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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. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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