Juan PENA, aka John Pena, petitioner, v. UNITED STATES.Case below, 266 Fed.Appx. 574. Petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit denied.

Courts have routinely held that search warrants may issue where an affiant describes photographs rather than providing the actual images to the reviewing magistrate. See, e.g., United States v. Miknevich, 638 F.3d 178, 183 (3d Cir. 2011) (rejecting “any suggestion that a . . . search warrant must include copies of the [child pornographic] images giving rise to the request for a warrant”); United States v. Pena, 266 Fed.Appx. 574, 576 (9th Cir. 2008) (rejecting argument that “the warrant should not have issued because the magistrate failed to personally review the photographs”); United States v. Battershell, 457 F.3d 1048, 1053 (9th Cir. 2006) (“[F]ailing to include a photograph in a warrant application is not fatal to establishing probable cause. Indeed, a judge may properly issue a warrant based on factual descriptions of an image

Indeed, subsequent Ninth Circuit and California cases have concluded that a magistrate need not necessarily view the actual images of child pornography, even while at times acknowledging the better practice is to include them in warrant applications. (See Rowland, supra , 82 Cal.App.5th at p. 1120, 299 Cal.Rptr.3d 206 ; United States v. Rosenow (9th Cir. 2022) 50 F.4th 715, 738–739 ; United States v. Kaiser (9th Cir. 2019) 771 Fed. Appx. 441, 443 ; see also United States v. Hill (9th Cir. 2006) 459 F.3d 966, 969, fn. 4. [pre- Perkins ruling]; United States v. Smith (9th Cir. 1986) 795 F.2d 841, 847 [same]; United States v. Pena (9th Cir. 2008) 266 Fed. Appx. 574, 576 [same]; United States v. Moyer (9th Cir. 2007) 256 Fed. Appx. 61, 62–63 [same].) While Perkins did not set forth a bright line rule, its facts—including the "borderline" nature of the images—highlight the reasons law enforcement officers should routinely provide images of suspected child pornography in warrant applications and thereby allow magistrates to serve their function as neutral and independent arbiters of probable cause.