Ruling on Motion to Dismiss by Defendants Cabelus, Guida, and Gaffney [Doc. # 24]
Plaintiffs commenced this suit to challenge the defendants'application for and execution of a search warrant and the seizureof their property as unlawful, and seek money damages andinjunctive relief. Defendants Nancy Cabelus, William Guida, andPatrick Gaffney, officers with the Connecticut State Police, havemoved to dismiss the claims against them. For the reasonsdiscussed below, these defendants' motion [Doc. # 24] is GRANTED.
This action arises out of a dispute over computer equipmentthat plaintiffs Gina Malapanis ("Malapanis") and Computers PlusCenter, Inc. ("CPC") sold to the State of Connecticut. Accordingto plaintiffs' verified complaint, from 1993 to 2002, CPC wasawarded several contracts to provide computers to variousConnecticut state agencies. See Verified Complaint [Doc. # 1]at ¶¶ 16-18, 50-53, 95-96. Under one such contract awarded in approximately May 2002, CPC supplied five servers to theConnecticut Department of Information Technology ("DOIT"), whichthe DOIT claimed contained defective memory. See id. at ¶¶96-104. As a result of CPC's alleged impropriety with theservers, the DOIT disqualified CPC's pending bids on computercontracts with the state, listed CPC as a non-responsible bidder,and instituted an audit of all computers Malapanis and CPCsupplied to every state agency in the preceding four year period.See id. at ¶¶ 112-113, 117.
On March 17, 2003, Gregg P. Regan, Chief Information officerfor the DOIT, and Connecticut Attorney General RichardBlumenthal, held a press conference and issued a press releasedeclaring that the state was initiating a civil action againstCPC for "breaches of contracts for the provision of computertechnology to the state," and accused Malapanis and CPC of"bilking the State out of more than a half million dollars, andpossibly much more, worth of computer equipment by providing theState thousands of computers that did not contain specifiedparts, while fraudulently charging the State for the missingitems." Id. at ¶ 142 (quoting Press Release). On the same day,Regan filed the civil action and an application for a prejudgmentremedy against CPC in Connecticut Superior Court, attaching hisown sworn affidavit in support. See id. at ¶¶ 143-44.
Plaintiffs allege that portions of Regan's affidavit in support of the PJR application were false. In particular,plaintiffs assert that Regan stated in his affidavit thatMalapanis failed to provide two network adapter cards as requiredby the 2001 CPC Contract specifications, and that the statesuffered monetary loss as a result of the server issue, but thatat a later deposition, Regan testified that the 2001 CPC contractdid not require two network adapter cards, and that the statesuffered no financial loss as a result of the server issue. Seeid. at ¶¶ 145-46, 152.
Regan provided the same information to the Connecticut StatePolice in support of an application for a search warrant as hehad in the PJR application. Relying on Regan's information,defendants Cabelus and Guida, Detectives with the ConnecticutState Police, obtained a "mere evidence" search and seizurewarrant for CPC's office and Malapanis' residence, on groundsthat there was probable cause to believe that the property seizedwould lead to evidence of larceny. See id. at ¶ 159.
On March 13, 2003, defendants Gaffney, Cabelus, and Guidaexecuted the search warrant on the premises of CPC and atMalapanis' residence, and seized all computers, files, pictures,CDs, and tapes from CPC. See id. at ¶ 165. Plaintiffs allegethat the defendants also seized three safes from CPC's office,which were not authorized to be seized under the warrant. Seeid. at ¶¶ 166-671. According to the plaintiffs, after removing the safes, which caused damage to CPC's office, the ConnecticutState Police obtained a new search warrant to open the safes.See id. at ¶ 168. Plaintiffs claim that as a result of theseizure of property, CPC has been unable to conduct its businessand has suffered financial harm. See id. at ¶ 19.
Count 1 of plaintiffs' verified complaint is brought under42 U.S.C. § 1983, and alleges a violation of Malapanis' FourteenthAmendment right to procedural due process; a violation ofMalapanis' right to be free from unreasonable searches andseizures; abuse of power that is shocking to the conscience; andinterference with Malapanis' ability to pursue a profession tocontract with and deliver goods to state agencies in violation ofher Fourteenth Amendment right to due process. See id. at ¶181. These claimed violations are based in part on plaintiffs'allegations that "[t]he CSP [Connecticut State Police] wrongfullyand with reckless disregard for the truth seized Malapanis'property," and "refused to return the property even after itlearned that the information it was provided by Regan and otherswas false." Id. at ¶ 180 (g), (h). Count 2 raises stateconstitutional claims. Plaintiffs seek, inter alia, moneydamages and an injunction ordering the Connecticut State Policedefendants to return to CPC and Malapanis all property seizedpursuant to the search warrants and to erase all records relatingto the police investigation of CPC and Malapanis. II. Standard
When deciding a 12(b)(6) motion to dismiss, the Court mustaccept all well-pleaded allegations as true and draw allreasonable inferences in favor of the pleader. Hishon v. King &Spalding, 467 U.S. 69, 73 (1984). A complaint should not bedismissed for failure to state a claim unless it appears beyonddoubt that the plaintiff can prove no set of facts in support ofhis claim which would entitle him to relief. Swierkiewicz v.Sorema N.A., 534 U.S. 506, 513-14 (2002); Conley v. Gibson,355 U.S. 41, 45-46 (1957). "The issue is not whether a plaintiffwill ultimately prevail but whether the claimant is entitled tooffer evidence to support the claims. Indeed it may appear on theface of the pleadings that a recovery is very remote and unlikelybut that is not the test." Scheuer v. Rhodes, 416 U.S. 232, 236(1974).
Defendants Cabelus, Guida, and Gaffney have asserted severalgrounds for dismissal of all claims against them. First,defendants argue that this Court should abstain from issuing aninjunction under the doctrine set forth in Younger v. Harris,401 U.S. 37 (1971), because the plaintiffs are subjects of apending criminal investigation.1 Defendants also argue that theEleventh Amendment prohibits the plaintiffs' claim for moneydamages against the State Police defendants in their officialcapacities, and that the State Police defendants are entitled toqualified immunity in their individual capacities from an awardof money damages. Further, defendants argue that the plaintiffs'due process claim regarding the seizure of property is barredunder Parratt v. Taylor, 451 U.S. 527, 541-55 (1981), becauseadequate post-deprivation state law remedies exist. To the extentthe plaintiffs have raised a substantive due process claim inalleging that the State Police defendants abused their power inexecuting the search warrant, defendants argue that the claim isbarred because the Fourth Amendment provides an explicit textualsource for the constitutional protection against unreasonablesearches and seizures.
In opposition, the plaintiffs clarified that their claimsagainst the State Police defendants are grounded in two operativefacts: the seizure of the safes from the CPC offices, which plaintiffs contend exceeded the scope of the search warrant inviolation of the Fourth Amendment, and the failure to returnplaintiffs' property subsequent to its seizure, which plaintiffscontend violates their Fourteenth Amendment due processrights.2
The Court concludes that the facts alleged by the plaintiffsfail to state a cognizable federal constitutional claim, andtherefore dismisses all federal claims against the ConnecticutState Police defendants. The Court declines to exercisesupplemental jurisdiction over any remaining state claims againstthem. Because the Court finds that the merits of plaintiffsclaims are lacking, it is unnecessary to address the proceduralarguments and immunity claims raised by the defendants. See,e.g. Wilson v. Layne, 526 U.S. 603, 609 (1999) (courts shoulddecide the merits of constitutional claim before reaching theissue of qualified immunity).
A. Seizure of Safes
Plaintiffs allege that the safe was seized from the CPC office without a warrant. Plaintiffs acknowledge that the StatePolice defendants had a search warrant for the CPC premises andfor Malapanis' residence, but argue that the police exceeded thescope of the search warrant in seizing the safes, as the safeswere not identified in the warrants. It is well established that"[a] lawful search of fixed premises generally extends to theentire area in which the object of the search may be found and isnot limited by the possibility that separate acts of entry oropening may be required to complete the search." United Statesv. Ross, 456 U.S. 798, 820-821 (1982). As Ross explained: Thus, a warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers, and containers in which the weapon might be found. A warrant to open a footlocker to search for marihuana would also authorize the opening of packages found inside. A warrant to search a vehicle would support a search of every part of the vehicle that might contain the object of the search. When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home, or between glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient completion of the task at handId. at 821.
On the facts alleged in plaintiffs' complaint, the safes couldhave been searched on the spot pursuant to the warrant issued forCPC premises. The "files, pictures, CDs, and tapes" that thepolice seized from CPC under the warrant, Verified Complaint[Doc. # 1] at ¶ 165, and which plaintiffs do not challenge, aresmall items that may be placed in a safe. The scope of a search is "not defined by the nature of the container," but "by theobject of the search and the places in which there is probablecause to believe it may be found." Ross, 456 U.S. at 824; seealso United States v. Snow, 919 F.2d 1458, 1460 (10th Cir.1990) (concluding that the "F.B.I. did not exceed the scope ofthe authorized search" as the "locked safe [which was located onthe premises identified in the search warrant] was a likelysource for the specified documents and could therefore beopened."). Having a search warrant for the CPC premises, theConnecticut State Police defendants had probable cause to searchall containers located within the premises in which the evidenceof larceny could be found.
Instead of searching the safes on the spot, however, the StatePolice defendants seized them and obtained a new warrant tosearch them. Thus, while the police had probable cause to searchthe safes both pursuant to the first search warrant, underRoss, and as specifically set forth in the second searchwarrant, the initial warrant did not by its terms permit theseizure of the safes. The issue, therefore, is whether theinitial seizure of the safes constituted an unreasonable seizureunder the Fourth Amendment. The Court concludes that thewarrantless seizure here, on the facts alleged by the plaintiffs,was not prohibited by the Fourth Amendment, as the seizure wasjustified in light of the exigencies of the situation. "Where law enforcement authorities have probable cause tobelieve that a container holds contraband or evidence of a crime,but have not secured a warrant, the [Supreme] Court hasinterpreted the [Fourth] Amendment to permit seizure of theproperty, pending issuance of a warrant to examine its contents,if the exigencies of the circumstances demand it or some otherrecognized exception to the warrant requirement is present."United States v. Martin, 157 F.3d 46, 53 (2d Cir. 1998)(quoting United States v. Place, 462 U.S. 696, 701 (1983)).Among the exigencies that are well recognized as permitting theseizure of the container are where there is a risk of "loss ordestruction of suspected contraband" United States v.Jacobsen, 466 U.S. 109, 114 (1984); Martin, 157 F.3d at 53.Thus, in Martin, the Second Circuit approved the seizure of aUPS package pending a warrant to search it because a informant'stip provided probable cause to believe it contained contrabandand the delivery of the package to its intended recipient wouldrisk the destruction of this evidence. As the Supreme Courtexplained in Segura v. United States, 468 U.S. 796 (1984), "[a]seizure affects only the person's possessory interests; a searchaffects a person's privacy interests. Recognizing the generallyless intrusive nature of a seizure, the Court has frequentlyapproved warrantless seizures of property, on the basis ofprobable cause, for the time necessary to secure a warrant. . . .Underlying these decisions is a belief that society's interest in thediscovery and protection of incriminating evidence from removalor destruction can supercede, at least for a limited period, aperson's possessory interest in the property, provided that thereis probable cause to believe that the property is associated withcriminal activity."3 Id. at 805, 808 (citationsomitted).
Plaintiffs' verified complaint states that the safes were takenfrom CPC premises, and acknowledges that search warrantidentified the CPC premises as the location to be searched. Asdiscussed supra, the police were lawfully present on the CPCpremises and had probable cause to believe the safes, locatedinside the CPC offices, contained evidence of a crime. Becausethere was probable cause to search the safes, the exigencies ofthe situation permitted their seizure. It is not clear fromplaintiffs' complaint whether the police seized the safes withoutsearching them because they believed they needed a warrant tosearch them or because they were unable to open them at the timethe safes were first encountered. Under either justification, however, seizure was permissible. In executing the search warranton plaintiffs' property, the State Police defendants clearlyrevealed to plaintiffs their interest in evidence of larceny, andtherefore would risk the removal or destruction of any evidencelocated inside the safes if they left the safes behind whilewaiting for a warrant to search them or for the means to openthem.
Having probable cause to believe the safes contained evidenceof a crime, the exigent circumstances theory supports theConnecticut State Police defendants' temporary seizure of thesafes prior to obtaining a warrant specifically directed at thesafes in question.
B. Failure to Return Seized Property
Plaintiffs' remaining claims center on the failure of theConnecticut State Police defendants to return the seized computerequipment, files, and materials. As plaintiffs acknowledge, thefailure to return property does not give rise to a FourthAmendment violation because it does not bring "about anadditional seizure nor change the character of the [original]seizure from a reasonable one to an unreasonable one because theseizure was already complete. . . ." Fox v. Van Oosterum,176 F.3d 342, 350-51 (6th Cir. 1999); see also United States v.Jakobetz, 955 F.2d 786, 802 (2d Cir. 1992) (holding that thecontinued possession of photographs after criminal investigationcompleted is not a seizure "that deserves the special protections providedby the fourth amendment"); Lee v. City of Chicago,330 F.3d 456, 466 (7th Cir. 2003) ("The [Fourth] amendment then cannot beinvoked by the dispossessed owner to regain his property.").Plaintiffs allege, however, that the failure to return thisseized property violates Malapanis's Fourteenth Amendmentprocedural and substantive due process rights.
While plaintiffs' verified complaint alleges a procedural dueprocess violation, the basis for the claim is not well defined.Plaintiffs' opposition brief fails to respond to defendants'arguments, and never mentions procedural due process. The Courtnonetheless construes the allegations that the defendants failedto return Malapanis' property even though criminal proceedingshad not yet been instituted4 and even after the StatePolice defendants learned that information in the search warrantapplication was false, see Verified Complaint [Doc. # 1] at ¶¶171-73; and the allegation that the State Police defendantsrefused to repair the damage caused by the dewiring and removalof the equipment seized from CPC, see id. at ¶ 176, to assertclaims of denial of procedural due process.
Defendants argue that plaintiffs' procedural due process claimfails under Parratt v. Taylor, 451 U.S. 527, 541-45 (1981), because plaintiffs have access to meaningful post-deprivationstate law remedies. In Parratt, the Supreme Court held thatwhere the deprivation of property is "a result of a random andunauthorized act by a state employee," and "not a result of someestablished state procedure," an adequate post-deprivation statejudicial remedy satisfies procedural due process. See id. at541. The Supreme Court extended its holding in Parratt tointentional deprivations of property in Hudson v. Palmer,468 U.S. 517, 533 (1984). Here, plaintiffs have made no allegationthat there is an established state policy to retain seizedproperty after the completion of a criminal investigation orafter falsity in the search warrant application comes to light,nor that the damage to their property was the result of anestablished procedure. At best, plaintiffs have alleged thattheir deprivation was the result of a random and unauthorized actby the State Police. Thus, the existence of an adequatepost-deprivation state judicial remedy would satisfy proceduraldue process.5 Defendants have argued that Connecticutprovides such a post-deprivation procedure, citing Section 54-33f of theConnecticut General Statutes, which provides for the return ofunlawfully seized property,6 and Section 4-142 of theConnecticut General Statutes, which provides a procedure by whicha Claims Commissioner shall hear and determine all claims against thestate, such as claims for damaged property. In addition, Conn.Gen. Stat. § 54-36a(c) provides that a court "at the finaldisposition of the criminal action or as soon thereafter as ispractical, or, if there is no criminal action, at any time uponmotion of the prosecuting official of such court, order thereturn of such property to its owner within six months uponproper claim therefor."7 Plaintiffs have neither allegedin their complaint nor argued in their opposition to defendants'motion to dismiss that these post-deprivation remedies areinadequate. Accordingly, plaintiffs have failed to state acognizable procedural due process claim.
Plaintiffs' substantive due process claims include thatdefendants' seizure of property has interfered with Malapanis'ability to pursue her profession, and that the seizure ofproperty was the result of an abuse of power that is shocking tothe conscience. Both of these claims lack merit.
Malapanis, alleging that she has not been able to operate herbusiness because the Connecticut State Police defendants seizedand failed to return their property, see Verified Complaint[Doc. # 1] at ¶ 167, relies on the Supreme Court's recognition that "the right to hold specific private employmentand to follow a chosen profession free from unreasonablegovernmental interference comes within the `liberty' and`property' concepts of the [due process clause]." United Statesv. Robel, 389 U.S. 258, 265 n. 11 (1967) (quoting Greene v.McElroy, 360 U.S. 474, 492 (1959)). The Supreme Court, however,has made clear that the right to practice a chosen profession is"subject to reasonable government regulation." Conn v. Gabbert,526 U.S. 286, 291-92 (1999) (citations omitted). Moreover,reviewing its caselaw in this area, the Supreme Court emphasizedthat the right to practice one's profession has been afforded dueprocess protection only where there is a "complete prohibition ofthe right to engage in a calling," not a "brief interruption."Id. at 292. Thus, in Conn, the Supreme Court rejectedplaintiff's claim of a substantive due process violation where hewas prevented by the execution of a search warrant fromrepresenting his client who was testifying before the grand jury.The Court held that "the Fourteenth Amendment right to practiceone's calling is not violated by the execution of a searchwarrant, whether calculated to annoy or even to preventconsultation with a grand jury witness," id. at 293, becausethe execution of the search warrant comprised only a "briefinterruption" in the plaintiff's professional practice, id. at292. Here, while Malapanis has alleged an interruption in herability to pursue her profession that is lengthier than that atissue in Conn, she has not alleged that the Government hascompletely prohibited her from engaging in her profession. Evenconstruing plaintiffs' complaint broadly, it cannot be said thatthe defendants' retention of seized computer equipment is agovernment action that completely prevents Malapanis fromengaging in her chosen profession. Malapanis has made noallegation that the Connecticut police defendants have barred herfrom selling computer equipment.8 At most, Malapanis hasalleged that the failure to return her seized property has"substantially impaired" her ability to pursue her profession.See Memorandum in Support of Opposition to Motion to Dismiss byDefendants Cabelus, Guida, and Gaffney [Doc. # 36] at 12 n. 6.Plaintiffs have acknowledged that the Connecticut State Policedefendants returned some of their seized property, and note thatthe state Criminal Court has ordered the return of all but onecheck located in the seized safes. See Verified Complaint [Doc.# 1] at ¶ 175 (acknowledging that the Connecticut State Policedefendants returned "mirrored images of some of the equipment");and ¶¶ 177-79 (stating that the Criminal Court ordered that thechecks located in the safes be returned to CPC, but granted a TROfor the retention of one check in the amount of $495,000). Whilethe seizures may well have presented plaintiffs with financialdifficulties, the temporary seizure of property under a searchwarrant9 does not rise to the level of a substantive dueprocess violation. See Conn, 526 U.S. at 292.
Plaintiffs' complaint also alleges broadly that the actions ofthe State Defendants "constituted a gross abuse of power that isshocking to the conscience." Verified Complaint [Doc. # 1] at ¶181(b). An "abuse of executive power so clearly unjustified byany legitimate objective of law enforcement [is] barred by theFourteenth Amendment." County of Sacramento v. Lewis,523 U.S. 833, 840 (1998). While the plaintiffs have neither identified intheir complaint nor clarified in their opposition to defendants'motion the particular conduct of the Connecticut State Policedefendants that is alleged to "shock the conscience," plaintiffs'allegation that they failed to return the seized property evenafter learning that information in the search warrant applicationwas false, see Verified Complaint [Doc. # 1] at ¶¶ 172-73, is construed as the basis of their substantive due processclaim.10 "Substantive due process is an outer limit onthe legitimacy of governmental action. It does not forbidgovernmental actions that might fairly be deemed arbitrary orcapricious and for that reason correctable in a state courtlawsuit seeking review of administrative action. Substantive dueprocess standards are violated only by conduct that is sooutrageously arbitrary as to constitute a gross abuse ofgovernmental authority." Natale v. Town of Ridgefield,170 F.3d 258, 263 (2d Cir. 1999) (citations omitted).
The failure to return seized property after learning that falseinformation was relied on in the search warrant application does not satisfy this due process test. Plaintiffs' complaintalleges only that subsequent to the State Police defendants'execution of the search warrant, Malapanis' attorneys met withthe State Police defendants, provided them with informationregarding false material information supplied by Regan in supportof the application for a search warrant, and requested that theseized property be returned on account of the false informationin the search warrant application. See Verified Complaint [Doc.# 1] at ¶¶ 171-72. Plaintiffs do not pursue in this action anyclaim that the search warrant was invalid or unsupported byprobable cause,11 nor do they claim that the stateprocedures for the return of seized property were inadequate.Having acted pursuant to a presumptively reasonablewarrant,12 the failure of the police defendants to returnthe seized property, even if they later learned of the falsities in the warrant application, is notso "outrageously arbitrary" that it shocks theconscience.13 See Natale, 170 F.3d at 263.
C. Remaining State Law Claims
As plaintiffs' Fourth Amendment and due process claims lackmerit, the Court dismisses the federal § 1983 claims againstdefendants Cabelus, Guida, and Gaffney. Having dismissed thefederal claims providing this Court with subject matterjurisdiction, this Court declines to exercise its supplementaljurisdiction over any remaining state law claims against thesedefendants. See 28 U.S.C. § 1367(c)(3) (providing that adistrict court may decline to exercise supplemental jurisdictionover a claim where "the district court has dismissed all claimsover which it has original jurisdiction"); Valencia ex rel.Franco v. Lee, 316 F.3d 299, 306 (2d Cir. 2003) (dismissal offederal claims at a relatively early stage in the proceedingssupports denial of exercise of supplemental jurisdiction). IV. Conclusion
For the foregoing reasons, the Motion to Dismiss by DefendantsCabelus, Guida, and Gaffney [Doc. # 24] is hereby GRANTED.
IT IS SO ORDERED.
1. At the time this issue was briefed, criminal charges hadyet not been brought against Malapanis. On September 7, 2004, theState of Connecticut, Division of Criminal Justice, moved tointervene in this case and represented to the Court that in June2004, Malapanis was charged in a single count information withthe crime of larceny in the first degree under Title 53a of theConnecticut General Statutes. In the three months since thecriminal prosecution began, the parties have not supplementedtheir briefing to address Younger abstention in light of thenew circumstance.
2. In their opening brief, defendants argued that plaintiffsfailed to state a Fourth Amendment claim under Franks v.Delaware, 438 U.S. 154 (1978), because they did not allege thatthe affiants knowingly, or with reckless disregard for the truth,made false statements in the search warrant application.Defendants also argued that a Franks v. Delaware claim wasbarred by the doctrine of collateral estoppel, as this claim wasraised and denied in state court. In opposition, plaintiffsclarified that they were not making a Franks v. Delaware claim,and therefore this Court will not address this issue. To theextent plaintiffs' complaint could be construed as stating claimschallenging the falsity of the search warrant application, theseclaims are deemed to be withdrawn.
3. While Soldal v. Cook County, Illinois, 506 U.S. 56(1992), clarified that a person's "possessory interest"implicates the Fourth Amendment even if there is no privacyinterest, Soldal did not disturb the Court's earlier holdingsthat a temporary warrantless seizure of a container is justifiedbased on probable cause to believe the container containsevidence of a crime, if the police are lawfully present where thecontainer is found and seizure is justified by the exigencies ofthe situation. See id. at 546 ("[I]n the absence of consentsuch seizures can be justified only if they meet theprobable-cause standard, and if they are unaccompanied byunlawful trespass.")
4. At the time plaintiffs instituted this suit, Malapanis hadnot yet been criminally charged.
5. Because plaintiffs have not identified the particularnature of their procedural due process claim, theParratt-Hudson doctrine may have limited applicability. Forexample, although plaintiffs acknowledge in their opposition todefendant's motion to dismiss that the Fourth Amendment, not theDue Process Clause, governs unlawful seizures of property,construed broadly, plaintiffs' claim may be based onConnecticut's established state policy of retaining seizedproperty until the completion of the criminal action or theabsence of a pre-deprivation hearing prior to the seizure oftheir property. Nonetheless, as Connecticut has procedures forthe return of seized property, and these procedures have not beenchallenged as inadequate, plaintiffs' procedural due processclaim lacks merit. When property is seized pursuant to a searchwarrant, adequate post-deprivation remedies satisfy proceduraldue process. See, e.g. Fuentes v. Shevin, 407 U.S. 67,93-94 n. 30 (1972) ("[A] search warrant is generally issued toserve a highly important governmental need — e.g., theapprehension and conviction of criminals. . . . [A] searchwarrant is generally issued in situations demanding promptaction. The danger is all too obvious that a criminal willdestroy or hide evidence or fruits of his crime if given anyprior notice. . . . [T]he Fourth Amendment guarantees that theState will not issue search warrants merely upon the conclusoryapplication of a private party. It guarantees that the State willnot abdicate control over the issuance of warrants and that nowarrant will be issued without a prior showing of probable cause.Thus, our decision today in no way implies that there must beopportunity for an adversary hearing before a search warrant isissued."); Calero-Toledo v. Pearson Yacht Leasing Co.,416 U.S. 663, 678 (1974) ("Fuentes reaffirmed, however, that, in limitedcircumstances, immediate seizure of a property interest, withoutan opportunity for prior hearing, is constitutionallypermissible.").
6. Conn. Gen. Stat. § 54-33f provides for the return ofunlawfully seized property as follows: (a) A person aggrieved by search and seizure may move the court which has jurisdiction of such person's case or, if such jurisdiction has not yet been invoked, then the court which issued the warrant, or the court in which such person's case is pending, for the return of the property and to suppress for use as evidence anything so obtained on the ground that: (1) The property was seized without a warrant, or (2) the warrant is insufficient on its face, or (3) the property seized is not that described in the warrant, or (4) there was not probable cause for believing the existence of the grounds on which the warrant was issued, or (5) the warrant was illegally executed. In no case may the judge or judge trial referee who signed the warrant preside at the hearing on the motion.
7. The statute excepts from this return procedure propertythat is found to be stolen, or adjudicated a nuisance,contraband, subject to forfeiture, or a controlled substance, asthese are subject to their own procedures. See Conn. Gen. St. §54-36a(c).
8. While plaintiffs claim that other defendants in this casehave cancelled plaintiffs' contracts with the State ofConnecticut, identified CPC as a "non-responsible bidder," andadvised state agencies to "use caution" when dealing withplaintiffs, see Verified Complaint [Doc. # 1] at ¶¶ 133-136,these claims are not directed at the State Police defendants.Moreover, as these claims allege only that the plaintiffs lostthe state as a customer, they fall far short of the kind ofcomplete prohibition on the practice of a chosen professionentitled to substantive due process protection.
9. As discussed supra, Conn. Gen. Stat. § 54-36a(c) providesfor the return of seized property after the completion of acriminal action.
10. Plaintiffs' opposition focuses their substantive dueprocess argument on their right to pursue their chosenprofession. See Memorandum in Support of Opposition to Motionto Dismiss by Defendants Cabelus, Guida, and Gaffney [Doc. # 36]at 10-12. Nonetheless, as plaintiffs' complaint alleges both thatdefendants interfered with plaintiffs' ability to practice theirchosen profession and that defendants' conduct "shocks theconscience," see Verified Complaint [Doc. # 1] at ¶ 181(b),(c), and as plaintiffs have insisted that they have not abandonedany of their due process claims, see Sur-Reply to ReplyMemorandum in Further Support of Motion to Dismiss by DefendantsCabelus, Guida, and Gaffney [Doc. # 39] at 2, the Court declinesto find that plaintiffs waived their due process claim based on aconscience-shocking abuse of governmental power. This Court haslimited its review of the factual basis of plaintiffs'substantive due process claim, however, to that which wasidentified in plaintiffs' briefing. See Memorandum in Supportof Opposition to Motion to Dismiss by Defendants Cabelus, Guida,and Gaffney [Doc. # 36] at 12 (stating in support of substantivedue process claim that the State Police defendants refused toreturn plaintiffs' property even though they knew thatinformation relied on to obtain the warrant was false) (citingVerified Complaint [Doc. # 1] at ¶¶ 172-73).
11. While plaintiffs' complaint may be construed as alleging aFourth Amendment violation based on Franks v. Delaware,438 U.S. 154 (1978), on grounds that the search warrant affidavit wasfalse, plaintiffs clarified in their briefing that they have notmade such a Franks claim. See Sur-Reply to Reply Memorandumin Further Support of Motion to Dismiss by Defendants Cabelus,Guida, and Gaffney [Doc. # 39] at 1. Plaintiffs unsuccessfullyraised a Franks challenge in state court. See Memorandum ofDecision on Petitioner's Motion for Return of Seized Property,Case Nos. 03-2721SW, 03-2598SW, Connecticut Superior Court,Hartford Judicial District [Doc. # 25, Ex. A].
12. See Golino v. City of New Haven, 950 F.2d 864, 870 (2dCir. 1991), cert. denied, 505 U.S. 1221 (1992) ("[T]he issuanceof a warrant by a neutral magistrate, which depends on a findingof probable cause, creates a presumption that it was objectivelyreasonable for the officers to believe that there was probablecause . . .").
13. While it is not necessary to this decision, this Courttakes judicial notice of the fact that the probable causedetermination giving rise to the search warrants at issue herewas upheld by the Connecticut Superior Court after the courtdiscounted the allegedly false information provided by Regan.See Memorandum of Decision on Petitioner's Motion for Return ofSeized Property, Case Nos. 03-2721SW, 03-2598SW, ConnecticutSuperior Court, Hartford Judicial District [Doc. # 25, Ex. A] at9 ("Accordingly even if the assertion regarding the necessity oftwo NIC cards is excised from the warrant, ample probable causeremains for the issuance of a search warrant . . .").