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United States v. Gantt

United States Court of Appeals for the Ninth Circuit

January 7, 1999, Argued and Submitted, Pasadena, California; January 12, 1999, Submission withdrawn; May 25, 1999, Resubmitted ; June 7, 1999, Filed

No. 98-50171

Opinion

 [*990]  ORDER

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 [**2]  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. 2 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 [**3]  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 [**4]  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  [*991]  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 [**5]  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").

OPINION

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194 F.3d 987 *; 1999 U.S. App. LEXIS 25529 **; 99 Daily Journal DAR 10671

UNITED STATES OF AMERICA, Plaintiff-Appellant, v. PAMELA JEAN GANTT, Defendant-Appellee.

Subsequent History:  [**1]  As Amended October 14, 1999.

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

Original Opinion Previously Reported at: 1999 U.S. App. LEXIS 11725.

Disposition: Decision of the district court to suppress the evidence seized at Gantt's apartment AFFIRMED. Petition for rehearing DENIED and the petition for rehearing en banc DENIED.

CORE TERMS

premises, suppression, appointment, certification, seized, search warrant, outset, searched, copy of the warrant, assurance, good-faith, apartment, inferior officer, deliberate, inventory, Appeals, notice, district court, authorities, legality, violence, argues, arrest, tense, exigent circumstances, violations, circuits, invaded, serving, cases

Criminal Law & Procedure, Appeals, Right to Appeal, Government, Appellate Jurisdiction, Interlocutory Appeals, Civil Procedure, Dismissal of Appeals, Involuntary Dismissals, General Overview, Evidence, Inferences & Presumptions, Constitutional Law, The Presidency, Appointment of Officials, Governments, Federal Government, US Congress, Subject Matter Jurisdiction, Jurisdiction Over Actions, Limited Jurisdiction, Courts, Court Personnel, Jurisdiction, Administrative Law, Separation of Powers, Executive Controls, Standards of Review, Preliminary Proceedings, Pretrial Motions & Procedures, Suppression of Evidence, Special Proceedings, Eminent Domain Proceedings, Search & Seizure, Search Warrants, Execution of Warrants, Particularity Requirement, Employees & Officials, Legislation, Interpretation, Fundamental Rights, Warrants

Criminal Law & Procedure, Appeals, Right to Appeal, Government, Appellate Jurisdiction, Interlocutory Appeals, Civil Procedure, Dismissal of Appeals, Involuntary Dismissals, General Overview, Evidence, Inferences & Presumptions, Constitutional Law, The Presidency, Appointment of Officials, Governments, Federal Government, US Congress, Subject Matter Jurisdiction, Jurisdiction Over Actions, Limited Jurisdiction, Courts, Court Personnel, Jurisdiction, Administrative Law, Separation of Powers, Executive Controls, Standards of Review, Preliminary Proceedings, Pretrial Motions & Procedures, Suppression of Evidence, Special Proceedings, Eminent Domain Proceedings, Search & Seizure, Search Warrants, Execution of Warrants, Particularity Requirement, Employees & Officials, Legislation, Interpretation, Fundamental Rights, Warrants