The opinion of the court was delivered by: HERLANDS
HERLANDS, District Judge:
Two pretrial motions by defendant Lowell M. Birrell raise novel and challenging questions about the nature and scope of the procedures to be followed after a defendant's successful application to suppress illegally seized evidence.
One problem concerns the inventory of the seized items to be prepared by the Government subsequent to the illegal seizure under an invalid search warrant. The other relates to the character and timing of an evidential hearing to determine whether the Government's trial evidence is or will be absolutely free from the taint of the illegally seized evidence which has been ordered suppressed.
(1) "an order, pursuant to Rule 41(d) of the Federal Rules of Criminal Procedure and the Fourth, Fifth and Sixth Amendments to the Constitution of the United States, directing the United States Attorney to file an inventory of the property which the Government seized from defendant Lowell M. Birrell on August 22 and 24, 1959 with the Clerk of this Court; to deliver to his attorney a copy thereof, as well as a receipt for all property taken, and otherwise duly to comply with the requirements of said Rule 41(d) of the Federal Rules of Criminal Procedure"; and
(2) "an order, pursuant to Rules 12(b)(1) and (4) and 41(e), Federal Rules of Criminal Procedure and the Fourth, Fifth and Sixth Amendments to the Constitution of the United States, directing that a hearing be held, prior to the trial of the defendant herein, at which the United States will be required to prove beyond a reasonable doubt, that the evidence which it intends to introduce against the defendant at his trial is untainted by the evidence unlawfully seized from the defendant on August 22 and 24, 1959, which this Court ordered suppressed on June 11, 1965."
The pertinent facts and circumstances revolve around a vast quantity of documentary records which were seized on August 22 and 24, 1959 in the Eastern District of Pennsylvania, placed in the custody of this Court in November, 1959, and suppressed as evidence by order of Judge Wyatt of this Court on June 11, 1965.
The odyssey of the records began on August 20, 1959, when information about their location became known at an ancillary proceeding in bankruptcy pending in this Court. On the basis of an affidavit of one of the attorneys in that proceeding, a search warrant issued on August 22, 1959. A second search warrant issued on August 24, 1959 supported by an affidavit of a postal inspector. Each warrant was executed and returned on its issue date.
Accompanying each return was an inventory of the property seized which was prepared by the Deputy Marshal who executed the warrant. The exact language of the description of property in the warrant and of the Deputy Marshal's inventory are set out in the margin.
It may be seen that the description in the warrant is exceedingly broad, and the wording of the inventory is similarly lacking in specificity. The two searches netted a total of more than fifty file cabinets and cartons of records. The number of individual documents is said to be between one and two million.
From late 1959 until July 1961, the records were kept in the custody of the Clerk of this Court. Attorneys in the above-mentioned bankruptcy proceeding and representatives of several government agencies were authorized to inspect and obtain photocopies of the records. The files of the Clerk's office show that various attorneys involved in the bankruptcy proceeding inspected the records, as well as representatives of the Attorney-General of the State of California and the District Attorney for the City of Los Angeles.
In July 1961, with the permission of Judge Palmieri of this Court, the records were moved from a file room of the Clerk's office to a file room of the United States Attorney's office. Representatives of that office, with the aid of investigators from the Securities and Exchange Commission, commenced an inspection and inventory of the records.
Late in 1964 - more than five years after the records had been seized - defendant moved for their suppression and return. Finding that the affidavits underlying the warrants were insufficient to establish probable cause, Judge Wyatt ordered the seized property suppressed for use as evidence against the defendant. 242 F. Supp. 191, 201 (1965). By a subsequent order, Birrell was adjudged entitled to the return of these records belonging to him upon proof of ownership. 243 F. Supp. 38, 41 (1965).
For two periods in 1965 - one prior to and the other subsequent to the suppression order - Birrell was authorized by court order to inspect the seized property. Both orders incorporated provisions for an extension of time, which were never invoked.
Copies of the inventory compiled by the United States Attorney's office were furnished to Birrell's defense counsel on February 10, 1967 and filed* with the Court. This work product inventory is selectively detailed and amounts to 300 pages. In addition, the Government has submitted, in opposition to defendant's motion, a set of affidavits which purports to demonstrate that the seized records had been kept intact from the time of the seizure until the compilation of the Government's inventory. Defendant, however, strongly disputes the sufficiency of the Government's proof on this point.
I. MOTION FOR AN INVENTORY
(1) the provision for an inventory contained in Fed.R.Crim.P. 41(d) is mandatory and has not been satisfied; and
(2) identification of all of the property originally seized is constitutionally compelled to (a) define the scope of the suppression order, (b) establish that all of the seized property has been made available to defendant, and (c) provide the Court with a sufficient basis to determine whether the Government has met its burden of proving the purity of its trial evidence.
In the event that the Government fails to identify and make available all of the seized evidence, defendant contends that he cannot constitutionally be tried and, therefore, the indictment must be dismissed.
The Government, on the other hand, argues that:
(1) the inventories which accompanied the return of the warrants were proper and sufficient ...