United States v. Peachtree National Distributors, 71-2092.

• Decision Date: 07 March 1972
• Docket Number: No. 71-2092.,71-2092.
• Citation: 456 F.2d 442
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. PEACHTREE NATIONAL DISTRIBUTORS et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

456 F.2d 442 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. PEACHTREE NATIONAL DISTRIBUTORS et al., Defendants-Appellants.

No. 71-2092.

United States Court of Appeals, Fifth Circuit.

March 7, 1972.

J. Mack Ausburn, San Antonio, Tex., Robert Eugene Smith, Towson, Md., for defendants-appellants; D. Freeman Hutton, Atlanta, Ga., of counsel.

Seagal V. Wheatley, U. S. Atty., Jeremiah Handy, Asst. U. S. Atty., San Antonio, Tex., Donald H. Feige, Atty., Dept. of Justice, Washington, D. C., William S. Sessions, U. S. Atty., William C. McCorriston, Atty., Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Before GEWIN, GOLDBERG and DYER, Circuit Judges.

GEWIN, Circuit Judge:

On March 20, 1971, an officer of the Texas Department of Public Safety, License and Weight Services, who was inspecting bills of lading and other required transport documents, stopped a large tractor-trailer on Interstate Highway No. 20 near Odessa, Texas. During a routine inspection he discovered that the trailer contained what he considered to be "obscene" books rather than oil well parts as shown on the bill of lading. The driver was then arrested for the purpose of filing state charges for license and shipping document violations. Enroute to the local courthouse the officer notified agents of the Federal Bureau of Investigation (FBI) of the possibly obscene nature of the cargo. When the vehicle reached the courthouse FBI agents examined the trailer and found that it contained 190 cardboard cartons of books and magazines. The cartons were marked, "From Peachtree National Distributors, 240 Lucky Street Northwest, Atlanta, Georgia,—to Peachtree National Distributors, 240 Lucky Street Northwest, Atlanta, Georgia." The record indicates that the trip of the tractor-trailer originated in the state of California. The books and magazines contained pictures and textual descriptions of various sexual acts between persons of opposite sexes, of the same sex, and between humans and animals.¹ After determining the nature of the contents of the books and magazines, the agents removed ten copies of each of the books from the trailer and contacted the Assistant United States Attorney for instructions as to what to do with the trailer and the remainder of its contents. He advised them to retain custody of the trailer.

That afternoon the driver of the truck plead guilty to the highway violations, and was fined by the local Justice of the Peace.² The fine was paid and the driver and the tractor were released. The FBI retained custody of the trailer.

On March 29, 1971 the United States Attorney filed in the United States District Court a motion requesting the court to direct the United States Magistrate at Odessa, Texas to issue a search warrant for the search of the trailer and a motion for a temporary restraining order restraining the disposition, alteration, or mutilation of the contents of the trailer. The motions were entered on the criminal docket and the violation noted was "18:1462." The motion for a temporary restraining order alleged that upon the sworn affidavit of FBI agent, John Dailey, there existed probable cause to believe that 18 U.S.C.A. § 1462 had been violated. Section 1462 makes unlawful the transportation in interstate commerce of obscene materials.³ The temporary restraining order was issued without notice on March 30, 1971 and restrained the owners of the trailer and its contents from disposing of or destroying the books and magazines for ten days or until after the hearing on the United States Attorney's motion for execution of a search warrant.

A hearing on the issuance of a search warrant was held on April 1, 1971. Counsel representing the alleged owners⁴ of the books and magazines, appellants, appeared at the hearing. Soon after the hearing began counsel for appellants orally moved to dismiss the proceedings. The essence of appellants' argument in support of their motion was that the seizure prior to an adversary hearing constituted an unconstitutional ex parte restraint in violation of the first amendment. The court denied the motion to dismiss and proceeded to hear testimony concerning the books and magazines from the Texas Public Safety officer and the FBI agent who had examined them. At the conclusion of the government's evidence, the Assistant United States Attorney invited appellants to present their witnesses. In response, appellants again moved to dismiss claiming that no expert testimony had been introduced. Appellants also asked for a continuance to furnish witnesses to show that the material was not obscene. The motions were denied. Appellants presented no witnesses and offered no evidence.

Thereafter, appellants' counsel asked if the court was going to enter a "disposition" of what the government could do with the material. The Assistant United States Attorney stated that the government planned to present the material to the first available Grand Jury which he believed would convene on April 13, 1971. The court then stated:

All right the Court will then hold this as long as they ask the Court to hold it and that will be until the time it is presented to the Grand Jury.

In its Findings of Fact and Conclusions of Law the court found probable cause to believe that the materials involved were obscene and were "shipped in interstate commerce by common carrier, in violation of 18 U.S.C.A. § 1462." The court ordered that a search warrant be issued and executed, and that the contents of the trailer be seized for "the purpose of any future criminal proceeding." The government was ordered to "retain in its possession the trailer and its contents until final disposition of this case."

Appellants' notice of appeal indicates that this appeal is taken from the district court's order "granting issuance of a search warrant entered April 1, 1971."⁵ Consideration of this case since oral argument raised for the first time a question as to this court's jurisdiction; whether an order authorizing the issuance and execution of a search warrant by a district court is a "final decision" under 28 U.S.C.A. § 1291.⁶ Our research as well as that of the parties has disclosed no reported instance where an appeal has been taken from such an order. Upon careful consideration of the principles which sustain the finality rule and the decisions which have applied it, we conclude that the order is not a final one and therefore not appealable. We are not unmindful of appellants first amendment claims; we simply do not reach them.

The generally recognized policy supporting the rule limiting appellate review to "final decisions" is the need for sound judicial administration. Limiting review to final decrees saves the expense and delay of numerous appeals in the same suit and permits the whole case and every matter in controversy to be decided in a single appeal.⁷ But the rule is not inviolable. Congress has inscribed certain exceptions,⁸ none of which is applicable here, and the judiciary has acted in very small measure to render "final" what might otherwise appear to be interlocutory decisions. The Supreme Court has deviated from the finality rule only where the adjudication appealed from was complete and independent of other litigation, or where the practical effect of the order would be irreparable if review were delayed until a subsequent appeal.⁹ The Court has weighed the competing interests of the disruption and delay caused by piecemeal litigation against the "danger of denying justice by delay."¹⁰ In cases involving criminal or potential criminal prosecutions the Court has focused particularly upon the independence vel non of the proceeding in question from the criminal prosecution itself.¹¹

In DiBella v. United States,¹² the Supreme Court sought to clarify the application of the finality doctrine in criminal cases. The Court held that a motion to suppress, even before indictment, is not appealable. The Court reasoned that an order granting or denying a motion to suppress did not fall within any class of independent proceedings that it had otherwise recognized and that to take the step of recognition would seriously disrupt the criminal process. The motion was treated by the Court as merely a step in a criminal prosecution in which there was no need for an intermediate appeal.¹³ Rights or interests which may have been violated may be protected at the subsequent trial and upon direct appeal. If no trial follows, an independent action for the return of property may be brought.¹⁴

DiBella spoke to both orders granting and denying motions to suppress. In 1968, Congress amended 18 U.S.C.A. § 3731 so as to make an order granting a motion to suppress or for the return of property appealable by the United States. The section was again amended in January 1971 making such orders appealable if made before the defendant "has been put in jeopardy." The right of the United States to appeal in no way affects our decision here. We are not confronted with a motion to suppress or a motion for the return of property, nor is the United States the appellant. Furthermore, the fact that Congress has given the United States the right to appeal in such cases does not compel the courts to grant a similar right to defendants. If a motion to suppress is granted, the United States may well have no case left and hence no future opportunity for appellate review. Where the motion is denied the defendant can gain appellate review in an appeal from the final judgment on the merits. If there is no trial, a motion for the return of property may be made and an order denying such a motion is clearly appealable. We consider DiBella and its progeny in order to ascertain the circumstances in which a pre-indictment order in a criminal case has been deemed final.

Since DiBella, the courts have not been wholly consistent in deciding when a criminal proceeding begins and hence whether a pre-indictment order is independent and appealable. Some courts have held...