D.Vt.: No Fourth Amendment or Rule 41 right to see warrant before execution

Executing officers’ failure to show the search warrant before the search doesn’t violate the Fourth Amendment. Rule 41 doesn’t even require it before hand. United States v. Wint, 2014 U.S. Dist. LEXIS 52108 (D. Vt. April 14, 2014):

Wint also argues he did not receive a copy of the warrant. Under Rule 41(f)(1)(C) of the Federal Rules of Criminal Procedure, “[t]he 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.” Trooper Godfrey testified a copy of the warrant was left at 306 Grove Street but he does not remember personally giving Wint a copy. He also testified Wint did not ask to see a warrant and he never refused to give him one. Wint, however, testified he asked Godfrey and another officer for a copy at the time of the search, but they refused.

In dicta, the Supreme Court has noted “that neither the Fourth Amendment nor Rule 41 of the Federal Rules of Criminal Procedure requires the executing officer to serve the warrant on the owner before commencing the search.” Groh v. Ramirez, 540 U.S. 551, 562 n.5, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004); but see United States v. Williamson, 439 F.3d 1125, 1132 (9th Cir. 2006) (under Ninth Circuit jurisprudence, agents must “provide a copy of the warrant at the outset of the search.”). The Second Circuit has held that unless a “defect made what was done in effect an unconstitutional warrantless search, violations of Rule 41 alone should not lead to exclusion unless (1) there was ‘prejudice’ in the sense that the search might not have occurred or would not have been so abrasive if the Rule had been followed, or (2) there is evidence of intentional and deliberate disregard of a provision in the Rule.” United States v. Burke, 517 F.2d 377, 386-87 (2d Cir. 1975). Neither circumstance is present here. Even if the Court credits Wint’s testimony that the police did not give him a copy of the warrant, nothing contradicts Trooper Godfrey’s testimony that he left a copy at the residence. Wint was arrested at the scene; presumably, he might not know if a warrant had been left. And even had the officers failed to leave one, the Court finds such a violation would not be of “constitutional magnitude” requiring application of the exclusionary rule — Wint offers no evidence he suffered prejudice or that the police deliberately disregarded the delivery requirement contained in Rule 41. Burke, 517 F.2d at 386; see United States v. Jacobson, No. 12-cr-432-jfb, 2014 U.S. Dist. LEXIS 33705, 2014 WL 962227, at *11 (E.D.N.Y. Mar. 13, 2014) (collecting cases).