On Wednesday during the Vanguard radio show, we spoke with Michael Risher, a staff attorney with the ACLU of Northern California. He raised troubling questions about the warrant itself.
“The warrant itself and the affidavit in support of the warrant is extremely unusual. The whole purpose for the police to get a search warrant to invade a private house–which of course is a very significant invasion of privacy–is to collect evidence to aid in the prosecution. The affidavit is suppose to make clear that they are getting this warrant because they’re arguing that Mr. Gutierrez is committing a crime. Specifically assaulting a police officer on behalf of a gang. But there can’t be any prosecution of Mr. Gutierrez because he was unfortunately shot and killed. So there’s really no reason they should be invading somebody’s house in aid of a prosecution here–so I can’t see what proper use of this evidence would be.
Even if Mr. Gutierrez were still alive there’s really no reason in this warrant/ affidavit to serve this particular house. They say they want to find evidence that he was in a gang and they claim that that’s relevant to the crime of assaulting a police officer in furtherance of gang activity.”
As many suggested–why would the police have any reason to take out a search warrant at all given that the individual is deceased, there is no crime here per say because there will be no prosecution of this individual.
It appears then, that the only reason that this request is being made is so that law enforcement which includes the investigatory agency, the Woodland Police Department, can establish in their investigation that Mr. Gutierrez was conducting himself in the furtherance of gang activities when he fled undercover gang taskforce officers and then allegedly attacked them with a knife for the benefit of the gang.
If we examine the affidavit itself, the evidence for this is sketchy at best and delves quickly into the bizarre.
According to the affidavit, law enforcement’s description of the incident is as follows:
Upon contacting Navarro and identifying themselves as Deputy Sheriffs, Navarro ran from the deputies. The deputies pursued Navarro, catching up to him approximately 200′ from the original location, Navarro turned towards one of the deputies (Deputy Sgt Dale Johnson) and produced a knife. Navarro then swung the knife in his right hand toward Sgt Johnsons mid section. Sgt Johnson estimated that he was approximately three feet from Navarro, took evasive action and jutted his midsection away from the path of the knife. The other Deputy (Deputy Oviedo), fearing that his partners life was in danger, fired two shots from his service weapon at the suspect to stop the assault. Sgt Johnson also drew his service weapon and fired four shots to stop the assault. Navarro was fatally struck by one of the rounds through his right scapular area.
From my standpoint, one of the key and unresolved questions is the extent to which Mr. Gutierrez identified in this affidavit as Luis Gutierrez Navarro, understood that the people contacting him were law enforcement officers rather than gang members themselves–as they were wearing gang attire in their capacity as undercover officers.
Along the same lines, why were they contacting Mr. Gutierrez to begin with. What was he doing at 2:00 in the afternoon walking home from the DMV to warrant any kind of contact.
As Mr. Risher points out:
“The affidavit makes it clear that the police initiated this tragic encounter by approaching Mr. Gutierrez. There’s nothing there to suggest he was out to assault a police officer. According to the affidavit he just reacted very badly when he was approached by them, then ran, and turned and attacked them. That’s what their affidavit says.”
There have emerged two justifications for the shooting. First, he is according to police a gang member. And second he was on drugs. Neither of these explanations have so far gone that far in explaining the situation.
Mr. Risher argued that even if Mr. Gutierrez was a gang member, there is no probable cause to believe that the warrant would turn up relevant evidence to aid in anything that he could be charged with.
“So there’s nothing to suggest that his assault on these officers has anything to do with him being in a gang–even if he was a gang member. The constitution of the United States and the State of California say that you can’t issue a warrant without probable cause–there’s simply no probable cause to believe this warrant would turn up relevant evidence to anything that he could have been charged with.”
And the evidence cited in the warrant to support him being in a gang, is sketchy at best and at times bizarre.
First, they identified tattoos as being consistent with the Sureno Criminal Street gang.
“Sgt. Davis reviewed the pictures of Luis Navarro’s tattoos consisting of a single dot on his right index finger, a single dot on his left pinky finger, a single dot on his left ring finger, and a single dot on his left middle finger. Sgt. Davis told me that based on his training and experience, it is his opinion that the dot tattoos consisting of a single dot on one hand and a three dots on the other represent the number “13” which is a common symbol used by the Sureno Criminal Street Gang.”
Mr. Risher questioned the validity of those tattoos as indicators of his gang activity.
“And with the tattoos–I have no idea what these tattoos are, I haven’t seen any photographs–but if you get tattoos when you’re a kid they stay with you for life. So although they had evidence that at some point he was in a gang, it doesn’t in anyway show that he now in 2009 is in a gang.”
Moreover, he was concerned about the use of a two year old traffic stop with an alleged gang member as evidence.
According to the affidavit:
On 5/6/07, Woodland Police Officer Ben Christiansen completed a Field Identification card listing Luis G. Navarro, with a date of birth of __ and CDL# of __. Officer Christiansen noted that Luis Navarro was a passenger in a vehicle stop with Luis Santillan and noted that Luis Navarro was with a known Sureno Gang member (Santillan). On 5/5/09, Woodland Police Sgt. Tom Davis confirmed that Luis Santillan was listed in the police records system as a validated Sureno Gang member.”
For Mr. Risher this is almost absurd evidence.
“If you look at the evidence that they’re trying to use to show that he’s in a gang it’s really incredibly attenuated. They say two years before this incident he was in a car with a single gang member and he has dots tattooed on his fingers, which they say is a sign of gang membership. The fact that somebody was in a car with a gang member two years ago is absolutely worthless to show that he is currently in a gang.”
The affidavit goes on to argue that Mr. Gutierrez is a member of the Sureno criminal street gang based on his tattoos and actions. It goes on to state:
“It is a known fact that Sureno street gang members have a dislike for law enforcement, and have killed and or assaulted law enforcement officers while engaged in the performance of their duties.”
It is not clear what relevance this has to this particular situation, but there is more. The affidavit goes on to mention a completely unrelated incident at a state prison where two Surreno Gang members attacked four correctional officers with large knives.
“The affidavit goes on to talk about an assault at the state prison by two people that as far as anyone can tell have absolutely nothing to do with this case. The affidavit as I said seems really just thrown together trying to support the search of a house without any good reason based on really a very strange thought pattern that somehow this fellow that the police are saying was under the influence and just reacted badly when approached by the police, must have had some prior plan of attacking the police. It just doesn’t make any sense.”
And yet, the warrant was in fact served which means that a judge actually had to approve it.
“It’s difficult to say just looking at this affidavit whether the judge had any concerns, whether this was presented on a very rushed basis. In general we want the police to go get a warrant before they conduct a search. But we also hope that they will do that in good faith. It’s impossible to tell what happened here.”
To me, if you add all of this up, it appears that the reason that this warrant was requested was to demonstrate that Mr. Gutierrez was some sort of gang member and therefore provide a defense to the police in their investigation and possible civil suit. According to several, this motivation for obtaining a warrant after the death of Mr. Gutierrez would be completely inappropriate.
Mr. Risher agree.
“This really raises the inference that the reason they are doing this is that they will try to collect evidence that shows he was a bad guy and try to use that in disciplinary proceedings or use that in a civil suit to avoid responsibility. That’s extremely troubling and I certainly wouldn’t want to say that that’s what’s going on here without knowing a whole lot more. But I hope that we don’t see that coming up, their using what they’ve got from the search in that type of, really improper way.”
There seems very little evidence here that Mr. Gutierrez assaulted the gang taskforce members due to the fact that he was attempting to further gang activity.
Perhaps understanding that this case is weak on gang membership evidence alone, the police have employed the autopsy report that purportedly shows a high level of methamphetamine in Mr. Gutierrez’s blood.
The argument therefore is that Mr. Gutierrez had a level of meth in his system that would make him have violent tendencies. But his initial encounter with the police was to flee not attack them. Moreover, the only point in time that he is alleged to have attacked them is after they caught up to him on the pursuit.
“Navarro ran from the deputies. The deputies pursued Navarro, catching up to him approximately 200′ from the original location, Navarro turned towards one of the deputies (Deputy Sgt Dale Johnson) and produced a knife. Navarro then swung the knife in his right hand toward Sgt Johnsons mid section.”
Law enforcement argues that this attack is symptomatic of an individual who is on meth, but it seems equally likely that they are symptomatic of an individual who believes he is defending himself from an attacker. That is why the key question is still at what point was he credibly made aware that his pursuers were in fact police officer. And them simply stating that they were such, is probably not convincing evidence in his mind.
Keep in mind, there are likely witnesses to Mr. Gutierrez’s state of mind. He spent at least one hour in the DMV where he took tests to obtain a new driver’s license. He successfully received his new license in the mail two days latter.
This is not an incidental fact. It suggests that contrary to the portrayal of out of control and paranoid behavior, that Mr. Gutierrez was lucid and able to demonstrate sufficient proficiency to get a driver’s license.
Once again this appears to raise key questions that need to be reconciled. But to me there is a plausible alternative explanation for what happened. Mr. Gutierrez went to the DMV, took his driver’s test, passed it, and began to walk home on Gum Ave. He was then approached by undercover officers who either failed to identify him or failed to do so credibly. Believing they were in fact gang members as they were dressed in gang attire and driving in low-riding cars, he fled on foot. When they caught up to him, he thought he was defending himself. He pulled out his four-inch knife, and instead of pursuing alternative means of subduing him, they fatally shot him in the back of the neck and in fact fired six shots in total.
I am not saying it happened that way, I was not there. But for those who believe there is only one way that this incident transpired, allow yourself just a moment of doubt.
This is exactly why we need a full investigation by an independent agency. I think the authorities in Woodland understand that as well by now. But my concern is a public release of the initial report may taint future investigative efforts.