Appeal from the United States District Courtfor the Southern District of CaliforniaLeland C. Nielsen, District Judge, PresidingArgued and SubmittedJanuary 7, 1999--Pasadena, CaliforniaSubmission withdrawn January 12, 1999Resubmitted May 25, 1999Filed June 7, 1999Amended October 14, 1999Before: Donald P. Lay,1 Alfred T. Goodwin, andMary M. Schroeder, Circuit Judges.Opinion by Judge GoodwinSUMMARY The summary, which does not constitute a part of the opinion of the court, is copyrighted C 1999 by West Group.
_____________________________Criminal Law and Procedure/Search and SeizureThe court of appeals denied a petition for rehearing enbanc. The court held that Fed. R. Crim. P. 41(d) requires anexecuting officer to present a copy of a search warrant to aperson present at the searched property at the outset of thesearch.FBI agents obtained a warrant to search appellee PamelaGantt's hotel room. The agents did not give Gantt a copy ofthe search warrant until she asked to see the warrant. Believ-ing that she was prone to violence, they removed her from thearea of the search, thus preventing her from monitoring it.Then they showed her the face of the warrant, but not"Attachment A," a two-page list of items to be seized.After concluding the search, the agents gave Gantt aninventory of the items they had seized, and left a copy of thewarrant with the attachment. Before Gantt could read thecopy, the agents arrested her. Only at the local FBI office wasGantt shown the entire warrant and its attachment. Some ofthe seized items were not specified in Attachment A.An indictment charged Gantt with a federal crime. The dis-trict court granted a defense motion to suppress the seized evi-dence on the ground that the FBI agents violated Rule 41(d)by failing to present Gantt with a copy of the search warrantand its attachment when they began their search.The government appealed, contending that Rule 41(d)allows agents to have the option of serving the search warranton the person or leaving it behind after they complete theirsearch. Alternatively, the government asserted that even if aRule 41(d) violation occurred, the evidence should not havebeen suppressed under the "good faith" exception to theexclusionary rule.[1] The government violated Rule 41(d) by failing to pre-sent Gantt with a complete copy of the warrant at the outsetof the search of her apartment. Absent exigent circumstances,Rule 41(d) requires service of the warrant at the outset of thesearch on persons present at the search of their premises.[2] Rule 41(d) must be interpreted in light of the importantpolicies underlying the warrant requirement--to provide theproperty owner assurance and notice during the search. TheSupreme Court has repeatedly held that an essential functionof the warrant is to assure the individual whose property issearched and seized of the lawful authority of the executingofficer, his need to search, and the limits of his power tosearch. [3] In addition to the "assurance" function, the Courthas frequently explained that the particularized warrantrequirement is also intended to give notice to the person sub-ject to the search what the officers are entitled to seize.[4] The government's proposed reading of Rule 41(d),ignored these essential functions of the search warrant. If aperson is present at the search of her premises, agents arefaithful to the "assurance" and "notice " functions of the war-rant only if they serve it at the outset of the search. A warrantserved after the search is completed cannot timely provide theproperty owner with information sufficient to reassure him ofthe entry's legality.[5] The government did not explain its opposition to serv-ing the warrant at the outset of the search. It did not advancea plausible justification for leaving the subjects of searches indoubt over the legality of the search, or identify how servingthe warrant at the outset of a search burdens effective lawenforcement. Persons prone to physical confrontation withfederal agents are not less likely to resort to violence if thewarrant is kept from them. In fact, such persons may be morelikely to conclude that agents are overstepping their authorityif they are not provided with a warrant, particularly after ask-ing to see one. One of the purposes of requiring agents tohand the occupant (when present) the warrant is to head offbreaches of the peace by dispelling any suspicion that thesearch is illegitimate.[6] If agents fear that the subject of a search might be vio-lent or troublesome, they have authority to remove that personfrom the scene of the search. Believing Gantt was prone toviolence, agents removed her from the apartment and pre-vented her from monitoring the search. There was no disputeover their authority to do so. The dispute concerned only thegovernment's unjustified failure to show her the warrant asthe search began, or even after she asked to see it.[7] Violations of Rule 41(d) do not usually demand sup-pression. "Technical" violations of Rule 41(d) require sup-pression only if there was a deliberate disregard of the rule,or if the defendant was prejudiced. Suppression was justifiedin this case because the violation was deliberate. The agentsfailed to show Gantt the complete warrant even after sheasked to see it. The government provided no explanation orjustification for the agents' failure.[8] The good-faith exception is applied when a magistrateerroneously issues a warrant, but the officers involved are notto be expected to recognize the mistake. The exclusionary ruleis designed to deter police misconduct rather than legal errorsof judges and magistrates. [9] If there is no error on the partof the judiciary, the good-faith exception is inapplicable. InGantt's case, the officers erred in the execution of a warrant,a subject wholly within their province. There was no allega-tion that the warrant was invalid, or that the magistrate com-mitted an error. The good-faith exception was not relevant.
_____________________________COUNSEL Joseph Brannigan, Assistant United States Attorney, SanDiego, California, for the plaintiff-appellant.Benjamin Coleman, Federal Public Defender, San Diego, Cal-ifornia, for the defendant-appellee.
_____________________________ORDER The opinion filed June 7, 1999, slip op. 5781 and appearingat 179 F.3d 782 (9th Cir. 1999), is amended as follows:1. At slip. op. 5785, 179 F.3d at 784, in the fourth sentenceof the first paragraph of Part I, change "Federal PublicDefender" to "Public Defender".2. At slip op. 5794-5797, 179 F.3d at 789-791, replace PartV of the opinion with:V. Rule 41(d)'s Service Requirement The government violated F.R.Cr.P. 41(d) by fail- ing 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: "[t]he 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 assur- ance 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
(1977), abrogated on other grounds, California v. Acevedo,
500 U.S. 565
(1991). See also Michigan v. Tyler,
436 U.S. 499
, 508 (1978) ("a major function of the warrant is to provide the property owner with sufficient informa- tion to reassure him of the entry's legality"); United States v. Martinez-Fuerte,
428 U.S. 543, 566
(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 inspec- tor himself is acting under proper authorization.") (quoting Camara v. Municipal Court,
387 U.S. 523
, 532 (1967)); Steagald v. United States, 451 U.S. 204, 226 (1981) (Rehnquist, J., dissenting) (search warrants "assure[ ] the occupants that the police offi- cer is present on official business."). Even the dis- senters 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 "assur[ing] 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 war- rant 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 Prop- erty 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 offi- cers . . . 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 pro- posed 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 informa- tion 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 "[p]ower 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
(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 magis- trate has "weigh[ed] 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 war- rant 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 pri- mary 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 bur- dens 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, particu- larly 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 fed- eral 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 lan- guage 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 pre- vented her from monitoring the search. There is no dispute over their authority to have done so. The dis- pute concerns only the government's unjustified fail- ure to show her the warrant as the search began or even after she asked to see it. The government's interpretation of the Rule also conflicts with a basic norm of statutory construction. If leaving the warrant behind after the search always suffices, there is no need for Rule 41(d) to include the more demanding requirement of service on the occupant of the searched premises. The first half of the rule is rendered mere surplusage. The cannons of statutory interpretation require that the more demanding requirement be the preferred require- ment. Cf. United States v. Fiorillo, _______ F.3d _______, _______, 1999 WL 493238, *11 (9th Cir. 1999) ("One provision of a statute should not be interpreted in a manner that renders other sections of the same stat- ute `inconsistent, meaningless or superfluous.' "); Northwest Forest Resource Council v. Glickman, 82 F.3d 825, 834 (9th Cir. 1996) ("We have long fol- lowed the principle that [s]tatutes should not be con- strued to make surplusage of any provision.") (internal quotation marks omitted). The government alternatively argues that our interpretation conflicts with the Rule's use of the past tense in describing the subject of the search as "the person from whom or from whose premises the property was taken." (Emphasis added). The govern- ment suggests Rule 41(d) only requires service of the warrant after the completion of the search. The gov- ernment points to the fact that agents did present the warrant to Gantt a few hours after the search. Not only does service after the search ignore much of the point of the service requirement, but a close exami- nation of the entire Rule also belies the govern- ment's emphasis on tense. Rule 41(d) proceeds to require that "[t]he inventory . . . be made in the pres- ence of . . . the person from whose possession or premises the property was taken, if they are present . . . ." (Emphasis added.) The inventory is presum- ably made as items are identified and seized and not after the items have been taken away and sent to an FBI laboratory, yet the rule again describes the occu- pant of the premises using the "was taken" language. The government's emphasis on tenses supposes the Rule's drafters believed inventories are not made until after the property is carted away. We also note the grammatical conflict between "was taken" and "are present" in the above quoted language. The Rule's use of "from whom . . . the property was taken" is just an awkward description of the occu- pant of the searched premises. The use of the past tense carries no substantive implications and does not conflict with our holding. Finally, we find unpersuasive the government's lengthy discussion of supposedly conflicting prece- dent. The government focuses on Katz v. United States,
389 U.S. 347
(1967), but our interpretation of Rule 41(d) is nearly compelled by that seminal opin- ion. In defending the legality under the federal rules of warrants authorizing electronic eavesdropping, the Supreme Court stated "Rule 41(d) does require fed- eral officers to serve upon the person searched a copy of the warrant and a receipt describing the material obtained, but it does not invariably require that this be done before the search takes place." Katz,
389 U.S. at 355
n. 16 (emphasis added). The government inexplicably proposes that this language means agents never need serve the warrant before the search. But if Rule 41(d) does not "invariably" require service before the search, then Rule 41(d) must usually require service before the search. More- over, the Court was defending eavesdropping war- rants against the charge that they did not provide prior notice to the subject of the search unlike"[a] conventional warrant [which] ordinarily serves to notify the suspect of an intended search. " Id. (emphasis added); see also id. n. 22. Katz, the last word from the Supreme Court on the subject, sup- ports our conclusion that, absent exigent circumstances,9 Rule 41(d) requires service of the warrant at the outset of the search. The government next contends our holding is con- trary to the "prevailing view" in our sister circuits. We have examined the numerous cases cited by the government and find no such prevailing view. In fact, we find firm support for our interpretation of Rule 41(d). Our sister circuits have also recognized that the failure to serve the warrant on the subject of the search prior to the search is a violation of Rule 41(d) but have declined to mandate suppression. See, e.g., United States v. Frisby, 79 F.3d 29, 32 (6th Cir. 1996) ("failure to furnish him with Attachment A prior to the search" was a violation of Rule 41(d) but not prejudicial enough to require suppression); United States v. Charles, 883 F.2d 355, 357 (5th Cir. 1989) (same); United States v. Bonner, 808 F.2d 864, 869 (1st Cir. 1986) (same). United States v. Stefonek, 179 F.3d 1030 (7th Cir. 1999), cited by the government, is not on point because Stefonek argued that his premises should not have been searched in his absence. In rejecting that argument, however, Chief Judge Posner agreed that "[t]he purpose of handing the occupant (when present) the warrant [under Rule 41(d)], 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." Id. at 1035. This purpose can only be served, of course, if the warrant is handed to the occupant as the search begins. There is no conflict with any case cited to us from any of our sister circuits.10 The government is left with Nordelli v. United States, 24 F.2d 665 (9th Cir. 1928), in which we did state in passing that the predecessor of Rule 41(d), 18 U.S.C. S 622 (1928), did not require service of the warrant prior to the seizure. See Nordelli , 24 F.2d at 666. We decline to follow Nordelli, not because of its age, but because the language cited by the gov- ernment is dicta, irrelevant to the holding. The defendants did not allege that the warrant was not served before the seizure; they only challenged the return of the warrant for failing to state that the war- rant had been served. See id. We sensibly resolved the issue by noting that just because "the return on the warrant failed to show that a copy of the warrant . . . was left as required by the statute, it does not fol- low that the papers were not left with the defendants as required by law." Id. Moreover, Nordelli proceeds to hold that a warrant was nonetheless unnecessary because the search was justified as a search incident to an arrest. See id. at 667. In short, we had no opportunity in Nordelli to determine whetherS 622 required service before seizure. We conclude that, absent exigent circumstances, if a person is present at the search of her premises, Rule 41(d) requires officers to give her a complete copy of the warrant at the outset of the search. Violations of Rule 41(d) do not usually demand suppression, however. Under Ninth Circuit law, "technical" violations of Rule 41(d) require suppres- sion only if there was a "deliberate disregard of the rule" or if the defendant was prejudiced. See United States v. Negrete-Gonzales, 966 F.2d 1277, 1283 (9th Cir. 1992). Suppression is justified here because the violation was deliberate. (We need not thus con- sider whether the violation was "technical" or "fundamental.") The agents failed to show Gantt the complete warrant even after she asked to see it. The government has provided no explanation or justifica- tion for the agents' failure. The government tries to argue Attachment A was unavailable because agents were using it to conduct the search, but in its open- ing brief the government admits the agents had "multiple copies" of the complete warrant on-site. Nothing in the record indicates that none of the cop- ies could be spared to show Gantt or that the agents were unable to make an extra copy of the warrant in the 16 hours between the issuance of the warrant and its execution. The government also claims the failure was not deliberate because "no previous case" has held that the warrant must be served on the subject of the search. We disagree. One of our recent cases held that under the Fourth Amendment, "[i]t is the government's duty to serve the search warrant on the suspect" in order to "inform the person subject to the search what items the officers executing the warrant can seize."11 See United States v. McGrew, 122 F.3d 847, 850 (9th Cir. 1997) (internal quotation marks omitted). The government might also consider the authorities it cited to us in its briefs. See, e.g., Katz,
389 U.S. at 355
n. 16; Frisby, 79 F.3d at 32 ("failure to furnish him with Attachment A prior to the search" was a violation of Rule 41(d)); Charles, 883 F.2d at 357 (same); Bonner, 808 F.2d at 869 (same). Our Rule 41(d) jurisprudence requires suppression under these circumstances.3. At slip op. 5798, 179 F.3d at 791, in the second sentenceof the first paragraph of Part VII, change "deliberate andprejudicial" to "deliberate".With the opinion thus amended, the panel has voted unani-mously to deny the petition for rehearing. Judge Schroederhas voted to deny the petition for rehearing en banc, andJudges Lay and Goodwin recommended denial.The full court has been advised of the petition for rehearingen banc and no active judge has requested a vote on whetherto rehear the matter en banc. Fed. R. App. P. 35.The petition for rehearing is DENIED and the petition forrehearing en banc is DENIED.
_____________________________OPINION GOODWIN, Circuit Judge:In this interlocutory appeal from a suppression order, thegovernment argues that F.R.Cr.P. 41(d) does not requireagents to serve a copy of a search warrant on a person presentat the search of her property. Instead, the government con-tends that Rule 41(d) is satisfied if a copy of the warrant isleft behind at the scene after the search is completed, even ifthe person is first arrested and thus has no opportunity toexamine the warrant left behind. We reject the government'sinterpretation of Rule 41(d) and affirm the district court's sup-pression order. Before we reach the merits of the appeal, how-ever, we must consider whether this appeal is properly takenunder 18 U.S.C. S 3731.I. Procedural and Factual BackgroundThe parties appear to agree on all of the facts essential tothis appeal. The government has indicted Gantt under 18U.S.C. SS 115, 876, and 1114 for threatening to assault andkill an FBI agent. The threats were made in numerous phonecalls and letters. The government suspects Gantt because sheplead guilty in 1993 to making similar threats to a PublicDefender in Washington state who had represented a manaccused of raping Gantt. The FBI Agent began receiving thethreats while she was investigating the Public Defender'scomplaint that Gantt had recently resumed the threateningphone calls.At 6:30 am, on November 25, 1997, the FBI executed asearch warrant on Gantt's room in a San Diego hotel. Thewarrant did not specify the suspected criminal activity.2Instead of describing the items to be seized, the warrant stated"[s]ee Attachment A." Attachment A was a two-page, typedlist of items to be seized including specific kinds of enve-lopes, paper, and postage stamps, items with the name oraddress of the FBI agent or Public Defender, typing materials,and items reflecting control of the apartment searched such asmail or keys.Upon entering Gantt's residence, the agents did not presenther with a copy of the warrant. Instead, they directed her tosit in the hallway while they conducted their the three-hoursearch. The agents did not show Gantt the warrant under theauthority of which they had invaded her privacy until Ganttherself asked to see the search warrant. The agents respondedby showing her the face of the warrant but not Attachment A.Gantt did not specifically ask to see Attachment A. After con-cluding their search, the agents gave Gantt an inventory ofitems seized and left a copy of the warrant with AttachmentA behind in the hotel room. Before Gantt could examine thecopy of the warrant left in the hotel room, however, the agentsarrested her and took her to an FBI office. Only at the FBIoffice was Gantt shown the entire warrant including Attach-ment A. Among the items seized that do not appear on the listin Attachment A were a fake grenade, Spanish language mate-rials, business cards, pawn shop receipts, a check register, avehicle registration, and ammunition.The district court granted Gantt's motion to suppress theevidence seized from the hotel room. The governmentappeals.II. The Government's Failure to Timely Satisfy 18 U.S.C. S 3731We must first consider whether the government's appealshould be dismissed for failure timely to meet the certificationrequirements of 18 U.S.C. S 3731.Beginning in 1907, Congress has granted the governmentlimited rights of appeal in criminal cases. See CriminalAppeals Act of 1907, 34 Stat. 1246 (March 2, 1907) (codifiedas amended at 18 U.S.C. S 3731). But not until 1968 did Con-gress provide the government the ability to bring interlocutoryappeals of district court decisions to suppress evidence. SeeOmnibus Crime Control and Safe Streets Act of 1968, TitleVIII, Pub.L. 90-351, 82 Stat. 197 (1968) (codified as amendedat 18 U.S.C. S 3731). Prior to the enactment of this provision,government appeals of suppression orders had been prohib-ited in keeping with both the policy against piecemeal litiga-tion and the traditional reluctance to allow governmentappeals in criminal cases. See DiBella v. United States, 369U.S. 121, 131 (1962). The Supreme Court had held that"[o]rders granting or denying suppression . .. are trulyinterlocutory" and not final orders for purposes of 28 U.S.C.S 1291.3 Id.In abrogating the common law position reaffirmed inDiBella, Congress did not go so far as to grant the govern-ment unfettered authority to appeal suppression orders.Appeals are not permitted "after the defendant has been putin jeopardy and before the verdict or finding on an indictmentor information." 18 U.S.C. S 3731. Before an appeal is filed,Congress also requires that "the United States attorney certi-fies to the district court that the appeal is not taken for pur-pose of delay and that the evidence is a substantial proof ofa fact material in the proceeding." This requirement isdesigned to force federal prosecutors to consider whether theappeal is taken for a proper purpose before they force a defen-dant to relitigate the evidentiary issue. See United States v.Carrillo-Bernal, 58 F.3d 1490, 1493 (10th Cir. 1995).Unfortunately, some government attorneys from time totime treat the S 3731 certification requirement as a mere for-mality and even neglect to file the certification in a timelymanner.4 The failure to file the certificate does not oust ourjurisdiction but does require us to decide whether to exerciseour discretion under F.R.App.P. 3(a) to dismiss the appeal.See United States v. Becker, 929 F.2d 442, 445 (9th Cir.1991). While "the complete failure to file a certificate wouldclearly constitute a violation of the statute," id. at n.1, wehave previously accepted certificates filed even after oralargument. See id.; United States v. Eccles, 850 F.2d 1357,1359-60 (9th Cir. 1988). Other circuits have not been as gen-erous, especially in recent years. See, e.g., United States v.Salisbury, 158 F.3d 1204, 1206-07 (11th Cir. 1998) (dismiss-ing appeal where certificate filed one month after notice ofappeal); Carrillo-Bernal, 58 F.3d at 1492 (dismissing appealwhere certificate filed after court alerted parties of defi-ciency); United States v. Miller, 952 F.2d 866, 876 (5th Cir.1992) (dismissing appeal where certificate filed after defi-ciency raised in defendant's brief).In the present case, the government did certify that it wasnot pursuing this appeal for purposes of delay but failed tocertify that the evidence suppressed is a "substantial proof" ofa material fact. The deficiency was raised sua sponte by thiscourt in a pre-argument order to show cause. Before oralargument, the government filed the appropriate certification.We choose to exercise our discretion not to dismiss thisappeal.The United States Attorney's Office for the Southern Dis-trict of California has shown that despite its mistake, it doestake the certification requirements of S 3731 seriously. Cf.Carrillo-Bernal, 58 F.3d at 1494 (condemning government'streating the certification requirement as a "meaninglessformality"). The Office has described its internal proceduresrequiring senior officials carefully to review, in light of therequirements of S 3731, each request by a trial attorney for anappeal of a suppression order. The Office has also assured thisCourt that those procedures were followed in the present case,that the failure to provide the certification was a clerical error,and that those procedures are being reinforced as a result ofthis error. Given the serious attention the United States Attor-ney appears to be devoting to the issue, we do not dismiss theappeal. Moreover, though the government's oversight has ledto a considerable waste of judicial resources, the defendanthas suffered no prejudice.The Ninth Circuit does require "more than the prosecutor'sbare certification" to the district court to establish S 3731compliance; the government must also demonstrate to thisCourt the existence of the two S 3731 conditions. UnitedStates v. Adrian, 978 F.2d 486, 490-91 (9th Cir. 1992); seealso United States v. Poulsen, 41 F.3d 1330, 1333 (9th Cir.1994). The government concedes that it erred in not makinga case for the S 3731 conditions in its opening brief. Butbecause there has been no allegation or indication that theappeal is being pursued for delay and because the relevanceto the indictment of the items seized is unquestioned, we con-clude that S 3731 has been satisfied.III. Appointment of United States Attorneys By District Courts under 28 U.S.C. S 546(d)In her reply to the government's response to our order toshow cause, Gantt argues that the government's S 3731 certi-fication is invalid because the appointment of the currentUnited States Attorney for the Southern District of Californiaby the judges of the Southern District of California pursuantto 28 U.S.C. S 546(d) violates the Appointments Clause. U.S.Const., Art. II, S 2, cl. 2.Since the Civil War, the judiciary has been empowered tofill vacancies in the office of United States Attorney. See Actof March 3, 1863, chap. 93, S 2, 12 Stat. 768 (1863) (Rev.Stat. 1873, S 793). The current version of this appointmentpower is codified at 28 U.S.C. S 546(d). Section 546(a)-(c)authorizes the Attorney General "to appoint a United Statesattorney for the district in which the office of United Statesattorney is vacant" for 120 days. Upon the expiration of theAttorney General's appointment, S 546(d) provides that "thedistrict court for such district may appoint a United Statesattorney to serve until the vacancy is filled," i.e., until aUnited States Attorney nominated by the President is con-firmed by the Senate under 28 U.S.C. S 541.We are forced to reach the merits of Gantt's constitutionalchallenge. An infirmity in the United States Attorney'sappointment would not generally affect the jurisdiction of thiscourt so long as a proper representative of the governmentparticipated in the action. See United States v. Pelinski, 912F.2d 1033 (9th Cir. 1993) (participation of improperlyappointed government attorney does not affect court's juris-diction over prosecution). The alleged infirmity would, how-ever, nullify the S 3731 certification because, unlike manyother rules, S 3731 specifically requires certification by "theUnited States Attorney." The constitutionality ofS 546(d)would not affect the validity of indictments, by contrast, asindictments need only be signed by an "attorney for thegovernment." See F.R.Cr.P. 7(c)(1); United States v. Kouri-Perez, 1999 WL 55663 (D.P.R. Feb. 1, 1999) (refusing toconsider constitutionality of S 546(d) in motion to dismissindictment given language of F.R.Cr.P. 7(c)(1)). While it maybe possible for a United States Attorney to delegateS 3731certification authority to a subordinate, see United States v.Wolk, 466 F.2d 1143, 1146 n.2 (8th Cir. 1972), if the UnitedStates Attorney's appointment is invalid, then her delegationis similarly invalid.Following the modern trend we choose not to ratify theactions of an improperly appointed officer of the UnitedStates under the ancient "de facto officer" doctrine. See Silverv. United States Postal Service, 951 F.2d 1033, 1036 n.2 (9thCir. 1991) (declining to apply de facto officer doctrine andquestioning continued vitality of the doctrine); see alsoUnited States v. Navarro, 160 F.3d 1254 (9th Cir. 1998)(reaching merits of defendant's argument that prosecutingSpecial Assistant United States Attorney was improperlyappointed). If the United States Attorney has not been validlyappointed, the government has taken this appeal in violationof S 3731, and we should decline to hear the appeal.We are not convinced that Congress' decision to vestappointment of interim United States Attorneys in the districtcourts violates the Appointments Clause. The Clause requiresprincipal officers to be appointed by the President with the"Advise and Consent" of the Senate. Congress may, however,"vest the Appointment of such inferior Officers, as they thinkproper, in the President alone, in the Courts of Law, or in theHeads of Departments." U.S. Const., Art. II,S 2, cl. 2.Because United States Attorneys are "inferior " officers,S 546(d) passes constitutional muster.5United States Attorneys are clearly "officers " of the UnitedStates. See Buckley v. Valeo,
424 U.S. 1, 126
(1976) (an offi-cer is "any appointee exercising significant authority pursuantto the laws of the United States"); 28 U.S.C.S 547 (delineat-ing broad authority of United States Attorney to enforce fed-eral law). Whether they are principal or inferior officers isless obvious.The Constitution does not use the term "inferior " "in thesense of petty or unimportant" but in the sense of a subordi-nate to a principal officer. United States v. Collins, 14 Ct. Cl.568, 574 (1878). The Supreme Court has recently reiteratedthat being an " `inferior officer' connotes a relationship withsome higher ranking officer or officers below the President:whether one is an `inferior' officer depends on whether he hasa superior. . . . `inferior officers' are officers whose work isdirected and supervised at some level by others who " are prin-cipal officers.6 United States v. Edmond,
520 U.S. 651
, _______,117 S.Ct. 1573, 1580-81 (1997). In Edmond, the SupremeCourt unanimously held that judges of the Coast Guard Courtof Criminal Appeals are inferior officers because they aresubject to administrative supervision by the Coast GuardJudge Advocate General (JAG) and judicial supervision bythe Court of Appeals for the Armed Forces. See id., 520 U.S.at _______, 117 S.Ct. at 1581-82.In light of Edmond, we conclude that United States Attor-neys are inferior officers. United States Attorneys are subjectto closer supervision by a superior than the judges of theCoast Guard Court of Criminal Appeals. Congress hasgranted the Attorney General plenary authority over UnitedStates Attorneys. See, e.g., 28 U.S.C. S 519 (". . . the AttorneyGeneral . . . shall direct all United States attorneys . . . in thedischarge of their respective duties."). The Attorney Generalhas unfettered discretion to reassign cases from United StatesAttorneys to herself or to "any officer of the Department ofJustice." 28 U.S.C. S 518(b). The Attorney General sets thesalaries of United States Attorneys and approves the reim-bursement of their office expenses. See 28 U.S.C. SS 548,549. An example of the supervision exercised by the AttorneyGeneral is her decision to require United States Attorneys toconduct state and federal appellate litigation only under theguidance of the Solicitor General. See 28 C.F.R. S 0.20(b).The one significant statutory limit on the Attorney General'ssupervision of United States Attorneys is Congress' decisionto vest appointment and removal power in the President. See28 U.S.C. S 541.The few other authorities that have considered the matterhave also concluded that United States Attorneys are inferiorofficers. See United States v. Solomon, 216 F. Supp. 835, 838-43 (S.D.N.Y. 1963) (in dicta, approving constitutionality ofpredecessor of S 546(d) by presuming United States Attorneysare inferior officers), cited with approval by Morrison v.Olson,
487 U.S. 654, 676
-77 (1988); 2 Op. Off. Legal Coun-sel 58 (Feb. 28, 1978) (because United States Attorneys areinferior officers, vesting appointment and removal power inAttorney General would be constitutional).Gantt argues that even if United States Attorneys are"inferior" officers, S 546(d) must be struck down becausethere is an "incongruity" in the appointment of a United StatesAttorney by the judges before whom she will appear. Cf.Morrison,
487 U.S. at 675
-77. This argument is without merit.Morrison itself cites S 546(d) and Solomon in support of theproposition that judicial appointment of prosecutors does notnecessarily create an incongruity. Id.Moreover, in passing on S 546(d) we consider the purposeof the Appointments Clause as enunciated by a unanimousSupreme Court in Edmonds--to "prevent congressionalencroachment upon the executive and judicial branches."Edmonds, 520 U.S. at _______, 117 S.Ct. at 1579. The provisionsof S 546(d) do not conflict with this purpose. The judicialbranch is not required to appoint a United States Attorney; itis simply empowered to do so. More importantly, the Presi-dent retains the power to replace the court-appointed UnitedStates Attorney with an Attorney appointed by the Presidentand confirmed by the Senate.We now turn to the merits of the appeal.IV. Standard of ReviewThe district court's decision to suppress is reviewed as aquestion of law, but the trial court's factual findings are, ofcourse, reviewed for clear error. See United States v.Kemmish, 120 F.3d 937, 939 (9th Cir. 1997), cert. denied, _______U.S. _______, 118 S.Ct. 1087 (1998).V. Rule 41(d)'s Service Requirement[1] The government violated F.R.Cr.P. 41(d) by failing topresent Gantt with a complete copy of the warrant at the out-set of the search of her apartment. Gantt was not served withthe complete warrant until after she was arrested and taken toan FBI office, hours after the search of her apartment beganand hours after she requested to see the warrant. 7 Rule 41(d)provides in pertinent part: "[t]he officer taking property underthe warrant shall give to the person from whom or fromwhose premises the property was taken a copy of the warrantand a receipt for the property taken or shall leave the copy andreceipt at the place from which the property was taken . . . ."The government argues that this language never requires ser-vice on the person; leaving the warrant behind after the searchalways suffices. In this case, the government suggests the rulewas satisfied because the agents left the complete warrant atthe apartment after the conclusion of the search and Gantt'sarrest. We reject the government's reading of Rule 41(d).Absent exigent circumstances, Rule 41(d) requires service ofthe warrant at the outset of the search on persons present atthe search of their premises.[2] Rule 41(d) must be interpreted in the light of the impor-tant policies underlying the warrant requirement--to providethe property owner assurance and notice during the search.The Supreme Court has repeatedly held that an essential func-tion of the warrant is to "assure[ ] the individual whose prop-erty is searched or seized of the lawful authority of theexecuting officer, his need to search, and the limits of hispower to search." United States v. Chadwick ,
433 U.S. 1
, 9(1977), abrogated on other grounds, California v. Acevedo,
500 U.S. 565
(1991). See also Michigan v. Tyler , 436 U.S.499, 508 (1978) ("a major function of the warrant is to pro-vide the property owner with sufficient information to reas-sure him of the entry's legality"); United States v. Martinez-Fuerte,
428 U.S. 543, 566
(1976) (Without a warrant theoccupant has "no way of knowing the lawful limits of theinspector's power to search, and no way of knowing whetherthe inspector himself is acting under proper authorization.")(quoting Camara v. Municipal Court,
387 U.S. 523
, 532(1967)); Steagald v. United States,
451 U.S. 204, 226
(1981)(Rehnquist, J., dissenting) (search warrants "assure[ ] theoccupants that the police officer is present on officialbusiness."). Even the dissenters in Chadwick agreed on thisbasic function of the search warrant. See Chadwick, 433 U.S.at 20 n. 1 (Blackmun, Rehnquist, JJ., dissenting) (agreeingthat in the search of a home or office, a warrant's functionsinclude "assur[ing] the occupants that the officers have legalauthority to conduct the search").[3] In addition to this "assurance " function, this Court hasfrequently explained that the particularized warrant require-ment is also intended " `to give notice to the person subjectto the search what the officers are entitled to seize.' " In theMatter of Seizure of Property Belonging to Talk of the TownBookstore, Inc., 644 F.2d 1317, 1318 (9th Cir. 1981) (quotingUnited 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 "VanDamme could look at no document specifying what the offi-cers 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 per-son subject to the search what items the officers . . . canseize.").[4] In light of these Supreme Court and Ninth Circuit pre-cedents, there can be no doubt that the essential functions ofthe search warrant include assuring the subject of the searchthat her privacy is invaded only under a legal warrant andnotifying her of the extent of the officer's authority.8 The gov-ernment's proposed reading of Rule 41(d) ignores theseessential functions. If a person is present at the search of herpremises, agents are faithful to the "assurance " and "notice"functions of the warrant only if they serve the warrant at theoutset of the search. A warrant served after the search is com-pleted cannot timely "provide the property owner with suffi-cient information to reassure him of the entry's legality."Michigan,
436 U.S. at 508
.The search warrant requirement arose from the Founder'sunderstanding that "[p]ower is a heady thing; and historyshows that the police acting on their own cannot be trusted."McDonald v. United States,
335 U.S. 451, 456
(1948). Thecitizen whose home is invaded without service of a warrantmust suffer the invasion while still in doubt of its legality. Shemust wonder if our Constitutional system has ensured that the"objective mind" of a neutral magistrate has "weigh[ed] theneed to invade that privacy in order to enforce the law." Id.at 455. Citizens deserve the opportunity to calmly argue thatagents are overstepping their authority or even targeting thewrong residence. For this reason, service of the warrant at theoutset of the search is recommended by the distinguishedauthors of the Model Code of Pre-Arraignment procedure. SeeAmerican Law Institute, A Model Code of Pre-ArraignmentProcedure 132 (1975). Our law requires officers wishing tosearch a premises to first conduct an initial investigation, pre-pare affidavits, appear before a magistrate, obtain a searchwarrant, and bring copies of the complete warrant to thesearch. After agents have complied with all of these burdens,we cannot understand why the government then objects to theagents spending a few seconds to serve the warrant as theybegin their search, the final step in fulfilling two of the pri-mary justifications for our warrant procedures.[5] We wish to emphasize that the government has notexplained its opposition to serving the warrant at the outset ofthe search. Despite filing four separate briefs on appeal, it hasnot advanced one plausible justification for leaving the sub-jects of searches in doubt over the legality of the search oridentified how serving the warrant at the outset of a searchburdens effective law enforcement. The government suggestsonly that after reading the warrant people might concludeagents are overstepping the bounds of their authority and thenresort to violence. The government's argument is illogical.Persons prone to physical confrontation with armed federalagents are not less likely to resort to violence if the warrantis kept from them. In fact, such persons may be more likelyto conclude agents are overstepping their authority if they arenot provided a warrant, particularly after asking to see one.Courts have typically assumed that the absence of a warrantcreates 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 occu-pant (when present) the warrant, like that of the`knock andannounce' rule, is to head off breaches of the peace by dispel-ling any suspicion that the search is illegitimate. " UnitedStates v. Stefonek, 179 F.3d 1030, 1035 (7th Cir. 1999).[6] We are not ignorant of the dangers to which federalagents are sometimes exposed in the execution of search war-rants. If agents fear the subject of a search might be violentor troublesome, they have ample authority to remove that per-son from the scene of the search. See United States v. Hudson,100 F.3d 1409, 1419-20 (9th Cir. 1996). The language of Rule41(d) does suggest that the subjects of searches are to monitorthe execution of the search: "The inventory shall be made inthe presence of . . . the person from whose possession orpremises the property was taken, if they are present. . . ." Wedo not, however, require agents to always abide by this provi-sion. Believing Gantt was prone to violence, agents removedher from the apartment and prevented her from monitoring thesearch. There is no dispute over their authority to have doneso. The dispute concerns only the government's unjustifiedfailure to show her the warrant as the search began or evenafter she asked to see it.The government's interpretation of the Rule also conflictswith a basic norm of statutory construction. If leaving thewarrant behind after the search always suffices, there is noneed for Rule 41(d) to include the more demanding require-ment of service on the occupant of the searched premises. Thefirst half of the rule is rendered mere surplusage. The cannonsof statutory interpretation require that the more demandingrequirement be the preferred requirement. Cf. United States v.Fiorillo, _______ F.3d _______, _______, 1999 WL 493238, *11 (9th Cir.1999) ("One provision of a statute should not be interpretedin a manner that renders other sections of the same statute`inconsistent, meaningless or superfluous.' "); Northwest For-est Resource Council v. Glickman, 82 F.3d 825, 834 (9th Cir.1996) ("We have long followed the principle that[s]tatutesshould not be construed to make surplusage of anyprovision.") (internal quotation marks omitted).The government alternatively argues that our interpretationconflicts with the Rule's use of the past tense in describingthe subject of the search as "the person from whom or fromwhose premises the property was taken." (Emphasis added).The government suggests Rule 41(d) only requires service ofthe warrant after the completion of the search. The govern-ment points to the fact that agents did present the warrant toGantt a few hours after the search. Not only does service afterthe search ignore much of the point of the service require-ment, but a close examination of the entire Rule also beliesthe government's emphasis on tense. Rule 41(d) proceeds torequire that "[t]he inventory . . . be made in the presence of. . . the person from whose possession or premises the prop-erty was taken, if they are present . . . . " (Emphasis added.)The inventory is presumably made as items are identified andseized and not after the items have been taken away and sentto an FBI laboratory, yet the rule again describes the occupantof the premises using the "was taken" language. The govern-ment's emphasis on tenses supposes the Rule's draftersbelieved inventories are not made until after the property iscarted away. We also note the grammatical conflict between"was taken" and "are present" in the above quoted language.The Rule's use of "from whom . . . the property was taken"is just an awkward description of the occupant of the searchedpremises. The use of the past tense carries no substantiveimplications and does not conflict with our holding.Finally, we find unpersuasive the government's lengthydiscussion of supposedly conflicting precedent. The govern-ment focuses on Katz v. United States,
389 U.S. 347
(1967),but our interpretation of Rule 41(d) is nearly compelled bythat seminal opinion. In defending the legality under the fed-eral rules of warrants authorizing electronic eavesdropping,the Supreme Court stated "Rule 41(d) does require federalofficers to serve upon the person searched a copy of the war-rant and a receipt describing the material obtained, but it doesnot invariably require that this be done before the search takesplace." Katz,
389 U.S. at 355
n. 16 (emphasis added). Thegovernment inexplicably proposes that this language meansagents never need serve the warrant before the search. But ifRule 41(d) does not "invariably" require service before thesearch, then Rule 41(d) must usually require service beforethe search. Moreover, the Court was defending eavesdroppingwarrants against the charge that they did not provide priornotice to the subject of the search unlike "[a ] conventionalwarrant [which] ordinarily serves to notify the suspect of anintended search." Id. (emphasis added); see also id. n. 22.Katz, the last word from the Supreme Court on the subject,supports our conclusion that, absent exigent circumstances,9Rule 41(d) requires service of the warrant at the outset of thesearch.The government next contends our holding is contrary tothe "prevailing view" in our sister circuits. We have examinedthe numerous cases cited by the government and find no suchprevailing view. In fact, we find firm support for our interpre-tation of Rule 41(d). Our sister circuits have also recognizedthat the failure to serve the warrant on the subject of thesearch prior to the search is a violation of Rule 41(d) but havedeclined to mandate suppression. See, e.g., United States v.Frisby, 79 F.3d 29, 32 (6th Cir. 1996) ("failure to furnish himwith Attachment A prior to the search" was a violation ofRule 41(d) but not prejudicial enough to require suppression);United States v. Charles, 883 F.2d 355, 357 (5th Cir. 1989)(same); United States v. Bonner, 808 F.2d 864, 869 (1st Cir.1986) (same). United States v. Stefonek, 179 F.3d 1030 (7thCir. 1999), cited by the government, is not on point becauseStefonek argued that his premises should not have beensearched in his absence. In rejecting that argument, however,Chief Judge Posner agreed that "[t]he purpose of handing theoccupant (when present) the warrant [under Rule 41(d)], likethat of the `knock and announce' rule, is to head off breachesof the peace by dispelling any suspicion that the search isillegitimate." Id. at 1035. This purpose can only be served, ofcourse, if the warrant is handed to the occupant as the searchbegins. There is no conflict with any case cited to us from anyof our sister circuits.10The government is left with Nordelli v. United States, 24F.2d 665 (9th Cir. 1928), in which we did state in passing thatthe predecessor of Rule 41(d), 18 U.S.C. S 622 (1928), did notrequire service of the warrant prior to the seizure. SeeNordelli, 24 F.2d at 666. We decline to follow Nordelli, notbecause of its age, but because the language cited by the gov-ernment is dicta, irrelevant to the holding. The defendants didnot allege that the warrant was not served before the seizure;they only challenged the return of the warrant for failing tostate that the warrant had been served. See id. We sensiblyresolved the issue by noting that just because "the return onthe warrant failed to show that a copy of the warrant . . . wasleft as required by the statute, it does not follow that thepapers were not left with the defendants as required by law."Id. Moreover, Nordelli proceeds to hold that a warrant wasnonetheless unnecessary because the search was justified as asearch incident to an arrest. See id. at 667. In short, we hadno opportunity in Nordelli to determine whether S 622required service before seizure.We conclude that, absent exigent circumstances, if a personis present at the search of her premises, Rule 41(d) requiresofficers to give her a complete copy of the warrant at the out-set of the search.[7] Violations of Rule 41(d) do not usually demand sup-pression, however. Under Ninth Circuit law, "technical" vio-lations of Rule 41(d) require suppression only if there was a"deliberate disregard of the rule" or if the defendant was prej-udiced. See United States v. Negrete-Gonzales , 966 F.2d1277, 1283 (9th Cir. 1992). Suppression is justified herebecause the violation was deliberate. (We need not thus con-sider whether the violation was "technical" or"fundamental.") The agents failed to show Gantt the completewarrant even after she asked to see it. The government hasprovided no explanation or justification for the agents' failure.The government tries to argue Attachment A was unavailablebecause agents were using it to conduct the search, but in itsopening brief the government admits the agents had "multiplecopies" of the complete warrant on-site. Nothing in the recordindicates that none of the copies could be spared to showGantt or that the agents were unable to make an extra copy ofthe warrant in the 16 hours between the issuance of the war-rant and its execution. The government also claims the failurewas not deliberate because "no previous case" has held thatthe warrant must be served on the subject of the search. Wedisagree. One of our recent cases held that under the FourthAmendment, "[i]t is the government's duty to serve the searchwarrant on the suspect" in order to "inform the person subjectto the search what items the officers executing the warrant canseize."11 See United States v. McGrew, 122 F.3d 847, 850 (9thCir. 1997) (internal quotation marks omitted). The govern-ment might also consider the authorities it cited to us in itsbriefs. See, e.g., Katz,
389 U.S. at 355
n. 16; Frisby, 79 F.3dat 32 ("failure to furnish him with Attachment A prior to thesearch" was a violation of Rule 41(d)); Charles, 883 F.2d at357 (same); Bonner, 808 F.2d at 869 (same).Our Rule 41(d) jurisprudence requires suppression underthese circumstances.VI. The "Good-Faith" ExceptionThe government argues that even if a Rule 41(d) violationdemanding suppression has occurred, the evidence should notbe suppressed under the "good-faith" exception to the exclu-sionary rule. See United States v. Leon,
468 U.S. 897
, 918(1984). The good-faith exception is not relevant here.[8] The good-faith exception is applied when a magistrateerroneously issues a warrant but the officers involved are notexpected to recognize the mistake. "If the executing officersact in good faith and in reasonable reliance upon a searchwarrant, evidence which is seized under a facially valid war-rant which is later held invalid may be admissible. " UnitedStates v. Michaelian, 803 F.2d 1042, 1047 (9th Cir. 1986)(providing examples of good-faith exceptions). The SupremeCourt's goal in establishing the good-faith exception was tolimit the exclusionary rule to situations where the illegalbehavior of officers might be deterred. See Leon , 468 U.S. at918. The exclusionary rule is designed to deter police miscon-duct rather than legal errors of judges and magistrates. SeeIllinois v. Krull,
480 U.S. 340, 349
-52 (1987).[9] The corollary of the above reasoning is that the exclu-sionary rule should not be applied where the violation is thefault of the officers. If there is no error on the part of the judi-ciary, the good-faith exception is inapplicable. Stated differ-ently, the good-faith exception is not relevant where theviolation lies in the execution of the warrant, not the validityof the warrant. Under such circumstances, suppression willpresumably deter future violations and the exclusionary ruleserves its purpose. In Gantt's case, the officers erred in theexecution of a warrant, a subject wholly within their province.There is no allegation that the warrant was invalid or that themagistrate committed an error. The good-faith exception isnot relevant.VII. ConclusionThe agents violated Rule 41(d)'s requirement that a warrantbe served upon a person present at the search of her propertyat the time of execution absent some exigent circumstance.The violation was deliberate, so suppression is required underRule 41(d) regardless of the dictates of the Fourth Amend-ment. Because errors in the execution of warrants are solelyin the province of agents, the good-faith exception has noapplicability. The decision of the district court to suppress theevidence seized at Gantt's apartment is AFFIRMED.
___________________________FOOTNOTES 1 Honorable Donald P. Lay, Senior Circuit Judge for the Eighth Circuit,sitting by designation.7 Showing Gantt the face of the warrant without Attachment A certainlydid not satisfy Rule 41(d). Without Attachment A, the warrant violated theFourth Amendment's particularity requirement and for purposes of Rule41(d) was not a valid warrant. See United States v. Van Damme, 48 F.3d461, 466 (9th Cir. 1995); Matter of Property Belonging to Talk of theTown Bookstore, Inc., 644 F.2d 1317, 1319 (9th Cir. 1981).8 Other major functions of the search warrant include interposing "amagistrate between the citizen and the police. . . . so that an objectivemind might weigh the need to invade that privacy in order to enforce thelaw," McDonald v. United States,
335 U.S. 451, 455
-56 (1948), and"limit[ing] the scope of the search, specifying what the police maysearch." Steagald v. United States,
451 U.S. 204, 226
(1981) (Rehnquist,J., dissenting).9 Exigent circumstances would, of course, include searches based on theignorance of the subject of the search. See, e.g., Katz,
389 U.S. 347
(elec-tronic surveillance does not require notice to subject of search); UnitedStates v. Johns, 948 F.2d 599 (9th Cir. 1991) ("sneak and peek" searchrequires ignorance of subject of search).10 The government also cites cases holding Rule 41(d) does not alwaysrequire the warrant to be present at the start of the search as long as thewarrant arrives by the end of the search. See, e.g., United States v.Woodring, 444 F.2d 749, 751 (9th Cir. 1971); United States v. Ritchie, 35F.3d 1477, 1482-83 (10th Cir. 1994); Charles, 883 F.2d at 357; UnitedStates v. Hepperle, 810 F.2d 836, 839 (8th Cir. 1987); Bonner, 808 F.2dat 868-69. We do not believe these cases cast any doubt on our holding.These cases all rely, directly or indirectly, on the footnote from Katz citedabove--Rule 41(d) does not "invariably" require service of the warrantbefore the execution of the search--and thus reinforce the idea that nor-mally warrants must be served at the outset of a search. Some of thesecases, in fact, conclude that the absence of the warrant at the start of thesearch is a violation of Rule 41(d), albeit not one requiring suppression.See e.g., Charles, 883 F.2d at 357; Bonner , 808 F.2d at 869.In any case, the government can only begin searches before the arrivalof a warrant for good cause, e.g., when time is of the essence. See, e.g.,Hepperle, 810 F.2d at 839 (finding it foolhardy to proceed in the absenceof the physical presence of the warrant). The Supreme Court has held that"inconvenience to the officers and some slight delay necessary to preparepapers and present the evidence to a magistrate" does not justify ignoringthe warrant requirement. Johnson v. United States,
333 U.S. 10, 15
(1948).Similarly, inconvenience and slight delay cannot justify ignoring Rule41(d). As long as there is a legitimate reason for beginning the searchbefore the arrival of the warrant, such cases fall within the "exigentcircumstances" exception to Rule 41(d)'s service requirement. In suchcases, service of the warrant must obviously await the arrival of the war-rant.11 Gantt relies heavily on McGrew, and the district court also relied onMcGrew's interpretation of the Fourth Amendment to suppress the evi-dence. McGrew was decided on September 12, 1997, more than twomonths before the search of Gantt's apartment. Because Rule 41(d)requires suppression, we need not consider McGrew's interpretation of theFourth Amendment. The Supreme Court recently declined to address"how detailed the notice of the seizure must be or when the notice mustbe given" under the Fourth and Fourteenth Amendments. See City of WestCovina v. Perkins, 119 S.Ct. 678, 681 (1999).2 Because we affirm the district court's suppression order on the basisof Rule 41(d) we do not consider the failure to specify the suspected crim-inal activity. We do repeat our frequent criticism of this practice. SeeUnited States v. McGrew, 122 F.3d 847, 849 n.2 (9th Cir. 1997) (citingUnited States v. Kow, 58 F.3d 423, 427 (9th Cir. 1995) (collecting cases)).3 For a detailed history of S 3731, see United States v. Sisson, 399 U.S.267, 293-98 (1970); United States v. Carrillo-Bernal, 58 F.3d 1490, 1494-97 (10th Cir. 1995).4 See, e.g., United States v. Becker, 929 F.2d 442, 444-445 (9th Cir.1991) (USA, Oregon); United States v. Eccles, 850 F.2d 1357, 1359-60(9th Cir.1988) (U.S. Department of Justice); United States v. Bailey, 136F.3d 1160, 1163-64 (7th Cir. 1998) (USA, Central District of Illinois);United States v. Salisbury, 158 F.3d 1204, 1206-07 (11th Cir. 1998)(USA, Northern District of Alabama); United States v. Carrillo-Bernal, 58F.3d 1490 (10th Cir. 1995) (USA, District of New Mexico); United Statesv. Miller, 952 F.2d 866, 876 (5th Cir.1992) (USA, Middle District of Loui-siana).5 We do not distinguish between United States Attorneys appointed pur-suant to 28 U.S.C. S 541 and those appointed under S 546(d). Section546(d) appointments are fully-empowered United States Attorneys, albeitwith a specially limited term, not subordinates assuming the role of"Acting" United States Attorney. Cf. United States v. Eaton,
169 U.S. 331
,343-44 (1898) (vice-counsel to Siam temporarily exercising powers ofcounsel when latter taken ill remained an inferior officer). The power toappoint "Acting" United States Attorneys appears to lie with the AttorneyGeneral under 28 U.S.C. SS 509 (vesting Attorney General with functionsof United States Attorneys), 510 (authorizing delegation of any authorityto an officer of the Department of Justice), 542(a) (authorizing appoint-ments of assistant United States Attorneys). See also In re Grand JuryProceedings, 673 F. Supp. 1138 (D. Mass. 1987) (comparing appointmentunder S 546(d) with Attorney General's appointment of "Acting" UnitedStates Attorney).6 Given the Court's decision in Morrison v. Olson,
487 U.S. 654
(1988),we recognize that supervision by a superior officer is a sufficient but per-haps not a necessary condition to the status of inferior officer. InMorrison, the Court held that the independent counsel was an inferior offi-cer despite that, due to the nature of her office, the independent counselis subject to only limited supervision by executive and judicial branchofficers. The Court relied instead upon her limited jurisdiction and tenureand the power of removal granted to the Attorney General. See id. at 671-72.7 Showing Gantt the face of the warrant without Attachment A certainlydid not satisfy Rule 41(d). Without Attachment A, the warrant violated theFourth Amendment's particularity requirement and for purposes of Rule41(d) was not a valid warrant. See United States v. Van Damme, 48 F.3d461, 466 (9th Cir. 1995); Matter of Property Belonging to Talk of theTown Bookstore, Inc., 644 F.2d 1317, 1319 (9th Cir. 1981).8 Other major functions of the search warrant include interposing "amagistrate between the citizen and the police. . . . so that an objectivemind might weigh the need to invade that privacy in order to enforce thelaw," McDonald v. United States,
335 U.S. 451, 455
-56 (1948), and"limit[ing] the scope of the search, specifying what the police maysearch." Steagald v. United States,
451 U.S. 204, 226
(1981) (Rehnquist,J., dissenting).9 Exigent circumstances would, of course, include searches based on theignorance of the subject of the search. See, e.g., Katz,
389 U.S. 347
(elec-tronic surveillance does not require notice to subject of search); UnitedStates v. Johns, 948 F.2d 599 (9th Cir. 1991) ("sneak and peek" searchrequires ignorance of subject of search).10 The government also cites cases holding Rule 41(d) does not alwaysrequire the warrant to be present at the start of the search as long as thewarrant arrives by the end of the search. See, e.g., United States v.Woodring, 444 F.2d 749, 751 (9th Cir. 1971); United States v. Ritchie, 35F.3d 1477, 1482-83 (10th Cir. 1994); Charles, 883 F.2d at 357; UnitedStates v. Hepperle, 810 F.2d 836, 839 (8th Cir. 1987); Bonner, 808 F.2dat 868-69. We do not believe these cases cast any doubt on our holding.These cases all rely, directly or indirectly, on the footnote from Katz citedabove--Rule 41(d) does not "invariably" require service of the warrantbefore the execution of the search--and thus reinforce the idea that nor-mally warrants must be served at the outset of a search. Some of thesecases, in fact, conclude that the absence of the warrant at the start of thesearch is a violation of Rule 41(d), albeit not one requiring suppression.See e.g., Charles, 883 F.2d at 357; Bonner , 808 F.2d at 869.In any case, the government can only begin searches before the arrivalof a warrant for good cause, e.g., when time is of the essence. See, e.g.,Hepperle, 810 F.2d at 839 (finding it foolhardy to proceed in the absenceof the physical presence of the warrant). The Supreme Court has held that"inconvenience to the officers and some slight delay necessary to preparepapers and present the evidence to a magistrate" does not justify ignoringthe warrant requirement. Johnson v. United States,
333 U.S. 10, 15
(1948).Similarly, inconvenience and slight delay cannot justify ignoring Rule41(d). As long as there is a legitimate reason for beginning the searchbefore the arrival of the warrant, such cases fall within the "exigentcircumstances" exception to Rule 41(d)'s service requirement. In suchcases, service of the warrant must obviously await the arrival of the war-rant.11 Gantt relies heavily on McGrew, and the district court also relied onMcGrew's interpretation of the Fourth Amendment to suppress the evi-dence. McGrew was decided on September 12, 1997, more than twomonths before the search of Gantt's apartment. Because Rule 41(d)requires suppression, we need not consider McGrew's interpretation of theFourth Amendment. The Supreme Court recently declined to address"how detailed the notice of the seizure must be or when the notice mustbe given" under the Fourth and Fourteenth Amendments. See City of WestCovina v. Perkins, 119 S.Ct. 678, 681 (1999).