TUTTLE, Circuit Judge.
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.
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
The appeal is dismissed.
"Rule 5. Proceedings before the Commissioner.
"(a) Appearance before the Commissioner. * * * any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available commissioner or before any other nearby officer empowered to commit persons charged with offenses against the laws of the United States. When a person arrested without a warrant is brought before a commissioner or other officer, a complaint shall be filed forthwith."
Subsequent proceedings are also prescribed by Rule 5 as follows:
"(b) Statement by the Commissioner. The commissioner shall inform the defendant of the complaint against him, of his right to retain counsel and of his right to have a preliminary examination. He shall also inform the defendant that he is not required to make a statement and that any statement made by him may be used against him. The commissioner shall allow the defendant reasonable time and opportunity to consult counsel and shall admit the defendant to bail as provided in these rules.
"(c) Preliminary Examination. The defendant shall not be called upon to plead. If the defendant waives preliminary examination, the commissioner shall forthwith hold him to answer in the district court. If the defendant does not waive examination, the commissioner shall hear the evidence within a reasonable time. The defendant may cross-examine witnesses against him and may introduce evidence in his own behalf. If from the evidence it appears to the commissioner that there is probable cause to believe that an offense has been committed and that the defendant has committed it, the commissioner shall forthwith hold him to answer in the district court; otherwise the commissioner shall discharge him. The commissioner shall admit the defendant to bail as provided in these rules. After concluding the proceeding the commissioner shall transmit forthwith to the clerk of the district court all papers in the proceeding and any bail taken by him."