The last update in the Jose Guerena case–5.2 on February 1, 2012–concluded, as have all the others, with many unanswered questions.  What is known is that Pima County Sheriff Clarence Dupnik claimed that it could take an enormous amount of time to investigate this case, and it could be a very long time before any arrests were made.  This article, for those that have not been following this case closely, is a brief review of developments through Update 3 to bring you up to speed as I continue reporting and analysis.  I’ll also add a bit of new information in this article, but will save most of it for additional articles soon to be posted.

Jose and Vanessa Guerena and their two children

Jose and Vanessa Guerena and their two children

From Update 1: 

On May 5, 2011, a SWAT team comprised of elements of four local law enforcement agencies performed a raid on the home of Jose Guerena, a Marine combat veteran of two tours, in Tucson, AZ.  Guerena, who worked long hours at a nearby Copper Mine, had arrived home only a few hours earlier and was sound asleep when the team arrived.

Briefly spotting what she recognized as armed men in their yard, Jose’s wife Vanessa, a native of Mexico who did not speak English well, told Jose, who leapt from bed wearing only boxer shorts.  He hid Vanessa and his four year old son in a closet in a back bedroom, and picking up the weapon nearest at hand, an AR-15 with a scope, prepared to defend his home and family.

Smashing in the door, the officers unleashed a panicky fusillade of 71 bullets, striking Jose only 22 times.  They ventilated not only Guerena’s home, but a substantial portion of the neighborhood, and over the course of more than an hour, let Jose bleed to death.

The police first claimed that they fired only in response to Guerena’s firing on them, but upon discovering that not only had Guerena’s weapon not been fired, he had not flicked off the safety, changed their story.  Suddenly, Guerena became a “mid level drug gang” enforcer, a suspect in a murder, and the possessor or police uniforms and equipment, later revised to a single bullet resistant vest—likely his Marine issue—and a ball cap with a “border Patrol” logo.  Not a single marijuana seed was found in his home, nor any evidence of wrong doing, though circa December 2011, the police are saying that a gun that might have been stolen years ago was found in his home.

A 54 second long video of the raid, recorded by the police on the scene, is available here.  Update 1 contains a complete tactical analysis of the video, which I’ll not take the time to repeat here, but these facts are pertinent:

(1) Notice the “me too!” shooter near the end of the video.  He comes from the left, slings his rifle behind his back, draws his handgun, runs to the door, sticks it between the heads of two fellow officers, and fires several rounds.  Not only did he directly endanger his fellow officers, he could have had no idea what he was shooting at, and no idea where his bullets were going.  This is the kind of stupidity and negligence that should cause any officer anywhere to be fired.

(2) This is, without a doubt, the most disorganized, incompetent SWAT action I have ever seen.  I’ve seen a few.

(3) During an action the police would only later describe as being incredibly dangerous, the takedown of the home of a drug cartel hit man, they are playing music in their vehicle, which tends not to suggest they were taking things terribly seriously.

(4) The officer’s fire was uncontrolled and absolutely panic-stricken.

(5) Nearly 70% of the rounds fired by the officers–at very close range inside a home–missed Guerena.  They even managed to shoot the door and door frame surrounding them as they frantically shot up the house.  It’s a miracle they didn’t shoot each other–as far as we know (the door was open during the shooting and the outward edge was also hit several times).

Guerena Home Front Door

Guerena Home Front Door

(6) No drugs, indeed, nothing at all illegal or remotely suspicious was found in Guerena’s home (the police later claimed a shotgun reported stolen years before was found, but this is suspicious at best–more in following articles).  The bullet resistant vest mentioned by the police–probably his Marine issue–was found in his garage in a plastic storage bin.  He was given the Border Patrol hat because he applied to be a Border Patrol agent.  This was the extent of the “police uniforms” the police claimed to have found.

(7) Seconds after the end of the video, the police, in a panic, retreated and would not enter the house for an hour and 15 minutes.  Guerena was not dead, but they denied him medical care, sending in two successive robots to poke and prod him, and actually got a doctor to declare him dead by phone.  She never saw or examined Guerena.

 (8) Jose’s wife, Vanessa, called 911 and begged for medical help for Jose immediately after he was shot.  She pled:  

Hurry up, he’s bleeding.  I don’t know why they shoot him. They open the door and shoot him. Please get me an ambulance.

When she came to the open front door minutes later, the police grabbed her and would not allow her back inside despite her pleas to get her infant son who was still inside with his dying father.

(9) The police claimed they saw Guerena pointing a rifle at them, but this is highly unlikely.  His home was dark–he slept during the day–and they rushed into the home out of  bright morning sunlight.  It’s probable they couldn’t see anything at all.

Immediately, the police started spinning, claiming that their SWAT team was one of the nation’s best.  Rick Kastigar, the chief of investigations for the Pima Co. Sheriff’s Office was among the spinners.  He claimed Jose was “the muscle” of a drug ring, “the individual that was directed to exact revenge.  The police have never explained how Guerena managed such activity while working full time in a physically demanding job in a copper mine.

As early as 2011, even use of force experts had serious questions:

An independent expert, Chuck Drago, a former longtime SWAT officer for Fort Lauderdale, Fla., police who now does consulting on use of force and other law enforcement issues, said that the shooting itself appeared justified.

‘It’s a horrible, horrible tragedy, but if they walked in the door and somebody came at them with an assault rifle, that would be a justifiable response,” said Drago. “It doesn’t matter whether he’s innocent or not.’

But after examining elements of the search affidavit, Drago questioned whether the sheriff’s office truly had probable cause.

‘When you back up and look at why they’re there in the first place and whether the search warrant was proper, my mind starts struggling,’ Drago said. ‘There are a lot of things that don’t make a lot of sense.

Should you take the time to read the article at policeone.com, you’ll note that the comments, virtually all written by police officers, are of the “if anybody points a gun a police officers, they deserve to get killed,” theme.  They ignore that it was the police that provoked the shooting and that it occurred inside Guerena’s home, a home the police spent hours frantically searching–after they killed Guerena and perforated the neighborhood–for any evidence of criminal activity.  They found none.

Guerena's AR-15

Guerena’s AR-15

UPDATE 2:  This update contained information relating to the dispersion of bullet holes in the Guerena home: floor to ceiling and outer wall to outer wall.  Police fire fully penetrated the home, striking a 6’ brick backyard fence, and a neighbor’s home behind it.  This was visible in a video posted on the Internet (since apparently taken down) showing some portions of the exterior of the home.  It is also likely the police used improper, overly-penetrating full metal jacketed ammunition.  This video of a local news report does have several stills that indicate the grotesquely excessive nature of the police fire.

Jose Guerena was standing near this wall

Jose Guerena was standing near this wall

Back of Guerena Home

Back of Guerena Home

I wrote in part:

I’ve often said, particularly on those occasions when I narrowly escaped injury during my police days, that God protects cops and idiots. That was surely the case here. It is absolutely amazing that Mrs. Guerena and her child and neighbors were not injured or killed. It is equally surprising that the police did not shoot themselves. It would be interesting, by the way, for the local media to confirm that assumption by checking local hospital treatment records for the day of the shooting. While I have no concrete evidence that any officer was injured, I would not be at all surprised.

It is also now known that the SWAT team that raided the Guerena home is comprised of officers from at least four local Law Enforcement Organizations (LEOs). As I mentioned in the initial analysis, this can save money, but potentially creates a great number of problems as those officers selected may be selected for reasons other than their tactical abilities. The administrators of many agencies can tend to work at cross-purposes, interfering with, rather than smoothing the path for, their officers. Mrs. Guerena’s attorneys will certainly want to have all of the records of the SWAT team members and their individual and group training. Remember that with four LEOs involved, there are four rather than one sets of deep pockets. This knowledge may affect the quality of the follow-up investigation, which according to Sheriff Dupnik will be done by representatives of the involved agencies. That is never a good procedure or sign.

What should have been visible in a professional operation? Because only a few rounds would have been fired—only if absolutely necessary—and there would have been no misses, the home—and the neighborhood—would show not the slightest external evidence that police gunfire occurred.

Many people—including those hapless officers–are lucky to be alive today. Hopefully, they realize that.

Of course, when you’re a member of one of the best SWAT teams around, recognizing error might be a bit difficult.

UPDATE 3:  This update was primarily dedicated to the analysis of the affidavit for a search warrant used in this case.  All police searches are governed by the Fourth Amendment of the Constitution.  An affidavit is a sworn document that provides, for a judge, all of the facts and observations that would make a reasonable police officer and a reasonable judge believe that specific crimes had been committed by specific people and specific evidence of, or fruits of, those crimes can be found at specific places.  If an affidavit is convincing, a judge issues a warrant, which is the legal authority to search within the narrow limits written on the warrant.

If one is looking for four stolen semi-tractor tires, they cannot search anywhere such tires reasonably could not be found, such as in desk drawers, a microwave oven, etc.. Warrants should be very narrow and specific.  There is no such thing as a “fishing expedition” warrant–at least there should not be under the Fourth Amendment–allowing the police to search just about anywhere for anything, particularly if “anything” isn’t clearly described and specified and if there is no probable cause to search in the first place.

After the warrant has been served, officers are required to immediately file a
“return,” which is a sworn document detailing each and every item they found and where they found it.  Of course, in Guerena’s case, they found nothing.

Update 3 details the many, and absolutely stunning problems with the affidavit filed by a Detective Tisch of the Pima County SO.  I wrote: 

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.  Every judge–they talk with each other about such things–would have been most reluctant to take anything I said or wrote at face value.

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 even admits that he has no evidence whatever of any drug activity by anyone involved!  Yet he makes an incredible leap of logic and concludes that these people are operating ‘a mid-level drug trafficking organization in the Tucson area.’  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 or vehicles are associated with specific crimes and  the specific 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 are supposed to work.

What is particularly surprising is the assertion of the size of this “mid-level drug trafficking operation.”  One would think that such a criminal organization would be dealing in bales of marijuana and hundreds of pounds of cocaine, heroin and other drugs, yet the officers did not observe anyone handling or anywhere near drugs, not so much as a single joint.  They assert that Alejandro Guerena once drove to a Best Buy store, an appliance resale store and his home, and once drove to Phoenix, but make no assertion whatever that ties those locations and trips into any kind of criminal activity.  By the evidence provided in this affidavit, I’m involved in a mid-sized drug operation because I’ve visited those kinds of places, and even once drove to Phoenix.  If the Guerena extended family is truly a mid-level drug gang, the drug problem apparently isn’t nearly as bad as we’ve been led to believe.

Tisch’s evidence regarding Jose Guerena is essentially non-existant:

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 explain this to the judge, despite the fact that the disposition information was available to him.

(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 may or may not have allowed his brother to drive a Ford Raptor pickup truck which may have belonged to him or maybe to his brother–or not.

(5) He was once “a person of interest” in an unrelated drug investigation by another agency. Many people are at one time or another listed as “a person of interest” in police cases.  In a great many of them, they’re found to have no criminal involvement and the police immediately lose “interest.”  Det. Tisch provided no evidence of criminal complicity, nor was Jose apparently charged with or convicted of committing any crime.

(6) He lived in a modest home certainly within his means, worked full time in a physically demanding job, earned a solidly middle class salary and owned either three or six vehicles (Det. Tisch apparently has no real idea) 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 on in his vehicles? There simply is none in 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 vehicles. Perhaps there is additional information, information that would fulfill the very plain requirements of the Fourth Amendment, but if so, it doesn’t appear in this affidavit.

Another significant missing item is any mention of the danger Jose Guerena–drug gang enforcer after the fact–supposedly posed:

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–according to the Police–in life he apparently posed no danger worth mentioning by 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. Tisch did not ask for any special conditions, such as service of the warrant at night or an extended time frame for service. He did not ask for a no-knock warrant, and no competent judge should issue one absent a specific and convincing request.

I do recommend you read Update 3 in its entirety.  It has a link to a PDF of the incredibly faulty affidavit, and far more specific information explaining why no competent judge should have ever approved a warrant based upon it.

Which judge would have authorized a warrant based on essentially no credible information?  Charles V. Harrington.  This is Judge Harrington’s official biography: 

Harrington Bio

And on May 9, 2011, four days after Jose was shot to death, Judge Harrington sealed the affidavit, warrant and the return.  This is a screenshot of the PDF of that document.

Sealing

On March 24, 2012, I sent this letter to Judge Harrington:

“The Honorable Judge Charles V. Harrington

Arizona Superior Court in Pima County

110 West Congress St.

Tucson, AZ  85701

 

Your Honor:

       Please allow me to introduce myself.  I am Mike McDaniel, and I have been writing about the Jose Guerena Case since shortly after Guerena’s death.  My work on that case may be found here:  https://statelymcdanielmanor.wordpress.com/category/jose-guerena-case/

       Of particular interest to me and my readers has been the affidavit in support of the search warrant which it appears you authorized.  I am also quite interested in your order sealing the affidavit, warrant and return, dated May 09, 2011 (copy enclosed).  My interest in this case is based in my nearly two decades of experience in law enforcement.

       Would you, Sir, be kind enough to answer several questions?  I’ll be sure to include your responses, in their entirety and without editing, in the article I’m writing about these and other issues.  If you wish, you may certainly reply by mail, or if it is more convenient, please feel free to reply by e-mail.  My e-mail address is in the letterhead.  In any case, if you feel that you cannot answer these questions, would you be so kind as to let me know why not?

Questions:

(1) Do you now regret authorizing the warrant based on the affidavit you were given?  Please explain.

(2) If you had the opportunity to review the same affidavit, would you authorize a warrant today?

(3) Why did you seal the affidavit, warrant and return?  Were you asked to do this, and if so by whom?  Why did they make this request?  If you sealed it on your own initiative, could you please explain why?

(4) Would you be willing to make the signed affidavit, warrant and return available to me and/or the public?  If not, why not, and if so, when and under what circumstances?

       Thank you for your time and consideration, and I look forward to hearing from you in the near future.

Yours,

Mike McDaniel

Stately McDaniel Manor

PJ Media Contributor”

I suspect it will not surprise readers to learn that Judge Harrington declined, through his representative, to comment.

Harrington Reply

It is not unheard of for judges to seal such documents, but it is rare.  There are a few legitimate reasons for such concealment.  If there is an ongoing investigation and releasing the information would compromise it, it is reasonable to seal those documents.  In a civil case, documents may be sealed at the request and agreement of both parties.  This is not a civil case.

Documents like this are also commonly sealed because they are embarrassing.  The affidavit is surely embarrassing, not only to the police, but to the judge.  The warrant, as a direct product of, and being directly reflective of the affidavit would also be embarrassing to the judge and the police.  But the return has the potential to be most damaging.  Even the public statements of the police indicate they found nothing at all in the Guerena home or in their vehicles.  There are other indications of this I’ll address shortly.  It is entirely possible that Judge Harrington sealed these routine documents to avoid embarrassing himself and the police.

In any case, we do not know why these documents were sealed, who asked that they be sealed (if anyone), or whether Judge Harrington took it upon himself to seal them.  Of course, the police already have copies of the documents; they wrote them.

The Vanessa Guerena Interview:

About one hour after Jose was declared dead, the police conducted an intensive interrogation of Vanessa who initially did not know that Jose was dead.  In fact, the three detectives that interrogated her tricked her, telling her she was not under arrest, but that she had to remain in the room with them and answer their questions until they were satisfied.  This is, of course, absolutely false.  Vanessa, a native of Mexico, had imperfect English, and they used this against her as well.  When they forced her to remain in the room and tricked her in to answering their questions, they, in law and fact, arrested her.  They also mirandized her, which is never necessary unless the police plan to ask her incriminating questions and use whatever she says against her in court.

I’ll be writing about her interrogation in more detail in the near future, but one particularly interesting fact is that the police repeatedly asked her if she and Jose had any “secret hiding places” in their home.  There were, of course, none.  Guerena’s home was an entirely unremarkable and modest home, and in any such home, it is exceedingly difficult to construct workable secret spaces.  There just isn’t sufficient room.

The interview, with three detectives pressuring the young widow of a man their fellow officers murdered only two hours earlier, is wrenching to read.  It is far from law enforcement’s finest hour.

FINAL THOUGHTS:

This update is already much lengthier than I initially thought it might be, so I’ll continue with a review of the final three initial updatest his coming week.  Then I’ll get into all of the developments that that occurred since Update 5.2 was posted.

Thanks, and I hope to see you there!