ILNews

Judges find stop violated Fourth Amendment

Back to TopCommentsE-mailPrintBookmark and Share

The 7th Circuit Court of Appeals ruled a defendant's stop by police and subsequent search of a wheelbarrow he was pushing - which led to convictions of burglary and theft - violated the man's Fourth Amendment rights. The Circuit Court ordered the defendant's petition for habeas corpus be granted.

The District Court denied Kenneth Gentry's petition for habeas corpus. Gentry's petition was his most recent attempt to overturn his convictions following his 1999 arrest in Indianapolis. Police stopped Gentry walking down the street following a report of a suspicious person by neighbors. Gentry was pushing a wheelbarrow filled with items, some partially covered by a raincoat. The officers told Gentry to put his hands up, patted him down, and found a garage door opener on him. One officer tried the opener on nearby garages and discovered the opener and many of the items in the wheelbarrow, including the wheelbarrow - were stolen.

Gentry filed a pro se motion to suppress evidence but the record doesn't show whether the trial court ever ruled on it. His attorney never moved to suppress the evidence, objected to its introduction or addressed the pro se motion with the court. His appeals, including post-conviction relief, were denied by the Indiana Court of Appeals and Indiana Supreme Court.

In Kenneth E. Gentry v. Mark R. Sevier, superintendent of the Miami Correctional Facility, No. 08-3574, the 7th Circuit reversed the District Court's denial of the petition for habeas corpus, finding the officers didn't have reasonable suspicion to justify the Terry stop or the pat-down of Gentry. Gentry was stopped because of a suspicious person report and was doing nothing more than pushing a wheelbarrow down the street. He even stopped when the police approached him. The officers could have just engaged Gentry in conversation and asked to search the wheelbarrow, but the stop was intrusive and non-consensual because he was ordered to stop and patted down, wrote Northern Illinois U.S. District Judge Samuel Der-Yeghiayan, who was sitting by designation on the Circuit Court.

When the officers discovered the bulge in Gentry's pants was just a garage opener, it should have ended the search, but instead an officer took it to see if it opened a nearby garage. Also, the officers needed to have a warrant to search through the wheelbarrow, even though some of the items were in plain sight. They had no reasonable suspicion that Gentry committed a crime until the officer using the garage door discovered it belonged to someone else, wrote the judge.

The Circuit Court also concluded that Gentry received ineffective assistance of counsel because his attorney didn't file a motion to suppress the evidence. The decision of the attorney to not seek to suppress the evidence based on the violation of Gentry's Fourth Amendment rights "is beyond the pale of an objectively reasonable strategy," wrote Judge Der-Yeghiayan.

The Circuit judges instructed the District Court to grant the petition and to release Gentry if the state decides not to retry him within 120 days.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

ADVERTISEMENT