Aurelio Zacarias, Appellant, v. United States of America, Appellee, 261 F.2d 416 (5th Cir. 1959)

This appeal from an order of the trial court denying appellant's motion to suppress evidence was prosecuted before indictment or trial of appellant. It is attacked by a motion to dismiss, filed by the United States, on the ground that the order of the trial court was interlocutory and thus not appealable.

The record before us discloses that Zacarias was searched without a warrant and had certian narcotics taken from his possession, was then arrested, taken before the United States Commissioner, where a complaint was filed against him as provided in Rule 5, F.R.Crim.P., 18 U.S.C.A.¹  Zacarias was released on bond, employed counsel and appeared at his commitment hearing. He was bound over to the grand jury. Thereafter, at this stage of the proceedings, he filed his motion to suppress the evidence on the ground that the search was made without a search warrant, without an arrest warrant and without probable cause for believing that a narcotics violation was being committed or had been committed by Zacarias within the meaning of 26 U.S. C.A. § 7607.²  The trial court heard evidence on the motion to suppress, and entered an order denying it. Thereupon appellant appealed here.

The appealability of this order depends upon whether it is a "final" order of the trial court, as distinguished from an interlocutory order, since the existence of a final order is necessary in order for this court's jurisdiction to attach. 28 U.S. C.A. § 1291. The answer to this question is found by determining whether this motion to suppress the evidence is an independent civil proceeding, finally terminated with the order denying the relief or is ancillary to a pending criminal proceeding.

No Supreme Court case has been cited to or been found by us that categorically answers this question. A rather full discussion of the reviewability of such orders is contained in Carroll v. United States, 354 U.S. 394, 77 S. Ct. 1332, 1 L. Ed. 2d 1442. However, in that case an indictment had already been found, which, of course, is not the case here. In Perlman v. United States, 247 U.S. 7, 38 S. Ct. 417, 62 L. Ed. 950, the Court held that an order denying the motion, before indictment, to enjoin the use of certain documents that had been impounded in previous litigation, was appealable.

In United States v. Williams, 4 Cir., 227 F.2d 149, the court held that an order entered after complaint and after the accused had been bound over to the District Court on a waiver of a commitment hearing, was interlocutory and not appealable. Such was the posture of affairs here, except that here the commitment hearing was held, and, as provided in the rule, Zacarias was bound over to the District Court.

We note that a different view is expressed in a decision by the Court of Appeals for the Ninth Circuit. See Freeman v. United States, 160 F.2d 69. However, we think it quite plain that after a complaint has been issued by a United States commissioner, the accused has been afforded a commitment hearing at which he is permitted to cross examine the prosecuting witnesses and to testify, if he so desires, in his own behalf, and is then, in the language of the statute " [held] to answer in the district court," a motion thereafter made under Rule 41 (e) is incidental to the criminal proceeding already commenced and pending. An order on such motion is not final; it is interlocutory and is not appealable.

The appeal is dismissed.