The Ninth Circuit consists of a variety of judges, the majority of whom are classified as “liberals.” The meaning of the word varies contingent on the subject matter, and in reading enough of their decisions you will note the high degree of reversals of state court cases in federal habeas decisions. In most cases the conviction penalty is murder. In one case a judge dissents and explains that the failure of the death penalty is attributable to philosophic differences of Ninth Circuit judges reversing state court judges in habeas corpus decisions.
In Perkins, however, the charge is child molestation, and the split among the three judge Ninth Circuit panel illustrates the distinction of philosophy although the case is more an academic disagreement in a search warrant case. The dissenting judge particularly notes the opinion of the trial judge who sensed credibility of the officer who testified in lieu of a dry record read by an appellate court.
Canadian officials detained the defendant while he crossed the Canadian border, and his car search revealed a photograph of a young women whom Canadian officials concluded was not pornographic under Canadian law. American border officials disagreed, arrested Perkins, and obtained a search warrant for his house, The search revealed another questionable photo. A search of Perkins’ records unearthed a conviction of child molestation twenty years ago.
In an American federal trial court, Perkins moved to suppress the photographic evidence and objected to the search warrant. Perkins argued the American official misled the court for failing to include the Canadian opinion in the warrant, and failed showing the photos to the judge in applying for the warrant. The Ninth Circuit panel majority held these two errors invalidated the warrant.
American courts near the border had accepted the expertise of border officers in pornography, and the court or jury would see the photos to decide the case. The absence of including the photos of Canadian officer’s opinion is irrelevant. The dissenting judge expressed the objection more fully.
Congress originally attempted to reduce the constant interference of the Ninth Circuit in state court convictions, (AEDPA), and the U.S. Supreme Court criticized the Ninth Circuit for applying legal error to these cases when the object of federal habeas corpus is to determine state court injustice. The Ninth Circuit has never used this problem. Congress must intervene.