                                                                           FILED
                           NOT FOR PUBLICATION                               JUL 25 2014

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-30254

              Plaintiff - Appellee,              D.C. No. 2:13-cr-00096-RSM-1

  v.
                                                 MEMORANDUM*
CHARLES GLENN PERKINS,

              Defendant - Appellant.


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

                        Argued and Submitted July 7, 2014
                              Seattle, Washington

Before: KLEINFELD, TASHIMA, and MURGUIA, Circuit Judges.

       Charles Glenn Perkins appeals from the district court’s denial of his motion

to suppress evidence and alternative request for a hearing under Franks v.

Delaware, 438 U.S. 154 (1978). We conclude that the district court erred in not

granting Perkins a Franks hearing. We do not reach his motion to suppress.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       “A defendant is entitled to a Franks hearing only if he makes . . . ‘a

substantial preliminary showing that the affidavit contain[ed] intentionally or

recklessly false statements, and . . . [that] the affidavit purged of its falsities would

not be sufficient to support a finding of probable cause.’” United States v. Bennett,

219 F.3d 1117, 1124 (9th Cir. 2000) (alterations in original) (quoting United States

v. Meling, 47 F.3d 1546, 1553 (9th Cir. 1995)).

       Perkins has made a substantial preliminary showing that two factual

omissions were recklessly or deliberately made by a Homeland Security

Investigations (“HSI”) agent applying for a warrant to search Perkins’ home for

child pornography. First, although the warrant affidavit stated that Perkins had

been charged with possession of child pornography in Canada, it did not state that

the charge was dropped. This is precisely the kind of fact “required to prevent

technically true statements in the affidavit from being misleading.” United States

v. Stanert, 762 F.2d 775, 781 amended, 769 F.2d 1410 (9th Cir. 1985).

       Second, the affidavit omitted potentially relevant information. This

information included details of the images suggesting that the images were not

pornographic, which was included in the Canadian official’s descriptions but

omitted from the HSI agent’s descriptions. The HSI agent also omitted the

Canadian official’s observation that the images had no “obvious sexual purpose.”


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      These omissions were compounded by the omission of copies of the images

at issue. These images were asserted to be pornographic because they involved

“lascivious exhibition of the genitals or pubic area.” 18 U.S.C. § 2256(2)(A)(v).

Whether an image meets this standard “turns on the meaning of ‘lascivious,’

[which] is far more subjective and open to interpretation” than whether an image is

pornographic because it portrays sexual acts. United States v. Battershell, 457 F.3d

1048, 1051 (9th Cir. 2006). Thus, “[i]f the magistrate had been able to view the

two images for himself, his analysis and our subsequent review might be

different.” United States v. Hill, 459 F.3d 966, 971 n.6 (9th Cir. 2006). While

failure to attach the images is not necessarily fatal to the establishment of probable

cause, it is preferable that the magistrate be given the opportunity to evaluate them

independently. Battershell, 457 F.3d at 1053.

      The cumulative effect of including the omitted details in the affidavit would

have been to undermine the affidavit’s assertion that Perkins was known to have

possessed child pornography, and this would have deprived the “magistrate [of] a

substantial basis for concluding that probable cause existed.” Stanert, 762 F.2d at

782. Perkins’ convictions for incest and child molestation, which are both more

than 24 years old, do not by themselves establish probable cause to search his




                                           3
house for child pornography. See United States v. Needham, 718 F.3d 1190, 1195

(9th Cir. 2013). Perkins was therefore entitled to a Franks hearing.

      We REVERSE the judgment of the district court and REMAND for further

proceedings.




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