                              In the

United States Court of Appeals
                For the Seventh Circuit

No. 08-3574

K ENNETH E. G ENTRY,
                                               Petitioner-Appellant,
                                  v.

M ARK R. S EVIER, 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.



    A RGUED N OVEMBER 10, 2009—D ECIDED F EBRUARY 26, 2010




  Before P OSNER and F LAUM, Circuit Judges, and D ER-
Y EGHIAYAN, District Judge.
 D ER-Y EGHIAYAN, District Judge. On June 10, 1999,
Kenneth E. Gentry was convicted in the Marion Superior




  Hon. Samuel Der-Yeghiayan, District Judge for the Northern
District of Illinois, is sitting by designation.
2                                              No. 08-3574

Court of Indiana on three counts of burglary and three
counts of theft. During the trial, the Government intro-
duced 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 neighbor-
hood 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 some-
thing 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 dis-
covered 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 wheel-
barrow 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 ad-
mission 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 weap-
ons, 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 pro-
duced 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 estab-
lished 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 pro-
ceeding.” 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 Su-
preme Court precedent, or, having identified the correct
rule of law, decided a case differently than a materially
factually indistinguishable Supreme Court case.” Suther-
land 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 prece-
dent 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 unrea-
sonable 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 ap-
proached 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 “investi-
gatory 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 “suspi-
cious 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 geo-
graphic location to the disturbance establishes a rea-
sonable 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 in-
formed that the individual in question was involved in
criminal activity and possessed a gun. In this case, how-
ever, 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 wrong-
doing. 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 offi-
cers. 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 re-
garding 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 con-
duct 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 acknowl-
edging that “fine legal distinctions . . . are more readily
made by a court, with the benefit of briefs and hind-
sight, than on the street where life and limb are at
stake”). In the case before us, it should have been ap-
parent 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 prohib-
ited 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 ques-
tions”). 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 en-
gaging 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 defen-
dant’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 con-
ducted 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 rea-
sonable suspicion to justify the pat down of Gentry.
  In addition to the search of Gentry, the officers pro-
ceeded to search through the contents of the wheelbar-
row. 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 indi-
vidual’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 devel-
oped 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 incrimi-
nating 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 wheel-
barrow. The officer who initially approached Gentry
testified that Gentry was unable to give a consistent
explanation for where he found the wheelbarrow. How-
ever, that alone would not justify a search of the wheel-
barrow 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 con-
tents 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 war-
rant”) (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, ob-
tained 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 con-
cluded that the pat down by one of the officers was
a violation of Gentry’s Fourth Amendment rights. How-
ever, 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 exclu-
sionary 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 ap-
plication 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 distin-
guishable 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 ex-
cluded 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 unconstitu-
tional 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) (ex-
plaining 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 profes-
sional 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 viola-
tion, 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 inef-
fective 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 objec-
tively reasonable strategy. The application of the funda-
mental 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 sup-
press 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 wheelbar-
row. 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 addi-
tion, 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 R EVERSE the decision of the district court and
R EMAND with instructions to G RANT 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.




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