The majority asserts that Crim. R. 12(C) and 12(J) require that motions to suppress evidence not be made at a preliminary examination. Crim. R. 12(C) states that motions to suppress, as well as other pretrial motions, “shall be made within thirty-five days after arraignment or seven days before trial, whichever is earlier.” It is arguable that this language requires that a pre-trial motion cannot be made until after arraignment, although it is also arguable that this language only sets a *452final time for the making of pre-trial motions. Crim. R. 12(J) states that “the notice of appeal and the certification by the prosecuting attorney are [to be] filed with the clerk of the trial court * * *” but does not state that motions to suppress should be made in the trial court. Although this language is suggestive, and lends some support to the majority argument, I do not find it persuasive in light of the language and history of Crim. R. 5.
In particular, contrary to the majority, it is clear that in adopting the rules and submitting them to the General Assembly for approval, this court did not intend to bring Ohio into conformity with federal practice in this matter. In 1958, the United States Supreme Court, in Giordenello v. United States (1958), 357 U. S. 480, held that motions to suppress could not be made before a commissioner at a preliminary hearing. F. R. Crim. P. 41(e) specifically provided for such motions to be made in the district court, and F. R. Crim. P. 5 did not state any evidentiary standards to be applied by commissioners, who were not required to be lawyers.
As the majority states, Ohio, in 1960, upgraded the status of magistrates by requiring that they be lawyers, and at the same time adopted R. C. 2937.11, which was bascially similar to F. R. Crim. P. 5, except that the Ohio rule required that preliminary hearings be “ * * # under the rules of evidence prevailing in criminal trials generally * * V’ Although this court did not have occasion to construe R. C. 2937.11, it has long been the practice to permit motions to suppress and other pre-trial motions at preliminary hearings.
It was the intent of this court in adopting Crim. R. 5 to continue this practice, and not to adopt the federal rule. In fact, Ohio and the federal courts both considered adopting the other’s rule, and both declined. After the federal courts upgraded the status of commissioners (renamed “magistrates”) in 1968, Federal Magistrates Act, P. L. 90-578 (Section 631, Title 28, U. S. Code), consideration was given to requiring that the rules of evidence be applied *453at federal preliminary hearings. Preliminary Draft of Proposed Rules of Evidence for the United States District Courts and Magistrates, March 1969, 46 F. R. D. 161. This proposal was not adopted and F. R. Crim. P. 5 was amended effective October 1, 1972, and F. R. Crim. P. 5.1 was adopted. F. R. Crim. P. 5.1 contains no language concerning rules of evidence. Rather, it specifically provides that “ [objections to evidence on the ground that it was acquired by unlawful means are not properly made at the preliminary examination. Motions to suppress must be made to the trial court as provided in Rule 12.”
Very similar language was originally proposed in Ohio’s Draft Rules of Criminal Procedure. Rule 5(B) (2), published in the October 11, 1971, Ohio BAR:
i<* # # The hearing shall be conducted under the rules of evidence prevailing in criminal trials generally except that rules excluding evidence on the ground that it was' acquired by unla/wful means are not applicable. Motions to suppress must be made to the trial court as providedi in Rule 12.” (Emphasis added.)
All of the emphasized language above was deleted from the rule as finally approved by the General Assembly in 1973. The intent of this deletion could only be to apply all the rules of evidence, including those relating to suppression of evidence, at preliminary hearings as at trials, in conformance with the previous practice. Consideration was given to adopting the federal rule, but this was not done. The language and the history of Crim. R. 5 indicate that the intent of that rule is to permit motions to suppress at preliminary hearings. For that reason, I dissent.
O’Neill, C. J., concurs in the foregoing dissenting opinion.