Searching plaintiff’s car under “community caretaking function” could not be justified; it was in his own driveway

Plaintiff stated a claim for removal of property from his car which was parked on his own property and not subject to impoundment. Gombert v. Lynch, 541 F. Supp. 2d 492 (D. Conn. 2008)*:

In this case, instead of impounding (or otherwise taking custody of) the Plaintiff’s car, the police took items out of his car, purportedly pursuant to their community caretaking responsibilities. The court can find no law, however, to support the proposition that, under the banner of “community caretaking,” the police can search and seize items from a vehicle that was not itself already under police custody or control via the police’s community caretaking function.

Defense counsel’s failure to cross-examine police officers from state suppression hearing record would not have changed the outcome of the federal suppression hearing so it could not be ineffective assistance. The differences were not material. United States v. Cavely, 2008 U.S. Dist. LEXIS 24111 (N.D. Okla. March 26, 2008).*

An affidavit for a search warrant need not articulate any reasoning for concluding that drug activity would be involved beyond what commonsense would dicate in the situation. United States v. Smith, 2008 U.S. Dist. LEXIS 24251 (E.D. Pa. March 26, 2008)*:

By his reference to “boilerplate representations” about drug dealers or sellers using their residences to maintain the fruits of their activities, Mr. Smith tacitly acknowledges that there is a commonly made connection between illicit drug activity and the suspect’s residence. Nonetheless, Mr. Smith argues that a magistrate is not permitted to infer that there is “a fair probability that evidence will be found” in the place to be searched even after reports of the suspected dealer going in and out of the location with drug buys occurring in between that movement, and he maintains that the probable cause affidavit must actually articulate the affiant’s supposition or presumption that a suspected drug dealer uses his “home base” for some purpose related to his drug business. Thus, Mr. Smith’s position is essentially that the issuing magistrate must shed and eschew use of experience and common sense to make himself no more knowledgeable than the proverbial “blank slate.” This makes no sense to the Court because to enunciate such a stark rule would be tantamount to saying search warrants could be issued by someone less knowledgeable than a “man on the street,” or by the functional equivalent of an ATM machine, so long as certain magic words were presented. Not only does Mr. Smith present no governing case law to support his argument, it necessarily ignores the accumulated direct information that is presented in Officer Francis’s Affidavit, including the summation quoted above from which the magistrate had a sufficient considered basis to reasonably and rationally accept Officer Francis’s experienced belief that evidence of illegal drug activities likely would be found in Mr. Smith’s residence at 136 East Pleasant Street. See United States v. Burton, 288 F.3d 91, 103 (3d Cir. 2002); United States v. Hodge, 246 F.3d 301, 305, 307 (3d Cir. 2001); United States v. Whitner, 219 F .3d 289, 297 (3d Cir. 2000).