Judges find stop violated Fourth Amendment

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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.


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  1. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.