Stolen property conviction reversed due to illegal police stop

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In a split opinion, a state appeals court has reversed a stolen property conviction because of an illegal police stop.

Defendant Al Amin McMillon pleaded guilty before Ontario County Court Judge Brian D. Dennis, in March 2022, to fourth-degree criminal possession of stolen property.

In a 3-2 decision released Oct. 6, the Appellate Division of state Supreme Court, Fourth Department, reversed the conviction, vacated the plea, granted a defense motion to suppress physical evidence and statements made by McMillon, and dismissed the indictment.

McMillon was arrested by Ontario County Sheriff’s deputies who suspected that McMillon and other occupants of a vehicle had shoplifted at a mall.

The deputies stopped the vehicle in the mall parking lot and found alleged evidence that McMillon and the others had stolen merchandise from several stores.

McMillon’s appellate attorney, Bradley E. Keem, argued that the prosecution failed to meet its burden of showing the legality of the vehicle stop.

Keem argued that the evidence presented at the suppression hearing did not provide deputies with the required reasonable suspicion that the occupants of the vehicle had committed or were committing a crime.

“We agree with defendant,” the Fourth Department wrote.

Mall security reported to deputies “two suspicious black males” exiting the mall “with H&M bags full of merchandise,” according to the decision.

Individuals matching the description of the two males were seen on surveillance video in a vehicle in the parking lot outside. A deputy testified that live surveillance video showed two individuals matching the description, along with a third individual, reenter the mall with an empty H&M bag, proceed to a nearby store, leave the store, and walk out of the mall about five minutes later with a full H&M bag and return to the vehicle where they placed the bag in the trunk, according to the decision.

Deputies then stopped the vehicle in the parking lot.

“We conclude that the vehicle stop was unlawful because the totality of the information known to the deputies at the time of the stop, along with any rational inferences to be drawn therefrom, were insufficient to establish reasonable suspicion that the occupants of the vehicle had committed or were committing a crime,” the majority wrote.

Deputies testified at the suppression hearing that there was no H&M store at the mall and, “based on his training and experience, it was rare for stores in the mall to fill personal, non-store bags with merchandise.”

He said that many theft cases at the mall over the previous three years involved the use of outside bags.

“We conclude that the conduct known to the deputies constituted nothing more than equivocal or innocuous behavior that is susceptible of an innocent as well as a culpable interpretation, which was insufficient to provide the requisite reasonable suspicion to justify the vehicle stop,” the majority wrote.

The majority concluded that Dennis “erred in refusing to suppress the physical evidence and statements obtained as a result of the vehicle stop.”

“Because our determination results in the suppression of all evidence supporting the crime charged, the indictment must be dismissed,” the court wrote.

Justices Tracey A. Bannister and Donald A. Greenwood dissented and voted to affirm the conviction.

“We conclude that County Court properly refused to suppress physical evidence and statements as the fruits of a stop of a vehicle in a mall parking lot … We conclude that the police had reasonable suspicion to justify the vehicle stop,” they wrote.

“We agree with the court that the police had the requisite reasonable suspicion that the driver or occupants of the vehicle had committed a crime to justify the vehicle stop,” they wrote.

“The rational inference to be drawn from the fact that defendant and the other individuals went into a store with an empty bag from a store not located in the mall and left the store just five minutes later with a full bag of merchandise in a bag not from that store, which the deputy testified was very rare, is that they stole the merchandise from the store,” the minority wrote.

“It simply strains credulity to believe that someone could retrieve a large quantity of merchandise and pay for it through a cashier in such a short amount of time,” they wrote.

“While the various activities of defendant and the other individuals observed by mall security and the deputy may have had innocent explanations by themselves, when those activities are considered in combination and through the lens of a trained law enforcement officer who was well versed in the methods used by shoplifters, we conclude that they gave rise to reasonable suspicion to justify the vehicle stop,” the minority wrote.

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