U.S. v. Rollack, 97 CR. 12923 (MGC).
| Decision Date | 20 December 1999 |
| Docket Number | No. 97 CR. 12923 (MGC).,97 CR. 12923 (MGC). |
| Citation | 90 F.Supp.2d 263 |
| Parties | UNITED STATES of America v. Peter ROLLACK, a/k/a "Pistol Pete," a/k/a "Michael Cooper," a/k/a "Nathaniel Tucker," a/k/a "Peter Rollock," Defendant. |
| Court | U.S. District Court — Southern District of New York |
Mary Jo White, United States Attorney for the Southern District of New York, New York City, by Nicole A. LaBarbera, Richard C. Daddario, Andrew S. Dember, Assistant United States Attorneys, for U.S.
Moskowitz & Book, LLP, New York City, by Avraham C. Moskowitz, Joseph A. Grob, for Defendant Peter Rollack.
McNally & O'Donnell, Frankfort, KY, By Kevin McNally, Esq., for Defendant Peter Rollack.
Defendant Peter Rollack has been charged with twenty-four counts of racketeering and violent crimes in aid of racketeering. Rollack moves to suppress evidence obtained from a search of a Nissan Quest van in October of 1994 and from searches of his prison mail and his jail cell in December of 1997. All of these searches took place in North Carolina. An evidentiary hearing was held with respect to the van search on November 23, 29, and 30, 1999. For the reasons discussed below, Rollack's motion is granted in part and denied in part.
On October 21, 1994, state police officers searched a Nissan Quest van for contraband they believed to belong to Rollack. In January 1998, Rollack was convicted of federal narcotics conspiracy charges in the Western District of North Carolina. Pending and during trial, Rollack was incarcerated at the Charlotte-Mecklenberg County Central Jail in North Carolina. In December 1997, federal agents intercepted Rollack's incoming and outgoing mail pursuant to two search warrants.1 They also searched Rollack's jail cell pursuant to a warrant. These searches will be addressed in turn.
On October 21, 1994, Rollack and two associates, Yaro Pack and David Gonzalez, drove to a Rockingham, North Carolina fast food restaurant in a burgundy Nissan Quest van to meet with a drug buyer, Derious Covington, regarding a debt. Acting on a tip from Mr. Covington concerning the presence of drugs in the van, local police officers detained all three men while they were outside the van near the restaurant and asked for permission to search the vehicle. Yaro Pack gave the van keys to the officers and signed a written consent to a search of the van.
The officers proceeded to search the interior of the vehicle. After a short period of time, officers brought a drug-detection dog from the K-9 unit to sniff the interior of the vehicle. After the dog mildly alerted to the presence of drugs, another dog was brought to the scene. The second dog sniffed the interior and more aggressively alerted to the presence of drugs under the vehicle floor.
The officers disassembled portions of the vehicle interior, seeking access to a secret compartment containing drugs. Unable to uncover such a compartment, the officers moved the van to another location, where they continued to search the vehicle. With the assistance of a Nissan mechanic, the officers located a secret compartment beneath the van's front seats and discovered guns, cocaine, and money in the compartment.
Agents of the Bureau of Alcohol, Tobacco and Firearms ("ATF") obtained warrants on December 17 and December 29, 1997 authorizing the search and seizure of:
All mail matter of Petter Rollock a.k.a. Peter Rollack, both incoming and outgoing non-legal mail to and from the following persons: Xavier Williams a.k.a. "X", Robinson Lazala a.k.a. "Rob" a.k.a. "Robert Lopez", Brian Boyd a.k.a. "Stone" a.k.a. "Stone Killer", Edwin Vega a.k.a. "Edwin Rivera", Corey Brown a.k.a. "Little Bear" a.k.a. "C-B", John Gonzales a.k.a. "Baby-J", Shawn Stokes, Kevin Aller a.k.a. "Bemo", and Gisette Hardy a.k.a. "Gissette Hardy-Rollock" a.k.a. "Mrs. G" a.k.a. "Lady G" a.k.a. "Lady Gisette" and others.
(12/17/97 Mail Warrant; 12/29/97 Mail Warrant.) ATF Special Agent Terrell A. Tadeo applied for both warrants and submitted an affidavit in support of each. In these identical affidavits, Agent Tadeo described information supporting his belief that Rollack was using the mails to direct illegal activities of members of the gang Sex, Money and Murder ("SMM") and had used the mails to order the murder of David Mullins on November 27, 1997. Tadeo requested that the requirements of contemporaneous notice and execution of returns be delayed to avoid compromising the investigation.
The December 17 warrant was issued by United States District Judge Graham Mullen, although the signed copy of that warrant seems to have been lost. The boilerplate language on the warrant form concerning the notice and return requirements was crossed out. United States Magistrate Judge Carl Horn issued the December 29 warrant, but neglected to cross out the notice and return requirements.
During the course of these intercepts, federal agents reviewed all of Rollack's incoming and outgoing mail and copied or seized six letters pursuant to the two warrants. As a result of the first intercept, Agent Tadeo copied and replaced in the mail three outgoing letters from Rollack to "Monique King," "G. Hardy-Rollock," and "Miss Broughton" and one incoming letter from "Emilio Romero." Agent Tadeo seized one outgoing letter from Rollack to "Kiron Mickie." As a result of the second intercept, Agent Tadeo seized one outgoing letter from Rollack to "Emilio Romero." Of these names, only "G. Hardy-Rollock" was listed among those on the search warrant. Returns for both warrants were executed on December 30.
On December 29, 1997, Magistrate Judge Horn issued a search warrant authorizing the search and seizure of the following materials in Rollack's Charlotte-Mecklenburg County Jail cell:
All mail matter both previously received and unmailed except for legal mail. Also all non legal writing materials, including but not limited to, notes, address books, lists and other writings.
(12/29/97 Cell Warrant.) Agent Tadeo applied for this warrant and submitted an affidavit containing the same information as in his affidavits in support of the mail intercept warrants. Tadeo also referred in the affidavit to the incoming letter from "Emilio Romero" copied in the mail search, and expressed his belief that the letter referred to the murder of David Mullins.
On the day the warrant was issued, Agent Tadeo and other officers executed the warrant in Rollack's presence and searched Rollack's cell. The agents seized numerous items from Rollack's desk and from a bin under his bed, including letters received, unmailed letters, paper and notepads containing writing, and photographs.
In an affidavit, Rollack states that he watched the agents initially divide the materials into two piles based on Agent Tadeo's "yes" or "no" reactions to each letter, paper, or photograph. He also states that one officer said "What are we looking for ..." and that Tadeo made a call on his cellular phone to ask what documents and photographs should be taken. (Rollack Supp. Aff. ¶ 5.) After this call, according to Rollack's affidavit, Tadeo told the other agent to "[t]ake everything." (Id.) Finally, Rollack states that when he objected to the agents' seizure of his photographs, Agent Tadeo replied, "[w]hatever we don't need, we'll give back." (Id.) The government does not dispute these allegations.
Rollack challenges the search of the van on a number of grounds: (1) that the police lacked reasonable suspicion to detain him and his associates and perform an extensive search of the van; (2) that any consent to the search was obtained through coercion; (3) that the search exceeded the scope of any consent given; and (4) that the police conduct with respect to the search was sufficiently "outrageous" as a matter of law to require suppression of the fruits of the search. The government denies all of these allegations. The government also defends the validity of the search on the grounds that Rollack lacks standing to challenge the search and that collateral estoppel bars Rollack from litigating the validity of the search. At the evidentiary hearing, the government presented evidence that the police had probable cause to detain and search the van.
Police may search a vehicle without first obtaining a search warrant "[i]f a car is readily mobile and probable cause exists to believe it contains contraband." Pennsylvania v. Labron, 518 U.S. 938 940, 116 S.Ct. 2485, 2487, 135 L.Ed.2d 1031 (1996). Rollack does not contest that the van was readily mobile. Thus, if the police had probable cause to search the van, the search complies with the Fourth Amendment even without a warrant.2 The scope of such a search may be as broad as if a warrant had been obtained and extends to all parts of the vehicle and any closed containers within the vehicle. United States v. Ross, 456 U.S. 798, 817-18, 820, 102 S.Ct. 2157, 2168-70, 72 L.Ed.2d 572 (1982). A vehicle search may be conducted after the vehicle is seized and taken to a police station. Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975, 1982, 26 L.Ed.2d 419 (1970).
The government argues that the police had probable cause to search the van based on a tip from an informant. Whether information supplied by an informant is sufficient to establish probable cause is determined by "the totality of the circumstances." Illinois v. Gates, 462 U.S. 213, 230-31, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983). Factors considered in a probable cause determination include the reliability of the informant, the basis of the informant's knowledge, and the extent to which the informant's information is corroborated. Id. at 233, 103 S.Ct. at 2329-30. Thus, if the police in this case reasonably relied on information received from an informant that there was contraband in the van, there was probable cause for the...
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