United States v. Greely
| Decision Date | 26 March 1970 |
| Docket Number | No. 22532.,22532. |
| Citation | 425 F.2d 592,138 US App. DC 161 |
| Parties | UNITED STATES of America, Appellant, v. Ernest M. GREELY. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. Thomas C. Green, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., at the time the brief was filed, and Charles A. Mays, Asst. U. S. Atty., were on the brief, for appellant. Messrs. Thomas A. Flannery, U. S. Atty., John A. Terry and Roger E. Zuckerman, Asst. U. S. Attys., also entered appearances for appellant.
Before BAZELON, Chief Judge, and ROBINSON and MacKINNON, Circuit Judges.
This is a government appeal from a pre-trial order suppressing the identification testimony of two witnesses to an attempted robbery and felony-murder. The suppression order recites that the identifications were twice tainted, by an arrest without probable cause and by an unnecessarily suggestive display of photographs to each witness. This appeal is authorized by 18 U.S.C. § 3731 (Supp. IV 1965-1968).
The record does not afford an adequate basis for appellate review of the trial court's decision to suppress the identifications. We cannot review the legal determination that probable cause was lacking without knowing how the district court resolved the underlying issues of fact concerning the circumstances of the arrest. We have similar difficulty in reviewing the determination that no independent source dissipated the taint of a suggestive display of photographs. Therefore we remand for a statement of the findings of fact and conclusions of law on which the suppression order is based.
While this appeal was pending, the government sought to compel the trial court to reconsider its order in light of additional evidence newly proffered by the government. The trial court refused to reconsider, and this court refused to hear an appeal, reasoning that the statute authorizing government appeals from suppression orders does not authorize government appeals from refusals to reconsider. United States v. Greely, 134 U.S.App.D.C. 196, 413 F.2d 1103 (1969). Now that an appeal from the suppression order is properly before this court, however, our prior decision is no bar to consideration of the issues raised in that proceeding.
On remand the trial court will again be faced with the government's proffer of additional evidence. The government cannot relitigate the...
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