March 17, 2017 (Fault Lines) — Travelers to Canada beware: if you’re a sex offender, they will search your computer and dime you out to the Americans. Charles Perkins was passing through Toronto International Airport on his way back home to Washington. Once the border agent learned Perkins was a twice-convicted sex offender, he selected Perkins for additional screening.
While searching Perkins’s laptop, two pictures of a nude, young girl were discovered. After another officer reviewed the photos, Perkins was arrested and other electronics were seized. The following day Dudley Do-right Constable Ullock reviewed the case and interviewed Perkins. He obtained a search warrant, but the constable uncovered no other incriminating evidence. Perkins’s wife claimed that she mostly used the laptop, although her husband had access.
After reviewing the pictures, he determined that neither picture met the Canadian definition of pornography, which isn’t a merely sassy-looking maple leaf. Both underage girls were nude, with various parts of their body more or less obvious. But the constable determined that there was no obvious sexual purpose to the image; so, the charges were dropped. But the matter was forwarded to the U.S. Department of Homeland Security, because apparently nude females are a border security risk.
The American agent wrote out a warrant to search Perkins’s Washington home based on the two pictures. Really, it was only one picture, because he concluded that the other wasn’t technically child pornography.
Interestingly, in Canada the subject of the photo was called ‘girl,’ but in the U.S., she became a ‘child victim.’ In the case of the only photo found to be pornography, it appeared to be a selfie. But Perkins was a dirtbag that peeped kids before; so, no reason to be gentle about the subject being a victim.
Besides this change in the facts, the agent also failed to inform the magistrate that the Canadian case had been dropped. And he spiced up the description of the photos to remove any sense of ambiguity about their nature. Nor did the agent include the photos with the warrant application. The argument was sex offender + nude photos of apparently underage girls = ransack his house for evidence.
This formulation makes sense; after all, we all know sex offenders rarely stop offending—the Supreme Court has told us as much, right? But the type of crime is irrelevant to the merits of a warrant application; there is no sliding scale for crimes.
For example, once somebody is convicted of cultivating marijuana and they are found with High Times magazine, a hemp shirt, or a marijuana leaf keychain, there isn’t standing authority to search their homes for proof of marijuana cultivation. You need some actual evidence they have committed a crime.
But we all know what signing a petition in favor of legalizing marijuana really means. And the formalities of the Fourth Amendment are only there for people who haven’t ever violated the law, don’t you know?
But a majority of the panel hearing the case on appeal, after Perkins was convicted on a count of receipt of child pornography based on evidence found during the search, thought differently. Because a warrant was issued here, it wasn’t your typical appellate issue of reviewing a suppression hearing. Once a warrant has been issued, probable cause has been conclusively established. So an appellant has to attack the circumstances that lead to the issuance of a warrant. In particular, Perkins had to show that the agent’s affidavit contained intentionally or recklessly false statements or omissions.
The Court questioned the conclusion that the image was a “lascivious exhibition of the genitals or public area.” This case illustrates the persistent problem with defining obscenity or pornography. Here eight different government agents in two countries reviewed a photo, three concluded it was illicit (four if you include the border agent,) three concluded it wasn’t, and one wasn’t sure. And the inclusion of the U.S. definition of lasciviousness didn’t help to clarify things.
The Court questioned the agent’s decision not to include the photos because the contents of the photos matter significantly as to whether it’s pornography. And his withholding the images didn’t strike the Court as accidental. Not a good day for Homeland Security. The next step was to evaluate whether the agent’s misconduct was material.
20-year-old convictions were held to be insufficient. Criminal conduct can be relevant to probable cause, but usually as an explanation for behavior. And it’s often relevant contemporaneous conduct, not stale conduct from when flannel was a fashion trend and grunge was music. If a suspect has multiple convictions for drug-related offenses using hidden compartments in cars, then that fact suggests where evidence might be found. Not every sex offender keeps pornography in his or (rarely) her home.
The Court explained it like this:
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.
You don’t say?