Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 06-C-350. Philip P. Simon, Judge.
The opinion of the court was delivered by: DER-YEGHIAYAN,*fn1 District Judge.
Before POSNER and FLAUM, Circuit Judges, and DER-YEGHIAYAN, District Judge.
On June 10, 1999, Kenneth E. Gentry was convicted in the Marion Superior 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.
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 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 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 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 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.
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 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 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 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 United States v. Baskin, 401 F.3d 788, 791 (7th Cir. 2005)). For an ...