¶1concurring: I agree with the judicial restraint used by the majority and with the result reached in this case. Regardless of our conclusions on the merits of those several important issues not decided at this time,
¶2I am not suggesting that, in every case, or in many cases, or in any particular type of case, we should review the propriety of an extant order issued by a District Court. I would seldom, if ever, consider that possibility. In the context of allegations of improper access to grand jury materials, however, the issue will seldom be ripe for consideration prior to that time that evidence is tendered in a civil proceeding. At that time, the particular grand jury probably will have been discharged, and the District Court that made the order will be heavily engaged in its then-existing criminal and civil case load and will not welcome the additional chore of deciding evidentiary questions for us. Requiring the parties to seek relief in the District Court will in any event delay our proceedings, even if that Court were inclined to review an order made many years before and no longer involved in any matter there pending. Many relevant factors must be considered before this Court adopts a policy for all cases in which respondent has received grand jury materials pursuant to an order made under rule 6(e), Federal Rules of Criminal Procedure.
¶3At the time a case is presented to us in which the parties seek a remedy other than invalidation of the notice of deficiency, such as suppression of the evidence or shifting the burden of going forward, we must determine the appropriate response. We cannot and should not do so on the record m the case now before us.
¶4 For example, Judge Wilbur seems to be applying a good-faith exception to the exclusionary rule, an idea frequently proposed and debated but not yet mandated by the Supreme Court or by Congress. While much could be said for the merits of such a rule, it does not seem to be part of the law in its current state.