Tukes v. Dugger

• Decision Date: 07 September 1990
• Docket Number: No. 88-5685,88-5685
• Citation: 911 F.2d 508
• Parties: John T. TUKES, Petitioner-Appellant, v. Richard L. DUGGER, Secretary, Department of Corrections, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 508

911 F.2d 508

John T. TUKES, Petitioner-Appellant, v. Richard L. DUGGER, Secretary, Department of Corrections Defendant-Appellee.

No. 88-5685.

United States Court of Appeals Eleventh Circuit.

Sept. 7, 1990.

Michael J. Doddo, Ft. Lauderdale, Fla. (Court-appointed), for petitioner-appellant.

Richard A. Polin, Asst. Atty. Gen., Miami, Fla., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before KRAVITCH, Circuit Judge, RONEY ^*, Senior Circuit Judge, and ALDISERT ^**, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

John Tukes appeals the denial of the writ of habeas corpus by the district court, which adopted the report and recommendation of the magistrate. Arguing that the fruits of a search of his home should be suppressed, Tukes contends that his consent to the search was coerced and involuntary and obtained in violation of his right to have counsel present. He further argues that the jury that convicted him was selected by the prosecutor in an intentionally discriminatory manner. We conclude, however, that Tukes's claims fail on the merits; therefore, we affirm the district court's denial of relief.

BACKGROUND

While investigating a double homicide, police were told that Tukes had been seen recently at the scene of the shooting. When Detectives Venturi, Remy, and Barraga ¹ went to Tukes's house, a woman answered the door and, in response to questioning, said that Tukes was at home. Tukes came to the door and agreed to talk to the police, but said he wanted to straighten out some matters first. The police asked if Tukes had a gun, and when he admitted that he did, the police asked Tukes if he would turn it over to them. He agreed. The firearm was not the murder weapon.

The police waited inside the house while Tukes went into his bedroom and sorted through his papers. There were three women present, and Tukes gave some documents, apparently deeds or titles, to one of the women, instructing her to sell the property and saying, "I am going to have to get lawyers." Detective Venturi asked Tukes why he wanted a lawyer, and informed him that he was not under arrest, that the police would like him "to voluntarily come [sic] downtown." Tukes acquiesced, but before he left, he consented to a search of his garage and car. He was driven in a police car to the police station where Detective Parmenter proceeded to interview him in an interrogation room measuring six by eight feet. Parmenter testified that the other investigators did not inform him of Tukes's statement at his home that he was "going to have to get lawyers."

Parmenter read Tukes the standard police department Miranda form because Tukes told the detective that he could not read or write. Although Tukes stated that he understood his rights, he refused to sign the waiver of rights form. This exchange was not tape recorded. Tukes then provided Although Parmenter testified that Tukes was free to go at any time, Tukes was not told he was free to go, nor was he free to wander around the police station at pleasure. At deposition, Parmenter testified that after Tukes gave the consent he said he wanted to leave the police station. Parmenter, rather than permitting Tukes to go, asked him if he had left anything out of his statement, and then proceeded to reinterrogate Tukes. At the suppression hearing, however, Parmenter denied so testifying at deposition, and denied the substance of his prior sworn testimony.

an exculpatory statement from which he did not deviate despite the detective's continued interrogation for one and a half to two hours. At the end of that session, Tukes agreed to initial a consent form permitting the police to search his house for evidence of the crime. ²

Tukes remained at the police station and was moved to another interrogation room where he was left alone for an hour and a half. Meanwhile, police searched Tukes's house and discovered ammunition and a pistol, wrapped in a towel splattered with what appeared to be blood. While forensic technicians examined the gun and towel, Tukes remained at the police station. When he said he was hungry, police officers brought food into the station for Tukes. Finally, in the late afternoon, having been at the police station all day, Tukes was formally placed under arrest and told he was being charged with murder. He invoked his right to counsel.

Tukes was indicted on two counts of first degree murder, one count of armed robbery, and one count of possession of a firearm during the commission of a felony. The state trial court denied his motion to suppress the evidence of the ammunition, pistol, and towel, finding that the "statements were freely and voluntarily given, freely and voluntarily went to the station [sic], that the waiver to search form was signed freely and voluntarily." The court reached no express legal conclusion about whether Tukes's initial statement that he was going to have to get lawyers and Venturi's discouraging response implicated Tukes's right to counsel once he was in custody.

Tukes was convicted on all four counts, and he appealed his conviction to the Third District Court of Appeal, raising the same three issues he urges to this court. The state appellate court affirmed his conviction without opinion. Tukes v. State, 507 So.2d 1110 (Fla.Dist.Ct.App.1987). ³

STONE V. POWELL AND FOURTH AMENDMENT CLAIMS ON COLLATERAL REVIEW

The state argues that this court need not and cannot reach the merits of Tukes's claims relating to the suppression of the evidence because they are fourth amendment claims, which are barred from collateral review by the federal courts if fully and fairly litigated in the state courts. See Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); see also Agee v. White, 809 F.2d 1487 (11th Cir.1987); Morgan v. Estelle, 588 F.2d 934 (5th Cir.1979). ⁴

First, we must decide whether Tukes's claims, as they relate to the validity of his consent and his right to a lawyer, are fourth amendment claims. Tukes seeks the same remedy for both claims: the suppression of evidence obtained by the police during the consent search of Tukes's house. If Tukes's consent was invalid, the consent search was invalid. Similarly, if the consent was obtained by police after Tukes invoked his right to counsel, the consent and the search conducted under it were invalid because invocation of the right

to counsel should cut off further interrogation. In either case, Tukes seeks the same remedy that he would have sought had the police obtained evidence with a defective warrant or no warrant at all. If these claims allege a violation of the fourth amendment, we may not consider them on federal habeas corpus review unless they were not fully and fairly litigated in the state courts.

Coerced Consent

The Supreme Court has identified the fourth and fourteenth amendments as the bulwarks against admission of evidence obtained by the state through coerced consent to a search. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 221-22, 228, 242-43, 93 S.Ct. 2041, 2043, 2045, 2048, 2055-56, 36 L.Ed.2d 854 (1973). Although in this case the fourth amendment concern is raised by way of an objection to the manner in which the police obtained the consent, nevertheless the objection remains one premised on the fourth amendment, i.e., that the search was unreasonable because it was based on consent that was not knowingly and voluntarily granted.

Significantly, this is not a case where the admission of a confession itself is the source of objection. A coerced confession is unreliable. Stone v. Powell, 428 U.S. at 496-97, 96 S.Ct. at 3053 ("A confession produced after intimidating or coercive interrogation is inherently dubious. If a suspect's will has been overborne, a cloud hangs over his custodial admissions; the exclusion of such statements is based essentially on their lack of reliability.") (Burger, C.J., concurring). Instead, here Tukes seeks the suppression of the fruits of a search. As the Court noted in Stone v. Powell, "the physical evidence sought to be excluded is typically reliable and often the most probative information bearing on the guilt or innocence of the defendant." 428 U.S. at 490, 96 S.Ct. at 3050. "The primary justification," the Court stated, "for the exclusionary rule then is the deterrence of police conduct that violates Fourth Amendment rights." 428 U.S. at 486, 96 S.Ct. at 3048. ⁵

The evidence obtained is reliable, and the deterrent effect of suppressing the evidence, according to the Supreme Court, is "outweighed by the acknowledged costs to other values vital to a rational system of criminal justice." 428 U.S. at 494, 96 S.Ct. at 3052. In this case, where the complaint of coercion goes to the consent under which a search was made by police, we conclude that the doctrine of Stone v. Powell applies to bar consideration of the claim in federal habeas if the issue has been fully and fairly litigated in the state courts.

Controlling precedent of this circuit and its predecessor supports this result. In one instance, a habeas petitioner attempted to raise a claim, similar to that now urged by Tukes, that his consent to a search was invalid because obtained while he was in a coercive custodial environment without the benefit of Miranda warnings. This court held, on the strength of Stone v. Powell, that the "matter may not be reexamined" where the state courts gave the claim a "full, fair hearing and consideration to this question." Hedden v. Wainwright, 558 F.2d 784, 786 (5th Cir.1977).

Consent Obtained in Violation of Tukes's Right to Have All Questioning Stop Once the Right to Counsel Was Invoked

Tukes also contends that his consent was invalid because it was obtained after the police should have ceased questioning him because he had invoked his right to counsel. Arguing that the evidence obtained in the search was the fruit of the poisonous tree of his uncounseled consent, Tukes...