By William Breathes
By William Breathes
By Patricia Calhoun
By Michael Roberts
By Patricia Calhoun
By Michael Roberts
By Patricia Calhoun
By Michael Roberts
It was all over in three minutes.
At 1:47 p.m. on September 29, 1999, a Denver SWAT team, acting on information contained in a fatally flawed search warrant, burst through the front door of 3738 High Street. At 1:50 p.m., Ismael Mena lay dead on the floor of his bedroom, his arms, face and chest ripped by eight police bullets.
The first official police act in response to the shooting was to bag Mena's hands in order to preserve any gunpowder residue from the Burgo .22 revolver that officers say Mena pointed at them after they kicked open his bedroom door. The second official action was to set about getting another search warrant for the house, this time to secure evidence related to the shooting.
The warrant that brought the SWAT team to 3738 High in the first place had been requested by neighborhood police officer Joseph Bini, who claimed to have sent an informant into the house eight days earlier to purchase $20 worth of crack cocaine. The statements Bini made in a sworn affidavit to obtain that warrant would eventually lead to a charge of perjury against him; no drugs were found at the house where Mena rented a room, and officials now acknowledge that the raid targeted the wrong address. But the second warrant, which offers a version of the shooting as it was presented to homicide investigators minutes after the event, has its share of problems, too.
In his supporting affidavit, Detective Dave Neil states: "After the entrance door was forced open, officers...moved towards a bedroom located on the first floor of this residence, where they were confronted by the suspect, identity unknown at this time, who was kneeling on the floor, described as a three-point stance, and pointing a pistol at the officers. The threatened officers began yelling 'police' and 'policia' at the suspect and ordered him to lower his weapon, which the suspect refused to comply to.
"The suspect continued pointing a pistol at the Metro SWAT officers who eventually felt that their lives and/or the lives of other occupants of the home...were in danger and fired on the suspect. The suspect was struck by bullets from the Metro SWAT officers and he fell to the floor."
Neil's account, which he presents as "facts" related to him by another detective, places Mena on the first floor rather than in his bedroom on the second floor. It has him crouching and pointing his weapon at SWAT officers, but there is no mention of his firing upon them. By the time Jefferson County District Attorney Dave Thomas released the results of his investigation into the shooting, more than four months later, those facts had changed significantly.
According to Thomas's report, Mena was standing on his bed when his door was kicked open. Seeing the gun in his hand, the officers retreated, but Mena advanced on them, using the door as a shield. During the standoff, different officers claimed to have heard a "pop" from the room or seen a muzzle flash from the revolver. Subsequent examination showed that the gun had been fired three times, and two slugs were recovered from the hallway and stairwell outside Mena's room.
"From a legal perspective, whether Mr. Mena fired first is not significant," Thomas told reporters at a press conference earlier this month. The fact that Mena had pointed a gun at the officers -- and presumably fired it, according to the results of the gunshot residue tests on his hands -- made his death a justifiable use of deadly physical force.
Yet the contradictions between what's on paper and what actually went down at 3738 High last fall can't be explained away that easily. Although Thomas's probe ended with no charges being filed against anyone except Bini, an FBI investigation into the shooting continues, providing fodder for talk-radio shows, police critics and conspiracy theorists everywhere. Mena's family and their supporters have also asked pointed questions: about why Thomas wasn't appointed as a special prosecutor to investigate the case until early December, shortly after a KCNC-TV report revealed that officers may have hit the wrong house; about the complaint by a District Two police officer that she'd been pressured by superiors to fabricate reports about previous police calls involving Mena's residence, a complaint that's now the subject of an internal-affairs investigation; and about the untraceable nature of the Burgo .22 found in Mena's hand.
"The stories just don't add up," says LeRoy Lemos, a community activist who's become the point man for the Justice for Mena Committee. "What happened to the three-point stance? How hard is it to put a gun in a dead man's hand and fire it off?"
Loose talk about drop guns and coverups rankles city officials, who moved into damage-control mode with surprising alacrity. Mayor Wellington Webb has promised a review of the city's policy concerning no-knock warrants and hurled a few thunderbolts at the police department. After surviving the teargassing of party-animal football fans, a police thumping of drug suspects captured on tape by a TV crew, internecine sniping and other embarrassments, Denver police chief Tom Sanchez suddenly finds himself relieved of duty. And in marked contrast to the city's foot-dragging, see-you-in-court stance in other police-shooting litigation, Webb has instructed the Denver City Attorney's Office "to give all matters involving claims made by the Mena family the highest priority."
Those efforts may not be enough, however. Even if you accept Thomas's verdict that the shooting was a clean one, that doesn't erase the image of police officers busting into Mena's room, confronting the frightened, 45-year-old Mexican national -- who was trying to catch a few hours of sleep before heading off to a bottling plant to earn money for his large family in Jalisco -- and killing him. The case has driven a wedge of fear and distrust between police and the public that won't be easily overcome.
Mayor Webb, of course, sees it differently. At a press conference expressing his own satisfaction with the Thomas report, he noted: "If Mr. Mena didn't have a gun and wasn't pointing it at police officers, he'd be alive today."
"If police hadn't gotten the wrong house, Mena would be alive," counters Lemos. "No matter what the misconduct is, the police are always exonerated."
The coroner found no drugs in Ismael Mena's system, but he is just as much a casualty of the drug war as any smackhead who's overdosed on a poorly cut shipment. The justification for his death comes down to nothing more than a $20 crack buy that took place behind the house next door. That's the way the war is waged in Denver, where the campaign against street-level dealing involves high risk and meager returns. Yet that hasn't stopped police and prosecutors from relying more and more heavily on the principal weapons in their drug-fighting arsenal: no-knock warrants and the faceless army of confidential informants that goes with them.
Webb's decision to appoint a panel to review the no-knock warrant process may be one of the few encouraging developments to emerge from the recent spinfest over Mena's death. The Denver Police Department's use of no-knocks has escalated dramatically in recent years, with little judicial review of their effectiveness, dangers to bystanders and cops alike, or even basic veracity. In fact, the process of obtaining them has become so routine that it's hard to credit the notion that the peculiarities of Bini's warrant for 3738 High are more the exception than the rule.
"We hear about the people who get caught, but how many fruitless drug searches have there been?" asks Mark Silverstein, legal director of the Colorado ACLU. "It takes an innocent person getting killed for a police officer to be charged with committing perjury. Most criminal defense lawyers will tell you it happens every day in court, in minor cases and big cases."
For the perjury charge to stick in Bini's case, prosecutors will have to prove that the officer knowingly made false statements on his affidavit. Outright fraud probably isn't standard procedure in no-knock warrants, but all too often, the police discover the defects in a warrant after it's too late, when they've already battered down the door and found an appalling lack of dope or viable suspects.
Like the drug world it seeks to combat, the no-knock crusade is riddled with bad deals, unreliable suppliers and lies that can get somebody killed.
On average, Denver police enter a private residence unannounced every two or three days. County court judges approved 107 "immediate entry" warrants in 1997, 148 in 1998. Figures for 1999 have not yet been released, but estimates based on monthly totals indicate that SWAT officers executed between 160 and approximately 180 no-knock warrants last year.
The vast majority of no-knocks involve drug cases, usually crack cocaine. The criteria for obtaining a no-knock are supposed to be tougher than the requirements for an ordinary search warrant, but since the escalation of the drug war during the Reagan era, the U.S. Supreme Court has provided law enforcement with considerable latitude on search-and-seizure issues, creating what the ACLU's Silverstein describes as "the drug exception to the Fourth Amendment." These days, in order to get a no-knock, a police officer must first establish one of two conditions: a probability that there are weapons in the residence, putting officers at risk; or a probability that evidence will be destroyed while the cops are waiting for someone to open the door.
Typically, the evolution of a no-knock warrant begins with information in the form of an informant's tip or "anonymous complaints" that drugs are being sold out of a particular residence. The investigating officer then conducts a brief surveillance to determine whether there is excessive foot traffic or other "suspicious activity" surrounding the address. He then arranges for an informant -- who is almost never named in the warrant and may never have been in the house before -- to conduct a controlled buy.
The informant is searched in order to establish that he has no drugs on him, then handed some buy money and sent into the house. He returns with the dope, which is bagged as evidence and tested. If the stuff tests positive, then the officer is ready to write up his affidavit requesting a warrant, using the kind of boilerplate language that judges have come to expect in such matters.
In the warrants crafted by Denver's drug warriors, the requesting officer is alwaysan authority on the narcotics trade, someone who has "participated in numerous drug seizures and arrests" and "continues to keep himself informed on current trends in trafficking of controlled substances by continually talking with other law enforcement officers at the local, state and federal levels." The informant is always a "previously reliable informant" who, being a reformed (or struggling) dopehead himself, is "familiar with the color, texture, taste and packaging of controlled substances" -- unless, of course, the controlled buy was done by an undercover cop or a "first-time informant" nobody knows from Adam. In any event, the tips provided by the informant in the past have alwaysturned out to be good.
If there's no specific information about weapons in the house, then the officer may throw in a phrase to the effect that, in his vast drug-busting experience, "it is quite common to encounter firearms on the person or the premises where the warrant is to be executed." And he will almost certainly conclude that a no-knock is necessary "to prevent the destruction of any contraband."
Those are just about all the magic words you need to get a no-knock approved by a Denver judge and a deputy district attorney. "We're looking for probable cause, and that's really a minimal standard," says Denver District Attorney Bill Ritter. "It doesn't mean mathematical certainty, beyond a reasonable doubt, or clear and convincing evidence. All it means is more probable than not. We're looking for that level of proof."
Under current state law, Ritter's office isn't required to review a no-knock request unless the police or a judge asks it to. As a matter of policy, though, the Denver police are supposed to get a deputy DA's okay on every search warrant, no-knock or otherwise; if no prosecutor can be found, then the procedure is to seek a police supervisor's approval.
But many warrants bear no indication that anyone from the district attorney's office ever saw them. A Westword review of no-knock warrants issued over a five-month period in 1999 found that only about 50 percent of the warrants carry a deputy DA's signature. (The Bini warrant for 3738 High was approved by deputy DA Carlos Samora.) Ritter says that many of the warrants are read to his deputies over the phone, a circumstance that may not be noted on the warrant itself.
"Quite frankly, we don't know if there are occasions when they don't get ahold of us or they don't try," Ritter says.
The district attorney also has no statistics on how often his deputies turn down a warrant request. Ritter says it's in a prosecutor's interest to suggest changes or even send the cops back to gather more evidence to shore up a weak warrant, since his office may eventually have to defend the search in court, but he has no way to gauge the frequency with which no-knocks are challenged. "How often do we have hard conversations about there not being enough?" he asks, then answers, "I don't have a sense of that."
At Webb's request, Ritter, Denver Manager of Safety Butch Montoya and Denver County Court Judge Robert Patterson are now engaged in a review of the city's no-knock procedures. "We really have to make a public-policy decision in the city about whether we should raise the bar, because immediate-entry warrants are so invasive," Ritter says.
But the Justice for Mena Committee has called for a moratorium on no-knocks until more stringent standards are in place. "If there's a mentality among the judges or in the DA's office that they're a warrant-signing factory, then every citizen in this city should be afraid for their lives," says LeRoy Lemos. "Because the same thing that happened to Ismael Mena can happen to them."
Ritter insists his office's review of warrants amounts to more than rubber-stamp approval. With regard to weapons, for example, his office requires "specific" information. "You don't have to establish that they're David Koresh," he says, "but it should not be boilerplate, that 'it is known that drug traffickers keep weapons.' It doesn't take much -- a concealed-weapon arrest of one of the residents five months prior. An aggravated-robbery conviction. The issue is officer safety."
Few warrants, though, make any specific mention of weapons. In most cases, the officers are relying on the other requirement: contraband that can be easily destroyed. "You could almost always make the case," Ritter says, "because of the way drugs are dealt -- heroin in small balloons, cocaine in crack form, methamphetamine in small pills -- that it could be destroyed. If you say, 'In my experience, this is easily destructible' -- boom, you've met the legal test for a no-knock warrant."
The ACLU's Silverstein takes issue with that standard. In 1997, the Supreme Court ruled in a Wisconsin case that police officers can't justify no-knock raids solely because dealers tend to flush their stash down the toilet when the police show up. Each warrant must be supported by the "particular circumstances" of that case: "While drug investigation frequently does pose special risks to officer safety and the preservation of evidence, not every drug investigation will pose these risks to a substantial degree," Justice John Paul Stevens wrote.
"It's become easier and easier for law enforcement to get into people's homes, to dilute or abolish the protections of the Fourth Amendment," Silverstein says. "But you can't make the stereotypic conclusion that drugs equals weapons or that drugs equals destruction of evidence."
Yet Denver police officers make those conclusions all the time. Judges and district attorneys are in the position of relying on the officer's word that the "particular circumstances" justify a no-knock; frequently, the officer's version of events is based on information supplied by a confidential informant that neither the prosecutor nor the judge will ever meet. In all likelihood, the informant is a drug defendant himself, turned to the cause of righteousness by a generous offer of a break on his own case and possibly some modest compensation for his time. And since the targets of the raid are charged on the basis of evidence obtained with the search warrant rather than the previous controlled buy, the police are rarely compelled to produce their sources.
"The real issue is that the information is coming from someone who may not exist," says criminal defense attorney Phil Cherner. "In many cases, I think the police just make these things up."
Cherner recalls one case he defended in which every member of the household testified that no one had visited the address in the hours prior to the raid, contrary to the information on the no-knock warrant, which stated that an informant had recently witnessed drug sales there. Such a defense may have little hope if dope is actually found on the premises, however. In many cases, a defendant's best bet may be to turn informant as well, swelling the ranks of the confidentially reliable in what has become a war of shadows.
The credibility problems in no-knock cases have been compounded by the growing role of street-level police officers in the drug campaign. Increasingly, the warrants are being written by relatively inexperienced Weed and Seed officers or neighborhood cops like Bini rather than veterans assigned to the Vice and Drug Control Bureau. The shift is part of the police department's push for less centralization and more intensive community policing. Although Cherner is contemptuous of all no-knocks, regardless of who prepares them -- "The difference between the veteran cops and the young guys may be simply that the veterans are better liars," he says -- there tends to be a marked difference between the affidavits written by top vice cops and those put together by street officers.
The career narcotics officer's affidavits are usually more detailed and show a zest for legwork. Suspects are identified by multiple record checks, their rap sheets combed for prior weapons or assault charges. The targeted address is staked out and meticulously described, its ownership and occupants thoroughly researched. The informant's track record is prominently displayed. The narc swears to his facts with a kind of confidence approaching certainty, and the result is often a better haul and a case that might actually stand up in court.
By contrast, many of the street-officer warrants are as hinky as the small-time dealers they seek to nab. The targets are identified only by their street names -- Bubs or Silk or Black or Coolio -- and sometimes by no name at all. The suspect is confined to a wheelchair but "possibly armed with a knife at all times," or she is nine months pregnant or missing a hand, or he just happened to inform some anonymous source that he would "go to war with the police." The surveillance is perfunctory, the informant full of interesting but uncorroborated gossip. In some cases, the informant is considered so terribly reliable that no drug buy is considered necessary before seeking a no-knock raid.
The failure rate of no-knocks is depressingly high. For every search that turns up something impressive -- a cache of guns, a major meth lab, a wad of cash -- there are half a dozen others that yield minuscule quantities of dope or nothing at all. Inventory of items seized from a house on Humboldt Street last November: a Public Service bill, an ID card and "miscellaneous paperwork." Seized from a house on West 44th Avenue in December: a crack pipe, a spoon with suspected narcotic residue, a small baggie of marijuana, a "plastic baggie containing smaller ziplock baggies" and an inmate ID card. Seized at a house on Gaylord Street in October: drug paraphernalia and a cell phone. At a house on Downing Street, also in October: "nothing recovered."
The reasons for this litany of futility are not hard to figure out. They include the delay in obtaining warrants (some raids occur several weeks after the controlled buy), the transient nature of dealers and of crackhouses, the low-level status of most of the targets, the tendency of crackheads to consume any excess product they might have around the place, the exaggerations of informants -- and sometimes, quite simply, bad information.
Joe Bini had more experience with drug cases than many street officers, but he hit his share of dry holes, too. Last August he requested a no-knock warrant on a house where, a few months earlier, he and his partner had recovered $4,000 and a little pot. A SWAT raid at the same address in May had come up empty, though, and this time around was no different. Items taken: a VCR, hats, a compact disc player.
The following month produced an even worse bust. Items taken from 3738 High Street: miscellaneous papers, a gun box, a box of ammo -- and the life of Ismael Mena.
In December, acting on a fresh batch of anonymous tips, Denver police officers returned to the 3700 block of High Street to deal with a crackhouse -- the one directly to the north of Mena's place, the one they'd missed on that deadly afternoon in September. On December 7, an undercover cop walked up to the front window of 3742 High and bought $60 worth of crack from a twelve-year-old boy. A SWAT team hit the house that evening.
Seized in the raid were three baggies of crack, twenty dollars in cash and a crack pipe, which was reportedly found on the person of 24-year-old Robert Foster, the only adult on the premises. Foster pleaded guilty to a misdemeanor and received probation; the juvenile who'd sold the crack to the cop was bailed out of jail by his mother and dropped out of sight.
It was a pathetic outcome to the drug investigation Officer Bini had initiated four months earlier, but not an uncommon one. Even when no-knock raids turn up drugs, that doesn't necessarily mean anyone goes to jail. Westword attempted to track seven comparatively solid no-knock cases through the criminal justice system and found that only one of those cases, a heroin bust, actually led to charges being filed in district court. Others resulted in misdemeanor charges or no charges at all, possibly because the dope seized couldn't be linked to a particular suspect or because those caught in the raid decided to become informants themselves.
But should raids like the one on 3742 High be judged solely on how many convictions they yield? Denver's district attorney doesn't think so.
"This was a classic crackhouse," says Bill Ritter. "The adult had a crack pipe in his pocket, but there was concern about what a jury would do, because he wasn't tied to the trafficking -- he didn't engage in a sale, he was in a separate room, he'd lived there less than a month. Look, this isn't about a $60 sale, it's about a twelve-year-old dealing crack. The community should be stunned about that. In trying to make it result-focused, you could get to the point where you no longer care about a twelve-year-old doing crack."
The house at 3742 High is boarded up now, its customers shifted to the next block or maybe the one beyond that. At street level, the drug war is a form of nuisance abatement rather than a stream of big busts yielding kilo quantities and briefcases full of cash. But that's what the community wants, Ritter insists, and has demanded since 1993's so-called Summer of Violence.
"After the Summer of Violence, there was a conscious decision on the part of the city to do more street enforcement where narcotics are concerned," he says. "The street dealing was so rampant, the city said, that we can't put up with it. So in District Six, we had more officers doing undercover work and producing more cases in a given year than [vice and narcotics officers] had.
"Have we given too much authority and discretion to the street officer? But for that, we would not be able to engage in the level of enforcement we have."
Ritter has seen the drug cases handled by his office soar from 1,000 in 1993 to 2,300 in 1999, and Denver drug convictions have been a primary factor in the surge of the state's prison population over the past decade. Those convictions may represent only a fraction of the people caught up in the daily buys, raids and busts, but Ritter believes there are other effects of the street-level campaign that are more difficult to measure.
"During the time we've ratcheted up our efforts with respect to drugs, serious violent crime has decreased around 35 or 40 percent," he says. "Many of the places where the drug-enforcement effort has been strong are places where violent crime was at its peak in 1993 and has declined. Can I do a cause-and-effect? I don't know that I can. I just think our efforts have played some role in that."
But critics of Denver's drug war say the campaign has been a colossal and costly failure. They talk about the erosion of individual privacy rights, the haphazardness of who gets busted and who walks, the absurdity involved in staging no-knocks to come up with a day's supply of crack. Sending heavily armed SWAT teams into homes to rescue women and children from the horrors of the drug trade actually puts innocent people in jeopardy, they suggest. And police may be at the greatest risk of all -- not only of physical danger, but of more subtle hazards. Under pressure to come up with more and better busts, to coerce junkies into becoming informants, to stretch the facts of a warrant to get the job done, they are never more than a few paces away from corruption, scandal and ruin.
"The drug war is stupid," attorney Phil Cherner says. "It's a totally sordid situation. Chief Sanchez is just the latest victim of this charade."
In cop lingo, one way to compliment a fellow officer is to say that you've "gone through a few doors" together. "Going through doors" implies all of the excitement and danger of a no-knock, in which every officer relies on his partner to cover his back. It also carries the suggestion of a special bond, of secrets that must be protected; if something goes wrong on the job, your buddy is supposed to cover your butt, too.
Although the Mena case has become a flashpoint, the police department's credibility problem is hardly something new. Part of it has to do with the insular, cover-me culture within the department itself, which has surfaced in the Mena case in disturbing ways.
"People are outraged that there was so much coverup and lack of valid information from the police department from the beginning," says LeRoy Lemos. "Sanchez knew they were in the wrong house later that afternoon, yet they weren't forthcoming about that. They operate under a shroud of cover, put out misinformation and go on character-assassination rampages."
But deception -- and knowing when to keep your mouth shut -- are part of the cop culture, too. Ten years ago, a Denver police detective named Marco Vasquez was castigated by the Colorado Supreme Court for making a "deceitful promise" to a potential informant. Vasquez had promised to help the informant get a deal on a weapons charge in exchange for his cooperation, even though the detective already knew that the charge had been thrown out for lack of evidence.
In another line of work, such a public tongue-lashing by the state's highest court would be considered a liability, but Vasquez was promoted. He was Officer Bini's commander at the time of the Mena shooting. He has since been transferred to the patrol division downtown, in the wake of allegations by technician Sue Scott that she felt pressured by Vasquez and others to alter reports in the Mena case. (Officials have said that Vasquez's transfer is not a disciplinary action; Scott's complaint is still being investigated.)
If Mena hadn't been killed, would the public ever have known that police were at the wrong house that day? Most complaints concerning officer misconduct never make it out of the DPD's internal files, and there may be more of those complaints than even the department's strongest detractors could imagine.
Recently, Detective Betty J. Smith filed an affidavit in response to a civil lawsuit against the police department, stating that 7,515 complaints have been filed against Denver police officers since 1990 "involving allegations of sexual harassment, assault, sexual assault, battery or any sexual misconduct or crimes of violence." Smith ought to know: She works in the DPD's Civil Liability Bureau as a liaison to the chief.
Of those 7,515 complaints, Smith states, 1,859 have been sustained, meaning that the complaint was investigated and found to have factual support. It's an astounding figure; 1,859 sustained complaints over ten years works out to Denver cops committing assault, battery, sexual misconduct, harassment or "crimes of violence" on an average of once every other day. It's also considerably higher than the figures on police discipline cases released to the Denver Postthree years ago in response to a public-records request. And that raises even more troubling questions: Do you believe that the DPD complied with the law and provided accurate documents to the press in 1997, or do you believe the sworn affidavit of a police officer that was filed in federal court a few weeks ago?
The proliferation of street-level drug cases -- especially no-knock cases -- troubles attorneys already grappling with other instances of alleged police misconduct. In hindsight, it's easy to declare that the Bini warrant for 3738 High should not have been issued, but the ACLU's Silverstein thinks there were enough red flags in the warrant to alert police officials, the judge and the prosecutor that something was wrong even before the shooting occurred.
"In theory, the warrant process is supposed to protect you from a zealous officer who's caught up in the heat of pursuing crime," Silverstein says. "The officer's job is to serve up all the facts, and the judge has to decide if these facts are enough. It seems to me that this warrant cuts corners on probable cause. And if that's the case, then we need greater scrutiny of the procedure by which any warrant is issued, not just no-knocks."
LeRoy Lemos has an even more succinct opinion. "This," he says, "is a glaring example of bad police work."
Westword fellow Sean Neumann provided research assistance for this article.
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