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

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.