Hon. Samuel Der-Yeghiayan, District Judge for the Northern



District of Illinois, is sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3574

KENNETH E. GENTRY,

Petitioner-Appellant,

v.

MARK R. SEVIER, Superintendent of the Miami

Correctional Facility, 

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Indiana, South Bend Division.

No. 06-C-350—Philip P. Simon, Judge.

ARGUED NOVEMBER 10, 2009—DECIDED FEBRUARY 26, 2010

Before POSNER and FLAUM, Circuit Judges, and DERYEGHIAYAN, District Judge.



DER-YEGHIAYAN, District Judge. On June 10, 1999,

Kenneth E. Gentry was convicted in the Marion Superior
2 No. 08-3574

Court of Indiana on three counts of burglary and three

counts of theft. During the trial, the Government introduced evidence that was obtained by police officers

during an encounter with Gentry when the police officers

searched Gentry’s person and a wheelbarrow he was

pushing. At no time before or during the trial did Gentry’s

counsel move to suppress or object to the introduction

of the evidence. Gentry’s habeas petition asserts that by

failing to move to suppress or object to the admission

of the evidence obtained from the searches by the

arresting officers, Gentry received ineffective assistance

of counsel. The district court denied Gentry’s habeas

petition. For the reasons stated below, we reverse the

district court’s denial of the habeas petition.

I. Background

At approximately 2:30 a.m., on February 6, 1999, Kenneth

E. Gentry was walking through a residential neighborhood in Indianapolis, Indiana. Gentry was pushing a

wheelbarrow containing miscellaneous items such as tools,

a cell phone, compact discs, and beer. The items in the

wheelbarrow were partially covered by a yellow raincoat.

While Gentry was walking with the wheelbarrow, some

items fell out of the wheelbarrow. The noise woke up

residents in the area, and upon waking, one resident

observed Gentry from a window and called the police.

Based on the call, dispatch at the Indianapolis Police

Department notified officers over the radio about a

“suspicious person” described as a black male wearing

dark clothing, including camouflage pants, and pushing
No. 08-3574 3

a wheelbarrow. (App. at 1, 3, 59, 147). Two Indianapolis

police officers responded to the dispatch. Upon arriving

in the area, one officer observed Gentry from the

marked patrol car “trotting” with the wheelbarrow.

(App. at 60, 147). The officers pulled up in the patrol car

without activating their emergency equipment. Gentry

put down the wheelbarrow, waved to the officers and

began walking towards the patrol car. One officer got

out of the car and told Gentry to “keep [his] hands up”

while the officer patted down Gentry. (App. at 63).

While conducting the pat down, the officer felt something bulky in Gentry’s pocket and discovered it was

a garage door opener. During this initial contact with

Gentry, the officer asked Gentry what he was doing with

the wheelbarrow and Gentry indicated that he was going

home. The officer observed a hodgepodge of items in the

wheelbarrow and the wheelbarrow had the word “Brandt”

spray painted on its side. (App. at 4, 61). The officer

testified that in plain view he saw some old beat-up

stuff, and that he found newer, more valuable items only

after he started poking around in the wheelbarrow.

(App. at 84, 86-87, 91).

The officer who had been interrogating Gentry then

left Gentry with another officer and drove partially down

a nearby alley while activating the garage door opener

that the officer had earlier obtained from Gentry’s

pocket. The officer with the garage door opener discovered that the garage door opener opened the garage

of a nearby residence owned by Jeff Gill. Meanwhile,

the other officer who remained with Gentry continued

the search of the wheelbarrow and discovered a toolbox
4 No. 08-3574

at the bottom of the wheelbarrow. In the toolbox was a

Jiffy Lube receipt that had Gill’s name and address on it.

The officer with the garage door opener then arrived at

the scene with Gill and Gill identified items in the wheelbarrow as his property. Subsequently, Bill Wherling

from Brant Construction identified the wheelbarrow

and items in the wheelbarrow as those that were stolen

from Brandt Construction during a burglary a few days

earlier. Bob Kennedy, Gill’s next-door neighbor also

subsequently identified items in the wheelbarrow as

items previously stolen from his garage.

Gentry was charged with burglary and theft, and his

case proceeded to trial. Gentry’s trial counsel never

moved to suppress any evidence or object to the admission of any evidence obtained from the search of

Gentry’s person or the wheelbarrow. Gentry did file a

pro se motion to suppress prior to his trial, (App. at 12-16),

but the record does not reflect that the trial court ever

ruled on the motion or that Gentry’s trial counsel

ever addressed the pro se motion with the court. In

June 1999, Gentry was convicted by a jury on three

counts of burglary and three counts of theft. Gentry

appealed his conviction to the Court of Appeals of Indiana,

raising various claims including claims that he received

ineffective assistance of counsel due to his counsel’s

failure to raise Gentry’s Fourth Amendment defenses.

The Court of Appeals of Indiana found that although

the officer who initially approached Gentry did not

have reasonable suspicion to pat down Gentry for weapons, the toolbox in the wheelbarrow was independently

discovered and would have led the officers to Gill’s
No. 08-3574 5

garage. The Court concluded that Gentry had not shown

ineffective assistance of counsel since Gentry did not

show that he was prejudiced by his counsel’s failure to

object to the introduction of the evidence that was produced by the searches. The Court of Appeals of Indiana

affirmed Gentry’s conviction on September 8, 2000. Gentry

filed a petition for review with the Supreme Court of

Indiana, raising the same ineffective assistance of

counsel claims. The Supreme Court of Indiana denied

review on October 23, 2000. Gentry subsequently filed a

pro se petition for post-conviction relief in Indiana state

court, which was denied on January 27, 2005. Thereafter,

Gentry filed a pro se appeal with the Court of Appeals

of Indiana, which affirmed the lower court on March 15,

2006. Gentry then filed a petition for review with the

Supreme Court of Indiana, which was denied on April 13,

2006. On June 2, 2006, Gentry filed his habeas petition

in this case, seeking a writ of habeas corpus pursuant to

28 U.S.C. § 2254.

II. Discussion

We review de novo the district court’s denial of a habeas

petition. Lucas v. Montgomery, 583 F.3d 1028, 1030 (7th

Cir. 2009). Pursuant to the Antiterrorism and Effective

Death Penalty Act of 1996, a federal court cannot grant

habeas relief to a “person in custody pursuant to the

judgment of a State court . . . unless the adjudication of the

claim—(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court
6 No. 08-3574

of the United States; or (2) resulted in a decision that was

based on an unreasonable determination of the facts

in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). A decision of a state court

is deemed to be “ ‘contrary to’ federal law, within the

meaning of the federal habeas statute, if the state court

either incorrectly laid out governing United States Supreme Court precedent, or, having identified the correct

rule of law, decided a case differently than a materially

factually indistinguishable Supreme Court case.” Sutherland v. Gaetz, 581 F.3d 614, 616 (7th Cir. 2009) (quoting in

part 28 U.S.C. § 2254(d)(1)). A state court’s “unreasonable

application” of precedent of the United States Supreme

Court “occurs, within the meaning of the federal

habeas statute, when a state court identifies the correct

governing legal rule but unreasonably applies it to the

facts of a case or if the state court either unreasonably

extends a legal principle from the Supreme Court’s precedent to a new context in which it should not apply or

unreasonably refuses to extend that principle to a new

context in which it should apply.” Id. (quoting in part

28 U.S.C. § 2254(d)(1)); see also Emerson v. Shaw, 575

F.3d 680, 684 (7th Cir. 2009) (stating that for the unreasonable application prong, a petitioner “must show that

the [state court’s] decision was ‘so erroneous as to be

objectively unreasonable’ ”) (quoting in part Badelle v.

Correll, 452 F.3d 648, 654 (7th Cir. 2006)). The phrase

“[c]learly established federal law” in the habeas statute

has been interpreted to “mean[ ] the governing principle

or principles set forth by the Supreme Court at the time

the state court renders its decision.” Lucas, 583 F.3d at
No. 08-3574 7

1030 (internal quotations omitted) (quoting in part Lockyer

v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155

L.Ed.2d 144 (2003)).

A. Searches Incident to the Arrest

When the officers pulled up in their patrol car and one

officer exited the car and told Gentry to “keep [his] hands

up,” the officer executed a Terry stop. (App. at 63). An

officer executes a Fourth Amendment seizure when “by

means of physical force or show of authority [the

officer] . . . in some way restrain[s] the liberty of a citizen.”

Shell v. United States, 448 F.3d 951, 955 (7th Cir. 2006)

(internal quotations omitted) (quoting in part Terry v.

Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889

(1968)). The test for assessing whether a seizure for

Fourth Amendment purposes has occurred is whether

“in view of all of the circumstances surrounding the

incident, a reasonable person would have believed that

he was not free to leave.” Michigan v. Chesternut, 486 U.S.

567, 573, 108 S.Ct. 1975, 1979 (1988) (internal quotations

omitted) (quoting in part United States v. Mendenhall, 446

U.S. 544, 554, 100 S.Ct. 1870, 1877 (1980)). A reasonable

person in Gentry’s position, who saw a marked police

car pull up and who was told by a police officer to keep

his hands up, would not believe that he was free to

leave. See, e.g., Smith v. Kenny, 2009 WL 2431949, at *23

(D.N.M. 2009) (considering the fact that the suspect

was “order[ed] to exit [a residence] with hands up” in

assessing whether a Fourth Amendment seizure had

occurred); United States v. Brown, 2003 WL 23144858, at *3

(N.D. Ill. 2003) (finding that a Terry stop occurred based
8 No. 08-3574

on facts such as that the officer “ordered everyone to put

their hands up”). Thus, the officer who initially approached Gentry engaged in a Fourth Amendment

seizure of Gentry immediately after arriving at the scene.

A law enforcement officer can execute “an investigatory

stop when the officer has reasonable suspicion that a

crime may be afoot.” United States v. Hampton, 585 F.3d

1033, 1038 (7th Cir. 2009). In order to conduct an “investigatory stop” consistent with Terry v. Ohio, 392 U.S. 1 (1968),

“an officer must be ‘aware of specific and articulable

facts giving rise to reasonable suspicion’ ” that there may

be criminal activity occurring. Jewett v. Anders, 521 F.3d

818, 823-25 (7th Cir. 2008) (quoting in part United States

v. Tilmon, 19 F.3d 1221, 1224 (7th Cir. 1994)); see also

United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744,

750 (2002) (stating that “the Fourth Amendment is

satisfied if the officer’s action is supported by reasonable

suspicion to believe that criminal activity may be afoot”)

(internal quotations omitted) (quoting in part Terry, 392

U.S. at 30); see also Whren v. United States, 517 U.S. 806, 809-

10, 116 S.Ct. 1769, 1772 (1996) (indicating that even a

temporary detention can be a seizure); Valance v. Wisel, 110

F.3d 1269, 1276 (7th Cir. 1997) (indicating that a Terry stop

constitutes a seizure). A reasonable suspicion requires

“more than a hunch but less than probable cause and

‘considerably less than preponderance of the evidence.’ ”

Jewett, 521 F.3d at 823-25 (quoting in part Illinois v.

Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570

(2000)). Determining whether an officer had a reasonable

suspicion is assessed considering “the totality of the

circumstances,” and “ ‘common-sensical judgments and

inferences about human behavior.’ ” Id. (quoting in part
No. 08-3574 9

United States v. Baskin, 401 F.3d 788, 791 (7th Cir. 2005)). For

an interaction to remain a valid Terry stop, the stop must

be “limited in scope and executed through the least

restrictive means reasonable. . . .” United States v. Grogg,

534 F.3d 807, 810 (7th Cir. 2008); see also United States v.

Jackson, 300 F.3d 740, 746 (7th Cir. 2002) (stating that a

“proper Terry stop must be reasonable in scope and

duration and officers are permitted to take reasonable

steps to insure their own safety”).

The officer who initially approached Gentry lacked any

articulable facts at that point to justify a Terry stop. The

officer was acting solely upon a general report of a “suspicious person,” (App. at 1, 59), which did not provide any

articulable facts that would suggest the person was

committing a crime or was armed. In United States v.

Packer, 15 F.3d 654 (7th Cir. 1994), this Court held that a

report received by police officers of a “suspicious vehicle”

in which four men were sitting was not sufficient to

provide the officers with a reasonable suspicion to

justify a Terry stop. Id. at 655. As in Packer, the officer

who initially approached Gentry was not provided with

sufficient information in the police dispatch to warrant

a Terry stop. The dispatch did not indicate any specific

facts concerning a crime and the general reference to a

“suspicious person” was not sufficient to justify a Terry

stop of Gentry. In United States v. Lenoir, 318 F.3d 725

(7th Cir. 2003), this Court held that a “police observation

of an individual, fitting a police dispatch description of a

person involved in a disturbance, near in time and geographic location to the disturbance establishes a reasonable suspicion that the individual is the subject of the
10 No. 08-3574

dispatch” and can justify a Terry stop. Id. at 729. However,

in Lenoir the police dispatch referred to “a disturbance

involving an unidentified male with a gun.” Id. The

officer that arrived on the scene in Lenoir was thus informed that the individual in question was involved in

criminal activity and possessed a gun. In this case, however, the officer that approached Gentry was told nothing

more than that the “suspicious person” was pushing

a wheelbarrow, which is not a crime.

The undisputed record also makes clear that Gentry

himself did not give the officers a reason to suspect that

he had been engaged in any wrongdoing. The United

States Supreme Court has recognized, for example, that

“unprovoked flight” by a suspect can suggest wrongdoing. See, e.g., Wardlow, 528 U.S. at 124, 120 S.Ct. at 676.

The officer who initially approached Gentry testified that

he saw Gentry “trotting,” but did not testify that he

saw Gentry attempt to flee upon being seen by the officers. When the officers pulled up in the patrol car, not only

did Gentry not flee, to the contrary, he set down the

wheelbarrow, waved to the officers and began walking

towards them. The officer who initially approached Gentry

also testified that although Gentry was carrying beer and

public intoxication is a basis for an arrest, it did not appear

that Gentry was intoxicated. There are no facts in the

record concerning any action by Gentry or details regarding the area where Gentry was found that suggested

that Gentry was engaged in wrongdoing or that Gentry

posed a threat to the officers. Thus, when the officers

arrived at the scene of the arrest they did not have any

basis to form a reasonable suspicion necessary to conduct a Terry stop.
No. 08-3574 11

We recognize that working in law enforcement is a

demanding profession, often requiring officers to make

split-second decisions, which affect the safety of the

public and the officers. See Packer, 15 F.3d at 659

(stating that police officers “regularly risk their lives in

the interests of public safety, and yet at the same time

they are required to justify their conduct” and acknowledging that “fine legal distinctions . . . are more readily

made by a court, with the benefit of briefs and hindsight, than on the street where life and limb are at

stake”). In the case before us, it should have been apparent to the officers that they had no basis to execute

a Terry stop when they first observed Gentry. When the

officers reached the scene and saw a person fitting the

description of the “suspicious person,” nothing prohibited them from approaching Gentry and observing Gentry

on the public way while they asked Gentry questions.

An officer can “approach[ ] individuals on the street or

in other public places and put[ ] questions to them if

they are willing to listen” and such conduct does not

constitute a Fourth Amendment search and seizure.

United States v. Drayton, 536 U.S. 194, 200, 122 S.Ct. 2105,

2110 (2002); Florida v. Royer, 460 U.S. 491, 497, 103

S.Ct. 1319, 1324 (1983) (stating that “law enforcement

officers do not violate the Fourth Amendment by merely

approaching an individual on the street or in another

public place, by asking him if he is willing to answer

some questions, by putting questions to him if the

person is willing to listen, or by offering in evidence in a

criminal prosecution his voluntary answers to such questions”). Thus, questioning Gentry on the public way
12 No. 08-3574

would not have “trigger[ed] Fourth Amendment scrutiny

unless it los[t] its consensual nature.” Florida v. Bostick,

501 U.S. 429, 434, 111 S.Ct. 2382, 2386 (1991). While engaging in a consensual conversation with Gentry, the

officers could have also asked for permission to search

through the wheelbarrow without turning the interaction

into a Terry stop. See, e.g., id. at 435, 2386 (stating that an

officer could “request consent to search . . . luggage”

without making the contact a Terry stop). If Gentry had

consented to the search, he would not have had any basis

for his motion to suppress. The officer’s contact with

Gentry was never consensual in nature, however, because

the officer told Gentry to keep his hands up. The contact

was further intrusive and non-consensual when the

officer conducted the pat down on Gentry.

The officer testified that a pat down was “routinely”

done “to make sure there’s no weapons in [a suspect’s]

clothing.” (App. at 63). While we recognize that officer

safety is important, under the law, officers are not free

to pat down citizens at will. A law enforcement officer

can conduct a “protective pat-down search” during a

Terry stop only if the officer has “at a minimum some

articulable suspicion that the subject is concealing a

weapon or poses a danger to the [officer] or others. . . .”

United States v. Pedroza, 269 F.3d 821, 827 (7th Cir. 2001);

United States v. Burrows, 48 F.3d 1011, 1015 (7th Cir. 1995)

(recognizing that an officer is justified under Terry to

“conduct a limited pat-down for weapons when specific

articulable facts, as opposed to a mere inchoate and

unparticularized suspicion or hunch, lead the officer to

believe that the individual encountered is armed and
No. 08-3574 13

dangerous”). The officer who initially approached Gentry

had no articulable suspicion that Gentry was armed and

dangerous. See, e.g., United States v. Brown, 273 F.3d 747,

748-49 (7th Cir. 2001) (finding that facts such as the defendant’s “movements in the car, his failure to produce a

license, and his quick movement” justified “a limited

patdown for weapons”). As previously discussed, Gentry

did not attempt to flee or refuse to answer questions. There

are no facts that would indicate that Gentry’s demeanor

or his actions indicated he was engaged in wrongdoing,

much less that Gentry was a threat to the safety of the

officers or the public. See, e.g., United States v. Brewer, 561

F.3d 676, 679 (7th Cir. 2009) (noting that the vehicle

observed by officer “was the only vehicle on the road at

that late hour in [a] high crime area”); United States v.

Hendricks, 319 F.3d 993, 1002 (7th Cir. 2003) (finding

reasonable suspicion based on the fact that the suspect

was behind a closed commercial establishment and the

officer had been aware of recent burglaries in the area);

Jackson, 300 F.3d at 746 (stating that the evaluation of

whether a stop was reasonable in scope can be based

on “ ‘the behavior and characteristics of the suspect’ ”)

(quoting United States v. Odum, 72 F.3d 1279, 1284 (7th Cir.

1995)). Thus, there were no facts known to the officers

at the time of the pat down that would have given

them reasonable suspicion that Gentry had committed

a crime or articulable facts to suggest that Gentry was

armed and dangerous. Although the officers ultimately

uncovered Gentry’s burglary and theft, such discoveries

cannot be used in retrospect to justify the initial search.

See Brewer, 561 F.3d at 678 (stating that “ ‘[t]he reason-
14 No. 08-3574

ableness of official suspicion must be measured by what

the officers knew before they conducted their search’ ”)

(quoting Florida v. J.L., 529 U.S. 266, 271, 120 S.Ct. 1375,

146 L.Ed.2d 254 (2000)); see also United States v. Griffin,

589 F.3d 148, 154 n. 7 (4th Cir. 2009) (indicating that

although a gun was recovered by the officer during a

search of the vehicle in question, the discovery of the gun

could not be relied upon “as justification for the search”).

The officer who initially approached Gentry thus conducted the pat down and discovered the garage door

opener without the requisite reasonable suspicion.

Even if the officer who searched Gentry had a basis

to conduct a Terry stop and a pat down, the officer

engaged in an unconstitutional seizure when he

retrieved the garage door opener from Gentry’s pocket

and did not immediately return the garage door opener

to Gentry. The officer testified that he felt a bulge in

Gentry’s clothing that “could have been a stun gun. . . .”

(App. at 63). However, once the officer discovered that

the item in Gentry’s pocket was a garage door opener

and not a weapon, he had no basis to seize or retain it,

much less to drive off with it to investigate whether

Gentry had committed crimes. United States v. Place, 462

U.S. 696, 716, 103 S.Ct. 2637, 2649 (1983) (stating that

“[w]hile Terry may authorize seizures of personal effects

incident to a lawful seizure of the person, nothing in the

Terry line of cases authorizes the police to seize personal

property, such as luggage, independent of the seizure

of the person”). A garage door opener is an item that

might commonly be found on a law-abiding person and

does not suggest any wrongdoing. Thus, the officer
No. 08-3574 15

violated Gentry’s Fourth Amendment rights during the

initial stop, the pat down of Gentry, and the seizure of the

garage door opener. We note that the Court of Appeals of

Indiana agreed that the officer did not have a reasonable suspicion to justify the pat down of Gentry.

In addition to the search of Gentry, the officers proceeded to search through the contents of the wheelbarrow. The officer who initially approached Gentry

testified that at one point during the initial contact with

Gentry, the officer poked through the contents of the

wheelbarrow. While one officer drove off to test the

garage door opener, another officer engaged in a further

search of the wheelbarrow and discovered items such

as the toolbox and receipt. In determining whether a

search is the type of search that is contemplated under

the Fourth Amendment, the court should consider

“whether the individual, by his conduct, has exhibited

an actual expectation of privacy,” and “whether the individual’s expectation of privacy is one that society is

prepared to recognize as reasonable.” Bond v. United

States, 529 U.S. 334, 338, 120 S.Ct. 1462, 1465 (2000)

(internal quotations omitted) (quoting Smith v. Maryland,

442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979)); see

also United States v. Sandoval-Vasquez, 435 F.3d 739, 743

(7th Cir. 2006) (indicating that “[t]he touchstone of

Fourth Amendment analysis is whether a person has a

constitutionally protected reasonable expectation of

privacy”) (internal quotation omitted) (quoting California

v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d

210 (1986)). The record reflects that Gentry placed a

raincoat on top of the wheelbarrow partially covering
16 No. 08-3574

the items, which indicates some expectation of privacy

with respect to the items in the wheelbarrow. In

addition, to the extent that the record is not fully developed relating to Gentry’s expectation of privacy, it is

due to the fact that Gentry’s counsel never moved to

suppress the evidence obtained from the search of

Gentry’s person or the wheelbarrow. The basis of

Gentry’s habeas petition is his contention that his trial

counsel did not file a motion to suppress evidence. Had

Gentry’s counsel filed a motion to suppress, Gentry

would have had an opportunity to present evidence

concerning his expectation of privacy.

Although the officers searched through the contents

of the wheelbarrow, the officers did not have reasonable

suspicion to believe Gentry had committed a crime until

after the search when one of the officers had located

Gill, using the garage door opener, and Gill identified

items in the wheelbarrow as stolen items. The mere fact

that the wheelbarrow did not have a closed lid does not

mean that its contents could not be protected by the

Fourth Amendment. The record indicates that the

yellow raincoat placed on top of the wheelbarrow only

partially covered its contents. However, the record also

indicates that the visible items were not such that

they provided the officers with a reasonable basis to

conclude that Gentry had engaged in wrongdoing.

Under the “plain-view” doctrine, “if police are lawfully

in a position from which they view an object, if its incriminating character is immediately apparent, and if the

officers have a lawful right of access to the object, they

may seize it without a warrant.” Minnesota v. Dickerson,
No. 08-3574 17

508 U.S. 366, 374-75, 113 S.Ct. 2130, 2136-37 (1993). In the

instant action, although some of the items on the top of

the pile in the wheelbarrow were visible to the officers,

the items did not indicate any wrongdoing on the part

of Gentry. The facts do not indicate that the officers

had reasonable suspicion or probable cause to search

the wheelbarrow based on the items in plain view. There

was no justification for a further warrantless search

beneath the surface of the pile of items in the wheelbarrow. The officer who initially approached Gentry

testified that Gentry was unable to give a consistent

explanation for where he found the wheelbarrow. However, that alone would not justify a search of the wheelbarrow without a warrant. A reasonable suspicion

could justify a limited Terry stop, and perhaps a limited

detention of the wheelbarrow, if officers had reason to

believe that it contained stolen items. See, e.g., United States

v. Marrocco, 578 F.3d 627, 633 (7th Cir. 2009) (indicating

that in certain situations law enforcement can conduct

a limited detention of luggage). A reasonable suspicion

is not enough to justify a search of the wheelbarrow. To

search the wheelbarrow, the officers needed probable

cause and a warrant. The wheelbarrow also had the

name “Brandt” spray painted on it, (App. at 4), which

was visible to the officers, but there is nothing in the

record that indicates that any of the officers at the

scene were aware that there was a company in the

area named Brandt Construction. (App. at 88). Nor does

the fact that Gentry was “trotting” down a street at

night, in and of itself, provide justification for the search

of the wheelbarrow. (App. at 60). Gentry did not flee

upon discovery and in fact turned and approached the
18 No. 08-3574

officers. The officers could not, for example, have

searched without probable cause a shopping cart being

pushed by Gentry down the street or a piece of luggage

being carried by Gentry. See, e.g., Place, 462 U.S. at 706-07,

103 S.Ct. at 2644 (stating that the Court has “affirmed

that a person possesses a privacy interest in the contents of personal luggage that is protected by the Fourth

Amendment”). The officers thus could not perform a

search of the wheelbarrow incident to Gentry’s arrest in

this case without first obtaining a warrant and the

record does not reflect any applicable exceptions to the

warrant requirement. See Arizona v. Gant, 129 S.Ct. 1710,

1716 (2009) (stating that a court should begin assessing

“a warrantless search, with the basic rule that ‘searches

conducted outside the judicial process, without prior

approval by judge or magistrate, are per se unreasonable

under the Fourth Amendment-subject only to a few

specifically established and well-delineated exceptions’ ”)

(quoting in part Katz v. United States, 389 U.S. 347, 357, 88

S.Ct. 507, 19 L.Ed.2d 576 (1967)); United States v. Zahursky,

580 F.3d 515, 521 (7th Cir. 2009) (stating that “[a]

warrantless search is per se unreasonable under the

Fourth Amendment subject to a few well-established

exceptions”); Lenoir, 318 F.3d at 730 (stating that

“warrantless searches will be allowed when police have

a reasonable belief that exigent circumstances require

immediate action and there is no time to secure a warrant”) (citing Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct.

1942, 56 L.Ed.2d 486 (1978) and United States v. Webb, 83

F.3d 913, 916 (7th Cir. 1996)). The officers engaged in a

warrantless search of the wheelbarrow and it was that
No. 08-3574 19

warrantless search that allowed the officers to find the

receipt in the toolbox at the bottom of the wheelbarrow

with Gill’s name on it. Although, ultimately the officers

were able to verify that the items in the wheelbarrow

were stolen items, the officers were only able to obtain

such evidence through unlawful searches. While we

acknowledge the need by officers to conduct searches

to investigate crimes and that, in this case, the officers’

searches enabled them to tie Gentry to multiple unsolved

crimes, officers must abide by constitutional standards

when conducting such searches. Had the officers merely

questioned Gentry instead of searching his person, obtained consent to search the wheelbarrow or properly

obtained a search warrant for the wheelbarrow, the

result in this case would have been different.

The Indiana Appellate Court on direct appeal concluded that the pat down by one of the officers was

a violation of Gentry’s Fourth Amendment rights. However, the Court further concluded that absent the pat

down, the officers would still have discovered the

identity of Gill through the discovery of the toolbox in

the wheelbarrow. (App. at 156-57). Under the exclusionary rule, evidence seized in violation of the Fourth

Amendment must be suppressed. United States v. Carter,

573 F.3d 418, 422 (7th Cir. 2009). The inevitable discovery

doctrine provides an exception to the exclusionary rule,

allowing the admission of evidence if “the government

establishes by a preponderance of the evidence ‘that the

information ultimately or inevitably would have been

discovered by lawful means.’ ” United States v. Alexander,

573 F.3d 465, 477 (7th Cir. 2009) (quoting in part Nix v.
20 No. 08-3574

Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d

377 (1984)). In the instant action, the garage door opener

was obtained through an illegal search which led the

officers to Gill. Based on the circumstances of the arrest

and the items in plain view, the officers could not have

discovered the toolbox but for the illegal searches. The

Indiana Appellate Court’s conclusion concerning the

inevitable discovery doctrine was an unreasonable application of federal law to the facts in this case.

The exclusionary rule is not limited to the “primary

evidence obtained as a direct result of an illegal search

or seizure, but also [applies to] evidence later discovered

and found to be derivative of an illegality or fruit of the

poisonous tree.” United States v. Budd, 549 F.3d 1140, 1144

(7th Cir. 2008) (internal quotations omitted) (quoting in

part Segura v. United States, 468 U.S. 796, 804, 104 S.Ct. 3380,

82 L.Ed.2d 599 (1984)); see also United States v. Swift, 220

F.3d 502, 507 (7th Cir. 2000) (stating that “[e]vidence

which is obtained as a result of an illegal arrest is fruit of

the poisonous tree and it must be excluded unless the

government can show that it was obtained as a result not

of the illegality, but rather ‘by means sufficiently distinguishable to be purged of the primary taint’ ”) (quoting

Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9

L.Ed.2d 441 (1963)). The officer who initially searched the

wheelbarrow also searched Gentry’s person, found the

garage door opener, and left the area with the garage

door opener to conduct further investigation. The further

search of the wheelbarrow by another officer immediately

followed the departure of the officer with the garage

door opener. There is an absence of intervening circum-
No. 08-3574 21

stances leading to the search of the wheelbarrow by the

second officer. Thus, the evidence discovered in the

wheelbarrow by the second officer must also be excluded as fruit of the poisonous tree.

B. Ineffective Assistance of Counsel

Gentry’s trial counsel in state court did not seek to

suppress the evidence gained from the unconstitutional searches executed by the officers. Under the Sixth

Amendment, a criminal defendant is provided with a

right to effective assistance of counsel. Bobby v. Van Hook,

130 S.Ct. 13, 16 (2009). In order to establish ineffective

assistance of counsel, a petitioner must establish that:

“(1) his attorney’s performance fell below an objective

standard of reasonableness, and (2) he suffered prejudice

as a result.” Wyatt v. United States, 574 F.3d 455, 457-58

(7th Cir. 2009) (citing Strickland v. Washington, 466 U.S. 668,

687-88, 693, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)); see

also Smith v. Spisak, 130 S.Ct. 676, 684-85 (2010) (explaining the two prongs of the Strickland analysis). In

regard to the performance of the attorney, a petitioner

“must overcome the ‘strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance.’ ” Wyatt, 574 F.3d at 457-58 (quoting in

part Strickland, 466 U.S. at 687-88). In order to establish

sufficient prejudice resulting from the deficiencies in a

counsel’s performance, a petitioner “ ‘must show that

there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would

have been different.’ ” Porter v. McCollum, 130 S.Ct. 447, 452
22 No. 08-3574

(2009) (quoting in part Strickland, 466 U.S. at 694); see also

Shell, 448 F.3d at 955 (stating that “ ‘[w]hen the claim of

ineffective assistance is based on counsel’s failure to

present a motion to suppress, we have required that a

defendant prove the motion was meritorious’ ”) (quoting

United States v. Cieslowski, 410 F.3d 353, 360 (7th Cir. 2005)).

As explained above, the record reflects that the

searches performed by the officers at the scene of

Gentry’s arrest were unconstitutional and there is thus

no indication that a motion to suppress evidence

resulting from such searches would have been futile.

See A.M. v. Butler, 360 F.3d 787, 795 (7th Cir. 2004) (stating

that “[i]f there was no underlying constitutional violation, a motion to suppress would have been futile and

counsel could not be viewed as ineffective for failing to

present such a motion”). We recognize that trial

strategies are generally left to the discretion of counsel

and second-guessing strategic decisions in hindsight

will generally not be a meritorious basis to find ineffective assistance of counsel. See, e.g., Smith v. Gaetz, 565

F.3d 346, 352-53 (7th Cir. 2009). However, in this case, the

decision by Gentry’s trial counsel not to seek to

suppress evidence based on a violation of Gentry’s

Fourth Amendment rights is beyond the pale of an objectively reasonable strategy. The application of the fundamental principles of Fourth Amendment case law to

Gentry’s situation should have been apparent to his trial

counsel. The record does not indicate that any strategic

benefit would have been accorded to Gentry by his trial

counsel’s failure to seek the suppression of the evidence.

Gentry even brought the suppression issue to the atten-
No. 08-3574 23

tion of his counsel by filing a pro se motion to suppress

and yet, even then, his counsel failed to attempt to suppress the evidence. Gentry has shown that he received

ineffective assistance of counsel and that he suffered

prejudice. The record does not reflect what evidence

could have been used to convict Gentry excluding the

garage door opener, the identities of the residents, the

stolen items and the evidence found in the wheelbarrow. We conclude that the Court of Appeals of Indiana

unreasonably applied Strickland v. Washington, 466 U.S.

668 (1984) to the facts in this case.

At oral argument, Respondent also made a cursory

argument that Gentry forfeited his claim concerning

ineffective assistance of counsel as to the search of the

wheelbarrow because Gentry never properly raised it

before. The record, however, reflects that while Gentry’s

state trial and appellate counsel did not raise the claim

relating to suppression, Gentry himself raised this

claim, pro se, during state court proceedings. In addition, Gentry raised the claim of ineffective assistance of

counsel as to the search of the wheelbarrow in his

opening brief in this Court, and Respondent did not

include the forfeiture argument in its appellee brief. The

Respondent’s forfeiture argument is thus waived. See,

e.g., Awe v. Ashcroft, 324 F.3d 509, 512-13 (7th Cir. 2003).

III. Conclusion

For the above stated reasons, we conclude that the

Court of Appeals of Indiana unreasonably applied

federal law when the Court determined that the
24 No. 08-3574

evidence concerning the search of the wheelbarrow was

admissible and held that Gentry’s counsel’s performance

did not fall below an objective standard of reasonableness.

We REVERSE the decision of the district court and

REMAND with instructions to GRANT the petitioner’s

request for a writ of habeas corpus, pursuant to 28 U.S.C.

§ 2254. If the State elects not to retry Gentry within

120 days, he shall be released from confinement.

2-26-10