United States v. Perkins, — F.3d —, 2017 WL 957205 (9th Cir. Mar. 13, 2017): Agent’s omission of relevant information from warrant invalidated computer search
There’s an old story about a two-car race, orchestrated during the height of the Cold War, between a driver from the United States and a driver from the Soviet Union. The race is close, but the American driver narrowly wins. The next day’s headline in the state-run Soviet newspaper reads: “In historic race, Soviet driver finishes second, while American driver barely manages to finish second to last.” It’s all true, of course, but the omission of material information renders it rather misleading. Amusing enough, as a parable of state propaganda; less so as a template for drafting a search warrant affidavit.
Which brings us to Mr. Charles Perkins. Mr. Perkins was en route to the United States through a Canadian airport when Canadian law enforcement agents learned that he was a registered sex offender and decided to have a look at his laptop. They found two questionable images, and called in an officer with expertise in child exploitation crimes. The expert examined the images and wrote up a report explaining his conclusion that they did not meet the Canadian definition of child pornography. Mr. Perkins went on to the United States, while the Canadian expert’s report went to the U.S. Department of Homeland Security. An American DHS agent drafted an affidavit, based on the Canadian expert’s report, in support of an application for a warrant to search Mr. Perkins’ home computers. The agent relayed the basic facts from the Canadian expert’s report, but omitted mitigating portions of the Canadian officer’s descriptions of the images, failed to include the actual images, and failed to mention that the Canadian expert had determined that the images were not pornographic. Finding that these omissions were knowing and misleading, and that a properly-drafted affidavit would not support probable cause, the Ninth Circuit held that the evidence derived from the search warrant should have been suppressed, and vacated Mr. Perkins’ conviction. Judge Murguia dissented, arguing that the majority should have exhibited greater deference to the district court’s assessment of the agent’s omissions.