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Seventy-One Rounds in Tucson: The SWAT Shooting of Jose Guerena

All evidence suggests an incompetent investigation and raid resulted in the death of an innocent father and Marine.

by
Mike McDaniel

Bio

October 6, 2011 - 12:00 am

Most Americans first heard of seven-term liberal Pima County Sheriff Clarence Dupnik in the aftermath of the shooting of Rep. Gabrielle Giffords and 19 others in January of 2011. Dupnik immediately blamed conservative “rhetoric,” and declared Arizona a “mecca for racism and bigotry” — he was thoroughly wrong. In the Jose Guerena case, he would be wrong again.

If anyone knows how the extended family of Jose Guerena, a two-combat tour Marine and father of two young children, came to the attention of drug agents in the Pima County Sheriff’s Department, they’re not telling. But members of his family by birth and marriage did come to their attention, and Jose somehow ended up on their list. For more than a year, apparently spotty surveillance was conducted and officers noticed behavior that might be suspicious — if one was trying very hard to make otherwise unremarkable behavior seem suspicious.

On September 15, 2009, officers noticed that one of the people they were watching put a cardboard box in a pickup truck. They stopped the truck and the driver gave permission to search. Nothing was found except a roll of plastic wrap in the box. Jose Guerena happened to be the sole passenger in the vehicle. The police later suggested that because drug dealers sometimes use plastic wrap, this was highly suspicious. In fact, the plastic wrap was to be used for nothing more sinister than wrapping furniture.

Other suspicious activity cited by the police: people speaking on a cell phone while driving, owning multiple vehicles worth about $7000 each, and not having obvious, conventional sources of income.

In their wisdom, the Founders established specific requirements for search warrants with the Fourth Amendement:

No warrant 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.

Probable cause is commonly understood to be facts and circumstances that would lead a reasonable police officer to believe that a specific crime had been committed and that a specific person committed it. These are straightforward, easily understood ideas.

A search warrant is merely a judge’s written authorization to search — the most important document is the affidavit submitted to the judge in hopes of obtaining the warrant. It is there that the police must explain in detail which laws they believe have been broken, who broke them, what evidence exists to support their belief, how they discovered the existence of that evidence, and precisely where that evidence may be found.

The affidavit requesting a warrant to search the home of Jose Guerena and three other homes is remarkable in its complete lack of probable cause. Full of suspicion and innuendo, the most damning evidence against Jose consisted of his status as a passenger in a plastic wrap-carrying pickup and the mention of a past arrest, of which the police dishonestly did not provide the outcome: all charges were dismissed. Jose Guerena had a clean record.

Police agencies virtually never request warrants in drug cases unless they have sufficient evidence to make many arrests and to seize a large quantity of drugs. Incredibly broad, the affidavit listed four homes and multiple vehicles without specifying what might be found in any of them, or why the police believed that anything illegal might be found there. All the hallmarks of a competent drug investigation were missing: there were no controlled buys, no video or audio of drug transactions, no wiretaps, no informants inside what the police called a “mid-sized drug ring” to reveal the kinds of drugs being sold, methods of storage, packaging, delivery methods, schedules for delivery, or any of the common indicators of organized drug crime.

The police wrote that in the many months of their investigation, they had not seen any of the suspects in possession of drugs, nor had they seen any of them so much as smoking a joint.

Despite this amazing admission, a judge issued a warrant authorizing a massive fishing expedition, which any competent judge should have realized is precisely what the police were seeking. The police had no probable cause, no evidence of crime. They did not have probable cause to arrest anyone. They were asking for judicial cover to search in the hope of finding evidence of crimes, the evidence their long and costly investigation failed to produce.

On May 5, 2010, at approximately 9:30 AM, the police conducted a raid.

A short time earlier, after finishing a long shift in a nearby copper mine, Jose Guerena finished breakfast and went to bed. He was sound asleep when his wife Vanessa saw armed men in their front yard. A native of Mexico, Vanessa was alarmed and rushed to awaken Jose, who immediately ensured that Vanessa and their four-year-old son were hidden in the closet of a back bedroom, as far from the front door as possible. Wearing only boxer briefs, he retrieved the nearest weapon: a scoped AR-15 rifle. He had no idea what he was facing. The police were parked in front of his garage and the blinds of his front window — the only window offering a view of the front yard — were closed.

In the front yard, the Pima County Sheriff’s Department SWAT team, comprised of officers from four local agencies, assembled. The 54-second video of their botched assault is a stunning testament to their ineptness and lack of training and leadership.

While Jose was securing his family as best he could, the police sounded a siren for less than nine seconds, and knocked on the door and announced themselves for only seven seconds, not nearly sufficient time for anyone to answer the door. When they broke in the front door, everything fell apart.

Rather than immediately entering behind their shield man, they stood, bunched in the doorway. Likely, they were blind. Stepping out of bright morning sunlight into the completely dark home of a man who slept during the day, their vision was compromised. For reasons never explained, one officer began firing, and four others quickly joined in, firing 70 rounds within eight seconds, stopping only when they emptied their magazines or their weapons malfunctioned. There was a two-second silence, and again, for reasons never explained, one final round was fired.

During the panicky fusillade, the shield man somehow fell down, ending up on his back with his shield pointing outward toward the police video camera. Rather than entering, the police stood in stunned immobility, eventually retreating for cover, dragging their shield man with them.

Hit 22 times, Jose Guerena was still breathing but immobile. The Guerena home looked like a sieve. Police bullets shredded it from floor to ceiling and wall-to-wall. At least ten rounds completely penetrated the house, several striking at least one neighboring home. Miraculously, Vanessa and her son were unhurt.

The police even managed to shoot holes in the walls and doorframe surrounding the front door where they stood. It is a miracle that they did not shoot each other.

Stunned and intimidated by what they believed to be resistance, the police would not reenter the home for 74 minutes, during which time they sent two robots into the home to poke and prod Guerena who lay, unmoving, in an ever-expanding pool of blood. The police made a conscious decision to allow him to bleed out and die, even having him declared dead at long distance by a doctor who would never lay eyes on him.

During those 74 minutes, Vanessa Guerena came to the front door and was grabbed and removed by the police, leaving her son alone in the house with his dying father. She told them that her son was still in the home, too frightened to move. She repeatedly begged them to provide medical treatment for Jose. They ignored her.

Despite Vanessa telling them that she and her son were the only other people in the home, despite no evidence to the contrary, despite knowing that Jose was immobile, dying, or dead, the police concluded that there must be a barricaded, hostile suspect in the home.

They formulated a plan to “rescue” the child from the back bedroom, but if they did not immediately find him, they planned to abruptly retreat. They actually intended to completely enter the home with multiple officers, and if they failed to find the child, to turn around and traverse the entire depth of the home, surrendering it again. Fortunately, as they prepared to put this daring plan into action, the child came, unbidden, to the front door. They seized and removed him.

When they entered, they assigned two officers to cover the unmoving, obviously dead Guerena. Only then did they discover that the safety of his rifle had not been disengaged; he had not fired a shot. The police fired 71 rounds in response to no resistance at all. Even so, for many hours, the police claimed that Guerena fired at them first. It is a claim they will be forced to hastily retract. They are alive today because Jose Guerena was sufficiently well-trained and honorable never to fire on police officers, no matter the circumstance.

After discovering that Guerena provided no resistance, the police began a desperate campaign to justify the unjustifiable. While searching the Guerena home top to bottom, they repeatedly interviewed Vanessa Guerena.

Fictionalized accounts of police work have done the public a disservice in many ways. One need not be told “You are under arrest” by a police officer to be arrested. If you have ever received a traffic ticket, you’ve been arrested. An arrest occurs when someone is being detained by the police and reasonably believes that they are not free to go. Under some circumstances — commonly known as “stop and frisk” — the police may detain people for a short time, say 15 minutes, to determine their identification and actions. But this is another body of law.

Imagine Vanessa Guerena’s state of mind as the police forced her to be seated in their local “command post.” No fewer than three detectives were present. Her husband had only a few hours earlier been shot.

She was obviously not sure that he was dead and constantly asked about him. She repeatedly asked why the police shot him. They lied to her: they told her she is not under arrest and will not have to go to court, but that the law requires her to answer their questions. They told her she cannot leave until she answers their questions. They told her they don’t put people in a room and force them to answer, while they were doing exactly that.

Over and over, the police asked Vanessa about the presence of drugs or cash in the home, secret hiding places, if Jose — or she — was breaking the law. They were clearly trying to trick her into incriminating Jose or herself. Their desperation was as obvious as Vanessa’s fear, confusion, and honesty. This transcript is not a fine hour for American law enforcement.

The police were doubtless asking these questions because the search of the Guerena home came up utterly empty. There were no drugs, no cash, no evidence of the kind of extravagant living one might expect from the enforcer of a “mid-level drug ring.” Photographs of the interior of the Guerena home, shredded by police gunfire, gave two immediate impressions: (1) There was no evidence of conspicuous consumption. The Guerena home looks like what it is: the home of a young couple just starting in married life. (2) It’s a miracle the police didn’t kill Vanessa Guerena, her son, themselves, or neighbors.

The police initially claimed to have found police uniforms in the home, but later revised that to portions of a police uniform, later revising that to a baseball cap with a “Border Patrol” logo. Vanessa told the police that Jose was applying to become a Border Patrol agent. Such hats are freely available to the public.

The police also claimed to have found bullet-resistant vests, first in a closet and in a closed plastic storage box in the garage, but eventually released photos only of what appears to be a military issue, desert tan vest which may have been Jose’s issued vest in the Marine Corps.

They also announced that they found a checkbook, bank statements, a debit card, a .38 caliber handgun, other common items, and several other firearms. None of these are illegal and there is no evidence any were used in the commission of any crime.

From that day, police spokesmen and Sheriff Dupnik have painted Jose Guerena as the enforcer of a gang described as anything from a “mid-level” to a “large” drug organization. He is said to have been involved in the armed home-invasion robberies of other drug criminals, to be a killer for hire, to be a member of “the cartel,” to have been involved in human smuggling, and to have been involved in a double homicide. There is no known evidence to support any of these contentions. The double homicide was that of Manuel and Cynthia Orozco, who were apparently in some way related to the wife of Jose’s brother Alejandro. It remains unsolved, but Jose must present a tempting means of solving a difficult case. He fits the manufactured narrative, and he certainly can’t prove that he did not commit the crime.

If Jose Guerena really was such a dangerous criminal, the police apparently took no notice of it until after they shot and killed him and found no evidence in his home. The search warrant affidavit — which must justify all conditions and evidence for a search warrant — makes no mention of the deadly danger Jose supposedly posed.

The police do not request a no-knock warrant, standard procedure when facing a particularly dangerous entry or when the police fear the suspects will try to destroy evidence.

There was no use of flash-bang grenades — pyrotechnic devices that produce a deafening noise and very bright flash, disorienting suspects long enough for the police to subdue them — and the 54-second police-recorded video of the raid does not depict a team steeled to encounter imminent, deadly danger.

Representatives from the involved police agencies and the Pima County Prosecutor’s Office conducted an investigation of the Guerena shooting. They found themselves blameless. Sheriff Dupnik claimed that his SWAT team is among the best in the nation, and that their leaders are nationally recognized. Sheriff Dupnik asserted that despite being a hardened cartel killer, the only reason Jose did not shoot at the SWAT officers is that he could not disengage the safety of his AR-15. That a combat veteran of the Marines, who if alive could recite the serial number of his Marine issued AR-type rifle, could not manipulate the safety of his own rifle is, to say the least, questionable.

Dupnik also asserted that Jose brought his death upon himself. Again, odd behavior for a man working 12-hour shifts in a copper mine, awakened out of a sound sleep by the panicked cries of his wife.

Five months after the raid, no arrests have been made. Sheriff Dupnik claimed this is because of the ongoing homicide investigation, which is “much bigger.” A sampling of Dupnik’s statements:

We could go out and make some arrests today, and we could’ve made some arrests some time ago, but we have two different investigations going on and the homicide is a priority, and we don’t want to turn off the flow of certain information.

This is extremely complicated and we need to be extremely careful about how we deal with certain issues.

The drug case is very complicated because there are so many people involved.

Sheriff Dupnik has also said that it might take “thousands of hours” of additional work before any arrests are made.

Vanessa Guerena has filed a $20 million dollar civil suit, which is progressing through the courts.

Some might be tempted to believe the Guerena case to be an argument for the abolition of police SWAT teams. This is an issue I addressed in a June 8 article for PJMedia. Police SWAT teams do have their place, but must be properly, and carefully, employed.

Regardless of the hardened cartel killer the police would have us believe Jose Guerena was in death, their own statements indicate he was quite the opposite. The police have indicated they knew Jose’s habits and schedule. There is no reason several officers could not have approached him on the way home from work, at a 7-11 he routinely visited for coffee, at his own mailbox, or at a multitude of other tactically advantageous places. A search could have been quickly and easily arranged and Jose Guerena would be alive today, working long shifts in a copper mine, building a life for his family.

Regardless of the outcome of the civil suit, there are a few people who know what actually happened in the Guerena home that morning: the officers. Hopefully, they will find that knowledge to be a heavy burden in the years to come, for if they do not, that fact alone reveals a very great deal about their fitness to serve as police officers and their humanity. Vanessa Guerena may well become a wealthy young woman, but I suspect that she and her sons would be happier to have never had a visit from the Pima County SWAT team and to simply have Jose back.

One of the greatest tragedies is this: even if the police do discover convincing evidence of criminal involvement in this case, who is going to believe them?

(A complete archive of my articles with in-depth analysis of the Guerena shooting is available at Confederate Yankee.)

Mike McDaniel is a former police officer, detective, and SWAT operator, and is now a high school English teacher. He blogs here.
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