369 U.S. 121 (1962), 21, DiBella v. United States

Docket Nº:No. 21
Citation:369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614
Party Name:DiBella v. United States
Case Date:March 19, 1962
Court:United States Supreme Court

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369 U.S. 121 (1962)

82 S.Ct. 654, 7 L.Ed.2d 614



United States

No. 21

United States Supreme Court

March 19, 1962

Argued January 16-17, 1962




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. 121-133.

284 F.2d 897, judgment vacated with instructions to dismiss the appeal.

290 F.2d 166 affirmed.

FRANKFURTER, J., lead opinion

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

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an unreasonable search and seizure.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 [82 S.Ct. 656] 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

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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,

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Cogen v. United States, 278 U.S. 221. The Court has, however, in fact allowed appeals from orders granting and denying pre-indictment motions,2 and these dispositions have given rise to explanatory dicta that lend support to the rule developed in the Second Circuit.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 [82 S.Ct. 657] the conduct of criminal cases. See Cobbledick v. United States, 309 U.S. 323, 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, 370, has been deemed greater than the disruption caused by intermediate appeal.

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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, 378-379.4

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, 126.5 Similarly, so as not to frustrate the right

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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, 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, 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."

[82 S.Ct. 658] 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, 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

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"fairly severable from the context of a larger litigious process." Swift & Co. v. Compania Colombiana Del Caribe, supra, at 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 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,6 the consensus in the others is far from unwavering.7

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The First Circuit, for example, has declined to permit pretrial [82 S.Ct. 659] 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.,...

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