GONZAGA LAW REVIEW. Honorable Charles L. Powell* GOVERNMENT APPEALS IN CRIMINAL CASES: COMMENT ON OMNIBUS CRIME CONTROL AND SAFE STREETS ACT OF 1968

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1 GONZAGA LAW REVIEW VOLUME 4 SPRING 1969 NUMBER 2 GOVERNMENT APPEALS IN CRIMINAL CASES: COMMENT ON OMNIBUS CRIME CONTROL AND SAFE STREETS ACT OF 1968 Honorable Charles L. Powell* I. INTRODUCTION II. TnE CRni x CONTROL ACT III. CONSTITUTIONAL IMPLICATIONS OF IV. EVIDENCE SUBJECT TO SUPPRESSION UNDER V. INTERCEPTION OF WIRE AND ORAL COMMUNICATIONS-TErE APPEALABLE ORDER VI. CONCLUSION I. INTRODUCTION The passage of the Omnibus Crime Control and Safe Streets Act of 1968' has been hailed by some as a great step forward in the cause of law and order, and scorned by others as a futile attempt by Congress to alter the trend of recent United States Supreme Court decisions. 2 * Chief Judge, United States District Court, Eastern District of Washington. 1 Pub. L. No , 82 Stat. 197 (June 19, 1968). The Legislative history of the Act is found in 2 U.S. CODE CONG. & AD. NEWS at 2112 (1968). It should be pointed out that the legislative history, as reported, concerns the Senate's version of the Act. "The House bill was passed in lieu of the Senate bill after substituting for its language the text of the Senate bill." Supra at However, several deletions and additions were made to the bill after the Senate report was published. This is illustrated by the fact that the Senate bill consisted of five titles whereas the bill passed contains eleven titles. Also, it is interesting to note that although the heading of Title II states the following, "Reviewability of Admission in Evidence of Confessions in State Cases,... and Procedures in obtaining...writs of habeas corpus," that title does not contain any reference to review of state cases or to habeas corpus. These provisions were deleted from the House version. Title II is limited solely to the use of confessions and eyewitness testimony in federal criminal cases. 2 Former Supreme Court Justice Arthur J. Goldberg has said of the Act: "This 159

2 GONZAGA LAW REVIEW [Vol. 4:159 The Act contains eleven titles, 3 ranging in theme from financial assistance of state law enforcement agencies to the prohibiting of extortions and threats in the District of Columbia. In between, Congress has expressed comprehensive mandates in the areas of wiretapping, electronic surveillance, confessions, 4 eyewitness evilaw along with much needed measures to strengthen law enforcement, contains in Titles II and III provisions which are... of dubious constitutionality." Goldberg, Criminal Justice in Times of Stress, 52 J. Am. JUD. Soc'y. 54 (1968). The suspicion that the Act exceeds constitutional bounds is fairly widespread. Time Magazine on November 1, 1968, published the following: "Congress passed an Omnibus Crime Control Act that contains a direct attack on Supreme Court doctrine. Never mind Miranda's strict rules in federal prosecutions, says one section of the law; now judges need only consider 'all the circumstances' in which a confession was obtained before they rule on whether it was voluntary. That was, in effect, the formula before Miranda. When the first test case reaches the Supreme Court, the justices are likely to find the new law as unacceptable as Miranda's confession." For in-depth analyses of the Act, see Comment, Title II of the Omnibus Crime Control Act: A Study in Constitutional Conflict, 57 GEO. L.J (1968); Comment, Eavesdropping Provisions of the Omnibus Crime Control and Safe Streets Act of 1968: How Do They Stand in Light of Recent Supreme Court Decisions?, 3 VALP. L. REv (1968). 3 Title I, Law Enforcement Assistance; Title II, Admissibility of Confessions, Reviewability of Admission in Evidence of Confessions in State Cases, Admissibility in Evidence of Eyewitness Testimony, and Procedures in Obtaining Writs of Habeas Corpus; Title III, Wiretapping and Electronic Surveillance; Title IV, State Firearms Control Assistance; Title V, Disqualification for Engaging in Riots and Civil Disorders; Title VI, Confirmation of the Director of the Federal Bureau of Investigation; Title VII, Unlawful Possession or Receipt of Firearms; Title VIII, Providing for an Appeal by the United States from Decisions Sustaining Motions To Suppress Evidence; Title IX, Additional Grounds for Issuing Warrant; Title X, Prohibiting Extortion and Threats in the District of Columbia; Title XI, General Provisions. 4 The first part of Title II is now codified at 18 U.S.C and provides that in any criminal prosecution brought by the United States a confession will be admissible in evidence if it is voluntarily given. The trial judge, in the absence of the jury, is to determine the issue of voluntariness and will make the determination from the totality of circumstances. He is to take into consideration: 1) the time elapsing between arrest and arraignment of the defendant making the confession, if made after arrest and before arraignment; 2) whether the defendant knew the nature of the offense with which he was charged or suspected; 3) whether or not he was advised or knew that he was not required to make a statement and that any such statement could be used against him; 4) whether the defendant had been advised of his right to the assistance of counsel, and 5) whether or not the defendant was without the assistance of counsel when questioned and giving his confession. The Act further provides as follows: "The presence or absence of any of the above-mentioned factors to be taken into consideration by the judge need not be conclusive on the issue of voluntariness of the confession." 18 U.S.C (1968). This section of the Act is an attempted Congressional repeal of the following Supreme Court decisions: McNabb v. United States, 318 U.S. 332 (1942) ; Mallory v. United States, 354 U.S. 449 (1957). (Both of these decisions held inadmissible a confession in a federal prosecution made during an unreasonable delay between time of arrest and the time of arraignment.) Escobedo v. Illinois, 378 U.S. 478 (1964), where the Court evolved the famed "custodial interrogation" rule, and Miranda v. Arizona, 384 U.S. 436 (1966), where the Court held that an otherwise voluntary confession made after the suspect was taken into police custody could not be used in evidence unless a fourfold warning had been given prior to any questioning. See generally Comment, Title II of the Omnibus Crime Control Act: A Study in Constitutional Conflict, supra note 2. A showdown between this Act and the Miranda rule almost occurred in the case

3 Spring, GOVERNMENT APPEALS dence, 5 firearms control, riot control and appeals by the United States from pre-trial rulings suppressing various forms of evidence. 6 This article deals with the Government's right to appeal adverse decisions suppressing evidence. Emphasis is placed on the constitutional implications of appeals by the Government in criminal cases, the types of evidence to which the right of appeal logically applies and the effect that the Government's right to appeal will have upon present pre-trial motion procedures under the Federal Rules of Criminal Procedure. II. THE CRIME CONTROL ACT Title VIII of the Crime Control Act,' codified at 18 U.S.C (hereinafter referred to as 3731), grants to the United States the right to appeal in certain instances. The pertinent provisions of the amendment to provide that, in a criminal case, an appeal may be taken by and on behalf of the United States from a district court to a court of appeals: From an order, granting a motion for return of seized property or a motion to suppress evidence made before the trial of a person charged with a violation of any law of the United States, if the United States attorney certifies to the judge who granted such motion that the appeal of United States v. Tchack, U.S.D.C. (S.D.N.Y.), 4 Carm. L. REP (Jan. 31, 1969). There counsel did not argue the case under the test contained in the Act but rather treated the case as falling within the Miranda framework. The court did the same, but noted that the confession would clearly have been admissible under the rule of voluntariness set forth in the Crime Control Act. 6 The second part of Title II is now codified at 18 U.S.C and states as follows: "The testimony of a witness that he saw the accused commit or participate in the commission of the crime for which the accused is being tried shall be admissible in evidence in a criminal prosecution in any trial court ordained and established under article III of the Constitution of the United States." 18 U.S.C (1968). This section of the Act is an attempted overruling of U.S. v. Wade, 388 U.S. 218 (1967), and its companion cases, Gilbert v. California, 388 U.S. 263 (1967) and Stovall v. Denno, 388 U.S. 293 (1967). In Wade, the Court held that an in-court identification of the suspect by an eyewitness is inadmissible unless the prosecution can show that the identification is independent of any prior identification by the witness while the suspect was in custody and while his court-appointed lawyer was neither notified nor present. See also Simmons v. United States, 390 U.S. 377 (1968), where the Supreme Court held that testimony of an eyewitness could not be used in a criminal prosecution, when the procedures employed could result in a misidentification of the accused. 6 Title VIII of the Act contains the general right of appeal from decisions granting motions to suppress. Pub. L. No , 1301, 1302, 82 Stat. 237 (June 19, 1968), amending 18 U.S.C (1968). Title III gives the United States attorney an additional right to appeal from orders denying approval to intercept wire and oral communications and from orders suppressing evidence derived therefrom. 18 U.S.C (10). 7 Pub. L. No , 1301, 1302, 82 Stat. 237 (June 19, 1968), amending 18 U.S.C (1949).

4 GONZAGA LAW REVIEW [Vol. 4:159 is not taken for purposes of delay and that the evidence is a substantial proof of the charge pending against the defendant. The appeal in all such cases shall be taken within thirty days after the decision or judgment has been rendered and shall be diligently prosecuted. 8 (Emphasis added.) Prior to the passage of the Act, in June of 1968, Government appeals in criminal cases were generally limited to decisions setting aside or dismissing indictments or informations, or granting motions in arrest of judgment because of defective indictments or informations. If the action of the district court in the above categories was based upon the invalidity of the statute on which the indictment or information was founded, direct appeal was allowed to the United States Supreme Court. 10 There was no general statutory power of the Government to appeal a pre-trial order suppressing evidence." However, the Government did enjoy a limited right to appeal pre-trial suppression rulings under 18 U.S.C (hereinafter referred to as 1404) of the Narcotics Control Act of That Act provides that the 8 This paragraph existed under the prior law, 18 U.S.C (1949), and is now codified in the 1968 amendment U.S.C (1949), provides in part that: "An appeal may be taken by and on behalf of the United States from the district courts to a court of appeals in all criminal cases, in the following instances: From a decision or judgment setting aside, or dismissing any indictment or information, or any court thereof except where direct appeal to the Supreme Court of the United States is provided by this section. From a decision arresting a judgment of conviction except where a direct appeal to the Supreme Court of the United States is provided by this section." 1O 18 U.S.C (1949) provides: "An appeal may be taken by and on behalf of the United States from the district courts direct to the Supreme Court of the United States in all criminal cases in the following instances: "From a decision or judgment setting aside, or dismissing any indictment or information, or any count thereof, where such decision or judgment is based upon the invalidity or construction of the statute upon which the indictment or information is founded. "From a decision arresting a judgment of conviction for insufficiency of the indictment or information, where such decision is based upon the invalidity or construction of the statute upon which the indictment or information is founded. "From the decision or judgment sustaining a motion in bar, when the defendant has not been put in jeopardy." 11 The United States was without any general right to appeal in criminal cases except as provided by 18 U.S.C (1949). United States v. Donovan, 301 F.2d 376 (2d Cir. 1962), rev'd on other grounds, 373 U.S. 334 (1963); Umbriaco v. United States, 258 F.2d 625 (9th Cir. 1958). Government appeals must be based upon express statutory authority. United States v. Koenig, 290 F.2d 166 (5th Cir. 1961), aff'd, 369 U.S. 121 (1962) ; United States v. Tane, 329 F.2d 848 (2d Cir. 1964); United States v. Dote, 371 F.2d 176 (7th Cir. 1966). 12 "In addition to any other right to appeal, the United States shall have the right to appeal from an order granting a motion for the return of seized property

5 Spring, 1969] GOVERNMENT APPEALS United States shall have a limited right to appeal from an order granting a motion, made before trial of a person charged with violation of certain Narcotics Control Act and Internal Revenue Code provisions, for the return of seized property and to suppress evidence. The United States attorney must certify that the appeal is not taken for purposes of delay, and the appeal must be taken within thirty days after the order is entered. 3 With the exception that 3 731, as amended, requires that the evidence suppressed be a substantial proof of the charge pending, both Acts are substantially identical in language. III. CONSTITUTIONAL IMPLICATIONS OF 3731 The constitutional problems which may develop as a result of the amendment to are likely to center upon the Sixth Amendment's guarantee of a speedy trial 14 and the Fifth Amendment's protection against double jeopardy.' 5 It is noted that 1404, which has allowed Government appeals in limited areas since 1956, has never been directly attacked on constitutional grounds. However, there are several Supreme Court decisions which have indirectly discussed the merits of 1404 as an aid to Government law enforcement. and to suppress evidence made before the trial of a person charged with a violation of- "(1) any provision of Part I or Part II of subchapter A of chapter 39 of the Internal Revenue Code of 1954, the penalty for which is provided in subsection (a) or (b) of section 7237 of such Code. "(2) subsection (c), (h), or (i) of section 2 of the Narcotic Drugs Import and Export Act, as amended (21 U.S.C., sec. 174), or "(3) the Act of July 11, 1941, as amended (21 U.S.C., sec. 184a). "This section shall not apply with respect of any such motion unless the United States attorney shall certify, to the judge granting such motion, that the appeal is not taken for the purpose of delay. Any appeal under this section shall be taken within 30 days after the date the order was entered and shall be diligently prosecuted." 18 U.S.C (1956). 13 Id. 14 U. S. CONST. amend. VI provides in part: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.. " 15 U.S. CONST. amend. V provides in part: "... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb;...." It should be mentioned that several cases under the Act of March 2, 1907, 34 Stat. 1246, which was the forerunner of 18 U.S.C (1949), concerned the problem of equal protection since the Government could appeal from an order dismissing the indictment whereas the accused could only appeal after conviction from an order affirming the sufficiency of an indictment. United States v. Bitty, 208 U.S. 393 (1908). In United States v. Heinze, 218 U.S. 532 (1910), the Court, after stating that the right to appeal is not an element of due process of law, held: "Assuming, therefore, and assuming only, not deciding (see District of Columbia v. Brooke, 214 U.S. 138, 149) that Congress may not discriminate in its legislation, it certainly has the power of classification, and the Act of March 2 is well within such power." Supra at 546.

6 GONZAGA LAW REVIEW [Vol. 4:159 In the first, Carroll v. United States, 6 the Government appealed a suppression order prior to the dismissal of the case. The Supreme Court reversed, finding that the indictment would first have to be dismissed before any right of appeal could be afforded the Government. The Court, in dictum, stated that: If there is serious need for appeals by the Government from suppression orders, or unfairness to the interests of effective criminal law enforcement in the distinctions we have referred to, it is the function of Congress to decide whether to initiate a departure from the historical pattern of restricted appellate jurisdiction in criminal cases. 17 The Court went on to note that bills similar to 1404 had failed to pass in Congress. In DiBella v. United States," 8 the Supreme Court denied the right of either the Government or the defendant to appeal a preindictment order regarding motions to suppress certain evidence. Justice Frankfurter in delivering the opinion of the Court observed: In the Narcotic Control Act of 1956, 201, 70 Stat , 18 U.S.C. 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, it declined to extend this right to all suppression orders. Since then, each Congress has had before it bills to accomplish that extension, at least one of which has been reported favorably. As yet, however, none has been adopted. 19 (Footnotes omitted.) The one bill that was reported favorably would have provided safeguards against frivolous appeals. 20 This explains, in part, why Title VIII of the Crime Control Act, as it amends 3731, contains a requirement that the United State attorney certify that the evidence suppressed is a substantial proof of the charge pending. The most recent Supreme Court case on the right of the Government to seek review on appeal is Will v. United States." In that case, Judge Hubert L. Will, of the Northern District of Illinois, had granted a motion for a bill of particulars which required a list of U.S. 394 (1957). 17 Id. at 407. In Carroll, the court noted that, "it was 100 years before the dejendant in a criminal case, even a capital case, was afforded appellate review as of right." 354 U.S. at 400. The Act of February 6, 1889, 25 Stat. 656, authorized direct review by the United States Supreme Court in cases where the punishment was death. Two years later the scope of review was broadened to convictions for capital and otherwise infamous crimes U.S. 121 (1962). 19 Id. at in DiBella, Justice Frankfurter noted that historic policy had denied the Government its right to appeal and that "allowance of any further right must be sought from Congress and not this court." 369 U.S. at DiBella v. United States, 369 U.S. 121, 131 n.12 (1962) U.S. 90 (1967).

7 Spring, 1969] GOVERNMENT APPEALS prosecution witnesses. The Court of Appeals for the Seventh Circuit set aside the order by writ of mandamus. The Supreme Court reversed and sent the case back to the court of appeals with directions to make definitive findings. In the course of its opinion, the Supreme Court noted its continuing aversion to interlocutory appeals of any sort: All our jurisprudence is strongly colored by the notion that appellate review should be postponed, except in certain narrowly defined circumstances, until after final judgment has been rendered by the trial court. This general policy against piecemeal appeals takes on added weight in criminal cases, where the defendant is entitled to a speedy resolution of the charges against him. DiBella v. United States, 369 U.S. 121, 126 (1962). Moreover, "in the federal jurisprudence, at least, appeals by the Government in criminal cases are something unusual, exceptional, not favored," Carroll v. United States, 354 U.S. 394, 400 (1957), at least in part because they always threaten to offend the policies behind the double jeopardy prohibition, cf. Fong Foo v. United States, 369 U.S. 141 (1962). It is enough to note that we approach the decision in this case with an awareness of the constitutional precepts that a man is entitled to a speedy trial and that he may not be placed twice in jeopardy for the same offense. 22 While the Court in Will did not discuss the merits of 1404 under the Narcotics Control Act, it made its general dislike for Government appeals quite clear, and indicated that, whenever the opportunity arises the Court would find for the defendant on a close question. Whether the Court will place exceptional weight on the speedy trial issue and find 3731 unconstitutional, as amended, has yet to be determined. Such a result may have been forestalled by those provisions of the amendment requiring earnest and expeditious appeals. It would appear, from the face of 3731, as amended, that no problem of double jeopardy exists. The appeal is from the order on a pre-trial motion, and jeopardy would not have attached at that stage of the proceedings. But, what happens if the motion is made during trial? Suppose the defendant, represented by enterprising counsel, makes no motion until after the jury is empaneled? Under present case law, jeopardy under the Fifth Amendment will have attached. 3 Exceptions to this rule are noted where a trial results 22 Id. at Will, is the last statement of the Court in the area of Government appeals and probably sums up best the current mood of the Court in this area. 23 Himmelfarb v. United States, 175 F.2d 924 (9th Cir.), cert. denied 338 U.S. 860 (1949); Howard v. United States, 372 F.2d 294 (9th Cir.), cert. denied 388 U.S. 915 (1967). It should be emphasized that this is the test used by the federal courts

8 GONZAGA LAW REVIEW [Vol. 4:159 in a hung jury, or where the conviction of the accused is reversed on motion for a new trial or on appeal, 24 or when an unforeseen event results in a manifest necessity to terminate a trial without a verdict. 26 Otherwise, the given situation raises hard problems involving double jeopardy on the one hand and fairness to the Government on the other. If it is assumed that 3731, as amended, applies to any evidence that is objectionable on constitutional grounds, 26 what is to happen if the Court determines that Rule 41 (e) of the Federal Rules of Criminal Procedure 27 does not apply to a motion to suppress the use of a confession or to the use of testimony of an eyewitness? Under Rule 41(e) the defendant is required to move to suppress before trial unless the opportunity does not exist or the defendant was justifiably unaware that the grounds existed at that time, 28 although there is discretion vested in the trial court to entertain the motion during trial. 29 It is submitted that, even absent the requireunder the Fifth Amendment which, as of this date, has not been made applicable to the states under the Fourteenth Amendment. See e.g., Bartkus v. People of State of Illinois, 359 U.S. 121, reh. denied 360 U.S. 907 (1959) ; Brock v. North Carolina, 344 U.S. 424 (1953). But see United States ex rel. Hetenyi v. Wilkins, 348 F.2d 844 (2d Cir. 1965) cert. denied, 383 U.S. 913 (1966). A case is presently pending before United States Supreme Court which presents that Court once more with this question. Benton v. Maryland, 37 U.S.L.W. 3021, on cert. from 232 A.2d 541, docket no. 201 (argued Dec. 12, 1968). 24 See Howard v. United States, 372 F.2d 294 (9th Cir.), cert. denied, 388 U.S. 915 (1967), where the jury failed to agree on a verdict and the defendant was retried and convicted. On appeal the court affirmed his conviction. 25 E.g., illness of the defendant during trial. Loux v. United States, 389 F.2d 911, 920 (9th Cir.) cert. denied, 393 U.S. 867 (1968). However, if the jury does not reach a verdict after being impaneled due to the fault of the prosecution, double jeopardy will bar a second prosecution. Downum v. United States, 372 U.S. 734 (1963). There, the jury was discharged because the prosecution could not secure the presence of two key witnesses, a fact which it should have known prior to the impaneling of the jury. 26 See text infra at FED. R. CtM. P. 41 states in part that: "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. " 18 U.S.C., Rule 41(e). (Emphasis added.) 28,... 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." 18 U.S.C. Rule 41(e). 29 Id. See also, Sumrall v. United States, 382 F.2d 651 (10th Cir.), cert. denied 389 U.S (1967), where the court held the rule requiring the defendant to move

9 Spring, 1969] GOVERNMENT APPEALS ments of this rule, the defendant who knew that the suppressable evidence existed, yet failed to make a pre-trial motion to suppress, would be in a bad light before the trial court if he attempted to thwart the Government's right to appeal by making such a motion during trial. In the case of Giacona v. United States," the court of appeals was confronted with the above problem under The district court suppressed evidence during the trial. If the motion had been made before trial, the Government would have had a right to appeal under The Government maintained that the district court judge abused his discretion in granting the motion. The appellate court affirmed the order suppressing evidence but observed that, had the discretion been vested in them, they would have decided for the Government. The court went on to state: Strict observance of that practice [motion being made pre-trial] is more important since the enactment on July 18, 1956 of the statute now appearing as 18 U.S.C.A. 1404, which permits the United States, in cases like this one, to appeal from an order granting a motion to suppress evidence made before trial. A defendant should not be permitted to thwart the Government's right to appeal under that statute by the stratagem of waiting until jeopardy has attached before questioning the validity of a search and seizure. Of course, however, that may be unavoidable when there has been no opportunity to present the matter in advance of trial. A rule of practice must not be allowed for any technical reason to prevail over a constitutional right. 3 ' Now that the Government has the right to appeal under 3731, as amended, it is expected that Giacona will be frequently cited as problems develop in the application of the new section. Also, Rule 41 (e) is going to take on greater importance and will probably be amended in the future. The Rule, as it reads today, only provides for motions to suppress that are brought by the defendant. 2 It might be expected that any amendment to Rule 41 (e) will permit the Government to make a pre-trial motion after allowing the defendant a reasonable time to do so. 3 With the present rule on discovery in criminal cases requiring the United States attorney to make substantial disclosures, 4 there is little question that knowlpre-trial is not rigid and unyielding and the trial court has vested discretion to entertain the motion F.2d 450 (5th Cir.), cert. denied 358 U.S. 873 (1958). 8' Id. at Supra note 27. The only time the Government would be aggrieved by a search and seizure would be if it did not find the evidence it was searching for. See Alderman v. United States, - U.S. -, 37 U.S.L. WEEK 4189 (1969). 83 In the interim the Government might seek to litigate the admissibility of questionable evidence by declaratory judgment after allowing the defendant a reasonable time to make his motion to suppress. 28 U.S.C (1949). 34 FED. R. Caim. P. 16. Discoveries may be made in the areas of confessions,

10 GONZAGA LAW REVIEW [Vol. 4:159 edge of the evidence is easily obtainable. For the present time, however, the United States attorney may profit by disclosing such evidence as is material to the case. If he does so, the defendant may be forced into making the motion to suppress before trial or otherwise be considered as having waived his right to object to the evidence when it is offered during trial. An additional problem of waiver may develop where the motion to suppress is made during the course of trial. It might happen that the United States attorney could require the defendant to stipulate to waive his right to assert double jeopardy if acquitted as a condition of the prosecution's forbearance in not resisting an untimely motion to suppress. Of course a bargain of this nature would be of questionable legality and, in light of the language used by the Supreme Court in discussing its attitude toward Government appeals, probably unacceptable in any form. 5 Nevertheless, it does point to another problem with constitutional implications that the federal courts might face under the new IV. EVIDENCE SUBJECT TO SUPPRESSION UNDER 3731, AS AMENDED In making a comparison between 3731 amended and 1404 of the Narcotics Control Act, two differences appear relevant to the question of what type of evidence, if suppressed, gives rise to an appeal under the new section: First, under the new Act ( 3731), appeal is permitted from "an order granting a motion for return of seized property or a motion to suppress evidence," 6 (Emphasis added) while, in 1404, it is provided that the appeal may be taken, "from an order granting a motion for the return of seized property and to suppress evidence." (Emphasis added.) Second, the new Act has an additional provision requiring that the evidence be a substantial proof of the charge pending." 7 It could be asserted that the use of the disjunctive or in 3731, as amended, and of the conjunctive and in 1404 dispels all uncertainty. Rule 41(e), as it concerns Fourth Amendment suppression, uses the term, seized property and suppression. This seems to limit 1404 to Fourth Amendment suppression only. Moreover, reports of examinations and tests, defendant's grand jury testimony, books, papers, documents and tangible objects in the possession of the Government. 35 See text, supra at 165. The public policy arguments against this practice would be strong. The constitutional argument would be that the waiver was coerced and not voluntary U.S.C (1949, as amended, 1968). 37 See text at note 8.

11 Spring, 1969] GOVERNMENT APPEALS no reported decisions have been found which indicate that 1404 has been used for anything other than an appeal from an order suppressing physical evidence that was seized in violation of the Fourth Amendment. The use of the word or in 3731 would seem to allow the Government the right to appeal from pre-trial suppression orders regarding any evidence so long as the evidence suppressed is a substantial proof of the charge pending. This would include suppression of such things as tangible evidence, fingerprints, confessions and eyewitness testimony. The problem would arise when evidence such as the use of prior convictions is sought to be suppressed before trial. However, since this evidence is never a proof of the charge pending, it certainly would not warrant a delay in a trial to have its admissibility determined by a higher tribunal. There is some testimony reported in the Congressional Record which indicates the legislative intent was to have 3731, as amended, extend at least to confessions. 39 However, in light of the language used by the Supreme Court in Will v. United States ("the criminal appeals act is strictly construed against the Government's right of appeal"),40 it remains a question whether 3731 will be interpreted broadly enough to apply to any evidence suppressed, pre-trial, which is a substantial proof of the charge pending. Another closely aligned question is what evidence is grist for the pre-trial mill under the present Federal Rules on Criminal Procedure. Rule 41(e) provides that a person aggrieved by an unlawful search and seizure may move for the return of the seized property and suppress the evidence. The rule further provides as follows: The motion shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of the grounds 88 U.S. CONST. amend. IV, 18 U.S.C (1956) applies to narcotic prosecutions where the Government's case is dependent on its ability to get the narcotics seized into evidence. 39 On the day that the Omnibus Act passed the House of Representatives, Congressman Richard H. Poff of Virginia addressed the House concerning Title VIII, as follows: Although most of the debates in the Congress on this bill have emphasized the need for an appeal in cases where evidence is suppressed as the fruit of an illegal search and seizure under the fourth amendment, I would like to emphasize that title VIII by its terms will also permit the appeal of orders suppressing at least two other types of evidence-confessions, admissions and eyewitness identifications.... By authorizing an appeal in such cases, and thereby allowing an appellate court to determine whether the decision of the district judge suppressing the evidence is in accord with existing law, title VIII may enable many of these prosecutions to be saved. CONG. REc., H , June 6, U.S. 90, 96 (1967).

12 GONZAGA LAW REVIEW [Vol. 4:159 for the motion, but the court in its discretion may entertain the motion at the trial or hearing. 41 It is noted that this section of the rules is the only direction given to the defendant in district court upon the matter of suppression of evidence. If the amended 3731 is held to apply to all evidence that is substantial proof of the charge pending, what pretrial vehicle will be used? In the Ninth Circuit, the case of Ah Fook Chang v. United States 42 illustrates the early use of pre-trial motion procedures to suppress confessions. There, the court reviewed the district court's order, which was entered as a result of a pre-trial motion to suppress an alleged illegally obtained confession. In such a case the use of Rule 41(e) might be appropriate as a vehicle to suppress. However, it is possible that an alternative motion might be used. 48 In the case of In re Fried, 44 the court had before it a motion to suppress a pre-indictment confession. The lower court heard the motion but denied the application under Rule 41(e) to suppress the confession. The court of appeals reversed, holding that the motion to suppress the confession should have been heard since the determination would not be whether the confession was truthful but whether it was legally taken. This was deemed to justify the use of Rule 41 (e). Judge Learned Hand, in his opinion concurring on that particular aspect of the case, stated that: It would be an intolerable burden upon the prosecution of crime, if it were possible to test in advance the competency of evidence which the accused... might be able to show was likely to be used against him... Although, so far as I know the same rule has not as yet been extended to confessions (Rule 41 (e)) procured in violation of the Fifth Amendment, I feel too much the force of consistency not to take this added step... I cannot see any rational basis here for distinguishing between the two amendments when the situation is so nearly the same Since the Fried decision several federal courts have assumed the power to act on a motion to suppress evidence of a confession under Rule 41(e). 4 6 As might be expected, however, not all federal 41 FED. R. Cium. P. 41(e) F.2d 805 (9th Cir. 1937). 43 FED. R. Civ. P. 12 (b) (1). See Annot., 1 A.L.R.2d 1012 (1948) F.2d 453 (2d Cir.), cert. denied 331 U.S. 858 (1947). 45 Id. at United States v. Conway, 217 F. Supp. 853 (D. Mass. 1962), where the court began its opinion with this statement: "This case is before me on defendant's motion, pursuant to Rule 41(e), to suppress evidence and an alleged confession." Supra at 854. The court did not question the propriety of this procedure. In Lapides v. United States, 215 F.2d 253 (2d Cir. 1954), this procedure was also used with-

13 Spring, 1969] GOVERNMENT APPEALS courts have approved of this procedure. In United States v. Marshall, 47 the defendant sought to suppress statements made to the police subsequent to his arrest. The motion was denied and the court stated: "The invariable practice in this District is to follow the prevailing procedure of not entertaining such motions, but to leave objections to admissibility of a statement made by the defendant to be determined at the trial." 48 The court in Marshall justifies its position on the grounds that: The situation is entirely different from that presented by motions to suppress tangible evidence obtained by an unlawful search and seizure. Such motions are expressly provided for by Rule 41 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., which represents an exception to the general doctrine that matters to be determined in connection with the merits of a case should not be decided piecemeal, but at the trial. 49 While in Marshall the court appears to take the traditional approach, the reasoning of Judge Learned Hand in Fried is more persuasive in light of the Government's new right of appeal, which in all likelihood will apply to confessions. Section 3501 of the Crime Control Act provides that, before a confession is received in evidence, "the trial judge shall, out of the presence of the jury, determine any issue as to voluntariness.1 50 It is not stated at what time during the criminal proceedings this hearing is to be held. It might be argued that the words "out of the presence of the jury" mean that the hearing is to be conducted after a jury has been empaneled and after jeopardy has attached. However, that particular statement is not determinative of the issue. This has been the law since Jackson v. Denno. 5 ' There the case was submitted to the jury with the instructions that they were to disregard the confession of the defendant if they found it to be involuntary. A conviction followed and the Supreme Court reversed stating: "Equally clear is the defendant's constitutional right at some stage in the proceeding to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of voluntariness.... The Court then says that the trial judge, another judge, another jury, but not the trial jury, may determine out questioning its propriety. See also Annot., 1 A.L.R.2d 1012 (1948); Annot., 94 A.L.R.2d 1087 (1964) F.R.D. 505 (D.C. 1960). 48 Id. 49 Id. at U.S.C (1968) U.S. 368 (1964). 52 Id. at

14 GONZAGA LAW REVIEW [Vol. 4:159 the issue of voluntariness." It is interesting to observe that the Court says that this issue may be determined, "at some stage in the proceeding." The proceeding in any criminal case begins with the filing of the complaint. The conclusion to be drawn is that a pre-trial motion to test the admissibility of the confession should be entertained at any time thereafter. Under Rule 16(a) of the Federal Rules of Criminal Procedure, the defendant by motion may secure and copy any statement or confession in the possession of the Government. It can be expected that the United States attorney in the future will make it a point to give a copy of the confession to defense counsel at an early stage in the proceedings. Following this, the question becomes, at what time should defense counsel move to suppress the confession? When it is offered at trial, or prior to trial under Rule 12(b) (1) or Rule 41 (e)? Since there is no rule which requires the defendant to move to suppress a confession in advance of trial he may be expected to delay until jeopardy has attached. Again this points up the need for revision of the Federal Rules of Criminal Procedure as a result of the Crime Control Act. In Washington, Rule W in Criminal Rules for Superior Courts provides in part that: In every criminal case in which a confession or confessions of the accused are to be offered in evidence, the judge either at the time of the trial, or prior thereto, shall hold a hearing, in the absence of the jury for the purpose of determining whether in the light of surrounding circumstances the confession was voluntary, and therefore admissible. 54 It appears that the customary practice in most counties is that a judge who knows that a confession may be offered will hold the hearing well in advance of the trial. Although there is neither a Rule in Washington that requires the defendant to move in advance of trial to suppress evidence, nor a statute which expressly allows the state to appeal suppression orders made before trial, there are decisions which indicate approval of the use of interlocutory appeals resulting from suppression rulings. 55 The discussion to this point has centered upon the suppression 53 Under the Omnibus Act the issue of voluntariness must be determined by the judge alone. 18 U.S.C (1968). 54 WASH. SUPER. CT. ClIM. R W. 55 In State v. Whitney, 69 Wn. 2d 256, 418 P.2d 143 (1966), the state supreme court granted certiorari from a trial court's order granting a pre-trial motion to suppress fingerprints. The review was interlocutory. The court stated that its powers to review were constitutional and could not be deprived by the legislature. The opinion presents an argument for expanding the power of the state to appeal in criminal cases from suppression orders on an interlocutory basis.

15 Spring, 1969] GOVERNMENT APPEALS of confessions. It has been suggested by commentators to the Fried decision that Judge Learned Hand really meant to say that pretrial motions to suppress should be allowed in all cases where the objection to the evidence is based upon specified constitutional grounds. 58 With the added requirement in 3731 that the proof be substantial to the charge pending, such a suggestion at present would seem to represent the natural direction that one might expect to find the courts taking if 3731, as amended, is held to apply to all forms of evidence capable of pre-trial suppression. V. INTERCEPTION OF WIRE AND ORAL COMMUNICATIONS-THE APPEALABLE ORDER The Crime Control Act of 1968 provides, in 2518(10) (b), that the Government: In addition to any other right to appeal,... shall have the right to appeal from an order granting a motion to suppress made under paragraph (a) of this subsection, or the denial of an application for an order of approval, if the United States attorney shall certify to the judge or other official granting such motion or denying such application that the appeal is not taken for the purposes of delay. Such appeal shall be taken within thirty days after the date the order was entered and shall be diligently prosecuted. 57 According to the Congressional Record, this section is intended to reflect existing law in the area of narcotics control under It should be noted that 2518 does not require that the United States attorney certify that the evidence obtained by the interception is a substantial proof of the charge pending. The section is identical to 1404 except for the type of evidence to which it is directed. Also, under 2518 the United States attorney must certify that the appeal is not taken for purposes of delay. There is no exception to this requirement where the appeal is taken from a denial of the application for approval of the interception. One must assume that the person against whom the interception was to be used is still at large. In such case, this provision would appear to be unnecessary since the issue of a speedy trial could not arise, no charge having been filed. Under this provision of the Crime Control Act, 5 9 any aggrieved person may move before trial, hearing or other proceeding, unless 56 See e.g., Note, 60 HARv. L. REv (1947) U.S.C (10) (b) (1968). The entire title on interception of wire and oral communications is an addition to 18 U.S.C., Part I. The section numbers given to provisions in the Act are identical to those found in 18 U.S.C. 58 See 2 U.S. CODE CONG. & AD. NEws at 2196 (1968) U.S.C (10) (b) (1968).

16 GONZAGA LAW REVIEW [Vol. 4:159 he was unaware of the grounds for the motion, to suppress the contents of any interception of wire or oral communication, or evidence derived therefrom, 60 on the following grounds: (i) the communication was unlawfully intercepted. (ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or (iii) the interception was not made in conformity with the order of authorization or approval. Subsection (9) of 2518 requires that the Government furnish the accused, ten days before trial, hearing or other proceeding, a copy of the court order and accompanying application under which the interception was authorized or approved. 61 The ten-day rule may be waived if the judge determines that the accused was not prejudiced by the delay in receiving the information." 2 This ten-day rule applies to the procedures involved in authorization and accomplishment of an interception, but not to the contents of the communication or evidence derived therefrom. 63 When an aggrieved party has filed his motion to suppress, the judge may in his discretion make available to that person all or part of the intercepted communication or evidence derived therefrom in accordance with the interests of justice. 64 However, in the recent case of Alderman v. United States, 65 the Supreme Court has held, "... that surveillance records as to which any petitioner has standing to object should be turned over to him without being screened in camera by the trial judge." This decision would appear to remove any discretion vested in the trial court under the Act to withhold the contents derived from the surveillance. The Government, in order to preserve its right to appeal, would have to inform the aggrieved person prior to trial, hearing or other proceeding, that it has intercepted an oral communication, naming the time, date and persons present. This could afford the aggrieved party ample information to reconstruct his whereabouts at that particular time when the communication was intercepted. 60 It would seem that Congress means evidence coming under the famed "fruit of the poison tree" doctrine. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 391, 392 (1920) ; Wong Sun v. United States, 371 U.S. 471 (1963); Katz v. United States, 389 U.S. 347 (1967) U.S.C (9). 62 Id U.S.C (10). 64 Id US US.L. Wux 4189 (1969).

17 Spring, 1969] GOVERNMENT APPEALS VI. CONCLUSION Since the Crime Control Act has not been subjected to decisional interpretation, it is impossible to forecast the use that the United States will make of the new right to appeal. If usage becomes widespread, the impact on criminal pre-trial discovery and pre-trial motion procedures will be significant. If one assumes that the Government has the right, under Title VIII of the Crime Control Act ( 3731, as amended), to appeal from pre-trial rulings suppressing any evidence that is a substantial proof of the charge pending, the Government should no longer assert that it is being subjected to an intolerable burden in defending against such a pre-trial motion. What is to be expected of defense counsel? Decisions prior to the amendment of 3731 questioned the propriety of defense counsel's using Rule 41(e) to suppress during trial evidence other than that seized in violation of Fourth Amendment rights. But it can be argued that counsel would be remiss in his duties if he does not at least attempt to thwart the Government's right to appeal a suppression order by holding back his motions until jeopardy has attached. While one case 66 has indicated that such an attempt is likely to fail when the evidence involves search and seizure, no like decisions exist relating to any other type of evidence. If the new 3731 does give the Government a right to appeal suppression orders covering any evidence that is substantial proof of the charge pending, the right will remain useless until the Federal Rules of Criminal Procedure are revised so as to apply equally to all evidence, as they presently do to search and seizure under the Fourth Amendment. Development in this area will merit close attention by bench and bar. 66 Giacona v. United States, 257 F.2d 450 (5th Cir.), cert. denied 358 U.S. 873 (1958).