(D.C. Crim. Mag. Div. No. 72-259) (D.C. Crim. Mag. Div. No. 72-260) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Before: GIBBONS, ROSENN and WEIS, Circuit Judges.
This appeal poses, first, the important threshold question of whether this court has jurisdiction to hear an appeal by the Government in a criminal prosecution and, second, whether the border search standard should be applied to the stop and search in this case.
The district court for the Eastern District of Pennsylvania entered an order dated December 12, 1972, reversing judgments of the United States magistrate convicting and sentencing Robert Murray and Robert Beck for theft in violation of 18 U.S.C. § 659. The case was tried on April 20, 1972, before United States Magistrate Naythons. The magistrate denied motions to suppress the evidence of the theft, and both defendants were adjudged guilty and sentenced to pay a fine of $100. They appealed the convictions, and the district court reversed on the ground that the evidence should have been suppressed. The district court remanded the case to magistrate Naythons for further proceedings consistent with its opinion.
We have concluded that we have jurisdiction and that the search was legal. We therefore reverse the order of the district court.
We recently reaffirmed the "well-settled rule that an appeal by the prosecution in a criminal case is not favored and must be based upon express statutory authority." Government of the Virgin Islands v. Hamilton, 475 F.2d 529, 530 (3d Cir. 1973). The Government asserts as statutory authority for this appeal the Criminal Appeals Act, as amended in 1970, 18 U.S.C. § 3731, paragraph 2, providing:
An appeal by the United States shall lie to a court of appeals from a decision or order of a district court suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding, not made after the defendant has been in jeopardy and before the verdict or finding on an indictment or information, if the United States Attorney certifies to the district court that the appeal is not taken for the purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.
This language on its face is enigmatic. It presents us with two interpretative questions: (1) What is the meaning of the clause "not made after the defendant has been in jeopardy and before the verdict or finding on an indictment or information"; (2) Was the order entered by the district court a "suppression order."*fn1
The Senate report on the 1970 amendment to the Criminal Appeals Act discloses that Congress intended to permit a Government appeal from any suppression order not made during the course of the trial. The report states:
The amended Criminal [Appeals] Act is intended to be liberally construed so as to effectuate its purpose of permitting the Government to appeal from dismissals of criminal prosecutions by district courts in all cases where the Constitution permits, and from all suppressions and exclusions of evidence in criminal proceedings, except those ordered during trial on an indictment or information.
Senate Report No. 91-1296, at 18. The only evident purpose in establishing the limited exception as to orders entered during trial was to prevent the suspension or interruption of ongoing trials. ...