(dissenting):
The opinion of the majority is based upon its conclusion that appellee’s arrest was illegal, and with this I cannot agree. Although the Maryland officer stopped ap-pellee because of his excessive speed, he did not arrest him. The Maryland officer told appellee that he could either follow him back to Maryland or remain in the District. This language indicates clearly that the Maryland officer realized he had no authority to make an arrest in the District and in effect informed appellee that he was not under arrest. It is plain that appellee did not understand he was under arrest because he told the officer he would not accompany him to Maryland. This is further evidenced by appellee’s going to his car and entering it, preparing to drive away. It was then that he was arrested. In the words of the Park policeman, “When he got into the car, I placed him under arrest for operating under the influence.” In my opinion this was a legal arrest. The Park policeman had observed appellee when he was talking to the Maryland officer and from his observation had concluded that appellee “was in a drunken condition.” Was the officer required to stand idly by while a man in this condition drove away? When appellee entered the car, with the keys in the ignition, he was in full control of the car and was the operator.1 I think the Park policeman would have been derelict in his duty had he not arrested appellee.
Even if the arrest were illegal, the order of suppression should have been more specific with respect to the particular items of evidence to be suppressed. In view of its grant of the motion to suppress “all evidence obtained as the result of his arrest,” I think it must be assumed that the court intended to suppress all testimony by both the Maryland officer and the Park policeman concerning anything observed by either of them after appellee was stopped. Giving this broad sweep to the order of suppression, it could not, or at least should not, have the effect of suppressing the Maryland officer’s testimony concerning the excessive speed charge, because the excessive speed was observed by the officer prior to stopping appellee. It may be argued that the identification of appellee was obtained after he was stopped and that evidence of excessive speed without identification of the driver amounts to nothing. This brings up the much discussed and much argued doctrine of “the fruit of the poisonous tree.”
The limits of this exclusionary rule have been stated in general terms but its application to a particular state of facts has caus*849ed difficulty.2 The Supreme Court has said: “We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police.” 3 The sweeping order of the trial court, suppressing “all evidence” obtained as a result of the arrest, appears to me contrary to the holding of the Supreme Court.
Putting aside the suppression order, I turn to the orders of the dismissal of the informations. Generally an information may be attacked only for defects apparent on its face.4 The mere fact that a motion to suppress is granted furnishes no basis for dismissing the information. As was pointed out in Coppedge v. United States, 114 U.S.App.D.C. 79, 82, 311 F.2d 128, 131 (1962), cert. denied 373 U.S. 946, 83 S.Ct. 1541, 10 L.Ed.2d 701: “The ultimate safeguard for the individual accused is at the trial where rules of evidence exclude incompetent testimony and where a timely motion requires the exclusion of evidence obtained in violation of the accused’s constitutional rights.”
There is authority for the proposition that a court may in its discretion dismiss an indictment or information when it clearly appears that the charge is supported by evidence clearly incompetent or which would not be admissible at trial. If such an action is ever justified, it is only in those extreme cases where it is clear beyond doubt that the government has no competent evidence to support the charge. “ * * * the legality of the search too often cannot truly be determined until the evidence at the trial has brought all circumstances to light.”5 Here the trial court appears to have assumed that the orders of dismissal automatically followed the order of suppression. This was error.
In connection with the dismissal of the informations, it should be recalled that the government may not appeal from a pre-trial order suppressing evidence.6 This raises the interesting question here whether the trial court, after suppressing evidence, may by the simple expedient of dismissing the informations make appealable that which is not appealable.7
I would hold that the arrest by the Park policeman was a valid arrest and reverse the orders of suppression and dismissal. Even if the arrest was illegal, I would reverse the order of suppression on the ground that it was too broad in character, and order the informations reinstated and permit the admissibility of the specific items of evidence to be tested at trial.
. See Houston v. District of Columbia, D.C.Mun.App., 149 A.2d 790 (1959); Perry v. District of Columbia, D.C.Mun.App., 162 A.2d 769 (1960).
.See Smith v. United States, 120 U.S.App.D.C. 160, 344 F.2d 545 (1965); Edwards v. United States, 117 U.S.App.D.C. 383, 330 F.2d 849 (1964); McLindon v. United States, 117 U.S.App.D.C. 283, 329 F.2d 238 (1964); Smith v. United States, 117 U.S.App.D.C. 1, 324 F.2d 879 (1963), cert. denied 377 U.S. 954, 84 S.Ct. 1632, 12 L.Ed.2d 498; Williams v. United States, 105 U.S.App.D.C. 41, 263 F.2d 487 (1959); Bynum v. United States, 104 U.S.App.D.C. 368, 262 F.2d 465 (1958).
. Wong Sun v. United States, 371 U.S. 471, 487-488, 83 S.Ct. 407, 9 L.Ed.2d 441.
. Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958).
. Di Bella v. United States, 369 U.S. 121, 129, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962).
. Carroll v. United States, 354 U.S. 394, 77 S.Ct. 1332, 1 L.Ed.2d 1442 (1957).
. See United States v. Tane, 329 F.2d 848 (2d Cir.1964), and United States v. Kanan, 341 F.2d 509 (9th Cir.1965).