Felix Frankfurter

“ 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) . ”

“ 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' ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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.) . ”