concurring:
I concur in the denial of DeMassa’s petition for rehearing and in the decision to grant the clients’ petition and remand the case to the district court. I write separately because I do not believe it has been established that this court has appellate jurisdiction to make a determination on the merits of the clients’ appeal. Under the rule of DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962), an order denying a motion for return of property is not immediately appealable unless (1) it is solely seeking the return of property; and (2) it is in no way tied to a criminal prosecution in esse against the movant. Id. at 131-32, 82 S.Ct. at 660. DeMassa’s clients fulfill the second part of the DiBella test because there is no criminal proceeding pending against them. But it is not clear that they pass the first prong of the test. The district court should determine whether the clients’ motion is solely for the return of their property and does not involve a strategy of doing for DeMassa what DiBella prevents his doing for himself.
On remand the district court should determine not only the clients’ legitimate expectation of privacy in their files but also whether they are solely seeking the return of property.