People v. Mingo

117 A.D.2d 353, 502 N.Y.S.2d 558, 1986 N.Y. App. Div. LEXIS 53693

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 23, 1986
• Status: Published

Opinions

OPINION OF THE COURT

Green, J.

The issue is whether defendants were arrested based upon probable cause. The following relevant facts were developed at the suppression hearing held on January 2, 1985. Charles McCoy, an agent of the Federal Drug Enforcement Administration (DEA) received several phone calls from the DEA office in Rochester informing McCoy that a police officer in Virginia was told by an unidentified informant that defendant John Mingo would be arriving by plane in Buffalo at 1:05 p.m. on March 24, 1984 to purchase cocaine and that Mingo would be returning to Virginia the same day. Mingo did in fact arrive, but at 2:05 p.m., and met at the airport with defendant Gregory Schwartz and his companion John Cordaro. The three men went to the airport cocktail lounge and shortly thereafter, Nancy Burgstahler, an undercover DEA agent, sat at the bar near Mingo. She saw Mingo reach into his jacket pocket with his right hand and Schwartz reach into the left pocket of his pants. She heard paper crumpling but could not see what either defendant held in his hand. She also heard the three men discussing air fares between Buffalo, Newark and Virginia and heard Mingo say that he had to be back in Newark within the hour.

Mingo left the bar and walked directly to a gate and boarded a plane bound for Newark. McCoy and a police officer followed Mingo onto the plane. As Mingo was standing in the aisle waiting to be seated, McCoy identified himself as a DEA agent and told Mingo to accompany McCoy and the officer off the plane. As the men walked out of the jetway onto the concourse area of the airport, Mingo broke away and ran toward the terminal lobby where he was apprehended in the hallway near the bar where Schwartz and Cordaro were still seated. McCoy then entered the bar and arrested Cordaro while Burgstahler arrested Schwartz.

At the conclusion of the suppression hearing, the prosecutor reminded the court of his earlier offer to make the confidential informant available for an in camera examination "if the court felt it necessary”. Defendants objected on the grounds that they neither requested a Darden hearing (see, People v Darden, 34 NY2d 177) nor raised any issue as to the existence of an informant. Nevertheless, on March 8, 1985, the hearing court, in chambers and outside the presence of defendants and their counsel, took testimony from the informant and two police officers, one from Virginia and the other from Rochester, who passed the informant’s tip along to McCoy. The hearing court denied defendants’ motions to suppress on the ground that each defendant was arrested based upon probable cause relying, in part, on the in camera examination of the informant and police officers. We disagree.

Defendant Mingo was arrested when DEA Agent McCoy took him off the plane (People v Cantor, 36 NY2d 106, 111; People v Shivers, 21 NY2d 118; People v McKay, 29 AD2d 834). Submission to lawful authority is not consent (see, Bumper v North Carolina, 391 US 543, 550; Amos v United States, 255 US 313; People v Gonzalez, 115 AD2d 73, 79-81). "Voluntariness is incompatible with official coercion, actual or implicit, overt or subtle” (People v Gonzalez, 39 NY2d 122, 128). Hence, once Mingo was apprehended on the plane by McCoy and told to leave the plane, he was under arrest and in custody (Dunaway v New York, 442 US 200; People v Yukl, 25 NY2d 585, 589, cert denied 400 US 851).

At this time, McCoy did not have sufficient information for probable cause to believe that Mingo had committed a crime (CPL 140.10 [1] [b]). McCoy observed only that Mingo arrived at the Buffalo airport at 2:05 p.m., sat at the airport bar and talked to defendant Gregory Schwartz and John Cordaro, an acquaintance. Undercover Agent Burgstahler, sitting at the bar, overheard Mingo remark that he had to return to Newark within an hour and may be traveling to Virginia and observed Mingo and Schwartz make hand motions, but was unable to see what, if anything, either defendant had in his hands. At best, the behavior of each defendant was equivocal and capable of innocent interpretation and insufficient to establish probable cause for an arrest (People v Bigelow, 66 NY2d 417, 424; People v Elwell, 50 NY2d 231; People v Stewart, 41 NY2d 65, 66; People v Brown, 24 NY2d 421; People v Corrado, 22 NY2d 308, 311).

The People failed to establish, by clear and convincing evidence, the reliability of the informants, or the basis of the informants’ knowledge (Aguilar v Texas, 378 US 108; Spinelli v United States, 393 US 410; People v Bigelow, supra, pp 422-424). Moreover, even if the informants are reliable there is no way to determine the basis of their knowledge. The failure of the People to produce the informants at the suppression hearing prevented the hearing court from determining how the informants acquired the information they passed on.

The suppression court’s ex parte communication with the informant after the People had rested at the suppression hearing cannot be used to bolster the showing of probable cause. The purpose of a Darden hearing (People v Darden, 34 NY2d 177, supra) is to establish the existence of an informant, not the basis of his or her information. Here, defendants did not request a Darden hearing and never questioned the existence of the informants. Accordingly, the suppression court erred in conducting any in camera investigation based on the proof presented at the suppression hearing and should not have relied on proof submitted at the so-called Darden hearing in its probable cause determination. In any event, the testimony did nothing to establish the reliability of the arresting officer’s knowledge because the informants never spoke to McCoy and McCoy had no way of knowing the basis of the informants’ knowledge.

The People also failed to produce the sending police officer at the suppression hearing. Even if Officer McCoy believed he had probable cause to arrest Mingo on the plane, on a motion to suppress where a challenge to the information McCoy received was made, the presumption of probable cause that originally cloaked his actions disappeared (People v Lypka, 36 NY2d 210, 214). Since defendants challenged the basis for their arrest, the legality of Mingo’s arrest cannot be justified by reliance upon information received from the sending police officer without his testimony (People v Havelka, 45 NY2d 636; People v Lypka, supra).

Accordingly, the judgments should be reversed, defendants’ motions to suppress should be granted and a new trial granted.