picture of herself a selfie that the girl is naked and sitting on what appears to be a bed and that the picture shows from her upper thigh area to her forehead including her breasts and her genitalia but from this description one can't tell whether the picture would be legal or illegal to possess the magistrate judge had no other information about how her body with position aside from seated with an arm extended so the image would be very different if her legs were spread canadian law and i guess canadian law requires certain things and that is according to their code and it's because he says it in his affidavit the canadian officer had crossed my mind i was trying to think of what could be a non sexual purpose of the image and you mentioned that a young girl twelve or fourteen might want to see what she looks like to see if she were a fact t are there are other non sexual purposes of such an image sure your honor i think one is she could be taking a picture of herself to share with a friend to show her how her body had changed over the summer or to document you know the change s to her body or simply this is what's known as the selfie generation my ability to get inside the brain of a twelve year old and why you would do this is limited but i think there are endless possibilities for why a member of this boyfriend or somebody she sexually interested in but that doesn't make a child pornography this image could just as well be child nudity or child erotica and what's difficult and what the problem with this affidavit is there's no way for the magistrates judge to that these two images are pornographic it's just that piece two images provide a firm basis from which to conclude that this person that child pornography on his computer right you know you saying these images have to be pornography and in order to draw that probable cause conclusion yes your honor these images are not pornographic what we have is a man who has nothing legally permissible images who had decades old fictions that ties say that kind of well that kind of you know child abuse charge in this case in the years old ties that to conclusion that this is at best recklessly omitted and at worst intentionally done so when we look at the standard that this court decided and jacob's case decided by the eighth circuit that cited in the briefs we see omissions of this sort in stan or a man had been arrested with fourteen pounds of cocaine in panama and that information was included in the affidavit of what was not included but that no charges were ever filed giving this misimpression actually occurred thank you thank you honest helen greiner on behalf of the united states let me start with the image i think that is it correct that we don't have it that is absolutely correct your honor it was not submitted to the magistrate judge or the district not with the section showing the sexual purpose the american policeman thought they were i can't see much difference between u s law which requires lasciviousness and the canadian which requires that the pictures have a sexual purpose and what the american policeman that is he gave the magistrate his opinion that they are lascivious he did not give them the canadian policeman's opinion that they weren't he did not give them the pictures so that the magistrate could judge for himself and he gave his opinion that they were not the canadian policeman's opinion that they weren't i can't see how that can look like anything but an  the same thing as recipients you know what this is i know actors and what the policeman's view reminds me of very much he seems to think if you can see the general lascivious and the first thing that came to mind for me was the famous nick picture one of the two photographs that contributed to ending the war in vietnam it's people running from a nap  but there is something different about an image of a twelve to fourteen year old sitting on it bed completely nude taking a photograph of herself if situated in such a way that you are showing her breast sort of suggests very same thing and i think that those things are very critical and i also think that what is missing and your honest recitation of the facts is in fact that the canadian officers believed at least for a period of time that what they had was child pornography so much so that they also obtained it warrants in canada so we're talking about here and ultimately legal conclusion that they will not have enough evidence to prosecute  beyond a reasonable doubt and whether that fact should have been included in the affidavit and that is why don't we have a we have a case that holds that the better course is to submit the picture to the magistrate yes you do your honor you have the better shall and a couple of cases have so suggested and played on asli and i wouldn't probably be here arguing with you right now if we had done so but i think that there is some sensitivity quite regional constantia larry and they that officer arrested mr perkins and the constable who actually did the final investigation of taint a search warrant and then search being consistent and i think actually if one takes a look at constable us description of the photograph it actually adds to rather than subtracts from the conclusion that this is the  the defense raised two questions one whether the description was complete so in that sense the sport can look at you description and conclude whether the emissions of the the additional emissions of fact somehow i don't believe there has been first of all the canadian officers conclusion under canadian law was not materialists just the court found i mean there is enough difference between the canadian law and the us law that is the service and then another says it does not have a clear and obvious sexual purpose that's some curial i think the reason i say that your honor is if we were talking about two officers in the us operating under the same legal standard i would say yes but we're not we're talking about an officer in canada and he's making a determination as to whether the crown should go forward with its prosecution one in one  pictures that whether to issue a search warrant is up to the policeman requesting the warrant it is not up to the issuing magistrate to issue a magistrate in your view it would follow should not have power over with th characterization of what we are arguing here but that said to the extent that it is subjective i don't i think that the government the agent needed to supply and other officers description when he can provide his own description he may not necessarily agree that and in fact i've looked at the amazon wouldn't necessarily agree this now that you're there but the american policeman may get excited babies in the bath tub for all i know it would be nice if the issue a magistrate could judge for himself but your honor and one final point i realize and will for my time but the issue i think in as what the white in court the question is whether the photographer think and what we have here again let's point back to is the photographer is the young woman sitting on a bed taking a new image of herself and with due respect to my opposing counsel i doubt very seriously a fourteen twelve to fourteen year old sitting new taking a picture of herself is trying to take a picture to see if she looks back today that's that's just is i think the reasonable inference here is that  the canadian border patrol agent who initially thought the images were suspect so this would be the equivalent of the border patrol agent who you see you see when you come through from canada to the united states somebody does not have any expertise in child pornography the constable the one with the expertise who viewed i think tens of thousands of images of child pornography through his training and his work decided that the image was not pornographic after he viewed them  yes there was probable cause to search that laptop based upon the border patrol agents description of the images but what there wasn't was probable cause to search mr perkins home here in washington and that's the issue here whether there's probable cause to search mr perkins home here in washington state as to why the information was limited in the similarities or differences between united states and canadian l wrote the affidavit but his counterpart on the east coast understood that these canadian and us laws get to the same thing whether the images have a sexual purpose we haven't talked about this much but mr perkins criminal history law is says that it can be informative but i don't think any case is held that it's informative but each of the conditions similar to what's here these are more than twenty years old both of them but now we look at the gravity  twenty years ago when he was a much younger man a sexual interest in children but whether that sexual interest in children however offensive it may be whether that can therefore be coupled with possessing two images memory are there and when i traveled with it this weekend to san francisco i probably with all of these things none of which are pornographic thrown in for you but thank you but which is just to say i don't think anyone remembers everything they have put on their computing devices or or that there's any reason to believe based on the information here that mr perkins had recently save these images in fact the information shows that he had attempted to delete them the affidavit didn't