United States v. Grant Manaku ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10069
Plaintiff-Appellee,
D.C. No.
v. 1:18-cr-00069-LEK-1
GRANT MANAKU,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, District Judge, Presiding
Argued and Submitted February 1, 2021
Honolulu, Hawai‘i
Filed June 14, 2022
Before: Richard R. Clifton, Ryan D. Nelson, and
Daniel P. Collins, Circuit Judges.
Per Curiam Opinion;
Concurrence by Judge Collins
2 UNITED STATES V. MANAKU
SUMMARY *
Criminal Law
The panel affirmed the district court’s denial of Grant
Manaku’s pretrial motion to suppress evidence, which
asserted that FBI agents executing a search warrant at his
residence deliberately violated Fed. R. Crim. P. 41(f)(1)(C)
by failing to supply a complete copy of the warrant.
As the government conceded on appeal, the agents
violated Rule 41(f)(1)(C) by delivering only the face page of
the warrant rather than a complete copy.
Explaining that suppression is automatic only for
“fundamental” violations of Rule 41, at least without any
applicable exception to the exclusionary rule, the panel
noted that Manaku contended neither that the violation here
was fundamental nor that he was prejudiced by it. The only
remaining question, therefore, was whether the district court
correctly concluded that the agents’ failure to deliver a
complete copy of the warrant at the completion of the search
was merely negligent, rather than the product of a deliberate
disregard of the rule. The panel held that the district court
properly concluded that Manaku had not carried his burden
to show a deliberate disregard of the rule. In so holding, the
panel found no clear error in the district court’s finding that
Agent Sherwin Chang did not act intentionally, and rejected
Manaku’s contention that the district court failed to
adequately consider the possibility that another agent had
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. MANAKU 3
deliberately disregarded Rule 41(f)(1)(C) by unstapling the
pages of the warrant and leaving only an incomplete copy.
Judge Collins concurred in the judgment. He wrote that
whether to affirm or reverse the judgment turns entirely on
the continued vitality of the second and third holdings in
United States v. Gantt, 194 F.3d 987 (9th Cir. 1999)—that
Rule 41 requires production of the warrant upon demand
during the search, and that the deliberate refusal to supply
the warrant upon demand requires suppression. Judge
Collins wrote that by refusing at least four direct requests
from property owners to produce the warrant during the
search, the agents deliberately and repeatedly violated Rule
41, as construed in Gantt, and Gantt would require
suppression. Because he concludes that United States v.
Grubbs, 547 U.S. 90 (2006), overruled not just Gantt’s first
holding (that Rule 41 requires officers to give an occupant
whose premises are being searched a complete copy of the
warrant at the outset of the search), as all parties agree, but
also Gantt’s second and third holdings, he concurred in the
judgment affirming the denial of the suppression motion.
COUNSEL
Craig Jerome (argued), Assistant Federal Defender; Peter C.
Wolff Jr., Federal Public Defender; Office of the Federal
Public Defender, Honolulu, Hawaii; for Defendant-
Appellant.
Marion Percell (argued), Chief of Appeals; Kenji M. Price,
United States Attorney; United States Attorney’s Office,
Honolulu, Hawaii; for Plaintiff-Appellee.
4 UNITED STATES V. MANAKU
OPINION
PER CURIAM:
Defendant-Appellant Grant Manaku appeals his
conviction for possession of child pornography in violation
of 18 U.S.C. § 2252A(a)(5)(B), (b)(2). He contends that the
district court should have granted his pretrial motion to
suppress evidence, which asserted that FBI agents executing
a search warrant at his residence deliberately violated
Federal Rule of Criminal Procedure 41(f)(1)(C) by failing to
supply a complete copy of the warrant. We affirm.
I
The FBI discovered that a device at a particular IP
address contained suspected child pornography files. After
several hours of downloading files available for file sharing,
an agent downloaded 308 files of horrific child pornography
from the device. An administrative subpoena revealed that
the IP address was the Dela Cruz residence in Waipahu,
Hawai‘i, where Manaku resided at that time. Based on these
facts, the FBI obtained a search warrant for the Dela Cruz
residence from a federal magistrate judge.
When FBI agents executed the search warrant, they first
met at an off-site location for briefing, and each reviewed
and signed a copy of the five-page warrant. A SWAT team
secured the residence, and the search followed. During the
near six-hour search, Ms. Dela Cruz asked three or four
times to see the warrant but was not given any paperwork
until the search ended. Her husband, a retired law
enforcement officer, arrived home at one point and also
asked to see the warrant. He was briefly shown the warrant’s
first page but never given a copy. He told the agents to make
sure to leave a copy of the warrant or to give one to his wife.
UNITED STATES V. MANAKU 5
Agent Sherwin Chang was supposed to ensure that both
the warrant and a property receipt were left at the residence
or with someone at the residence. Chang prepared the
property receipt that listed every item that had been seized,
and at the end of the search, he reviewed that document with
Ms. Dela Cruz. He left her what turned out to be an
incomplete copy of the search warrant, with only the
warrant’s first page but not the single-page Attachment A
(which described the residence to be searched) and the three-
page Attachment B (which described the items to be
seized). 1 This incomplete copy had been included in a
“search warrant packet” that had been left for Chang on the
Dela Cruz’s dining room table by an unidentified agent.
Before giving it to Ms. Dela Cruz, Chang turned it over and
wrote down the phone number of the FBI’s Hawai‘i field
office, so that she could call if she had any questions.
Although Chang had personally reviewed the five-page
warrant hours earlier, he testified at the hearing on the
motion to suppress that he gave Ms. Dela Cruz the single-
page copy without realizing that it was incomplete. Chang
could not explain why, despite having written on the back of
that single-page copy, he did not notice that it was
incomplete. Chang insisted, however, that the error was
simply carelessness, he did not intentionally withhold the
missing pages, and he was not trying to deceive Ms. Dela
Cruz.
The FBI concluded that a laptop seized during the search
contained child pornography and that it had been used by
1
Although the record is not entirely clear, the copy of the face page
of the warrant that Chang supplied to Ms. Dela Cruz apparently had no
pre-printed material where an executing agent could certify the inventory
of property seized as well as the return of the warrant.
6 UNITED STATES V. MANAKU
Manaku rather than the others in the Dela Cruz household.
Manaku was indicted for a single count of possession of
child pornography involving minors who were prepubescent
or under the age of 12, in violation of 18 U.S.C.
§ 2252A(a)(5)(B), (b)(2). He moved to suppress the laptop
and evidence obtained from it because the failure to supply
a complete copy of the warrant violated Federal Rule of
Criminal Procedure 41(f)(1)(C) and the Fourth Amendment.
After conducting an evidentiary hearing and receiving
supplemental briefing, the district court denied the motion to
suppress. The court found that the agents had violated
Rule 41(f)(1)(C) by failing to leave a complete copy of the
warrant at the Dela Cruz residence. The court noted that
Manaku had conceded in his supplemental brief that this
violation of Rule 41 did not entail a violation of the Fourth
Amendment. Despite the clear violation of Rule 41, the
district court held that suppression was not warranted
because Manaku had not been prejudiced by the error and
because there was no “evidence that Agent Chang’s failure
to give Ms. Dela Cruz a complete copy of the Warrant was
intentional or a part of an on-going pattern of behavior by
him or other FBI agents.” Chang had been “certainly
negligent,” the court found, but had not intentionally
disregarded the rule.
After a five-day jury trial, Manaku was found guilty.
The district court sentenced him to 78 months of
imprisonment and 10 years of supervised release. Manaku
timely appealed.
II
We review the district court’s denial of a motion to
suppress de novo and its factual finding on that question,
UNITED STATES V. MANAKU 7
made after an evidentiary hearing, only for clear error.
United States v. Zapien, 861 F.3d 971, 974 (9th Cir. 2017).
III
Manaku does not dispute that the complete search
warrant of the Dela Cruz residence was properly issued by a
magistrate judge under the Fourth Amendment. Rather, his
only contention is that in executing the warrant, the agents
violated the requirements of Federal Rule of Criminal
Procedure 41 and that the evidence seized should have been
suppressed. We hold that the district court properly declined
to order suppression, even though Rule 41 was violated,
because the violation did not merit the remedy of
suppression.
A
Rule 41(f)(1) sets forth several specific requirements for
the execution of search and arrest warrants. For search
warrants, (A) the “exact date and time” of the search must
be noted on the warrant; (B) an inventory of property seized
must be prepared; (C) a copy of the warrant and a receipt for
the property seized must be supplied to the relevant person
from whom the property was taken; and (D) the executed
warrant and a copy of the inventory must be returned to the
designated magistrate judge. Fed. R. Crim. P. 41(f)(1)(A)–
(D). As for the third requirement, the officer executing the
warrant “must give a copy of the warrant and a receipt for
the property taken to the person from whom, or from whose
premises, the property was taken or leave a copy of the
warrant and receipt at the place where the officer took the
property.” Fed. R. Crim. P. 41(f)(1)(C).
Here, by providing only the face page of the warrant
without its attachments, the FBI violated Rule 41(f)(1)(C)’s
8 UNITED STATES V. MANAKU
requirement to deliver a complete copy of the warrant.
When a search warrant relies on attachments to satisfy the
constitutional requirement that the warrant describe with
particularity “the place to be searched, and the persons or
things to be seized,” U.S. Const. amend. IV, those
attachments form an essential part of the warrant and must
be delivered with the warrant under Rule 41(d). See United
States v. Gantt, 194 F.3d 987, 1000 n.7 (9th Cir. 1999). 2 The
warrant to search the Dela Cruz residence was incomplete
without its attachments, especially Attachment B specifying
with particularity the items that could be seized. 3 Thus, the
agents violated Rule 41(f)(1)(C) by delivering only the face
page of the search warrant rather than a complete copy of the
warrant. Indeed, the Government concedes this point on
appeal.
B
A Rule 41 violation in the execution of a search warrant,
however, does not necessarily mean that the evidence seized
during that search must be suppressed. See United States v.
Henderson, 906 F.3d 1109, 1114 (9th Cir. 2018).
Suppression is automatic only for “fundamental” violations
of Rule 41, at least without any applicable exception to the
2
Gantt was later explicitly overruled on a separate point, relating to
the jurisdictional requirements for an interlocutory appeal of a
suppression order under 18 U.S.C. § 3731. United States v. W.R. Grace,
526 F.3d 499, 506 (9th Cir. 2008) (en banc).
3
The face page of the warrant here arguably did sufficiently describe
the place to be searched, because it disclosed the building address of the
house to be searched in the caption of the document. The text of the
warrant described the place to be searched by referring to an
Attachment A, which repeated that same address, further described the
structure, and included a photograph.
UNITED STATES V. MANAKU 9
exclusionary rule. Id. at 1115. We have described such
“fundamental” violations of Rule 41 as “those that result in
clear constitutional violations.” United States v. Negrete-
Gonzales, 966 F.2d 1277, 1283 (9th Cir. 1992). Any other
violations of the rule are “technical errors” that “require
suppression only if the defendant can show either that (1) he
was prejudiced by the error, or (2) there is evidence of
‘deliberate disregard of the rule.’” Henderson, 906 F.3d
at 1115 (quoting Negrete-Gonzales, 966 F.2d at 1283).
Manaku contends neither that the violation here was
fundamental nor that he was prejudiced by it. This is not, for
example, a case in which the agents delivered an incomplete
warrant after searching places not authorized by the warrant
or seizing items not specified in it. Cf. Negrete-Gonzales,
966 F.2d at 1283 (“Prejudice in this context means the search
would otherwise not have occurred or would have been less
intrusive absent the error.”). The only remaining question,
therefore, is whether the district court correctly concluded
that the agents’ failure to deliver a complete copy of the
warrant at the completion of the search was merely
negligent, rather than the product of a “deliberate disregard
of the rule.” Id. We find no error in the district court’s
conclusion.
Agent Chang had the responsibility to supply the
requisite paperwork after the search and had the last chance
to catch the error, and the district court therefore properly
focused its analysis on his conduct. Chang testified at the
evidentiary hearing and was questioned by counsel for both
sides, as well as by the district court. The court was troubled
that Chang failed to catch the clear mistake in delivering
only the face sheet of the warrant, especially given that he
turned that single page over so that he could write down the
phone number of the FBI’s Hawai‘i field office. But having
10 UNITED STATES V. MANAKU
observed his testimony, the district court chose to credit
Chang’s assertion that he was negligently oblivious to the
error, and the court found that he did not act intentionally.
We see no clear error in this finding and nothing in the record
that would warrant our setting it aside.
Manaku still asserts that the district court failed to
adequately consider the possibility that another agent—such
as the unidentified agent who left the incomplete copy for
Manaku in the “search warrant packet”—had deliberately
disregarded Rule 41(f)(1)(C) by unstapling the pages of the
warrant and leaving only an incomplete copy. Manaku
argues that other agents’ withholding of the warrant was
deliberate disregard because they were reminded of the need
to give a complete warrant after being asked for it several
times and therefore not giving the complete warrant at the
end of the search could not have been an accident. See
Gantt, 194 F.3d at 1005. 4
We reject this contention. Reviewing the record as a
whole, the district court rejected the idea that Agent Chang’s
failure to give Ms. Dela Cruz a complete copy of the warrant
was intentional or a part of an on-going pattern of behavior
“by him or other FBI agents.” The court likewise stated that
“the agents’ violation of Fed. R. Crim. P. 41(f)(1)(C) . . . was
not deliberate,” because the other agents’ refusal to supply
the warrant earlier would be equally consistent with an
intention to defer to the agent in charge of delivering the
paperwork at the end of the search—Agent Chang. There is
no non-speculative basis to infer that the agents expected
4
The Government contends that United States v. Grubbs, 547 U.S.
90 (2006), overrules Gantt. But Manaku cites Gantt only to show that
the Rule 41 violation discussed above was deliberate, conceding that
Grubbs overruled Gantt’s pre-search presentment requirement.
UNITED STATES V. MANAKU 11
(much less hoped) that Agent Chang would fail to do so.
Without clear indication in the record as to how the
incomplete copy came to be included in the search warrant
packet, we cannot say that the district court clearly erred in
declining to find that it resulted from a deliberate attempt to
violate Rule 41.
The district court properly concluded that because
Manaku had not carried his burden to show a “deliberate
disregard of the rule,” the costly judicial remedy of
suppression was not warranted in this case. Henderson,
906 F.3d at 1115 (citation omitted); cf. Herring v. United
States, 555 U.S. 135, 144 (2009) (“To trigger the
exclusionary rule, police conduct must be sufficiently
deliberate that exclusion can meaningfully deter it, and
sufficiently culpable that such deterrence is worth the price
paid by the justice system.”); United States v. Hector,
474 F.3d 1150, 1154–55 (9th Cir. 2007) (even assuming “the
failure to serve a copy of the warrant was a violation of the
Fourth Amendment, the exclusionary rule should not be
applied” since the “causal connection between the failure to
serve the warrant and the evidence seized is highly
attenuated” and “the social costs of excluding relevant
evidence obtained pursuant to a valid search warrant are
considerable”).
* * *
Accordingly, we AFFIRM the denial of Manaku’s
motion to suppress and, as a result, his conviction and
sentence.
12 UNITED STATES V. MANAKU
COLLINS, Circuit Judge, concurring in the judgment:
We held in United States v. Gantt, 194 F.3d 987 (9th Cir.
1999), that (1) Federal Rule of Criminal Procedure 41
“requires officers to give” an occupant whose premises are
being searched “a complete copy of the warrant at the outset
of the search”; (2) the agents in Gantt engaged in a deliberate
violation of Rule 41 by “fail[ing] to show Gantt the complete
warrant even after she asked to see it”; and (3) this deliberate
refusal to supply the warrant upon demand, or at the outset,
“requires suppression.” Id. at 1005 (emphasis added). As
the majority notes, all parties agree that the first of these
three holdings was overruled by the Supreme Court’s
decision in United States v. Grubbs, 547 U.S. 90 (2006). See
Opin. at 2 n.4. But if Gantt nonetheless remains good law
on the second and third points, then in my view the district
court’s denial of Manaku’s motion to suppress must be
reversed. By refusing at least four direct requests from the
property owners to produce the warrant during the search,
the agents here deliberately and repeatedly violated Rule 41,
as construed in Gantt, and Gantt therefore would require
suppression. Indeed, even the Government acknowledges in
its brief that, under Gantt, “the act of refusing to show a
warrant after receiving a request for it would be deliberate
and intentional.”
However, if Grubbs also overruled Gantt’s holding that
Rule 41 requires agents to produce the warrant upon request
during the search, then the only violation of Rule 41 in this
case would be Agent Chang’s omission of the warrant’s
additional pages when he left behind a copy at the conclusion
of the search. In that circumstance, I would agree with the
majority’s conclusion that the district court did not clearly
err in finding that Agent Chang’s error was negligent rather
than intentional and that suppression was not warranted.
UNITED STATES V. MANAKU 13
Consequently, whether to affirm or reverse the judgment
in this case turns entirely on the continued vitality of Gantt’s
holding that Rule 41 requires production of the warrant upon
demand during the search. We therefore cannot avoid
deciding that issue. 1 Because I conclude that Grubbs
overruled that aspect of Gantt as well, I concur in the
judgment affirming the district court’s denial of Manaku’s
motion to suppress.
1
The majority acknowledges that the Government’s answering brief
squarely raised the issue of whether this aspect of Gantt was overruled
by Grubbs, but it nonetheless insists that Manaku’s opening brief did not
place the issue before us. According to the majority, Manaku’s opening
brief conceded that Grubbs overruled Gantt’s “pre-search presentment
requirement,” and his brief cited Gantt only to make the narrower
argument that the agents’ earlier refusals to produce the warrant show
that Agent Chang’s later refusal to leave behind the complete warrant
must be considered to be deliberate. See Opin. at 10 n.4 (emphasis
added). Thus, in the majority’s view, Manaku’s brief does not contend
that there were multiple violations of Rule 41, but only that Agent
Chang’s single violation of that Rule at the end of the search was
deliberate. That is wrong. In his opening brief, Manaku carefully
conceded only that Grubbs had overruled Gantt’s show-at-the-outset
holding. As to Gantt’s show-on-demand holding, Manaku expressly
quoted the relevant language from Gantt and argued that this “precedent
requires suppression here too,” in part “because agents inexplicably
disregarded repeated requests to produce the warrant.” After the
Government’s brief argued in response that Grubbs overruled Gantt’s
show-on-demand holding as well, Manaku’s reply brief unsurprisingly
focused on the aspects of his argument that would survive such a
conclusion, but it did not abandon the point or concede that the
Government was correct. On the contrary, when specifically asked at
oral argument, Manaku confirmed that, in his view, “Grubbs specifically
left open the question of whether agents are required to produce the
warrant upon the request of the homeowner” (emphasis added). The
continued validity of this aspect of Gantt is thus squarely presented here.
14 UNITED STATES V. MANAKU
I
Federal Rule of Criminal Procedure 41 provides that the
“officer executing the warrant” must do one of two things:
(1) “give a copy of the warrant and a receipt for the property
taken to the person from whom, or from whose premises, the
property was taken” or (2) “leave a copy of the warrant and
receipt at the place where the officer took the property.” See
FED. R. CRIM. P. 41(f)(1)(C). Despite the rule’s clear use of
alternative language in describing these two options for
providing a copy of the warrant, Gantt expressly rejected the
view that “leaving the warrant behind after the search always
suffices.” 194 F.3d at 1001. Instead, we held that, “[a]bsent
exigent circumstances, Rule 41(d) requires service of the
warrant at the outset of the search on persons present at the
search of their premises.” 2 Id. (emphasis added). We
explained that such at-the-outset notice was necessary in
order to ensure that the subjects of the search were
“assure[d]” of the scope of the agents’ authority under the
warrant, so that those subjects would have “the opportunity
to calmly argue that agents are overstepping their authority
or even targeting the wrong residence.” Id. at 1001–02. “A
warrant served after the search is completed,” we reasoned,
cannot fulfill such purposes. Id. at 1002. Applying that
holding to the facts of Gantt, we held that the agents there
“deliberate[ly]” violated Rule 41 by “fail[ing] to show Gantt
the complete warrant even after she asked to see it.” Id. at
1005 (emphasis added). Manaku correctly notes that this
holding is “[d]irectly on point” here. I turn, therefore, to the
Government’s contention that the Supreme Court’s decision
2
At the time, the relevant language of Rule 41 was contained, with
immaterial differences in phrasing, in subdivision (d) of the rule.
UNITED STATES V. MANAKU 15
in Grubbs overruled this show-on-demand aspect of Gantt
as well.
In Grubbs, federal officers obtained a search warrant for
Grubbs’s residence after submitting an affidavit to a
magistrate judge explaining that, if granted, the warrant
would not be executed until a planned controlled delivery of
child pornography to that residence was first completed.
547 U.S. at 92. After carrying out the controlled delivery,
the officers then executed the search warrant and seized a
variety of items, including the tape that had just been
delivered (which Grubbs had ordered from a website
operated by an undercover agent). Id. at 92–93. About
30 minutes into the search, the agents provided Grubbs with
a copy of the warrant, but they did not give him a copy of
the supporting affidavit that mentioned that execution of the
warrant was conditioned on completion of the controlled
delivery. Id. at 93.
On appeal from Grubbs’s ensuing conviction for
receiving child pornography, we held that the Fourth
Amendment required that “the triggering conditions of an
anticipatory search warrant” must “appear either on the face
of the warrant itself” or in its attachments. United States v.
Grubbs, 377 F.3d 1072, 1078 (9th Cir. 2004), as amended,
389 F.3d 1306 (9th Cir. 2004). We further held that the
Fourth Amendment required that, if the triggering conditions
were set forth in a separate document, such as an affidavit,
then that document “must be presented to the person whose
property is being searched.” Id. at 1079. “Absent such
presentation,” we held, “individuals would stand no real
chance of policing the officers’ conduct, because they would
have no opportunity to check whether the triggering events
by which the impartial magistrate has limited the officers’
discretion have actually occurred.” Id. (simplified). And
16 UNITED STATES V. MANAKU
because we held that the Fourth Amendment itself required
such presentation, we did not find it necessary to rely on
Rule 41. See id. at 1073 n.1. We noted, however, that Gantt
had squarely held that, under Rule 41(d), the executing
agents are required to provide “a complete copy of the
warrant at the outset of the search.” Id. at 1079 n.9 (quoting
Gantt, 194 F.3d at 994). The Supreme Court reversed.
Grubbs, 547 U.S. at 97–99.
As an initial matter, the Court held that the Fourth
Amendment’s specification of what must be included with
particularity in the warrant extends only to “‘the place to be
searched’ and ‘the persons or things to be seized,’” and
“does not include the conditions precedent to execution of
the warrant.” Id. at 97–98 (quoting U.S. CONST., amend. IV)
(emphasis added). We therefore erred, the Court concluded,
in holding that the Fourth Amendment required that the
warrant “specify the triggering condition.” Id. at 97.
The Court further held that we had also erred in stating
that, in order to give the property owner a “chance of
policing the officers’ conduct,” the “executing officer must
present the property owner with a copy of the warrant before
conducting his search.” Id. at 98–99 (emphasis added)
(citation and internal quotation marks omitted). In reaching
this conclusion, the Court specifically cited—and rejected—
the reasoning in a footnote in our opinion in Grubbs that had
relied on Gantt. Id. at 98–99 (citing Grubbs, 377 F.3d
at 1079 n.9). “In fact,” the Court held, “neither the Fourth
Amendment nor Federal Rule of Criminal Procedure 41
imposes such a requirement.” Id. at 99 (emphasis added). In
holding that there is no such right, as we had posited, to
receive a warrant in time to contemporaneously police the
agents’ execution of the search, the Court made two points,
both of which are pertinent here.
UNITED STATES V. MANAKU 17
First, the Court stated that “[t]he absence of a
constitutional requirement that the warrant be exhibited at
the outset of the search, or indeed until the search has ended,
is . . . evidence that the requirement of particular description
does not protect an interest in monitoring searches.” Id.
at 99 (quoting United States v. Stefonek, 179 F.3d 1030,
1034 (7th Cir. 1999) (emphasis added) (ellipses added by
Court)). Of course, the statement that the warrant need not
be supplied “until the search has ended” is directly contrary
to our holding in Gantt. Second, the Court held that a
contemporaneous debate between the property owner and
the officers executing the search is not one of the methods
by which the Constitution (or Rule 41) seeks to protect
against unreasonable searches:
The Constitution protects property owners
not by giving them license to engage the
police in a debate over the basis for the
warrant, but by interposing, ex ante, the
“deliberate, impartial judgment of a judicial
officer . . . between the citizen and the
police,” and by providing, ex post, a right to
suppress evidence improperly obtained and a
cause of action for damages.
Grubbs, 547 U.S. at 99 (citation omitted) (ellipsis in
original). Notably, the interests identified by the Court are
fully satisfied by delivering a copy of the warrant at the
conclusion of the search.
The Supreme Court in Grubbs thus expressly rejected
both our reading of Rule 41 in Gantt and our rationale for
that reading. Accordingly, Gantt’s holding that Rule 41
requires service of the warrant at the outset of the search, or
in response to a direct request during the search, is no longer
18 UNITED STATES V. MANAKU
good law. See Miller v. Gammie, 335 F.3d 889, 899–900
(9th Cir. 2003) (en banc).
As I noted earlier, see supra note 1, Manaku contended
at oral argument that Grubbs overruled Gantt only to the
extent that it held that the warrant must generally be
produced at the outset of the search. Manaku insisted that
Grubbs did not undermine Gantt’s further holding that the
warrant must be produced upon a specific request, and in
support of that view he pointed to Justice Souter’s separate
opinion concurring in the judgment in relevant part in
Grubbs. This contention fails. Although Justice Souter
argued that the Court’s decision somehow left open the
question whether an owner has a right to “demand to see a
copy of the warrant before making way for the police,”
547 U.S. at 101 (Souter, J., concurring in judgment in part),
the majority’s analysis on this issue—which Justice Souter
did not join—cannot be reconciled with that view.
As explained above, the Court’s rationale for rejecting
Gantt’s produce-at-the-outset rule was that there is no
requirement to deliver the copy of the warrant “until the
search has ended,” see id. at 99 (citation omitted), and that
rationale cannot be squared with Gantt’s produce-upon-
demand rule either. Moreover, the Grubbs majority
expressly rejected the premise—on which Gantt’s deliver-
on-request holding was based—that the Constitution or
Rule 41 gives owners a “license to engage the police in a
debate over the basis for the warrant.” Id. Contrary to the
Grubbs majority’s holding on this point, Justice Souter
affirmatively endorsed the view that “showing an accurate
warrant” during the search “reliably ‘assures the individual
whose property is searched or seized of the lawful authority
of the executing officer, his need to search, and the limits of
his power to search.’” Id. at 101 (Souter, J. concurring in
UNITED STATES V. MANAKU 19
judgment in part) (citation omitted). A concurrence in the
judgment that criticizes the breadth of the majority’s
reasoning, declines to join it, and purports to limit it, cannot
detract from what the majority actually said. Cf. Local 1545,
United Bhd. of Carpenters & Joiners of Am., AFL-CIO v.
Vincent, 286 F.2d 127, 132 (2d Cir. 1960) (Friendly, J.)
(noting that “dissenting opinions are not always a reliable
guide to the meaning of the majority”). Indeed, Justice
Souter declined to join the relevant portion of the Grubbs
majority precisely because he thought that it undervalued
“an owner’s interest” in obtaining “an accurate statement of
the government’s authority to search property” before the
search was completed. 547 U.S. at 101 (Souter, J.,
concurring in judgment in part).
I therefore conclude, in accordance with Grubbs, that
Rule 41(f)(1)(C) is satisfied if, at the end of the search, the
agents either give a copy of the warrant to the property
owner or leave it at the premises. The agents here thus did
not violate Rule 41 in declining to supply Ms. and Mr. Dela
Cruz with a copy of the warrant during the execution of the
search.
II
It follows from the foregoing that the only violation of
Rule 41 that occurred here was the failure to leave a
complete copy of the warrant after the search had been
completed. As to that sole violation, I agree with the
majority that the district court did not clearly err in
concluding that it was unintentional. Manaku’s motion to
suppress was therefore properly denied.
For these reasons, I concur only in the judgment.