dissenting:
I respectfully dissent.
Although my colleagues of the majority are not known as the likely authors of a decision which distorts history, confounds precedent, and shuns the clear intent of the Fourth Amendment to the Constitution of the United States, this, despite my respect for them, is how I must term the defective product which they have imposed upon us. The majority has now put this court on record as approving a practice which is dangerous and offensive, violates the letter and spirit of the Constitution, and ignores the literal requirements of applicable provisions of the Federal Rules of Criminal Procedure.
The majority opinion upholds the issuance by a magistrate and the execution by law enforcement officers of a search warrant purporting to grant carte blanche authority to law enforcement officers to make stealthy entry at night into the private residence of a citizen (suspected of being about to manufacture a controlled substance), there to “look around” through the premises for indicia of crime from which to determine the most propitious time to return and “bust” the homeowner, and then to depart leaving no trace of their visit. They hoped further to secure additional information which might supply probable cause with which they might apply for the renewal of the expired and no longer valid search warrants. They had no warrants of arrest and so they came in nearing midnight, when no one was home. The “warrant” did not, as mandated by Fed.R.Crim.P. 41(c)(1) and (c)(2)(E), particularize any property to be seized; it did not require an inventory of property taken to be left at the premises, as required by Rule 41(d); nor did it require the executing agents to endorse the exact time of execution (entry) on the face of the duplicate warrant, as required by Rule 41(c)(2)(F) — a means by which the householder could know that an entry had been made into his home, and know when it had occurred.
The authorization thus abusively employed by the agents is said to be acceptable because of their alleged good faith in making the entry. In truth, it constituted free-roaming, unsupervised license to cast entirely aside all vestige of the right to privacy which under our Constitution over the decades has been held the due of us all.
I find the procedures devised by the agents and accepted by the majority to be an unjustified deviation from principles of the laws of search and seizure with which I am familiar, and one which constitutes a dangerous and radical threat to civil rights and to the security of all our homes and persons.
THE EVENTS
As the majority opinion relates, in July, 1984, an anonymous informant telephoned the Drug Enforcement Agency (DEA) and advised that appellant Raymond Freitas had a laboratory at his place in Clearlake, California, for the manufacture of methamphetamine, a controlled substance. A succession of additional calls from the (still-anonymous) informant advised that Freitas also had a home in Oakland, California, and that he employed a GMC truck to transport chemicals and glassware to the laboratory.
In October, deputy sheriffs at Clearlake observed and notified DEA of the existence of hoses running from Freitas’ house into Clearlake, and that neighbors had reported strong odors around the house. The deputies recognized these as signs associated with the manufacturing of amphetamine. In several more calls, the informant said that Freitas would soon commence manu-*1459factoring the drug either at Clearlake or at a place north of Sacramento. Following another call from the informant about December 9, 1984, that Freitas was assembling equipment for the manufacturing process — this being information which coincided with the DEA agents’ own surveillance— they witnessed him and others bring large quantities of ice into the Clearlake home.
With all the above information, including also the history that Freitas had been arrested in 1980 and charged with importing cocaine, and had been arrested again in 1982 for trying to involve his brother-in-law in the making of amphetamine, the agents applied on December 12 to a federal magistrate and were issued warrants to search both the Clearlake and the Oakland homes, and six additional warrants to search storage lockers. Fed.R.Crim.P. 41(c)(1) provides that a warrant must command the officer to make the search “within a specified period not to exceed 10 days.” The magistrate here required the warrant for the homes to be executed within four days, by December 16. On December 13, the day after the warrants had been issued, one of the DEA agents applied for a new warrant which permitted “surreptitious entry” into the Clearlake house. As the majority opinion describes:
Under the terms of this warrant, the agents were permitted to enter the home while no one else was there, look around, and leave without removing anything. The magistrate, in issuing the warrant, used a conventional warrant form, designed to comply with Rule 41, Fed.R. Crim.P., but crossed off two items: first, the description of property to be seized, and second, the requirement that copies of the warrant and an inventory of the property taken were to be left at the residence. The warrant contained no notice requirement. Agents executed the warrant on December 13, 1984, at approximately 11:00 p.m.
On December 17, a day after the eight initial search warrants had expired, the government applied for an extension (until December 26, 1984) of all eight warrants. The magistrate issued the extension, and, on December 20, agents seized various evidence and arrested the defendants at the Clearlake house. The defendants were charged with two violations of 21 U.S.C. § 841(a)(1) (1982) (possession of a controlled substance with intent to manufacture and distribute) and with one violation of 21 U.S.C. § 846 (1982) (possession of a controlled substance with intent to manufacture and distribute) and with one violation of 21 U.S.C. § 846 (1982) (conspiracy to violate § 841(a)(1)).
Maj. Op. at 1453.
DISTRICT COURT ACTION
After a thorough hearing District Judge Eugene Lynch ordered suppression of the evidence obtained from the December 13th entry and the evidence obtained from the “extended” or renewed search warrants which had been executed on December 20th. His full and careful memorandum of decision is included in the excerpts of record (E.R.) at 215 and is reported in United States v. Freitas, 610 F.Supp. 1560 (N.D.Ca.1985). A Government motion for reconsideration was filed on July 12, 1985, E.R. 239, and was denied by the district court on August 27, 1985, E.R. 431.
The district court reasoned that although the agents had presented probable cause for issuance of the house search warrants, there was no constitutional justification for the issuance of the so-called “surreptitious entry” warrant, and therefore, the information gained from the December 17th entry must be suppressed. Moreover, since the original warrants had expired, and their post-mortem “extension” had been based, in part at least, upon the knowledge gained from the illegal entry, all was suppressible. Judge Lynch found that the surreptitious entry warrant in this case was invalid under the Constitution and contravenes the provisions of Rule 41 of the Federal Rules of Criminal Procedure. He found inapplicable the administration of the “good faith” revival concept adopted in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and Massachu*1460setts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984), because there could be no objectively reasonable reliance on a warrant which on its face set forth no thing or person to be seized, in defiance of the express requirements of that rule of criminal procedure — Rule 41 — which should be the “Bible” of law enforcement officers in seeking search warrants, in absence of all of which there could hardly be compliance with the express command of the Fourth Amendment.
STANDARD OF REVIEW
The majority opinion states, incorrectly, in my view, that the district court’s determination of fact surrounding the warrants is not to be viewed under the clearly erroneous standard because “here the district court assumed, for the sake of argument, that the Government’s facts were true. Therefore, it did not engage, in the fact finding that is reviewed under the ‘clearly erroneous standard.’ ” At 1454-1455. This conclusion is not correct and appears to have been based entirely on statements contained in the court’s order denying reconsideration, not on the order in which Judge Lynch originally granted the suppression.
Judge Lynch conducted an evidentiary hearing to determine the agents’ training, experience and familiarity with the problems presented by this kind of warrant, and their understanding of “techniques commonly relied upon in the investigation of clandestine drug labs.” Suppression order of June 14, 1985, E.R. 235-238; United States v. Freitas, 610 F.Supp. at 1571-73. This included much of the matter contained in the affidavits for search warrants presented to the magistrate by Agents Steven Wood, E.R. 88, and the affidavits of Agents Laura Hayes and Steven Wood in support of motion for extension of time for the execution of the December 12, 1984 search warrants. E.R. 113-154.
In holding that the district judge did not weigh the facts but only assumed the truth of the Government’s claims, the majority fell into error because the slip opinion appears to rely only on the proceedings conducted on the Government’s motion for reconsideration. The court’s plenary findings and conclusions (quite properly set forth by way of memorandum opinion, see Fed.R.Civ.P. 52(a)), were filed on June 14, 1985, whereas the proceedings and order denying reconsideration did not take place until August 27-29, 1985. Although the district court described the hearing as “limited,” United States v. Freitas, 610 F.Supp. at 1572, it was in fact a lengthy hearing covering 76 pages of the reporter’s transcript and appears in E.R. volume II immediately following the June 14 order granting suppression.
Based upon all the evidence, live testimony, exhibits and affidavits, the district court reached the findings and conclusions which the majority opinion seems not to have considered. Following the entry on August 29 of the order denying reconsideration, the government recalled Agent Wood and was permitted to elicit testimony from him on the issue of objective reasonableness. Agent Wood’s declaration, dated July 3, 1985, (three weeks after the court had filed its suppression order) was allowed into evidence except for conclusion-ary paragraphs 3 and 6. E.R. 332-333. In it Agent Wood said that he knew that there had at one time been issued a surreptitious entry warrant in Oakland. He further said that the agents decided to apply for a covert entry warrant because “this would enable us to maintain the secrecy of the investigation and also confirm to a certainty our probable cause information that a lab was present.”
I believe the majority is simply incorrect in concluding that the district judge merely assumed the truth of the Government’s assertion and did not weigh the facts of reasonableness.
FAILURE TO COMPLY WITH RULE 41
The majority opinion frankly says that “we hold that there was no compliance with Rule 41 under the facts of this case.” At 1456. (Emphasis supplied). Then it states:
*1461The failure to comply with Rule 41 does not automatically require suppression of the property seized by way of the search. Assuming the search and seizure does not transgress the Fourth Amendment’s commands, this court has held that suppression is required only where agents would not have carried out the search and seizure had they been required to follow the rule and where they “intentional[ly] and deliberately] disregarded] ... a provision in the Rule.” United States v. Stefanson, 648 F.2d 1231, 1235 (9th Cir.1981) (quoting United States v. Radlick, 581 F.2d 225, 228 (9th Cir.1978)). Application of this standard, however, may be unnecessary if the search and seizure was barred by the Fourth Amendment.
In United States v. New York Telephone Co., 434 U.S. 159, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977), the FBI applied for and the district court issued (1) a warrant authorizing the installation of a pen register based on probable cause, and (2) an order requiring the telephone company to lend its assistance in installing the device. The company contended that such an order could only be issued in connection with a wiretap order under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520. The district court ruled that Title III did not apply to the issuance of the warrant, nor did Rule 41. On appeal, the Second Circuit affirmed the warrant order but reversed as to the order of assistance.
The Supreme Court granted certiorari and held that Rule 41’s definition of the “property” to be seized was not all inclusive; that the seizure of an “intangible” was not restricted; and that Title III did not apply because a pen register is not a wiretap; it is not an “interception” of a wire or aural communication because it does not acquire the “contents of communications,” as defined in Title III. The court said that “Congress did not view pen registers as posing a threat to privacy of the same dimension” [as wiretaps] and did not intend to impose Title III restrictions upon their use.” Id. at 168, 98 S.Ct. at 370. Basically, the Court’s analysis was that Rule 41 “authorizes the use of pen registers under appropriate circumstances” when viewed in connection with Fed.R. Crim.P. 57(b), which reads: “If no procedure is specifically prescribed by rule, the court may proceed in any lawful manner not inconsistent with these rules or with any applicable statute.” New York Telephone Co., 434 U.S. at 170, 98 S.Ct. at 371 (emphasis supplied). The reference to “appropriate circumstances” in the Supreme Court’s decision is made clear by the following:
We also agree with the Court of Appeals that the District Court had power to authorize the installation of the pen registers. It is undisputed that the order in this case was predicated upon a proper finding of probable cause, and no claim is made that it was in any way inconsistent with the Fourth Amendment.
Id. at 168-169, 98 S.Ct. at 370. To the extent that the district court suggested that a search for “intangibles” is of itself inconsistent with Rule 41, the above holding is now dispositive.
But the important element of the Supreme Court’s above rationale is the predicate that the warrant be not inconsistent with the Fourth Amendment as detailed in Rule 41. Therein lies the fatal flaw in this case. Indeed, the majority candidly rules that “there was no compliance with Rule 41 here.” But it then proceeds to find the seeds of objective good faith reliance under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984).
I will not engage in carping here about the precise formulation or scope of the “good faith” and “objectively reasonable reliance” concepts on which the Supreme Court has informed us. The majority particularly rests on Massachusetts v. Sheppard in its search for an umbrella to shield the conduct of the agents in this case. But Sheppard is of a distinctly different mix than the facts of this case.
*1462In Sheppard, a woman was found dead by violence. Her boyfriend was a suspect although he gave an alibi. Based upon undoubted probable cause, an officer, Detective O’Malley, sought a warrant to search Sheppard's residence. He prepared an affidavit which set forth with particularity the items sought, each of which clearly was of high evidentiary significance. The local District Attorney, his First Assistant, and a police sergeant all agreed that probable cause was shown. But it was Sunday and the court was closed. Nonetheless a warrant application form was found of a type in use in that locality. It was useful except that it was imprinted to be used in drug raids. The subtitle styled, “Search Warrant — Controlled Substance [with Statutory Citation].” The reference to controlled substance was typed out in the title but not in the body of the warrant itself. O’Malley found a judge, who read the affidavit and said he would sign the warrant. He took the warrant, made some changes, dated and signed it. He did not however eliminate the substantive print authorizing search for drugs. He then told O'Malley that the warrant as delivered was valid as to form and content. A search was made, incriminating items were seized and Sheppard was charged with murder.
A trial judge refused suppression because notwithstanding the defect, the police had in good faith believed themselves to be executing a valid warrant. Sheppard was convicted.
Although a plurality of the justices of the Supreme Judicial Court of Massachusetts found a reasonable good faith belief on part of the police they reversed the conviction because the state had not recognized the good faith exception. The Supreme Court granted certiorari. Justice White’s opinion focused on “whether there was an objectively reasonable basis for the officers, mistaken belief.” United States v. Sheppard, 468 U.S. 981, 988, 104 S.Ct. 3424, 3428, 82 L.Ed.2d 737. The majority of the Court found such to be present. The significance of this case is clear. The affidavit was particular and indisputably sufficient for probable cause. The officer could only find a warrant for the search of controlled substances, one in which the object of the search is imprinted. He tried to make the warrant conform to the needs of the intended search by typing out some of its inappropriate recitals and told the judge that the document might have to be changed. Id. at 989, 104 S.Ct. at 3429. “He was told by the judge that the necessary changes would be made. He then observed the judge make some changes and received the warrant and the affidavit.” Id., 468 U.S. at 989, 104 S.Ct. at 3429. The opinion of the Court found the police conduct “objectively reasonable and largely error-free. An error of constitutional dimensions may have been committed with respect to the issuance of the warrant, but it was the judge, not the police officers, who made the critical mistake.” Id., 468 at 990, 104 S.Ct. at 3429.
The officers here were under no such mistaken belief. It was not the magistrate who crafted the warrant, and the agents were under no mistaken belief when they asked the magistrate to delete the notice requirement, as the Government admits. Govt.Br. at 36. Unlike the detective in Sheppard, the agents called the tune and decided that the warrant would expressly ignore the requirements of Rule 41. The magistrate went along. He said he had never issued such a warrant before. In Sheppard the officer relied upon the judge. Here, the magistrate relied upon the agents, thereby abandoning his proper role as a “neutral and detached” (and also minimally knowledgeable) judicial official with respect to the requirements of a warrant.
The majority here concede that Rule 41 was breached and the district judge found that it was intentionally done. It was not that the agents were in doubt whether notice was required by the rule: they knew full well that it was, but they said that they wanted to “maintain the secrecy of the investigation.” Decl. of Wood. E.R. 332. This was a deliberate and knowing evasion of the Rule. The Government’s argument that this was only an “administrative” requirement anyhow is simply not worthy of further comment. The argument that, in some cases, notice can be given after exe*1463cution of the warrant, is likewise hollow. The Government archly states that “Notice of the covert entry, by way of discovery, was in defense hands within 30 days.” Govt.Br. at 21 (emphasis supplied).
It seems to me that if this court lets stand the procedure called “surreptitious entry,” as practiced in this case, these will have been delivered into the unfettered hands of the police an enormous instrumentality for invasion of the rights of privacy, rights of security, and protection from those in position of power who would have access to such awesome means of oppression. I cannot believe that the tocsin of alarm emanating from cases like this will go unheeded. A purported “good faith” belief which, in essence, is that it is not very important to honor the “right to be let alone” except where intrusion is necessary for protection of other values, simply cannot be sanctioned.
I would hold that, on the clear record of this case, the district court was not clearly erroneous in its finding that the agents committed a deliberate by-pass of the rule which implements the Fourth Amendment; that there is no need for remand; and that the district court judgment should be affirmed.