Finally, we find unpersuasive the government's lengthy discussion of supposedly conflicting precedent. The government focuses on
Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), but our interpretation of
Rule 41(d) is nearly compelled by that seminal opinion. In defending the legality under the federal rules of warrants authorizing electronic eavesdropping, the Supreme Court stated “
Rule 41(d) does require federal 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, 88 S.Ct. 507 (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. Moreover, the Court was defending eavesdropping warrants 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, supports our conclusion that, absent exigent circumstances,
Rule 41(d) requires service of the warrant at the outset of the search.