234 F.2d 679 (D.C. Cir. 1956), 12640, United States v. Carroll

Docket Nº:12640, 12641.
Citation:234 F.2d 679
Party Name:UNITED STATES of America, Appellant, v. Leon F. CARROLL, Appellee. UNITED STATES of America, Appellant, v. Daniel J. STEWART, Appellee.
Case Date:May 03, 1956
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 679

234 F.2d 679 (D.C. Cir. 1956)

UNITED STATES of America, Appellant,


Leon F. CARROLL, Appellee.

UNITED STATES of America, Appellant,


Daniel J. STEWART, Appellee.

Nos. 12640, 12641.

United States Court of Appeals, District of Columbia Circuit.

May 3, 1956

Argued April 3, 1956.

Mr. Harold H. Greene, Asst. U.S. Atty., with whom Messrs. Leo A. Rover, U.S. Atty., at the time record was filed, Lewis Carroll and Frederick G. Smithson, Asst. U.S. Attys., were on the brief, for appellant.

Messrs. Curtis P. Mitchell, Washington, D.C., and William B. Bryant, with whom Mr. Henry Lincoln Johnson, Jr., Washington, D.C., was on the brief, for appellees.


WASHINGTON, Circuit Judge.

These are appeals by the Government from the grant by the District Court of motions to suppress evidence seized from the persons of the appellees when the latter were arrested. The motions, made under Rule 41(e), Fed.Rules Crim.Proc., 18 U.S.C.A., were based on the contention that the arrests, which were made

Page 680

pursuant to John Doe warrants, were illegal for lack of probable cause.

Appellees challenge the jurisdiction of this court to hear appeals such as these. But on this question United States v. Cefaratti, 1952, 91 U.S.App.D.C. 297, 302, 202 F.2d 13, 18, certiorari denied, 1953, 345 U.S. 907, 73 S.Ct. 646, 97 L.Ed. 1343, as explained by United States v. Stephenson, 1955, 96 U.S.App.D.C. 44, 223 F.2d 336, is controlling, even though, as appellees point out, the indictment against them is still pending. In the Stephenson case we said, 96 U.S.App.D.C. at page 45, 223 F.2d at page 337:

'The (District) court expressed the opinion that its order of suppression was reviewable and cited United States v. Cefaratti, 91 U.S.App.D.C. 297, 202 F.2d 13. In that case the indictment had been dismissed, after the order of suppression and before the appeal, and in the present case the indictment is pending. But in Cefaratti we did 'not imply agreement' with United States v. Rosenwasser, 9 Cir., 145 F.2d 1015, 156 A.L.R. 1200, which treated such a difference as critical. On the contrary, we rested Cefaratti 'squarely on the Cohen (Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528), Swift (Swift & Co. Packers v. Compania (Colombiana Del) Caribe, 339 U.S. 684...

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