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Quoted verbatim 1×
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“where the prisoner is not in custody, the edwards and roberson concerns are not triggered because the non- custodial defendant is free to refuse to answer police questions, free to leave the police station and go home, and free to seek out and consult a lawyer”
Treatment trajectory · 1990 → 2026 · click a year to view as-of
1990
2008
2026
Top citers, strongest first. 38 distinct citers.
How cited ↗
examined
Cited as authority (verbatim quote)
Robinson v. Skipper
where the prisoner is not in custody, the edwards and roberson concerns are not triggered because the non- custodial defendant is free to refuse to answer police questions, free to leave the police station and go home, and free to seek out and consult a lawyer
discussed
Cited as authority (rule)
Emanuel Johnson, Sr. v. Secretary, Department of Corrections
We stated, “The trial court’s failure to make explicit findings on matters essential to the fourth amendment issue, combined with the fact that the state appellate court issued only a summary affirmance, precludes a conclusion in this case that the state provided the meaningful appellate review necessary to erect a Stone v. Powell bar to our review of the claim.” Id. at 514.
discussed
Cited as authority (rule)
Emanuel Johnson, Sr. v. Secretary, Department of Corrections
We stated, “The trial court’s failure to make explicit findings on matters essential to the fourth amendment issue, combined with the fact that the state appellate court issued only a summary affirmance, precludes a conclusion in this case that the state provided the meaningful appellate review necessary to erect a Stone v. Powell bar to our review of the claim.” Id. at 514.
discussed
Cited as authority (rule)
Schulze v. Secretary, Department of Corrections (Polk County)
(2×)
also: Cited "see"
The phrase “‘opportunity for full 2 and fair litigation’ means just that: an opportunity.” Lawhorn v. Allen, 519 F.3d 1272, 1287 (11th Cir. 2008) (quoting Caver v. Alabama, 577 F.2d 1188, 1192 (5th Cir. 1978)). “[F]ull and fair consideration requires consideration by the fact-finding court, and at least the availability of meaningful appellate review by a higher state court.” Mincey v. Head, 206 F.3d 1106 , 1126 (11th Cir. 2000) (quoting Tukes v. Dugger, 911 F.2d 508, 513-14 (11th Cir. 1990)).
discussed
Cited as authority (rule)
Durham v. Secretary, Florida Department of Corrections
In Tukes v. Dugger, 911 F.2d 508, 513-14 (11th Cir. 1990), the Eleventh Circuit addressed the Stone requirement for a “full and fair” opportunity to litigate a Fourth Amendment claim and explained: For a claim to be fully and fairly considered by the state courts, where there are facts in dispute, full and fair consideration requires consideration by the fact-finding court, and at least the availability of meaningful appellate review by a higher state court.
cited
Cited as authority (rule)
Allotey v. Secretary, Department of Corrections
Tukes v. Dugger, 911 F.2d 508, 514 (11th Cir. 1990), cert. denied, 502 U.S. 898 (1991).
discussed
Cited as authority (rule)
United States v. Peck
McDowell, 250 F.3d at 1362 (four hours); Muegge, 225 F.3d at 1269-71 (defendant interviewed for about two and a half hours); Tukes v. Dugger, 911 F.2d 508, 515-16 (11th Cir.1990) (one hour); Bank of America v. United States, 230 Ct.Cl. 679 , 680 F.2d 142, 143 (1982) (same); see also Yarborough, 541 U.S. at 655-58 , 124 S.Ct. 2140 (suspect not in custody when his parents brought him to station at detective’s request, he was interviewed in small room for two hours by one detective, interview was recorded, and detective pressed suspect to reveal details of crime by appealing to his “sense of …
discussed
Cited as authority (rule)
Jonathan Good v. Mary Berghuis
It also includes [a] full and fair evidentiary hearing____”) (footnote omitted); Tukes v. Dugger, 911 F.2d 508, 514 (11th Cir.1990) (“The trial court’s failure to make explicit findings on matters essential to the fourth amendment issue, combined with the fact that the state appellate court issued only a summary affirmance, precludes a conclusion ... that ... [there is] a Stone v. Powell bar to our review of the claim.”).
discussed
Cited as authority (rule)
David O'Berry Hearn v. State of Florida
(2×)
We stated, “The trial court’s failure to make explicit findings on matters essential to the fourth amendment issue, combined with the fact that the state appellate court issued only a summary af-firmance, precludes a conclusion in this case that the state provided the meaningful appellate review necessary to erect a Stone v. Powell bar to our review of the claim.” Id. at 514.
discussed
Cited as authority (rule)
Lawhorn v. Allen
Where, however, the facts are undisputed, and there is nothing to be served by ordering a new evidentiary hearing, the full and fair consideration requirement is satisfied where the state appellate court, presented with an undisputed factual record, gives full consideration to defendant's Fourth Amendment claims." Tukes v. Dugger, 911 F.2d 508, 513-14 (11th Cir.1990) (quoting O'Berry, 546 F.2d at 1213 ).
discussed
Cited as authority (rule)
Peoples v. Campbell
In Tukes v. Dugger, 911 F.2d 508, 513-14 (11th Cir.1990), we said this in applying Stone : “For a claim to be fully and fairly considered by the state courts, where there are facts in dispute, full and fair consideration requires consideration by the fact-finding court, and at least the availability of meaningful appellate review by a higher state court.” Peoples concedes that the Alabama trial and appellate *1225 courts “considered” his Fourth Amendment claim, but he contends that such consideration was not full and fair because the state courts employed “inconsistent” rationales …
discussed
Cited as authority (rule)
Marsack v. Howes
Cf. Tukes v. Dugger, 911 F.2d 508, 512-13 (11th Cir.1990) (finding that Stone v. Powell barred the petitioner’s claim that his consent to search was invalid because he had invoked his right to counsel).
discussed
Cited as authority (rule)
Romero v. Jordan
Cf. Tukes v. Dugger, 911 F.2d 508, 513 (11th Cir.1990) (applying Stone to bar Sixth Amendment claim of invocation of right to counsel, where real thrust of claim was consent to search under Fourth Amendment). 3.
discussed
Cited as authority (rule)
United States v. Hampton
See Roberson, 486 U.S. at 682, 108 S.Ct. 2093 (Edwards applies “after a person in custody has expressed his desire to deal with the police only through counsel, .... ”); Michigan v. Jackson, 475 U.S. 625, 626 , 106 S.Ct. 1404 , 89 L.Ed.2d 631 (1986) (“In Edwards, ..., we held that an accused person in custody....”); United States v. Romana-Zarate, 115 F.3d 778, 782 (10th Cir.1997) (no Edwards violation when no “interrogation” occurred); United States v. LaGrone, 43 F.3d 332, 339 (7th Cir.1994) (“in order for a defendant to invoke his Miranda rights the authorities must be conduct…
cited
Cited as authority (rule)
Smith v. State
See id. at 227, 232-34, 248 , 93 S.Ct. 2041 ; Tukes v. Dugger, 911 F.2d 508, 516-17 (11th Cir.1990).
cited
Cited as authority (rule)
Mincey v. Turpin
Tukes v. Dugger, 911 F.2d 508, 513-14 (11th Cir. 1990) (quoting Morgan v. Estelle, 588 F.2d 934, 941 (5th Cir. 1979)); see also Hedden v. Wainwright, 558 F.2d 784, 786 (5th Cir. 1977).
cited
Cited as authority (rule)
Mincey v. Turpin
Tukes v. Dugger, 911 F.2d 508, 513-14 (11th Cir.1990) (quoting Morgan v. Estelle, 588 F.2d 934, 941 (5th Cir.1979)); see also Redden v. Wainwright, 558 F.2d 784, 786 (5th Cir.1977).
discussed
Cited as authority (rule)
United States v. Zertuche-Tobias
See also United States v. Mendenhall, 446 U.S. 544, 558 , 100 S.Ct. 1870, 1879 , 64 L.Ed.2d 497 (1980); Tukes v. Dugger, 911 F.2d 508, 517-18 (11th Cir.1990), ce rt. denied, 502 U.S. 898 , 112 S.Ct. 273 , 116 L.Ed.2d 225 (1991) (defendant's low level of education and intelligence did not void consent). 51 .
discussed
Cited as authority (rule)
Benny Lee Willett v. A.L. Lockhart, Director, Arkansas Department of Correction
(2×)
See, e.g., Capellan, 975 F.2d at 72 (refusing to conclude that state appellate court's summary affirmance, issued instead of a written opinion, was indicative of a breakdown in the process); Riley, 674 F.2d at 525 ("Stone did not require that the state court rule on the merits of each claim"); contra Tukes, 911 F.2d at 514 ("where the trial court's findings which are essential to the disposition of the fourth amendment claim are unclear and the state appellate court writes no opinion, we deem the petitioner's fourth amendment claim not to have been fully considered within the meaning of Stone …
discussed
Cited as authority (rule)
State v. Houser
In Tukes v. Dugger, 911 F.2d 508, 513 (11th Cir. 1990), the court quoted with approval from Smith v. Wainwright, 581 *537 F.2d 1149 (5th Cir. 1978), as follows: “ ‘[T]he failure of the police to halt questioning once Smith [the defendant] mentioned his attorney, then is relevant only with regard to the Fourth Amendment issue of whether Smith’s consent to search was voluntarily given.’ ” We have indirectly determined that the fruits of a search are not testimonial evidence and that Miranda warnings need not be given before obtaining a consent to search.
discussed
Cited "see"
Sivik, Cory v. State of Florida
See Tukes, 911 F.2d at 516 n.11 (“If the state were free to tell a suspect that he had the right to an appointed lawyer, but could, , refuse to provide the lawyer on the ground that the suspect was not actually in custody, the suspect would be led to believe that no request for counsel would be honored.” (emphasis added)).
discussed
Cited "see"
Marchman v. Smith
See generally id. at 7–9. 6 Id. at 8 (citing Marchman, 299 Ga. 538–39). 7 Id. 8 ECF 35, at 1. the availability of meaningful appellate review by a higher state court.” Tukes v. Dugger, 911 F.2d 508 , 513–14 (11th Cir. 1990).
cited
Cited "see"
Bowman v. Secretary, Florida Department of Corrections (Putnam County)
See Tukes v. Dugger, 911 F.2d 508, 513-14 (11th Cir. 1990), cert. denied, 502 U.S. 898 (1991).
discussed
Cited "see"
Caldwell v. State
(2×)
See Tukes, 911 F.2d at 516 n. 11 (suggesting that it would greatly increase the coerciveness of an interrogation if officers were to inform a suspect of his right to appointed counsel but then deny his request for an attorney). .
cited
Cited "see"
United States v. Stiner
See Tukes v. Dugger, 911 F.2d 508, 517 (11th Cir.1990) (internal citations omitted).
discussed
Cited "see"
Chrispen v. Secretary, Florida Department of Corrections
See Tukes v. Dugger, 911 F.2d 508, 513-14 (11th Cir.1990) (explaining that the Stone v. Powell bar does not apply when the state trial court makes no explicit factual findings relating to the Fourth Amendment issue and the state appellate court summarily affirms).
discussed
Cited "see"
Carl J. Isaacs v. Frederick J. Head
(2×)
See Tukes v. Dugger, 911 F.2d 508 , 515 (11th Cir.1990) (applying Edwards and Roberson ); Kight v. Singletary, 50 F.3d 1539, 1548 (11th Cir. 1995) (applying Edwards and Roberson, and noting that the 5th Amendment rights protected by these decisions are not offense-specific).
discussed
Cited "see"
United States v. Warner
See Tukes v. Dugger, 911 F.2d 508, 515 (11th Cir. 1990) ("Where the prisoner is not in custody, the Edwards [v. Arizona] and [Arizona v.] Roberson concerns are not triggered because the non-custodial defendant is free to refuse to answer police questions, free to leave the police station and go home, and free to seek out and consult a lawyer.").
discussed
Cited "see"
United States v. Iris Warner
See Tukes v. Dugger, 911 F.2d 508, 515 (11th Cir.1990) ("Where the prisoner is not in custody, the Edwards [v. Arizona] and [Arizona v.] Roberson concerns are not triggered because the non-custodial defendant is free to refuse to answer police questions, free to leave the police station and go home, and free to seek out and consult a lawyer.").
cited
Cited "see, e.g."
State v. Kent
Bautista, 145 F.3d at 1150–51; see also Tukes, 911 F.2d at 516 n.11.
discussed
Cited "see, e.g."
Licata v. State
Compare Sprosty , 79 F.3d at 642-643 (defendant was in custody where at least one officer guarded him for nearly three hours while four other officers conducted a search and officers persistently requested that defendant lead them to incriminating evidence) with Tukes , 911 F.2d at 515 (defendant not in custody because he voluntarily went to stationhouse and his freedom of action had not been restricted).
cited
Cited "see, e.g."
United States v. Degaule
See also Tukes v. Dugger, 911 F.2d 508, 513 (11th Cir.1990) (citations omitted).
cited
Cited "see, e.g."
United States v. Acosta
Id. at 241-46 , 93 S.Ct. at 2055-56 (citation omitted); see also Tukes v. Dugger, 911 F.2d 508, 516 (11th Cir.1990) (same).
cited
Cited "see, e.g."
Nelson v. Secretary, Florida Dept. of Corrections
Mincey v. Head, 206 F.3d 1106 , 1125 (11th Cir.2000) (citations omitted); see also Tukes v. Dugger, 911 F.2d 508 (11th Cir.1990).
discussed
Cited "see, e.g."
Carlson v. Ferguson
See Doleman v. Muncy, 579 F.2d 1258, 1265 (4th Cir.1978); see also Tubes v. Dugger, 911 F.2d 508 , 514 (11th Cir.1990) (holding no full and fair adjudication of Fourth Amendment claims where trial court’s factual findings are unclear).
discussed
Cited "see, e.g."
Feliberto Capellan v. Dean Riley, Superintendent of the Fishkill Correctional Facility
See Capellan, 779 F.Supp. at 733-34 ; see also Tukes, 911 F.2d at 514 (federal collateral review was not barred by Powell because the state appellate court issued a summary affirmance of trial court’s denial of fourth amendment claim and trial court failed to make explicit findings on the matters essential to the claim); Agee, 809 F.2d at 1490 (federal collateral review was not barred by Powell because the state appellate court ignored fourth amendment claim in its written opinion). *72 If we were to follow the rationales of these Eleventh Circuit cases and infer that an unconscionable break…
discussed
Cited "see, e.g."
United States v. Tracey A. Hall
(2×)
See, e.g., Takes v. Dugger, 911 F.2d 508 , 517 n. 13 (11th Cir.1990) ("we do not understand Colorado v. Connelly to overturn existing fourth amendment jurisprudence”).
cited
Cited "see, e.g."
State v. Bobo
See, e.g., Tukes v. Dugger, 911 F.2d 508, 517 (11th Cir.1990) (citing cases).
Retrieving the full opinion text from the archive…
James William HAMBLEN, Petitioner-Appellant,
v.
Richard L. DUGGER, Respondent-Appellee
v.
Richard L. DUGGER, Respondent-Appellee
90-3621.
Court of Appeals for the Eleventh Circuit.
Sep 18, 1990.
911 F.2d 508
Billy H. Ñolas, Office of Capital Collateral Representative, Tallahassee, Fla., for petitioner-appellant., Carolyn Snurkowski, Asst. Atty. Gen., Dept, of Legal Affairs, Tallahassee, Fla., for respondent-appellee.
Fay, Hatchett, Cox.
Cited by 1 opinion | Published