(concurring specially).
I concur in the result reached by the majority but I do not agree that we should consider events which occurred subsequent to the decision below in considering and determining the appealability of the judgment of the district court.
Involved in DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614, were claims asserted under F.R.Crim. P. 41 (e). I agree that, although the complaint in the instant case is “also pitched on equitable jurisdiction, apart from Rule 41(e), we believe the reasoning of DiBella forecloses review here even as an appeal from a decree denying an injunction under 28 U.S.C. 1292.” DiBel-la, however, suggests an exception with respect to an independent action solely for return of property and which is in no way tied to a criminal prosecution in esse.
It is the long-established general rule (with exceptions not pertinent here) that appellate courts take questions raised on appeal as they existed below without-considering subsequently occurring events. It is perfectly obvious from the complaint that this proceeding was not solely for the return of property as suggested by DiBella. The plaintiffs were seeking to enjoin and suppress the use, for purposes of indictment, prosecution or in any way, of any and all evidence obtained by the defendants, not only in documentary form but also knowledge and information gained by the defendants from oral admissions and statements made by plaintiffs during the course of interviews and interrogations. The fifth item in the prayer for relief did not seek the return of property but only the destruction of copies of plaintiffs’ books' and records and summaries and compilations thereof. If the plaintiffs had followed the suggested exception in DiBella as to an independent action solely for the return of property where no criminal proceeding was then afoot they conceivably could have sought the return of property through the use of a mandatory injunction. But in the in*604stant case they sought relief far beyond that which would be afforded solely by the return of property.
The indictments obtained and criminal proceedings prosecuted subsequent to the entry of the judgment of the district court are not in any way pertinent to the principal question here presented, i. e., the appealability of the judgment below. I would dispose of the case on the record as it came to us on appeal.