Donlon v. United States, Misc. No. 66

Decision Date28 September 1971
Docket NumberMisc. No. 66,68.
Citation331 F. Supp. 979
PartiesJoseph M. DONLON v. UNITED STATES of America.
CourtU.S. District Court — District of Delaware

Alfred J. Lindh, of Lindh & Biden, Wilmington, Del., for Joseph M. Donlon.

F. L. Peter Stone, U. S. Atty., Wilmington, Del., for the United States.


LAYTON, District Judge.

As the result of information obtained from a wiretap authorized by Judge Latchum of this Court, a search warrant was issued authorizing a search of the premises of the movant (Donlon). The search revealed a number of items some of which, at least, tended to indicate evidence of gambling activities on the part of Donlon. Despite this, Donlon has not been arrested, charged, committed or indicted. Anticipating that the evidence seized might be used as the basis for an indictment against him at the coming meeting of the Grand Jury, Donlon has filed a motion to suppress and return this evidence upon the grounds that:

(1) The evidence was illegally seized because T. 18 §§ 2510-2520 (the wiretap law) was unconstitutional;
(2) The evidence was based upon an invalid search warrant obtained from information which was tainted (fruit of the poisoned tree);
(3) The search warrant was invalid because no probable cause was shown.

On September 2, 1971, in another proceeding growing out of a different wiretap, I decided that §§ 2517 and 2518 (1) through (6) of the wiretap act were constitutional.1 Donlon's first two arguments are, thus, no longer available to him. He maintains his position, nevertheless, that the search was invalid because the warrant was not based upon probable cause.

At the preliminary argument on this motion, I entered an order restraining the United States from presenting the evidence in question to the Grand Jury with the idea of deciding the matter on its merits prior to its forthcoming meeting on October 6th. However, after examining the briefs, I have concluded that this motion is wholly lacking in equity. For the reasons hereafter given, the motion will be denied and the restraining order dismissed without prejudice to Donlon's right to renew it on its merits should an indictment hereafter be returned.

At the outset, it is essential to define precisely the basis for this motion. Donlon labels it a motion to suppress and return property, but closely analyzed, it is not a motion to suppress. In DiBella v. United States,2 the Supreme Court held that a pre-indictment motion to suppress must be based upon a criminal proceeding in esse and the judgment thereon is interlocutory in character:

"When at the time of ruling on the motion there is outstanding a complaint, or a detention or release on bail following arrest, or an arraignment, information, or indictment—in each case the order on a suppression motion must be treated as but a step in the criminal case preliminary to the trial thereof."3

But when the motion is not based upon a criminal proceeding in esse, it partakes of an independent proceeding to return evidence illegally seized and the inference is that the order is appealable:

"Only if the motion is solely for the return of property and is in no way tied to a criminal prosecution in esse against the movant can the proceedings be regarded as independent."4

After considering a number of cases, it is my conclusion that a pre-indictment motion to return evidence not tied to an existing criminal proceeding is grounded5 upon equitable considerations. The Court has jurisdiction over such a motion but in its discretion may refuse to hear it on its merits.

"Although in the sense above indicated it cannot be said that the district court lacked jurisdiction of the petition in the instant case, the propriety of exercising such jurisdiction depends upon considerations of an equitable nature."6

See also Stern v. Robinson, 262 F.Supp. 13, 15 (W.D.Tenn.1966); Smith v. Katzenbach, 122 U.S.App.D.C. 113, 351 F.2d 810, 814 (1965); United States v. Foley, 283 F.2d 582, 583 (2d Cir. 1960); Silbert v. United States, 275 F.Supp. 765, 768 (D.C.Md.1967).

For the following reasons, I decline to exercise my discretion to entertain and dispose of the merits of this petition at this time:

(1) Petitioner is not under arrest nor has he had a committing hearing. The United States Attorney may eventually decide not to attempt to indict petitioner. Or, if so, the Grand Jury may refuse to indict with the result that the motion is premature.
(2) The alleged unconstitutionality of the search and seizure is not absolutely clear on the face of the proceeding. The government obtained a warrant by the usual means based upon at least a colorable allegation of probable cause and the search was otherwise validly executed;
(3) Petitioner will suffer no prejudice if compelled to present this motion at a later day, assuming he is eventually indicted. He has

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  • United States v. Askins
    • United States
    • U.S. District Court — District of Maryland
    • October 27, 1972
    ...United States v. Perillo, 333 F.Supp. 914 (D.Del.1971); United States v. Leta, 332 F.Supp. 1357 (M.D.Pa.1971); Donlon v. United States, 331 F.Supp. 979 (D.Del.1971); United States v. Scott, 331 F.Supp. 233 (D.D.C.1971); United States v. Cantor, 328 F.Supp. 561 (E.D. Pa.1971); United States ......
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    • United States
    • U.S. Court of Appeals — Second Circuit
    • June 1, 1973
    ...filing of an indictment. See The Fifth Avenue Peace Parade Committee v. Hoover, 327 F.Supp. 238, 242 (S.D.N.Y.1971); Donlon v. United States, 331 F.Supp. 979 (D.Del. 1971). Cf. DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962). Indeed more often than not the warrant......
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    • U.S. District Court — Western District of Michigan
    • November 3, 1972
    ...States v. Sklaroff, 323 F.Supp. 296 (S.D.Fla.1971); United States v. Escandar, 319 F.Supp. 295 (S.D.Fla.1970); Donlon v. United States, 331 F.Supp. 979 (D.C.Del.1971); United States v. Lawson, 334 F.Supp. 612 (E.D.Pa.1971); United States v. Cox, et al., 462 F.2d 1293 (8th Cir. 1972). These ......
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    • December 28, 1971
    ...United States v. Cantor, 328 F.Supp. 561 (E.D. Pa.1971), United States v. Scott, 331 F.Supp. 233 (D.C.D.C.1971), United States v. Donlon, 331 F.Supp. 979 (D.C. Del.1971), United States v. Perillo, 914 F.Supp. 333 (D.C.Del.1971). We join the courts which have rejected the attack of On March ......
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