United States v. Charles Perkins

MEMORANDUM

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 , 98 S.Ct. 2674 , 57 L.Ed.2d 667 (1978). We conclude that the district court erred in not granting Perkins a Franks hearing. We do not reach his motion to suppress.

“A defendant is entitled to a Franks hearing only if he makes ... ‘a substantial preliminary showing that the affidavit contained] intentionálly 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…