UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-10069 Plaintiff-Appellee, D.C. No. v. 1:18-cr-00069-LEK-1 GRANT MANAKU, Defendant-Appellant. OPINION

Appeal from the United States District Court for the District of Hawaii Leslie E. Kobayashi, District Judge, Presiding

Argued and Submitted February 1, 2021 Honolulu, Hawai‘i

Filed June 14, 2022

Before: Richard R. Clifton, Ryan D. Nelson, and Daniel P. Collins, Circuit Judges.

Per Curiam Opinion; Concurrence by Judge Collins 2 UNITED STATES V. MANAKU

SUMMARY *

Criminal Law

The panel affirmed the district court’s denial of Grant Manaku’s pretrial motion to suppress evidence, which asserted that FBI agents executing a search warrant at his residence deliberately violated Fed. R. Crim. P. 41(f)(1)(C) by failing to supply a complete copy of the warrant.

As the government conceded on appeal, the agents violated Rule 41(f)(1)(C) by delivering only the face page of the warrant rather than a complete copy.

Explaining that suppression is automatic only for “fundamental” violations of Rule 41, at least without any applicable exception to the exclusionary rule, the panel noted that Manaku contended neither that the violation here was fundamental nor that he was prejudiced by it. The only remaining question, therefore, was whether the district court correctly concluded that the agents’ failure to deliver a complete copy of the warrant at the completion of the search was merely negligent, rather than the product of a deliberate disregard of the rule. The panel held that the district court properly concluded that Manaku had not carried his burden to show a deliberate disregard of the rule. In so holding, the panel found no clear error in the district court’s finding that Agent Sherwin Chang did not act intentionally, and rejected Manaku’s contention that the district court failed to adequately consider the possibility that another agent had

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. MANAKU 3 deliberately disregarded Rule 41(f)(1)(C) by unstapling the pages of the warrant and leaving only an incomplete copy.

Judge Collins concurred in the judgment. He wrote that whether to affirm or reverse the judgment turns entirely on the continued vitality of the second and third holdings in United States v. Gantt, 194 F.3d 987 (9th Cir. 1999)—that Rule 41 requires production of the warrant upon demand during the search, and that the deliberate refusal to supply the warrant upon demand requires suppression. Judge Collins wrote that by refusing at least four direct requests from property owners to produce the warrant during the search, the agents deliberately and repeatedly violated Rule 41, as construed in Gantt, and Gantt would require suppression. Because he concludes that United States v. Grubbs, 547 U.S. 90 (2006), overruled not just Gantt’s first holding (that Rule 41 requires officers to give an occupant whose premises are being searched a complete copy of the warrant at the outset of the search), as all parties agree, but also Gantt’s second and third holdings, he concurred in the judgment affirming the denial of the suppression motion.

COUNSEL Craig Jerome (argued), Assistant Federal Defender; Peter C. Wolff Jr., Federal Public Defender; Office of the Federal Public Defender, Honolulu, Hawaii; for Defendant- Appellant. Marion Percell (argued), Chief of Appeals; Kenji M. Price, United States Attorney; United States Attorney’s Office, Honolulu, Hawaii; for Plaintiff-A