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Kenneth E. Gentry v. Sevier, 7th Circuit App. No. 08-3574, 2/26/10

7th Circuit decision

Terry Stop / Frisk
1. Pulling up in a patrol car and telling Gentry to keep his hands up amounted to a stop for purposes of Terry analysis.

2. The stop, which was based on a report of a “suspicious person,” without reference to any specific facts concerning a crime, was not supported by reasonable suspicion to believe Gentry had either committed a crime or was armed.

That Gentry was pushing a wheelbarrow at the time didn’t establish reasonable suspicion: “the officer that approached Gentry was told nothing more than that the ‘suspicious person’ was pushing a wheelbarrow, which is not a crime.” The court also stresses that Gentry made no attempt to flee, but instead put down the wheelbarrow and began walking toward the officers.

3. Pat-down of Gentry was illegal, because there was no articulable suspicion he was armed and dangerous. Nothing in “Gentry’s demeanor or actions indicated he was engaged in wrongdoing much less that Gentry was a threat to the safety of the officers or the public.”

4. Even had it been lawful, the frisk produced a garage door opener, an item that under the circustances should have been immediately returned to Gentry instead of being used to investigate an unreported crime.

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. …

Search of Personal Containers
Search of wheelbarrow contents, partially covered by raincoat, was impermissible:

… The record reflects that Gentry placed a raincoat on top of the wheelbarrow partially covering the items, which indicates some expectation of privacy with respect to the items in the wheelbarrow. …

… 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. … 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. …

In terms of the larger principle — warrant required to search container — is the result reconcilable with State v. Tamara C. Limon, 2008 WI App 77, ¶¶27-35 (search of closed purse permissible on reasonable suspicion)? This issue wasn’t raised in Limon, and so it doesn’t represent adverse precedent on the point.

Inevitable Discovery
Inevitable discovery requires government proof by preponderance of the evidence that the challenged evidence ultimately would have been discovered, by lawful means. In this instance, linkage of the defendant to a crime was the very result of an illegal search, and the necessary showing therefore can’t be made.

Ineffective Assistance
The record reflects that the various searches were unconstitutional, from which it follows that: a motion to suppress would not have been futile; and, failure to file such a motion was beyond the pale of objectively reasonable strategy.

Waiver of Waiver
Respondent’s failure to argue forfeiture in its appellee brief waived the argument.

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