INTEROFFICE MEMORANDUM

Transcription

1 INTEROFFICE MEMORANDUM DATE: January 29, 2016 PHONE: (909) FROM: TO: David M. Hidalgo Supervising Deputy District Attorney Central Juvenile Division Simon Umscheid Chief Deputy District Attorney Mary Ashley Assistant District Attorney SUBJECT: Officer Involved Shooting Death INVOLVED OFFICERS: Officer Mathew Collins, Sgt. Charles McCann, Sgt. Alan Kauhou INVOLVED AGENCY: Colton Police Department DECEASED PARTY: Michael Vincent Gutierrez, DOB: 11/24/1982 Residence: Transient INJURED PARTIES: Sgt. Charles Mc Mann DATE AND TIME OF INCIDENT: June 10, 2014, 0746 am. INVESTIGATING OFFICER: Detective Ed De La Torre, SBSO Homicide Detail SHERIFFS DR #: SHERIFFS H#: DA STAR #:

2 FACTUAL SUMMARY OF CASE On Tuesday June 10, 2014, at approximately 0743 hours, Colton Police Department received a 911 call of a man with a gun at a bus stop later determined to be the business of El Paso Los Angeles Limousine Express Incorporated Bus Terminal located at 23-- East Steel Road, Suite A in the City of Colton. The reporting party called 911 to report she had seen the suspect, later identified as Michael Vincent Gutierrez, inside the bus stop with a gun inside the waistband of his clothing. Gutierrez was described a male Hispanic wearing a black shirt, gray shorts, and was seated inside the bus depot. Colton Police Officers responded to the location and began searching for suspect Gutierrez. Sgt Charles McCann and Officer Matthew Collins were the first two officers on scene and contacted a male subject seating inside the bus terminal matching the description given by the reporting party. The subject was later identified as Michael Vincent Gutierrez. Based on the nature of the man with a gun 911 call, Sgt. McCann and Officer Collins attempted to conduct a pat down search of Gutierrez for weapons and ordered him to stand up, turn around, and place his hands above his head. Gutierrez initially complied, however as Officer Collins attempted to take control of Gutierrez, he immediately yanked his hands towards his waistband and began fighting the officers as he moved towards the front door of the business to escape. Sgt. McCann immediately grabbed Gutierrez from behind in a bear hug as Gutierrez wrapped his hand around the handle of a handgun that he tried to remove from his waistband. Sgt McCann restrained his hands preventing Gutierrez from removing the handgun that Sgt. McCann felt and determined to be a gun. Officer Collins also observed the object in Gutierrez s waistband and saw an outline of the back strap of a firearm under his clothing. Gutierrez exhibited extraordinary strength and was able to drag the officers outside the front door of the business into a covered outside patio. Almost simultaneously Sgt. McCann shouted gun as Gutierrez continued to struggle to reach for and remove his handgun. Gutierrez continued to fight with Sgt. McCann and Officer Collins when Sgt Alan Koahou arrived and also attempted to assist with restraining Gutierrez. Sgt Koahou struck Gutierrez several times in the face hoping to gain control of him. However his punches did not faze Gutierrez as Sgt McCann continued to yell at Gutierrez to, Let it go. 2

3 Sgt. Koahou could see Sgt McCann getting fatigued and losing his grip of Gutierrez and feared suspect Gutierrez would eventually break lose, remove his gun, and shoot and kill one or all of the officers. In fear of their lives, Sgt Koahou then instructed Officer Collins to shoot suspect Gutierrez. Officer Collins stepped back from the altercation, drew his service weapon, and shot Gutierrez in the head. Both Sgt McCann and Gutierrez fell to the ground. Sgt. Koahou heard the gun, however believed Gutierrez shot Sgt. McCann in the stomach. Fearing that Gutierrez was going to shoot again, Sgt Koahou fired a single shot at Gutierrez striking him in the head ending the deadly threat to officers. As Gutierrez and Sgt McCann fell to the ground, Gutierrez dropped a black semiautomatic hand gun he had his hand on that landed next to his body. The weapon Gutierrez possessed was a fully loaded semi-automatic Walther P38.9mm handgun. He also possessed 35 additional.9mm rounds of ammunition for the weapon in a black satchel in his shorts pocket. Gutierrez suffered two gunshot wounds to the head, succumbed to his injuries, and was pronounced dead at the scene by responding fire department paramedics. It was later learned that Gutierrez was a parolee at large for a prior conviction of PC Murder in 2002 and had an active outstanding no bail parole violation warrant for his arrest. During the altercation Sgt McCann sustained a laceration to the side of his head and an abrasion to his knee. Officer Collins and Sgt Koahou were not injured during the altercation. DECEASED VICTIM INFORMATION DECEASED VICTIM: Michael Vincent Gutierrez, DOB: 11/24/1982 DESCRIPTION: Hispanic Male, Age 31 Height: 5 6 Weight: 150-wearing gray shorts and black t-shirt CAUSE OF DEATH San Bernardino Coroner s Case Number: Autopsy report number: A HU Name: Michael Vincent Gutierrez, age 31, male Hispanic Time of Death: declared at 08:17 hrs. on June 10, 2014 Time of Autopsy: 0907 hours, June 10,

4 Place of autopsy: San Bernardino Sheriff s/county Coroner s Facility, performed by Doctor Brian C. Hutchins, MD, pathologist. Dr. Hutchins determined the cause of death to Michael Vincent Gutierrez to be two (2) gunshot wounds to the head, death within seconds. He described the manner of death as a Homicide. WEAPONS USED BY OFFICERS INVOLVED IN SHOOTING 1. Officer Matthew Collins: The duty weapon used by Officer Collins was a Glock Model Caliber semi-automatic handgun. There was a loaded magazine in the weapon containing 12 rounds. 2. Sgt Allen Koahou: The duty weapon used by Sgt Koahou was also a Glock Model caliber semi-automatic handgun. There was a loaded magazine in the service weapon containing 14 rounds. 3. Sgt Charles McCann: Sgt McCann did not discharge his service weapon during this incident. HI-TECH INVESTIGATION/SURVEILLANCE VIDEOS There were two (2) non-operational cameras at the business of El Paso-Los Angeles Limousine Express. No video data was extracted as a result. One surveillance cameras was located, viewed, and data extracted from the surveillance camera located at Royal Truck Stop depicting the S/E corner of El Paso-Los Angeles Limousine Express. The outside patio area where suspect Gutierrez was shot and killed was not depicted in the video. The video captured the arrival of all three officers involved in this incident however did not capture the struggle with Gutierrez or officer involved shooting. AUDIO REVIEW/OFFICER BELT RECORDINGS: There was no reference in the investigative report submitted in this matter on whether any of the involved officers had belt recordings of this incident. It does not appear that any of the officers involved wore body cameras during this incident. 4

5 INJURIES/WOUNDS TO OFFICERS INVOLVED: Sgt Charles McCann: Sgt Charles McCann sustained a 1-2 inch laceration to the side of his right cheek head area and a 1-2 inch abrasion to his left knee. PHOTOGRAPHS/DIAGRAMS/SKETCHES SUBMITTED Numerous photographs, diagrams, pictures, and sketches depicting the Royal Truck Stop, El Paso-Los Angeles Limousine Express Bus Stop/business, surrounding areas, and crime scene were submitted as part of this investigation of this incident. All are contained in the investigative binder of this case. WITNESS STATEMENTS: Witness #1: - RP caller Later identified as Vanesa N According to reports submitted in this matter, the RP 911 caller called 911 stating she had dropped her son and daughter off at the El Paso-Los Angeles Limousine Express bus station and saw a male subject already there at the station with a gun in his waistband of his shorts. The RP stated she was aware the subject was headed to Las Vegas and identified herself as Vanesa but then quickly changed her name. She advised the male suspect was wearing a black shirt and grey shorts (exactly what suspect Gutierrez was wearing). The RP called a second time stating the subject with the gun was seated inside the El Paso-Los Angeles Limousine Express bus terminal. Investigating officers re-contacted Vanessa N. on July 1, She then stated she was Michael Gutierrez s girlfriend. They had been dating for the past three (3) years and lived together. On the morning of the incident, Vanessa N. stated she dropped Gutierrez off at the bus terminal at approximately 0800 stating he was on his way to Las Vegas and was to return home on June 12, She adamantly denied being the 911 caller who initially identified herself as Vanesa even though the 911 call was traced back to her phone. She refused to cooperate further with investigating officers and the interview was terminated. 5

6 Witness #2: Josue R Witness #2 was working at a tire shop located next door to the shooting location, heard two gun shots, walked outside, and saw a man on the floor with a police officer kneeling next to him. He did not witness the shooting. Witness #3: Alberto C Witness #3 was also working next door in the tire shop, heard two loud noises, came out and did not see anyone until police started arriving. Witness #4: Monica P Witness #4 pulled into the parking lot of Goody s Restaurant located across the parking lot of the shooting location. She heard two gun shots and saw additional police officers begin to arrive at the incident location. Witness #5: Martha Z Witness #5 arrived at the bus station to drop off family members at the bus station and was also parked at Goody s Restaurant and observed three (3) police officers fighting with subject Gutierrez who was resisting and trying to escape. One officer was holding Gutierrez s arms to his side while he pulled away from the officers. She saw a third officer in front of Gutierrez who hit the suspect two (2) times. She then saw an officer separate from the group and heard two gun shots. She did not see who fired the shots and then saw responding paramedics tending to Gutierrez. Witness #6: Vanessa G Witness # 6 stated she was inside Goody s Restaurant to the front of the business and heard two gun shots. She did not witness the shooting but went outside and saw police officers surrounding a subject on the ground in front of the bus terminal. Witness #7: John M Witness #7 was also inside Goody s Restaurant and heard two (2) pops one right after the other, walked outside the front door, and saw police officers standing near a subject on the floor. He did not witness the shooting. Witness #8: Billy R Witness # 8 s statement mirrored the statement of Witness # 7 6

7 Witness #9: Louis M Witness # 9 stated he worked in the store at the Royal Truck Stop next to the shooting location advising the truck stop had video cameras on the premises but did not know if they covered the actual shooting location. He did not witness the shooting incident. Witness #10: Ofelia P Witness # 10 was waiting at the bus station for the business to open. She saw the subject later identified a Gutierrez waiting outside the bus terminal office. She did not observe anything else until officers started arriving and contacted her and another male subject next to her asking if they saw anyone carrying a weapon. The officers walked inside the bus terminal and then saw them exit holding Gutierrez by the arms. He tried to escape from the officers but the one officer would not let him raise his arms/hands that were down by his waistband as if he was trying to cover or not drop whatever item he had. She saw an officer strike Gutierrez in the face about four (4) times. She heard officers shouting to Gutierrez however could not understand what they were yelling to him as she only speaks Spanish. She saw a young officer shoot his gun. Witness #11: Monica E Witness #11 arrived at the bus terminal with her children at approximately 0730 hrs. They were headed to Las Vegas on the bus. She entered the bus terminal and saw the subject later identified as Gutierrez walk up to the counter and ask when the bus to Las Vegas was arriving. He then sat back down. She did not see Gutierrez holding any weapons and appeared calm. After purchasing tickets she walked to the nearby store and while inside, heard the sound of two (2) gunshots. She walked outside and saw Gutierrez on his back and police officers nearby. She did not witness the actual shooting. Witness # 11 was again contacted on June 23, 2014 stating she was not completely honest in her initial statement. She advised she did in fact see the struggle with officers and Gutierrez as she was parked in front of the bus station. She saw officers enter the terminal and a few minutes later. They then exited with Gutierrez as they held his arms. He struggled to get away by tensing his arms and bending over and pulling his body back. She heard officers order Gutierrez to stop several times however Gutierrez 7

8 continued to try to get away from officers. Another officer struck Gutierrez in the face. He then fell to the ground as she heard two gun shots but did not see who fired the weapons. She saw Gutierrez on the ground and medical personnel began to arrive. She did not see Gutierrez holding a gun. Witness #12: Israel A Witness #12 advised he was employed at El Paso-Los Angeles Limousine Express Company working at the bus terminal at the time of this incident. After he opened the doors to the business, Gutierrez entered and purchased a bus ticket to Las Vegas and then sat in the terminal. Another male also purchased a ticket to Las Vegas and sat next to Gutierrez to plug in his phone at an outlet. Witness # 12 was standing behind the front counter and observed two Colton Police cars drive up and park. Two officers entered the business and contacted Gutierrez who tried to run away and forced himself out the front door with the officers. Witness # 12 remained inside and did not observe what occurred outside however heard two guns shots. He saw the male seated next to Gutierrez leave and get on the bus to Las Vegas. Witness #13: Jose B Witness #13 was an employee at Goody s Restaurant next to the bus terminal. He observed the several marked Colton Police Units arrive in the parking lot. Minutes later he heard three (3) gunshots. He did not witness the actual shooting. Witness #14: Pedro C This witness was employed and working at Cruz Tire Shop located next door to the bus terminal. He was inside the tire shop and heard two sounds that he later learned were gun shots and saw several police officers at the bus depot but did not walk over to see what happened. OFFICER INTERVIEWS 1. Officer Matthew Collins Colton Police Department On June 10, 2014, Officer Matthew Collins from the Colton Police Department was interviewed by Det s. E Bachman and Patty Ruiz of the San Bernardino County Sheriff s Homicide Division. 8

9 Officer Collins advised that on June 10, 2014 at approximately 0730 hrs. he was working patrol for the Colton Police Department and was dispatched to a man with a gun call near Steel Street in the City of Colton. Dispatch further advised that a male Hispanic wearing gray shorts and armed with a black handgun had walked into the bus station. Sgt Charles McCann also responded to the location which was later determined to be El Paso Los Angeles Limousine Express Inc. located at 23-- East Steel Road, Suite A, Colton, Ca. Officer Collins followed Sgt Collins to the location and entered the business and observed a male Hispanic later identified as Gutierrez seated on a bench inside wearing gray shorts and a black shirt as described by the RP in the 911 call. Sgt McCann and Officer Collins approached Gutierrez and instructed him to stand up, face away from them, and put his hands on top of his head as the two officers prepared to conduct a pat down search for weapons based on the 911 call they received. As Officer Collins moved to take control of Gutierrez s hand, he immediately yanked his hands down toward the front of his waist band. Sgt McCann then grabbed Gutierrez around his arms preventing his arms from coming up. Gutierrez began to fight with Sgt McCann and Officer Collins and was able to force them outside onto a covered patio area of the business. As Sgt McCann wrestled with Gutierrez preventing him from removing his hands from his waist band, Officer Collins saw the outline of a black strap of a firearm through Gutierrez s shirt. Officer Collins struggled with Sgt McCann to keep Gutierrez from pulling the weapon from his waist band. He yelled at Gutierrez 2-3 times you are going to get shot if he continued. As they continued to struggle with Gutierrez, Sgt Koahou arrived and either he or Sgt McCann started punching Gutierrez in the face to subdue him but the strikes to his face were ineffective as Gutierrez continued to try to remove the gun from his waist band. Sgt McCann also yelled Gutierrez had a gun. Officer Collins believed and feared that Gutierrez was going to pull the gun and shoot him, Sgt McCann, and Sgt Koahou. Believing that no other force option was available, Officer Collins then let go of Gutierrez, stepped back, and fired one round into the right side of Gutierrez s head. Sgt McCann and Gutierrez fell to the ground. Officer Collins heard another shot that was determined to be from Sgt Kauhou who had fired a second shot into Gutierrez s head. Officer Collins then observed a large pool of blood forming around Gutierrez s head leading him to believe believed he was dead. 9

10 2. Sgt Allen Koahou Chino Police Department On June 10, 2014, Sgt Allen Koahou from the Colton Police Department was interviewed by Det s. J. Janowicz and Matthew Peterson from the San Bernardino County Sheriff s Department Homicide Division. Sgt Koahou advised that on the morning of June 10, 2014 at approximately 0730 hours, he was on patrol in the City of Colton when dispatch put out a man with a gun call at the location of 23-- East Steel Street in the City of Colton. Sgt Koahou was familiar with this address and knew it was at or near the Royal Truck Stop in the city of Colton. Sgt Koahou and other officers responded to the scene. The man with the gun was described as a male Hispanic wearing either gray shirt and black shorts or black shirt and gray shorts. Sgt Koahou arrived on scene and began checking several businesses in the immediate area but did not locate the subject. Sgt. Koahou was then directed to the bus terminal later determined to be El Paso Los Angeles Limousine Express Inc. He walked toward the business when he saw Sgt McCann and Officer Collins exit the front door to the terminal struggling with suspect Gutierrez. Sgt McCann was behind the suspect holding Gutierrez in a bear hug attempting to restrain the suspect. Sgt Koahou then observed Gutierrez reaching for a handgun underneath his clothing. Gutierrez took hold of the gun that Sgt Koahou could see from the outline as it pressed against the suspect s shirt. Sgt Koahou observed Gutierrez gripping the gun with both his hands attempting to pull the gun upward from his waist band. It was obvious to Sgt Koahou that Gutierrez wanted to pull the gun out and use it on him or the other officers. Gutierrez continued to struggle with Sgt McCann and Officer Collins. Sgt Koahou then struck Gutierrez several times in the face in an effort to subdue him. The strikes were ineffective as Gutierrez continued to struggle to pull the gun from his waist band. Sgt Koahou heard Sgt McCann yelling let it go, let the gun go however Gutierrez refused to comply. It was obvious to Sgt Koahou Gutierrez wanted to pull the gun to shoot them. As Gutierrez continued to struggle with Sgt McCann and Officer Collins, Sgt Koahou saw Sgt McCann becoming fatigued and appeared as though he was losing his grip on Gutierrez. Fearing that Gutierrez was going to break free, pull his gun and shoot them, Sgt Koahou yelled at Officer Collins to shoot the suspect after which Officer Collins stepped back and pulled his duty weapon. Sgt Koahou heard one gunshot and both Sgt 10

11 McCann and Gutierrez fell to the ground with Sgt McCann still holding Gutierrez around his arms. Sgt Koahou believed Gutierrez had shot Sgt McCann in the stomach. Fearing the subject was going to shoot again, Sgt Koahou removed his duty weapon and fired a shot into Gutierrez s head. Sgt McCann had a confused look on his face and Sgt Koahou believed he was hurt. He examined Sgt McCann and determined he was ok. He then called out shots fired and requested medical aid to respond. 3. Sgt Charles McCann Colton Police Department On June 10, 2014, Sgt Charles McCann was interviewed by Det s. M. Peterson and Joe Janowicz of the San Bernardino County Sherriff s Department Homicide Division. Sgt McCann advised he was the watch commander on the morning of this incident. He was at the Colton Police Department Dispatch Center when a 911 man with a gun call came in. He overheard the call and made his way to his patrol unit to respond to the location, later determined to be El Paso Los Angeles Limousine Express Inc. in the city of Colton. Officer Collins also responded and arrived at about the same time he did. Sgt. McCann and Officer Collins checked the surrounding area for the suspect but were unable to locate him. They were then directed to the bus terminal and entered the front lobby. Inside the lobby they saw a male Hispanic later identified as Vincent Michael Gutierrez seated in on a chair who matched the description given of the man with the gun. Officer Collins instructed Gutierrez to stand up and put his hands on top of his head, but Gutierrez refused to comply. Gutierrez looked toward the front door and then attempted to flee. Sgt McCann was able to grab Gutierrez and place him in a bear hug from behind. Gutierrez tried to reach both his hands towards his waistband, where Sgt McCann felt a hard object tucked inside. Sgt McCann recognized the object in Gutierrez s waistband as a handgun. Gutierrez continued to struggle and remove the gun. Sgt Koahou arrived on scene and struck Gutierrez several times in the face to subdue him however the strikes were ineffective. Sgt McCann continued to struggle to keep Gutierrez from removing his gun and feared Gutierrez would kill him Sgt Koahou, and Officer Collins if he gained control of his gun. Sgt McCann yelled gun, gun to Officer Collins and Sgt Koahou. As Sgt McCann continued to struggle with Gutierrez and attempt to control him, Sgt McCann heard one gun shot. Initially Sgt McCann believed Gutierrez shot himself with his own gun as they fell to the ground. He then saw Sgt Koahou shoot Gutierrez in the head. Sgt McCann then saw a 11

12 gun laying under Gutierrez s foot and saw thick blood begin pool around Gutierrez s head. Sgt McCann then reported the officer involved shooting and requested paramedics to respond. Sgt McCann stated Gutierrez was exhibiting extreme strength, not reacting to Sgt Koahou s strikes to subdue him, was desperate, would not stop, and there was no doubt Gutierrez was attempting to remove his gun to harm him and his fellow officers. RELEVANT CASE LAW AND STATUTES REASONABLE SUSPICION TO DETAIN: A temporary detention requires a reasonable suspicion that the person detained may be involved in criminal activity. Reasonable cause demands some minimum level of objective justification, but considerably less than is required for probable cause to arrest. (United States v. Sokolow (1989) 490 U.S. 1, 7; Terry v. Ohio (1968) 392 U.S. 1, 22.) [I]n order to justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity. (In re Tony C. (1978) 21 Cal.3d 888, 893; see also People v. Turner (2013) 219 Cal.App.4th 151, 160.) The reasonableness of the officer s suspicion is determined by what he or she knows before any search occurs. (People v. Turner, supra.) Reasonable cause must be supported by articulable facts rather than inchoate suspicion or hunch. (United States v. Sokolow, supra, 490 U.S. at p. 7.) In determining the validity of a detention, the court must consider the totality of the circumstances. (Id. at pp. 8-9; see also United States v. Arvizu (2002) 534 U.S. 266, ) It is immaterial that there might be a possible innocent explanation for the activity witnessed by the police officer. Even innocent behavior will frequently provide a showing of reasonable cause to detain. (United States v. Sokolow, supra, 490 U.S. at pp ) 12

13 AUTHORIZATION TO CONDUCT A PAT DOWN SEARCH FOR WEAPONS In Terry v. Ohio (1968) 392 U.S. 1, the United States Supreme Court held that a police officer may conduct a pat down search for weapons when the officer has reason to believe, based on the totality of the circumstances, that the suspect is armed and dangerous, regardless of whether probable cause to arrest exists. The officer need not be absolutely certain that the individual is armed, but must be able to articulate specific facts that, along with any rational inferences, lead to a reasonable suspicion the suspect is armed and dangerous. (See also People v. Rios (2011) 193 Cal.App.4th 584, 599.) These basic principles apply even during ordinary traffic stops. To justify a pat down of the driver or a passenger during a traffic stop..., just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous. (Arizona v. Johnson (2009) 555 U.S. 323, 327.) The issue is whether a reasonably prudent person in the same circumstances would be justified in the belief that his or her safety or that of others was in danger. (Terry v. Ohio, supra, 392 U.S. at pp. 21, 27.) The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence.... (Adams v. Williams (1972) 407 U.S. 143, 146.) So long as the officer is entitled to make a forcible stop, and has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose. (Ibid., fn. omitted.) When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, the officer may conduct a pat down search to determine whether the person is in fact carrying a weapon. [Citation.] The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence.... [Citation.] (Minnesota v. Dickerson (1993) 508 U.S. 366, 373.) A court reviewing a pat down search should not second-guess an officer s onthe-spot decision to frisk a suspect for officer safety. (People v. Wilson (1997) 59 Cal.App.4th 1053, 1063; distinguish People v. Garcia (2006) 145 Cal.App.4th 782 [pat down for identification improper].) The lives and safety of police officers weigh heavily in the balance of competing Fourth Amendment considerations. [Citations.] (People v. 13

14 Dickey (1994) 21 Cal.App.4th 952, 957.) The Fourth Amendment has never been interpreted to require that police officers take unnecessary risks in the performance of their duties. [Citation.] (Pennsylvania v. Mimms (1977) 434 U.S. 106, 110.) (People v. Collier (2008) 166 Cal.App.4th 1374, 1378.) PROBABLE CAUSE TO ARREST: Penal Code Section 835a provides: Any peace officer that has reasonable cause to believe that the person to be arrested has committed a public offense may use reasonable force to affect the arrest, to prevent escape or to overcome resistance. A peace officer who makes or attempts to make an arrest need not retreat or desist from his efforts by reason of the resistance or threatened resistance of the person being arrested; nor shall such officer be deemed an aggressor or lose his right to self-defense by the use of reasonable force to effect the arrest or to prevent escape or to overcome resistance. Penal Code Section 836 provides: A peace officer may arrest a person in obedience to a warrant or without a warrant whenever the officer has probable cause to believe that the person to be arrested has committed a public offense in the officer s presence, that the person has committed a felony although not in the officers presence, or the officer has probable cause to believe the person committed a felony whether or not a felony, in fact, has been committed. A warrantless custodial arrest of a person is reasonable under the Fourth Amendment whenever a police officer has probable cause to believe the person arrested has committed a criminal offense. United States v. Watson, (1976) 423 U.S. 411, Illinois v. Gates (1983) 462 U.S. 213; People v. Kraft (2000) 23 Cal.4th 978; People v. Moore (1975) 51 Cal.App.3d 610; People v. Braun (1973) 29 Cal.App.3d 949. The probable cause standard applies to all offenses, from felonies to very minor criminal offenses punishable only by a fine. Atwater v. City of Lago Vista (2001) 532 U.S. 318, People v. McKay (2002) 27 Cal.4th 601. To determine the constitutionality of a seizure [w]e must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the 14

15 importance of the governmental interests alleged to justify the intrusion. United States v. Place,(1983) 462 U.S. 696, 703; Delaware v. Prouse, (1979) 440 U.S. 648, 654; United States v. Martinez-Fuerte, (1976) 428 U.S We have described the balancing of competing interests as the key principle of the Fourth Amendment. Michigan v. Summers, (1981) 452 U.S Because one of the factors is the extent of the intrusion, it is plain that reasonableness depends on not only when a seizure is made, but also how it is carried out. United States v. Ortiz, (1975) 422 U.S. 891; Terry v. Ohio, (1968) 392 U.S.1. USE OF DEADLY FORCE BY A PEACE OFFICER Authorization of the use of Deadly Force is analyzed under the Fourth Amendment's objective reasonableness standard. Plumhoff v. Rickard (2014) 571 U. S., 134 S.Ct. 2012; Brosseau v. Haugen, (2004) 543 U.S. 194, This question is governed by the long standing principles enunciated in Tennessee v. Garner, (1985) 471 U.S. 1 and Graham v. Connor (1989) 490 U.S In these decisions, the US Supreme explained it is unreasonable for an officer to seize an unarmed, non-dangerous suspect by shooting him dead.. However, where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or others, it is not constitutionally unreasonable to prevent escape by using deadly force. (Tennessee V Garner; Plumhoff v. Rickard; Brosseau v. Haugen supra) Reasonableness is an objective analysis and must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. It is also highly deferential to the police officer's need to protect himself and others. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary. Graham, 490 U.S. at 396,. The question is whether the officer s actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. Id. at

16 The US Supreme Court in Graham set forth factors that should be considered in determining reasonableness: (1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether he is actively resisting arrest or attempting to evade arrest by flight. The question is whether the totality of the circumstances justifies a particular sort of... seizure. (See also Billington v. Smith, ( th Cir) 292 F.3d 1177, 1184.) The most important of these factors is the threat posed by the suspect. Smith v. City of Hemet, (9 th Cir. 2005) 394 F.3d 689. Price v. Sery (2008) 513 F.3d 962, further discussed the relationship between Garner and Graham and held that Both cases focused on the totality of the circumstances and the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. Id. at 967. Sery involved the use of deadly force by a city of Portland Police officer on a motorist. The Court ruled that the Portland Police Department policy on the use of deadly force was proper under both the Garner and Graham rulings. Thus, under Graham, the high court advised we must avoid substituting our personal notions of proper police procedure for the instantaneous decision of the officer at the scene. We must never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world that policemen face every day. What constitutes reasonable action may seem quite different to someone facing a possible assailant than to someone analyzing the question at leisure. (Smith v. Freland (6th Cir.1992) 954 F.2d 343, 347. The US Supreme Court's definition of reasonableness is therefore comparatively generous to the police in cases where potential danger, emergency conditions or other exigent circumstances are present. Roy v. Inhabitants of City of Lewiston (1st Cir.1994) 42 F.3d 691, 695, In effect, the Supreme Court intends to surround the police who make these on-the-spot choices in dangerous situations with a fairly wide zone of protection in close cases... (Ibid.) Thus, an officer may reasonably use deadly force when he or she confronts an armed suspect in close proximity whose actions indicate intent to attack. In these circumstances, the Courts cannot ask an officer to hold fire in order to ascertain whether the suspect will, in fact, injure or murder the 16

17 officer. Based on the above stated principles, where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. However where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to apprehend the suspect or prevent escape. (Tennessee v Garner; Graham V Conner supra.) California Law is also in accord. Penal Code section 195 provides: Homicide is excusable in the following cases: 1. Where committed by accident and misfortune or in doing any lawful act by lawful means with usual and ordinary caution and without any unlawful intent. Penal Code section 196 provides: A police officer who kills someone has committed a justifiable homicide if the homicide was necessarily committed in overcoming actual resistance to the execution of some legal process, or in the discharge of any other legal duty or when necessarily committed in retaking felons who have been rescued or who have escaped... and who are fleeing from justice or resisting such arrest. Penal Code section 197, subdivisions 1 and 4, provides: Homicide is also justifiable when committed by any person in any of the following cases: 1. When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person; or, 4. When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed, or in lawfully suppressing any riot, or in lawfully keeping and preserving the peace. Police may use deadly force to arrest only if the crime for which the arrest is sought 17

18 was a forcible and atrocious one which threatens death or serious bodily harm, or there is a substantial risk that the person whose arrest is sought will cause death or serious bodily harm if apprehension is delayed. Kortum v. Alkire,(1977) 69 Cal.App.3d 325, (see also People v. Rivera (1992) 8 Cal.App.4th 1000.) People v. Ceballos,(1974) 12 Cal.3d 470, ; Long Beach Police Officers Assn. v. Long Beach, (1976) 61 Cal.App.3d 364. RELEVANT CAL CRIM INSTRUCTIONS: (ANNOTATED) CAL CRIM INSTRUCTION 505 Relevant paragraphs JUSTIFIABLE HOMICIDE: SELF-DEFENSE OR DEFENSE OF ANOTHER A person is not guilty of Homicide if he/she was justified in killing/attempting to kill someone in self-defense or in the defense of another. A person acts in lawful selfdefense or defense of another if: 1. A person reasonably believed that he/she or another person was in imminent danger of being killed or suffering great bodily injury. 2. A person reasonably believed that the immediate use of deadly force was necessary to defend against that danger; AND 3. A person used no more force than was reasonably necessary to defend against that danger. Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. A person must have believed there was imminent danger of death or great bodily injury to himself/herself or someone else. A person s belief must have been reasonable and he/she must have acted only because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If a person used more force than was reasonable, the attempted killing or killing was not justified. USE NOTES: Imminent peril/ danger as used in these instructions, means that the peril must have existed or appeared to the person to have existed at the very time the fatal shot was fired. The peril must appear to the person as immediate and present and not prospective or even in the near future. An imminent peril is one that, 18

19 from appearances must be instantly dealt with. People v Aris (1989) 215 Cal App.3 rd 1178; People v Scroggins (1869) 37 Cal When deciding whether a person s beliefs were reasonable, all the circumstances as they were known to and appeared to the person should be considered and what a reasonable person in a similar situation with similar knowledge would have believed. If the person s beliefs were reasonable, the danger does not need to have actually existed. The person s belief that he/she or someone else was threatened may be reasonable even if he/she relied on information that was not true. However, the person must actually and reasonably have believed that the information was true. A person is not required to retreat. He or she is entitled to stand his or her ground and defend himself or another person and, if reasonably necessary, to pursue an assailant until the danger of death/great bodily injury has passed. This is so even if safety could have been achieved by retreating. Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. CAL CRIM 507 JUSTIFIABLE HOMICIDE: BY PUBLIC OFFICER Relevant Paragraphs A person is not guilty of Attempted Homicide or Homicide if he/ she attempted to kill/killed someone while acting as a public officer/ or obeying a public officer s command for aid and assistance. Such an attempted killing/killing is justified, and therefore not unlawful, if: 1. A person was a public officer/ or obeying a public officer s command for aid and assistance; 2. The attempted killing/killing was committed while taking back into custody a convicted felon [or felons] who had escaped from prison or confinement, arresting a person or persons charged with a felony who was resisting arrest or fleeing from justice, overcoming actual resistance to some legal process, or while performing any other legal duty. 3. The attempted killing/killing was necessary to accomplish one of those lawful purposes; AND 19

20 4. The person had probable cause to believe that another person posed a threat of death or great bodily injury, either to the person or to another person [or that the person killed had committed a forcible and atrocious crime and that crime threatened the person or others with death or great bodily injury. A person has probable cause to believe that someone poses a threat of death or great bodily injury when facts known to the person would persuade someone of reasonable caution that the other person is going to death or great bodily injury to another. An officer of a local Police Department is a public officer. Great Bodily Injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. ANALYSIS AND CONCLUSIONS: Use of Deadly Force by Officer Matthew Collins and Sgt Allen Koahou - Colton Police Department on June 10, 2014 An extensive and exhausted review of all of the facts and circumstances leading up to the use of deadly force in this matter involving Sgt. Charles McCann, Officer Matthew Collins, and Sgt Allen Koahou of the Colton Police Department has been completed. This analysis is predicated and governed by well-established principles of law enumerated above regarding a police officer s authority to detain a person suspected of criminal activity, to conduct a pat down search for weapons, to arrest a person based on probable cause, and the use of deadly force under the authority of both US Supreme Court precedent and California Law to effect that arrest using all reasonable force necessary, including deadly force. This analysis is further premised on the long standing principles of the right of self-defense and the defense of others and completed bearing in mind the broad discretion that must be afforded to police officers who face a tense situation having to make split second decisions under the circumstances presented them and that reasonableness must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight, (Graham,supra,). On the morning of June 10, 2014, On Tuesday June 10, 2014, at approximately 0743 hours, Colton Police Department received a 911 call of a man with a gun at a 20

21 bus stop later determined to be the business of El Paso Los Angeles Limousine Express Incorporated Bus Terminal located at 23-- East Steel Road, Suite A in the City of Colton. The reporting party called 911 to report she had seen the suspect, later identified as Michael Vincent Gutierrez, inside the bus terminal with a gun inside the waistband of his clothing. The RP further described Gutierrez as a male Hispanic wearing a black shirt, gray shorts, and was seated inside the bus depot. Colton Police Officers responded to the location and began searching for suspect Gutierrez. Sgt Charles McCann and Officer Matthew Collins were the first two officers on scene and contacted a male Hispanic subject seating inside the bus terminal matching the description given by the reporting party. Gutierrez was in fact wearing a black shirt and grey shorts. In this first instance both Officer Collins and Sgt McCann had reasonable cause to believe suspect Michael Vincent Gutierrez matched the description given and reasonable suspicion to believe he was in fact the subject of the 911 man with a gun call they received and were dispatched to and had a lawful right to detain him under relevant case law authority. Thereafter, and based on the information they possessed about Gutierrez being in possession of a gun and him matching the description given, Sgt. McCann and Officer Collins not only had a reasonable suspicion to detain him but also had a lawful right to conduct a pat down search of Gutierrez for weapons based on the information they possessed about Gutierrez in possession of a handgun. They then attempted to conduct a pat down search of Gutierrez. Officer Collins and Sgt McCann ordered Gutierrez to stand up, turn around, and place his hands above his head. Gutierrez initially complied, however, as Officer Collins attempted to take control of Gutierrez, he immediately yanked his hands down towards his waistband and began fighting the officers as he moved towards the front door of the business trying to escape. Sgt. McCann immediately grabbed Gutierrez from behind in a bear hug as Gutierrez wrapped his hand around an object in his waist band that he tried to remove. Sgt McCann restrained his hands preventing Gutierrez from removing the object that Sgt. McCann felt and determined to be a gun. Officer Collins also observed the object in Gutierrez s waistband and saw an outline of the back strap of a firearm concealed under his clothing. Gutierrez exhibited extraordinary strength and was able to drag the officers outside the front door of the business into a covered outside patio. Almost simultaneously Sgt. 21

22 McCann shouted gun as Gutierrez continued to struggle to reach for and remove his handgun. It was at this point that the encounter with Gutierrez that Officer Collins and Sgt McCann faced was elevated to probable cause to arrest based on Gutierrez carrying a concealed weapon (handgun) in his waistband. Gutierrez continued to fight with Sgt. McCann and Officer Collins when Sgt Alan Koahou arrived and also attempted to assist with restraining Gutierrez. Sgt Koahou struck Gutierrez several times in the face hoping to gain control of him. His punches did not faze Gutierrez. Sgt McCann continued to yell at Gutierrez to let it go. Sgt McCann attempted to alleviate the deadly threat Gutierrez posed to them by trying to remove the gun from his waist band. Officer Collins also yelled at Gutierrez telling him he was going to get shot if he didn t stop trying to remove the gun from his waist band. However Gutierrez refused to comply and continued to struggle to remove his gun from his waist band. Sgt. Koahou could see Sgt McCann getting fatigued and losing his grip of Gutierrez. He feared suspect Gutierrez would eventually break lose, remove his gun, and shoot and kill one or all of the officers. In objectively and reasonable fear of their lives and the imminent threat of death or great bodily injury Gutierrez posed to the officers if he removed his handgun, Sgt Koahou as a last resort instructed Officer Collins to shoot suspect Gutierrez to illuminate the deadly threat posed to them by Gutierrez s actions. Officer Collins stepped back from the altercation, drew his service weapon, and shot Gutierrez in the head. Both Sgt McCann and Gutierrez fell to the ground. Sgt Koahou heard one gunshot and saw both Sgt McCann and Gutierrez fell to the ground with Sgt McCann still holding Gutierrez around his arms. Sgt believed Gutierrez had shot Sgt McCann in the stomach. Fearing the subject was going to shoot again, Sgt Koahou removed his duty weapon and fired a shot into Gutierrez s head ending the deadly threat to officers. Given the imminent and deadly threat Officer Collins, Sgt. McCann, and Sgt Koahou faced as Gutierrez struggled violently to remove his gun from his waist band, it is clear that the use of deadly or lethal force by Officer Collins and Sgt Koahou was objectively reasonable and legally justified based on well-established principles of law enumerated by the United States Supreme Court governing the use of deadly force. The use of deadly force was justified and legal in self-defense and in the defense of others, and warranted 22

23 under the circumstances they encountered with Gutierrez on the morning of June 10, 2014 at the El Paso-Los Angeles Limousine Bus Terminal in the City of Colton. Based on an objective reasonable standard, it is clear that a reasonable person/officer faced with the same threat of death or great bodily injury as Officer Collins, Sgt. McCann, and Sgt Koahou faced, would have used deadly force under these circumstances. There is insufficient evidence under the facts examined in this incident to warrant a finding of any criminal liability against Officer Matthew Collins, Sgt. Charles McCann, and Sgt Allen Koahou who had a reasonable and objective belief they were acting in selfdefense and in the defense of other peace officers due to the very real and apparent imminent threat of death or great bodily injury they were confronted with during this incident. The shooting death of suspect Michael Vincent Gutierrez was a justifiable homicide committed by officers in the performance of their lawful duties. The use of deadly force under these circumstances was not unreasonable and legally justified. There is insufficient evidence to prove beyond a reasonable doubt that the use of deadly force by Officer Collins and Sgt. Koahou in this instance was not legally justified and not a justifiable homicide. David M. Hidalgo Supervising Deputy District Attorney Simon R. Umscheid Chief Deputy District Attorney Mary Ashley Assistant District Attorney 23