J. BLAINE ANDERSON, Circuit Judge:
Vasser appeals his conviction for the manufacture of Phencyclidine in violation of 21 U.S.C. § 841. Vasser’s sole contention on appeal is that the court erred in dismissing his motion to suppress certain physical evidence on the ground of deficiency in the issuance of a search warrant. We affirm.
I. BACKGROUND
On March 7,1979, Special Agents Charles R. Henderson and Clifford Rabourn of the Drug Enforcement Administration began a surveillance of Vasser’s apartment. Agents Henderson and Rabourn suspected that Vasser was using the apartment to manufacture illegally the drug Phencyclidine. Based upon observations whose validity is not at issue in this appeal, the agents concluded that Vasser was in the process of manufacturing the drug and that the apartment should be searched. At 10:30 p. m. on March 7, Agent Henderson contacted an Assistant U.S. Attorney who, after hearing Henderson’s description of Vasser’s activities, agreed that the agents had probable cause to search the apartment. Henderson thereupon instructed Agent Rabourn to prepare an affidavit of probable cause in order to obtain a search warrant.
The agents were observing Vasser’s apartment from an empty townhouse complex located directly across a parking lot. Their vantage point was visible from the kitchen in Vasser’s apartment. The townhouse contained no furniture and lacked utilities. Faced with the limitations of their physical surroundings and with what they perceived as a need to act quickly, the agents devised a novel approach to drafting the probable cause affidavit. Agent Rabourn, armed with flashlight and cassette recorder, entered a closet and proceeded to tape-record an affidavit. The agents elected not to seek a standard telephonic search warrant because the local federal magistrate had advised them on a prior occasion that he had no telephone recording equipment in his home.
Agent Rabourn delivered the tape to the U.S. Magistrate and was sworn to the truth of the statements contained therein after the magistrate had listened to the entire tape. A search warrant issued at 3:00 a. m. on March 8, and was executed at 7:00 a. m. As a result of the search, evidence pertinent to Vasser’s eventual conviction was seized.
Prior to. trial, Vasser filed a motion to suppress all evidence seized pursuant to the [509]*509warrant on the ground that the tape-recorded affidavit did not comply with the procedural guidelines enumerated by Fed.R. Crim.P. 41. The trial court denied Vasser’s suppression motion on the grounds that any noncompliance with Rule 41 was not fundamental, and that Vasser had demonstrated neither prejudice nor a deliberate disregard of Rule 41 by the agents. At a bench trial on June 21,1979, Vasser was convicted on a single count of violating 21 U.S.C. § 841, and was later sentenced to five years of probation.
II. DISCUSSION
Vasser’s attack on the issuance of the search warrant is not based upon constitutional grounds. He contends, rather, that the agents failed to comply with Rule 41 of the Federal.Rules of Criminal Procedure in making their application for the warrant. Rule 41 provides for two basic affidavit forms: written and oral. The pertinent sections read as follows:
“(c) Issuance and contents
(1) Warrant upon affidavit. A warrant other than a warrant upon oral testimony under paragraph (2) of this subdivision shall issue only on an affidavit or affidavits sworn to before the federal magistrate or state judge and establishing the grounds for issuing the warrant. If the federal magistrate or state judge is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property and naming or describing the person or place to be searched. [Remainder of (c)(1) deleted.]
(2) Warrant upon oral testimony.—
(A) General Rule. — If the circumstances make it reasonable to dispense with a written affidavit, a Federal Magistrate may issue a warrant based upon sworn oral testimony communicated by telephone or other appropriate means.”
Fed.R.Crim.P. 41(c)(1), (c)(2).
Vasser contends that Rule 41 contemplates the issuance of warrants only upon presentation of written or telephonic affidavits. Since tape-recorded affidavits are not within the letter of rule 41, Vasser would have us reverse on the ground of fundamental noncompliance. Vasser also argues non compliance in that Agent Rabourn was not sworn until after the issuing magistrate had listened to the taped affidavit.
In considering the issue of the tape recording, we apparently deal with a question of first impression. Our research has uncovered only two prior circuit court decisions with somewhat similar factual situations. In United States v. Gitcho, 601 F.2d 369 (8th Cir.), cert. denied, 444 U.S. 871,100 S.Ct. 148, 62 L.Ed.2d 96 (1979), the agent requesting the warrant appeared before the magistrate and gave an oral affidavit which was recorded and later transcribed. The Gitcho court refused to suppress despite the agent’s failure to utilize an affidavit procedure sanctioned by Rule 41 because the defendant there was not prejudiced by the technically defective affidavit. 601 F.2d at 372. In United States v. Mendel, 578 F.2d 668 (7th Cir.), cert. denied, 439 U.S. 964, 99 S.Ct. 450, 58 L.Ed.2d 422 (1978), the court approved as conforming to the letter of the rule a procedure whereby the agent supplemented the initial draft of an affidavit with oral testimony on details supporting probable cause which was recorded and later transcribed.
We agree with Vasser that the procedure employed by Agent Rabourn did not conform with the letter of Rule 41. 41(c)(1) clearly contemplates the issuance of warrants upon written affidavits, and is not applicable. 41(c)(2) offers a greater possibility of sanctioning the taped affidavit, but falls short. 41(c)(2) is applicable only to cases wherein the applicant for the warrant is not physically present before the issuing magistrate. See United States v. Gitcho, supra, at 372; see also Advisory Committee’s Notes for the 1977 Amendments to Fed.R.Crim.P. 41(c)(2). In their entirety, the details of 41(c)(2) can have no reasonable application to a case where the appli[510]*510cant appears in the presence of the magistrate.1
Our finding that Rule 41 does not sanction the precise method of submitting the affidavit, however, does not end our analysis.
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J. BLAINE ANDERSON, Circuit Judge:
Vasser appeals his conviction for the manufacture of Phencyclidine in violation of 21 U.S.C. § 841. Vasser’s sole contention on appeal is that the court erred in dismissing his motion to suppress certain physical evidence on the ground of deficiency in the issuance of a search warrant. We affirm.
I. BACKGROUND
On March 7,1979, Special Agents Charles R. Henderson and Clifford Rabourn of the Drug Enforcement Administration began a surveillance of Vasser’s apartment. Agents Henderson and Rabourn suspected that Vasser was using the apartment to manufacture illegally the drug Phencyclidine. Based upon observations whose validity is not at issue in this appeal, the agents concluded that Vasser was in the process of manufacturing the drug and that the apartment should be searched. At 10:30 p. m. on March 7, Agent Henderson contacted an Assistant U.S. Attorney who, after hearing Henderson’s description of Vasser’s activities, agreed that the agents had probable cause to search the apartment. Henderson thereupon instructed Agent Rabourn to prepare an affidavit of probable cause in order to obtain a search warrant.
The agents were observing Vasser’s apartment from an empty townhouse complex located directly across a parking lot. Their vantage point was visible from the kitchen in Vasser’s apartment. The townhouse contained no furniture and lacked utilities. Faced with the limitations of their physical surroundings and with what they perceived as a need to act quickly, the agents devised a novel approach to drafting the probable cause affidavit. Agent Rabourn, armed with flashlight and cassette recorder, entered a closet and proceeded to tape-record an affidavit. The agents elected not to seek a standard telephonic search warrant because the local federal magistrate had advised them on a prior occasion that he had no telephone recording equipment in his home.
Agent Rabourn delivered the tape to the U.S. Magistrate and was sworn to the truth of the statements contained therein after the magistrate had listened to the entire tape. A search warrant issued at 3:00 a. m. on March 8, and was executed at 7:00 a. m. As a result of the search, evidence pertinent to Vasser’s eventual conviction was seized.
Prior to. trial, Vasser filed a motion to suppress all evidence seized pursuant to the [509]*509warrant on the ground that the tape-recorded affidavit did not comply with the procedural guidelines enumerated by Fed.R. Crim.P. 41. The trial court denied Vasser’s suppression motion on the grounds that any noncompliance with Rule 41 was not fundamental, and that Vasser had demonstrated neither prejudice nor a deliberate disregard of Rule 41 by the agents. At a bench trial on June 21,1979, Vasser was convicted on a single count of violating 21 U.S.C. § 841, and was later sentenced to five years of probation.
II. DISCUSSION
Vasser’s attack on the issuance of the search warrant is not based upon constitutional grounds. He contends, rather, that the agents failed to comply with Rule 41 of the Federal.Rules of Criminal Procedure in making their application for the warrant. Rule 41 provides for two basic affidavit forms: written and oral. The pertinent sections read as follows:
“(c) Issuance and contents
(1) Warrant upon affidavit. A warrant other than a warrant upon oral testimony under paragraph (2) of this subdivision shall issue only on an affidavit or affidavits sworn to before the federal magistrate or state judge and establishing the grounds for issuing the warrant. If the federal magistrate or state judge is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property and naming or describing the person or place to be searched. [Remainder of (c)(1) deleted.]
(2) Warrant upon oral testimony.—
(A) General Rule. — If the circumstances make it reasonable to dispense with a written affidavit, a Federal Magistrate may issue a warrant based upon sworn oral testimony communicated by telephone or other appropriate means.”
Fed.R.Crim.P. 41(c)(1), (c)(2).
Vasser contends that Rule 41 contemplates the issuance of warrants only upon presentation of written or telephonic affidavits. Since tape-recorded affidavits are not within the letter of rule 41, Vasser would have us reverse on the ground of fundamental noncompliance. Vasser also argues non compliance in that Agent Rabourn was not sworn until after the issuing magistrate had listened to the taped affidavit.
In considering the issue of the tape recording, we apparently deal with a question of first impression. Our research has uncovered only two prior circuit court decisions with somewhat similar factual situations. In United States v. Gitcho, 601 F.2d 369 (8th Cir.), cert. denied, 444 U.S. 871,100 S.Ct. 148, 62 L.Ed.2d 96 (1979), the agent requesting the warrant appeared before the magistrate and gave an oral affidavit which was recorded and later transcribed. The Gitcho court refused to suppress despite the agent’s failure to utilize an affidavit procedure sanctioned by Rule 41 because the defendant there was not prejudiced by the technically defective affidavit. 601 F.2d at 372. In United States v. Mendel, 578 F.2d 668 (7th Cir.), cert. denied, 439 U.S. 964, 99 S.Ct. 450, 58 L.Ed.2d 422 (1978), the court approved as conforming to the letter of the rule a procedure whereby the agent supplemented the initial draft of an affidavit with oral testimony on details supporting probable cause which was recorded and later transcribed.
We agree with Vasser that the procedure employed by Agent Rabourn did not conform with the letter of Rule 41. 41(c)(1) clearly contemplates the issuance of warrants upon written affidavits, and is not applicable. 41(c)(2) offers a greater possibility of sanctioning the taped affidavit, but falls short. 41(c)(2) is applicable only to cases wherein the applicant for the warrant is not physically present before the issuing magistrate. See United States v. Gitcho, supra, at 372; see also Advisory Committee’s Notes for the 1977 Amendments to Fed.R.Crim.P. 41(c)(2). In their entirety, the details of 41(c)(2) can have no reasonable application to a case where the appli[510]*510cant appears in the presence of the magistrate.1
Our finding that Rule 41 does not sanction the precise method of submitting the affidavit, however, does not end our analysis. Suppression is not required in all cases where the issuance of a search warrant fails to conform to the dictates of Rule 41.2 Only a “fundamental” violation of Rule 41 requires automatic suppression, and a violation is “fundamental” only where it, in effect, renders the search unconstitutional under traditional fourth amendment standards. See United States v. Burke, 517 F.2d 377, 386 (2d Cir. 1975); see also United States v. Radlick, 581 F.2d 225 (9th Cir. 1978); Navarro v. United States, 400 F.2d 315 (5th Cir. 1968). Violations of Rule 41 which do not arise to constitutional error are classified as “non-fundamental.” “Non-fundamental” noncompliance with Rule 41 requires suppression only where:
“ ‘(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.’ ”
[511]*511United States v. Radlick, supra, at 228, quoting United States v. Burke, supra.
The technical failure to comply here certainly cannot be classified as “fundamental.” The affidavit and warrant comply with constitutional standards. Our inquiry, therefore, must focus upon prejudice to Vasser or deliberate disregard of the Rule by the DEA agents. We adopt the approach of United States v. Gitcho, supra, and find that Vasser was not prejudiced by the use of a tape-recorded affidavit. As in Gitcho, the circumstances under which the warrant was sought at least partially justified the agents’ deviation from the.letter of the Rule. Also, as in Gitcho, the taped statement was transcribed and provided to the district court for review. The affidavit complies with the spirit of Rule 41 in that it provided a basis for a probable cause determination and established an adequate record to review that determination.
We also find that the court below did not err in finding that the agents’ resort to the tape-recorded affidavit was not undertaken in bad faith. The circumstances required that the agents act with some urgency, and their belief that the use of the cassette recorder would speed the process was apparently held in good faith.
Vasser also finds fault in that the oath was not administered until after the magistrate had listened to the taped affidavit, citing United States v. Shorter, 600 F.2d 585 (6th Cir. 1979). Shorter, however, dealt with a telephonic search warrant. Rule 41(c)(2)(D) specifically requires that the oath be given prior to oral testimony in the case of an application for a telephonic warrant. It is not a general requirement for all warrants issued under Rule 41. We have already determined that the warrant issued here was not classifiable as a 41(c)(2) warrant. In any event, the timing of the oath could not have caused any prejudice to Vasser within the meaning of Radlick. Consequently, we hold that the timing of the oath did not require suppression in this case.
III. CONCLUSION
The judgment of the court below is
AFFIRMED.3