Rarity: Habeas corpus granted on a IAC Fourth Amendment claim where the Indiana Court of Appeals was found to have unreasonably applied the Fourth Amendment in finding that defense counsel was not ineffective for not addressing defendant’s pro se issue that the search of his wheelbarrow was unreasonable. It was unreasonable to conclude that defendant would not have prevailed on the search issue. [A really interesting case.] Gentry v. Sevier, 2010 U.S. App. LEXIS 4030 (7th Cir. February 26, 2010):

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 attention 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.

. . .

For the above stated reasons, we conclude that the Court of Appeals of Indiana unreasonably applied federal law when the Court determined that the 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.

WASHINGTON (AP) — Police told Van Chester Thompkins he had a right to remain silent, and so he did.
But his silence meant he never officially told officers he wasn’t going to talk, and so they kept interrogating him. A couple of hours later, Thompkins implicated himself in a murder.
Several Supreme Court justices indicated Monday they were going to let that confession stand, saying suspects should tell police that they want to be silent to take advantage of that Miranda right.
“Why don’t we have just a clear rule: You are read your rights; if you don’t want to be questioned, all you have to say is ‘I don’t ant to be questioned’?” Justice Antonin Scalia said.
But other justices saw problems with that rule, saying police should have known that Thompkins didn’t want to cooperate by his lack of cooperation. “It’s at least arguable that his silence indicated he wished to remain silent,” Justice John Paul Stevens said.
This case is another example of the high court’s recent struggle to clearly define Miranda rights, which have been litigated since they first came into being in 1966. The courts require police to tell suspects they have the right to remain silent and the right to have a lawyer represent them, even if they can’t afford one.
Thompkins was arrested for murder in 2001 and interrogated by police for three hours. At the beginning, Thompkins was read his Miranda rights and said he understood.
The officers in the room said Thompkins said little during the interrogation, occasionally answering “yes,” “no,” “I don’t know,” nodding his head and making eye contact as his responses. But when one of the officers asked him if he prayed for forgiveness for “shooting that boy down,” Thompkins said, “Yes.”
He was convicted, but on appeal he wanted that statement thrown out because he said he invoked his Miranda rights by being uncommunicative with the interrogating officers.
The Cincinnati-based appeals court agreed and threw out his confession and conviction.
But Michigan Solicitor General Eric Restuccia told the justices that Thompkins waived his right to be silent by answering questions from the police.
After two and a half hours of interrogation, Thompkins answered three questions, said Justice Stephen Breyer: “One, do you believe in God? Yes. Two, do you pray to God? Yes. Three, have you asked God for forgiveness for shooting the boy? Yes.
“OK,” Breyer said. “So, where did he waive it?”
“When he answered those questions,” Restuccia said.
Thompkins’ lawyer, Elizabeth Jacobs, told the justices they should say that police should stop all interrogation if they don’t get the suspect to say that he wants to talk. If they don’t, police will keep suspects in interrogation rooms and badger them until they talk, she said.
But what, Chief Justice John Roberts asked, if a police officer asked a suspect if he wants to remain silent, and he doesn’t say anything?
“Then he is not cooperating, he is not waiving his rights, it’s not voluntary. Take him back to the cell, that’s it,” she said.
“What you are saying then,” asked Justice Ruth Bader Ginsburg,” is the defendant never has to invoke his right?”
“There is no clearly established law that says that he has to assert his right to remain silent,” Jacobs said.
The court will rule later on this year.
The case is Berghuis v. Thompkins, 08-1470.