United States v. Doe (In re Search Warrants Issued February 18, 2022(

111 F.4th 316

IN RE: SEARCH WARRANTS ISSUED FEBRUARY 18, 2022.

United States of America, Plaintiff-Appellee, v. John Doe, Movant-Appellant.

No. 23-4330

United States Court of Appeals, Fourth Circuit

Argued: January 25, 2024

Decided: August 2, 2024

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Senior District Judge. (3:22-mj-00078-RJC)

ARGUED: Elliot Sol Abrams, CHESHIRE PARKER SCHNEIDER, PLLC, Raleigh, North Carolina, for Appellant. John Gibbons, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Erin L. Wilson, CHESHIRE PARKER SCHNEIDER, PLLC, Raleigh, North Carolina, for Appellant. Michael F. Easley, Jr., United States Attorney, David A. Bragdon, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Before AGEE, RICHARDSON, and QUATTLEBAUM, Circuit Judges.

Dismissed by published opinion. Judge Richardson wrote the opinion, in which Judge Agee joined. Judge Quattlebaum wrote a concurring opinion.

RICHARDSON, Circuit Judge:

John Doe appeals the district court's order denying his Federal Rule of Criminal Procedure 41(g) motion, which sought to impose a filter protocol to protect his asserted privileges in records lawfully seized by the Government. But we can't reach the merits of Doe's motion because we lack appellate jurisdiction over it. So we dismiss his appeal.

I. BACKGROUND

In early 2022, FBI and IRS agents investigated Doe and his businesses for suspected wire fraud, money laundering, and tax fraud. The agents sought and obtained three search warrants from a neutral and detached magistrate, which authorized the Government to search Doe's apartment, office, and vehicle for evidence of the suspected crimes. But the Government anticipated that it might encounter materials covered by the attorney-client privilege or work-product doctrine during its search. So it elected to include a provision in the warrant establishing a filter protocol for any protected items, which the magistrate judge approved.

Under the initial protocol included in the warrants, investigators would execute the search warrants and begin their review of seized materials as though it were any ordinary search. But should investigators —referred to as "the Prosecution Team"—identify "materials[] that [wer]e potentially attorney-client privileged or subject to the work product doctrine," such review would halt until "a Filter Team of government attorneys and agents" with "no future involvement in the investigation" of Doe could "segregate" potentially protected documents from any unprotected materials. J.A. 6. While unprotected materials would be immediately sent to the Prosecution Team, potentially protected materials could be sent only with Doe's consent or a court order finding that the materials were not privileged.

With this limitation in place, agents executed the three warrants on February 23, 2022. The searches of Doe's apartment and office resulted in the seizure of various "paper materials" and twenty-three electronic devices, including computers, thumb drives, hard drives, and a cell phone. J.A. 128. That same day, the Government served Doe's businesses with grand jury subpoenas.

Although the search warrants authorized the Government to begin its review of the seized material immediately, it decided to wait and have the Filter Team prophylactically segregate privileged materials.¹ The Government thus contacted Doe in May 2022—three months after the searches—and asked for "search terms, such as attorneys['] emails and domain names, to assist in segregating potentially privileged material." J.A. 76. Yet Doe's counsel failed to respond to the Government's request. His counsel then withdrew from the case a few weeks later, so the Government asked Doe's new counsel for search terms in October. At that point, Doe's new counsel refused to give any search terms and "objected to the Government's review of seized material absent agreement or court order." J.A. 128.

Doe and the Government then began negotiating how best to review the seized material while still respecting Doe's privileged records. Unfortunately, those negotiations failed, so Doe made his arguments in court. On December 2, 2022, Doe moved before a magistrate judge to intervene in the district court proceeding granting the search warrants "in order to assert valid claims of privilege and thereby avoid the deprivation of his constitutional rights." J.A. 17. He then filed a second motion "pursuant to the Fourth, Fifth, and Sixth Amendments; Federal Rule of Civil Procedure 65; and Federal Rules of Criminal Procedure 16(d) and 41(g) to enjoin the government from reviewing the seized material utilizing the ex parte filter protocol set forth in the search warrant." J.A. 21. In so doing, Doe "move[d] for an order establishing a filter protocol that adequately protects [his] legal privileges." Id. Doe's proposed protocol would require three things: (1) he would "have an opportunity to conduct a privilege review and lodge privilege objections prior to documents being provided to the Prosecution Team"; (2) "a judicial official (a judge or a special master) [would] make privilege determinations as to any documents about which the privilege assertion is disputed prior to those documents being provided to the Prosecution Team"; and (3) "the Filter Team [would] be comprised of people who are not employed by the same offices as members of the Prosecution Team." Id.

The Government didn't oppose the intervention motion, and the magistrate judge granted it. The magistrate judge, however, denied Doe's substantive motion. He agreed that a Rule 41(g) motion is the proper method for seeking an injunction against a proposed filter protocol. But on the merits, he found that Doe is not entitled to such an injunction because Doe does not satisfy any of the four factors required for a preliminary injunction. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). As such, the magistrate judge adopted the Government's proposed filter protocol, which was simply a modified version of the initial filter protocol.²

Doe subsequently appealed the magistrate's denial of his filter-protocol motion to the district court.³ The district court, in turn, considered the Winter factors anew and agreed that Doe is not entitled to an injunction. So it denied Doe's appeal on the merits. Doe then timely appealed to this Court.

II. DISCUSSION

Doe claims that the district court's order is contrary to law. We cannot reach the merits of his argument, however, for we lack jurisdiction over his appeal.

A. We lack appellate jurisdiction under 28 U.S.C. § 1291.

Like all federal courts, we are a court of limited subject matter jurisdiction. We may only decide a case when both the Constitution and a federal statute permit it. Wideman v. Innovative Fibers LLC, 100 F.4th 490, 495 (4th Cir. 2024). Furthermore, because subject matter jurisdiction defines our power to adjudicate, we cannot reach the merits of a case if we lack it. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93-102, 118 S.Ct. 1008, 140 L.Ed.2d 210 (1998). We thus have "a special obligation to 'satisfy [ourselves] ... of [our] own jurisdiction,' ... even though the parties are prepared to concede it." Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986) (quoting Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 79 L.Ed. 338 (1934)). And the party asserting appellate jurisdiction bears the burden of proving its existence. U.S. Fid. & Guar. Co. v. Arch Ins. Co., 578 F.3d 45, 55 (1st Cir. 2009).

Our appellate jurisdiction is generally limited to appeals from "final decisions of the district courts." 28 U.S.C. § 1291.⁴ Ordinarily, a district court's decisions are not final until there is a judgment on the merits of a case. United States v. Carrington, 91 F.4th 252, 264 (4th Cir. 2024). This so-called "final judgment rule" is grounded in the principle that, "[t]o be effective, judicial administration must not be leaden-footed." Cobbledick v. United States, 309 U.S. 323, 325, 60 S.Ct. 540, 84 L.Ed. 783 (1940). If litigants could obtain immediate review of every "component element[] in a unified case," id., the district court's work would be interrupted indefinitely, appellate dockets would be clogged, and litigants could harass each other with constant, costly appeals. Flanagan v. United States, 465 U.S. 259, 264, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984). These concerns are even greater in criminal cases, as piecemeal criminal appeals also implicate a criminal defendant's right to a speedy trial and the public's interest in the swift administration of criminal trials. United States v. Sueiro, 946 F.3d 637, 640 (4th Cir. 2020); Flanagan, 465 U.S. at 264, 104 S.Ct. 1051.

Although Doe affixed several labels to his motion below, he and the Government agree that the district court properly treated it as one under Federal Rule of Criminal Procedure 41(g).⁵ So we treat the district court's order as a Rule 41(g) order.⁶ Such orders, however, are rarely final orders.

To explain why, we turn to DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962). There, the Supreme Court addressed the appealability of pre-indictment suppression motions made under the precursor to Rule 41(g)—then-Rule 41(e). At the time, Rule 41(e) combined the modern Rules 41(g) and (h) by permitting "[a] person aggrieved by an unlawful search and seizure" to move for both the return of property and the suppression of that property in any criminal proceedings. Id. at 122 n.1, 82 S.Ct. 654 (quoting Fed. R. Crim. P. 41(e) (1962)). The Court in DiBella held that orders resolving pre-indictment suppression motions are unappealable before final judgment. Id. at 129-31, 82 S.Ct. 654. Such orders, it explained, "present[] an issue that is...