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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. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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