194 F.3d 987 (9th Cir. 1999), 98-50171, United States v. Gantt

Docket Nº:98-50171
Citation:194 F.3d 987
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellant, v. PAMELA JEAN GANTT, Defendant-Appellee.
Case Date:June 07, 1999
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 987

194 F.3d 987 (9th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellant,


PAMELA JEAN GANTT, Defendant-Appellee.

No. 98-50171

United States Court of Appeals, Ninth Circuit

June 7, 1999

Submission withdrawn January 12, 1999 Argued and Submitted January 7, 1999--Pasadena, California

Submission withdrawn January 12, 1999

Resubmitted May 25, 1999

Amended October 14, 1999

Page 988

[Copyrighted Material Omitted]

Page 989

Joseph Brannigan, Assistant United States Attorney, San Diego, California, for the plaintiff-appellant.

Page 990

Benjamin Coleman, Federal Public Defender, San Diego, California, for the defendant-appellee.

Appeal from the United States District Court for the Southern District of California Leland C. Nielsen, District Judge, Presiding. D.C. No. CR-97-03285-LCN

Before: Donald P. Lay,1 Alfred T. Goodwin, and Mary M. Schroeder, Circuit Judges.


[1] Honorable Donald P. Lay, Senior Circuit Judge for the Eighth Circuit, sitting by designation.


The opinion filed June 7, 1999, slip op. 5781 and appearing at 179 F.3d 782 (9th Cir. 1999), is amended as follows:

1. At slip. op. 5785, 179 F.3d at 784, in the fourth sentence of the first paragraph of Part I, change "Federal Public Defender" to "Public Defender".

2. At slip op. 5794-5797, 179 F.3d at 789-791, replace Part V of the opinion with:

V. Rule 41(d)'s Service Requirement

The government violated F.R.Cr.P. 41(d) by failing to present Gantt with a complete copy of the warrant at the outset of the search of her apartment. Gantt was not served with the complete warrant until after she was arrested and taken to an FBI office, hours after the search of her apartment began and hours after she requested to see the warrant.

[7] Rule 41(d) provides in pertinent part: "the officer taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken or shall leave the copy and receipt at the place from which the property was taken . . . ." The government argues that this language never requires service on the person; leaving the warrant behind after the search always suffices. In this case, the government suggests the rule was satisfied because the agents left the complete warrant at the apartment after the conclusion of the search and Gantt's arrest. We reject the government's reading of Rule 41(d). Absent 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.

Rule 41(d) must be interpreted in the light of the important policies underlying the warrant requirement - to provide the property owner assurance and notice during the search. The Supreme Court has repeatedly held that an essential function of the warrant is to "assure[ ] 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." United States v. Chadwick, 433 U.S. 1, 9, 53 L.Ed. 2d 538, 97 S.Ct. 2476 (1977), abrogated on other grounds, California v. Acevedo, 500 U.S. 565, 114 L.Ed. 2d 619, 111 S.Ct. 1982 (1991). See also Michigan v. Tyler, 436 U.S. 499, 508, 56 L.Ed. 2d 486, 98 S.Ct. 1942 (1978) ("a major function of the warrant is to provide the property owner with sufficient information to reassure him of the entry's legality"); United States v. Martinez-Fuerte, 428 U.S. 543, 566, 49 L.Ed. 2d 1116, 96 S.Ct. 3074 (1976) (Without a warrant the occupant has "no way of knowing the lawful limits of the inspector's power to search, and no way of knowing whether the inspector himself is acting under proper authorization.") (quoting Camara v. Municipal Court, 387 U.S. 523, 532, 18 L.Ed. 2d 930, 87 S.Ct. 1727 (1967)); Steagald v. United

States, 451 U.S. 204, 226, 68 L.Ed. 2d 38, 101 S.Ct. 1642 (1981) (Rehnquist, J., dissenting) (search warrants "assure[ ] the occupants that the police officer is present on official business."). Even the dissenters in Chadwick agreed on this basic function of the search warrant. See Chadwick, 433 U.S. at 20 n. 1 (Blackmun, Rehnquist, JJ., dissenting) (agreeing that in the search of a home or office, a warrant's functions include "assuring the occupants that the officers have legal authority to conduct the search").

In addition to this "assurance" function, this Court has frequently explained that the particularized warrant requirement is also intended "'to give notice to the person subject to the search what the officers are entitled to seize.'" In the Matter of Seizure of Property Belonging to Talk of the Town Bookstore, Inc., 644 F.2d 1317, 1318 (9th Cir. 1981) (quoting United States v. Marti, 421 F.2d 1263, 1268 (2d Cir. 1970)). Accord United States v. McGrew, 122 F.3d 847, 850 (9th Cir. 1997); United States v. Van Damme, 48 F.3d at 466 (9th Cir. 1995) (since affidavit did not accompany warrant "Van Damme could look at no document specifying what the officers could take."); United States v. Towne, 997 F.2d 537, 545 (9th Cir. 1993); United States v. Hayes, 794 F.2d 1348, 1355 (9th Cir. 1986) (one purpose of warrant is to "inform the person subject to the search what items the officers . . . can seize.").

In light of these Supreme Court and Ninth Circuit precedents, there can be no doubt that the essential functions of the search warrant include assuring the subject of the search that her privacy is invaded only under a legal warrant and notifying her of the extent of the officer's authority.

[8] The government's proposed reading of Rule 41(d) ignores these essential functions. If a person is present at the search of her premises, agents are faithful to the "assurance" and "notice" functions of the warrant only if they serve the warrant at the outset of the search. A warrant served after the search is completed cannot timely "provide the property owner with sufficient information to reassure him of the entry's legality." Michigan, 436 U.S. at 508.

The search warrant requirement arose from the Founder's understanding that "power is a heady thing; and history shows that the police acting on their own cannot be trusted." McDonald v. United States, 335 U.S. 451, 456, 93 L.Ed. 153, 69 S.Ct. 191 (1948). The citizen whose home is invaded without service of a warrant must suffer the invasion while still in doubt of its legality. She must wonder if our Constitutional system has ensured that the "objective mind" of a neutral magistrate has "weighed the need to invade that privacy in order to enforce the law." Id. at 455. Citizens deserve the opportunity to calmly argue that agents are overstepping their authority or even targeting the wrong residence. For this reason, service of the warrant at the outset of the search is recommended by the distinguished authors of the Model Code of Pre-Arraignment procedure. See American Law Institute, A Model Code of Pre-Arraignment Procedure 132 (1975). Our law requires officers wishing to search a premises to first conduct an initial investigation, prepare affidavits, appear before a magistrate, obtain a search warrant, and bring copies of the complete warrant to the search. After agents have complied with all of these burdens, we cannot

understand why the government then objects to the agents spending a few seconds to serve the warrant as they begin their search, the final step in fulfilling two of the primary justifications for our warrant procedures.

We wish to emphasize that the government has not explained its opposition to serving the warrant at the outset of the search. Despite filing four separate briefs on appeal, it has not advanced one plausible justification for leaving the subjects of searches in doubt over the legality of the search or identified how serving the warrant at the outset of a search burdens effective law enforcement. The government suggests only that after reading the warrant people might conclude agents are overstepping the bounds of their authority and then resort to violence. The government's argument is illogical. Persons prone to physical confrontation with armed federal agents are not less likely to resort to violence if the warrant is kept from them. In fact, such persons may be more likely to conclude agents are overstepping their authority if they are not provided a warrant, particularly after asking to see one. Courts have typically assumed that the absence of a warrant creates a "greater potential for confrontation and violence." United States v. Hepperle, 810 F.2d 836, 839 (8th Cir. 1987). One of the purposes of requiring agents to "hand[ ] the occupant (when present) the warrant, like that of the 'knock and announce' rule, is to head off breaches of the peace by dispelling any suspicion that the search is illegitimate." United States v. Stefonek, 179 F.3d 1030, 1035 (7th Cir. 1999).

We are not ignorant of the dangers to which federal agents are sometimes exposed in the execution of search warrants. If agents fear the subject of a search might be violent or troublesome, they have ample authority to remove that person from the scene of the search. See United States v. Hudson, 100 F.3d 1409, 1419-20 (9th Cir. 1996). The language of Rule 41(d) does suggest that the subjects of searches are to monitor the execution of the search: "The inventory shall be made in the presence of . . . the person from whose possession or premises the property was taken, if they are present. . . ." We do not, however, require agents to always abide by this provision. Believing Gantt was prone to violence, agents removed her from the apartment and prevented her from monitoring the search. There is no dispute over their authority to have done so. The dispute concerns only the government's unjustified...

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