adversary hearing in District of Columbia

2016We are inclined to agree with the Supreme Judicial Court of Massachusetts that before a warrant issues to permit a bodily search of a third party who is not a suspect, the third party "must be given notice and an opportunity to be heard at an adversary hearing[.]” Draheim, 849 N.E.2d at 829 ; cf. Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044, 1061 (Colo.2002) (fen banc) (holding that "an innocent, third-party bookstore must be afforded an opportunity for a hearing prior to the execution of any search warrant that seeks to obtain its customers’ book-purchasing records”). .

2016Reasonableness Our resolution of this case must turn not on whether there is probable cause (or even suspicion) that G.B. is guilty of a crime, and not (solely) on his status as a third-party victim, but rather on the reasonableness of the proposed search. “[T]he „touchstone of the Fourth Amendment is reasonableness[.]‟” King, 133 S. Ct. at 18 We are inclined to agree with the Supreme Judicial Court of Massachusetts that before a warrant issues to permit a bodily search of a third party who is not a suspect, the third party “must be given notice and an opportunity to be heard at an adversary h

2016Akinmboni v. United States, 126 A.3d 694, 697 (D.C. 2015).

2016Reasonableness Our resolution of this case must turn not on whether there is probable cause (or even suspicion) that G.B. is guilty of a crime, and not (solely) on his status as a third-party victim, but rather on the reasonableness of the proposed search. “[T]he „touchstone of the Fourth Amendment is reasonableness[.]‟” King, 133 S. Ct. at 18 We are inclined to agree with the Supreme Judicial Court of Massachusetts that before a warrant issues to permit a bodily search of a third party who is not a suspect, the third party “must be given notice and an opportunity to be heard at an adversary h

2007Indeed, “without more, such as a finding of fraud or collusion, a finding of mere bias in the proceedings of a social organization is not sufficient to invoke an exception to the rule against judicial interference.” Werst v. Three Fires Council of the Boy Scouts of America, 346 Ill.App.3d 706 , 282 Ill.Dec. 90 , 805 N.E.2d 709, 718 (2004) (judicial intervention not proper even where “primary accuser” was on the committee that decided to revoke individual’s membership).

2007Indeed, “without more, such as a finding of fraud or collusion, a finding of mere bias in the proceedings of a social organization is not sufficient to invoke an exception to the rule against judicial interference.” Werst v. Three Fires Council of the Boy Scouts of America, 346 Ill.App.3d 706 , 282 Ill.Dec. 90 , 805 N.E.2d 709, 718 (2004) (judicial intervention not proper even where “primary accuser” was on the committee that decided to revoke individual’s membership).

2007See also Withrow v. Larkin, 421 U.S. 35, 55 , 95 S.Ct. 1456 , 43 L.Ed.2d 712 (1975) (“The mere exposure to evidence presented in nonadversary investigative procedures is insufficient in itself to impugn the fairness of the Board members at a later adversary hearing.”).

2007See also Withrow v. Larkin, 421 U.S. 35, 55 , 95 S.Ct. 1456 , 43 L.Ed.2d 712 (1975) (“The mere exposure to evidence presented in nonadversary investigative procedures is insufficient in itself to impugn the fairness of the Board members at a later adversary hearing.”).

1991The court went on to note that § 16-2301(3)(A) embodies the concept of prosecutorial discretion, id., and squarely rejected the argument "that due process requires an adversary hearing before the prosecutor can exercise his age-old function of deciding what charge to bring against whom." 153 U.S.App.D.C. at 262, 472 F.2d at 1336-37 (emphasis added).

1991The court went on to note that § 16-2301(3)(A) embodies the concept of prosecutorial discretion, id., and squarely rejected the argument “that due process requires an adversary hearing before the prosecutor can exercise his age-old function of deciding what charge to bring against whom.” 153 U.S.App.D.C. at 262, 472 F.2d at 1336-37 (emphasis added).

1981In Gerstein , the Court explicitly stated that the "sole issue is whether there is probable cause for detaining the arrested person pending further proceedings," 420 U.S. at 120 , 95 S.Ct. at 866 (emphasis added), and concluded that a full adversary hearing was not required.

1981In Gerstein , the Court explicitly stated that the "sole issue is whether there is probable cause for detaining the arrested person pending further proceedings," 420 U.S. at 120 , 95 S.Ct. at 866 (emphasis added), and concluded that a full adversary hearing was not required.

1978See Goldberg v. United States, 425 U.S. 94 , 96 S.Ct. 1338 , 47 L.Ed.2d 603 (1976) (remand to trial court to reconsider Jencks Act request which had been denied on the basis of erroneous ruling that lawyer’s “work product” doctrine barred production of alleged “statements” by the witness).

1978See Goldberg v. United States, 425 U.S. 94 , 96 S.Ct. 1338 , 47 L.Ed.2d 603 (1976) (remand to trial court to reconsider Jencks Act request which had been denied on the basis of erroneous ruling that lawyer’s “work product” doctrine barred production of alleged “statements” by the witness).

1977D.C.Code 1973, § 1-1509; Woodridge Nursery School v. Jessup, D.C.App., 269 A.2d 199, 201 (1970).

1971And at least one court has held that “[t]o require a prior adversary determination of obscenity vel non under [these] facts would result in the absurdity of requiring the police undercover agents to have an adversary hearing before even making a purchase of suspected obscene materials.” United States v. Gower, 316 F.Supp. 1390, 1393 (D.D.C. 1970) 5 There is authority to the effect that arrests made without a prior adversary determination of obscenity, as well as seizures incident thereto, are invalid even where some material was purchased rather than seized.