(concurring in the result):
In response to an inquiry during oral argument, counsel for appellant said that he had concluded, and believed that we should conclude, that the police version of the arrest in this case was a complete *1017and conscious fabrication. His conclusion may or may not be right, but his identification of the issue is, in my view, wholly accurate. If the officers who testified about the arrest really did first encounter appellant in the alley and arrest him only after he had rid himself of narcotics in their full view, then the discrepancies between their stories are not of much moment. They take on great significance, however, if one believes that, as appellant claimed, he was stopped and searched as he was walking down the street outside the alley. And their significance is that they tend to suggest that the alley version was contrived to mask an arrest without cause.
Where the issue is, as here, one of crediting one witness rather than another, the trier who hears the live testimony is in the best position to reach a conclusion. This was the role assigned to the court which heard the evidence on the motion to suppress. If that court had clearly indicated that it had made its choice and had ruled finally and definitively on the motion to suppress, that would conclude the matter for me on this record; and I would affirm the judgment of conviction. But, after serious and repeated expressions of concern about the inconsistencies in the officers’ testimony, the court proceeded to dispose of the matter with this statement;
“[T]he Court is going to deny the motion, and with a right to renew, of course, during the course of the trial, and you are appointed counsel.
“Mr. Koonz : Yes, I am, your Honor.
“The Court: And you can request the Court to make a forma pauperis order to have this matter transcribed, so that you will have a transcript at the time of the trial.”
This is not, in the light of the doubts voiced earlier, the kind of language which suggests finality to me.1 And, if renewal of the motion be regarded as contemplated or invited by the motions court, then the trial court could not be content, as it was, with simply reading the transcript of the pre-trial suppression hearing and regarding the ruling as the “law of the case.” Appellant did not testify at the trial; and, as the trial court noted, only a hearing outside the presence of the jury would have sufficed if the earlier ruling was not intended to be final. To resolve properly an issue of credibility of the kind involved in this case, the judge who finally decides the suppression question must see and hear the clashing witnesses.
The question still remains: Who was telling the truth, appellant or the police? I concur in the remand in order that this question may finally be answered in the first instance by a trier who hears the witnesses.
. It is admittedly difficult, out of context, to define with precision the impression of tentativeness which this ruling makes on the reader of the entire record, but it nonetheless persists. It is, of course, always possible to renew at trial a motion to supress, but it was not the purpose of Rule 41(e), Fed.R.Crim.P., customarily to countenance consecutive hearings and dispositions of the same issue, once before trial and once during, absent some new and unusual turn in tbe evidence at trial. The whole point of the pre-trial hearing of motions to suppress is to expedite the trial, even to the point of eliminating the need to hold one at all. This objective is, to say the least, obscured when the pre-trial hearing judge seems preoccupied with the prospect of the trial judge’s taking a second look.