Porter v. Keyser

• Decision Date: 22 December 2020
• Docket Number: 17-CV-7465 (CBA)
• Parties: MELVIN PORTER, Petitioner, v. WILLIAM KEYSER, Superintendent, Sullivan Correctional Facility, Respondent.
• Court: U.S. District Court — Eastern District of New York

MELVIN PORTER, Petitioner, v. WILLIAM KEYSER, Superintendent, Sullivan Correctional Facility, Respondent.

17-CV-7465 (CBA)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

December 22, 2020

NOT FOR PUBLICATION

MEMORANDUM & ORDER

AMON, United States District Judge:

Petitioner Melvin Porter brings this counseled petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (D.E. # 1.) Porter was convicted in Supreme Court, Queens County, following a nonjury trial, for four counts of second-degree criminal possession of a weapon, four counts of third degree criminal possession of a weapon, one count of seventh degree criminal possession of a controlled substance, and one count of operating a motor vehicle with a windshield obstructed. Porter argues that his trial counsel was ineffective for failing to advance certain allegedly meritorious suppression arguments that had a reasonable probability of leading to the suppression of all physical evidence seized by law enforcement and admitted against him at trial. (D.E. # 3 ("Pet'r Mem.") at 2.) For the reasons set forth below, Porter's petition is denied.

BACKGROUND

The following evidence was adduced at a joint pretrial suppression hearing. Police Officer Oleg Matat testified that, in the early morning on July 7, 2019, he and his partner, Police Officer Triantiflidis, were patrolling in plainclothes in an unmarked van in the vicinity of Broadway and 36th Street in Queens County. (H1. at 8-10.)¹ Sometime after 2 a.m., Matat first heard over theradio about a shooting, and Matat and his partner began canvassing the area. (H1. at 57-58; 80-81.) Subsequent radio transmissions included additional details about the suspected perpetrators, who were two black males (one wearing a gray shirt and dark pants, one wearing all brown or all black), one Hispanic male, and one Hispanic female with checkered shorts, all in their twenties. (H1. at 36-37, 57, 116.)

Around 3:40 in the morning, Matat observed a tan Toyota Corolla—driven by Porter—that was "low to the ground," which to Matat meant the car "was either packed with people or it had something heavy in the trunk." (H1. at 10-11, 13-14, 37.) Matat also observed a stethoscope hanging off the rear-view mirror obstructing the driver's view. (H1. at 11.) Matat and his partner followed the vehicle, observed it turn without using a signal, followed the vehicle for three to four blocks while traveling at 40 to 50 miles per hour in a 30 mile-per-hour zone, and pulled the vehicle over. (H1. at 11-13.) In addition to identifying Porter, Matat identified Jerome Abraham in the passenger seat and Michael Soto, Jennifer Cabezas, and Dennis Crandle in the back seat. (H1. at 14-16.) Looking through the front passenger window, Matat observed an orange-colored, white-capped "medicine bottle in the center console of the vehicle" with "[n]o writing on it or prescription." (H1. at 16-17; see also H1. at 43.) He testified on direct examination that the bottle contained nine pills, (H1. at 44); on cross-examination, however, Matat admitted he could not see how many pills there were, but only that they were pills of varying types and filled about half an inch of the bottle, (H1. at 72, 94). Matat acknowledged that he did not know what kind of pills were in the bottle and that they "could have been" aspirin, (H1. at 44), but he was trained in the identification and packaging of controlled substances, (H1. at 17), and believed the pills were controlled substances, (H1. at 93).

The officers did not remove the bottle at that point. (H1. at 45.) Although none of the five individuals made any threatening gestures or remarks, Matat explained there were two officers and five individuals in the vehicle, so he "wanted to be cautious" for the officers' safety. (H1. at 45.) Although Matat's testimony is not entirely clear, at around the same time, the officers called for assistance and asked the individuals to step out of the vehicle. (H1. at 46, 73, 93.) The officers also radioed for the description of the suspects in a robbery earlier that night—which "kept on playing back" from dispatch—although Matat could not remember whether he or his partner made the call and whether it was before or after the five individuals were taken out of the car. (H1. at 47-48.) Matat admitted that, when the five individuals were asked to get out of the car, they had no information that anyone had done anything illegal—it was because of "what we saw on the center console." (H1. at 107-08.) Matat recovered the pill bottle. (H1. at 113.) He also asked Porter for permission to search his trunk, received permission, opened it, and saw nothing inside. (H1. at 55, 95-96, 117-20.)

Sergeant Almonte testified that, when he arrived on the scene, he saw the individuals—three black males, one Hispanic male and one Hispanic female—with one black male much older than the others. (H1. 156.) He noticed they matched the description of the suspects in the shooting that took place about an hour before. (H1. 156.) He took Cabezas aside and asked her where she was coming from, and Cabezas said "they were involved in shooting earlier," "she didn't want anything to do with the shooting," and she did not "know why they shot." (H1. 157.) Matat testified that after Sergeant Almonte spoke with Cabezas, all five individuals were handcuffed. (H1. at 74.)

After the five individuals were brought to the 114th Precinct, Matat opened the trunk in the parking lot of the Precinct to conduct an inventory search. (H1. at 53, 96.) Matat observed a boxof latex gloves that contained gloves and a black revolver. (H1. at 54.) He did not remove the revolver, but instead closed the trunk, told Sergeant Almonte what he saw, and went to get a search warrant. (H1. at 54, 96-97, 122.) Almonte testified that the subsequent search recovered three firearms. (H1. 162.) Almonte said Matat did not inform him that Porter earlier consented to the search of his car. (H1. 181, 198-99.)

At oral argument on the motion to suppress, Porter's counsel expressly joined in the arguments made by his co-defendant's attorneys. (H2. 2, 17.) Collectively, counsel argued that Matat was not credible and the car was stopped for pretextual reasons. (H2. 3-9.) As to the bottle, counsel for Porter's co-defendant argued in relevant part:

Now, according to their testimony is that after they allegedly see this bottle, they say he sees pills. He can not determine what kind of pills they are, whether they are aspirin or whether they are cholesterol pills. They are white pills. There is no telltale sign that what's contained in that particular medicine bottle is indicia of any criminality. He then goes back with his fellow officer back to their van and at that point there is some discussion that takes place between the officers and the van. They come back to the vehicle, and at that point, Judge, they rise the level of intrusion by the Police Department to order them out of the vehicle. Now there is not at this point an issue of safety. It's an issue because according to Officer Matat he says that that bottle is contraband.

I submit to the Court, Judge, based upon those facts that was submitted, would the Court issue a search warrant to say you can now search that particular bottle[?] There has been nothing that's been radioed relative to this vehicle again that would indicate that this vehicle was involved in any criminal activity.

. . .

There was no new information that would indicate that vehicle at that time was involved in any criminality that will requires then an officer to raise the level of intrusion to go into the vehicle, look into the vehicle, search the vehicle recover an item and then at that point determine we are going to order you out and detain you based upon what we believe to be contraband in that bottle. And then I will argue, I reiterate, that bottle, there is no indicia that what's in that bottle is criminal at all, and there is no information or new information that those officers received at that juncture much that would indicate they had a right to order these individuals out of the car and know the search of that bottle which they allege to be contraband.

(H2. 8-10.)

After expressly adopting the arguments of co-defendants' counsel, Porter's counsel stated:

I think clearly if your Honor credits the testimony of the police in this case, they obviously have probable cause to stop the vehicle, and obviously once they have probable cause, the officer saw what he saw in the vehicle and everything follows, you know, routinely after that. . . . The credibility of the police in this case is clearly the issue here.

(H2. 17.)

In particular, Porter's counsel argued that it would have been physically impossible to see the pill bottle from Matat's viewpoint, that it was evident that the officers conducted an illegal search, the officers' testimony contradicted common sense, and the officers were attempting to justify the search and arrest after the fact. (H2. 18-21.)

The court found the testimony of the testifying police officers, including Matat and Almonte, "to be credible and worthy of belief", (H2. 27), and entered factual findings following the hearing. (H2. 27-30.) The court concluded that, based on Porter's failure to signal while turning, Matat had a reasonable basis for stopping the vehicle. (H2. 31-32.) When Matat "observed an unmarked pill bottle in the car and that the occupants of the vehicle with the exception of defendant Porter closely resembled four individuals alleged to have been involved in the shooting earlier [that] morning, less than a mile away from the location where the car was stopped, . . . he had a reasonable basis upon which to order the occupants out of the car, frisk them for his safety and detain them briefly pending your investigation." (H2. 31-32.) Once Almonte spoke with Cabezas, the officers had probable cause to arrest the five individuals. (H2. 32.) The subsequent search of the car was justified by Porter's...