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March 12, 1993


The opinion of the court was delivered by: HARRIS

 This case now is before this court on remand from the Court of Appeals, which directed the making of findings of fact and conclusions of law. *fn1" United States v. Williams, 293 U.S. App. D.C. 20, 951 F.2d 1287 (D.C. Cir. 1991).


 Obviously, the Court of Appeals and the District Court have significantly different roles to play. Nonetheless, they are partners in the administration of justice. That being true, in a unique situation a District Judge may feel obliged to express serious concern as to the potential consequences of an appellate opinion while dealing with a case on remand, so that differing views may be exposed for consideration in the overall legal community. That is true here, in part (as would be normal) because the panel which decided the case "will retain jurisdiction over the case following remand." 951 F.2d at 1291. Due to a genuine concern as to the potential impact of what the Court of Appeals has done in this case, this Court has decided to set forth its views in a manner which is intended to be both respectful and constructive.

 The Federal Rules of Procedure

 All "inferior Courts" created under Article III of the Constitution are ones of limited jurisdiction; the majority of their powers are these which are conferred upon them by Congress. Article III courts are bound by the Federal Rules of Criminal (and Civil) Procedure, the Federal Rules of Evidence, and the Federal Rules of Appellate Procedure. Those rules have the effect of law, and there is a statutory manner by means of which they are to be promulgated (and, obviously, amended). See 28 U.S.C. ยงยง 2072-76. One rule tells trial judges what they are to do after a hearing in a criminal case on a motion such as a motion to suppress: "Where factual issues are involved in determining a motion, the court shall state its essential findings on the record." Fed. R. Crim. P. 12(e). More is required when a trial court issues a temporary restraining order or a preliminary injunction in a civil case (see Fed. R. Civ. P. 65(d)). If a district judge conducts a non-jury civil trial, the court is oblidged to "find the facts specially and state separately its conclusions of law thereon . . . ." Fed. R. Civ. P. 52(a). *fn2" It is not believed that any other federal rule of civil or criminal procedure requires a trial judge to make findings or conclusions.

 What Happened in This Case

 This case developed in an unexceptional way. An arrest was made as an outgrowth of the observation of a street drug sale; an indictment was returned; a motion to suppress the evidence was filed by defense counsel; an opposition pleading was filed by the Government; a hearing was held on the motion; and the motion was denied. There were only two witnesses who testified at the suppression hearing; both were police officers. Their testimony was consistent and uncontradicted. This Court had two basic responsibilities. The first was to decide if the officers' testimony was credible; the second was to determine if the search and seizure which led to defendant's arrest were "unreasonable" and hence violative of the Fourth Amendment.

 There is, of course, nothing unique about having the testimony of officers provide the factual framework within which a case is decided. More than 25 years ago, a Court of Appeals' majority comprised of the late Judges Bazelon and Wright recognized that: "Normally, as an appellate court, we accept the testimony of police officers and other witnesses credited by the trial court." Jackson v. United States, 122 U.S. App. D.C. 324, 353 F.2d 862, 866 (D.C. Cir. 1965).

 After hearing the testimony of the officers and the brief arguments of counsel which were presented immediately thereafter, the undersigned stated simply:

First, the court finds the testimony of the officers to be quite credible and consistent with reason and experience.
I see no problem with what happened here. It's another escalating street scene which must be viewed considering the totality of the circumstances.
And the court sees nothing impermissible in what happened and, accordingly, denies the motion to suppress.

 When the facts are uncontroverted, as they were here, such an abbreviated manner of resolving a motion to suppress has been used by the undersigned (and, indeed, by many other trial judges) without criticism by the Court of Appeals for years.

 Let me digress to describe how trial judges typically get to the point of decision in suppression matters. A defense counsel talks to his or her client (in many cases not getting a complete or accurate version of the events) and obtains discovery from the United States Attorney's Office, after which a motion to suppress is filed. An Assistant United States Attorney talks to the officers and files an opposition pleading. Neither side knows for sure what direct and cross-examination will reveal when the hearing is held. The undersigned's suppression hearings generally are scheduled for 5:00 p.m., so as not to interfere with an ongoing trial. Notes are taken during the hearing, but this trial judge -- presumably like most -- has no shorthand skills, and the notes are imperfect. (While of course a court reporter is present to make a record of the proceeding, no transcript is available to the trial judge.)

 Given this procedure, and the requirements of the Federal Rules of Criminal Procedure, discussed infra, I respectfully suggest that the approach taken in this case is not only acceptable, but also desirable. Where there is no disagreement as to the facts, and a finding of credibility has been made, nothing can be gained by a trial judge's restatement of the testimony based upon his hearing notes and his recollection.

 As to the law, it is absolutely true that no two Fourth Amendment cases are exactly alike. From as far back as the multiple opinions in the case of Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), there is always the proverbial something for everybody in cases dealing with the Fourth Amendment. *fn3" To expect overburdened trial judges to be able to make a detailed exposition of the case law from the bench immediately following the presentation of testimony at a suppression hearing would be to expect the impossible. *fn4"

 There is nothing obtuse about the relevant provision of Rule 12(e), when it is read without embellishment and characterized accurately. It provides quite simply: "Where factual issues are involved in determining a motion, the court shall state its essential findings on the record." If there are witnesses whose testimony is uncontradicted, the trial judge must determine whether the testimony is credible. If the trial judge so finds, the testimony provides the facts. When there is a conflict in the testimony of witnesses, with opposing versions of what happened, the trial judge must resolve that conflict (to the extent that the conflict is material), and its factual findings (obviously then "essential") provide the framework in the context of which the legality of the challenged action is evaluated.

 Rule 12(e) is conspicuously (and obviously deliberately) silent as to non-essential "findings of fact" and conclusions of law. Assuredly, a legal conclusion must be reached as to whether the subject motion is granted or denied, but any suggestion that conclusions of law must be expressed is as non-existent as it is infeasible. It is doubted that there is any area of contemporary law with as many, and as varied (and indeed inconsistent), opinions as there are with respect to the Fourth Amendment. Trial judges, with no transcripts over which to deliberate, and little time for extensive research (which likely would be rather unproductive, even if it could be undertaken) are foot soldiers in the administration of the criminal justice process, appellate judges, as the often-used phrase puts it, then have the luxury of coming in and shooting the wounded. *fn5"

 It is respectfully submitted that the appellate panel has failed to appreciate Rule 12(e) 's limitations and has misunderstood its purpose. The panel has characterized the purposes of the Rule as follows:

When a district court's ruling on a pretrial motion involves factual issues, Rule 12(e) of the Federal Rules of Criminal Procedure commands the court to "state its essential findings on the record." The rule serves several functions. Findings on the record inform the parties and other interested persons of the grounds of the ruling, add discipline to the process of judicial ...

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