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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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