(concurring). The order appealed from denied the application of the plaintiff in error for the return of papers, cards, memoranda, and books seized from his person. It directs their suppression as evidence which might be offered upon the trial of an indictment found against him by the grand jury. The order is not appealable, because it is interlocutory, and not final. It was not an independent proceeding. The application for their return, as unlawful, in violation of the constitutional rights of this plaintiff in error, was prosecuted as an incident to the pending criminal proceedings. If it were an independent proceeding, the order is final and appealable, under section 225 of title 28 of the United States Annotated Code.
The mere fact that criminal proceedings were pending prior to the petition for the return of the papers is not of itself conclusive on the question of whether the petition enters the criminal prosecution, nor would the fact that the property was seized pursuant to a search warrant make the proceeding for the return of such property a special proceeding. Where the petition is directed to the warrant itself, and seeks the return of property seized thereunder, it is a special proceeding and the pendency of the criminal action is unimportant. Steele v. United States, 267 U. S. 505, 45 S. Ct. 417, 69 L. Ed. 761; United States v. Kirschenblatt (C. C. A.) 16 F.(2d) 202. Similarly where property is obtained under subpoena duces tecum. Essgee Co., etc., v. United States, 262 U. S. 151, 43 S. Ct. 514, 67 L. Ed. 917.
But where the application attacks the warrant, demanding a return of the property, and seeks to suppress the property seized as evidence, then, if there be a criminal action pending, the application must be regarded as within the criminal proceeding, and the order entered is interlocutory. Jacobs et al. v. United States (C. C. A.) 8 F.(2d) 981; Coastwise Lumber & Supply Co. v. United States (C. C. A.) 259 F. 847. In Kirvin v. United States (C. C. A.) 5 F.(2d) 282, we reviewed an application made during the pendency of a criminal action, which sought to vacate a search warrant and incidentally aske'd for the suppression of any information obtained therefrom. There the application was begun under a separate and independent title, and was intended primarily to attack the validity of a search warrant. Of course, if there be no criminal action pending, it would follow that an application respecting an alleged illegal search warrant is a special proceeding. Burdeau v. McDowell, 256 U. S. 465, 41 S. Ct. 574, 65 L. Ed. 1048; In re Hollywood Cabaret, etc. (C. C. A.) 5 F.(2d) 651. So where the application is made by a third party, asserting that his property has been wrongfully seized, an order entered is final and appealable, and it is immaterial, whether criminal proceedings are pending, or whether search was made pursuant to an alleged illegal arrest or alleged illegal search warrant. Perlman v. United States, 247 U. S. 7, 38 S. Ct. 417, 62 L. Ed. 950.
At bar, the papers were seized pursuant to a claimed illegal arrest. The application *310not only asked for the return of the papers, but for their suppression as evidence, and it is clear that the application was in the criminal action, and the order entered is interlocutory, and not appealable. The appeal should be dismissed.