DIBELLA v. UNITED STATES

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Argument of Bruce J. Terris

Chief Justice Earl Warren: Number 93, United States, Petitioner, versus Daniel J. Koenig.

Mr. Terris.

Mr. Bruce J. Terris: Mr. Chief Justice, may it please the Court.

This case is here on writ of certiorari to the United States Court of Appeals for the Fifth Circuit.

The sole issue in the case is whether the Government can appeal from an order of the District Court, granting the respondent's pre-indictment motion to suppress evidence, when the order is entered in the district other than the district of indictment and trial, the -- the motion both for the suppression of evidence and for the return of the property.

The relevant facts are the respondent was arrested by FBI agents on September 29th, 1959 in Miami, Florida and charged with the robbery of a federally insured bank in Ohio, approximately a month earlier.

The arrest was based upon a warrant which was issued in the Southern District of Ohio which was later found to be invalid and on information known to the arresting officers which was later found to constitute probable cause.

Incident to the arrest, the respondent's house was searched and large sums of money and other items were seized.

On October 9th, 1959, a final hearing was held before the United States Commissioner in the Southern District of Florida on the Ohio complaint.

On October 12, 3 days later, the respondent filed a motion for the suppression of the evidence which was seized and for its return in the Southern District of Florida.

On October 16th, four days after the filing of the motion, an indictment was returned in the Southern District of Ohio.

And subsequently on December 18th, the District Court for the Southern District of Florida granted the respondent's motion to suppress the materials seized as evidence on the ground that the search and seizure were unreasonable, even though that the officers had probable cause to make the arrest but denied respondent's motion for the return of the property.

The Court of Appeals for the Fifth Circuit dismissed the Government's appeal from the order of suppression on the ground that it was an interlocutory order in a criminal case.

In the petition for certiorari in this case, the Government contended that the decision of the court below was erroneous and that the order of the District Court was appealable.

In preparing our brief in the DiBella case, we -- we reevaluated our position to regard to the appealability of orders deciding motions to suppress generally and we've concluded that the decision of the court below in this case, dismissing the Government's appeal was correct.

I will first consider the order of the District Court as if it had been made in the district of indictment and trial instead of in the district of seizure which turned out not to be the district of indictment and trial and will contend that it would not have been appealable if it had been made in the district of indictment and trial.

I will then argue that it makes no difference that the order was entered in a district other than that of indictment and trial.

In the DiBella case, I indicate and I repeat now that we think none of the older cases, in the Perlman case, the Burdeau case, Cogen, Go-Bart which are the only cases which even bear on this subject, are holdings contrary to the Government's position.

While they tend against the Government's position and there's very little at any discussion in these cases, we do not think that they are controlling in view of the Court's more recent decisions.

In the Wallace Company case in 336 United States, this Court stated with regard to appealability, whether a motion is to be treated as independent and plenary or as merely a procedural step in a pending trial must be determined by particular circumstances.

We think this indicates that no mechanical rule should be applied and then again in the Carroll case, which is the most recent decision of this Court in this area, the Court emphasized in considering a Government appeal of an order granting a motion filed -- granting a motion to suppress filed after the indictment was returned unlike here in the DiBella where motion was filed before indictment that fragmentary appeals are not favored and “The delays in the prosecution of criminal cases are numerous and lengthy enough without sanctioning appeals that are not plainly authorized by statute.”

Justice Felix Frankfurter: Now, this one had brought to attention to the fact that in the Carroll opinions had occasion to say, I think it's not without significance in referring to the earlier case, earlier cases illustrated sometimes without inspection.

Mr. Bruce J. Terris: That's right.

Precisely, Your Honor.

Now, that -- that statement was -- has been cited -- the state -- the statement in Carroll that the earlier cases decided that motions made before indictment are -- are appealable and motions made in the district other than the district of indictment and trial are appealable.

At that state -- those statements have been cited for the proposition when numerous Courts of Appeals and in -- and in DiBella case by the petitioner for the proposition that -- that in those situations that the appeal is automatically allowed.

We -- we think however, that the Court in -- in Carroll did not decide even in dictum which there would have been such a proposition.

It merely alluded to the earlier cases and did not have to consider them because that wasn't the issue which was before the Court.

The principle which the Government is contending for in both DiBella and in this case is that orders deciding motions under Rule 41 should not be appealable unless they decide important interest of the movement which are separate from the criminal case.

Justice Potter Stewart: You make no distinction whether the motion is denied or granted?

Mr. Bruce J. Terris: That -- that's right Your Honor --

Justice Potter Stewart: Do you think (Voice Overlap) --

Mr. Bruce J. Terris: -- except for in the --

Justice Potter Stewart: (Voice Overlap)

Mr. Bruce J. Terris: There might be -- there might be a situation in which it would be different if the effect is substantially different.

For example, in this case the respondent contends that the effect of -- of granting a motion to suppress is res judicata, he doesn't use to resist, it is in res judicata but it's binding.

Justice Potter Stewart: Binding.

Mr. Bruce J. Terris: But we think that -- if that is the effect then it must be a final order, and if it's a final order then the Government can appeal.

But we think he is wrong on the proposition that is binding or res judicata.

That it is not a final order and therefore it is not appealable.

Justice Potter Stewart: One thing I have in my mind and I may be going astray but the -- quite apart from the question of whether or not this would otherwise be an appealable order in a -- the -- the right of the Government to appeal on a criminal case is very much circumscribed, that is right of the Government to appeal I am talking about.

Mr. Bruce J. Terris: In -- in a criminal case --

Justice Potter Stewart: In a criminal case.

Mr. Bruce J. Terris: The -- of course the point of an appeal here either by the defendant or by the Government is that it's not a part of the criminal case.

If you want to say that this is -- this is merely a motion in the criminal case then it's not appealable by either side.

Justice Potter Stewart: And so then certainly the Government doesn't have a right of appeal.

Mr. Bruce J. Terris: The Government doesn't -- it doesn't have a right of appeal if you consider the motion as part of the criminal case.

Justice Potter Stewart: As part of the criminal case (Voice Overlap) --

Mr. Bruce J. Terris: If it's not part of the criminal case, then the Government comes under the -- Section 1291 to the same extent I take it as the defendant.

Justice Potter Stewart: I see.

As to (Inaudible)

Justice Felix Frankfurter: I don't -- I don't follow you again.

If it's -- double jeopardy has not yet attached then why is the Government no right of appeal?

Mr. Bruce J. Terris: Well, Your Honor, in the Carroll case and in some of the cases in the Courts of Appeals, in fact in this case below, the courts have indicated that -- that Government appeals are perhaps less favored than the --

Justice Felix Frankfurter: Why is then that in the Dickinson case but I'm -- I take it to these two cases were brought here to reexamine this whole question and I don't -- it doesn't satisfy my mind to stop my thinking because in some cases where the question wasn't considered, some remarks were made.

Mr. Bruce J. Terris: Well, Your Honor --

Justice Felix Frankfurter: We are not -- we are not here canvassing a very, very important problem in the administration of criminal justice.

Mr. Bruce J. Terris: Well, our position is --

Justice Felix Frankfurter: I -- I just (Inaudible) out of having some greater strong end.

Justice Potter Stewart: Just talking about the statute, that's what I --

Mr. Bruce J. Terris: Our -- our position is that the Government and the defendant had -- have a -- have basically the same rights of appeal.

Justice Felix Frankfurter: But if the statute says its final and this doesn't make any difference (Voice Overlap) --

Mr. Bruce J. Terris: That's right.

Unknown Speaker: (Inaudible)

Justice Potter Stewart: What is the section of stat -- in the --

Mr. Bruce J. Terris: It's 28 U.S.C. --

Justice Potter Stewart: -- Title 18.

Mr. Bruce J. Terris: 1291.

Justice Potter Stewart: I'm talking about Title 18, that's --

Mr. Bruce J. Terris: 3731, you mean the --

Justice Potter Stewart: Criminal Appeals Act.

Mr. Bruce J. Terris: Criminal Appeals Act?

Justice Potter Stewart: Yes.

Was it?

Mr. Bruce J. Terris: 3731.

Justice Potter Stewart: 18 U.S.C. 3731.

Mr. Bruce J. Terris: Yes sir.

Justice Potter Stewart: Thank you.

Mr. Bruce J. Terris: I bel -- I believe its set out in a footnote in the decision of the court below in -- in this case that -- that's in the record.

Justice Felix Frankfurter: Well, this doesn't come under the criminal appeal.

Mr. Bruce J. Terris: No, no, it doesn't.

Justice Potter Stewart: Well, it -- it might if it's part and parcel of the criminal case.

I -- I guess we're (Voice Overlap) --

Mr. Bruce J. Terris: Well, we -- the Government concedes that -- that it doesn't come under if it's part of the criminal case.

Now, there's -- that was part of it.

Justice Felix Frankfurter: So being, criminal of appeals that sets forth specifically --

Mr. Bruce J. Terris: That's correct.

Justice Felix Frankfurter: -- what kind of appeal -- not only that, but the criminal appeal that deals with appeals from a District Court to this Court.

Justice Potter Stewart: And -- and also to the Court of Appeals.

Mr. Bruce J. Terris: Yes Your Honor.

Justice Felix Frankfurter: Well but --

Mr. Bruce J. Terris: And that if (Voice Overlap) --

Justice Felix Frankfurter: (Inaudible) statute as to appealability of final orders, there's no restriction as between a certain case that final orders not involved with double jeopardy arising out of or in relation to a criminal case, is there?

Is there?

Mr. Bruce J. Terris: But -- the Your Honor, the only -- if it's in the criminal case then, if it -- then -- then we think that it -- that it's not appealable -- (Inaudible) -- that's the whole basis of our argument.

Justice Felix Frankfurter: I know but -- but another question has been raised whether the -- the Government has more limited powers in a crim -- in -- in the domain of criminal law where double jeopardy isn't involved.

Now, that question is raised. Is there any basis in any legislation on that code?

Mr. Bruce J. Terris: We -- we know -- we know of none.

Justice Felix Frankfurter: Not only that but the narcotics Act of 1956 --

Mr. Bruce J. Terris: It gives a (Voice Overlap) --

Justice Felix Frankfurter: -- one may draw --

Mr. Bruce J. Terris: Yes.

Justice Felix Frankfurter: -- inferences from legislation.

The Narcotic Act of 1956 has indicated a congressional policy giving the Government more right than the defendant.

Mr. Bruce J. Terris: That's -- yes, that -- that is correct, Your Honor.

And if the -- if the District Court in the DiBella case has decided the issue the other way, the Government would've -- would've had a right of appeal under the specific provision of the Narcotics Act.

Justice Felix Frankfurter: And a report on the basis and that legislation is followed because Congress didn't like some of the law of court rulings.

Mr. Bruce J. Terris: Yes Your Honor.

Justice Felix Frankfurter: Where in fact the most emphatic not only explicit legislation, but the history behind that showing why the Government should have appealed even though the defendant may not.

Mr. Bruce J. Terris: I'd like now to consider the basic principle for which we've argued in the DiBella case and here in -- in five different situations, all involving pre-indictment motions to suppress and or seeking the return of the property.

First, we have the situation in DiBella where -- where the movement asked only with the suppression of evidence.

We think that there's no possible way that that kind of a motion could be independent of a criminal case.

The second situation is where the motion asked for the return of the items seized but the property is contraband so he's clearly not enti -- so that moving clearly isn't en -- entitled to the return.

So that in this case too we think that the motion is merely one for suppression even though it's labeled as also asking for return and the motion is not independent of the criminal case no matter when it is filed.

The third situation is where the motion asked for the return of property which may or may not be returnable to the movement even if it was illegally seized depending on the outcome of the criminal trial and I like to give an example.

For exa -- the -- the issue whether the property involved is contraband or is stolen often depends on the outcome of the criminal trial if -- in fact that's -- that's the situation here.

The money which was seized, the Government contends was stolen and therefore the movement isn't entitled -- the respondent isn't entitled to it -- to the return of this money even assuming that it was illegally seized.

So there too, in that kind of a situation we think even though the motion asked for both return and suppression, it is an -- is in essence only a motion asking for suppression and that therefore it is not independent of the criminal case.

And the fourth situation is where the motion asked both for suppression and return but the movement has an insubstantial property interest in the materials which were seized.

An example of that would be copies of documents which he doesn't -- with -- in which he has the original documents.

There's no need for him to get them back immediately.

Of course, he would be entitled to it -- to the return after trial.

We think that such -- that an order deciding that kind of a motion is not appealable since the movement's property interest is so unimportant that it -- that his plea for return does not make that portion of the motion an independent proceeding.

The last situation is where the movement asked prior to indictment again for both return and suppression and valuable property rights are involved.

Now in our brief, we suggested that that kind of a -- that that kind of a motion -- an order deciding that kind of a motion is appealable whenever it is made before indictment.

Justice Potter Stewart: If you had this kind of a case, the -- the events that potential offense was counterfeiting and a lot of money has been seized and the potential defendant as moving party has filed a motion to recover the money claiming that it wasn't counterfeit money at all.

It was considered authentic U.S. Treasury money and of course, if he were right there is no crime, is it -- would it -- at all would've been committed and if he were wrong, it would be contrabands and yet this would be the issue you say in the -- in the forthcoming criminal case.

What would the story be there?

Mr. Bruce J. Terris: Well, that's -- that's -- in our views, the situation where you cannot appeal because he is not entitled to return prior to trial even if his motion for seeking suppression is successful.

Justice Potter Stewart: But he came and said this $20,000 that I have saved out of my hard earned savings over his 20-year period.

Mr. Bruce J. Terris: He -- his plea for return can't possibly be given to him prior to trial because that's the issue, as you pointed out, which would be tried --

Justice Potter Stewart: We could assume that's the only --

Mr. Bruce J. Terris: -- in a criminal case.

Justice Potter Stewart: -- issue, (Voice Overlap).

Mr. Bruce J. Terris: That's right.

So in essence, he's asking only for suppression.

He is clearly not entitled to return.

So he -- again we think the label that he asked for return is not important.

Justice Potter Stewart: Well, he's not entitled to it if he's wrong but he's certainly -- is clearly --

Mr. Bruce J. Terris: Well, he's not entitled to it even if he's right as to the illegal seizure.

Justice Potter Stewart: Yes.

Mr. Bruce J. Terris: Anything the court --

Justice Potter Stewart: I'm also assuming -- let's say that the Government says, “Yes, we --"

Mr. Bruce J. Terris: Well, if the Government --

Justice Potter Stewart: "No, I guess --"

Mr. Bruce J. Terris: -- says we illegally seized --

Justice Potter Stewart: Then you have to give it back.

Mr. Bruce J. Terris: -- we're going to give it back to him.

Justice Potter Stewart: But not contraband, not if it's counterfeit, you don't.

Mr. Bruce J. Terris: Oh, no -- I think if that -- we're not -- will not know.

We wouldn't give it back to him --

Justice Potter Stewart: No.

Mr. Bruce J. Terris: -- until the trial but I -- but we couldn't introduce it.

Justice Potter Stewart: You couldn't introduce it (Voice Overlap) --

Mr. Bruce J. Terris: That's right.

Chief Justice Earl Warren: To take another extreme of that -- that though Mr. Terris, if the Government seized the $20,000 and then just put it in a safe deposit box and kept it there for five or six months then the man came in and says, "I want my money" and they said, “Well, we won't give it to you”.

So he goes in and -- and makes a motion.

Mr. Bruce J. Terris: (Voice Overlap) Mr. Justice Stewart's hypothetical in which there -- there is doubt whether the money is counterfeit --

Chief Justice Earl Warren: No.

Mr. Bruce J. Terris: -- or real?

Chief Justice Earl Warren: No.

I have --

Mr. Bruce J. Terris: This is real money.

Chief Justice Earl Warren: I haven't --I haven't quite finished.

I hadn't --

Mr. Bruce J. Terris: Oh, I'm sorry.

Chief Justice Earl Warren: -- finished yet.

There's no claim of any kind.

They just -- they just had a search warrant, went in and -- and got the -- got the money and -- and put it in a safety deposit box and just kept it there for five or six months with no criminal action of any -- any kind and the man made a motion for -- for a return of it.

The Government said, “Well, we -- we don't know some time we may want to prosecute this man” and the Court said, “No, you can't -- you can't hold the property on that theory.

You've got to return it, return it to him”.

Now I suppose that -- no, no, put it the other way, suppose the Court said, “Alright, you may keep it,” I suppose in that kind of a case he could appeal, couldn't he?

Mr. Bruce J. Terris: Well that -- that's the --

Chief Justice Earl Warren: (Voice Overlap) --

Mr. Bruce J. Terris: That's the classic situation --

Chief Justice Earl Warren: That's the kind (Voice Overlap) --

Mr. Bruce J. Terris: -- that we're trying to carve out --

Chief Justice Earl Warren: That's that --

Mr. Bruce J. Terris: -- so that we don't deny an appeal in that situation.

Chief Justice Earl Warren: Yes, that's what I understood you -- that's what I understood you to say.

So that's one case where before indictment, if you want to use that term, could be used to -- to support your position.

Mr. Bruce J. Terris: Precisely, Your Honor.

That -- that's the reason that we -- that we've made this distinction.

Chief Justice Earl Warren: Yes.

Mr. Bruce J. Terris: To take care particularly of that kind of a case.

Chief Justice Earl Warren: I thought so.

Mr. Bruce J. Terris: Now --

Justice Potter Stewart: What -- what issues can be raised on a Rule 41 motion?

First of all, whether or not it was illegally seized, unconstitutionally seized.

Mr. Bruce J. Terris: That's right.

Justice Potter Stewart: But secondly, how about the issue of whether or not the money is a marked money or whether it's -- it would be completely useless in any -- in any criminal -- any conceivable criminal prosecution, could that issue be tried?

Mr. Bruce J. Terris: I -- I do -- I don't think so, Your Honor.

I think that -- that if the Government says that it -- it's keeping it for trial, I -- I don't think that that --

Justice Potter Stewart: The Government doesn't have to show in what possible way it would be as -- it was evidence, do they or do they?

Mr. Bruce J. Terris: Well, I would suppose if it's so obviously has nothing to -- some of the things in the Clement case, for example, which were seized toothpaste and things like that (Voice Overlap) --

Justice Potter Stewart: Actually, he didn't waive the right to it, didn't you?

Mr. Bruce J. Terris: Pardon me?

Justice Potter Stewart: In one of these cases, I think you say --

Mr. Bruce J. Terris: That's right Your Honor.

Justice Potter Stewart: -- they were not entitled --

Mr. Bruce J. Terris: There -- there are some things I suppose that -- that couldn't possibly have anything to do with criminal case and I suppose that maybe it would be appropriate for a -- for a court prior to trial disable -- unless the Government gives some indication of wha -- what it's going to use the property for that it should be reached out.

Justice Potter Stewart: So that would be a possible issue?

Mr. Bruce J. Terris: I -- I should -- I think that's probably so.

Although, I don't think -- I don't -- I know of no case in which it has arisen.

Now, in the -- in the example which the Chief Justice suggested, the Government in its briefs in these two cases indicated that -- that an order deciding that kind of a motion is appealable as long as the motion is made before indictment.

(Inaudible) -- I'd like to suggest, however, to the Court that the Fifth Circuit has a different rule.

It -- it would make the -- the crucial date in that kind of a case the complaint in the commitment hearing.

It -- it would -- the Fifth Circuit thinks that that is the start of the criminal case for these purposes and that the kind of a motion which the Chief Justice suggested is appealable only if it's made before there's been any start really to the criminal proceeding.

I now like to turn to the particular --

Justice Felix Frankfurter: Somewhat -- apart from -- apart from whatever may be the general rules, specific situations may arise which on the basis of the specific situation, created situation of unfairness on the part of the Government in withholding claimed illegally seized property, is that true?

Mr. Bruce J. Terris: That's -- that's right, Your Honor.

It -- it's not infrequent however, to have a considerable delay not -- not so often, and in -- in cases of this type and in tax cases where there -- where there's been a -- where documents are at issue and -- are in issue may too maybe valuable.

Justice Felix Frankfurter: But when you (Voice Overlap) -- once you've gone to the question of delay in criminal prosecutions in this country, then you'll raise the whole question of great unfairness at times in not allowing appeals of interlocutory dispositions in the case of defendant who shouts his innocence to high heaven and for all one knows, maybe his innocence has -- in an ongoing date and yet he cannot appeal from any one of the crucial interlocutory motions --

Mr. Bruce J. Terris: That's right.

Justice Felix Frankfurter: -- for reasons that are now settled if anything can't be invaluable.

Once you open that door of inconvenience, near inconvenience, you (Voice Overlap) --

Mr. Bruce J. Terris: Well, we don't --

Justice Felix Frankfurter: -- undermine the whole -- the whole basis of -- of non-appealability of interlocutory proceed -- steps except where there is specific legislation (Inaudible) --

Mr. Bruce J. Terris: Well, inconvenience is involved here but in -- and --

Justice Felix Frankfurter: I'm not -- I think that's -- I'm not suggesting your argument does.

But what I'm suggesting having said that there may be special situations, I want to qualify my own statement of special situation, isn't the hardship to a potential defendant --

Mr. Bruce J. Terris: Its --

Justice Felix Frankfurter: -- that it do not --

Mr. Bruce J. Terris: It's our view though in the -- in this hypothetical which the Chief Justice suggested that --

Justice Felix Frankfurter: But I wasn't referring to that in either, I am just referring to the general -- there's always this large leeway of a particular situation taking the thing out of the command of whom -- of the general principle.

Mr. Bruce J. Terris: But I would like to make the point that the Chief Justice's hypothetical, we think that there -- if the -- there the order refusing the motion to return is a final decision.

We think that within the meaning of the statute that they're -- that we are -- that we are denying him the right to valuable property.

Now --

Chief Justice Earl Warren: Because it was not connected with a criminal -- criminal --

Mr. Bruce J. Terris: That's right because its --

Chief Justice Earl Warren: -- proceedings because there was no criminal proceeding.

Mr. Bruce J. Terris: That's right, Your Honor.

That's right.

Chief Justice Earl Warren: That's --

Justice Felix Frankfurter: All of the cases where -- where the claim is made by the question was in party here --

Mr. Bruce J. Terris: That's --

Justice Felix Frankfurter: -- that is in himself a party --

Mr. Bruce J. Terris: That's right Your Honor.

Justice Felix Frankfurter: -- after the -- a criminal party --

Mr. Bruce J. Terris: That's a -- that's another exception which of course we recognize to the kind of --

Justice Felix Frankfurter: That is taking out because it isn't -- it's unrelated to the underlying reasons of the thing.

Mr. Bruce J. Terris: Now, turning on to -- to the facts of this case in applying the principles which I've suggested, the motion here was filed after the complaint in the commitment hearing but before indictment and had asked both for suppression and for the return of property and this property included $14,000.

We would -- we would think that if the respondent had an unchallenged right to the return of this money upon a finding that it was illegally seized, then that this proceeding would've been independent of a criminal case and the defendant would have been entitled to ap -- to appeal the refusal of the Court to return his property and the Government would've been entitled to ap -- to appeal the order of the -- of the District Court too.

However, this $14,000 is – is in litigation.

It is the issue, one of the issues in the criminal case.

The Government contends that this $14,000 is part of over $30,000 stolen in the bank robbery and therefore this issue must await the criminal case.

And we think that as to this part of the motion, it is -- it is just -- it in essence asked only for suppression and not for return even though it labels -- the motion is labeled both for suppression and return.

Now, there are some other --there is some other property involved and it's listed down on pages 15 and 16 of our brief, it's quite an extensive list but most of it is -- is extremely trivial royal -- of roles of coin wrappers and all things of that nature.

Now, the most important items were a pistol, three pairs of slacks and a sport shirt.

Now, while respondent is undoubtedly entitled to the return of this property, if it was illegally seized, we think that there isn't -- he doesn't have a substantial enough property interest in these materials to make his motion to return in regard to these items independent of the criminal case.

We think in other words, that his motion is based -- is basically a motion in the independent -- in this part of the criminal case, it is basically a motion asking for suppression and not for return.

In conclusion, I would like to emphasize two -- two points, one is that if the Government is wrong in DiBella and the -- and the order of the District Court in that case is appealable then we think a fortiori the order of the District Court in this case was appealable by the Government that the only factors which are different between DiBella and this case tend to show that the order in this case was more -- was more final.

The only two different factors are that here, the movement asked for both return and for suppression.

In DiBella he asked only for suppression and here, the motion was not only prior to indictment, but it was in a -- it was in a district other than the district of indictment and trial and we think both those factors tend to make it more final of those I've emphasized.

We do not think that it was a final decision that neither order either in DiBella or in this case was appealable.

Justice Felix Frankfurter: Mr. Terris, before you move on, may I put this to you.

To my mind, these -- these two cases from -- involving these two cases is a far-reaching importance in the administration of criminal justice.

Isn't the matter as to district -- before the lower courts for great many years, I haven't gone from their cases, and I wonder if it's asking too much, you said, you agree but I just (Inaudible) not seeing you having done any.

But you -- I don't think the Government has done what I think needs to be done if you let me say so namely to make a comprehensive, present a comprehensive study as to what the lower courts have done over the years?

Why they've done it?

What discussion these cases have had or the people just made assumptions that would stand critical analysis because if there has been a uniform or an impressive rule of appealability, say for the last 50 years and before a -- of judges who have within the securities of these matters, that would -- that would make an impressive --

Mr. Bruce J. Terris: Of course I've indicated to you that there are three lines of authorities so there's no -- there's no agreement at the least.

Justice Felix Frankfurter: (Voice Overlap) there isn't any but if there is an impressive general direction that would carry a great deal of weight with me at least because the instinct of judges is sometimes better than their reasoning --

Mr. Bruce J. Terris: But --

Justice Potter Stewart: -- with most of the time.

Mr. Bruce J. Terris: Your Honor --

Justice Felix Frankfurter: But if the Government hasn't done that and I wonder if we're not entitled, at least as I can speak for myself, entitled to have that kind of exposition from the Government.

Mr. Bruce J. Terris: Your Honor, of course, we'd be glad -- we would be glad to do it if your -- the Court wishes.

I might say that certainly most of the cases are contrary to the Government's position.

We -- we do not contend the contrary.

Recently, the Court's attended away from allowing these mechanical rules of appeal, as I've indicated --

Justice Felix Frankfurter: Well if they (Voice Overlap) --

Mr. Bruce J. Terris: -- in the Fourth and Fifth Circuits.

Justice Felix Frankfurter: -- to me what kind of thought was brought to bear or wasn't there had just offhand judgment (Voice Overlap)?

Mr. Bruce J. Terris: There's a very little thought.

It's almost entirely relying on Cogen, on Burdeau and on Perlman and -- and Go-Bart which themselves had almost no discussion of the -- of these issues.

Justice Felix Frankfurter: Well, I'm -- I'm familiar with those cases and they don't help me much except --

Mr. Bruce J. Terris: Well --

Justice Felix Frankfurter: -- to say that the matter wasn't discussed.

Mr. Bruce J. Terris: The -- the Court of Appeals cases will help you no more, Your Honor.

But if -- if the Court wishes, we would be glad to set forth of all and analyze them.

Justice Felix Frankfurter: I've indicated what -- what position is to me relevant for consideration and I leave it to you to decide as one thing.

Mr. Bruce J. Terris: I'd like to leave the minute or two I have left.

Chief Justice Earl Warren: Yes, you may.

You may Mr. -- Mr. Manners.

Argument of Joseph P. Manners

Mr. Joseph P. Manners: Mr. Chief Justice, may it please the Court.

I guess the respondent in this case enjoys a rather unique position because directly, and perhaps to some extent, directly the petitioner is trying to help our cause before this Court.

However, I am now justly confused and I'm not going to rely with the briefs or notes any further and just pretend them back down the lower court's arguing the same point.

The issue was then and I hope it is now as to whether or not an order relative to a motion to suppress evidence which was filed prior to the return over the indictment and in the district different from the district of trial would be appealable.

Justice Felix Frankfurter: May I stop you to tell us --

Mr. Joseph P. Manners: Yes.

Justice Felix Frankfurter: -- what took place if anything at the time of these hearings?

Was there any -- was there any beginning of a criminal proceeding and I don't mean to use in technical terms?

Mr. Joseph P. Manners: Alright.

Justice Felix Frankfurter: Would you mind telling the statute (Voice Overlap)?

Mr. Joseph P. Manners: Let me put it this way, Mr. Justice Frankfurter, picture if you will members of this Honorable Court, the night of September 29th at 7:10 pm in the darkness of Miami, Florida, a man seated in his living room with his immediate family, a wife and two children, visiting him just for the few hours to watch the last inning of I believe the Milwaukee Dodgers and Milwaukee Braves -- Los Angeles Dodgers.

It's the crucial game.

It's the last game of the season to determine the championship of the National League who is to play in the World Series.

The last inning, his family is there and visiting him are his stepfather and his mother, when a knock happens on the door.

He answers the door walking out of his living room still looking at the television, is greeted at the doorway with handcuffs on the FBI, “You're under arrest for a bank robbery”.

He is freighted through his living room, through his family into the kitchen in ordered to sit down.

At that time, may it please this Court, they ran into the front door, they ran into the back door, they climbed in through the windows, ten agents of the FBI.

This man, at that time, I'm sure was not thinking.

Is this a civil matter?

Is this going to be an independent action when I file to take back whatever they find?

He was fighting for his freedom at that point because he's been in handcuffs and chains since September 29th, 1959.

He is still in jail.

Justice Felix Frankfurter: Now, at that time, before September 29th, has any action been taken by the -- by the Government?

Was there any --

Mr. Joseph P. Manners: Before --

Justice Felix Frankfurter: -- anything started?

Mr. Joseph P. Manners: Before that time, yes.

At 4 o'clock in the afternoon of September --

Justice Felix Frankfurter: How many legal steps taken, any legal step?

Mr. Joseph P. Manners: 4 o'clock, September 29th in the afternoon up in the Southern District of Ohio, some federal agent, FBI had sworn out a complaint before a proper United States' Commissioner.

That was teletyped down to the Miami Office, received about 4 p.m.

That was the first legal step of finding the defendant.

Chief Justice Earl Warren: A telegraphic warrant?

Mr. Joseph P. Manners: A telegraphic warrant was received by the Miami Office about 4 p.m., means that complaint obviously had to be filed between 3 or maybe 2 p.m. up in Ohio.

Chief Justice Earl Warren: Well, that would be the initiation of criminals -- a criminal case, would it not?

Mr. Joseph P. Manners: And so this Court has held as early as 1894 in Post versus United States.

This Court has gone out and stated that the start of a criminal action is very apparent when an indictment is returned and when an information is filed, but it also starts at the very least when a commissioner's warrant is issued.

Now, what is the difference of a cow as the cow here, can it ever become a bull?

Now, and I have to apologize to the Court.

I'm talking now perhaps in a lower court fashion, but I'm greatly concerned, we can't be playing around with words and semantic problems of -- of any sort when it comes to something as fierce as this, 25 years of a man's freedom at stake.

My client isn't concerned, if I have to move back and tell him, “Well, I'm sorry, this is not a criminal case our fighting to stop this evidence from being used against you.”

The law is logical.

The law has to follow from the statute of const -- from the constitution.

There must be some reason in the law.

It's as simple as that and when it comes to rights of appeals which are not inherent, in our jurisprudence none whatsoever, strictly statutory and safely guard and limit it, especially when it comes to the Government, we must follow those rules of law.

And now what happens?

In the rights to appeal by the Government, it's extremely limited when it comes to a criminal case under Title 18, whatever the proper number may be and this Court is familiar with it.

They can only appeal for motions to dismiss that have been granted against them or for judgments in arrest of judgment.

They can't appeal from a judgment of acquittal, which is the vaguest thing any defense lawyer this client has.

They can't appeal from that.

And yet, they file a decision, the most final known under the criminal law.

But under Title 28, anyone can appeal from final decisions including defendants in criminal cases but not the Government.

And this Court has so held because the criminal statutes are limiting their rights to appeal when it comes to the Government.

Now --

Chief Justice Earl Warren: Well, Mr. Manners may I --

Mr. Joseph P. Manners: Yes.

Chief Justice Earl Warren: May I ask you this?

Who are you arguing with?

Are you arguing with the Court or are you arguing with the counsel now?

Mr. Joseph P. Manners: I (Voice Overlap) --

Chief Justice Earl Warren: You won on the lower court.

You -- counsel wants you to win here.

I just like to know, who are you arguing with?

Mr. Joseph P. Manners: I apologize for being carried away, Mr. Chief Justice, if you please.

I'm not trying to argue with anyone.

It's just that I'm feeling this strongly.

I am now left without a brief or notes to argue with because of the confusion that I've heard and I -- and I don't know why in that sense because I'd like to get into a legal argument if I may, but I'm now -- I don't know which side I'm --

Chief Justice Earl Warren: You don't want to talk yourself out of a -- out of a victory, do you?

Mr. Joseph P. Manners: No, sir, Your Honor.

No, sir.

I'd do anything to keep this victory, if I may.

Chief Justice Earl Warren: Well -- well, then -- I just said that a little fatuously, but what -- what I mean is this, would you -- would you just state to us how you view the position of the Government in this case whether you agree with it or whether you don't agree with it so far as your own case is concerned?

Mr. Joseph P. Manners: So far as a non-appealability of this particular order, I'm in full accord -- almost full accord, I should say because any argument that will convince this Court that this order is not appealable I am for it.

I don't stress as much and I didn't make a mention of it in my brief about the distinguishing as to property rights.

This didn't impress me one iota and if this Court would ask me why I moved for the return of the evidence on that particular motion to suppress, my answer in a very candid form would simply be that Rule 41 (e) says you shall move for the return of the evidence and suppression.

In fact, the return is first.

I was leery so I followed the criminal rules of federal -- Federal Rules of Criminal Procedure for fear that I might have done something wrong on behalf of my client simple --

Justice John M. Harlan: (Inaudible)

Mr. Joseph P. Manners: Well, then if I may I go to the secondary argument if the Court please and that is whether or not this order in the Southern District of Miami will be binding that trial in Columbus, Ohio which I hope will happen in the near future.

Now, here in this regard if the Court please, the Government's logic which follows through accordingly, but its major premise uses a term which is not, I feel, applicable to the criminal law and that is --

Justice Felix Frankfurter: Mr. Manners, can we decide -- should we decide -- or is that actually open here?

Mr. Joseph P. Manners: The Government opened it, Your Honor.

Justice Felix Frankfurter: Pardon me?

Mr. Joseph P. Manners: The Government has opened the question.

I never raised it once.

The Court of Appeals went on its --

Justice Felix Frankfurter: I don't have to be obedient even to the Government.

Mr. Joseph P. Manners: How I wish you weren't then.

But just --

Justice Felix Frankfurter: But merely the question here is -- the problem that is raised is the problem that will arise at trial, wouldn't it?

Mr. Joseph P. Manners: Yes, Your Honor.

Justice Felix Frankfurter: And there'll be a ruling at that trial.

Mr. Joseph P. Manners: Yes, Your Honor.

Justice Felix Frankfurter: And the ruling may be for you or against you.

If it's against you and your client is acquitted, then you're just as well (Inaudible) good for you.

If the ruling is -- is for you and your crime is -- if the client in ruling is against you, then the client is convicted then you better acclaim to address simple error.

Justice Potter Stewart: You agree with that at all Mr. Manners, do you?

You -- you -- it's your position that there can't be a new ruling at the trial.

That the trial judge will be bound by this ruling, is that correct?

Justice Felix Frankfurter: But I'm assuming the judge doesn't agree with that and therefore there's a ruling against you.

Mr. Joseph P. Manners: Mr. Justice Stewart, I'll be honest with you, I'm taking Mr. Justice Frankfurter's view on this really.

I was afraid not to argue the point because it had been raised and brought and suggested by the Government here.

I'm inclined to feel the trial court first decide that.

I'd rather hope that doesn't have to but I'm being very candid again.

Justice Potter Stewart: Well, I understood your brief and I probably apparently misunderstood to say that this ruling in Florida will be completely binding on the judge in the Southern District of New York when this case is tried, this criminal case is tried.

Mr. Joseph P. Manners: Except Mr. Justice Stewart, perhaps I wasn't that explicit.

I only raise that point because of the petitioner's brief in this case.

I felt that the only issue that should have been here before this Court is whether or not that order was appealable.

Justice Felix Frankfurter: The only way that we can now pass on the question that -- that is before us that you've just made, that is not in this Court is on the assumption that we can't disperse the question of appealability without -- we can't decide that without deciding the res judicata.

For myself, I don't see that.

Chief Justice Earl Warren: In other words, if we agree with you and the Government that this order is not appealable then the order -- there's nothing else before us, is it?

Mr. Joseph P. Manners: I'm inclined to feel that way, Mr. Chief Justice, I really am.

It was dictum in the Circuit Court, the Fifth Circuit Court of Appeals.

The petitioner stressed that for the simple reason he's saying that if it's final, now, we want you to take the DiBella view -- he was using these -- both sides of that sword that he was swinging around here and when he said that, of course I had to say something and we have an argument before this Court just to protect our rights.

But, I feel like I've just heard now mentioned by the various justices that this Court should only consider whether or not that order is appealable.

Gentlemen --

Justice Felix Frankfurter: And he doesn't practically withdraw --

Justice Potter Stewart: I mean in order to consider that question you have to consider the nature and scope and effect of the order.

Mr. Joseph P. Manners: Thank you.

Now, Mr. Chief Justice --

Mr. Justice Stewart, oh yes sir.

The law in this regard has been settled for a long time and that is exactly what this Court has said in a few limited cases that are on this point that whether a motion is independent and plenary or whether it's part of a criminal case, not trial but case, would depend upon it's own particular characteristics.

Now, this is the law as pronounced by this bench.

And this is the law that's followed by every circuit in this land.

Justice Felix Frankfurter: And if we agree with Mr. Terris and say there are three --

Mr. Joseph P. Manners: No.

Justice Felix Frankfurter: -- separate views.

Mr. Joseph P. Manners: I do not disagree, sir if I may continue?

The only disagreement comes in when this Court, and I -- I apologize to this Court, I'm not trying in any way to say anything to disparage you, is that whenever this general proposition of law has been phrased in two cases in particular, the Cogen and the Carroll case, as examples of the idea and maybe establishing a standard arbitrarily because there's never any rational or reasoning for it, the Court has gone on to say in its dictum that as an example of this is where a motion is filed prior to indictment or in a district other than in district of trial.

Now, we have disagreement in the Circuits.

The Second Circuit follows both the where and the when examples, both of them.

The Fifth Circuit uses the where and the when but doesn't it establish it as an arbitrary standard.

It uses as one of the practical factors to be considered, that's the Fifth Circuit.

The Fourth Circuit disagrees with this Court as establishing a standard of when.

They don't care when it's filed.

It's up with everything else, that's the Fourth Circuit.

The District of Columbia has now agreed with that position of when, in other words, we look at everything to see when it's concerned and not prior to an indictment.

Justice Felix Frankfurter: Am I to infer that that's some reason if there's uniformity of you and the Circuit?

Mr. Joseph P. Manners: There is uniformity to the sense of dis -- disagreement.

I'm trying to make it brief, Mr. Justice Frankfurt if you please?

The majority of the Circuits do hold that as to prior to indictment rule or standard set, they follow it prior to indictment is appealable.

The Fifth says no, the Fourth says no, the District of Columbia says no.

The Second Circuit not only says no to that.

They also say if it's in a district other than the district of trial will be appealable.

That's the only Circuit that says that.

The Fifth disagrees and that's about generally where the law stands today.

But in none of these cases if Your Honor pleases are any rational or reasoning.

All the Circuit Court cases rely on Cogen and Carroll and the Wallace & Tiernan Company case where --

Justice Charles E. Whittaker: Mr. Manners, may I ask you please?

Under Rule 41 (e) was your court, the Florida court a proper forum in which to file this motion to suppress?

Mr. Joseph P. Manners: Well, the Rule itself says that the motion shall be filed in the district of seizure and then it goes on and reads a lot and in the last line of that paragraph says or it maybe filed in the district of trial.

Justice Charles E. Whittaker: Well, it was a proper forum in which to file this proceeding, I assumed, was it?

Mr. Joseph P. Manners: That's correct.

Justice Charles E. Whittaker: Alright.

Now, the Court ruled on all the relief prayed, didn't it?

Mr. Joseph P. Manners: It ruled on it.

Yes, Your Honor.

Justice Charles E. Whittaker: It granted it --

Mr. Joseph P. Manners: In part.

Justice Charles E. Whittaker: -- is it not?

Mr. Joseph P. Manners: They granted it in part.

Justice Charles E. Whittaker: Part.

Is there any further order to be made by that Court or is that the only judgment it's to render?

Mr. Joseph P. Manners: I would say that that's the last order the Court has granted or rendered.

Justice Charles E. Whittaker: Well, of course, it's the last order that has rendered but is it --

Mr. Joseph P. Manners: Will render.

Justice Charles E. Whittaker: -- to render anymore?

Is it through with the case?

Mr. Joseph P. Manners: I feel it is through with the case.

Justice Charles E. Whittaker: Now then, is it a judgment of that Court?

Mr. Joseph P. Manners: It's a judgment.

Justice Charles E. Whittaker: If it's to ever be appealed, it must be appealed now, then isn't it true?

Mr. Joseph P. Manners: That is correct.

If it could be appealed it should be appealed now, but Mr. Justice Whittaker if I may, if because you want to make it a final judgment does that mean that all final judgments are appealable because they are final judgments?

Now, the term final judgment is used under Title 28 of the rights to appeal statute, but a final judgment of acquittal is a final judgment as such and yet the Government could never appeal from that final judgment because it's found under Title 18.

If this is a criminal case from the word “go,” whenever it is a criminal case and this motion was filed pursuant to the criminal case, if this Court please, it still remains a part of the criminal case considering the purpose of why this motion was filed and that is to stop that evidence from going in to find this man guilty to give him 25 years for an alleged bank robbery.

Now, if the Court please, Mr. Justice Frankfurter brought it up earlier, Congress feels the right to the Government to appeal in criminal case is extremely limited.

And they enacted the Narcotics Control Act in 1956 giving the right to the Government to appeal in narcotics cases on motions to suppress.

Why because Congress felt and still does believe that the Government cannot appeal for motions granting -- motions to suppress from what is granting motions to suppress.

And if I may, I would like to just read a very short paragraph from the congressional record of the Senate, April 30th, 1956 at page 7284 wherein Senator Daniel while introducing the Narcotics Control Act Bill explained why he thought the Government should have a right to appeal and this is his words -- these are his words.

“The Bill would give the Government the right to appeal from lower court orders suppressing evidence in narcotics cases.

The Subcommittee found, during its investigation, that the liberal grant of motions to suppress the evidence has lost the Government many good cases against flagrant narcotic violators.

The Government now has no right of appeal if it believes the suppression of evidence was an error.”

Now, Congress went a little further under a criminal situation and said when it comes to narcotics, Government, you may appeal.

Congress is of the belief that the Government cannot appeal from orders granting motions to suppress evidence and here it is right from the congressional record.

Your Honor please, if there's nothing further come to you for this Court related to this particular question or questions, I respectfully submit that the Court of Appeals for the Fifth Circuit should be affirmed.

Justice Felix Frankfurter: Mr. Manners, just as a footnote to what you've just said of Senator Daniel, I think it's relevant to say that this provision for appealability from motions granting suppression in narcotics cases was part of a general narcotics bill for stiffening the Government's hands and not (Inaudible) whether they should exhibit it, but if it was part of a large bill with reference to this particular kind -- class of prosecution.

Mr. Joseph P. Manners: That is correct.

Justice Felix Frankfurter: Is that right?

Justice Potter Stewart: Mr. Manners, of this -- the man must do it, what you've been arguing that somewhere in here isn't the -- isn't there a copy or a reference to what the teletype said that was sent down from Ohio to Florida?

Mr. Joseph P. Manners: I do not have -- copied in whole in that record except --

Justice Potter Stewart: I thought I remembered seeing it somewhere and I can't find it.

Mr. Joseph P. Manners: In the transcript of record which should be before this Court as to all the testimony taken, it does appear.

Justice Potter Stewart: We don't have it, but I thought it was somewhere -- but I'm now just seeing this.

Mr. Joseph P. Manners: I refer to the last -- next to the last line of that telegraphic communication.

Justice Potter Stewart: Where now -- where on your -- where, in the brief?

Mr. Joseph P. Manners: In my brief --

Justice Potter Stewart: Where, on what page?

Mr. Joseph P. Manners: -- statement of the case which is the page 3 or 4 --

Justice Potter Stewart: (Inaudible)

Mr. Joseph P. Manners: -- which says that you shall serve this search warrant or this arrest warrant ideal situation for search and that's why they bring 10 agents in to make a little arrest.

Justice John M. Harlan: (Inaudible)

Mr. Joseph P. Manners: And I forgot to mention that line was repeated twice.

Thank you, Your Honor.

Chief Justice Earl Warren: Mr. Terris.

Rebuttal of Bruce J. Terris

Mr. Bruce J. Terris: Your Honor, the -- I like to repeat that the Government feels that is the same right of appeal under Section 1291 that -- that private individuals do.

The Narcotics Control Act special provision deals with government appeals in the criminal case.

1291 in our view deals only with appeals that are not in the criminal case and that's in -- and -- and therefore, we think neither defendants nor the Government can appeal, assuming whether non-narcotics case unless they come under 1291 and that --

Justice Potter Stewart: Rule 41 is one of that rules of criminal procedures.

It seems to me that --

Mr. Bruce J. Terris: That's right.

Justice Potter Stewart: -- my definition is in a criminal case.

And if you're in a criminal case then you come under the Criminal Appeals Act for the Government.

Mr. Bruce J. Terris: Well, Your Honor, insofar as you're asking for return, we think -- we think that Rule 41 didn't -- didn't deprive the basic right of individuals to seek the return at their own (Voice Overlap) --

Justice Potter Stewart: To bring an ordinary court action, I suppose that's true.

Mr. Bruce J. Terris: Well, and -- and because it's labeled under 41, we don't think makes any -- makes any particular difference.

I'd like to -- I'd like to turn to the -- whether the issue of res judicata or the binding nature however you want to label it, is before the Court.

We think it is because if the order is final or as Mr. Manners said to the Mr. Justice Whittaker that this is a final judgment, well then it's a final decision and of course it's appealable, that's what the -- that's what the statute explicitly says.

Justice Felix Frankfurter: But it -- it's finality for purposes of an appeal necessarily equal to res judicata.

Mr. Bruce J. Terris: Well --

Justice Felix Frankfurter: I don't understand that.

Mr. Bruce J. Terris: I -- I have two answers.

First of all --

Justice Felix Frankfurter: I don't understand that.

Mr. Bruce J. Terris: -- this Court has itself indicated that there is a very, very post connection between the two and that is in the Wallace Company case.

It -- in considering a res judicata problem it said that the problem was essentially the same as for appealability.

The statement of judgments says it's basically the same issue, but Your Honor going beyond that, we think that even if -- that even if this order is appealable, final for that purpose, it may not be final for purposes of res judicata or on -- or however you want to label it.

The converse though is not true.

We think if it is final for purposes of res judicata that it is automatically appealable.

In other words, the standards insofar as they -- as they are different allow -- would allow appealability while not making the order absolutely binding on the trial court.

Justice Felix Frankfurter: That is my whole -- that is my whole point.

Mr. Bruce J. Terris: Well --

Justice Felix Frankfurter: You may have appealability not as res judicata.

Mr. Bruce J. Terris: Well, that -- that's quite correct, Your Honor.

The -- the reason the Government argued this issue was to en -- ensure that the -- that in a later case, it would not be held that this order was absolutely binding in the trial court and yet in this case, have a decision that the order was not appealable.

We think that those two propositions cannot possibly fit together.

Justice Charles E. Whittaker: (Inaudible)

Mr. Bruce J. Terris: Well, he does Your Honor, but he --

Justice Charles E. Whittaker: (Inaudible)

Mr. Bruce J. Terris: Except for his -- because -- except for his stand -- he's going to contend in the trial court that it's absolutely binding.

Justice Charles E. Whittaker: Well, then would you have to (Inaudible)

Mr. Bruce J. Terris: We -- we do Your Honor and the court -- and if we all --

Justice John M. Harlan: (Inaudible)

Mr. Bruce J. Terris: Well your -- we want him -- we want to make sure that the Court does not consider this issue without considering the -- the other -- the possible rami -- ramifications of the order by the District Court.

Justice Felix Frankfurter: Don't you think he had -- not taken in this (Inaudible)?

Mr. Bruce J. Terris: Thank you Your Honor.

Print this transcript Transcript: 

Argument of Jerome Lewis

Chief Justice Earl Warren: Number 21, Mario Dibella, Petitioner, versus United States.

Mr. Lewis.

Mr. Jerome Lewis: Mr. Chief Justice and may it please the Court.

This is a search and seizure case which is before this Court on certiorari to the Second Circuit.

The lower court affirmed an order of the District Court which denied a motion to suppress which had been made prior to the filing of the indictment.

Now, every search and seizure case is decided upon its own particular facts, more particularly, the total atmosphere of the case.

The conduct of arresting officer's prior to and at the time of the arrest must be taken in consideration to determine the reasonableness of the search.

Now, the facts in our case are rather unusual.

Originally, an application for a search warrant was denied.

The petitioner was arrested in his apartment in the evening on a five months old invalid warrant of arrest and then a search was conducted as an instance thereto.

The court below --

Chief Justice Earl Warren: What was the invalidity of the warrant?

Mr. Jerome Lewis: That the complaint did not state sufficient facts to constitute probable cause.

The Court of Appeals so-held and the government does not contest it.

The court below held that since the arresting officer had reasonable grounds to believe that there was a violation of the narcotics law, therefore, under the Narcotic Control Act, the arrest was lawful and the search, as an incident thereto, was reasonable.

However, I respectfully submit to Your Honors that if the judgment of the lower court be affirmed, the narcotics agents can largely ignore the Fourth Amendment.

They can enter a suspect's home irrespective of the time of night or day upon reasonable ground to believe that a suspect had committed a crime no matter when the crime was committed.

In our particular case, it was six months before the arrest was made.

And, in the absence of special and necessitous circumstances, to whi -- more namely, that the contraband was going to be destroyed or that the suspect was fleeing or likely to flee and also taking into consideration the fact that this was a private dwelling and not a movable vehicle.

And, where it clearly appears, as in our case, that the narcotics agents had more than ample time to obtain a search warrant, six months, there is no evidence adduced by the government that the agents, at the time or prior to the arrest, had reasonable ground to believe that the petitioner was committing a crime nor did they see him commit a crime.

This would permit, in effect, the arresting officer to bypass the magistrate to become the judicial officer, the arresting officer, and the one conducting the search, and I most respectfully submit to Your Honors that this would be a dangerous amalgamation of power.

Now, Congress, in enacting the Narcotic Control Act, was particularly concerned about those emergent circumstances where, if the agent had to obtain a warrant, the suspect would flee or the contraband would be destroyed.

And, as we read the remarks by the senators and the congressmen concerning this particular bit of legislation and the reports of the various committees, that's what they were concerned about.

They didn't want to put the narcotics agents in a select class above and distinct and apart from all other agents, but they recognize it and I recognize it, too, that if they -- if an agent had to go to a magistrate when a man was hawking his narcotics on the street, of course, it would be absurd and ridiculous.

By the time they got back, the narcotic trafficker would disappear, the contraband would be destroyed.

But, it is only in those emergent circumstances that this legislation was enacted.

Those circumstances are not present in our case.

We have a very, very unusual situation.

At the time of the argument, the government did not submit one affidavit from any of the arresting officers to justify their entrance into this man's apartment.

United States Attorney, the assistant did submit an affidavit, which he candidly admit it was based upon information and belief in which he says "we saw the man seated in his house in his living room at 8:50 in the evening and we went inside and we arrested him under this whole invalid warrant and then we conducted a search."

As noted by Judge Waterman in his dissenting opinion, there is no case in this Court upholding the search of a home by officers having neither an arrest warrant nor a search warrant.

And, in the Roy Jones case, 357 United States, the government, for the first time, contended that agents had authority under federal law to enter a house, make an arrest based upon probable cause, and then to seize contraband that was visible.

However, this Court said these contentions would confront us with a grave constitutional question, namely, whether forceful nighttime entry into a dwelling to arrest a person reasonably believed to be within there, upon probable cause, that he had committed a felony under circumstances where no reason appears why arrest -- an arrest warrant could not have been obtained is consistent with the Fourth Amendment.

However, this issue was not determined because, from the testimony, it was clearly apparent that the arrest was but a mere pretext to make the search.

And so, in our case, it is our contention, too, that this whole invalid warrant that was used was but a mere pretext to make the search.

The government concedes, in its brief, that the petitioner was under close surveillance immediately proceeding, during, and after the narcotics transaction.

It further admits in its brief that, no doubt, the agents did controvert a search of the premises for narcotics as an incident to petitioner's arrest if he were arrested in his home.

This man was under surveillance for a period of six months.

The agents undoubtedly could've arrested him at any time outside of his dwelling, but they knew that if they arrested him on the sidewalk in front of his house, they could not go into his apartment and make a search.

They knew they could not obtain a search warrant because, during the entire five months period that they have the invalid warrant of arrest, no incriminating factors appeared.

Now, a search warrant had already been denied by the United States Commissioner.

So, therefore, they took the bull by the horns and they said, "Well, if we're going to make the search, we're going to use this warrant that we have.

We're going to go into the apartment, arrest this man on that warrant, and then we're going to conduct the search."

And, we further contend that a warrant with arrest is no different than arrest under a warrant, both must be executed within a reasonable period of time and the six months waiting period is not a reasonable period of time.

Of course, the government has the right to wait for certain circumstance to develop in order to spring the trap, as we said in the Robinowitz case, but that doesn't give them the right to wait month after month after month when no incriminating factors appear.

Justice Charles E. Whittaker: Is that an issue up here?

I thought the Court of Appeals had held the arrest warrant invalid for defects in its issuance.

Mr. Jerome Lewis: Yes, sir.

Justice Charles E. Whittaker: And held that the search -- they upheld to search on the ground that there was probable ca -- the arrest, rather, upon the ground that there was probable cause to make the arrest.

Mr. Jerome Lewis: I submit to you, Mr. Justice Whittaker, that the arrest was unlawful because it was a stale arrest and, therefore, any search as an incident to an unlawful stale arrest is, in effect, unlawful and not permissible.

And, that is what Judge Waterman stated in his opinion, that the government can't wait six months on a warrant with arrest and to go into a man's home and then make an arrest.

He said that was a stale arrest and an unlawful arrest and the fact that you can have reasonable grounds to believe that a crime was committed, you cannot wait indefinitely.

And, my research and Judge Waterman's research also, we have found no case where more than a month elapsed that an arrest, under those circumstances, were held to be justifiable.

In effect -- in fact, most of the cases hold that the government cannot hold back an arrest with the mere expectation and hope that, certainly, some criminal activities may come into the -- come into being.

They waited six months here and, without any other incriminating factors, they went into this man's home.

Now, our Constitution says that a warrant must be executed within a reasonable period of time.

We submit, a warrant with arrest is in the same category.

Congress, by giving the agents the right to make a warrantless arrest, certainly did not carve out by statute the necessity or a greater liberality than tho -- than we have under our Constitution and I say that, if under a warrant of arrest an execution must be within a reasonable time and six months is not, then a warrantless arrest falls into the same category and it, therefore, follows that since this arrest, assuming they had reasonable grounds, of course which we deny, then this arrest was stale and unlawful and any search as an incident to a stale arrest must of course, therefore, be unlawful.

Now, it is our further contention that the agents did not have probable cause to arrest the petitioner.

Back in October 1958, Agents Monaghan and Costa from the Federal Narcotics Bureau submitted two affidavits in support of their application for a search warrant.

The search warrant was denied by the United States Commissioner.

In Monaghan's affidavit, he said that he met one Panzarella in August of 1958.

They had some discussion about purchasing narcotics.

Panzarella said, "I'm going to call up my connection.

I'll let you know."

He made a phone call, came back to Monaghan, they went from Manhattan to the County of Queens, Monaghan saw Panzarella go into a green Chrysler car which was owned by the petitioner, Pan -- Di Bella.

Panzarella, then, emerged from the car and gave an envelope containing heroin to the agent.

The same process was repeated in September of 1958 but this time, in addition, Panzarella is alleged to have said to the agent "Di Bella is my source of supply."

Now, Agent Costa says that he had Di Bella under observation.

He saw Panzarella enter the car.

He didn't see anything pass between the two of them.

He saw them in the car and, later, he saw Panzarella leave the car and joined Agent Monaghan.

He was familiar with this alleged conversation because Monaghan told him that Panzarella had said that Di Bella was his source of supply.

Now, the lower court held that probable cause existed and cited the Jones case, the Cecil Jones case in 362 U.S.

Now, Judge Waterman, in his dissenting opinion, believed that the facts in this case were even weaker than in the Henry case.

Well, he stated that, in the Jones case, the officer, a detective by the name of Didone stated that he had received information from this informer, that this man was a reliable informant, and that he had received reliable information from him prior thereto, that the defendants or the suspects were narcotic addicts and that the detective had received reliable information from other reliable resources.

But, in our case, Panzarella was not a reliable informant.

He had never given information to the federal agents before.

There is no evidence that Di Bella was a narcotics user and there was no further evidence and information given by any other reliable source that Di Bella was involved in narcotics.

Now, if I remember correctly, in the Cecil Jones case, it was said that of all the detective could go by was the fact that he had been told that the informant had purchased narcotics from the defendant.

That would not be enough.

There must be corroborating factors to sustain the information given by the informant, and Judge Waterman argued in his opinion that the fact that two men are seen in an automobile and nothing is passed between the two of them is not the same type of corroboration that this Court held was valid in the Cecil Jones case.

And so, I submit to Your Honor, assuming arguendo now that there was reasonable for grounds for this agent to enter a man's home six months after an alleged crime had been committed, in the absence of any special necessitous circumstances, just merely seeing a man seated in his living room not knowing that he had contraband there, not knowing that he was going to flee, where they could've arrested him at any time they wanted but, of course, knowing that if they arrested him outside of his home, they couldn't go into his home and obtain a warrant, where the facts are just like in this Roy Jones case and in the Lefkowitz case that they were using it merely as a pretext.

They didn't want to arrest this man.

They could've done it at any time they wanted to, but they weren't until they get into his apartment and then to arrest him and make a search as an incident thereto.

If that is permitted, I will say -- I say most deferentially to Your Honors that a narcotics agent will never have to obtain a search warrant.

He'll never have to obtain a warrant of arrest because an arrest under probable cause, under the Narcotics Control Act, then would be equivalent to a general search warrant.

He could bypass the Magistrate with impunity.

He becomes a law unto himself.

He can enter a man's home any time that he wants, no matter when alleged crime was committed in the night, 2:00 in the morning, rouse him out of bed and make an arrest then conduct the search.

Certainly, our lawmakers never contemplated that when they enacted the Narcotics Control Act which was strictly confined to those emergent circumstances where if the agents didn't act with dispatch and under the exigencies that existed, why, the narcotic trafficker would flee or the contraband would be destroyed.

And, we haven't -- we do not have that in this particular case and I say, to permit such unparalleled power to be given to narcotics agents would be a dangerous precedent and an emasculation of the Fourth Amendment.

Now, Your Honors, I have not said one word about the appeal of penalty question.

I believe it's not properly before this Court because the government is asking affirmative relief that the case be remanded to the Court of Appeals with directions that that portion of it be reversed consenting the appealability of the order.

I say that, since the government wants affirmative relief, they should have cross-petitioned for that relief, and I'm not arguing at this time but, if Your Honors believe that that point should be argued, I have reserved approximately 10 minutes of my time to counter any arguments by the prosecutor -- by the government.

Thank you.

Chief Justice Earl Warren: Mr. Terris.

Argument of Bruce J. Terris

Mr. Bruce J. Terris: Mr. Chief Justice and may it please the Court.

Petitioner claims that his arrest in the subsequent search and seizure were invalid because they were in violation of the Fourth Amendment.

The government has two answers to petitioner's contention.

Our first answer, and we believe it is conclusive, is that the order of the District Court which denied the petitioner's motion to suppress is not appealable and, second, we believe on the merits that the arrest search and seizure under the applicable decisions of this Court were valid.

I intend, first, to deal with the issue of appealability.

Justice Felix Frankfurter: Could you first deal --

Mr. Bruce J. Terris: And then --

Justice Felix Frankfurter: Could you first deal with Mr. Lewis' point?

Mr. Bruce J. Terris: I will --

Justice Felix Frankfurter: It is open to you to deal with it.

Mr. Bruce J. Terris: I will, Your Honor.

I'm going to deal with, first, his threshold contention that we cannot raise the issue of appealability, then appealability, and then the substantive issues of the search and seizure insofar as I have the time to deal with several contentions which the petitioner has made in that regard.

Petitioner's threshold contention is that the government can't issue -- can't argue in this Court that the order of the District Court was appealable -- was not appealable because the government did not petition for writ of certiorari and his reasoning is that the government is, in effect, seeking to overturn a portion of the judgment below, that portion which held that the order of the District Court was appealable to the Court of Appeals.

And, we think that petitioner's contention in this regard is clearly wrong under the decisions of this Court, that a party could always argue the lack of jurisdiction of the court in which the case is or of any court below, and this Court has repeatedly held that this Court and other federal courts can, and in fact they must, raise questions of jurisdiction on their own motion even when neither party raises the issue.

Now, none of these cases have been cited by the government in its brief because we didn't think that petitioner would even contest our right to raise the issue of appealability in this Court.

Perhaps, the leading case in this -- on this issue is Railway Company versus Swan and that's in 111 United States 379.

There, the court states that "the rule springing for the nature and limited the judicial power of the United States is inflexible and without exception which requires this Court of its own motion to deny its own jurisdiction and, in the exercise of its appellate power that of all other courts of the United States on every writ of error or appeal, the first and fundamental question --

Justice Potter Stewart: Where are you quoting from?

Mr. Bruce J. Terris: I'm quoting from Railway Company versus Swan, Your Honor, at 111 United States 379.

On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first, of this Court and then of the court from which the record comes and it -- and this Court has held that the question of appealability to the Court of Appeals was jurisdictional in this sense.

There -- that, in the sense that this Court must consider on its own motion whether the case was appealable to the Court of Appeals in a series of cases, in Stratton versus the Railway Company in 282 United States, in Shanferoke Corporation versus Westchester Corporation in 293 U.S., in the Storer Broadcasting Company case only recently in 351 United States.

And, therefore, I'm now going to turn to the substantive issue whether the District Court's order was in fact appealable and the government submits that it was not.

The petitioner moved to suppress in any criminal proceeding the evidence which was seized at the time of his arrest.

We emphasize that he did not move, even incidentally, for the return of any property which was seized.

The motion was filed by the petitioner after the complaint have been made against him, after he was arraigned, waived preliminary examination, released on bail, and bound over for action by the grand jury.

The motion was filed before indictment but the District Court's order denying the motion was decided after the indictment had been returned.

We believe that, in these circumstances, that the order of the District Court was part of the criminal case and that it was, therefore, interlocutory, that it was not a final determination of an independent proceeding.

And, therefore, the government submits that the order was not appealable under 28 U.S.C. 1291 which gives the Court of Appeals jurisdiction only over final decisions of the District Courts.

Now, it might appear that it was in the interest of the prosecution generally, that the government take a broad view of appealability for an appeal before trial is the only way that the government can obtain review of orders deciding motions to suppress.

If an order granting a pretrial motion to suppress is not appealable and the trial court does not overturn this order, the government will never have an opportunity to obtain appellate review since, of course, if the defendant is acquitted the government cannot appeal.

On the other hand, if the motion to suppress is denied, if the trial court admits the evidence, the defendant of course could obtain appellate review of this order claiming that the evidence which was admitted against him and which led, in part, to his conviction was illegally obtained.

Nevertheless, it is the government's position that it is in the interest of criminal justice that appeal be allowed only from orders which, in a realistic and practical sense, are independent of the main criminal case.

We do not think that interlocutory appeals, either by the government or by defendants, should be encouraged.

A broad rule, we think, of apealability would mean a considerable delay in the already too lengthy time, perhaps, needed to try criminal cases and such delay would seriously interfere with the proper administration of criminal justice.

We think it is clearly of great importance that when an alleged criminal has been arrested that the trial be conducted as soon as possible after the events on which the allegations are based.

This Court has held that the appeal of the tentative or incomplete decisions, particularly in criminal cases, is incompatible with the fair and orderly administration of justice.

In the Cobbledick case in 309 United States, the Court said that "Congress, from the very beginning has, by forbidding piecemeal disposition on appeal of what, for practical purposes, is a single controversy, set itself against enfeebling judicial administration.

Encouragement of delay is fatal to the devin -- to the vindication of the criminal law.

The correctness of a trial court's rejection, even of a constitutional claim made by the accused in the process of prosecution, must await his conviction before its reconsideration by an appellate tribunal.

We submit that this standard should be applied in determining whether an order deciding a motion to suppress or any other order, for that matter, is -- as the Cobbledick case states, is appealable.

It's as the Cobbledick case states, whether the order is, for practical purposes, part of the criminal case.

Justice Charles E. Whittaker: Is there a difference if the motion to suppress is instituted, filed in advance of indictment over the situation existing when it filed after indictment?

Mr. Bruce J. Terris: We think, in general, there is no difference, Your Honor.

We think there may be a situation in which there is a difference, that is if the motion seeks to return a valuable property, that issue might be con -- in fact, we are willing to agree, is independent of the criminal case.

It becomes -- at least, if it comes prior to the complaint and arraignment, if it comes between complaint and arraignment, I think that's debatable whether that's part of the criminal case.

This motion doesn't involve, however, any valuable property.

It involves narcotics and it asked only for suppression.

That's the only relief asked, and we think that can't have any separate effect from the criminal case.

That very essence goes to the admission of evidence at a criminal case.

Justice Charles E. Whittaker: Well, isn't it Rule 41 that gives the person from whom property has been taken the right to institute a proceeding in a federal district court to regain it?

Mr. Bruce J. Terris: That's right, Your Honor.

Justice Charles E. Whittaker: Well, now, haven't we held in the Cogen case, the Perlman case, and the Burdeau case that if the proceeding is instituted in advance of indictment, it's a separate suit and the order entered in that suit is a final and reputable one?

Mr. Bruce J. Terris: Your Honor, I should -- I'd like to deal with those three cases.

Cogen says, and we admit, that the dictum in Cogen is contrary to the government's position.

It is dictum.

However, it is not the issue that was before the Court in Cogen.

There, the motion was after indictment and, of course, both of them -- both petitioner and the government agree that if this motion had been made after indictment that it would not have been -- that the order deciding it would not have been appealable.

Now, as to Bur -- the Burdeau case, there was no discussion there.

We admit that that is contrary to the government's position if one ignores the difference between motions for return and motions for suppression.

The property which was involved in that case were papers and other documents which, at least on the face of it, were of value to the defendant and, therefore, we would agree under the standard we're suggesting in this case to the Court that that motion -- that that order deciding the motion was appealable prior to trial.

Now, as to Perlman, there, too, the documents -- there were documents involved but it w -- but that decision is, to some extent inconsistent with the view we are taking since it is admitted -- it was admitted in Perlman that movement was not entitled to the return of the d -- of the papers.

He had given the papers to the court to be impounded -- in a civil proceeding.

Therefore, his motion was, in essence, a motion which said that the papers couldn't go out of the hands of the court in the civil proceeding.

They couldn't be used by the government but we think, essentially, what was decided there was that it -- when there's a motion -- when there -- when the papers involved return from the government, the government has no right to the papers, but a motion prior to indictment is appealable.

Now, we also admit that none of these cases really draw the distinction which we are drawing between motions to return as to papers or other valuable property in motions asking only suppression.

This distinction has not been in the cases.

It was left open in the Carroll case.

There's a footnote in the Carroll case saying that the Court was not deciding whether there was a distinction between motions seeking return and motions merely to suppress.

Justice Felix Frankfurter: Mr. Terris, the Court of Appeals cited half-a-dozen cases in the Second Circuit indicating their practice to be to allow appealability -- to recognize appealability.

What is the court law in the lower -- in the other circuits, Mr. Terris?

Mr. Bruce J. Terris: That there are really three views.

The Second Circuit view and it's -- a number -- as Your Honor points out it's been expressed in a number of cases, is that any motion prior to indictment, the order deciding that motion is appealable.

Now, there are other circuits, including the District of Columbia, which say that --

Justice Felix Frankfurter: These are all cases where the motion to suppress is made by an indicated defendant in a prospective criminal trial.

Mr. Bruce J. Terris: That many of the cases has already been an indictment by the time the motion is decided, that's --

Justice Felix Frankfurter: But they --

Mr. Bruce J. Terris: That's right.

Justice Felix Frankfurter: But, the generalizations covered motions not by a third party --

Mr. Bruce J. Terris: That's right.

Justice Felix Frankfurter: Perspective witness, but by the potential defendant in the criminal prosecution.

Mr. Bruce J. Terris: Precisely, Your Honor.

Justice Felix Frankfurter: Is that right?

Mr. Bruce J. Terris: Now, the second position is that that of the District of Columbia and I think of o -- there may be another circuit.

That position is if the motion is prior to indictment and the indictment is returned before the motion is decided, then it is not appealable but, if the indictment is not returned in the interim, then it is appealable.

Now, the third view is that of the Fourth Circuit and the Fifth Circuit more recently, in recent cases over I think approximately the past four or five years, and that is that any motion after the complaint has been filed and there's been an r -- and there's been preliminary examination, that that -- that an order deciding that kind of a motion is not appealable, so that --

Justice Felix Frankfurter: What's the justification for the District of Columbia rule?

Mr. Bruce J. Terris: I --

Justice Felix Frankfurter: What justification would they give, I mean?

Mr. Bruce J. Terris: I take it, Your Honor, that they -- insofar as the motion relates to any evidence going before the grand jury, that's been washed out by the indictment, and then all that's left is whether the evidence is going to go before the --

Justice Felix Frankfurter: But from the point of view of the considerations that, in 1789, have governed appealability as a general principle of federal jurisdiction, what is the difference they take?

Did they take any?

Mr. Bruce J. Terris: Your Honor, they --

Justice Felix Frankfurter: Did they discuss that?

Mr. Bruce J. Terris: There is very little discussion in these cases.

The discussion largely hinges on just citing Cogen, the dictum in Cogen, occasionally, Perlman and Burdeau, and the Second Circuit applies the dictum in Cogen literally which r -- I think it is -- there is really the -- probably the most fair interpretation of this single-phrased dictum in Cogen and they say any motion prior to indictment is appealable.

Chief Justice Earl Warren: Mr. Terris, may I ask you this question.

In this case, I understand that, on the search, they found not only a large quantity of narcotics but they also found a sizeable amount of money, some-$6,000.

Mr. Bruce J. Terris: That's right.

Chief Justice Earl Warren: Wasn't that true?

Now, let's --

Mr. Bruce J. Terris: There's a disagreement on the facts of whether all of that was taken by search.

Chief Justice Earl Warren: Yes.

I'm not making any point of that.

I just want to get your differentiation between two situations.

Now, suppose the government -- suppose the petitioner filed a motion to suppress on the narcotics and a motion to return on the money and both of them were denied by the District Court.

Would the differentiation which you have made entitle him to appeal on the money order and not appeal on the other --

Mr. Bruce J. Terris: We allow appeal on the whole thing.

Chief Justice Earl Warren: I beg your pardon?

Mr. Bruce J. Terris: The issues would've been the same so we'd allow appeal on the whole thing.

It'd be s -- we think it would be silly to cut the thing in -- the motion in half because the Court of Appeals' determination would decide the whole matter.

Of course, we might -- if he'd sought return of the money, it may well be that we would've given the money back to him.

Chief Justice Earl Warren: I know, but suppose you didn't.

Mr. Bruce J. Terris: If we didn't --

Chief Justice Earl Warren: I just --

Mr. Bruce J. Terris: -- it would've been appealable.

Chief Justice Earl Warren: Make the dif -- It would've --

Mr. Bruce J. Terris: In our view, it would've been appealable.

If he had sought return of the money --

Chief Justice Earl Warren: But not on the suppression, not the suppression of the narcotics.

Mr. Bruce J. Terris: Well, the whole issue could've gone to the Court of Appeals and -- since the issues would've been the same.

We would not have cut the motion in half, as what it amounts to.

We would've -- we would agree that the whole thing would be appealed.

Chief Justice Earl Warren: Well, I'm afraid I don't -- maybe I don't understand the facts but, here, suppression was denied --

Mr. Bruce J. Terris: That's --

Chief Justice Earl Warren: Wasn't it?

Mr. Bruce J. Terris: That's right.

Chief Justice Earl Warren: And would you say that, merely because there was money involved in it that that would invol -- would entitle him to appeal from the order denying suppression?

Mr. Bruce J. Terris: No, it's the relief he seeks.

Chief Justice Earl Warren: I beg your pardon?

Mr. Bruce J. Terris: It's the relief he seeks.

He asked only for the suppression of evidence in a criminal case.

That's the only thing he wants.

He wants to decide an issue of the admission of evidence.

Chief Justice Earl Warren: Yes.

Mr. Bruce J. Terris: A criminal -- an issue which we think can't be separated from the criminal case.

Now, if he asked for the return of money, he's a -- this is the standard g -- this is really very little different than an independent lawsuit.

He wants his money back.

Chief Justice Earl Warren: Well, that's the thing that bothers me.

I could see how that differentiation could be made, but you say that you could appeal the whole thing there.

Now, I understand that your position here is that he can't appeal the order denying suppression because it's inseparable from the criminal case.

Mr. Bruce J. Terris: That's right.

Chief Justice Earl Warren: But the money could be --

Mr. Bruce J. Terris: That's right.

He didn't ask for the return.

Chief Justice Earl Warren: No, I know.

I was just -- I'm just giving you a hypothetical case.

I said assuming that he --

Mr. Bruce J. Terris: Well, we --

Chief Justice Earl Warren: Assuming that you are holding both and he could get neither back and he made a motion to suppress the narcotics and also made a motion for the return of the money, could he appeal the order denying him return of the money but not appeal the order denying him suppression for the narcotics?

Mr. Bruce J. Terris: Our view is proper judicial administration would allow the --

Justice Felix Frankfurter: You'd give him both.

Mr. Bruce J. Terris: We --

Justice Felix Frankfurter: You would give him both.

Is that because you're large-hearted?

Mr. Bruce J. Terris: Well --

Justice Felix Frankfurter: I don't understand that.

Mr. Bruce J. Terris: Well, perhaps, it's a technic -- it's a very technical matter he could only take the m -- the order denying return, but that decision of the Court of Appeals would also decide the suppression issues.

So, I --

Justice Felix Frankfurter: I don't get that at all.

Mr. Bruce J. Terris: Well, in this case, it would not.

Maybe there's some --

Justice Felix Frankfurter: I'm not talking about this case.

I'm talking about the Chief Justice's question.

You, yourself, made a distinction between a motion below that the r -- for the suppression of evidence to be used in the criminal trial and the return of $6,000 which belonged to him.

You say if he goes up merely on the motion to suppress, no appeal.

If he couples with that the -- a motion for the return of the money, the return of the money carries with it the suppression of evidence.

Mr. Bruce J. Terris: Right.

Justice Felix Frankfurter: What's the sense of that?

I don't see it.

Mr. Bruce J. Terris: The sense of it is only --

Justice Felix Frankfurter: You say good judicial administration.

I call it large-heartedness.

What's the sense of it so far as your main pieces is concerned that you do not want to try separately a question of the admissibility of evidence?

You have this chance in case he's convicted.

In case he's acquitted, there's no problem.

Mr. Bruce J. Terris: Because, under -- the issues on return will be precisely the same issues as the issues on suppression.

Justice Felix Frankfurter: I allow myself to saying "so what?"

Mr. Bruce J. Terris: Well they -- if Your Honor thinks that the technical rules of appealability should overcome what we think is a prac -- perhaps a more practical standard, it would make little difference.

I would -- because if -- the order of the Court of Appeals would of course be binding on the order for suppression anyway.

Chief Justice Earl Warren: Well, what was your argument about valuable property if that's the only issue?

And, you made a distinction and I'm not disagreeing with that.

I'm just trying to get your point of view.

You said something about if there was valuable property and the motion is made to return it, there would be a different situation.

Mr. Bruce J. Terris: Right.

Chief Justice Earl Warren: And I try to put into this case, not to bind you but to get your reasoning, the fact that he moves to -- for return of his money.

He wants to use it and he also makes a motion for suppression of the evidence of the narcotics, and I want to know if he can appeal one and not the other or if he can appeal both or if he can appeal neither under your theory.

Mr. Bruce J. Terris: The view we are taking is if there -- let's assume the case had only money in it, just the money, and we've asked --

Chief Justice Earl Warren: I'd rather st --

Mr. Bruce J. Terris: Both for suppression and return.

Chief Justice Earl Warren: I'd rather stick with mine, if you don't mind.

Then you propose your own --

Mr. Bruce J. Terris: Okay.

Chief Justice Earl Warren: But just -- I don't want to take too much of your time.

Mr. Bruce J. Terris: By the --

Chief Justice Earl Warren: Really, I don't.

Mr. Bruce J. Terris: By the rules that we are suggesting to the Court.

Chief Justice Earl Warren: Yes.

Mr. Bruce J. Terris: We would say that, technically, it could only take up the order denying return.

That is all.

Now, we --

Chief Justice Earl Warren: Yes.

Mr. Bruce J. Terris: We're willing -- what -- Mr. Justice Frankfurter thinks that we're being large-hearted about this and, perhaps, we are and, therefore, this rule is wrong.

We think that if the issues are precisely the same in the -- as to the --

Justice Felix Frankfurter: They may not necessarily be this way.

Mr. Bruce J. Terris: If they're not, then I quite cannot.

Justice Felix Frankfurter: They may not be because you may have no excuse whatever for taking the money and you may have good excuse for taking the narcotics.

Mr. Bruce J. Terris: If there's any difference in the issue, then we cannot take up, in our view, the order denying a suppression.

But if the issues are the same, we think it makes no difference whether it goes up, both go up or only one goes up.

The Court of Appeals decision is going to be binding on both.

Thank you, Your Honor.