369 U.S.

121
82 S.Ct. 654
7 L.Ed.2d 614

Mario DI BELLA, Petitioner,

v.
UNITED STATES of America. UNITED STATES of America,
Petitioner, v. Daniel J. KOENIG.
Nos. 21 and 93.
Argued Jan. 16 and 17, 1962.
Decided March 19, 1962.

Jerome Lewis, Brooklyn, N.Y., for petitioner in No. 21. Bruce J. Terris,
Washington, D. C., for respondent in No. 21.
Bruce J. Terris, Washington, D. C., for petitioner in No. 93. Joseph P.
Manners, Miami, Fla., for respondent in No. 93.
Mr. Justice FRANKFURTER delivered the opinion of the Court.

These two cases present variants of the same problem: the appealability of an
order granting or denying a pre-trial motion to suppress the evidentiary use in a
federal criminal trial of material allegedly procured through an unreasonable
search and seizure.1 A brief recital of the procedural history of each will place
our problem in context.

On October 15, 1958, a warrant was issued by a United States Commissioner in

the Eastern District of New York for the arrest of Mario DiBella upon a
complaint charging unlawful sales of narcotics. The warrant was executed on
March 9, 1959, in DiBella's apartment, and was followed by seizure of the
drugs, equipment, and cash now in question. DiBella was arraigned and
released under bail the next day. On June 17, 1959, a motion to suppress was
filed on his behalf with the District Court for the Eastern District of New York,
and hearing was scheduled for July 6. Several continuances followed, and
before the hearing was held, on August 25, an indictment against DiBella was
returned in the same district. The motion was ultimately denied, without
prejudice to renewal at trial. 178 F.Supp. 5. The Court of Appeals for the

Second Circuit held the order appealable, in accordance with its prior decisions,
because the motion was filed before return of the indictment. 284 F.2d 897.
3

The motion in the companion case, on behalf of Daniel Koenig, was likewise
filed before indictment, and this time in a district other than that of trial. Koenig
had been arrested on September 22, 1959, in the Southern District of Florida on
the basis of a complaint charging robbery of a federally insured bank in the
Southern District of Ohio. His motion to suppress and for return of property
seized during that arrest was filed in the Florida federal court on October 12,
three days after the local United States Commissioner had held a final hearing
on the Ohio complaint and two days before he recommended a warrant of
removal. On October 16, an indictment against Koenig was returned in the
Southern District of Ohio. After three hearings on the motion, the Florida
District Court entered its order on December 18, granting suppression but
denying return without prejudice to renewal of the motion in the trial court. The
Government's appeal to the Court of Appeals for the Fifth Circuit was
dismissed for lack of jurisdiction on the ground that, following recent decisions
of that court, the order was interlocutory in a criminal case. 290 F.2d 166. We
granted certiorari in the two cases, 365 U.S. 809, 81 S.Ct. 692, 5 L.Ed.2d 690
and 368 U.S. 812, 82 S.Ct. 31, 7 L.Ed.2d 21, respectively, to resolve a conflict
among the circuits.

The settled view of the Second Circuit, that a ruling on a pre-indictment motion
invariably lays the basis for immediate appellate review, in that it constitutes a
'final decision' under 28 U.S.C. 1291, 28 U.S.C.A. 1291, even though an
indictment intervenes, has not been squarely passed upon by this Court. We
have denied appealability from orders on post-indictment motions to both the
Government, Carroll v. United States, 354 U.S. 394, 77 S.Ct. 1332, 1 L.Ed.2d
1442, and the defendant, Cogen v. United States, 278 U.S. 221, 49 S.Ct. 118,
73 L.Ed. 275. The Court has, however, in fact allowed appeals from orders
granting and denying pre-indictment motions,2 and these dispositions have
given rise to explanatory dicta that lend support to the rule developed in the
Second Circuit.3 Not only disagreement among the circuits but dubieties within
them demand an adjudication based upon searching consideration of such
conflicting and confused views regarding a problem of considerable importance
in the proper administration of criminal justice.

The general principle of federal appellate jurisdiction, derived from the

common law and enacted by the First Congress, requires that review of nisi
prius proceedings await their termination by final judgment. First Judiciary Act,
21, 22, 25, 1 Stat. 73, 83, 84, 85 (1789); see McLish v. Roff, 141 U.S. 661,
12 S.Ct. 118, 35 L.Ed. 893. This insistence on finality and prohibition of

piecemeal review discourage undue litigiousness and leaden-footed

administration of justice, particularly damaging to the conduct of criminal
cases. See Cobbledick v. United States, 309 U.S. 323, 324-326, 60 S.Ct. 540,
541-542, 87 L.Ed. 783.
6

Since the procedural aspects of law deal with the practical affairs of men and
do not constitute an abstract system of doctrinaire notions, Congress has
recognized the need of exceptions for interlocutory orders in certain types of
proceedings where the damage of error unreviewed before the judgment is
definitive and complete, see Collins v. Miller, 252 U.S. 364, 370, 40 S.Ct. 347,
349, 64 L.Ed. 616, has been deemed greater than the disruption caused by
intermediate appeal. See 30 Stat. 544, 553 (1898), as amended, 11 U.S.C. 47,
11 U.S.C.A. 47 (bankruptcy proceedings); 28 U.S.C. 1252, 28 U.S.C.A.
1252 (orders invalidating federal statutes); 28 U.S.C. 1253, 28 U.S.C.A.
1253 (injunctions issued or refused by statutory three-judge courts); 28 U.S.C.
1292(a)(1)-(4), 28 U.S.C.A. 1292(a)(1-4) (injunctions, receivership,
admiralty, patent infringement). Most recently, in the Interlocutory Appeals Act
of 1958, 72 Stat. 1770, 28 U.S.C. 1292(b), 28 U.S.C.A. 1292(b), Congress
expanded the latitude for intermediate appeals in civil actions through the
device of discretionary certification of controlling questions of law. See Note,
75 Harv.L.Rev. 351, 378-379.4

Moreover, the concept of finality as a condition of review has encountered

situations which make clear that it need not invite self-defeating judicial
construction. Thus, acceptance of appeal from orders definitively directing an
immediate transfer of property, although an accounting remains, Forgay v.
Conrad, 6 How. 201, 12 L.Ed. 404, has been justified as 'review of the
adjudication which is concluded because it is independent of, and unaffected
by, another litigation with which it happens to be entangled.' Radio Station
WOW v. Johnson, 326 U.S. 120, 126, 65 S.Ct. 1475, 1479, 89 L.Ed. 2092.5
Similarly, so as not to frustrate the right of appellate review, immediate appeal
has been allowed from an order recognized as collateral to the principal
litigation because touching matters that will not 'affect, or * * * be affected by,
decision of the merits of (the) * * * case,' Cohen v. Beneficial Industrial Loan
Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528, when the
practical effect of the order will be irreparable by any subsequent appeal. E.g.,
Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3; Swift & Co. Packers v.
Compania Colombiana Del Caribe, 339 U.S. 684, 688-689, 70 S.Ct. 861, 864,
865, 94 L.Ed. 1206. To like effect is Rule 54(b) of the Federal Rules of Civil
Procedure which, as amended in 1961, 368 U.S., at 1015, 28 U.S.C.A., allows
appeals in multiple litigation from an express entry of 'final judgment as to one
or more but fewer than all of the claims or parties,' but only when the trial judge

certifies that 'there is no just reason for delay.'

8

Despite these statutory exceptions to, and judicial construction of, the
requirement of finality, 'the final judgment rule is the dominant rule in federal
appellate practice.' 6 Moore, Federal Practice (2d ed. 1953), 113. Particularly is
this true of criminal prosecutions. See, e. g., Parr v. United States, 351 U.S.
513, 518-521, 76 S.Ct. 912, 916-917, 100 L.Ed. 1377. Every statutory
exception is addressed either in terms or by necessary operation solely to civil
actions. Moreover, the delays and disruptions attendant upon intermediate
appeal are especially inimical to the effective and fair administration of the
criminal law. The Sixth Amendment guarantees a speedy trial. Rule 2 of the
Federal Rules of Criminal Procedure counsels construction of the Rules 'to
secure simplicity in procedure, fairness in administration and the elimination of
unjustifiable expense and delay'; Rules 39(d) and 50 assign preference to
criminal cases on both trial and appellate dockets.

Again, the decisions according finality to civil orders in advance of an

ultimately concluding judgment have rested on finding a particular claim to be
independent, because 'fairly severable from the context of a larger litigious
process.' Swift & Co. Packers v. Compania Colombiana Del Caribe, supra, 339
U.S., at 689, 70 S.Ct., at 865. No such severability inheres in a motion seeking
the suppression of evidence at a forthcoming trial; its disposition, as the Court
recognized in Cogen v. United States, supra, 278 U.S., at 223, 49 S.Ct. at 119,
'will necessarily determine the conduct of the trial and may vitally affect the
result.' No less when it precedes indictment, the motion presents an issue that is
involved in and will be part of a criminal prosecution in process at the time the
order is issued.

10

The precise question before us has been much canvassed in the lower courts. It
has not only produced a conflict among the circuits, but has provoked practical
difficulties in the administration of criminal justice and caused expressions of
dissatisfaction even in courts that have sustained an appeal. Although only the
Fourth and Fifth Circuits have clearly departed from the Second Circuit's
view,6 the consensus in the others is far from unwavering. 7 The First Circuit,
for example, has declined to permit pretrial entertainment of any suppression
motions other than those explicitly authorized by the language of Rule 41(e).
Centracchio v. Garrity, 1 Cir., 198 F.2d 382, 386-389 (1952); accord, e. g.,
Benes v. Canary, 224 F.2d 470, 472 (C.A.6th Cir. 1955). And see In re Fried,
161 F.2d 453, 465-466 (C.A.2d Cir. 1947) (opinions of L. Hand and A. Hand,
JJ.). These opinions manifest a disinclination to treat as separate and final
rulings on the admissibility of evidence which depend on factual contentions
that may be more appropriately resolved at a plenary trial. Similarly, a

California District Court has recently dismissed for want of equity a preindictment bill to suppress, on the ground that, at the time relief would issue,
there was an adequate remedy at law by motion in the criminal trial; and the
Ninth Circuit refused an application for prerogative writs. Rodgers v. United
States, 158 F.Supp. 670 (1958); id., at 684 note. See also Eastus v. Bradshaw,
94 F.2d 788 (C.A.5th Cir. 1938). In the Third Circuit, which up to now has
agreed with the Second, the latest opinion on the subject expresses doubts as to
the validity of its precedents. United States v. Murphy, 290 F.2d 573, 575 n. 2
(1961).
11

We should decide the question herewe are free to do sowith due regard to
historic principle and to the practicalities in the administration of criminal
justice. An order granting or denying a pre-indictment motion to suppress does
not fall within any class of independent proceedings otherwise recognized by
this Court, and there is every practical reason for denying it such recognition.
To regard such a disjointed ruling on the admissibility of a potential item of
evidence in a forthcoming trial as the termination of an independent
proceeding, with full panoply of appeal and attendant stay, entails serious
disruption to the conduct of a criminal trial.8 The fortuity of a pre-indictment
motion may make of appeal an instrument of harassment, jeopardizing by delay
the availability of other essential evidence. See Rodgers v. United States, supra,
158 F.Supp., at 673 n. 1. Furthermore, as cases in the Second Circuit make
clear, appellate intervention makes for truncated presentation of the issue of
admissibility, because the legality of the search too often cannot truly be
determined until the evidence at the trial has brought all circumstances to light.
See In re Milburne, 77 F.2d 310, 311 (1935); Grant v. United States, 291 F.2d
227, 229 (1961).9

12

Nor are the considerations against appealability made less compelling as to

orders granting motions to suppress, by the fact that the Government has no
later right to appeal when and if the loss of evidence forces dismissal of its
case. United States v. Pack, 247 F.2d 168 (C.A.3d Cir. 1957); Umbriaco v.
United States, 258 F.2d 625, 626 (C.A.9th Cir. 1958). As the Ninth Circuit said
of this circumstance, the Government is no more disadvantaged than in the case
of an adverse ruling on the evidence during trial. United States v. Rosenwasser,
145 F.2d 1015, 1018, 156 A.L.R. 1200 (1944). What disadvantage there be
springs from the historic policy, over and above the constitutional protection
against double jeopardy, that denies the Government the right of appeal in
criminal cases save as expressly authorized by statute. United States v. Sanges,
144 U.S. 310, 12 S.Ct. 609, 36 L.Ed. 445; United States v. Dickinson, 213 U.S.
92, 102-103, 29 S.Ct. 485, 488-489, 53 L.Ed. 711; Carroll v. United States, 354
U.S. 394, 400-403 and n. 9-12, 77 S.Ct. 1332, 1336-1338, 1 L.Ed.2d 1442. No

such expression appears in 28 U.S.C. 1291, 28 U.S.C.A. 1291, and the

Government's only right of appeal, given by the Criminal Appeals Act of 1907,
34 Stat. 1246, now 18 U.S.C. 3731, 18 U.S.C.A. 3731, is confined to
narrowly defined situations not relevant to our problem. Allowance of any
further right must be sought from Congress and not this Court. Carroll v.
United States, supra, 354 U.S., at 407-408, 77 S.Ct., at 1340-1341.
13

In the Narcotic Control Act of 1956, 201, 70 Stat. 567, 573, 18 U.S.C.
1404, 18 U.S.C.A. 1404, Congress did grant the Government the right to
appeal from orders granting pre-trial motions to suppress the use of seized
narcotics as evidence; but, though invited to do so,10 it declined to extend this
right to all suppression orders. Since then, each Congress has had before it bills
to accomplish that extension, 11 at least one of which has been reported
favorably.12 As yet, however, none has been adopted.

14

We hold, accordingly, that the mere circumstance of a pre-indictment motion

does not transmute the ensuing evidentiary ruling into an independent
proceeding begetting finality even for purposes of appealability. Presentations
before a United States Commissioner, Go-Bart Importing Co. v. United States,
282 U.S. 344, 352-354, 51 S.Ct. 153, 156-157, 75 L.Ed. 374, as well as before a
grand jury, Cobbledick v. United States, 309 U.S. 323, 327, 60 S.Ct. 540, 542,
84 L.Ed. 783, are parts of the federal prosecutorial system leading to a criminal
trial. Orders granting or denying suppression in the wake of such proceedings
are truly interlocutory, for the criminal trial is then fairly in train. When at the
time of ruling there is outstanding a complaint, or a detention or release on bail
following arrest, or an arraignment, information, or indictmentin each such
case the order on a suppression motion must be treated as 'but a step in the
criminal case preliminary to the trial thereof.' Cogen v. United States, 278 U.S.
221, 227, 49 S.Ct. 120. Only if the motion is solely for return of property and is
in no way tied to a criminal prosecution in esse against the movant can the
proceedings be regarded as independent. Ibid.; see Carroll v. United States, 354
U.S. 394, 404 n. 17, 77 S.Ct. 1338; In re Brenner, 6 F.2d 425 (C.A.2d Cir.
1925).

15

An alternative ground for appealability in the Koenig case, likewise culled from
dicta in some of our decisions, would assign independence to the suppression
order because rendered in a different district from that of trial. Dier v. Banton,
262 U.S. 147, 43 S.Ct. 533, 67 L.Ed. 915, the only holding pointed to, is clearly
inapposite; it allowed an appeal from an order by a federal bankruptcy court
permitting delivery of a bankrupt's papers to state prosecuting officials. Cf. Rea
v. United States, 350 U.S. 214, 76 S.Ct. 292, 100 L.Ed. 233; Wilson v.
Schnettler, 365 U.S. 381, 81 S.Ct. 632, 5 L.Ed.2d 620. There is a decision in

the Second Circuit, United States v. Klapholz, 230 F.2d 494 (1956), allowing
the Government an appeal from an order granting a post-indictment motion to
suppress, apparently for the single reason that the motion was filed in the
district of seizure rather than of trial; but the case was soon thereafter taken by a
District Court to have counseled declining jurisdiction of such motions for
reasons persuasive against allowing the appeal: 'This course will avoid a
needless duplication of effort by two courts and provide a more expeditious
resolution of the controversy besides avoiding the risk of determining
prematurely and inadequately the admissibility of evidence at the trial. * * * A
piecemeal adjudication such as that which would necessarily follow from a
disposition of the motion here might conceivably result in prejudice either to
the Government or the defendants, or both.' United States v. Lester, 21 F.R.D.
30, 31 (D.C.S.D.N.Y.1957). Rule 41(e), of course, specifically provides for
making of the motion in the district of seizure. On a summary hearing,
however, the ruling there is likely always to be tentative. We think it accords
most satisfactorily with sound administration of the Rules to treat such rulings
as interlocutory.
16

The judgment of the Court of Appeals in No. 21 is vacated and the cause is
remanded with instructions to dismiss the appeal. In No. 93, the judgment is
affirmed.

17

It is so ordered.

18

Judgment of Court of Appeals in No. 21 vacated and cause remanded with

instructions; judgment in No. 93 affirmed.

19

THE CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice STEWART
concur in the result.

20

Mr. Justice WRITTAKER took no part in the disposition of these cases.

Rule 41(e) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. provides:

'A person aggrieved by an unlawful search and seizure may move the district
court for the district in which the property was seized for the return of the
property and to suppress for use as evidence anything so obtained on the ground
that (1) the property was illegally seized without warrant, or (2) the warrant is
insufficient on its face, or (3) the property seized is not that described in the
warrant, or (4) there was not probable cause for believing the existence of the

grounds on which the warrant was issued, or (5) the warrant was illegally
executed. The judge shall receive evidence on any issue of fact necessary to the
decision of the motion. If the motion is granted the property shall be restored
unless otherwise subject to lawful detention and it shall not be admissible in
evidence at any hearing or trial. The motion to suppress evidence may also be
made in the district where the trial is to be had. The motion shall be made
before trial or hearing unless opportunity therefor did not exist or the defendant
was not aware of the grounds for the motion, but the court in its discretion may
entertain the motion at the trial or hearing.'
2

Perlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950; Burdeau v.
McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048. See also Go-Bart
Importing Co. v. United States, 282 U.S. 344, 356, 51 S.Ct. 153, 157, 158, 75
L.Ed. 374.

See Cogen v. United States, 278 U.S. 221, 225, 49 S.Ct. 118, 119, 120, 73
L.Ed. 275; Cobbledick v. United States, 309 U.S. 323, 328-329 and n. 6, 60
S.Ct. 540, 543, 87 L.Ed. 783; Carroll v. United States, 354 U.S. 394, 403, 77
S.Ct. 1332, 1338, 1 L.Ed.2d 1442.

In addition to careful specification of these particular orders, Congress has since

1789 declared the existence of authority in the federal courts to issue 'all writs
necessary or appropriate in aid of their respective jurisdictions and agreeable to
the usages and principles of law,' 28 U.S.C. 1651, 28 U.S.C.A. 1651,
derived from First Judiciary Act, 13, 14, 1 Stat. 73, 80, 81; but the authority
has been most sparingly exercised, when no other remedy will suffice, 'to
confine an inferior court to a lawful exercise of its prescribed jurisdiction or to
compel it to exercise its authority when it is its duty to do so.' Roche v.
Evaporated Milk Ass'n, 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185.

In eminent-domain proceedings, however, where the issue of reasonable

compensation cannot be thus separated from the lawfulness of the taking, the
Court has denied independent review to transfer orders. Catlin v. United States,
324 U.S. 229, 65 S.Ct. 631, 89 L.Ed. 911; cf. Republic Natural Gas Co. v.
Oklahoma, 334 U.S. 62, 71-72, 68 S.Ct. 972, 978, 92 L.Ed. 1212.

Fourth Circuit: United States v. Williams, 227 F.2d 149 (1955).

Fifth Circuit: Zacarias v. United States, 261 F.2d 416 (1958); Saba v. United
States, 282 F.2d 255 (1960).
In the District of Columbia Circuit, the decisions appear to have inverted the
Second Circuit rule: pre-indictment motions have been held interlocutory,
Nelson v. United States, 93 U.S.App.D.C. 14, 24-26, 208 F.2d 505, 515517

(1953), while post-indictment motions have been treated as independent,

United States v. Cefaratti, 91 U.S.App.D.C. 297, 202 F.2d 13 (1952). But see
United States v. Stephenson, 96 U.S.App.D.C. 44, 223 F.2d 336 (1955).
7

First Circuit: Centracchio v. Garrity, 198 F.2d 382, 385 (1952); Chieftain
Pontiac Corp. v. Julian, 209 F.2d 657, 659 (1954) (by implication).
Second Circuit: United States v. Poller, 43 F.2d 911 (1930); In re Milburne, 77
F.2d 310 (1935); United States v. Edelson, 83 F.2d 404 (1936); Cheng Wai v.
United States, 125 F.2d 915 (1942); Lagow v. United States, 159 F.2d 245
(1946); In re Fried, 161 F.2d 453, 1 A.L.R.2d 996 (1947); Lapides v. United
States, 215 F.2d 253 (1954); Russo v. United States, 241 F.2d 285 (1957);
Carlo v. United States, 286 F.2d 841 (1961); Grant v. United States, 291 F.2d
227 (1961); Greene v. United States, 296 F.2d 841 (1961).
Third Circuit: In re Sana Laboratories, 115 F.2d 717 (1940); United States v.
Bianco, 189 F.2d 716, 717 n. 2 (1951); United States v. Sineiro, 190 F.2d 397
(1951); United States v. Murphy, 290 F.2d 573 (1961).
Sixth Circuit: Benes v. Canary, 224 F.2d 470 (1955).
Seventh Circuit: Secony Mobil Oil Co. v. United States, 275 F.2d 227 (1960)
(by implication) (semble).
Eighth Circuit: Goodman v. Lane, 48 F.2d 32 (1931).
Ninth Circuit: Freeman v. United States, 160 F.2d 69 (1946); Weldon v. United
States, 196 F.2d 874, 875 (1952); Hoffritz v. United States, 240 F.2d 109
(1956). But see Rodgers v. United States, 158 F.Supp. 670 (D.C.S.D.Cal.),
mandamus and prohibition denied in id., at 684 note (C.A.9th Cir. 1958).

It is evident, for example, that the form of independence has been availed of on
occasion to seek advantages conferred by the rules governing civil procedure, to
the prejudice of proper administration of criminal proceedings. E. g., Greene v.
United States, 296 F.2d 841, 843-844 (C.A.2d Cir. 1961) (extended time for
appeal); Russo v. United States, 241 F.2d 285, 287-288 (C.A.2d Cir. 1957)
(expanded discovery).

Although Rule 41(a), supra, note 1, codifies prior practice in preferring that the
motion be raised before trial, and provides for the taking of evidence on
disputed factual issues, the usual procedure followed at this early stage is to
decide the question on affidavits alone; in addition, it has long been accepted
that the point can, and on occasion must, be renewed at the trial to preserve it
for ultimate appeal. Gouled v. United States, 255 U.S. 298, 312-313, 41 S.Ct.

261, 266, 65 L.Ed. 647; Lawn v. United States, 355 U.S. 339, 353-354, 78 S.Ct.
311, 319-320, 2 L.Ed.2d 321. We do no more than recognize that ordinarily the
District Courts will wish to reserve final ruling until the criminal trial.
10

Illicit Narcotics TrafficHearings before the Subcommittee on Improvements

in the Federal Criminal Code of the Senate Committee on the Judiciary, 84th
Cong., 1st Sess. 725-726 (1955); Narcotic Control Act of 1956-id., 2d Sess. 9
(1956).

11

H.R. 9364 and S. 3423, 84th Cong., 2d Sess. (1956); HR. 263 and H.R. 4753,
85th Cong., 1st Sess. (1957); S. 1721, 86th Cong., 1st Sess. (1959); see 105
Cong.Rec. 6190 (remarks of Senator Keating).

12

S.Rep. No. 1478, 85th Cong., 2d Sess. 14-17 (1958). As in 18 U.S.C. 1404
and 3731, 18 U.S.C.A. 1404, 3731, the Subcommittee's proposed bill would
have provided safeguards against the taking of harassing or frivolous appeals
and would have ensured expeditious review.