cir. 2005). First, the court evaluates
whether the affiant officer intentionally or recklessly lied or
omitted material information in attempting to secure a search
warrant. Id. If the officer did not act intentionally or
recklessly, the Franks challenge fails. Ewing v. City of
Stockton, 588 F.3d 1218, 1224 (9th Cir. 2009). If the officer
did act intentionally or recklessly, the court proceeds to the
second step and inquires “whether the affidavit, once
corrected and supplemented, establishes probable cause.” Id.
If there is still probable cause for the warrant after
considering the wrongfully omitted information, the
defendant’s motion to suppress must be denied. United States
v. Ruiz, 758 F.3d 1144, 1148 (9th Cir. 2014) (“If probable
cause remains after amendment, then no constitutional error
has occurred.” (internal quotation marks omitted)).

    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, 583 F. App’x 797,
797 (9th Cir. 2014) (emphasis added). We clearly identified
the two factual omissions. “First, although the warrant
affidavit stated that Perkins had been charged with possession
                 UNITED STATES V. PERKINS                    29

of child pornography in Canada, it did not state that the
charge was dropped.” Id. “Second, the affidavit omitted . . .
details of the images suggesting that the images were not
pornographic,” including “the Canadian official’s observation
that the images had no ‘obvious sexual purpose.’” Id.
Contrary to the majority’s claim, we did not conclude that
Perkins made a substantial preliminary showing that Agent
Ensley recklessly or deliberately omitted “copies of the
images.” In fact, we merely noted that the two omissions
described above “were compounded by the omission of
copies of the images,” but that “failure to attach the images is
not necessarily fatal to the establishment of probable cause.”
Id.

    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, 2015
WL 630934, at *3 (W.D. Wash. Feb. 12, 2015). Given that
we identified these two factual omissions as the only two
potentially reckless or deliberate omissions Agent Ensley
made, Perkins, 583 F. App’x at 797, the district court did not,
and was not required to, consider whether Agent Ensley
recklessly or deliberately omitted the actual images from the
search warrant application. The district court’s final order is
now before this panel.

    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, 397 F.3d at 1215 n.5. This is a high
standard, which by design is difficult to meet. See, e.g.,
30                UNITED STATES V. PERKINS

Ocean Garden, Inc. v. Marktrade Co., Inc., 953 F.2d 500, 502
(9th Cir. 1991) (“[T]o be clearly erroneous, a decision must
strike us as wrong with the force of a five-week old,
unrefrigerated dead fish.” (internal quotation marks and
ellipsis omitted)). “If the district court’s account of the
evidence is plausible in light of the record viewed in its
entirety, the court of appeals may not reverse it even though
convinced that had it been sitting as the trier of fact, it would
have weighed the evidence differently.” Anderson v. City of
Bessemer City, 470 U.S. 564, 573–74 (1985).

    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, 2015 WL 630934, at *3.

    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(1)(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
                 UNITED STATES V. PERKINS                    31

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, 573
F.3d 679, 686 (9th Cir. 2009) (internal quotation marks
omitted). Agent Ensley also said that it never occurred to him
to mention the Canadian detective’s no-charge decision, and
that foreign officials’ charging decisions do not affect his
evaluation of whether a suspect has violated U.S. law. Agent
Ensley’s decision for omitting the Canadian no-charge
decision was reasonable.

    More importantly, the district court’s account of Agent
Ensley’s explanation was surely plausible. See Anderson,
470 U.S. at 573–74. After watching and listening to Agent
Ensley testify in court about his thought process, the district
court credited Agent Ensley’s testimony in its entirety and
found that he did not intentionally or recklessly omit
information. Given that a reviewing court’s level of
deference is even greater “[w]hen findings are based on
determinations regarding the credibility of witnesses”
because “only the trial judge can be aware of the [witness’s]
demeanor,” id., at 575, it is not a surprise that we have
apparently never before held that a district court committed
clear error by crediting an officer’s explanation for an
omission. This case should not be the first time we do so.

     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 Ensley’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, 588 F.3d at
1224 (finding that good faith or negligent omissions will not
32              UNITED STATES V. PERKINS

invalidate an affidavit that establishes probable cause).
Instead, the majority is putting itself in the shoes of the
district court and weighing the evidence differently, which we
are not allowed to do.

                              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 case 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
                   UNITED STATES V. PERKINS                          33

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, 457
F.3d 1048 (9th Cir. 2006), in support of this new rule. But
Battershell never articulated a rule that search warrant
applications based on violations of § 2256(2)(A)(v) must
always contain copies of the images. In fact, the Battershell
court specifically stated that “failing to include a photograph
in a warrant application is not fatal to establishing probable
cause. Indeed, a judge may properly issue a warrant based on
factual descriptions of an image.” Id. at 1053 (citations
omitted).1

    Certainly, the Battershell court stated that the fifth
category of child pornography, identified in § 2256(2)(A)(v),

    1
      The majority argues that this statement does not apply to images
defined under § 2256(2)(A)(v). Opinion at 25–26 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
§ 2256(2)(A)(i)-(iv) and § 2256(2)(A)(v). Battershell, 457 F.3d at 1053
(“It would have been preferable if the affiant in this case had included
copies of the photographs in the warrant application.” (emphasis added)).
34                     UNITED STATES V. PERKINS

is more subjective and open to interpretation than the first
four categories, identified in § 2256(2)(A)(i)-(iv). Id. at
1051.2 But Battershell stopped short of establishing the rule
that the majority sets forth today. The majority relies heavily
on the statement in Battershell that the officer’s “terse
description, absent an accompanying photograph, is
insufficient to establish probable cause that the photograph
lasciviously exhibited the genitals.” Id. But the description
of the image in Battershell was significantly terser than Agent
Ensley’s thorough description in this case. In Battershell, the
officer described a photograph as “a young female (8-10
YOA) naked in a bathtub.” Id. That description likely fails
to meet § 2256(2)(A)(v)’s definition of “lascivious exhibition
of the genitals or pubic area of any person.” As the
Battershell court pointed out, the description fails to make
clear whether the photograph even “exhibited the young
female’s genitals or pubic area.” Id. Contrast that “terse”
description with Agent Ensley’s, which clearly states that the
girl’s genitals are visible:

            Filename 989.jpg

            File Path: c\users\cperk\pictures\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

     2
         The definitions in § 2256(2)(A)(i)-(iv) are not entirely objective.
                    UNITED STATES V. PERKINS                            35

         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.3 Since there was no clear rule requiring an agent to
include copies of the images at the time Agent Ensley
submitted his search warrant application, Agent Ensley could
not have recklessly or deliberately omitted the copies.4


    3
       The majority also relies heavily upon United States v. Brunette, 256
F.3d 14 (1st Cir. 2001). Battershell discussed Brunette because
Battershell had argued that the Ninth Circuit should adopt the First
Circuit’s rule that “[o]rdinarily, a magistrate judge must view an image in
order to determine whether it depicts the lascivious exhibition of a child’s
genitals.” Battershell, 457 F.3d at 1053 (quoting Brunette, 256 F.3d at
19). Not only is Brunette inapplicable in this Circuit, but also Battershell
specifically refused to adopt the Brunette rule. Id. (“Thus, the more
demanding standard for establishing probable cause of ‘lascivious’ images
that the First Circuit employed in Brunette does not apply.”).
    4
      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 child pornography charge had been
dropped and that Agent Ensley’s description of the images was different
than the Canadian detective’s description. Perkins, 583 F. App’x at 797.
Thus, the district court never considered whether the omission of the
images was reckless. Perkins, 2015 WL 630934. The district court was
not clearly erroneous for two reasons. First, we did not tell the district
court to consider whether the omission of the images was reckless.
Second, our case law did not establish that Agent Ensley was required to
include copies of the images in the first place.
36               UNITED STATES V. PERKINS

    I therefore disagree that a corrected affidavit in this case
must include copies of the images. Instead, I believe a
corrected affidavit need only include what the majority
describes as “(1) the fact that Canadian authorities dropped
the child pornography possession charge against Perkins
[and] (2) important portions of [the Canadian Detective’s]
description of the 989.jpg image.”

                              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.
                 UNITED STATES V. PERKINS                    37

     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, 636 F. Supp. 828,
832 (S.D. Cal. 1986), aff’d sub nom. United States v.
Wiegand, 812 F.2d 1239 (9th Cir. 1987). This is not a child
in a bathtub. It is hard to imagine a purpose for the image
other than to “elicit a sexual response in the viewer.” Id. The
majority, citing language from Dost, argues that 989.jpg is
not lascivious because the child is not sitting with her open
legs in the foreground and is sitting in an ordinary way for her
age. But the majority’s references to Dost are based on
examples in which the court was hypothesizing about images
that included at least partially clothed children. See id. (“If,
for example, she is dressed in a sexually seductive manner,
with her open legs in the foreground, the photograph would
most likely constitute a lascivious exhibition of the genitals.
. . . [I]f the girl is wearing clothing appropriate for her age
and is sitting in an ordinary way for her age, the visual
depiction may not constitute a ‘lascivious exhibition’ of the
genitals, despite the fact that the genitals are visible.”
(emphasis added)). The majority concludes, “Other than the
fact that the subject is nude, the image lacks any traits that
would make it sexually suggestive” and that “if the subject
were clothed, this would be a completely unremarkable
photo.” However, if we could assume away the nudity in any
image of child pornography, it would dramatically affect the
pornographic nature of the image. Here, the child in 989.jpg
is nude.
38                  UNITED STATES V. PERKINS

    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,
440 F.3d 1065, 1069 (9th Cir. 2006) (en banc). The majority
oddly focuses on whether the images are in fact child
pornography. But our case law is absolutely clear that the
images need not necessarily be pornographic in order to
suggest a fair probability that the suspect possesses
contraband. United States v. McCarty, 648 F.3d 820, 839
(9th Cir. 2011) (“[T]he government is not required to prove
that all or any of the photographs actually exhibited child
pornography in order to establish probable cause for [the
defendant’s] arrest.”).5 We have been clear that an affidavit
does not need to set forth a prima facie case in order to
establish a fair probability that the defendant possesses
contraband. Gourde, 440 F.3d at 1069, 1073. Therefore,
considering the totality of the circumstances, a corrected
affidavit that included copies of the images would support
probable cause for a search warrant.




     5
       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 24, 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, our
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.
                 UNITED STATES V. PERKINS                    39

                              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 Enlsey 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 Battershell that, although it is
preferable to include copies of the images, a corrected
affidavit did not require including copies of the images.
Agent Enlsey 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 Enlsey
recklessly omitted copies of the images, the totality of the
circumstances in 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, 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 improperly weighs
the totality of circumstances in a probable cause
determination, I respectfully dissent.
