The Guerena Shooting, Analysis 3

Since the posting of my first two articles (available here and here) on the shooting of Jose Guerena by a Pima Co., AZ SWAT team, a number of documents and photographs have been released by the Pima Co. Sheriff’s Department and by other sources. This update will focus primarily on four issues: The affidavit for the search warrant that provided the legal justification for what turned out to be the shooting death of Jose Guerena by SWAT officers, an analysis of photographs of gunfire damage to the Guerena home (available here), particularly the area of the front door, the Coroner’s report, and the statement of Vanessa Guerena obtained by police shortly after Jose’s death.

Additional Links:

(1) Go here for the KGUN9 story, which includes photos of the interior of the Guerena Home.

(2) Go here for the KGUN9 story on the autopsy report.

(3) Go here for a photograph of the Guerena front door.

(4) Go here for a photograph of the rear of the Guerena home.

Thanks to "K" for providing some very useful information I might have otherwise overlooked.

We have also established a permanent archive for our articles on the Guerena shooting. Access it in the archives section at the right hand side of the Confederate Yankee home page.

The PIMA County SD should be given credit for making public certain documents. Unlike the Erik Scott case in Las Vegas, they have been reasonably forthcoming in making pubic at least some information. However, I sincerely hope that they do not believe that the information they have released tends to completely justify their actions or tends to make them look professional. In many ways, it does just the opposite.

As a former police officer, I understand the difficulties and demands of police work and want to give the benefit of the doubt to the officers involved. However, every police officer knows that their decisions and the actions flowing from those decisions, often made within seconds, will be picked apart later by those who have unlimited time to review what they had to do in an instant. They understand that they are only as good as their last arrest and that their abilities and performance are being constantly monitored and judged, not only by their peers, but by the other elements of the criminal justice system and by the public. Every officer knows this, and more, when he climbs into his police car to begin every shift. Unlike many cases, in the Guerena case, officers had more than sufficient time to carefully reflect and plan. There is, sadly, substantial evidence that they did not well use that luxury of time.

It is also important to note that while I do have access to the documents and photographs in the public realm, I do not have access to everything the police know. I am almost certainly missing information that would provide certain specific contexts. The analysis I provide is based on my experience and knowledge of the law and police procedure and psychology. I may make unintentional mistakes, small or large, and invite those who might have the specific knowledge necessary to correct such potential errors to contact me. I will promptly make any necessary changes.

THE SEARCH WARRANT AFFIDAVIT (PDF available here):

For the benefit of those readers who may have missed my first article, all police procedure relating to search and seizure of property or persons is governed by the Fourth Amendment to the Constitution, which states:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

To obtain a search warrant, an officer must submit, in writing, a sworn affidavit, which particularly describes the place to be searched, and the persons or things to be seized. It must establish probable cause, facts and circumstances that would convince a reasonable police officer (and a reasonable judge) that specific crimes have been committed and that the specific people identified in the affidavit have committed them. Only after reviewing the affidavit will a judge issue a warrant. A warrant is based entirely on the affidavit and is the paper record of an officer’s legal authority to act. In many ways, the affidavit is far more important and revealing of an officer’s knowledge and competence than the warrant which issues from the affidavit.

The PDF of the Guerena affidavit I obtained runs to 17 pages which includes two attachments. It does not appear to be a direct copy of the actual affidavit as it is not dated, notarized or signed by Detective Tisch who is identified as the affiant. It is also not signed by a judge. It is therefore possible that there are differences between this document and the actual affidavit. It is not possible, considering what is currently known, to know what, if any, differences exist or the significance of those potential differences. One paragraph of the affidavit—lines 378-385—has been blacked out. The reasons for this are unknown.

The first two pages of the affidavit list the properties to be searched and the things to be seized. I am struck by the extraordinarily non-specific nature of the items listed. Nowhere does the affidavit suggest that specific kinds of illegal drugs in specific quantities may be found, nor are any other specific items of contraband or anything which might be used in a crime or fruits of a crime identified. The affidavit seems to be asking a judge to authorize a fishing expedition on a massive scale and would give officers the ability to search anywhere—including any vehicles—for just about anything, including an almost unlimited quantity of everyday items which commonly have nothing whatever to do with the drug trade.

To put it simply, this affidavit does not particularly describe the things to be seized; quite the opposite appears to be true.

The investigation appears to have begun in January of 2009 when Det. Tisch stopped Alejandro Guerena (Jose’s bother) and found several thousand dollars in cash and a concealed handgun. Alejandro was arrested on a CCW charge and apparently later convicted. No drugs were found. This obviously caused Det. Tisch to continue looking into Alejandro and surveillance was done between September 9, 2009 and February 23, 2010, though Det. Tisch does not specify if this was around the clock, continual surveillance, or the far more likely option: occasional, random surveillance when time and manpower allowed.

The affidavit describes watching Alejandro and others engaging in what might be drug activity and claims that Alejandro had no apparent means of financial support. On September 15, 2009 the police followed Alejandro who stopped at a Best Buy store, an appliance resale store and his home. The officers followed a vehicle that later left Alejandro’s home (Alejandro was apparently not driving it) and stopped at another home. Some time later, “numerous other vehicles” arrived and an unidentified person put a cardboard box taken from the garage in a white GMC Sierra pickup truck. The police followed and stopped the truck, finding that it was driven by Ramses Caballero. Jose was the sole listed passenger in the truck. Caballero gave the officers permission to search the truck. They found no drugs, but only plastic wrap, in the box. Det. Tisch suggested that plastic wrap is used in the drug trade, which is true, but there is nothing but suspicion to suggest that this particular plastic wrap had been so used or was destined to be so used. In fact, there is evidence to suggest that at the time, the Guerena family was using it to protect a relative’s furniture. This appears, according to the affidavit, to be the officer’s first contact with Jose in relation to this case.

The affidavit mentions a variety of drug related incidents involving people other than Jose. In particular, it mentions an Oct. 13 2009 incident:

“PCSD SIU [Special Investigations Unit] determined that Alejando Guerena had driven his 2010 Ford F-150 ‘Raptor’ Truck to the Phoenix, Arizona area.”

The affidavit does not say how the police knew this. Remember that Det. Tisch identifies that Raptor as Alejandro’s. This will be important shortly. The affidavit states that he made several stops in that area and when he returned was stopped for speeding. He gave permission to search and nothing was found.

Det. Tisch claims that Alejandro then began driving only his wife’s car and says that he believed that the people he was watching were drug traffickers who were changing vehicles to avoid detection. He also claimed that they were aware that they were being followed by the police and were therefore hard to follow. Det. Tisch wrote that after Alejandro was stopped while driving the Raptor, they never drove the white GMC Sierra truck and the Raptor again (lines 186-187).

The problem with this statement and the implications Det. Tisch is making is that on lines 151-153 he notes that the white GMC Sierra pickup was sold to people unrelated to the investigation near the end of September, 2009. Alejandro wasn’t driving the truck because it had been sold at least two weeks earlier, so it can hardly be evidence of suspicious behavior that he was not driving that vehicle, yet Det. Tisch treats it as such.

The police apparently began watching Jose’s home at 7180 S. Redwater St. on April 20, 2011. The affidavit does not say why nor does it particularly describe the nature of the surveillance. Det. Tisch writes that someone began following one of the police officers who was unable to lose them, and that Alejandro was seen “…driving in the area and talking on the phone.” Det. Tisch spends several paragraphs talking about the habits of drug dealers and suggests that what he is seeing is evidence of narcotics trafficking. The background information he provides does indeed describe the common practices of drug traffickers, but again, he is not consistently tying it to specific people. The only mention, to this point in the affidavit, of Jose is that he was a passenger in the white GMC pickup carrying plastic wrap in Sept. of 2009.

The next several pages of the affidavit consist of background information on those the police believe are involved in drug trafficking. I won’t go into great detail on those pages. Those interested should read the affidavit for them selves. What is clear is that Det. Tisch is doing his best to suggest that the people named have prior drug involvement, no clear means of financial support, and assets, including cars and clothing, that would seem to suggest drug involvement. I suspect that most readers will be struck by the inconsistencies and omissions present.

Some examples:

Alejandro is said to own four vehicles, two of which are said to be worth $11,934.00 (via the Kelly Blue Book), but Det. Tisch could not name or provide a value for the other two vehicles (Det. Tisch doesn't know how to run a registration check? He can find two vehicles in the Blue Book, but not the others?). Det. Tisch lists various arrests and charges going back to 2002, but states that many of the dispositions of these charges and arrests are unknown (Det. Tisch doesn't know how to look up dispositions?).

Jose Celeya, the father of Alejandro’s wife Pauline, is listed, but his criminal contacts and their dispositions going back to 1993 are also murky at best. Several vehicles are mentioned, but again, Det. Tisch apparently has substantial difficulty figuring out their worth.

Denise Ruiz, the daughter of Jose Celeya, is mentioned, but apparently has no criminal history. Det. Tisch says that she is the registered owner of six vehicles valued at $41,780 (a bit under $7000 each) but does not identify them or explain why that has any relevance, other than the implication that she is somehow living beyond her means. Det. Tisch tries to link her to the past, apparently unrelated drug involvement of others, including a boyfriend.

Det. Tisch is clearly trying to paint a portrait of a variety of people involved in a drug conspiracy, but one is immediately struck by the modest, mostly non-recent criminal histories—some have none—involved, as well as the modest assets of these alleged drug traffickers. These are not high-rollers driving brand new BMWs and living in million dollar homes, yet the police have at least allowed the suggestion of a high level drug conspiracy to be publically floated.

What is also very surprising is that the affidavit does not list a single, specific, recent drug transaction, arrest, or even any information from a confidential informant or witness directly tying anyone involved to drug activity. No drugs have been found in anyone’s possession, no drugs have been purchased from anyone and no one has been seen so much as smoking a joint. Indeed, on lines 396 and 397 of the affidavit, Det. Tisch writes:

“During the SIU surveillance concerning the aforementioned subjects, they were not observed handling or even in the proximity of narcotics.”

Det. Tisch, in lines 403-405, concludes by writing:

“For the above stated reasons, I believe that these individuals operate a mid-level drug trafficking organization in the Tucson area.”

Also oddly missing is any indication of why it was necessary to serve these warrants at this specific time. In drug cases, warrants usually aren’t served until the officers are certain that they can make substantial arrests and seize substantial quantities of drugs. Or alternatively, when they know that the case really isn’t going anywhere and they want to finish it to look for larger fish to catch elsewhere. There is nothing in the affidavit to indicate normal police procedures in drug cases. No major drug shipment is coming in or going out, no major players are arriving, nothing that one would expect in a “mid-level” drug operation investigation.

Let’s return to Det. Tisch’s take on Jose, a man the police have referred to as a sort of muscle or enforcer for this drug "gang." Det. Tisch begins his history by speaking of a previous drug and weapons arrest, however he is very non-specific, not even mentioning the date, and said only that: “no felony convictions were annotated on the record.” Indeed. It appears that all charges were dropped. Odd that Det. Tisch didn’t mention this.

Det. Tisch suggests that Jose was a “person of interest in a Immigration Customs Enforcement (I.C.E) investigation involving Conspiracy to Distribute Marijuana,” and goes on to again mention that he was “the passenger in the truck stopped containing the large rolls of saran-type wrap.” Again, there is no mention of anything more sinister than Jose riding in a vehicle, the owner of which was in possession of plastic wrap. It may have been used in the drug trade, but the police do not build a case for that and certainly do not tie Jose into such a case.

Det. Tisch claims that Jose is the registered owner of six vehicles, including the Raptor, which he previously identified as being Alejandro’s vehicle. If the vehicle does indeed belong to Jose, then it is certainly unremarkable that Alejandro would not be seen driving it at any point in time, yet Det. Tisch seems to want to use that “fact” to implicate Alejandro in drug trafficking behavior. Yet, on Attachment B, Det. Tisch lists only three vehicles belonging to Jose, the Raptor, a 2007 Chevy and a 2005 Chevy pickup. He requests permission to search all of the listed vehicles or any vehicles parked on or near the properties to be searched when the warrant is served.

Det. Tisch notes that Jose makes about $41000 a year. However, base salary and earned salary often are two different things, as overtime and other augmentations can considerably increase one’s earnings.

AFFIDAVIT ANALYSIS:

The affidavit is remarkably incomplete and lacking in genuine probable cause. That any judge would have issued a warrant based on this affidavit is amazing. During my police service, I would never have taken such a document to a judge. No judge with whom I ever worked would have issued a warrant, and my credibility would have been shot from that moment forward.

Det. Tish is clearly attempting to paint those involved as drug traffickers, and to be completely fair, what he and his fellow officers have observed and documented seems suspicious, and could indeed appear to be indications of drug involvement. But what is lacking is any specific, current criminal activity. He clearly has suspicions—possibly reasonably so—of ongoing criminal activity, but not the slightest shred of evidence of it. He wants a warrant for not one, but four homes and any number of vehicles, not because he has laid out grounds to believe that those homes are associated with specific crimes and that the evidence of those crimes may be found there, but because he obviously hopes to find such evidence if he’s allowed to search. That's why there were no associated arrest warrants. That’s a fishing expedition. That’s not the way search warrants work.

Det. Tish’s probable cause is particularly weak in relation to Jose. Let’s review the “evidence” against Jose listed in the affidavit:

(1) He was a passenger in a truck carrying plastic wrap in 2009.

(2) He was arrested in a drug related case sometime in the past, but all the charges were dropped. Remember that Det. Tisch didn’t fully explain this to the judge.

(3) He is related to some people who may or may not be involved in drugs in this investigation and has actually been seen at their homes and in their company, the company of his relatives by birth and marriage.

(4) He was once “a person of interest” in an unrelated drug investigation by another agency. There was no evidence of criminal complicity, nor was he apparently charged with or convicted of committing a crime.

(5) He lived in a modest home, worked full time in a physically demanding job, earned a solidly middle class salary and owned either three or six vehicles of some value.

Where is the specific evidence, the probable cause, that would convince a reasonable police officer that specific illegal items or the evidence of specific crimes committed by Jose could be found at his residence? There simply is none on this affidavit. The fishing expedition wish list of the first two pages of the affidavit serves only to clearly indicate that Det. Tisch could not, for one moment, connect Jose or anyone else mentioned with a specific crime or to demonstrate that any specific contraband or fruits of a crime could be found in any of their specific homes or cars. Perhaps there is additional information, information that would fulfill the very plain requirements of the Fourth Amendment, but if so, it doesn’t appear on this affidavit.

Det. Tisch seems capable of being specific one moment, but incapable the next. He can identify precise vehicle values using the common “Blue Book” for two vehicles, but cannot do the same for two more. He knows that people were arrested, but cannot say whether they were convicted or exonerated. Any competent police officer can find such information with a phone call or by computer.

I cannot emphasize this enough: the Constitution absolutely requires the police to be able to clearly articulate how each and every person involved is directly involved in the commission of specific crimes—which must be specified—and exactly what items relating to those crimes may be found and where. The police must also be able to explain exactly how they came to know what they know. All of that is missing in this ridiculously general affidavit.

Here’s an example from my police experience. One morning a young man came to see me and told me that he was at the apartment of two acquaintances the previous night. We’ll call them Bob and Steve. He told me that he saw quite a bit of car and home stereo equipment in the home and asked about it. Bob and Steve wove a tale of multiple home and car burglaries, going into considerable detail. Not wanting to be caught up in these crimes, he decided to talk to the police.

By comparing reports of recently burglarized homes and cars, I was able to positively identify property from six separate burglaries including four costly tires they stole from a car, which tires they told him were in their apartment’s storage locker. I was able to do this based not just on his descriptions of the property, but by their descriptions to him of what they did, where they did it, and how they did it, which also matched the crimes in the reports.

Even though his information was only hours old, it wasn’t enough, so I visited the apartment. No one was home, but standing on the doorstep, looking through the front window--as anyone legally could—I could clearly see several items that matched the reported stolen property. Walking into the apartment’s laundry room, another publically accessible area which also doubled as the storage area, I could see the tread of one car tire which appeared to match that reported stolen, through a gap in the locked door of the shed.

With that information, I was able to specifically identify the people involved, the specific places to be searched, and the specific things to be seized, even including some serial numbers. I was also able to list the specific crimes committed, in this case, burglary, grand theft and felony destruction of property. I wrote the affidavit, obtained the warrant and recovered all of the property, and even more that also matched other reported crimes.

Review the Guerena affidavit. Is any of that kind of detail or information present? Drug cases are different, but actual evidence of crimes is mandatory. Informants are used to buy drugs, to get into buildings and to actually see drugs or the equipment used to package them. Lower level drug users are caught and used to obtain evidence against their dealers. Dealers are caught and used to obtain evidence against their suppliers. Intelligence on shipments is developed and careful, continual surveillance is employed to develop complete intelligence on the entire operation so that the police can identify criminals as high up the chain as possible. No competent police agency wants to waste six months of police work with nothing more than a small amount of drugs to show for it. In this case, it appears that surveillance was occasional at best, and again, there are no specifics, nor is there any indication of which crimes the police think any of those involved have committed.

What is also striking is that there is no indication of the expectation of danger, not for any of the suspects listed, and certainly not for Jose. Det. Tisch does not state than any of those involved were recently seen (during the course of the six month investigation) carrying or using firearms, or that any special permissions would be required to deal with any such concerns. As dangerous as Jose has become in death, in life he apparently posed no danger worth mentioning to Det. Tisch or other officers. Indeed, drug dealers often carry firearms and are known to use them, but Det. Tisch made no such assertions in this affidavit.

Det. Tish did not ask for any special conditions, such as service at night or an extended time frame for service. He did not ask for a no-knock warrant, and no judge would issue one absent a specific and convincing request.

There is insufficient evidence to suggest that Det. Tisch was trying to mislead the judge involved. It does describe what appears to be a pattern of possible drug-related activity, but that is not sufficient to establish probable cause. Det. Tisch does provide background information on how drug traffickers commonly operate, but that too does not establish probable cause. Det. Tisch does try to make those involved appear to be as criminal and suspicious as possible, but he does this by often leaving out inconvenient, even contradictory details such as the fact that Jose was arrested years earlier and the charges were dropped. I am still mystified why any judge would issue a warrant based on this affidavit unless he merely scanned it instead of reading it. If that was the case, it might appear to be competent.

If this is, in fact, a valid copy of the actual affidavit, Vanessa Guerena’s attorney is a happy man today.

PHOTOS AND GUNFIRE:

The Pima County SD has released photographs of the interior of the Guerena home. As expected, the interior of the home is heavily damaged, bullet holes and the resulting debris everywhere. However, because no floor plan of the home has been released, it is very difficult to draw any technical conclusions from those photographs as it’s not possible to establish the line of fire and the orientation of any of the rooms or items of furniture and other furnishings that are so obviously and heavily damaged in the home, however, it appears that bullets flew pretty much everywhere, particularly toward the back portion of the home.

I have also seen several photographs of the front door of the Guerena home, which provides a bit more information that supports my past observations. On the right doorframe, from waist to chest height, three apparent bullet entry holes are visible. One is actually in the wall of the home immediately adjacent the right outside edge of the doorframe molding at about waist height, and two are at roughly chest height in the actual right hand doorframe molding. One round pierced the left side door frame molding about 5” above the lock, and another pierced the wall of the home, some 3” to the left of the outside left edge of the molding and about 2” below the hole above the lock. Also visible are three gouge marks/bullet tracks on the right hand side of the door in the area of the two highest holes. These gouges indicate two bullets that obviously scored the outer surface of the door at some point in the shooting as the door swung open or perhaps rebounded back toward the officers. The third bullet appears to have actually pierced the edge of the door—it’s not visible in the only photograph I’ve seen—while it was standing open, and exited the front of the door at a relatively shallow angle, gouging the door and continuing on into the house.

Another very interesting photograph was of Jose’s AR-15, which was liberally flecked with bits of blood and flesh. More on this shortly.

ANALYSIS:

It is apparent that if Jose Guerena was a mid-level drug enforcer, as the police have tried to insinuate, he certainly lived modestly. His home is not full of expensive furnishings, and is like the homes of many a young couple just starting in life. It is not cluttered with the expensive accumulations of many years of living, and it certainly contains no material evidence of conspicuous consumption fueled by drug money.

The photos make graphically clear the panicky and un-aimed volume of fire poured into the Guerena home. No jury will be able to view these photographs and see the police as professional or competent. There is no explanation, no excuse, no words, which can make those photographs tell any story other than that the police were completely out of control. God must have been looking out for Vanessa Guerena and her son that morning. The police certainly weren’t. That they were not hit is surely a miracle.

As the exit holes on the back of the Guerena home make clear, the bullet damage throughout the home reveals an appalling lack of team cohesion and marksmanship. Walls and furnishings are perforated from ceiling to floor and with significant horizontal dispersion. It’s reminiscent of a semi-comic scene in a movie where a home is so filled with bullet holes that it collapses. And as I suggested in the second update, it would seem that the police were not using hollow or soft point ammunition as many rounds penetrated many items before being stopped, or before blowing through the back wall entirely, striking the back concrete wall of the home, the home of a neighbor, or flying off into the surrounding area, striking things unknown.

The bullet holes and marks around the front door also speak to a complete lack of professional ability and execution. Because of the generally poor quality of the 54 second police video and the angle of the camera, it’s not possible to see exactly who shot the door and door frame and when, but it’s clear that the shots came from at least two officers. As my analysis of that video suggested, it is possible that at least one officer was actually inside the home and shooting, ahead of the three officers who can be seen shooting from outside the home, or while leaning in through the door. If this is the case, he was likely in the direct line of fire of those who perforated the door and doorframe. If an officer was inside the home, it is amazing that his fellow officers did not shoot him.

The gouges in the door also suggest one potential reason why the officer carrying the shield fell down. It is possible that he was struck by shrapnel from the door and feeling the impact, thought he was hit and fell. It’s not possible to know this with certainly, and he is unlikely to admit it, but this is now at least a possibility.

In addition, a new photograph of the back wall of the Guerena home makes clear that there are at least ten rather than the nine exit holes I could make out in the original video. The lowest hole now appears to be less than two feet above ground level, making the police marksmanship even more random than I originally thought. Giving automatic weapons to the inexperienced will tend to do that.

It is hard to explain precisely what these six or more holes in the front door and wall mean to those who aren’t familiar with these issues. Police officers are absolutely responsible for each and every round they fire. They are trained to fire only when absolutely necessary and with absolute accuracy and concern for their surroundings. Police officers don’t have the luxury of blindly firing away and sorting things out later. They must absolutely know where the muzzles of their weapons are every second and what is in front of them. This is particularly true for SWAT troops who are supposed to be even more highly trained and capable than the average officer. To paraphrase Shakespeare in Julius Caesar, if these bullet holes could speak, they would speak of officers who had no idea of their surroundings, no situational awareness, and no idea what was directly in front of the muzzles of their weapons. Imagine what those officers will say in court when they’re asked why they shot a door or why they fired with another officer in front of their muzzles. What possible answer exists that will not make them look like rank incompetents?

VANESSA GUERENA INTERVIEW:

Most people badly misunderstand the Miranda v. Arizona decision. Watching too many TV and movie police dramas, they think that if the police don’t read a bad guy “his rights,” he walks. Or they think that officers must read Miranda to everyone they arrest or anyone with whom they speak.

In truth, officers need read Miranda only when someone is actually under arrest and they are asking them questions aimed at getting statements what will implicate them in crimes. If they don’t, or if the bad guy demands an attorney and the police don’t stop, the worst that will happen is usually that any statement they get can’t be used in court against him. As with much of the law, there are exceptions to the rule, but they’re specific and rare. If the police have other evidence, the bad guy may still be convicted.

People also misunderstand what arrest means. When a field training officer, I always taught my trainees what I called the seven magic words: “please,” “thank you,” and “you are under arrest.” The first three have obvious utility. The last four are equally important because they made my trainees think carefully about arrest and what it meant and tended to remove all doubt or confusion.

If you’ve ever received a traffic ticket, you’ve been arrested. An officer doesn’t have to say “you’re under arrest,” for you to be arrested, though it’s always a really good idea so that no one has any unfortunate misapprehensions about what is going on. If a reasonable person was stopped by the police and did not believe that they were free to go when they wished, they were arrested. Do you see what I mean? Were you free to go until the officer handed you a ticket and told you that you could leave? Of course not, hence, you were arrested. Officers simply allow people to leave on their own recognizance because it would be impossible to take everyone who committed a traffic violation into physical custody, take them to jail, and take them immediately before a judge, although that sometimes--rarely--happens.

Why have I brought all of this up? Because the police actually arrested Vanessa Guerena while telling her that she was not under arrest.

The Scene: It is 1150 on May 5, 2011. Jose Guerena has been dead for only about 2 hours, officially for only about one. Vanessa Guerena, Jose’s wife, is in a room with three detectives, Pruess, Cornidez and Anderson. Her English is limited—she is from Mexico—and she is obviously upset, perhaps even in shock. The transcript of the interview makes clear that she doesn’t consistently understand what the detectives are saying—many of her answers consist of “okay”--and there is no initial attempt at translation. She has apparently been removed from her home and taken to their “command center.”

The detectives begin, as detectives do, by getting general personal information. Then they tell her that they’re there to talk with her about what happened.

Det. Pruess says: “Okay? And, when I leave, by the time I leave, um, you know, hopefully you’ll all are, both of us will have all of our, our questions answered.”

Notice that he says: “when I leave,” not “when you leave.”

The following conversation is taken verbatim from the transcript:

Pruess: “Okay? Um, they took you out of the house, and they put you in, in this, command center?”

Vanessa Guerena: “Yes.”

P: “In this room. Obviously you can’t get out. What I have to do, is I have to read you your rights. I doesn’t mean you’re under arrest, it doesn’t mean you’re gonna be charged with anything.”

VG: “Okay.”

P: “But by law, because you’re not allowed to leave, I have to read you your rights. Do you understand that?”

VG: “And, will, I speak, I can, I, gonna try my best, my, best English.”

NOTE: Det. Pruess has told her that she can’t get out of the room, and that she is not allowed to leave. This means that she is under arrest. Again, contrary to what people see on TV, if you don’t wish to speak with the police, you can refuse and leave at any time. If they don’t allow you to leave, you are under arrest. There is no other interpretation. The police have no authority to put you in a room and hang onto you—or to otherwise detain you--as long as they please unless they arrest you. He says that “by law” she’s not allowed to leave. That’s nonsense. He’s lying to her. He also says that he has to read her Miranda. As I’ve pointed out, there is no reason to read Miranda to anyone unless they are under arrest and you are asking them questions that you intend to use against them in court. The legal term is “custodial interrogation.” The police do not mirandize witnesses; it’s not necessary. Am I exaggerating? Did the detective misspeak? The transcript continues after Pruess read Miranda to her and says:

P: “Now, I know that you said that you don’t speak English. And I’m gonna slow down. We’re gonna go through this.”

VG: “Okay. I don’t understand…”

P: “Absolutely. I’m not gonna.”

VG: “I’m gonna go to the courts?”

P: “No, no, no, no, no.”

VG: “Oh, okay.”

P: “God, no, no.”

VG: (No answer listed.)

P: “What I’m telling you, is that you can’t leave here right now.”

VG: “Okay.”

P: “Because, there’s a door here. You know.”

VG: Oh, yeah, she told me already.”

P: “Okay.”

VG: “I’m not going to leave, I don’t have nowhere to go.”

P: “Exactly. But much less, I wouldn’t let you leave right now, because I need to talk to you.”

VG: “Okay.”

P: “Okay? _____ is being into custody right now. It doesn’t mean you’re gonna go to court.”

VG: “Okay.”

P: “Doesn’t mean you’re gonna go to jail.

VG: “Okay.”

P: “Doesn’t mean your gonna be in arrest. But, what I have to do, is I have to let your know, that, you have a right to have an attorney present, only because you can’t go anywhere.”

VG: “Okay.”

P: “We don’t trap you in a room, and say, talk to us.”

VG: “Okay.”

P: “And we’re not gonna let you leave until you talk to us.”

VG: “Okay.”

P: “We don’t do it like that.”

VG: “Okay.”

ANALYSIS:

“We don’t trap you in a room, and say, talk to us.” “And we’re not gonna let you leave until you talk to us.” “We don’t do it like that.”

In fact, they have trapped her in a room; they have told her that the law requires her to talk to them; they have told her that they're not going to let her leave until she talks to them, and they do, in fact, do it exactly like that.

Remember the term “custodial interrogation?” Vanessa Guerena is in a room with three detectives. They have told her, repeatedly, that she is not free to leave, that she has to stay and answer their questions. Would she reasonably expect that she was free to leave? Would you? Clearly, she has been arrested. Clearly, she is enduring a coerced interrogation whether she understands sufficient English to realize that is another question.

Are the police lying to her? Let’s give this the most charitable interpretation possible. The detectives aren’t sure if she has broken the law, so they want to be careful. They know that they (their fellow officers) just killed her husband in a particularly brutal and bloody manner and that no evidence of a crime whatever was found in their home. They want to protect themselves, their fellow officers, and get as much information, particularly incriminating information, out of her as possible before she gets wise and ”lawyers up.” They also want to mirandize her so that if she does implicate herself in any crime of which they are unaware, they can use her statement against her. So just to make sure, they mirandize her.

Notice how even the most charitable interpretation does not exactly make the police look noble. The reality is that three detectives have the wife of a man their fellow officers butchered only a few hours earlier in a room with them and they’re going to get what they want out of her regardless of the language barrier, regardless of her condition, regardless of the law. They tell her that she is not free to go, they tell her that’s it’s the law, that she has to answer their questions. They tell her that they have to read Miranda to her but that she’s not going to court when they’re clearly doing this in case they need to take her to court, perhaps in the hope of taking her to court. All lies, and lies that any competent detective would know are lies. They clearly don’t want to do anything that will cause her to shut up. They’re going to use any tactic necessary to get her to talk with them. These detectives did have a job to do, but they had considerable discretion in deciding how to do it.

In the rest of the transcript, the Spanish-speaking detective begins to translate. Vanessa’s questions and answers truly are emotionally wrenching. I’ll leave it to readers to decide whether they should think well of the police of Pima County, AZ.

THE CORONER SPEAKS:

According to Pima Co. Medical Examiner Dr. Gergory Hess, two of the 22 rounds that hit Jose Guerena were probably fatal. Hess spoke of a bullet that hit the left thigh and traveled into the abdomen where it lacerated a kidney and cut an artery and a bullet that entered the abdomen, damaging the spleen and left lung. Speaking to KGYN9’s Jennifer Waddell, Hess said “I doubt he would have survived even if paramedics had been let in immediately. There would have had to have been heroic efforts to try and stop the bleeding.” Hess said that no single shot was fatal but that Guerena died from rapid and severe blood loss. The official time of death was set at 1000, about a half hour after Guerena was shot.

Interestingly, the combined total of entry/exit wounds on Guerena’s body was listed as 96. The Coroner’s office attributed this to fragmentation of bullets striking Guerena and possibly shrapnel or flying debris from the walls and other items near Guerna, however, the report apparently did not specify finding such debris in Guerena’s body.

A listing of the entry wounds found:

(1) A graze to the head
(2) Upper right chest
(3) Lower right chest
(4) Left upper abdomen
(5) Three to the right upper arm
(6) Right elbow
(7) Right hand
(8) Left upper arm
(9) Left elbow
(10) Left forearm
(11) Left hand
(12) Two to the right thigh
(13) Right calf
(14) Right foot
(15) Four to the left thigh
(16) Left foot

No drugs were found in Guerena’s system, though a blood alcohol level of 0.024% (a tiny amount) was found, which, according to the Coroner’s report, could have been caused by decomposition after death.

ANALYSIS:

Guerena was shot, literally, from head to foot. Only three of the 22 bullets striking him were in what the police call “center mass,” or that area of the upper center of the body most likely to cause damage that can quickly incapacitate an attacker. This means that of the 71 rounds fired, only about 30% struck Guerena at all, and only about 4% struck him where the police and SWAT teams train to shoot.

The Coroner’s assertion that Guerena would have likely died even if immediately attended to must be considered in light of his setting of the official time of death as 1000, or about a half hour after he was shot. The Coroner may be correct, but Guerena was never given a chance to survive. That fact is beyond dispute.

FINAL THOUGHTS:

The affidavit was, in a real sense, the beginning of the chain of events that peaked, but not ended, with Jose Guerena’s shooting. It now seems clear that the officers involved did not have sufficient probable cause to obtain a warrant. They could not and did not clearly state facts and circumstances that would lead a reasonable police officer to conclude that specific people committed specific crimes and that the proceeds or evidence of those crimes—which were also not specified—could be found at a specific residence.

Sheriff Dupnik later told reporters that using the SWAT team to serve a high-risk warrant was fully justified, but there is also nothing in the affidavit that establishes the necessity for calling out a SWAT team. Det. Tisch called it a mid-level drug operation, but one that allegedly involved only a handful of people. If Jose Guerena was truly the heavy, the muscle for the drug operation as the police have claimed after his death, the affidavit would have been the logical place to explain that view and provide evidence to support it. The police did not. It has also been suggested that Jose was involved in murder and several SWAT operators apparently claimed that they were so briefed before the raid. If this were true and/or remotely provable, would this too not have been worthy of inclusion in the affidavit? After all, virtually everything else was thrown in, even unrelated incidents of no criminal activity years old.

In addition, the photograph of Jose’s AR-15 speaks volumes, not because it is covered in blood and flesh but because a telescopic sight of what appears to be 4X or slightly greater power was mounted. This is an odd choice indeed for the weapon of a drug gang enforcer as it would be of little or no use at close range or indoors. However, for a former Marine trained to shoot that very weapon accurately at long range, it would certainly provide an afternoon of useful practice at a shooting range. It was also a poor choice for a shootout inside a home. Wouldn’t a drug gang enforcer have handguns or other weapons more appropriate to close quarters battle at hand and ready to shoot?

That said, there is, for the moment, no evidence that any of the SWAT officers involved acted in bad faith in their intention to serve the warrant. They likely believed that the warrant under which they operated was valid, and would have had no known reason to believe otherwise. I would also like to believe that none of them went to the Guerena residence hoping for a chance to fire their weapons, or planning to manufacture a chance. Some would be tempted to say that there is no way to know such a thing, but there is. The operators on the team know. They know who is dangerous in that way. They always know. Of course, ever finding out that kind of information—if it does exist in this case—is another matter.

We now know that after exhausting all of their ammunition, the “team”—if it can be reasonably called that—was paralyzed and merely milled around, not reloading, apparently having no idea what to do next. They failed to immediately enter after the door was breached and emptied their magazines in a panic, even fell down. Instead of regrouping, reloading, and doing what they should have done in the first place, they actually did a Monty Python and, in essence, ran away. I am tempted to call it cowardice, but it was almost certainly a complete failure of training, individual initiative, and leadership.

They could see Jose Guerena, who was for some time, alive and moaning. He was down and no threat, lying in a rapidly expanding pool of his own blood. Unless, of course, they want to admit that they really couldn’t see him before they began firing and as they were firing, and so, couldn’t clearly see him thereafter. Amazingly, after removing Vanessa and their son from the house, they still did not enter the house, but sent in not one, but two robots to poke and prod Jose, and rather than have medical personnel already on the scene assess Jose, they did it over the phone (!) with a physician who would never actually see or touch Jose.

They utterly failed in the basic tactics and duties of any SWAT team under those circumstances. They did not enter and clear the residence. If there were, in fact, other shooters in the house, they could have easily regrouped and picked off officers or bystanders from the windows, or probably even escaped in the utter confusion that obviously reigned.

The detective’s treatment of Vanessa was cruel, stupidly done and unprofessional. Nothing more need, or can, be said about it.

Based on what is currently in the public domain, it seems clear that Jose Guerena was a young man working hard in a copper mine to care for his family. He had some relatives who may have had some involvement in drugs, but there is no evidence that he did, and substantial evidence to suggest that he did his best to avoid it. There are many families where this story is being played out. On the morning of his death he went to bed after a shift at the mine expecting only to sleep. There were no drugs in his system or his home. There was nothing illegal in his home. Vanessa and he did not know that it was the police about to attack his home.

I had, until reading the affidavit, wondered if the police might have had more damning evidence that had not yet been released. Judging from the affidavit, they did not have sufficient evidence to suspect Jose of anything other than having relatives who might have been doing some things that drug criminals sometimes do. Had they used reasonable, professional tactics, such as waiting until Jose was awake and walked out to his mailbox where he could be approached by a couple of officers, his home could have been quickly and easily searched. The affidavit reveals that they knew that he kept regular hours and habits. They could have easily and safely served the warrant. Remember that the affidavit does not identify him as a danger. His neighborhood would not have been ventilated by police bullets, and he would be alive today.

Although Jose Guerena probably did not know that it was the police assaulting his home, he may well have realized it at the last second, and leaving his rifle on safe, gave the last full measure of devotion for his country, devotion taken by those who manifestly did not deserve to demand that sacrifice from him or anyone.