FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

GRANT MANAKU,

Defendant-Appellant.

No. 20-10069

D.C. No.

1:18-cr-00069-LEK-1

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 DefendantAppellant.

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 threepage 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 singlepage 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. NegreteGonzales, 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-upondemand rule either. Moreover, the Grubbs majority 

expressly rejected the premise—on which Gantt’s deliveron-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.