An order of a Federal District Court granting or denying a
pre-indictment motion under Federal Rule of Criminal Procedure
41(e) to suppress the evidentiary use in a federal criminal trial
of property allegedly procured through an unlawful search and
seizure is not appealable -- even when rendered in a different
district from that of trial. Pp.
369 U. S.
121-133.
284 F.2d 897, judgment vacated with instructions to dismiss the
appeal.
290 F.2d 166 affirmed.
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
These two cases present variants of the same problem: the
appealability of an order granting or denying a pretrial motion to
suppress the evidentiary use in a federal criminal trial of
material allegedly procured through
Page 369 U. S. 122
an unreasonable search and seizure. [
Footnote 1] A brief recital of the procedural history of
each will place our problem in context.
On October 15, 1958, a warrant was issued by a United States
Commissioner in the Eastern District of New York for the arrest of
Mario DiBella upon a complaint charging unlawful sales of
narcotics. The warrant was executed on March 9, 1959, in DiBella's
apartment, and was followed by seizure of the drugs, equipment, and
cash now in question. DiBella was arraigned and released under bail
the next day. On June 17, 1959, a motion to suppress was filed on
his behalf with the District Court for the Eastern District of New
York, and hearing was scheduled for July 6. Several continuances
followed, and, before the hearing was held on August 25, an
indictment against DiBella was returned in the same district. The
motion was ultimately denied, without prejudice to renewal at
trial. 178 F. Supp. 5. The Court of Appeals
Page 369 U. S. 123
for the Second Circuit held the order appealable, in accordance
with its prior decisions, because the motion was filed before
return of the indictment. 284 F.2d 897.
The motion in the companion case, on behalf of Daniel Koenig,
was likewise filed before indictment, and this time in a district
other than that of trial. Koenig had been arrested on September 22,
1959, in the Southern District of Florida on the basis of a
complaint charging robbery of a federally insured bank in the
Southern District of Ohio. His motion to suppress and for return of
property seized during that arrest was filed in the Florida federal
court on October 12, three days after the local United States
Commissioner had held a final hearing on the Ohio complaint and two
days before he recommended a warrant of removal. On October 16, an
indictment against Koenig was returned in the Southern District of
Ohio. After three hearings on the motion, the Florida District
Court entered its order on December 18, granting suppression but
denying return without prejudice to renewal of the motion in the
trial court. The Government's appeal to the Court of Appeals for
the Fifth Circuit was dismissed for lack of jurisdiction on the
ground that, following recent decisions of that court, the order
was interlocutory in a criminal case. 290 F.2d 166. We granted
certiorari in the two cases, 365 U.S. 809 and 368 U.S. 812,
respectively, to resolve a conflict among the circuits.
The settled view of the Second Circuit, that a ruling on a
pre-indictment motion invariably lays the basis for immediate
appellate review, in that it constitutes a "final decision" under
28 U.S.C. § 1291, even though an indictment intervenes, has
not been squarely passed upon by this Court. We have denied
appealability from orders on post-indictment motions to both the
Government,
Carroll v. United States, 354 U.
S. 394, and the defendant,
Page 369 U. S. 124
Cogen v. United States, 278 U.
S. 221. The Court has, however, in fact allowed appeals
from orders granting and denying pre-indictment motions, [
Footnote 2] and these dispositions have
given rise to explanatory dicta that lend support to the rule
developed in the Second Circuit. [
Footnote 3] Not only disagreement among the circuits, but
dubieties within them demand an adjudication based upon searching
consideration of such conflicting and confused views regarding a
problem of considerable importance in the proper administration of
criminal justice.
The general principle of federal appellate jurisdiction, derived
from the common law and enacted by the First Congress, requires
that review of
nisi prius proceedings await their
termination by final judgment. First Judiciary Act, §§
21, 22, 25, 1 Stat. 73, 83, 84, 85 (1789);
see McLish v.
Roff, 141 U. S. 661.
This insistence on finality and prohibition of piecemeal review
discourage undue litigiousness and leaden-footed administration of
justice, particularly damaging to the conduct of criminal cases.
See Cobbledick v. United States, 309 U.
S. 323,
309 U. S.
324-326.
Since the procedural aspects of law deal with the practical
affairs of men, and do not constitute an abstract system of
doctrinaire notions, Congress has recognized the need of exceptions
for interlocutory orders in certain types of proceedings where the
damage of error unreviewed before the judgment is definitive and
complete,
see Collins v. Miller, 252 U.
S. 364,
252 U. S. 370,
has been deemed greater than the disruption caused by intermediate
appeal.
Page 369 U. S. 125
See 30 Stat. 544, 553 (1898), as amended, 11 U.S.C.
§ 47 (bankruptcy proceedings); 28 U.S.C. § 1252 (orders
invalidating federal statutes); 28 U.S.C. § 1253 (injunctions
issued or refused by statutory three-judge courts); 28 U.S.C.
§ 1292(a)(1)-(4) (injunctions, receivership, admiralty, patent
infringement). Most recently, in the Interlocutory Appeals Act of
1958, 72 Stat. 1770, 28 U.S.C. § 1292(b), Congress expanded
the latitude for intermediate appeals in civil actions through the
device of discretionary certification of controlling questions of
law.
See Note, 75 Harv.L.Rev. 351, 378-379. [
Footnote 4]
Moreover, the concept of finality as a condition of review has
encountered situations which make clear that it need not invite
self-defeating judicial construction. Thus, acceptance of appeal
from orders definitively directing an immediate transfer of
property, although an accounting remains,
Forgay v.
Conrad, 6 How. 201, has been justified as
"review of the adjudication which is concluded because it is
independent of, and unaffected by, another litigation with which it
happens to be entangled."
Radio Station WOW v. Johnson, 326 U.
S. 120,
326 U. S. 126.
[
Footnote 5] Similarly, so as
not to frustrate the right
Page 369 U. S. 126
of appellate review, immediate appeal has been allowed from an
order recognized as collateral to the principal litigation because
touching matters that will not "affect, or . . . be affected by,
decision of the merits of [the] . . . case,"
Cohen v.
Beneficial Industrial Loan Corp., 337 U.
S. 541,
337 U. S. 546,
when the practical effect of the order will be irreparable by any
subsequent appeal.
E.g., Stack v. Boyle, 342 U. S.
1;
Swift & Co. v. Compania Colombiana Del
Caribe, 339 U. S. 684,
339 U. S.
688-689. To like effect is Rule 54(b) of the Federal
Rules of Civil Procedure which, as amended in 1961, 368 U.S. at
1015, allows appeals in multiple litigation from an express entry
of "final judgment as to one or more but fewer than all of the
claims or parties," but only when the trial judge certifies that
"there is no just reason for delay."
Despite these statutory exceptions to, and judicial construction
of, the requirement of finality, "the final judgment rule is the
dominant rule in federal appellate practice." 6 Moore, Federal
Practice (2d ed. 1953), 113. Particularly is this true of criminal
prosecutions.
See, e.g., Parr v. United States,
351 U. S. 513,
351 U. S.
518-521. Every statutory exception is addressed, either
in terms or by necessary operation, solely to civil actions.
Moreover, the delays and disruptions attendant upon intermediate
appeal are especially inimical to the effective and fair
administration of the criminal law. The Sixth Amendment guarantees
a speedy trial. Rule 2 of the Federal Rules of Criminal Procedure
counsels construction of the Rules "to secure simplicity in
procedure, fairness in administration and the elimination of
unjustifiable expense and delay"; Rules 39(d) and 50 assign
preference to criminal cases on both trial and appellate
dockets.
Again, the decisions according finality to civil orders in
advance of an ultimately concluding judgment have rested on finding
a particular claim to be independent, because
Page 369 U. S. 127
"fairly severable from the context of a larger litigious
process."
Swift & Co. v. Compania Colombiana Del Caribe,
supra, at
339 U. S. 689.
No such severability inheres in a motion seeking the suppression of
evidence at a forthcoming trial; its disposition, as the Court
recognized in
Cogen v. United States, supra, at
278 U. S. 223,
"will necessarily determine the conduct of the trial and may
vitally affect the result." No less when it precedes indictment,
the motion presents an issue that is involved in, and will be part
of, a criminal prosecution in process at the time the order is
issued.
The precise question before us has been much canvassed in the
lower courts. It has not only produced a conflict among the
circuits, but has provoked practical difficulties in the
administration of criminal justice, and caused expressions of
dissatisfaction even in courts that have sustained an appeal.
Although only the Fourth and Fifth Circuits have clearly departed
from the Second Circuit's view, [
Footnote 6] the consensus in the others is far from
unwavering. [
Footnote 7]
Page 369 U. S. 128
The First Circuit, for example, has declined to permit pretrial
entertainment of any suppression motions other than those
explicitly authorized by the language of Rule 41(e).
Centracchio v. Garrity, 198 F.2d 382, 386-389 (1952);
accord, e. g., Benes v. Canary, 224 F.2d 470, 472 (C.A.6th
Cir. 1955).
And see In re Fried, 161 F.2d 453, 465-466
(C.A.2d Cir. 1947) (opinions of L. Hand and A. Hand, JJ.). These
opinions manifest a disinclination to treat as separate and final
rulings on the admissibility of evidence which depend on factual
contentions that may be more appropriately resolved at a plenary
trial. Similarly, a California District Court has recently
dismissed for want of equity a pre-indictment bill to suppress, on
the ground that at the time relief would issue, there was an
adequate remedy at law by motion in the criminal trial; and the
Ninth Circuit refused an application for prerogative writs.
Rodgers v. United States, 158 F.
Supp. 670 (1958);
id. at 684 note.
See also Eastus
v. Bradshaw, 94 F.2d 788 (C.A.5th Cir. 1938). In the Third
Circuit, which up to now has agreed with the Second, the latest
opinion on the subject expresses doubts as to the validity
Page 369 U. S. 129
of its precedents.
United States v. Murphy, 290 F.2d
573, 575 n. 2 (1961).
We should decide the question here -- we are free to do so --
with due regard to historic principle and to the practicalities in
the administration of criminal justice. An order granting or
denying a pre-indictment motion to suppress does not fall within
any class of independent proceedings otherwise recognized by this
Court, and there is every practical reason for denying it such
recognition. To regard such a disjointed ruling on the
admissibility of a potential item of evidence in a forthcoming
trial as the termination of an independent proceeding, with full
panoply of appeal and attendant stay, entails serious disruption to
the conduct of a criminal trial. [
Footnote 8] The fortuity of a pre-indictment motion may
make of appeal an instrument of harassment, jeopardizing by delay
the availability of other essential evidence.
See Rodgers v.
United States, supra, 158 F. Supp. at 673 n. 1. Furthermore,
as cases in the Second Circuit make clear, appellate intervention
makes for truncated presentation of the issue of admissibility,
because the legality of the search too often cannot truly be
determined until the evidence at the trial has brought all
circumstances to light.
See In re Milburne, 77 F.2d 310,
311 (1935);
Grant v. United States, 291 F.2d 227, 229
(1961). [
Footnote 9]
Page 369 U. S. 130
Nor are the considerations against appealability made less
compelling as to orders granting motions to suppress, by the fact
that the Government has no later right to appeal when and if the
loss of evidence forces dismissal of its case.
United States v.
Pack, 247 F.2d 168 (C.A.3d Cir. 1957);
Umbriaco v. United
States, 258 F.2d 625, 626 (C.A.9th Cir. 1958). As the Ninth
Circuit said of this circumstance, the Government is no more
disadvantaged than in the case of an adverse ruling on the evidence
during trial.
United States v. Rosenwasser, 145 F.2d 1015,
1018 (1944). What disadvantage there be springs from the historic
policy, over and above the constitutional protection against double
jeopardy, that denies the Government the right of appeal in
criminal cases save as expressly authorized by statute.
United
States v. Sanges, 144 U. S. 310;
United States v. Dickinson, 213 U. S.
92,
213 U. S.
102-103;
Carroll v. United States, 354 U.
S. 394,
354 U. S.
400-403 and n. 9-12. No such expression appears in 28
U.S.C. § 1291, and the Government's only right of appeal,
given by the Criminal Appeals Act of 1907, 34 Stat. 1246, now 18
U.S.C. § 3731, is confined to narrowly defined situations not
relevant to our problem. Allowance of any further right must be
sought from Congress, and not this Court.
Carroll v. United
States, supra, at
354 U. S.
407-408.
In the Narcotic Control Act of 1956, § 201, 70 Stat. 567,
573, 18 U.S.C. § 1404, Congress did grant the Government the
right to appeal from orders granting pretrial motions to suppress
the use of seized narcotics as
Page 369 U. S. 131
evidence; but, though invited to do so, [
Footnote 10] it declined to extend this right to
all suppression orders. Since then, each Congress has had before it
bills to accomplish that extension, [
Footnote 11] at least one of which has been reported
favorably. [
Footnote 12] As
yet, however, none has been adopted.
We hold, accordingly, that the mere circumstance of a
pre-indictment motion does not transmute the ensuing evidentiary
ruling into an independent proceeding begetting finality even for
purposes of appealability. Presentations before a United States
Commissioner,
Go-Bart Importing Co. v. United States,
282 U. S. 344,
282 U. S.
352-354, as well as before a grand jury,
Cobbledick
v. United States, 309 U. S. 323,
309 U. S. 327,
are parts of the federal prosecutorial system leading to a criminal
trial. Orders granting or denying suppression in the wake of such
proceedings are truly interlocutory, for the criminal trial is then
fairly in train. When, at the time of ruling, there is outstanding
a complaint, or a detention or release on bail following arrest, or
an arraignment, information, or indictment -- in each such case,
the order on a suppression motion must be treated as "but a step in
the criminal case preliminary to the trial thereof."
Cogen v.
United States, 278 U. S. 221,
278 U. S. 227.
Only if the motion is solely for return of property,
Page 369 U. S. 132
and is in no way tied to a criminal prosecution
in esse
against the movant can the proceedings be regarded as independent.
Ibid.; see Carroll v. United States, 354 U.
S. 394,
354 U. S. 404
n. 17;
In re Brenner, 6 F.2d 425 (C.A.2d Cir. 1925).
An alternative ground for appealability in the
Koenig
case, likewise culled from dicta in some of our decisions, would
assign independence to the suppression order because rendered in a
different district from that of trial.
Dier v. Banton,
262 U. S. 147, the
only holding pointed to, is clearly inapposite; it allowed an
appeal from an order by a federal bankruptcy court permitting
delivery of a bankrupt's papers to state prosecuting officials.
Cf. Rea v. United States, 350 U.
S. 214;
Wilson v. Schnettler, 365 U.
S. 381. There is a decision in the Second Circuit,
United States v. Klapholz, 230 F.2d 494 (1956), allowing
the Government an appeal from an order granting a post-indictment
motion to suppress, apparently for the single reason that the
motion was filed in the district of seizure, rather than of trial,
but the case was soon thereafter taken by a District Court to have
counseled declining jurisdiction of such motions for reasons
persuasive against allowing the appeal:
"This course will avoid a needless duplication of effort by two
courts, and provide a more expeditious resolution of the
controversy, besides avoiding the risk of determining prematurely
and inadequately the admissibility of evidence at the trial. . . .
A piecemeal adjudication such as that which would necessarily
follow from a disposition of the motion here might conceivably
result in prejudice either to the Government or the defendants, or
both."
United States v. Lester, 21 F.R.D. 30, 31
(D.C.S.D.N.Y.1957). Rule 41(e), of course, specifically provides
for making of the motion in the district of seizure. On a summary
hearing, however, the ruling there is likely always to be
tentative.
Page 369 U. S. 133
We think it accords most satisfactorily with sound
administration of the Rules to treat such rulings as
interlocutory.
The judgment of the Court of Appeals in No. 21 is vacated, and
the cause is remanded with instructions to dismiss the appeal. In
No. 93, the judgment is affirmed.
It is so ordered.
THE CHIEF JUSTICE, MR. JUSTICE BLACK and MR. JUSTICE STEWART
concur in the result.
MR. JUSTICE WHITTAKER took no part in the disposition of these
cases.
* Together with No. 93,
United States v. Koenig,
certiorari to the United States Court of Appeals for the Fifth
Circuit, argued January 17, 1962.
[
Footnote 1]
Rule 41(e) of the Federal Rules of Criminal Procedure
provides:
"A person aggrieved by an unlawful search and seizure may move
the district court for the district in which the property was
seized for the return of the property and to suppress for use as
evidence anything so obtained on the ground that (1) the property
was illegally seized without warrant, or (2) the warrant is
insufficient on its face, or (3) the property seized is not that
described in the warrant, or (4) there was not probable cause for
believing the existence of the grounds on which the warrant was
issued, or (5) the warrant was illegally executed. The judge shall
receive evidence on any issue of fact necessary to the decision of
the motion. If the motion is granted, the property shall be
restored unless otherwise subject to lawful detention, and it shall
not be admissible in evidence at any hearing or trial. The motion
to suppress evidence may also be made in the district where the
trial is to be had. The motion shall be made before trial or
hearing unless opportunity therefor did not exist or the defendant
was not aware of the grounds for the motion, but the court, in its
discretion, may entertain the motion at the trial or hearing."
[
Footnote 2]
Perlman v. United States, 247 U. S.
7;
Burdeau v. McDowell, 256 U.
S. 465.
See also Go-Bart Importing Co. v. United
States, 282 U. S. 344,
282 U. S.
356.
[
Footnote 3]
See Cogen v. United States, 278 U.
S. 221,
278 U. S. 225;
Cobbledick v. United States, 309 U.
S. 323,
309 U. S.
328-329 and n. 6;
Carroll v. United States,
354 U. S. 394,
354 U. S.
403.
[
Footnote 4]
In addition to careful specification of these particular orders,
Congress has, since 1789, declared the existence of authority in
the federal courts to issue "all writs necessary or appropriate in
aid of their respective jurisdictions and agreeable to the usages
and principles of law," 28 U.S.C. § 1651, derived from First
Judiciary Act, §§ 13, 14, 1 Stat. 73, 80, 81; but the
authority has been most sparingly exercised, when no other remedy
will suffice,
"to confine an inferior court to a lawful exercise of its
prescribed jurisdiction or to compel it to exercise its authority
when it is its duty to do so."
Roche v. Evaporated Milk Ass'n,
319 U. S.
21,
319 U. S.
26.
[
Footnote 5]
In eminent domain proceedings, however, where the issue of
reasonable compensation cannot be thus separated from the
lawfulness of the taking, the Court has denied independent review
to transfer orders.
Catlin v. United States, 324 U.
S. 229;
cf. Republic Natural Gas Co. v.
Oklahoma, 334 U. S. 62,
334 U. S.
71-72.
[
Footnote 6]
Fourth Circuit:
United States v. Williams, 227 F.2d 149
(1955).
Fifth Circuit:
Zacarias v. United States, 261 F.2d 416
(1958);
Saba v. United States, 282 F.2d 255 (1960).
In the District of Columbia Circuit, the decisions appear to
have inverted the Second Circuit rule: pre-indictment motions have
been held interlocutory,
Nelson v. United States, 93
U.S.App.D.C. 14, 24-26, 208 F.2d 505, 515-517 (1953), while
post-indictment motions have been treated as independent,
United States v. Cefaratti, 91 U.S.App.D.C. 297, 202 F.2d
13 (1952).
But see United States v. Stephenson, 96
U.S.App.D.C. 44, 223 F.2d 336 (1955).
[
Footnote 7]
First Circuit:
Centracchio v. Garrity, 198 F.2d 382,
385 (1952);
Chieftain Pontiac Corp. v. Julian, 209 F.2d
657, 659 (1954) (by implication).
Second Circuit:
United States v. Poller, 43 F.2d 911
(1930);
In re Milburne, 77 F.2d 310 (1935);
United
States v. Edelson, 83 F.2d 404 (1936);
Cheng Wai v. United
States, 125 F.2d 915 (1942);
Lagow v. United States,
159 F.2d 245 (1946);
In re Fried, 161 F.2d 453 (1947);
Lapides v. United States, 215 F.2d 253 (1954);
Russo
v. United States, 241 F.2d 285 (1957);
Carlo v. United
States, 286 F.2d 841 (1961);
Grant v. United States,
291 F.2d 227 (1961);
Greene v. United States, 296 F.2d 841
(1961).
Third Circuit:
In re Sana Laboratories, 115 F.2d 717
(1940);
United States v. Bianco, 189 F.2d 716, 717 n. 2
(1951);
United States v. Sineiro, 190 F.2d 397 (1951);
United States v. Murphy, 290 F.2d 573 (1961).
Sixth Circuit:
Benes v. Canary, 224 F.2d 470
(1955).
Seventh Circuit:
Socony Mobil Oil Co. v. United States,
275 F.2d 227 (1960) (by implication) (
semble).
Eighth Circuit:
Goodman v. Lane, 48 F.2d 32 (1931).
Ninth Circuit:
Freeman v. United States, 160 F.2d 69
(1946);
Weldon v. United States, 196 F.2d 874, 875 (1952);
Hoffritz v. United States, 240 F.2d 109 (1956).
But
see Rodgers v. United States, 158 F.
Supp. 670 (D.C.S.D.Cal.),
mandamus and prohibition denied
in id. at 684 note (C.A.9th Cir. 1958).
[
Footnote 8]
It is evident, for example, that the form of independence has
been availed of on occasion to seek advantages conferred by the
rules governing civil procedure, to the prejudice of proper
administration of criminal proceedings.
E.g., Greene v. United
States, 296 F.2d 841, 843-844 (C.A.2d Cir. 1961) (extended
time for appeal);
Russo v. United States, 241 F.2d 285,
287-288 (C.A.2d Cir. 1957) (expanded discovery).
[
Footnote 9]
Although Rule 41(a),
supra, note 1 codifies prior practice in preferring that the
motion be raised before trial, and provides for the taking of
evidence on disputed factual issues, the usual procedure followed
at this early stage is to decide the question on affidavits alone;
in addition, it has long been accepted that the point can, and on
occasion must, be renewed at the trial to preserve it for ultimate
appeal.
Gouled v. United States, 255 U.
S. 298,
255 U. S.
312-313;
Lawn v. United States, 355 U.
S. 339,
355 U. S.
353-354. We do no more than recognize that ordinarily
the District Courts will wish to reserve final ruling until the
criminal trial.
[
Footnote 10]
Illicit Narcotics Traffic -- Hearings before the Subcommittee on
Improvements in the Federal Criminal Code of the Senate Committee
on the Judiciary, 84th Cong., 1st Sess. 725-726 (1955); Narcotic
Control Act of 1956-id., 2d Sess. 9 (1956).
[
Footnote 11]
H.R. 9364 and S. 3423, 84th Cong., 2d Sess. (1956); HR. 263 and
H.R. 4753, 85th Cong., 1st Sess. (1957); S. 1721, 86th Cong., 1st
Sess. (1959);
see 105 Cong.Rec. 6190 (remarks of Senator
Keating).
[
Footnote 12]
S.Rep. No. 1478, 85th Cong., 2d Sess. 14-17 (1958). As in 18
U.S.C. §§ 1404 and 3731, the Subcommittee's proposed bill
would have provided safeguards against the taking of harassing or
frivolous appeals and would have ensured expeditious review.