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April 16, 2003


The opinion of the court was delivered by: Andrew J. Peck, Magistrate Judge.


Pro se petitioner Virgil Tibbs seeks a writ of habeas corpus from his 1995 conviction in Supreme Court, New York County, following a guilty plea, of second degree murder, two counts of first degree robbery, and two counts of first degree attempted robbery, for which Tibbs was sentenced to concurrent terms totaling fifteen years to life imprisonment. (Dkt. No. 1: Pet. ¶¶ 1-5.) See People v. Tibbs, 265 A.D.2d 217, 217-18, 697 N.Y.S.2d 254, 255 (1st Dep't 1999). Tibbs' habeas petition alleges that: (1) he was interrogated before receiving Miranda warnings, and that his pre-Miranda statements tainted his post-Miranda statements; and (2) he was arrested without probable cause, so his post-arrest statements and identifications should be suppressed as fruit of an unlawful arrest. (Pet. ¶¶ 12(A)-(D) & Attachment at 1-5.)

For the reasons set forth below, Tibbs' habeas petition should be DENIED.


Virgil Tibbs was arrested on May 26, 1993 (Hearing Transcript ["H."]: Martin: H. 244-45; Lindahl: H. 378-80), in connection with a May 23 homicide and armed robbery at a grocery store on West 114th Street in Manhattan and three other armed robberies, for which Tibbs and his co-defendant, Camar Cabness, were indicted on twenty-one charges on June 18, 1993 (Dkt. No. 7: State Answer ¶ 9 & Ex. A: Indictment; Ex. C: Tibbs 1st Dep't Br. at 4-5).*fn1

Tibbs' Pretrial Suppression Hearing

The Prosecution Case

Tibbs moved to suppress his four post-arrest statements*fn2 and two line-up identifications*fn3 (Ex. C: Tibbs First Dep't Br. at 7; H. 2.) A combined Huntley and Wade hearing*fn4 was held on April 19, 20 21, 27, 28, 1994. (See generally H. 1-43.; Dkt. No. 7: State Answer ¶ 10.)

Detective Alan Hayes was assigned to investigate the homicide of Dafir Albarati on May 23, 1993 during a robbery of at a grocery store on West 114th Street. (Hayes: H. 3.) Hayes spoke with the store's cashier, Adballa Hussein, who stated that at the time of the robbery, four men entered the store, and one of them brought a bottle of ginger ale up to the counter. (Hayes: H. 3-4, 36.) There was a "scuffle" between one of the men and Albarati, during which "[t]he person who was scuffling with [Albarati] pulled out a gun and fired twice." (Hayes: H. 5.) About an hour after the shooting, the Crime Scene Unit lifted a fingerprint from the ginger ale bottle left on the store counter. (Hayes: H. 5-6, 36.) The following day, Detective Barry informed Detective Hayes that the Latent Print Unit identified the fingerprint as Tibbs'. (Hayes: H. 6-7.)

On May 24, Detective Clarke brought Hussein from home to the Detective Squad Office after informing Hussein that he "was going to show him an array of photos to see if he could pick out any of the persons that were involved in the incident." (Clarke: H. 301-03.) Hussein selected Tibbs' photograph from the array. (H. 303.) Detective Hayes was informed about this on May 26, 1993. (Hayes: H. 7, 38.)

On May 26, 1993, Lieutenant Lindahl and Detective Martin arrested Tibbs at his parole program on Hudson Street. (Hayes: H. 40-41; Martin: H. 244-45, 251-53; Lindahl: H. 382.) They arrived at the 28th precinct with Tibbs around 4:30 p.m. and placed him in an interview room. (Martin: H. 245-46.) Detective Martin testified that neither he nor anyone else questioned Tibbs during the trip from Hudson Street to the precinct or while the officers were waiting for Detective Hayes to arrive at the precinct. (Martin: H. 246-47.) Detective Martin did not read Tibbs Miranda warnings at any time. (Martin: H. 254.)

Detective Hayes received a phone call from the 28th precinct around 6:30 p.m. that day, informing him that Tibbs was at the precinct. (Hayes: H. 7-8, 41, 419-20.) Detective Hayes arrived at the precinct around 7:30 p.m., and first spoke to Tibbs around 8:40 p.m. (Hayes: H. 8-9, 41, 420, 422.) Tibbs was alone in the interview room before Detective Hayes entered. (Hayes: H. 42.) Detective Hayes introduced himself to Tibbs as the case officer, told Tibbs the police were going to hold line-up identifications, and "let him know that he had been picked in a photo array and we had a bottle with his prints on it putting him at the scene of the crime." (Hayes: H. 9.) Tibbs began saying "we all met up at 111th Street," but Detective Hayes stopped Tibbs, got a Miranda sheet, and read it to him. (Hayes: H. 9-10, 39.) Tibbs wrote in "yes" for the "blanks after each question in the M[i]randa asking whether he understands." (Hayes: H. 10.) Both Tibbs and Detective Hayes signed the form, which was received in evidence at the hearing as People's Exhibit 1. (Hayes: H. 10-11.) Detective Hayes told Tibbs "to start his story over and just explain what happened." (Hayes: H. 11.) Tibbs provided an oral statement that Detective Hayes wrote down "[w]hen he was finished and [Detective Hayes] thought [he] understood what [Tibbs] was saying." (Hayes: H. 11-12.) Detective Hayes' written version, with the time indicated as 8:45-9:45 p.m., was signed by Tibbs and received in evidence at the hearing as People's Exhibit 2. (Hayes: H. 12-14, 46.)

Detective Hayes next began to ask Tibbs about other robberies in which he was involved and started to write Tibbs' statement about these incidents. (Hayes: H. 14.) Tibbs told Detective Hayes about several other robberies, including (1) at an Amoco Station, (2) on Lakes Avenue, (3) at a grocery store on 116th Street and 8th Avenue, (4) at a grocery store between 115th and 116th Streets, and (5) at 100th Street and 8th Avenue. (Hayes: H. 14, 16.) Tibbs stated that guns were displayed in all the robberies (Hayes: H. 17), and that Tobie Jones, Cory Miller, and Camar Cabness participated in the robberies with him (Hayes: H. 17, 22-23). Because the Manhattan Robbery Squad detectives were "feeding [Detective Hayes] questions to ask [Tibbs] about the other robberies and [Detective Hayes] couldn't keep track," Detective Hayes left the room, asked the other detectives to go in to the interview room, and did not ask Tibbs to sign the statement he had started about the other robberies. (Hayes: H. 15.)

Detective Kennedy of the Manhattan Robbery Squad arrived at the precinct around 6:45 p.m. on May 26, but did not began questioning Tibbs until around 9:45 p.m., after Detective Hayes had spoken to Tibbs. (Kennedy: H. 131-35, 154-55.) During those three hours he was doing "[b]asically nothing" because "homicide takes precedence over robberies." (Kennedy: H. 155, 166-68.) Detective Kennedy read Tibbs his Miranda rights, even though Tibbs told him, "`don't worry about it. I already got my rights from the last detective.'" (Kennedy: H. 133-35.) Tibbs denied participating in a robbery that occurred "the night before or 2 nights before up in the 25th Precinct," but did admit to two robberies of an Amoco station on Eighth Avenue. (Kennedy: H. 135-36.) Detective Kennedy was asked to stop interviewing Tibbs because the "ADA was on her way." (Kennedy: H. 137.) Detective Kennedy did not interview Tibbs any further that night. (Id.)

At around 2:00 a.m. on the morning of May 27, Tibbs gave a videotaped statement to an Assistant District Attorney, which was received in evidence as People's Exhibit 4. (Hayes: H. 23-24.)

The Defense Case

At the hearing, Tibbs called as his first witness Lieutenant Kenneth Lindahl, the "[c]ommanding officer of the 28th Squad" and "supervisor of [the] detectives in that squad." (Lindahl: H. 377-78.) Lt. Lindahl ordered Tibbs' arrest and accompanied Detective Martin to arrest Tibbs. (Lindahl: H. 379.) Lt. Lindahl testified that as of the time that Tibbs was arrested, Cory Miller was already a suspect in a homicide at the 114th Street grocery "because of the information that was delivered to the detective squad by the anti-crime officers." (Lindahl: H. 380.) However, ...

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