Cogen, with others as codefendants, was indicted in the federal court for southern New York on a charge of conspiracy to violate the National Prohibition Act (27 USCA). Before the indictment, certain papers had been taken from his person without a warrant. After the indictment and before trial, he applied to that court, in the criminal case, for an order requiring the United States attorney to return the papers; and to suppress all evidence obtained therefrom, on the ground that the search and seizure had been in violation of his constitutional rights. The application was denied. Before the trial of the cause, Cogen sued out a writ of error from the Circuit Court of Appeals. It dismissed the writ, holding that the order sought to be reviewed was interlocutory and hence not appealable. 24 F.(2d) 308. This court granted a writ of certiorari. 277 U.S. 579, 48 S.C.t. 436, 72 L. Ed. 997. The sole question for decision is whether the order of the District Court is a final judgment within the meaning of section 128 of the Judicial Code (28 USCA § 225).
Cogen claims that it is final, contending that his application for surrender of the papers is a collateral matter, distinct from the general subject of the litigation, and that the order thereon finally settled the particular controversy. He argues that, being so, it falls, like the orders in Forgay v. Conrad, 6 How. 201, 203, 204, 12 L. Ed. 404; Trustees of Internal Improv. Fund v. Greenough, 105 U.S. 527, 531, 26 L. Ed. 1157; and Williams v. Morgan, 111 U.S. 684, 699, 4 S.C.t. 638, 28 L. Ed. 559, within the exception to the general rule which limits the right of review to judgments which are both final and complete. See Collins v. Miller, 252 U.S. 364, 370, 40 S.C.t. 347, 64 L. Ed. 616; Oneida Navigation Corp. v. W. & S. Job & Co., 252 U.S. 521, 40 S.C.t. 357, 64 L. Ed. 697.
It is true that the order deals with a matter which, in one respect, is deemed collateral. As was said in Segurola v. United States, 275 U.S. 106, 111, 112, 48 S.C.t. 77, 79 (72 L. Ed. 186): '* * * A court, when engaged in trying a criminal case, will not take notice of the manner in which witnesses have possessed themselves of papers or other articles of personal property, which are material and properly offered in evidence because the court will not in trying a criminal cause permit a collateral issue to be raised as to the source of competent evidence. To pursue it would be to halt in the orderly progress of a cause and consider incidentally a question which has happened to cross the path of such litigation and which is wholly independent of it.' Hence, a defendant will, ordinarily, be held to have waived the objection to the manner in which evidence has been obtained unless he presents the matter for the consideration of the court seasonably in advance of the trial; and he does this commonly by a motion made in the cause for return of the property and for suppression of the evidence. The rule is one of practice; and is not without exceptions. See Gouled v. United States, 255 U.S. 298, 305, 41 S.C.t. 261, 65 L. Ed. 647; Agnello v. United States, 269 U.S. 20, 34, 35, 46 S.C.t. 4, 70 L. Ed. 145, 51 A. L. R. 409; Panzich v. United States (C. C. A.) 285 F. 871, 872.