Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
PSPD IA 2011-10
A, ,Ck A Y C PERSONNEL INVESTIGATION 2011-010 OIS OFFICERS INVOLVED: Officer Luciano Colantuono Officer Chris Duthaler INVESTIGATING OFFICERS: Sergeant Mike Kovaleff Sergeant Matthew Beard Sergeant Bryan Keyes PSPD-004611 DATE: October 20, 2011 TO: Chief of Police Al Franz FROM: Acting Captain Dennis Graham SUBJECT: Officer Involved Shooting — 1104P-3653 Officers, Luciano Colantuono, Christopher Duthaler, and Police K-9 "Ike" Suspect Francisco Durazo Chief Franz: I reviewed this criminal investigation completed by Sergeant Anderson. During this incident, both officers and two police K-9s fought with the suspect. The suspect produced a handgun and fired on the officers. Officer Colantuono was shot and wounded by the suspect; Palm Springs K-9 Officer "Ike" was shot and killed by the suspect; and Officer Duthaler suffered an injury from the fight. All these actions were committed by the suspect during an attempt by him to flee from police after a legal contact and attempted detention. In an effort to protect themselves and the public, after being fired upon by the suspect both officers returned fire, killing him. I have read and reviewed Sergeant Anderson's application of the California Penal Code; his analysis of Reasonableness; Probable Cause for Officer Contact; Contact and Identification of Police Officers; Suspect's Resistance; Application of Force and applicable case law and Department Policy; Deployment of Deadly Force; Justification for Officers' Actions; California Jury Instructions; and all reports and audio tapes associated with the incident. I was present at the scene after the incident and I am familiar with the location. Furthermore, I attended the Riverside County Coroner's Review. I approve of this factual investigation and analysis, and believe it to be thorough and accurate. I concur with and approve Sergeant Anderson's forwarding this investigation to the Riverside County District Attorney's Office. Dennis Graham Acting Captain PSPD-004612 MEMORANDUM PALM SPRINGS PaLICE C�EPARTMENT, OFFICE ©F TH€ CHIEF ©F PQLICE '�' DATE: December 27, 2011 TO: Officer Christopher Duthaler FROM: Chief Al Franz SUBJECT: Internal Investigation: Officer Involved Shooting The Administrative Investigation into your actions of April 17, 2011 has been concluded. Based on the investigation I am closing this matter as follows: 1. Discharge of Firearm 1 Use of Deadly Force: Palm Springs Police Manual Sections 400 and 500, is Exonerated. ALF: rm understand that a copy of this investigation will be placed in myg-ersonnel file. Duthaler PSPD-004613 MEMORANDUM OFFICEPALM SPRINGS, POLICE DEPARTMENT, POLICE "913f5�RNG?Ql��'`� DATE: December 27, 2011 TO: Officer Luciano Colantuono FROM: Chief Al Franz SUBJECT: Internal Investigation. Officer Involved Shooting The Administrative Investigation into your actions of April 17, 2011 has been concluded. Based on the investigation I am closing this matter as follows: 1. Discharge of Firearm 1 Use of Deadly Force: Palm Springs Police Manual Sections 400 and 500, is Exonerated. AL NII Chief of Po i e ALF:rm understand PjAa,�Ccnnel 'copy of this investigation will be place�'ip m file. 0 // 30 " Ci/ Date PSPD-004614 DATE: October 15, 2011 TO: Chief of Police AI Franz FROM: Acting Captain Dennis Graham SUBJECT: Internal Affairs Investigation 2011-010 OIS Chief Franz: I reviewed this Internal Affairs Investigation conducted Sergeant Kovaleff, and reviewed by Lieutenant Fallon. Regarding the specific facts that led to Officer Colantuono's and Officer Duthaler's use of deadly force to defend themselves, I concur with Sergeant Kovaleff's findings. Both officers were acting within applicable statutes of Federal case law, California State law, and the policies of the Palm Springs Police Department. The officers are therefore EXONERATED as to any violations of Palm Springs Police Department Manual sections 400.00 and 400.01. Respectfully submitted, _r Dennis Graham Acting Captain PSPD-004615 DATE: 9/15/2011 TO: Chief Franz via COC FROM: Lt. Fallon Re: Attached Internal Affairs Investigation 2011-010 (CIS) Chief, Having overseen this Internal Affairs Investigation from the inception I have an excellent understanding of the pre -incident events, the specific facts that led up to the officers having to use deadly force to defend themselves and the follow up investigation to ensure our officers acted properly and in compliance with our policies. Having been on scene for many hours, personally reviewing every written document produced in connection with this incident, and evaluating all of the physical evidence and photographs documenting the events leading up to the use of deadly force, I concur with Sgt. Kovaleff's findings of exonerated as to any violations of PSPD Manual sections 400.00 (Use of Force) and 400.01 Sgt. Ko,valeff incorporated case law citings regarding our officers actions based upon legal requirements includ ing Officer Colantuono's initial justification for a stop, and the application of deadly force. Both officer's actions and applications of force were within legal parameters per P.C. 835a. Each officer's justifications as they relate to each distinct application of some level of force during this violent attempt to take the suspect into custody were reviewed by an in house use of force instructor who also concluded they were within policy. This extensive review and investigation has determined, our officers were acting within the applicable laws of the state of California and Federal case law for their actions and within the polices of the Palm Springs Police Department and therefore are EXONERATED. Respectfully, Lt. Fallon PSPD-004616 Sergeant Mike Kovaleff Sergeant Matthew Beard Sergeant Bryan Reyes PSPD-004617 COVER 'SHEET Page I TABLE OF CONTENTS Page 2 SUMMARY Pages 3-4 OFFICERS INVESTIGATED TED Page 5 COMPLAINANT Page 5 INVESTIGATING OFFICER(S) Page 5 WITNESS INFORMATION Pages 5-7 INVESTIGATIVE REPORT NARRATIVE Pages 8-I6 SERGEANT BEARD CRIME SCENE NARRATIVE, Pages 17-25 COMPLAINANT/WITNESS STATEMENTS Pages 25-34 RESULTS & FINDINGS Pages 35-64 ATTACHMENT INDEX Page 65 IN PSPD-004618 i/ o I On April 17`h, 2011, at approximately 0119 hours, Officer Colantuono and his K-9 partner "Ike" were working uniformed patrol in marked PSPD patrol KW9 car, a vehicle that will be identified as UNIT 24 within this report. Officer Colantuono conducted an occupied vehicle check of a green Geo Metro, (CAS a vehicle that will be identified as GEO within this report, parked outside of 211werona Road. The GEO was occupied by a female driver and a male Hispanic passenger (later identified as Francisco Gabriel DURAZO). Officer Colantuono identified himself as a police officer and told both occupants to stay inside of the vehicle. DURAZO did not comply with Officer Colantuono's orders and fled from the vehicle on foot. Officer Colantuono left his police unit and chased after DURAZO. The foot pursuit proceeded into a nearby backyard, eastbound across ,and into another backyard, back into a front yard, over a total of three fences or gates. Officer Colantuono broadcast this information via the radio and Officer Duthaler and his I-9 partner "Jax" began responding from a few blocks away. Officer Colantuono chased DURAZO westbound across two front yards, back to the front doors oft` 1 Verona Road. DURAZO forcibly broke into the front doors and Officer Colantuono chased after him. Officer Colant ono was involved in a physical fight with DURAZO inside of the residence, which was occupied by an unknown amount of other subjects. DURAZO fled back out the front doors to the front yard where the physical fight between DURAZO and Officer Colantuono continued. Officer Duthaler arrived on scene and attempted to assist Officer Colantuono in arresting DURAZO. Both officers verbally told DURAZO to stop resisting and attempted to gain control of DURAZO to no avail. Officer Duthaler deployed his K-9 partner "Jax" upon DURAZO. "Jax" bit DURAZO on an arm after being deployed. DURAZO lifted "Jax" from the ground and "Jax" released his bite. "Jax" continued to attempt to bite DURAZO while Officer Duthaler continued to attempt to gain control of DURAZO. Officer Colantuono deployed his K-9 partner "Ike" upon DURAZO, After a brief altercation between "Ike" and "Jax", "Ike" locked onto a bite on DURAZO' S left arm. DURAZO backed up with "Ike" still on him, towards the driver's door area of UNIT 24.. Both Officer Duthaler and Officer Colantuono heard the sound of a gunshot. Officer Duthaler looped up and saw DURAZO pointing a handgun in the direction of Officer Colantuono and saw DURAZO fire two times. Officer Colantuono heard a gunshot and saw a muzzle flash in his direction. DURAZO got into the driver's seat of UNIT 24. PSPD-004619 Fearing for their lives, both officers fired their handguns at DURAZO. Officer Duthaler fired a total of 133 rounds at DURAZO. Officer Colantuono fired a total of 5 rounds at DURAZO. DURAZO sustained 11 gunshot wounds and died in the driver's seat of UNIT 24. A revolver containing five spent shell casings was found on the ground outside of the patrol car, Officer Colantuono's K-9 partner "Ike" was shot one time during the incident and died at the scene. Officer Colantuono sustained a non -penetrating bullet wound to his right abdomen. The round struck his Kevlar vest prior to wounding him. Officer Duthaler sustained an injury to his right hand from physically fighting DURAZO. Officer Colantuono and Officer Duthaler were treated and released by DRMC medical personnel. They were transported to the Palm Springs Police Station. At approximately 0 13 3 hours, Sergeant Anderson requested that the Crimes Against Persons Unit (CAPS) respond to the scene, At approximately 0 142 hours, Lieutenant Don Fallon requested that the PSPD Critical Incident Investigations Team respond to the scene. As a member of the PSPD Critical Incident Investigation Team (CITT), I responded from an assignment in Indio and arrived on scene at 0217 hours. Sergeant Reyes and Sergeant Beard also responded to this incident to assist with the CUT Administrative Investigation. It was determined at the scene that Sergeant Beard would be responsible for the administrative crime scene investigation and that I would be responsible for the overall Administrative Investigation, pursuant to section 400.06 of the Palm Springs Police Department Policy Manual. PSPD-004620 Officer Luciano Colantuono 415397 Operations Division K-9 Officer/ Swing Shift Patrol "Ike" Assigned K-9 Officer Chris Duthaler 415293 Operations Division K-9 Officer/ Graveyard Shift Patrol "Tax." Assigned K-9 Not Applicable- Internal Shooting review Sergeant Mike Kovaleff Operations Division Patrol Sergeant Sergeant Matthew Beard Operations, Division Patrol Sergeant Sergeant Bryan Reyes Operations Division Patrol Sergeant LIMHO W-2 PSPD-004621 Mw rim, M EZ-11 W-7 W-8 Officer Steve Sanders 415690 Patrol Officer Palm ' * VO I' e Degartment Ple W-9 Officer William Hutchinson # 10884 Patrol Officer Palm Springs Police Department W-10 Officer Don Benstead 415627 Patrol Officer Palm Springs Police Department PSPD-004622 W-11 Officer Matt Crampton 415642 Patrol Officer Palm Springs Police Department There are numerous other additional witnesses identified in the criminal investigation (refer to attached crime reports). None of the additional witnesses' statements can provide information as to the officers' actions during this incident, or that would change our investigation findings in this investigation. PSPD-004623 At approximately 0217 hours, 1, Sergeant Kovaleff, arrived at the scene in the area of 2"-M'Verona Road. I subsequently met with Lieutenant Fallon and Sergeant Reyes. At approximately 0240 hours, Sergeant Beard arrived on scene. It was then deterinined that I would be the primary investigator in this administrative investigation and that Sergeant Beard would oversee and review the collection of evidence at the crime scene for this investigation. At approximately 0310 hours, Sergeant Troy Castillo, the on -duty patrol supervisor, provided both criminal and administrative investigators a briefing of the known facts surrounding this shooting incident, outlining the actions of the involved officers as well as responding officers. This briefing included the results of two public safety statements by Officers Colantuono and Officer Duthaler. I also learned that Officer Hutchinson had transported Officer Duthaler and his K-9 partner "Jax" to Officer Duthaler's home in Indio. The purpose of the transportation was to secure "Jax" at the residence prior to taking Officer Duthaler to DRMC to have a hand injury sustained in the incident evaluated by medical personnel. At approximately 0417 hours, I returned to the Palm Springs Police Station. At approximately 0537 hours, 1 observed Lab Technician Jamie Johnson take photographs of Officer Colantuono, which included overalls and midrange photographs of his body and injuries. Officer Colantuono sustained injuries to his right index finger, left ring finger, left little finger, both forearms, both shins, and a penetrating bullet wound to his right abdomen. Officer Colantuono's handgun, a.40 Caliber Glock Model 22, Serial Number has the capability of holding 15 rounds in the magazine and I round in the chamber, for a total of 16 rounds. His handgun was found with a fully loaded 15 round magazine in the magazine well without a round in the chamber. A Glock magazine was found at the scene that contained ten live .40 Caliber rounds. The ammunition was consistent with PSPD Department Issued .40 Caliber Ammunition. It was later determined during this investigation that the Glock magazine found at the scene was the magazine that had been inside of Officer Colantuono's handgun during this incident. At 0623 hours, I observed Lab Technician Jamie Johnson take photographs of Officer Duthaler, which included overalls and midrange photographs of his body, uniform, and injury. Officer Duthaler sustained an injury to his right hand that consisted of swelling, minor abrasions, and pain. Officer Duthaler's handgun, a .40 Caliber Sig Sauer Model P226, Serial Number has the capability of holding 12 rounds in the magazine and I round in the chamber, for a total of 13 rounds. His handgun was found with I round in the chamber and 11 rounds in the magazine found within the magazine well, which was consistent with leading full magazine into the empty handgun in the slide locked back position. PSPD-004624 He had one empty magazine on his gun belt and one fully loaded magazine on his gun belt that contained 12 rounds. The ammunition was consistent with PSPD Department Issued.40 Caliber Ammunition. Lab Technician Johnson photographed, recovered, and booked both Officer Colantuono and Officer Duthaler's complete duty belts. Johnson also processed both officers for Gunshot Residue by use of Gunshot Residue Kits. At approximately 0730 hours, I served both Officer Colantuono and Officer Duthaler with written notices (Garrity) that there would be a personnel investigation into this incident. See attachments I and 2.1 ordered each of them to not discuss the incident with anybody other than their representative or with criminal investigators involved in the matter. Officer Colantuono and Officer Duthaler were placed on Administrative Leave and were released from duty, by order of Police Chief Franz. Lab Technician Jamie Johnson inventoried the items removed from DURAZO'S clothing. I reviewed her supplemental report and learned that DURAZO possessed a digital scale, 5.8 grams of mari ' juana, 18.4 grams of methamphetamine packaged in 17 different bags, two cellphones, and $2,382.91 in US Currency on his person. Based on my training and experience and my review of the evidence collected from DURAZO, I believe that he possessed methamphetamine with the intent to sell. NECROPSY OF K-9 "IKE": On Sunday, April 17 1h , 2011, deceased K-9 "Ike" was transported from the crime scene to the VCA Desert Animal Hospital at 4299 E. Ramon Road, Palm Springs, California. Pat Long, DVM, conducted a necropsy of "Ike". Detective Studer attended the necropsy. I reviewed the necropsy report completed by Long and a supplemental report completed by Detective Studer. In reviewing the reports, "Ike" sustained a single gunshot wound that entered his left shoulder. The bullet proceeded to puncture both lungs and the aorta before exiting the area of the right shoulder. In reviewing Detective Studer's report, I noted that he believed the entry wound to be a close contact wound based on his observation of seeing, "'stippling in a tight ring around the bullet hole." See the Necropsy Report completed by Pat Long, DVM and Detective Studer's Supplemental Report for further details. PSPD-004625 AUTOPSY OF DURAZO: On Monday, April 18th, 2011, at approximately 0900 hours, I attended the autopsy of Francisco DURAZO at the Riverside County Coroner's Office in Perris, California. Detective Mike Studer and Lab Technician Jamie Johnson also attended the autopsy. The autopsy was performed by Chief Forensic Pathologist Mark A. Fajardo, M.D.. DURAZO sustained a total of the following eleven gunshot entry wounds: Wound Area Path of Projectile 1 Left Ear Left to Right 2 Left Bicep Left to Right 3 Left Bicep Left to Right 4 Left Bicep Left to Right 5 Left Bicep Left to Right 6 Left Bicep Left to Right 7 Anterior Left Flank Front to Back 8 Right Axillary Region Top to Bottom 9 Right Upper Chest Front to Back 10 Lower Mid Chest Front to Back 11 Left Knee Cap Front to Back 10 PSPD-004626 11 PSPD-004627 DURAZO also sustained a pair of paired lacerations to the left mid forearm area that were consistent with a dog bite. Dr. Fajardo also noted multiple scattered dicing -type lacerations and abrasions corresponding to several of the above described gunshot wounds that were consistent with the bullets traveling thru the windshield prior to striking DURAZO. OFFICERS' CRIMINAL INVESTIGATION INTERVIEWS: On Tuesday, April 19"', at approximately 1029 hours, Sergeant Reyes and I observed the interview of Officer Colantuono that was conducted by Sergeant Anderson and Detective Studer. The interview concluded at 1117 hours and was recorded both by video and audio. It was later transcribed by Detective Bureau Secretary Farrance. Refer to the attached tab marked Officer Colantuono's Criminal Interview for the complete transcript. On Tuesday, April 19th, at approximately 1233 hours, Sergeant Reyes and I observed the interview of Officer Duthaler that was conducted by Sergeant Anderson and Detective Studer. The interview concluded at 1334 hours and was recorded both by video and audio. It was later transcribed by Detective Bureau Secretary Bosler. Refer to the attached tab marked Officer Duthaler's Criminal Interview for the complete transcript. 12 PSPD-004628 On May 18'h, 2011 at approximately 1158 hours, Sergeant Beard and I conducted an administrative interview of Officer Colantuono at the Palm Springs Police Station. Officer Colantuono's LIEF Attorney, Kimberley Riley was present during the interview. I read Officer Colantuono his Miranda Rights from a form. Officer Colantuono indicated that he understood his rights and did not waive them. He signed the Miranda Rights form, see attachment 3. 1 subsequently read Officer Colantuono a Lybarger Advisement from a form, compelling him to provide a statement during the interview. He signed the form and was provided with a copy of the form, see attachment 4. There were two separate interviews of Officer Colantuono, the first from 115 8-1206 hours and the second from 1412-1423 hours. Officer Colantuono said that he has been working the same shift with the same days off (Sunday, Monday, Tuesday) on Swing Shift Patrol for the past two years with his K-9 partner ",Ike." He had, not consumed any alcoholic beverages prior to his shift or during work, He slept about five or six hours before returning to work from the prior shift. He felt rested at the time of the incident and was not sick or injured prior to the incident. He has been taking prescription medications for seizures since 2008. He was medically cleared by his doctor and by the City of Palm Springs to return to regular duty in 2008. He trained regularly with his assigned K-9 partner and with other K-9 officers. Officer Colantuono, had been at 2790 Verona Road approximately ten times during the past two to three months. On 4/17/11 he saw a vehicle that he knew was involved in a pursuit with an armed and dangerous suspect named Francisco DURAZO. He had information to believe that the registered owner of that vehicle had law enforcement contacts for narcotics offenses. Officer Colantuono reviewed the reports associated with the pursuit via his MDC and spoke to Officer Duthaler about the vehicle involved in the pursuit. He learned that the keys were in the vehicle that DURAZO had fled from. Based on this information, he stated in the interview, "I knew that the keys were stolen with the vehicle and usually if a car is stolen, it's reported stolen, the keys are rarely taken with them unless they're left inside the vehicle, at this time the keys weren't left inside the vehicle and it wasn't involved in a residential burglary, so it just raised my suspicion that you know usually a car doesn't get stolen with it's keys and I remember Officer Duthaler was also talking about there was a car seat in the trunk of the car and when questioned about it to the victim when she picked it up, she was saying nothing in that car was hers. So it just didn't make sense on why there was a child seat in the car and the keys were taken with the car, if she didn't know who had taken it." Officer Colantuono, watched a subject walk out of the house towards a car that had just parked. He said, "The car pulled up, lights turned off and then immediately after a subject walked out and went inside the car. At that point I figured there was some sort of maybe a transaction going on because of the time that it, that the, the sub, subject walked out, it was quick, 13 PSPD-004629 No one walked up to the door, everything was - - stayed inside the car. All the lights were off and it wasn't as though someone was picking them up and driving away, so I believed there was some sort of transaction that may be conspiring at that time." The entire interview was recorded via video and audio onto a CD-, see attachment 7. It was later transcribed by Detective Bureau Secretary Bosler. Refer to the attached tab marked Officer Colantuo-no's Administrative Interview for the complete transcript. On May 18'h, 2011 at approximately 1214 hours, Sergeant Beard and I conducted an administrative interview of Officer Duthaler at the Palm Springs Police Station. Officer Duthaler's LDF Attorney, Kimberley Riley was present during the interview. I read Officer Duthaler his Miranda Rights from a form, see attachment 5, Officer Duthaler indicated that he understood his rights and did not waive them. He signed the Miranda Rights form, I subsequently read Officer Duthaler a Lybarger Advisement from a form, compelling him to provide a statement during the interview. He signed the form and was provided a copy, see attachment 6. The interview lasted from 1214-1223 hours. Officer Duthaler has been the on same shift with the same days off (Sunday, Monday, Tuesday) on Graveyard Shift for the past five years. He had not consumed alcoholic beverages or drugs prior to or during the shift. He had six to seven hours of sleep prior the night before. He was not sick or injured prior to this incident. He trained regularly with his assigned K-9 partner and with other K-9 officers. The entire interview was recorded via video and audio onto a CD-R, see attachment 8. It was later transcribed by Detective Bureau Secretary Bosler. Refer to the attached tab marked Officer Duthaler's Administrative Interview for the complete transcript. In reviewing the criminal and administrative interviews of both Officer Colantuono and Officer Duthaler, both off cers,feared for their own lives and the lives of each other and both used lethal force to protect themselves and others. On June 2 d , 2011, at 1300 hours, I responded to the Riverside County Coroner's Office in Perris, CA. for the Coroner's Death Review of Francisco DURAZO. When a death occurs involving an inmate at a prison or county detention facility or when a person dies by the hands of law enforcement or in a situation with law enforcement involvement, an administrative investigation is immediately initiated by the Coroner. This investigation parallels the criminal investigations and is done to ensure that all facets of the death are looked at by an expert panel of professionals. These reviews are done regardless of the city or law enforcement agency involved. rn The Death Review was presented to the Sheriff by the Administrative Deputy Coroner Captain David Nordstrom, Chief Forensic Pathologist Mark Fajardo, and the Forensic Toxicologist Ola Bawardi. Members of the Grand Jury were also present during the Death Review. IV PSPD-004630 Amphetamines and Methamphetamines were detected in each of the sampled areas of DURAZO'S body. Forensic Toxicologist Ola Bawardi noted in her presentation that "DURAZO had above the normal amount of methaniphetamine that is unusually found during autopsies," The death of DURAZO was classified as being a result of a homicide. The cause of death was ruled as Multiple Gunshot Wounds. See Coroner's Investigation Report for further details. Coroner's File Number 2011-03400. i1111111;t c i r I AI I - awamm I reviewed Officer Colantuono's PSPD Firearms Proficiency Record. His records reflected that he has been using the same duty handgun used during this incident since February of 2007. His latest qualification score was a score of 292 out of 300 on 10/21/10. Based on the fact that Officer Colantuono's Glock Model 22, semi -automatic handgun was found with the slide forward, an empty chamber, and contained a fall magazine, I believe that Officer Colantuono's handgun magazine released for an unknown reason after five rounds were fired, causing the gun to cease fire because rounds were not feeding. I believe this caused Officer Colantuono to believe that he had emptied the magazine as a result of firing all of the rounds. As a result of the magazine releasing, the slide did not lock towards the rear, but returned forward. It appears that Officer Colantuono loaded a full magazine into the handgun without chambering a round. In speaking with Range Master Menley, he concurred that this would explain how Officer Colantuono's handgun was found with a loaded magazine without a round in the chamber. Based an the evidence recovered at the scene, DURAZO'S wounds, and Officer Colantuono's handgun capacity of 15 plus I round in the chamber, it appears that Officer Colantuono was carrying 14 rounds in his magazine with I round in the chamber. I reviewed Officer Duthaler's PSPD Firearms Proficiency Record. His records reflected that he has been using the handgun used during this incident since May of 2007. His latest qualification score was a score of 290 out of 300 on 12/17/2010. Based on the evidence, statements, DURAZO'S wounds, and Officer Duthaler's handgun capacity of 12 plus I round in the chamber, it appears that Officer Duthaler was carrying 12 rounds in his magazine with I round in the chamber. Officer Duthaler fired all 13 rounds from the handgun, loaded a full magazine of 12 rounds, which left the handgun with I round in the chamber and 11 rounds in the magazine. On 4/26/11, Range Master Menley conducted an armorer's technical inspection of Officer Colantuono's handgun and Officer Duthaler's handgun. The inspection revealed no unauthorized modifications or alterations to either handgun. 15 PSPD-004631 See the tab marked Firearms Reports for ftuther. Officer Colantuono's handgun was equipped with an operable Streamlight TLR-I flashlight without a laser. Officer Duthaler's handgun was equipped with an operable Strearnlight TLR-2 flashlight with a laser. The revolver that DU possessed and used during this incident is currently at DOJ for analysis. The expended bullet (Itern 15570-047) recovered from Officer Colantuono's person and an expended bullet (Item 15570-025) recovered at the scene, were processed at DOJ for analysis. On August 3 W h , 2011,1 received the DOJ Physical Evidence Examination Report. The report indicated that DURAZO'S revolver functioned properly during examination and test firing. The expended bullet (Item 15570-047) recovered from Officer Colantuono was identified as being fired from DURAZO'S revolver. The second expended bullet (Item 15570-025), which was recovered on the sidewalk across the street from 2790 Verona Road, was identified as a .40 Caliber bullet. I believe the second expended bullet was one of the rounds that Officer Duthaler fired into the hood of UNIT 24 during the incident based on the location where it was recovered and by the DOJ report. I requested analysis of the bullets for any type of canine DNA or blood analysis but the items were no longer able to be processed for that type of evidence. This incident involved the tenants of 2MVerona Road. and M,were interviewed by Detective Studer on April 17'h, 2011. Both _ and were that they were at the Spa Casino at the time of the incident. They received a call from a female named � who told them that somebody came to the home who was not invited._ and _then returned home to find the crime scene perimeter. Detective Studer attempted to contact - but has been unable to locate her. Sergeant Beard and I have attempted to contact -to no avail. All of the listed addresses and phone numbers belonging to her are no longer correct. Sergeant Beard went to the Spa Casino and confirmed that_ and Ms Spa Casino Players Club cards were being used approximately one hour before the incident occurred. We have been unable to identify any of the subjects who were inside of 2M Verona Road at the time of the incident, 16 PSPD-004632 WINUILT410 06" Ig 4-17-11 @ 0 145 hrs, I was contacted at home by PSPD dispatch and advised that an officer involved shooting had occurred and was requested to respond as a member of the Critical Incident Investigation Team. 4-17-11 @ 0240 hrs, I arrived at the crime scene located at 27MVerona Road in Palm Springs. I was met by Lt. Don Fallon who briefed me on the known facts surrounding this officer involved shooting incident, At this time, it was determined that Sgt. Mike Kovaleff would be the primary investigating officer with Sergeants Reyes and myself assisting Sgt. Kovaleff. I was assigned to witness the processing of the crime scene by criminal investigators. 4-17-11 @ 03 ) 10 his, the on -duty patrol Sgt. Troy Castillo gave both criminal and administrative investigators a briefing of the known, facts surrounding this shooting incident outlining the actions of the involved officers as well as responding officers. This briefing included the result of a public safety statement that Sgt. Castillo had, obtained from Officer Duthater. 4-17-11 @ 03142 hrs, myself along with Det. Mike Studer (primary criminal investigator), Crime Scene Technician Jamie Johnson and Dep. DA Lisa DiMaria entered the crime scene and conducted a walk through of the scene with responding Officers Don Benstead and William Hutchinson. During this walk through Officers Hutchinson and Benstead gave summaries of what they saw as they arrived on scene and the locations of any known pieces of evidence, 4-17-11, 0715 — 1300 hrs, I observed as criminal investigator's as well as Crime Scene Technician Jamie Johnson processed and collected evidence in this shooting incident. The following several pages contain crime scene photographs that will detail the positions of the involved vehicles as well as orient the reader to evidence in this incident. During this administrative investigation, conclusions regarding evidence and evidence locations were based on the crime scene investigation, reviewing photographs, and reviewing the involved police officers' written and oral statements. 17 PSPD-004633 The crime scene depicted in the following photographs is a residential street in front of 27EVerona Road. There were three vehicles within the crime scene which were directly associated with this incident: 1- A marked PSPD K-9 police car, UNIT 24, assigned to and operated by Officer Colantuono. 2- A green Geo Metro (CA- � further referred to as GEO within this report). The GEO was occupied (passenger seat) by DURAZO when initially contacted by Officer Colantuono. 3- A gray Ford F-250 (CA-� further referred to as FORD within this report) which had been struck by gunfire during this incident. The threat of DURAZO was neutralized and he came to rest in the driver's seat of UNIT 24, while being shot by Officers Colantuono and Duthaler. View of crime scene east looking west. Depicts location of involved vehicles. The photo above depicts the location of UNIT 24, in relation to the FORD, which sustained bullet strikes as well as the GEO, which is where the suspect, Francisco DURAZO, was seated when Off cer Colantuono approached him. This photo is of the street directly in front of and just east of 27=Verona Road, looking in a westerly direction. 18 PSPD-004634 Ofc. Colantuono's bullet PSPD- K-9 lke proof vest, radio and dog leash The above photograph depicts the crime scene in the street in front of 271Verona Road with a view from the south looking north. The photo illustrates the locations of the involved vehicles in relation to 270Werona Road. The photo also depicts the location where Police Service Dog (PSD) Ike came to rest after being shot. Officer Colantuono's bullet proof vest, dog leash and radio microphone are the items between PSD Ike's body and the rear of Officer Colantuono's police vehicle, UNIT 24. Officer Colantuono's equipment was stripped off at this location when he suspected that he had been shot. In an effort to determine the extent of his injuries, he removed his uniform shirt, bullet proof vest along with his radio microphone and dog leash. Highlighted in the area between PSD Ike's body and the rear of UNIT 24 are five .40 caliber shell casings. The white privacy screen lying on its side north of PSD Ike's body was placed in this scene by criminal investigators to shield the media from photographing evidence. 19 PSPD-004635 DURAZO Handgun Suspect Francisco Di JRAZQ The photograph above depicts a view of UNIT 24, from a position of north looking south. The photo shows DURAZQ seated in the driver's seat of UNIT 24, as well as a blue steel revolver and Glock magazine lying on the ground next to UNIT 24. 20 1-.40 PSPD-004636 (11) .40 cal shell casings/ Ofc. Duthaler The photograph above depicts the locations of (11) .40 caliber shell casings. The casings are lying in the roadway in the foreground and in the planter area to the passenger side of the GEO, with numbered placards. It is believed that these shell casings were ejected from Officer Duthaler's firearm. UNIT 24 sustained multiple bullet strikes to the hood, windshield, driver's door and driver's side front quarter panel. The FORD pickup also sustained bullet strikes to the driver's side rear door and the driver's side bed area, behind the rear doors. While attempting to determine the chain of events, we have relied on a diagram of the crime scene depicting the locations of evidence, as well as witness and involved officer statements. In determining the locations where Officers Colantuono and Duthaler fired their weapons from, I utilized a public safety statement that Officer Duthaler had given to Sgt. Castillo following the shooting incident. It should be noted that both Officers were shooting .40 caliber handguns. Only .40 caliber shell casings were found within this crime scene. As a matter of reference, both Officers Colantuono and Duthaler's weapons have an ejection port on the rights side of the weapons slide. In this configuration, shell casings expended from these firearms will generally eject back and to the right. 21 PSPD-004637 While processing this crime scene, there were two locations where .40 caliber shell casing were recovered. (11) .40 caliber shell casings were found in the roadway and in a landscaped planter area that divides 27M Verona Road from 2MVerona Road, the neighboring house to the east. This area can also be referenced to the front of UNIT 24 as well as the rear and passenger side of the GEO. Based on the public safety statement of Officer Duthaler obtained by Sgt. Castillo as well as Officer Duthaler's own statement, we can identify these shell casings as those being ejected from Officer Duthaler's handgun. In Officer Duthaler's interview with Sgt. Anderson, he described a path of travel from the passenger's side of UNIT 24 around the front of this vehicle to a point at the driver's side front quarter panel. He described firing his shots at different points along this path of travel. Taking into consideration the trajectory of ejected shell casings from Officer Duthaler's handgun, the location of these shell casings are consistent with Officer Duthaler's statements. In determining the location from where Officer Colantuono fired his weapon and identifying the expended shell casing that were ejected from his weapon, I relied on Officer Colantuono's interview with Sgt. Anderson. In reviewing Officer Colantuono's interview with Sgt. Anderson, it appeared that Officers Colantuono and Duthaler had been in a physical fight with DURAZO on the lawn of 2SWerona Road. As the fight progressed, DURAZO made his way out to the street, traveling between the front of the GEO and the rear of the FORD. Officer Colantuono described the exchange of gunfire occurring in between UNIT 24 and the FORD. Officer Colantuono described firing at DURAZO as DURAZO was attempting to get into the driver's door of UNIT 24. Officer Colantuono also described his location as being between the rear of the FORD and the front of the GEO. With these positions in mind, Officer Colantuono fired at DURAZO in a north to south direction. A second cluster of .40 caliber shell casings was found in the roadway to the rear trunk area of UNIT 24. Officer Colantuono described firing at DURAZO, as it appeared he was attempting to get into the driver's door UNIT 24. Taking into consideration the trajectory of the shell casings being ejected from Officer Colantuono's handgun, it appeared that the shell casings to the rear of the police vehicle came from Officer Colantuono's handgun. In the area of shooting positions, the scene and evidence locations matched the statements of both Officers Colantuono and Duthaler. Based on the officers' statements and the locations of evidence within this crime scene, it appears that the chronology of events happened as follows. Starting at a point where Officers Colantuono and Duthaler were engaged in a physical fight with DURAZO on the front lawn of 2790 Verona Rd. Officers Colantuono and Duthaler had used closed fist strikes in addition to two police K-9's in an effort to gain control of DURAZO. DURAZO, who was not affected by these uses of force was able to free himself and move towards the street. 22 PSPD-004638 DURAZO walked onto Verona Road, taking a path between the FORD and the GEO, to the space between the FORD and UNIT 24. At this moment, it appeared that DURAZO was being bitten by Officer Colantuono's police K-9 (Ike). These actions by DURAZO forced Officer Duthaler to disengage from the altercation, gain control of his police K-9 (Jax), and secure him in the rear of Officer Colantuono's police vehicle. For clarification, both K-9 Ike and Jax were loose and off leash during this physical fight. At one point, both dogs briefly began to, fight with one another. It appeared that this dog fight caused Officer Duthaler to disengage from the physical fight, gain control of K-9 Jax, and then attempt to secure him in UNIT 24. As DURAZO was being bit by K-9 Ike, he produced a handgun and fired two to three rounds, striking K-9 Ike and Officer Colantuono. Officer Colantuono then in an attempt to defend himself, returned fire, shooting five rounds in a north to south direction at DURAZO, who had entered the driver's seat area of UNIT 24. Officer Colantuono said he fired his weapon to slide lock (empty weapon), dropped the empty magazine to the ground, and reloaded a full magazine. On the street between UNIT 24 and the FORD pickup, a partially empty Glock.40 caliber magazine was located. Also in this area, a blue steel revolver was located on the street in the open doorway of UNIT 24. It appeared that this revolver was the one used by DURAZO to shoot Officer Colantuono as well as police K-9 Ike. Officer Duthaler, who heard the shots being fired between Officer Colantuono and DURAZO, began to make his way from the rear passenger's side door of UNIT 24. Officer Duthaler then moved east, towards the front of UNIT 24 along the passenger side. At one point, Officer Duthaler fired two rounds at DURAZO over the hood/ roof area of UNIT 24. It is believed that these two rounds missed DURAZO and struck the FORD pickup on the driver's side rear door and bed area. Officer Duthaler continued to move to and around the front of UNIT 24, where he fired more rounds from a position near the driver's side front quarter panel of UNIT 24. At this time, DURAZO was in the driver's seat of UNIT 24. From this position Officer Duthaler continued to fire at DURAZO through the windshield of LNIT 24. Officer Duthaler fired eleven rounds from this position that struck the windshield, hood, driver's side front quarter panel as well as the open driver's door of UNIT 24. Following the shooting, Officer Colantuono's police K-9 (Ike) staggered towards the street behind UNIT 24 and collapsed. Officer Colantuono moved to the rear of UNIT 24, to check the status of his police K-9. It is at this point, that Officer Colantuono fearing he had been shot, removed his shirt, vest and gun belt to check himself for injuries. Officer Colantuono left his bullet proof vest, dog leash and radio microphone in the street next to police K-9 Ike's body. All of the items of evidence contained within this crime scene are supported by the statements of the officers involved in this incident. It also appeared that there are two missing shell casings from the rounds that Officer Duthaler fired. 23 PSPD-004639 Officer Duthaler said during his interview that he had fired his weapon to slide lock (empty weapon). He said that his weapon at full capacity would hold (13) rounds. Between UNIT 24 and the FORD pickup, there are 13 bullet impacts that are believed to be from the shots that Officer Duthaler had fired. j In accounting for the projectiles that were fired by Officer Duthaler, refer to the above photograph of UNIT 24. Officer Duthaler said that he fired thirteen shots during this shooting. These thirteen shots were fired from several locations as Officer Duthaler moved from the rear passenger's side of UNIT 24 to a final location at the driver's side front quarter panel. Two of these thirteen shots were fired over the hood/ roof of UNIT 24at DURAZO as he stood outside the driver's door of the unit. It is believed that these two shots missed DURAZO and struck the FORD pickup. Following these two shots, Officer Duthaler fired eleven more shots at DURAZO while DURAZO was in the area of the driver's door and while seated in UNIT 24. These eleven rounds were accounted for as there are eleven bullet impact sites in the hood, windshield, driver's side front quarter panel as well as the driver's door. In accounting for the projectiles that were fired by Officer Colantuono, we will refer to the Coroner's report as it appears that all of Officer Colantuono's shots struck DURAZO. Only one of Officer Colantuono's shots struck the vehicle before striking DURAZO. 24 PSPD-004640 During this shooting, the driver's door of UNIT 24 was in an open position. Officer Colantuono fired at DURAZO while DURAZO was in the driver's door/ seat area of the unit. Of the five shots fired by Officer Colantuono, only one of those struck the vehicle. This impact site is the B pillar of the driver's door. WITNESS#1 STATEMENT: On April 181h , 2011 at approximately 1008 hours, Detective Mike interviewed is a summary of the interview: The following Prior to that evening, she knew DURAZO was wanted i him on the news approximately two weeks earlier. immediately took ott running. The otticer gave c neighbor's house, which was later identified as 2 cockroaches." 25 and chased =0 behind the �erona Road. t PSPD-004641 She estimated that about one to two minutes later DURAZO and the officer ended up in the house and began physically fighting just inside the front door area. She did not see how DURAZO or the officer entered the home, but believed that Shadow entered from the rear of the house and the officer possibly entered from the front of the house. (It was later determined that both entered via the front door.) -said that the fight between the officer and DURAZO continued into the front yard. She remembered seeing the police K-9 fighting with DURAZO. DURAZO was crouched, lying on his back with his hands and feet up, trying to defend himself. At this point, -was standing by some bushes, just south of the front yard - She saw a second officer arrive on -scene and open his driver's side door. she heard about eight shots being fired. She did not see who fired the shots nor if anyone was hit. She did however hear officers yell, "Officer down!" -was taken to the scene of the incident by Detective Villegas. While at the scene, -said that DURAZO and the officer jumped over a black gate which was WITNESS #2 S STATEMENT: On April 17 at approximately 0130 hours, Officer Delaney was flagged down by atMVerona Road. The following is a summary of Officer Delaney's interview with � _ was awakened by the sound of approximately 6 to 7 gunshots. He got up and looked out of his front window and saw a female approach the window from the area of his vehicle that was parked in his driveway. - said the female said, "Let me in, they are shooting," The female said that she was seared. He refused to let her inside. He saw police cars in the area and told her to contact the Police Officers. The female left in an eastbound direction and he lost sight of her. -described her as a white female, in her late 20's to early 30's. W PSPD-004642 WITNESS 43 'S STATEMENT: On April 17' , 2011, at approximately 1045 hours, Detective Villegas spoke to at MVerona Road. The following is a summary of Detective Villegas' interview with On April 17'at approximately 1030 hours, -was watering her roses in her backyard and she saw a white tennis shoe in the rose garden (located in the northeast side of the back yard). The shoe was not in the rose garden the day before when she watered the roses. She notified Detective Villegas of the shoe because she did not -know if the shoe belonged to someone who was possibly involved in the incident. WITNESS#4 S STATEMENT: On April 17t", 2011, Officer Alan Donovan contacted at Verona Road, The following is a summary of Officer Donovan's interview of - s awake at the time of the shooting and heard everything leading up to it. He did not actually see the incident because of the large wall and driveway gates on the northern side of the property which blocked his view of the road. He heard two male voices' but that both were yelling the same kii-ids of words. -said the voices were yelling, "Get on the ground! Don't move! Stay down! Get down!" He thought he was hearing one or two police officers based on the commands that were being yelled, but also said it was possible he may have been hearing an echo. He heard a distinctly different male voice start yelling back, and that the third voice used the "F-word" repeatedly. He was not able to determine what the other male was actually yelling back verbatim, because the "F-word" was the loudest part of what he was yelling. He heard a vehicle speeding off to the west at the time this was happening, but was not certain which direction the vehicle was going. The officer was still yelling commands to stay on the ground, when he heard the sounds of a physical struggle. He heard several sirens start sounding and then seconds later heard several rapid gunshots, He heard more than ten rounds fired and said it "sounded like a full clip." The gunfire started off slow at first and then "got a whole lot faster," at the end. Officers began arriving and he heard them talking and that was when he heard that an officer had been hit and was hurt. WITNESS #5 'S STATEMENT: On April 17th, 2011, Officer Alan Donovan contacted - at IIIEVerona Road. The following is a summary of Officer A. Donovan's interview om Mm6jlives at= Verona. Road, He had been asleep in the master bedroom when he was awakened by the sounds of rapid gunfire. His master bedroom is in the northwestern corner of his property, and he did not hear anything other than the sound of the gunshots. He was not certain how many gunshots he heard, but believed it may have been approximately ten rounds 27 PSPD-004643 WITNESS #6 S STATEMENT: On April 17 ', 2011, Officer Alan Donovan contacted at =Verona Road. The following is a summary of Officer A, Donovan's interview of M �said he and his partner were asleep in bed when he was awakened by his barking dogs at between fifteen to twenty minutes after 0 100 hours. His dogs will only bark when there is something going on across the street (2790 Verona Road), as there is a lot of activity there in the middle of the night. He had just quieted his dogs down when he heard several rapid gunshots. He did not know the exact number of shots he heard, but said it was more than five. WITNESS #7 'S STATEMENT: On April 17 2011, Officer Alan Donovan contacted t =Verona Road. The following is a summary of Officer A. Donovan's interview of- _ had been asleep in the front bedroom when he awoke to the sounds of gunfire. He was the only person inside the residence, and he had not been injured, because he ducked down and stayed under the window when the gunfire started. He heard approximately six or seven gunshots, and after the gunfire stopped he heard someone yelling "You're gonna be okay!Stay with me, the ambulance is gonna be here soon." He never went outside because he was afraid, and then before he knew it there were police cars, ambulances, and fire trucks everywhere. He has recently noticed unusual activity at the �E Verona address. The original homeowners had been a couple in their 80's, and had moved out several months ago. = said things "really started to get bad" approximately six months ago, and he began noticing people coming and going from the residence at all hours of the evening, and that the people or vehicles coming and going were never the same. They would throw parties all hours of the night, with several vehicles parked up and down the street, and would constantly play loud music. He suspected the new residents were either drug users or possibly selling drugs. Many of the surrounding residents were scared to "Snitch" on them out of fear of possible retaliation. WITNESS #8 OFFICER STEVE SANDERS' STATEMENT: Officer Sanders was working uniformed patrol on Graveyard Shift at the time of this incident. He was one of the first officers to arrive on scene after Officer Duthaler. The following is a summary of Officer Sanders' report; I heard Officer Colantuono broadcast over the police radio that he was in foot pursuit of a subject at 2M Verona Road. I responded from the area of E. Vista Chino Drive and Avenida Caballeros to assist. As I was responding to the location, I heard Officer Colantuono broadcast that he was in a physical fight with the subject who was later identified as Francisco DURAZO. Officer Colantuono later broadcasted that he had deployed his K-9 on DURAZO. At about 0 121 hours I arrived at the location. As I was arriving at the location, I made a left turn from northbound Volturno Road onto westbound Verona Road. 28 PSPD-004644 I saw one vehicle facing west and parked on the north side of the street in front of 281 O Verona Road. The vehicle was a green Geo Metro bearing CA plate In front of the green Geo Metro was a silver Ford F-250 truck bearing Ca plate -Z The truck was parked in front of 2POVerona Road. I could see a police car stopped just south of the Ford truck and the Geo Metro facing east in the westbound lane of Verona Road. I later determined that the police car was Officer Colantuono's police car. Officer Colantuono's police car had its headlights on which limited my view of anything west of the police car. I just briefly saw the silhouette of a person between the parked vehicles and Officer Colantuono's police car as I made my turn. I was unable to determine if the subject I saw was a -police officer or was DURAZO. T then heard several rapid gunshots come from the area of Officer Colantuono's police car. I was unable to determine exactly where the gunshots came from in relation to Officer Colantuono's police car. I did not see who was shooting nor could T tell which direction the shots were fired because T was blinded by the headlights of Officer Colantuono's police car. I stopped my patrol car in front of 281 Verona Road. I drew my gun and Officer Hutchinson and 1 began to quickly walk towards the stopped police car. Officer Hutchinson was on the north side of the street south of the north sidewalk, and I was on the north sidewalk. As we walked westbound, I did not know where Officer Colantuono was. Officer Hutchinson began to call to Officer Colantuono to let us know what was going on. We received no response from Officer Colantuono. I was unable to see anything past the headlights of the police car. As we moved westbound I also was quickly scanning the front yards of the houses on the north side of the street because I was unsure where DURAZO was and where officer Colantuono was. Officer Hutchinson and I made contact with Officer Colantuono between the parked vehicles and his police car. Officer Hutchinson asked Officer Colantuono where the suspect was and he told us the suspect was shot and was in the front seat of his police car. Officer Colantuono then stated that both he and his K-9 had beenstruck by a bullet. The driver's door of Officer Colantuono's police car was open and DURAZO was leaning back and to the right in the driver's seat of the police car. DURAZO'S right hand was down by his right knee and his left leg was between the open driver's door and the rocker panel of the car. I was unable to see the floor board in front of the driver's seat and therefore could not see if there was a weapon within the reach of DURAZO' S right hand. I did not see anything in either of DURAZO' S hands. I was unsure if DURAZO had any weapons on his person or in close proximity to him. DURAZO was still breathing and at one point attempted to lift his head up. I continued to hold DURAZO at gunpoint because I was afraid that he might attempt to reach for a weapon and try to injure or kill me or another officer with it. Officer Hutchinson also held DURAZO at gunpoint right next to me. DURAZO did not say anything or attempt to say anything while I was holding him at gun point. IE PSPD-004645 At about 0125 hours, Sergeant Castillo requested officers to check the residence at 2=Verona Road. Officer Benstead took my place and held DURAZO at gunpoint while I assisted in checking the residence with other officers. As I walked between Officer Colantuono's police car and the parked vehicles to assist in checking the residence, I looked back at DURAZO in the police car and I saw a revolver lying on the ground between the open car door and the car. I was unable to see the revolver before because the driver's door of Officer Colantuono's police car was blocking my view of it. WITNESS #9 OFFICER WILLIAM HUTCHINSON'S STATEMENT: Officer Hutchinson was working uniformed patrol on Swing Shift at the time of this incident. He was one of the first officers to arrive on scene after Officer Duthaler. The following is a summary of Officer Hutchinson's report: Officer Benstead and I were handling a disturbance call when I heard K9 Officer Colantuono, report via the radio that he was in a foot pursuit in the 2700 block of Verona Road. I immediately responded to the area. While enroute to the scene, I heard Officer Duthaler advise he was on scene. Officer Colantuono I -lad also advised that he was physically fighting with the suspect. Within seconds of Officer Duthaler arriving, 1 heard Officer Duthaler advise that a police K9 was deployed on the suspect. The radio traffic was silent for several seconds. I turned onto Volturno Road from Vista Chino and as I arrived in the area of is Escuela, I heard either Officer Duthaler or Colantuono advise that there were shots being fired. I could also hear several gunshots on the radio. Officer Sanders was in a unit directly in front of me and Officer Benstead was in a unit directly behind me. As I turned westbound onto Verona Road, I saw what appeared to be the muzzle flash of a firearm and the sound of several gunshots near what I believed was a marked PSPD unit. Several bright lights were facing eastbound from Officer Colantuono's vehicle, which made it difficult for me to see what was transpiring. I was able to hear several gunshots and see the muzzle flash from at least one firearm. I further observed a dark figure toward the rear of the vehicle with the bright lights., which was found to be Officer Colantuono's vehicle and I could see Officer Duthaler firing several rounds toward the driver side of Officer Colantuono's vehicle which was facing in a slight northeast direction on Verona Road in front of 2EVerona Road Officer Benstead, Sanders and I all began to advance toward the vehicles and the gunfire. As we approached, I observed the gunfire stop and Officer Duthaler standing near the front driver side tire of Officer Colantuono's vehicle pointing his firearm at the driver compartment of the vehicle. I yelled to Officer Duthaler who advised the suspect was down. I advanced toward Officer Duthaler and saw a male seated in the driver seat of Officer Colantuono's vehicle with his right hand on the gear shift. M PSPD-004646 The suspect, identified as Francisco DURAZO, was leaning to the right; his head slumped over and had what appeared to be several gunshot wounds to his upper body. DURAZO was not moving and did not appear to be breathing. Medical Aid was requested immediately. I then saw Officer Colantuono standing with his firearm out directly behind the driver door of his vehicle. Officer Colantuono ran to his K9 partner IKE who was lying on the ground to the rear of his vehicle. I observed IKE stop breathing at the scene, Officer Colantuono was visibly upset at the loss of his dog and immediately told me that he believed he was shot as well. Sgt Castillo had arrived on scene and assisted me with removing Officer Colantuono's upper clothing and bullet resistant vest to locate a wound, As I pulled his vest off, Officer Colantuono pointed to his lower right rib cage area. I observed what appeared to be fresh bruising consistent with the size of a bullet that may have struck his bullet resistant vest. I ran to my unit (06-94) and drove it up to Officer Colantuono's location. Officers Andre and Crampton arrived on scene and put Officer Colantuono in my vehicle and drove him to DRMC Code 3 to be treated for possible gunshot wounds. I remained at the scene with Officer Duthaler as additional units arrived. I later removed Officer Duthaler from the scene and stood with him until directed otherwise. After Officer Duthaler spoke with Sgt Castillo and provided a public safety statement, I was directed by Sgt Castillo to take Officer Duthaler's dog to his residence. Officer Duthaler and I responded to the Palm Springs City yard and picked tip the spare K9 vehicle. I then drove Officer Duthaler with his K9 to his residence and responded directly back to DID MC because Officer Duthaler complained of pain to his right hand. I was able to observe his right hand and noticed significant swelling to the top of his right hand. Officer Duthaler told me he had struck the suspect with his hand and that his hand started to swell shortly thereafter. While enroute to Officer Duthaler's residence, I informed him of the process that was going to occur with criminal investigators and the Internal Affairs Unit. I told Officer Duthaler that it was best not to speak with any of his fellow officers about the incident. I transported Officer Duthaler to DRMC for a medical evaluation. WITNESS #10 OFFICER DON BENSTEADS STATEMENT: Officer Benstead was working unifornied patrol on Graveyard Shift at the time of this incident, He was one of the first officers to arrive on scene after Officer Duthaler. The following is a summary of his report: Officer Hutchinson and I were on a call when I heard Officer Colantuono yell "foot pursuit" over the radio. I immediately ran to my police unit. There was a pause in the radio traffic and PSPD dispatch was trying to obtain a location. Officer Colantuono sounded out of breath and extremely stressed. At some point, I heard someone on the radio say the street "Verona". Officer Hutchinson and I (separately) began responding In code 3 31 PSPD-004647 We drove our police vehicles northbound on N Indian Canyon and turned eastbound onto Vista Chino. During this time Officer Colantuono had a few radio transmissions saying he was physical and inside of a residence. Officer Colantuono was still out of breath and seemed to still be struggling with someone. Officer Duthaler advised, over the radio, he was with Officer Colantuono and they were still physical. During this time I am not sure of each radio transmission because I had to focus on my driving. As we drove eastbound on Vista Chino, I saw another police vehicle driving code three in front of Officer Hutchinson and me. I later learned the additional police vehicle was driven by Officer Sanders. We all drove eastbound on Vista Chino and turned northbound onto Volturno Road. As we drove northbound on East Volturno Road, I heard radio traffic saying a K-9 was deployed. The next radio traffic I heard had several gunshots. Officer Colantuono advised "shots fired" and a K-9 was hit. I could also hear the gunshots from my open window. I recognized the gunfire over the radio because I have heard gunfire over the radio in a test. When our radio system was changed in 2010, Sergeant Kovaleff conducted a test of live gunfire over the radio. We all turned westbound onto Verona. As I was turning, I could see muzzle flash approximately two hundred yards west. I also could hear the sound of the gunfire in rapid succession. I could see a marked police vehicle was in the roadway facing east. The overhead white takedown lights and one hand -operated spotlight were on. Officer Sanders' police vehicle moved to the north curb line of the roadway. Officer Hutchinson and I began to drive around Officer Sanders on the south side of the roadway. I could still hear gunfire as Officer Hutchinson's vehicle came: to a stop in front of me. I quickly exited my vehicle and ran westbound along the south curb line. The area where we came to a stop was approximately one hundred yards east of the police vehicle in the roadway. I drew my duty weapon as I was running. As I was running, I heard a couple of gunshots and saw muzzle flash in the area just north of the police vehicle. I saw a dark silhouette standing where the muzzle flash was coining from. It appeared the silhouetted person was firing a weapon into the front driver side of the police vehicle. I feared a suspect was shooting at an Officer in the police vehicle. I trained my weapon on the silhouette. I was not able to engage because I could not identify who the silhouette was and did not know where Officer Duthaler and Officer Colantuono were located. Officer Hutchinson was yelling something similar to "where are you guys at .. where are you"? The gunfire stopped and we had paused in the roadway, in an attempt to identify the silhouetted subject and where the suspect was. I noticed Officer Hutchinson was just in front of me to my left. At this point I activated my weapon mounted flashlight in an attempt to identify the silhouetted subject and began to advance. I then saw the silhouetted subject was Officer Duthaler. I could see the left and back side Officer Duthaler's face/head. I could clearly see the back of Officer Duthaler' s police -uniform, left arm patch, and that he had his duty handgun in his hands. I ran towards Officer Duthaler and could see he was pointing his weapon towards the driver seat of the marked police vehicle, 32 PSPD-004648 The police vehicle was parked in the westbound lane of Volturno Road, facing east. The driver's door was standing open. The vehicle was running and the overhead and spot lights were still illuminated. There was a four to five foot gap along the driver's side of the police vehicle and against the side of a full size Ford pick up truck which was parked along the north side of the roadway facing west. Just behind the truck, there was a small compact vehicle which was also parked along the north curb line. Officer Duthaler was standing in the area between the front driver's side of the police vehicle, to the rear driver's side of the truck and near the front driver's side of the small compact vehicle, Officer Hutchinson asked Officer Duthaler where the suspect was. Officer Duthaler said the suspect was in the car. I could see the police vehicle had several bullet holes in the windshield and sheet metal below the windshield. 1 could see a male subject slumped slightly towards the center of the vehicle. I trained my weapon onto the suspect from in front of the police vehicle. Officer Hutchinson said to cover the suspect and walked towards Officer Duthaler. Officer Sanders and I moved to the area of the driver's door to obtain a clear view of the suspect. I could see the suspect had several wounds with a small amount of blood coming from them. The suspect appeared lifeless. I then saw a faint chest movement of the suspect. At this point someone had requested medical aid code three, over the radio. I watched the suspect and did not see any additional sip -is of breathing. 1 did not attempt to render any medical aid to the suspect because I did not know if there were any additional suspects involved in the incident. I heard OfFicer Colantuono advise he thought he was hit. I could not see Officer Colantuono at this time but he sounded to be to the west of me. I remained with the suspect while others assisted Officer Colantuono. I did not see any further signs of life from the suspect. It appeared he succumbed to his wounds. Additional Officers and Sergeant Castillo arrived on scene. AMR had arrived and began to check the suspect's condition. WITNESS 411 OFFICER MATT CRAMPTON'S STATEMENT. Officer Crampton was working uniformed patrol on Swing Shift at the time of this incident. He responded to the location and assisted in transporting Officer Colantuono to the hospital. The following is a summary of his report: I arrived on scene with Officer Andre eastbound on Verona, parked my patrol car on the south side of Verona facing east and began running towards Officer Colantuono who was seated in the middle of the street facing west. Officer Colantuono was leaning to his left side and his police service K9 "Ike" was lying on his left side with his head facing south. Officer Hutchinson was assisting Officer Colantuono in removing his uniform shirt and vest to determine if he had been shot and Officer Colantuono advised he had a complaint of pain to his right side near the bottom of his ribs. I advised units on scene we did not have time to wait for medical aid to arrive and needed to transport Officer Colantuono ourselves via police car. I opened the right rear passenger door to police unit 94 (Officer Hutchinson's assigned police unit) and told Officer Andre to drive us to the emergency room, 33 PSPD-004649 As I approached Officer Colantuono I noticed his uniform shirt and bullet resistant vest had been removed. His under shirt had been ripped open to reveal his skin in an effort to locate any injuries. I saw a small circular mark on Officer Colantuono's right side near the bottom of his rib cage. At the time I could not determine if it was an entry wound from a bullet. I immediately picked up Officer Colantuono by placing each of my arms under his arms with my chest against his back. As I picked him -up, Officer Colantuono began to yell "he: shot my dog, he shot my dog". As I walked backwards toward the back of unit 94, Officer Colantuono attempted to break free from my grasp and assist his service K9, Ike. I picked up Officer Colantuono offthe ground, sat on the edge of the back passenger seat of unit 94, and laid on my back with Officer Colantuono on my chest. As soon as I felt my entire body in the vehicle I yelled for Officer Andre to "go" but the rear passenger door could not be shut because Officer Colantuono's duty belt had been partially removed and was caught on my right leg and foot. After the door was able to be closed, Officer Andre responded code 3 to Desert Regional Medical Center located at 1150 N. Indian Canyon because we believed Officer Colantuono had suffered a gun shot wound and was in need of immediate medical attention. While en route to the hospital I asked Officer Colantuono if there were any outstanding suspects at the location for officer safety reasons. Officer Colantuono advised Just one, just the one" and then stated "I emptied a clip". Officer Colantuono then said "Matt he ' shot my dog, he killed Ike". He also spontaneously stated "he's such a good dog; he was on a good arm bite. You know how hard he bites". While medical staff was removing Officer Colantuono's clothing, I began taking digital photographs of him. While Officer Colantuono's pants were being removed, his legs were raised and a small object fell from his clothing onto the gurney beneath him. Officer Colantuono was told to remain still and the object was identified as an expended bullet. The bullet was immediately photographed and collected as evidence. I placed it in a plastic tube, sealed it and placed it in my pocket where kept custody of it. While seated in the hospital room with Officer Colantuono, he spontaneously stated, "He kept trying to grab my gun". 3 '4 PSPD-004650 I have reviewed all of the reports submitted and evidence collected during this investigation. I have reviewed the initial and follow up interviews conducted, the radio traffic associated with this incident, the mobile dispatch computer log, the crime scene photographs, and the audio/video witness interview recordings that were collected. I have also reviewed all of the available crime reports that were generated in this case. I have completed the following summary of the incident based on the totality of my investigation: On March 18'h, 2011, at approximately 2244 hours, Officer Duthaler was working uniformed patrol and located a parked stolen vehicle at 1800 East Rochelle Road. Approximately five minutes later, the stolen vehicle began driving and Officer Duthaler attempted to stop it, A pursuit began and the vehicle was later abandoned by the driver, later identified as Francisco Gabriel DURAZO AKA "Shadow" (who will be further referred to within this overview as DURAZO), in the 300 block of Stevens Road. Methamphetamine, ammunition from two different types of firearms, a Glock handgun, and other evidence was recovered at the conclusion of the pursuit. DURAZO, a wanted parolee at large at the time, eluded capture by fleeing from the area on foot. Evidence at the scene and statements by a passenger identified DURAZO as the driver of the stolen vehicle- The case was assigned to Detective Min and a $1,000,0,00 arrest warrant was issued by Judge David Downing on March 30th, 2011. DR I I 03P-3 616 On March 23 d , 2011, an email was circulated in PSPD patrol briefings. The email was from Cathedral City Police Officer Brian Barkley. Barkley related in the email that he had arrested DURAZO with a gun in his waistband and drugs approximately four years ago during a traffic stop. Officer Barkley related that after the arrest, he asked DURAZO why he did not shoot at Officer Barkley. DURAZO told Officer Barkley that he did not shoot him because Officer Barkley had "the drop on him." This information was passed onto officers in an effort to emphasize using extreme caution when dealing with DLTRAZO. On March 27th, 2011, at approximately 2209 hours, Officers Beckert and Barth responded to a suspicious vehicle call in the area of 180 Sonora Road. Two individuals were arrested within the vehicle for possessing ammunition, a loaded handgun, and several items of stolen property. Evidence at the scene and statements by the arrested individuals led officers to believe that DURAZO had parked the vehicle at the location prior to PSPD arrival. DR 11 0-3P-5-3 )92 From March 18'h, 2011 to April 17th, 2011, DURAZO'S physical description, booking photographs, and past arrest information were disseminated to PSPD patrol officers during patrol briefings. ILI PSPD-004651 During this same time period, a series of residential burglaries began occurring in the one mile radius of 1800 Rochelle Road, the residence where DURAZO initially drove away from prior to the pursuit on March 18'h, 2011. Officers were directed to conduct additional patrols in the area and were asked to attempt to identify any possible suspects in these burglaries. A team of Swing Shift patrol officers was assembled to conduct direct enforcement in the area of the burglaries on 4/20/11. During this period, Officer Colantuono was a K-9 Officer assigned to Swing Shift patrol. He had knowledge that the residence of 2RWerona Road was frequented by parolees and probationers. He knew this based on prior conversations with subjects about the location and from prior contacts at the location. During the past two to three months, he had conducted at least ten investigative contacts either in front of or at the residence while working his duties as a Swing Shift K-9 Officer. On April 15th , 2011, at approximately 2214 hours, Officer Colantuono arrested Michael Bertolini for a misdemeanor San Bernardino County Superior Court narcotics warrant, misdemeanor possession of narcotics paraphernalia, and felony possession of a dangerous drug (methamphetamine) DR I I 04P-3 3 66. During that incident, Officer Colantuono contacted Bertolini while conducting an occupied vehicle check on the street in front of 2= Verona Road. Bertolini was contactedand arrested near his gray Ford Pickup Truck (CA --and a vehicle which will be further referred to within this report as FORD), which was left parked at the location following the arrest. APRIL If', 2011 On April 17th, 2011 at approximately 0 100 hours, Officer Colantuono was working uniformed patrol as a K-9 Officer on Swing Shift. While performing his patrol duties, he returned to the area of � Verona Road and observed the FORD parked on the street in the same location as it was left during his prior shift the night before. Officer Colantuono also observed a silver Honda Accord (CA�, parked in the driveway of 2790 Verona Road. He recognized the vehicle and believed it was the same vehicle that had been involved in a pursuit with Officer Chris Duthaler on March I 8t", 2011. He also knew that the subject who had driven the vehicle during the pursuit, DURAZO, had eluded capture, was armed with a handgun at the conclusion of the pursuit, and was currently considered a wanted, armed, and dangerous parolee at large. He continued driving and subsequently -contacted Officer Duthaler, who was working uniformed patrol as a K-9 Officer on Graveyard Shift, He contacted Officer Duthaler via phone and in person, a few streets away from the location. While speaking to Officer Duthaler, he confirmed that the vehicle parked in the driveway at 20 Verona Road was the same vehicle that Officer Duthaler had pursued with DURAZO as the driver. Officer Duthaler also informed Officer Colantuono that the registered owner of the vehicle, had a long criminal history and a history of narcotics arrests. He checked law enforcement contacts on Brown in the Alliance report writing system and reviewed them via his MDC while remaining in the area to familiarize himself with her. 36 PSPD-004652 He also knew that DURAZO had driven the stolen vehicle using a key and there was a child's car seat found within the vehicle at the conclusion of the pursuit. He learned that the victim of the stolen vehicle, could not account for the missing key and denied ownership of the child car seat. He believed that it was strange for a suspect to have a key to the car if it was not taken during a burglary and also believed it was suspicious that there was a child's car seat in the car that the victim declined ownership of. Officer Colantuono subsequently returned to the area of MVerona Road and began conducting a surveillance of the location and vehicle, from a nearby location in the dark. He conducted the surveillance because he believed that DURAZO was in the area or was possibly driving the same car again. Whilewatchin the location, he observed a vehicle (later identified as a green Geo Metro CA- and a vehicle that will be further reviewed to as GEO within this report) drive westbound on Verona Road towards 27M Verona Road. He saw the GEO stop and park behind the FORD. He saw the lights of the GEO tam off but did not see anyone exit the vehicle. He then saw a subject walk from the area of the house towards the GEO. For approximately two minutes, he waited and observed the vehicle and surrounding area. He waited for the GEO to leave with the subject who had walked towards it, but the GEO did not leave. He did not see anyone exit the vehicle and did not see anyone walk back towards the home. He believed that there was a possible drug transaction occurring. At approximately 0 119 hours, Officer C olantuono drove his marked patrol car (later identified as a black and white Ford Crown Victoria PSPD Police K-9 Unit and a vehicle that will be further identified as UNIT 24 within this report) eastbound towards the GEO with his lights off, against the north curbline, in an effort to "try to catch them doing some sort of criminal act". He drove around the FORD and he stopped in the street, facing the parked GEO on a slight angle, directly southwest of the vehicle, and a few feet from the south side of the FORD. 37 PSPD-004653 LOCATION OF VEHICLES Officer Colantuono, accompanied by his K-9 partner "Ike," activated his overhead white takedown lights, headlamps, and drivers spot lamp on the GEO, clearly illuminating the interior of the GEO. He then observed a Hispanic male with a shaved head (later identified as DURAZO) seated in the front passenger seat and a white female (later identified as seated in the driver's seat. Officer Colantuono exited UNIT 24 and saw DURAZO open the passenger door of the GEO as they were facing each other. He verbally identified himself as a police officer and told DURAZO to stay in the car. Based on his experience, he observed that DURAZO appeared to be "calculating where he was going to run" and he again ordered him to stay in the car. Officer Colantuono drew his handgun and pointed it at DURAZO, again ordering him to stay in the car. DURAZO disobeyed his commands and ran from the vehicle in a northbound direction. Detective Villegas interviewed -recalled the following about the incident: later identified as 2810 Verona Road. 1 Qth At that point, DURAZO took off running. DURAZO climbed over the gate on the west side of 2.810 Verona Road (the house directly east of 2790 Verona Road) and into the backyard, as Officer Colantuono began to chase him. 38 PSPD-004654 Officer Colantuono climbed over the gate after him, continued by chasing DURAZO eastbound thru the backyard of 2MVerona Road. The ur foot suit continued over the east fence of 2IVerona Road and into the backyard of 2M Verona Road, the next house east. Officer Colantuono continued chasing DURAZO southbound thru the backyard, up and over a metal gate on the west side of 2AM Verona Road, and into the front yard of the residence. He stayed approximately two to three feet behind DURAZO during the foot pursuit. PATH OF FOOT PURSUIT cockroaches." The following timeline was established by reviewing the PSPD Event History associated with this incident and by reviewing recordings of the radio traffic.. 01:19:44 HOURS Officer Colantuono broadcast via the radio that he was in foot pursuit of a Hispanic male, westbound towards 2M Verona Road. PSPD Dispatch broadcast an alert tone. Officer Duthalcr and his K-9 partner "Jax," heard the radio traffic and immediately began responding to the location from the 2800 block of Valencia, which is approximately 1/4 of a mile south of the location. 39 PSPD-004655 When interviewed by Sergeant Anderson, Officer Duthaler recalled the following about this portion of the incident: "I heard foot pursuit westbound, so I accelerated to go faster and as soon as I turned onto Volturno, going westbound, I heard foot pursuit westbound Hispanic male. And, once he said Hispanic male the first thing that popped in my head was Francisco DURAZO. I'm thinking he's (meaning Officer Colantuono) alone, I'm thinking this guy's armed and dangerous. I'm thinking back to the pursuit that I had with him. I'm thinking back to the contact I had with him at the - - or that I heard about him at the hotel. During that pursuit he dropped a, he ditched a forty-five caliber handgun. We also found thirty-eight caliber rounds in that stolen car, so we possibly thought he had another gun. It seems like every contact that anybody's ever had with him it's been - - there's been a gun involved." Officer Colantuono chased DURAZO westbound across the front yard of 2�Verona Road to the front door of 2�Verona Road. DURAZO attempted to open the double French doors but was unable to do so. Officer Colantuono saw DURAZO attempt to use his shoulder to forcibly ram open the front doors twice. On DURAZO'S third attempt, Officer Colantuono had arrived on DURAZO'S back and DURAZO successfully broke open the front door. 01:20:28 HOURS: Colantuono broadcast that he was "physical inside the residence." Officer Colantuono continued to chase DURAZO into the home and into a hallway, where he and DURAZO became involved in a physical fight, He was on DURAZO'S back in an attempt to take DURAZO down to the ground to control him. While entering the home and during the physical fight, Officer Colantuono heard and saw approximately three other subjects in the home. He heard the subjects yelling, "Stop fighting. Just give up." While in the hallway Officer Colantuono had DURAZO'S chest against one wall of the hallway while Officer Colantuono's back was against the other wall. He felt DURAZO grab onto the side of his thigh holster. He believed that DURAZO was trying to take his handgun. M, PSPD-004656 While interviewed by Sergeant Anderson about this portion of the incident, Officer Colantuono stated, "I knew that this wasn't a normal fight that I've been in. He was gonna continue to fight until he could get away.... or, to be honest, kill me, because usually on this type of thing, no one's gonna try to grab for the gun unless they're gonna attempt to kill, you know, what they're trying to get." Officer Colantuono reached down, grabbed DURAZO'S hand, and clipped his holst to retain his weapon. As a result, he lost the remaining control of DURAZO. He grabb onto DURAZO'S shirt and the shirt tore off of DURAZO. DURAZO then Red back oult the front door and into the front yard. He grabbed DURAZO by the arm and saw that Officer Duthaler had arrived on scene. 01:20:42 HOURS: Officer Duthaler arrived on scene and saw Officer Colantuono grabbing and wrestling with DURAZO on the grass in front of 2790 Verona Road, outside of the front doors. When interviewed, Officer Duthaler recalled the following about what he saw when he arrived: "He (Officer Colantuono) was bitting his button and he was yelling, "Ike here, Ike here". Being a K-9 handler myself, to me I knew he, he sounded afraid. He sounded like; I knew it wasn't just a simple resisting. We don't deploy our dogs on simple resist arrests. I knew there had to have been a struggle. There was something else going on that he would sit there, be afraid and start hitting that button. So I know in my past experience you know when that happens to me, something other than a resisting, I'm, I'm hitting that button for my dog to come out. So, I knew it was something else was going on, it wasn't just a simple resist. So, I continued running at him. At that point I see them both go to the ground, he goes to his - - DURAZO, who I believe it, is at this point, goes to his stomach, he raised up, you know like a push-up position. Officer Colantuono is on his back, more down towards his uh butt area and as I'm running up he looks right at me and you know I'm like that's him (meaning DURAZO)." Officer Duthaler ran up while DURAZO was rising up in a pushup position with Officer Colantuono on his back. Officer Duthaler drove his shoulder into DURAZO'S head in attempt to put back down to the ground. DURAZO went down and Officer Duthaler got on top of him. Officer Duthaler told DURAZO, "Give me your arm, give me your arm." Officer Colantuono repeatedly yelled, "Stop resisting." DURAZO maintained a position on the ground, on his knees and hands, with his elbows locked straight. He elbowed at the officers while they attempted to gain control of him. Both officers issued him conirnands to stop resisting. Officer Colantuono struck the ribs of DURAZO with his fist with two "distraction blows," in an attempt to gain control of DURAZO'S locked elbows, to flatten him out, and to handcuff DURAZO. The "distraction blows" were ineffective. When interviewed about this portion of the incident, Officer Colantuono stated: "After doing those two distraction blows, he still wasn't budging. His arms were still locked out and he was still pushing to get up, still fighting me and Chris (Officer Duthaler). 41 PSPD-004657 The next vulnerable spot that I knew... that would be... next step was hit him in the face. You know, I knew that this fight was on. I was still fighting for my life because my back was still towards the house. The house hasn't been cleared. It's only me and Officer Duthaler in this fight. I still don't know who's coming from behind and I knew that we should take this, guy into custody fast because our lives were still in danger and I was still thinking that this guy was still trying to grab my gun. And DURAZO hadn't been searched at that time, and we were still in close proximity where he can still grab a hold of either weapon on mine or Duthaler's belt and use it against us. So at that time I gave him two distraction blows to the face, still telling him to put his hands behind his back. When I was bitting him in the face with my closed fist, he still didn't make any sounds of pain. He didn't say anything." Officer Duthaler attempted to gain control of DURAM'S arm by grabbing it but could not get a good grip because DURAZO'S arm was wet from sweat. In an attempt to "collapse his lung" to gain control of DURAZO, Officer Duthaler struck the side of DURAZO with his fist once. The strike did not have an effect upon DURAZO and he continued to resist. Officer Duthaler then struck DURAZO once in the face with his fist. DURAZO said, "You are blinding me." Duthaler attempted to grab DURAZO'S arm again but was unable to get a good grip. DURAZO continued to resist and pushup from the ground. Officer Duthaler grabbed DURAZO'S pants, lifted him from the ground, and slammed him down in an effort to gain control of DURAZO while he was down on his stomach. As he did this, Officer Duthaler observed saw people coming out of the residence. When inter -viewed about this portion of the incident, Officer Duthaler stated: "Lim, I start to see people you know just - - I'm still concentrating on him trying to get his arms, but I can still see people in the doorway, I started to become concerned that there was possibly other gang members, people that I didn't know were in that house. I don't know how many people were in that house. I don't know if lie showed up there with anybody. I started to get concerned that I was spending too much time on the ground." At that point, Officer Duthaler decided to deploy his assigned PSPD K-9 partner "Jax" based on the following: "If I lost control, 1, he wasn't searched, he was possibly armed, I didn't, we didn't know that. If there were other individuals in there that were his associates they possibly had guns. I just to me it was, we were, we were in a bad spot. Junior's back was faced to the house. I didn't want to just, 1, 1 thought about just laying down on him, trying to hold and wait for the Calvary to get there, wait for people to get there, but I knew everybody was downtown and their response time wasn't going to be you know that quick, so I just hit my door pop, my dog came out." When interviewed about this portion of the incident, Officer Colantuono stated: "You know, I knew that this fight was on. I was still fighting for my life because my back was still towards the house. The house hasn't been cleared. It's only me and Officer Duthaler in this fight. I still don't know who's coming from behind and I knew that we should take this guy into custody fast because our lives were still in danger and I was still Iliinkng that this guy was still trying to gab my gun. 42 PSPD-004658 And DURAZO hadn't been searched at that time, and we were still in close proximity where he can still grab a hold of either weapon on mine or Duthaler's belt and use it against us." Officer Duthaler told Officer Colantuono that the dog was deployed. Officer Colantuono and Officer Duthaler disengaged from DURAZO. DURAZO began to get up but "Jax" came in and began to bite DURAZO on what Officer Duthaler believed to be DURAZO'S left arm. DURAZO then stood up from the ground with "Jax" still biting one arm. DURAZO lifted "Jax" up off of the ground and his rear paws were no longer touching the ground. Officer Duthaler grabbed DURAZO by the back and attempted to pull DURAZO to the ground so that "Jax" could regain an advantage. DURAZO grabbed "Jax" by the collar and "Jax" released the bite. As they were fighting, Officer Duthaler also saw a female near the front of the house and saw her flee in an eastbound direction. When interviewed, Officer Duthaler recalled his thought process at this portion of the incident: "This guy just took a, he's taken a bite, typically with the bites that I've had, a subject that can take a bite and almost knows to lift the dog off of the ground either had learned something or had been told you know, dogs need to be on the ground. Dogs should be on the ground, you know if you get them off the ground, they might release. Uin, so just in my head it's like, I'm like you know this guy just took a bite from a dog and he's still going, he's still trying to get away." Officer Duthaler then struck DURAZO on the side of his face with his fist from behind. DURAZO turned around and attempted to punch Officer Duthaler. Officer Duthaler attempted to punch DURAZO but he began Railing and blocked the punch. DURAZO began backing up towards the sidewalk and street. "Jax" repeatedly attempted to bite DURAZO but was unsuccessful. DURAZO backed into the passenger side of the FORD and was pinned against it. As DURAZO stood with his back against the side of the FORD, "Jax" began biting one of DURAZO'S legs. Officer Duthaler was unable to determine if "Jax" made contact with the actual leg or with only DURAZO'S pants. Officer Duthaler punched DURAZO one more time in the face. Officer Colantuono -noticed that DURAZO was backing towards the area between the GEO and FORD. He could not see "Jax" re-engaging with DURAZO. He also knew that UNIT 24 unit was left with the door unlocked with the key in the ignition. Colantuono feared that DURAZO could get into the car, have access to the weapons inside, access to a ballistic vest, and could flee in the police car. Officer Colantuono decided to deploy his assigned K-9 partner "Ike," via the remote door opener. 01 -22:22 HOURS: 2 minutes, 3 8 seconds after his first radio broadcast, Officer Colantuono broadcast via the radio, "dog deployed." "Ike" exited the left rear door of UNIT 24, ran around the front area of the FORD, and became involved in a brief confrontation with "Jax" on the grass, near the right front area of the FORD. 43 PSPD-004659 Officer Duthaler, who was still in the physical confrontation with DURAZO near the passenger door of the FORD, heard the two dogs fight briefly. He then saw Officer Colantuono separating the two dogs while DURAZO continued to physically resist. Officer Duthaler struck DURAZO one more time. Officer Duthaler then heard Officer Colantuono give "Ike" the command to go after DURAZO as Officer Colantuono directed "Ike" towards DURAZO. Officer Duthaler let go of DURAZO as "Ike' came towards DURAZO. "Ike" bit DURAZO on the left forearm. DURAZO began backing eastbound towards the area between the GEO and FORD with "Ike" still biting his forearm. DURAZO was picking "Ike" off of the ground in the same way as he had lifted "Jax." DURAZO backed up southbound, between front of the GEO and the rear of the FORD, towards the UNIT 24. Officer Duthaler, realizing that "Jax" was still loose, grabbed "Jax" and decided to take him to UNIT 24, the nearest available place to secure "Jax." He took "Jax" southbound around the front of the FORD, attempting to get to UNIT 24. 01:22.34 HOURS: Officer Colantuono broadcast via the radio, "shots fired." As Officer Duthaler approached the left rear area of Officer Colantuono's police unit, he heard the sound of one gunshot. Prior to the first gunshot, Officer Colantuono, observed DURAZO backing southbound between the GEO and FORD, towards UNIT 24 while DURAZO grabbed "Ike's" collar. Officer Colantuono heard the shot while standing at the right rear comer of the FORD. He then heard a second gunshot and saw the muzzle flash towards his direction. While interviewed, Officer Colantuono stated: "I could tell that muzzle flash was a (unintelligible) gun and it was directed towards me, so I knew that I was getting shot at and I was afraid that, you know, that this guy was gonna try to shoot me and kill me to get away. And I felt that if this guy got away, he already broke into one house, he already ran into other back yards, he's shooting at officers, so he's gonna do anything to get away. I'm concerned about my safety, Officer Duthaler's safety at this time, because Officer Duthaler is standing in close proximity around this area, so I didn't know what type of weapon DURAZO had. I didn't know how many rounds he had with him, so at this time I'm scared for my safety, Officer Duthaler's safety, and then the residents around, because I mean, Verona has quite a population... there's not a lot of foreclosed homes; there's a lot of occupied homes." After hearing the first gunshot, Officer Duthaler continued to the area behind UNIT 24, looked up and saw DURAZO and IKE between UNIT 24 and the left rear quarter panel of the FORD. He saw Officer Colantuono's head near the rear of the FORD and saw DURAZO moving in a westerly direction towards the driver's door of UNIT 24. He then saw DURAZO extend his arm and point a black revolver towards the area where he last saw. Officer Colantuono. He saw DURAZO fire two rounds towards the area of Officer Colantuono. M PSPD-004660 Officer Duthaler upholstered his handgun and was not comfortable with a shot from. behind LNIT 24, towards DURAZO who was at the driver's door area, because he would. be also shooting in the same direction where he last saw Officer Colantuono. Officer Duthaler believed that DURAZO was trying to kill Officer Colantuono and he did not know if Officer Colantuono had just been shut.: Officer Duthaler released "Jax" and continued southbound around the rear of UNIT 24 to the passenger side. Officer Duthaler then moved in an easterly direction on the passenger side of UNIT 24 towards the right front corner of the police car. As he reached the area near the right front tire, he saw that DURAZO was standing behind the driver's door of UNIT 24 with his aria still extended. Officer Duthaler could see DURAZO'S head over the top of UNIT 24. Officer Duthaler feared that DURAZO had access to the guns in UNIT 24, he could run over Officer Colantuono, and he could escape. Officer Duthaler could not see where Officer Colantuono was located. He had a clear view of DURAZO'S head over the windshield and top of UNIT 24 as DURAZO stood outside of the driver's door of the police unit. Fearing that DURAZO was shooting Officer Colantuono, Officer Duthaler fired two rounds at DURAZO in a northwesterly direction from the right front corner of UNIT 24. The two rounds did not strike DURAZO and most likely ended up in the driver's side area of the FORD, wl-ch was parked behind DURAZO from the position where Officer Duthaler fired from. Officer Duthaler did not see DURAZO after firing the first two rounds. Officer Duthaler continued northbound around the front of UNIT 24 and saw DURAZO seated in the driver's seat of the police unit, through the windshield. While interviewed, Officer Duthaler stated: "I think he was more like in the door, between the door frame and the car, but I could see his face in there and I could tell he's doing something with his hands. I could see his hands, but I didn't know, I couldn't see a gun, you know I didn't know what he was doing. I didn't know if he was reloading, but knew there was a shotgun in there, still couldn't see Junior and at that point I took, at that point I think I took another eleven shots and I continued this direction to about the, the front left bumper. As I'm doing that I hear gun shots. I didn't know if it was coming f om him, I didn't know if it was corning from Junior, um, I just needed to stop him so- I continued shooting, my slide went back, I grabbed my other magazine from my pouch, put it in my gun." During our investigation, I determined that Officer Duthaler fired ten rounds towards DURAZO from the front of the police car. Five of the rounds proceeded through the windshield and into DURAZO. DURAZO was struck once in the head and four times in the upper body by Officer Duthaler. The other five of the rounds went into the hood of the police unit and did not travel into the passenger compartment. Officer Duthaler fired one additional round through the driver's side door of the unit from the area of the left front corner of the unit. The round traveled through the door and into DURAZO'S left knee. Officer Duthaler fired a total of 13 rounds during the incident. 45 PSPD-004661 Officer Colantuono moved between the GEO and FORD towards the area where DURAZO had backed up to while fighting off "Ike". Officer Colantuono advanced towards DURAZO and began firing rounds towards him from the driver's side of UNIT 24. He continued towards DURAZO and believed that DURAZO was seated or almost seated in the driver's seat of the police ear when he shot. Officer Colantuono believed he fixed all 16 rounds that were in his handgun. When interviewed, Officer Colantuono stated: "During that... you know, this is the ultimate fight that I was gonna be in and it was gonna be my life, or Officer Duthaler's life, and seeing that muzzle flash, I started to engage— I don't know at which time I pulled my handgun out of my holster. I started firing and I believe that I advanced forward in between the gaps of the two cars, firing into the driver's side door frame area." During our investigation, I determined that Officer Colantuono fired five rounds from an area south of the driver's side door. All five rounds struck the left bicep area of DURAZO and traveled in a left to right direction. One of the rounds struck the B-Pillar area of the driver's side window frame of tNIT 24 prior to striking DURAZO. Officer Colantuono fired a total of five rounds during the incident. Officer Colantuono and Officer Duthaler both saw that DURAZO was motionless and did not believe that he was a threat any longer. When interviewed, Officer Colantuono stated: "When after I fired, I heard a click of my gun, which, based on my training, I knew I was out, I reloaded and at this point, I don't know how I got there, but I was close enough where I can see that DURAZO tilted his head down as if the fight was over and the gunfight was over and he wasn't going to engage anymore. I didn't know if he was dead or if he just was giving up and he couldn't move anymore," While interviewed Officer Duthaler stated: "At that point I came around to this area (between left front wheel and driver's door), I can see Junior here (outside of driver's door), looked inside, saw he was motionless. I looked at his, you know, to see if he - - see if his hands were moving, didn't see anything, I didn't see any movement in his hands, came back around this way, saw the gun on the ground, I believe it was a black revolver on the ground and I heard Junior say um, over the air, um, suspect down, I've been hit. At that point my dog comes to where I'm at, so I grab a hold of him, asked Junior if he was okay, and at that point, I don't know, I believe it was either Be stead or Sanders came to this area and held guns on DURAZO." 01:22:51 HOURS: n 3 minutes, 7 seconds after his initial radio broadcast, Officer Colantuono broadcast via the radio, "shots fired, suspect hit, suspect hit, dog hit, my dogs been hit." Officer Colantuono continued with his radio broadcast 3 seconds later and reports, "I've been hit.51 46 PSPD-004662 At 01:22:52 hours, PSPD Dispatch began staging medical personnel. At 01:22:58 hours, Sergeant Castillo requested medical aid to the scene, At 01:23:34 hours, PSFD was dispatched to the location. At 0 1:28:3 2 hours, PSFD and AMR arrived on scene. DURAZO was pronounced dead at the scene by PSFD Captain John Allen at 01:34:22 hours. DURAZO remained at the scene for several hours. His body was later transported to the Riverside County Sheriff Coroner's Office in Perris, California. Officer Colantuono saw his K-9 partner "Ike" stumble and go down to the ground to the rear of the police -unit, "Ike" died at the scene and remained at the location for several hours. He was, later transported to the VCA Animal Hospital of the Desert where a necropsy was performed. Officer Colantuono felt a burning sensation on the right side of his abdomen. He believed that he had either been hit by a bullet based on the pain and what had occurred. Sergeant Castillo, Officer Hutchinson, and Officer Crampton attended to Officer Colantuono upon their arrival. Officer Colantuono was wearing a Kevlar vest during the incident and it was removed at the scene. Officer Crampton and Officer Andre transported Officer Colantuono to DRMC to be examined. While on a gurney inside of DRMC, an expended bullet fell out of Officer Colantuono's clothing as his pants were removed. The bullet was recovered and later booked as evidence for further processing. Officer Duthaler, whose assigned K-9 patrol -unit was still in the scene, regained control of K-9 "Jax" after the situation was under control. He and "Jax" were transported to the Palm Springs City Yard by Officer Hutchinson. They obtained a spare K-9 police unit to properly transport "Jax," Officer Hutchinson drove Officer Duthaler and "Jax" to Officer Duthaler's home. "Jax" was secured at the location and Officer Hutchinson transported Officer Duthaler to DRMC to have an injury to his right hand sustained in the physical fight with DURAZO evaluated by medical personnel. During our investigation, I reviewed the applicable laws and PSPD Policies. I reviewed the applicable laws and PSPD Policies from the initial detention of DURAZO to the use of deadly force upon DURAZO at the conclusion of the incident, The following is a summary of the legal considerations and PSPD Policy considerations: In evaluating the legal aspects of this incident, I began with whether a detention occurred and when a detention occurred, I reviewed the definition of a detention, how it applies to passengers, how it applies to persons, and what the purpose of a detention is. The following are definitions and court rulings that I considered in developing my findings: 47 PSPD-004663 DETENTIONS DEFINED: A temporary "detention" or "stop" is an exertion of authority that is something less than a full-blown arrest but more substantial than a simple "contact" or "consensual encounter." A "detention" occurs whenever a reasonable --and innocent --person would believe he is not free to leave or otherwise disregard the police and go about his business. (Hodari D. 1991) 499 U.S. 621, 627-628; Bostick (1991) 501-..U8. 429, 434,- Souza (1994) 9 Cal. 4th 224, 22pj Such a belief may result from physical restraint, unequivocal verbal commands, or words or conduct by the officer that clearly relate to the investigation of specific criminal acts. (Brueckner (1990) 223 CaLApj2.3d 1500— L5�5. The Supreme Court has held that in all traffic stops the driver and the passengers are seized and all persons in the car can therefore challenge the constitutionality of the stop. (arendfin (Z007) 551 U.S. 249.) The detention of the occupants "ordinarily continues, and remains reasonable, for the duration of the stop." 6Lohnson (2002L129 S. Ct. 781, 783; see Hovos (200 7) 41 CaL 4th 872,894.) I believed Officer Colantuono had detained DURAZO, and the GEO. Officer Colantuono, wearing a PSPD uniform, driving a marked black and white PSPD police unit, drove towards the parked GEO in darkness. He stopped and parked his police unit in front of and to the left of the parked GEO, in a manner that would, block the ordinary path of travel of the parked GEO. He shined his overhead lights and a spot lamp upon DURAZO and —He ordered them to stay in the vehicle and she submitted to his authority. He removed his handgun and pointed his handgun at DURAZO while again ordering them to stay in the vehicle. the actions of DURAZO, indicated that both were aware that Officer Colantuono was a police officer. In fact, — lawfully obeyed Officer Colantuono's commands. Based on the totality of my investigation, I believe that a reasonable or innocent person would not believe that he or she was free to leave the GEO or otherwise free to disregard Officer Colantuono. In evaluating whether DURAZO was initially detained or not based on his actions and the fact that he fled, I reviewed several rulings involving the detention of persons. I learned that the courts have ruled that before a "detention" exists in the law, it is necessary that the person actually submits to the police officer's assertion of authority. The courts have ruled that if the person runs away, for example, there has been no detention, and none occurs until and unless you actually effect a stop, In other words, the courts have ruled that "a person is not 'seized' within the meaning of the Fourth Amendment unless he or she is somehow physically restrained or voluntarily submits to a peace officer's authority." LArangure (1991) 230 CaLApp.M 1302, 1307; Hodari D. (1991) 499 U S. 621, 626; Turner (1994) 8 Cal. 4th 137 180.) 48, PSPD-004664 During this incident, a detention of DURAZO, and the GEO occurred initially. DURAZO disobeyed Officer Colantuono's commands and subsequently fled from the detained vehicle, a misdemeanor violation of PC 148(a)(1). DURAZO escalated the violation by continuing to run, resulting in a foot pursuit over three fences and into the yards of three different residences, additional reasonable suspicion to detain and also probable cause to arrest DURAZO based on his actions and resistance to his lawful commands. Officer Colantuono used physical force in an effort to detain and arrest DURAZO at the front doors of 27MVerona Road. DURAZO was subsequently detained again at this point of the incident and continued to resist Officer Colantuono by force, where his resistance became a felony criminal violation of PC 69. Officer Colantuono now had additional reasonable suspicion to detain DURAZO and probable cause to arrest DURAZO, whether he was considered detained at the onset or not. In reviewing the initial detention of the vehicle and the following physical contact and attempt to apprehend DURAZO, a reasonable person would believe that they were not free to go. PURPOSES OF A DETENTION: The courts have ruled that the purpose of a detention is to resolve whether suspicious behavior is "innocent" or relates to crime. Therefore, the courts have ruled that the possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal activity. on C. (1978 J 21 CaL 3d 888, 894; Letner 201QLLO Cal. 4th 99 146; Justin B. (192J 9 69CaUpp.4th879,886.) , The courts have also ruled that detention law accepts the risk that officers may stop innocent people. If during a detention, "the officer does not learn facts rising to the level of probable cause, the individual must be allowed to go on his way." (Wardlow (20ffl 528 US 119, 126.) Officer Colantuono believed that criminal activity may be afoot and that was his purpose of the detention. Based on DURAZO'S actions and resistance, Officer Colantuono never had the time to resolve whether the suspicious behavior that he witnessed was innocent or relating to crime. On April 17t", 2011, at approximately 0 117 hours, Officer Colantuono detained DURAZO, and the GEO that they were occupying. In order for Officer Colantuono to make a valid detention, Officer Colantuono had to have reasonable suspicion to believe that: (1) criminal activity may be afoot and (2) the person (DURAZO) Officer Colantuono was about to detain was connected with that possible criminal activity. In order for Officer Colantuono to legally detain the vehicle DURAZO was an occupant of, Officer Colantuono had to have reasonable suspicion to believe that: (1) something relating to crime had just happened (or was happening, or was about to happen); and (2) the vehicle (GEO) or the person (DURAZO) in the vehicle Officer Colantuono, was about to detain was connected with that activity. 49 PSPD-004665 In reviewing whether Officer Colantuono had "reasonable suspicion" to detain DURAZO, I reviewed the legal definitions of reasonable suspicion and legal factors to consider when evaluating reasonable suspicion. 1 reviewed the following definitions and considered several factors ii-i determining whether Officer Colantuono had reasonable suspicion to detain at the beginning of this incident: Reasonable suspicion is an objectively justifiable suspicion that is, based on specific facts or circumstances and that justifies stopping a person thought to be involved in criminal activity at the time. It is more than a mere hunch and has most recently been defined by the courts as a "moderate chance," To establish Officer Colantuono's reasonable suspicion, both the quality and quantity of the information he needed was considerably less than the "probable cause" he needed to arrestor search DURAZO. Mite (1999 ) 496 U. S. 325, 33 0; Bennett (1998} 17 CaL 4th 373, 3 8 7,- Johnson (1991),231 CaL A pp. 3d 1, 1 IJ The courts have ruled that reasonable suspicion is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence." (Eardlo-w Q 000) 528 U. S. 119, 123: A rvizu. (2002) .534 U S. 266, 274.) The courts have ruled that reasonable suspicion should be evaluated based on objective facts. Officer Colantuono's subjective thinking, i.e., the purpose behind his detention, should have no bearing on a court's determination of the legality of his actions. Officer Colantuono's "subjective intentions" are irrelevant in determining whether this detention was justified. (&e Sullivan (2001) 532 U.S 769, 7722; "ren (1996 ) 517 US. 806, 813: see also Robinette L1996) 519 U.S. 33, 38,- Scott (1978) 436 U.S. 128, 138- Letner (2010 50 Cal, 4th 99, 145.) I reviewed the following factors in evaluating Officer Colantuono's reasonable suspicion: TOTALITY OF CIRCUMSTANCES: In determining whether Officer Colantuono acted in a reasonable manner, the courts will consider the totality of circumstances, not just those that might warrant criticism. Thus, the First Circuit pointed out, "A court inquiring into the validity of a Terry stop must use a wide lens."Gallegos v. 04y of Los (9th Cir. 2002) 308 F3d 987 991 ["We look at the situation as a ivhole J. U.S. v. Romain (1st Cir. 2004) 393 F. 3d 63, 71.) In this incident, Officer Colantuono had a large amount of information to consider when forming his reasonable suspicion that criminal activity may be afoot, including but not limited to, the following: He was raised in Palm Springs, he grew up in a home that was a few blocks away from where this incident occurred, he lived in this neighborhood up until a few years ago, and he had recent knowledge of criminal activity at the location. WE PSPD-004666 In addition, he made an arrest for narcotics at the location the prior evening, there was a parked vehicle at the location that was associated with an armed and dangerous person, he spoke to Officer Duthaler a few minutes before the stop and confirmed that the vehicle was involved in the pursuit, the registered owner of the same vehicle had several law enforcement contacts, he has training in narcotics enforcement, he has experience in narcotics enforcement, and he observed what he believed to be suspicious activity during the night, involving an occupied vehicle at the location. He was also aware of a series of residential burglaries in the area that involved directed enforcement efforts by PSPD patrol and detective personnel. After considering all of the information that Officer Colantuono was aware of, I find that he had the necessary reasonable suspicion to detain DUR-AZO and Doudican. COMMON SENSE: Officers and judges are expected to evaluate the surrounding circumstances in light of common sense, not hyper technical analysis. In the words of the United States Supreme Court, "Much as a 'bright line' rule would be desirable, in evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must govern over rigid criteria." aLnited States v. Share (1985) 470 US. 675, 685. ALSO SEE U. & v. Ruidiaz LIst Cin 2008) 529 F 3d 25, 29J In this incident, Officer Colantuono used common sense to believe that criminal activity may be afoot. He had a history and knowledge of narcotics activity at the location and observed the GEO park in front of the location at approximately 0 116 hours. He saw a subject (DURAZO,) walk from the house towards the GEO with no subsequent movement from the GEO or the subjects within. He has a lifetime of experience in the neighborhood to understand what would be common activity or not. At a common residence, it would be common for a vehicle to stop, a person to get in, and the vehicle to drive away. Coupled with his knowledge, history at the location, and observations, Officer Colantuono used common sense and ordinary human experience to believe that criminal activity may be afoot. TRAINING AND EXPERIENCE: Officers and judges may consider Officer Colantuono's interpretation of the, circumstances based on his training and experience if the interpretation was reasonable. For example, the courts have ruled that a detainee's movements and speech will sometimes indicate to trained officers that he is about to fight or run. fU.S. v. ElliLsL6th Cir. 2007) 497 F. 3d 606, 614 fthe officer "was entitled to assess the circumstances and defendants in light of his experience as a Police officer and his khowled of druz courier activitL"ZJ At the time of this incident, Officer Colantuono had received basic academy training, FTO training, briefing training, and additional post academy training on narcotics enforcement and criminal investigations. He had over five years of experience as a police officer at the time of this incident. His experience included active participation during in - progress incidents, narcotics arrests of pedestrians, narcotics arrests of vehicle occupants, and other types of arrests. RE PSPD-004667 He also had a lifetime of experience in the neighborhood where this incident occurred. He: used this experience to recognize that DURAZO was "calculating" a location to run to, which in fact, DURAZO subsequently did. IBC "LEAST INTRUSIVE MEANS" REQUIREMENT - There are several appellate decisions on the books in which the courts said or implied that a detention will be invalidated if the officers failed to utilize the "least intrusive means" of conducting their investigation and protecting themselves. In no uncertain terms, however, the Supreme Court has ruled that the mere existence of a less intrusive alternative is immaterial. Instead, the issue is whether the officers were negligent in failing to recognize and implement it. As the Court explained in U.S. v. Sharpe, "The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it." The Court added that, in making this determination, judges must keep in mind that most detentions are "swiftly developing" and that judges "can almost always imagine some alternative means by which the objectives of the police might have been accomplished." (1985) 470 US. 675, 687. ALSO SEE People v. Bell (1990 43 Cal.App. 4th 754, 761, fn. I L" The Supreme Court has since repudiated any `least intrusive meanstest fo r commencing o conducting an investigative sW, The question is not simply whether some other alternative was available, but whether the police acted unreasonably, in failing to recognize or pursue it. "/: Gallegos v. QLv of Angeles L9th Cir2002) 308 F.3d 987, 992 ["The Fourth Amendment does not mandate one and one y one way for police to confirm the identity of a suspect, It requires that the government and its agents act reasonably. "].) During this incident, Officer Colantuono acted reasonably considering the totality of the circumstances. He saw what he believed to be suspicious activity, believed that he was going to find criminal activity occurring, possibly a narcotics transaction in progress. He drove towards the vehicle with his lights off, in an effort to avoid alerting the occupants of the vehicle. He subsequently turned several of his white lights on when he stopped in front of the occupied vehicle to clearly illuminate the interior. He exited his vehicle and remained there while giving DURAZO and - commands. He again ordered DURAZO to stay in the car, reached down, unholstered his handgun, and pointed it at DURAZO. These actions were swiftly developing and were not unreasonable based on the totality of the circumstances and what Officer Colantuono was witnessing from DURAZO. DURAZO, made eye contact with Officer Colantuono and fled. After reviewing this information, I find his actions to be within Department policy. DEVELOPMENTS AFTER THE STOP: The courts understand that detentions are not static events, and that the reasonableness of the officers' actions often depends on what happened as things progressed, especially whether the officers reasonably became more or less suspicious, or more or less concerned for their safety. For example, in U.S. v. Sowers the court noted the following: Based on unfolding events, the trooper's attention shifted away from the equipment violations that prompted the initial stop toward a belief that the detainees were engaged in more serious skullduggery. Such a shift in focus is neither unusual not impermissible. W-J PSPD-004668 Similarly, the Seventh Circuit said that "officers faced with a fluid situation are permitted to graduate their responses to the demands of the particular circumstances confronting there."Qr, in the words of the California Court of Appeal, "Levels of force and intrusion in an investigatory stop may be legitimately escalated to meet supervening events," and: "even a complete restriction of liberty, if brief and not excessive under the circumstances, may constitute a valid Terry stop and not an arrest. "(Lnited States v. Place (1983) 462 US 696 709, th.10 jCourt notes the officers may need "to gr aduate their oases to the demands of any particular situation"/; U.S v. Ruidiaz (Ist Cir. 2008) 529 F 3d 25, 2A detention "is not necessarily a snapshot of events frozen in time and place. 0 ten, such a stop can entail an ongoing process. "Z; U.S. v. Christian (9th Cir. 2004) 356 E3d 1103, 1106 ["police officers must be able to deal with the rapidly unLoldiLig and oflerx _ dangerous situations on cioz streets through an escalating set of flexible responses, graduated in relation to the amount of information they possess "l. (1st Cir, 1998) 136 F 3d 24, 27. 34 U& v. Tilmon (7th Cir. 1994) 19 F 3d 1221, 1226 Peopley. Johnson (19912 231 Cal.App3d 1, 13.) This incident began with the initial: detention of DURAZO, and the vehicle (GEt) that they were occupying. It progressed into DURAZO calculating a direction to flee, DURAZO ignoring Officer Colantuono's commands, DURAZO ignoring the fact that Officer Colantuono began to point a gun at him, and DURAZO fleeing from Officer Colantuono. DURAZO' S level of resistance and delaying elevated each moment, which increased Officer Colantuono's probable cause to arrest. He ran, jumped over three different fences, forced his way into a locked home, and fought with Officer Colantuono, This situation was fluid, becoming more dangerous with each second that passed, and the level of force and intrusion from Officer Colantuono was reasonable as the incident continued based on DU ZO' S escalating level of resistance and. violence towards uniformed police officers. Officer Colantuono had probable cause to arrest DURAZO. Pursuant to PC 8 5a, any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use reasonable force to effect 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 lase his right to self-defense by the use of reasonable force to effect the arrest or to prevent escape or to overcome resistance. During my investigation into this incident, I reviewed whether the actions of Officer Colantuono during this detention were legally appropriate. I considered the following areas during my investigation; 53 PSPD-004669 OFFICER SAFETY: It is "too plain for argument," said the Supreme Court, that officer -safety concerns during detentions are "both legitimate and weighty." This is largely because the officers are "particularly vulnerable" since "a full custodial arrest has not been effected, and the officer must make a quick decision as to how to protect himself and others from possible danger." Sometimes the danger is apparent, as when the detainee was suspected of having committed a felony, especially a violent felony or one in which the perpetrators were armed. Or it may be the detainee's conduct that indicates he presents a danger; e.g., he refuses to comply with an officer's order to keep his hands in sight, or he is extremely jittery, or he won't stop moving around. And then there are situations that are dangerous but the officers don't know how dangerous. For example, officers may be unaware that the detainee is wanted for a felony or that he possesses evidence that would send him to prison if it was discovered. Thus, in Arizona v. Johnson, a traffic stop case, the Supreme Court noted that, the risk of a violent encounter "stems not from the ordinary reaction of a motorist stopped for a speeding violation, but from the fact that evidence of a more serious crime might be uncovered during the stop." It is -noteworthy that, in the past, it was sometimes argued that any officer -safety precaution was too closely associated with an arrest to be justified by anything less than probable cause. But, as the Seventh Circuit commented, "that has changed, thanks to the swelling ranks of armed and violence -prone criminals: We have over the years witnessed a multifaceted expansion of Terry. For better or for worse, the trend has led to permitting of the use of handcuffs, the placing of suspects in police cruisers, the drawing of weapons and other measures of force more traditionally associated with arrest than with investigatory detention." Thus, officers may now employ any officer -safety precautions that were reasonably necessary under the circumstances —with emphasis on the word "reasonably." The Ninth Circuit put. it this way: "We allow intrusive and aggressive police conduct without deeming ,it.an arrest in those circumstances when it is a reasonable response to legitimate safety concerns on the part of the investigating officers." Or in the words of the Fifth Circuit: "Pointing a weapon at a suspect, ordering a suspect to lie on the ground, and handcuffing a suspect —whether singly or in combination: do not automaticallv convert an investigatory detention into an arrest [unlessJ the police were unreasonable in fail to use less intrusive procedures to conduct their investigation safely." At the onset of Officer Colantuono's initial contact, he positioned himself and the vehicle with officer safety in mind. He ordered DURAZO and —to stay in the car for officer safety reasons and noticed that DURAZO appeared to be "calculating" a place to run to. His actions, without knowledge of DURAZO'S identity and without knowledge that DURAZO was considered and armed and dangerous suspect parolee at large with a $1,000,00:0 arrest warrant, were appropriate. 54 PSPD-004670 DETENTION AT'GUNPOINT: Although a detention at gunpoint is a strong indication that the detainee was under arrest, the courts have consistently ruled that such a safety measure will not require probable cause if, (1) the precaution was reasonably necessary, and (2) the weapon was re -holstered after it was safe to do so. The Fifth Circuit ruled, "In and of itself, the mere act of drawing or pointing, a weapon during, an investigatory detention does not cause it to exceed the permissible grounds of a Terry stop or to become a de facto arrest." The Seventh Circuit put it this way: "Although we are troubled by the thought o allowing policemen to stop people at the -point of a aim when probable cause to arrest is lacking, we are unwilling to hold that Fa detention] is never lawful when it can be effectuated safely only in that manner. It is not nice to have a M pointed at you by policeman but it is worse to have a gun pointed at you by a criminal." Officer Colantuono, had reasonable suspicion to believe that criminal activity may be afoot. He ordered DURAZO and -to stay in the vehicle,�F'ollowed his orders. He again ordered DURAZO to stay in the vehicle and pulled his gun out. Officer Colantuono was justified in this action based on DURAZO'S, actions. CONTROLLING DETAINEES' MOVEMENTS: For their safety (and also in order to carry out their investigation efficiently), officers may require the detainee to stand or sit in a particular place. Throughout the course of investigative detentions and traffic stops, officers may position the detainee and his companions or otherwise control their movements. While this is permitted as an officer - safety measure, it is also justified by the officers' need to conduct their investigation in an orderly fashion. As the Supreme Court explained, it would be unreasonable to expect officers "to allow people to come and go freely- from the -ohvsical focal point of a detention." If the detainee was the driver or passenger in a vehicle, officers may order him and any occupants who are not detained to step outside or remain inside. And if any occupants had already exited, officers may order them to return to the vehicle. In discussing the officer -safety rationale for ordering detainees to exit, the Supreme Court noted that "face-to-face confrontation diminishes the possibilitv, otherwise substantial. that the driver can make unobserved movements." The courts acknowledge the risks associated with traffic stops and have recognized the officer's need to control the occupants' movements. In all cases, the officer has the right to order the driver to get out of the vehicle. The officer does not need any particular reason, such as danger or suspicion of a crime. This is because the courts believe that all traffic stops involve enough inherent risk to justify the minimal additional intrusion of ordering a validly detained driver to get out of the vehicle. LMinlms (197D 434 U.S. 106, Maxwell (1988) 206 Cal.APP.3d 1004; Valencia (1993) 20 Cal-Avv, 4th 906 918: Miranda LJ 17 Cal.App 99.4th 917, 92 55 PSPD-004671 The same rule applies to passengers: an officer may order passengers out of the car pending completion of a traffic stop. "The same weighty interest in officer safety is present regardless of whether the occupant of the stopped car is a driver or passenger." "Danger to an officer from a traffic stop is likely to be greater when there are passengers in addition to the driver in the stopped car. While there is not the same basis for ordering the passengers out of the car as there is for ordering the driver out, the additional intrusion on the passenger is minimal." (Wilson (1997 ) 519 U.S. 48, .... 414-415, Saunders (2006 Vo 138 Cal. 4th 1129,1134-1135; Ho s (2007) 41 Cal. 4th 87.2 892; see also Ruvalcaba (2th Cir. 1995) 64 E 3d 1323, 132 7j Therefore, it is always reasonable to order passengers out for the sake of the officer's safety in every traffic stop. Lomax (201PL49 Cal. 4th 530, 564.) A peace officer may also order.a passenger to remain inside or get back into the vehicle. (Vibanco (2007) 151 CaUpp. 4th 1, 14; Castellon 0 999) 76 Cal.Ann. 4th 1369, 13 74: Williams (9th Cir. 2005) 419 F. 3d 1029, 1034. During this incident, Officer Colantuono had a right to order DURAZO to remain in the vehicle. In order to properly investigate the suspicious activity, it would be unreasonable for Officer Colantuono to, allow DURAZO to walk away and unsafe to not control DTJRAZO'S movement, which ultimately proved to be true. I find his actions to be within Department policy. The courts have ruled that "whether a peace officer is detaining someone (1) to investigate his reasonable suspicion or (2) to issue a 'cite and release' citation, the suspect has an obligation to stop. A suspect has 'no right to resist' a lawful detention." (Lloyd (1989) 216 Cal.App. M 1425, 1429.) Officer Colantuono had lawfully detained DURAZO. DURAZO had no legal right to ignore or disobey Officer Colantuono's commands and had no legal right to runaway from Officer Colantuono. The courts have ruled that, "If the suspect does not stop, he has violated Penal Code section 148 by obstructing or delaying the peace officer in the performance of the officer's duties," (Andre P. (1991) 226-CaLAPa 3d 1164, 1169) and the "officer may use -whatever physical force is necessary to make him stop. " (Johnson (1991) 231 CaLAPP. 3d 1, 12-13: Gregoty S. (198Q) 112 CaLApp. 3d 764, 778). Similarly, if a lawful detention (or arrest) has begun in a public place, a suspect may not defeat it by running inside; an officer has the right (under the "exigency" or "hot pursuit" doctrines) to follow him or her into the residence. (Lloyd (1989) 216 CaLAPP. 3 1425. IR PSPD-004672 If a suspect refuses to comply with an order to stop, officers may of course use force to accomplish the detention. This is because the right to detain "is meaningless unless officers may, when necessary, forcibly detain a suspect." Or, as the Ninth Circuit explained in U.S. v. Thompson: "A police officer attempting to make .aii,investigatory detention may properly display some force when it becomes apparent that an individual will not otherwise comply with his request to stop, and the use of such force does not transform a proper stop into an arrest." How much force is permitted? All that can really be said is that officers may use the amount that a "reasonably prudent" officer would have believed necessary under the circumstances. Note that in, most cases in which force is reasonably necessary, the officers will have probable cause to arrest the detainee for resisting, delaying, or obstructing. If so, it would be irrelevant that the, detention had become a de facto arrest. Officer Colantuono, wearing a uniform, driving a marked patrol car, contacted DURAZO in a public place. He twice ordered DURAZO to stay in a car during a lawful detention but DURAZO ignored those commands and began resisting, delaying, and obstructing Officer Colantuono in the performance of his duties. DURAZO continued this behavior from the start of this incident until the conclusion, elevating his resistive behavior at each moment. Officer Colantuono began with the least intrusive means by giving commands, and displaying a gun. He subsequently followed up using physical force upon DURAZO to prevent him from escaping into a home. Officer Colantuono had a duty to stop DURAZO during this incident and the force he used was reasonable and within PSPD Policies 400.00 and 400.01. During my investigation into this incident, I believe that DURAZO committed several crimes. The crimes became more and more serious and violent as the incident progressed. The level of force used by both Officer Colantuono and Officer Duthaler upon DURAZO progressed as well. Before this incident began, DURAZO was a wanted, armed and dangerous parolee at large with a $ 1,000,000 felony warrant. I reviewed the following criminal statutes and related them to the actions of Officer Colantuono, Officer Duthaler, and DURAZO during this incident: PC 148(a)(1) RESIST, DELAY, OR OBSTRUCT OFFICER Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician, as defined in Division 2.5 (commencing with Section 1797) of the Health and Safety Code, in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($ 1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment. I believe DURAZO violated PC 148(a)(1), by resisting, delaying, and obstructing Officer Colantuono in the performance of his duties. DURAZO ignored Officer Colantuono's commands to stay in the car, ran from Officer Colantuono, and continued to resist Officer Colantuono through out this incident. 57 PSPD-004673 PC 69 RESISTING EXECUTIVE OFFICER Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty, is punishable by a fire not exceeding ten thousand dollars ($10, 000), or by imprisonment in the state prison, or in a county jail not exceeding one year, or by both such fine and imprisonment. I believe DURAZO violated PC 69 by actively attempting to take Officer Colantuono's handgun from his holster while in the hallway within 2790 Verona Road. He physically used force as he resisted Officer Colantuono in the performance of his duties by pushing, wrestling, and physically pulling away from Officer Colantuono, He continued this behavior while on the grass outside of the home with both Officer Colantuono and Officer Duthaler. He also continued to use force by attempting to punch Officer Duthaler. PC 600 HARMING PEACE OFFICER DOG OR HORSE: (a) Any person who willfully and maliciously and with no legal justification strikes, beats, kicks, cuts, stabs, shoots with a firearm, administers any poison or other harmful or stupefying substance to, or throws, hurls, or projects at, or places any rock, object, or other substance which is used in such a manner as to be capable of producing injury and likely to produce injury, on or in the path of, any horse being used by, or any dog under the supervision of, any peace officer in the discharge or attempted discharge of his or her duties, is guilty of a public offense. If the injury inflicted is a serious injury, as defined in subdivision (c), the person shall be punished by imprisonment in the state prison for 16 months, two or three years, or in a county jail for not exceeding one year, or by a fine not exceeding two thousand dollars ($2,000), or by both a fine and imprisonment. If the injury inflicted is not a serious injury, the person shall be punished by imprisonment in the county jail for not exceeding one year, or by a fine not exceeding one thousand dollars ($ 1,000), or by both, a fine and imprisonment. (b) Any person who willfully and maliciously and with no legal justification interferes with or obstructs any horse or dog being used by any peace officer in the discharge or attempted discharge of his or her duties by frightening, teasing, agitating, harassing, or hindering the horse or dog shall be punished by imprisonment in a county jail for not exceeding one year, or by a fine not exceeding one thousand dollars ($ 1,000), or by both a fine and imprisonment. (c) Any person who, in violation of this section, and with intent to inflict such injury or death, personally causes the death, destruction, or serious physical injury including bone fracture, loss or impairinent of function of any bodily member, wounds requiring extensive suturing, or serious crippling, of any horse or dog, shall, upon conviction of a felony under this section, in addition and consecutive to the punishment prescribed for the felony, be punished by an additional term of imprisonment in the state prison for one year. 58 PSPD-004674 Based on DURAZO'S violent actions towards both K-9 "Jax" and "Ike" during this incident, DURAZO'S action of shooting and killing "Ike", Officer Colantuono's observations, Officer Duthaler's observations, and evidence at the scene, I believe DURAZO shot "Ike", interfered with both police dogs under the supervision of their peace officers, and willfully and maliciously killed "Ike" in doing so, a violation of PC 600(a)(b)(c). PC 664/187(a) ATTEMPTED MURDER: Every person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration, shall be punished where no provision is made by law for the punishment of those attempts. Murder is the unlawful killing of a human being, or a fetus, with malice aforethought. Based on DURAZO'S persistent resistive actions, his escalating violent use of force upon the officers in an effort to flee from them and resist arrest, his removal of a handgun from a concealed area of his body while resisting, DURAZO firing the handgun towards Officer Colantuono, as evidenced by one of the rounds striking Officer Colantuono, the observations of both officers, and evidence at the scene, 1 believe DURAZO attempted to murder Officer Colantuono by firing two to three rounds at him, a violation of PC 664/187(a). PC 835a- PEACE OFFICER USE OF FORCE TO ARREST: Any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use reasonable force to effect 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. Officer Colantuono had reason to believe that DURAZO had violated PC 148(a)(1) at the beginning of this incident. He used reasonable force upon DURAZO in an attempt to make that arrest. He gave commands, he physically tackled DURAZO, and he tried to pull down DURAZO. All of these actions were reasonable considering that Officer Colantuono was solely attempting to gain control of DURAZO to effect an arrest. . DURAZO continued to resist, failed to comply with orders, and physically fought off the attempts to be controlled. Officer Colantuono tackled DURAZO from behind onto the ground. Officer Duthaler arrived and began to assist Officer Colantuono. Both officers attempted to gain control of DURAZO but were not able to do so. Officer Colantuono repeatedly told DURAZO "stop resisting," yet DURAZO pushed back off of the ground and flung his elbows at the officers. Officer Colantuono attempted to get DURAZO to break from the pushup position by striking the sides of his abdomen with his two times to no avail. Officer Colantuono struck DURAZO two more times in the head to no avail. 59 PSPD-004675 DURAZO failed to obey commands and continued to push back from the ground. Officer Duthaler attempted to gain control of DURAZO'S aria but could not get a grip because of DURAZUS sweat, Officer Duthaler punched DURAZO in the gut and in the face. DURAZO continued to resist and delay them in the performance of their duties. During the altercation on the lawn, both officers were concerned about the other subjects in the house. They feared that the subjects could harm them while they struggled with DURAZO. After reviewing the totality of this fluid and violent event, I believe that Officer Duthaler and Officer Colantuono both used reasonable force, per PC 835a., in attempts to arrest DURAZO while he was on the ground in a pushup position, therefore, I find their actions to be within Department policy. Out of fear of losing what control they had of DURAZO and the dangers presented by the subjects within the house, Officer Duthaler elected to deploy his assigned K-9 "Jax" upon DURAZO. "Jax" ran up to DURAZO and bit him. Officer Duthaler believed that the bite was on the left arm of DURAZO- DURAZO fought off the bite by standing up and lifting "Jax" off of the ground by his collar area. Both of "J,ax's" rear legs were in the air while DURAZO held him up. Officer Duthaler tried to pull DURAZO down from his back so that "Jax" could re-engage in the bite. "Jax" released the bite and Officer Duthaler struck DURAZO in the head with his fist in an attempt to bring DURAZO down. DURAZO tamed around and attempted to punch Officer Duthaler. "Jax" attempted to bite DURAZO again on the legs but DURAZO was able to fight "Jax" off by flailing his legs. DURAZO backed into the parked FORD. "Jax" began biting DURAZO on the leg or pants area. Officer Duthaler punched DURAZO on the side of the face one more time to no avail. I reviewed Officer Duthaler's deployment of K-9 "Jax" upon DURAZO and his use of force while "Jax" was deployed. I believe Officer Duthaler's uses of force were reasonable per PC 835a. DURA-Z-O'S actions, escalating violent behavior, ability to fight off a trained police dog applying a bite, and his ability to continue resisting the officers in the performance of their duties justified the uses of force directed upon DURAZO. In discussing all of the use of force utilized up to this point of the incident with Lieutenant Bryan Reyes, he is of the opinion that the use of force was consistent with the Departmental Koga techniques taught to sworn personnel, as well as within Departmental policy. DURAZO moved towards the area between the FORD and GEO, which provided a path for DURAZO to Officer Colantuono's unlocked and armed police unit. Out of fear that DURAZO could get into his patrol car, Officer Colantuono deployed his assigned K- 9 6'lke". "Ike" exited the patrol car and got into a brief altercation with "Jax." "Ike" then proceeded to bite DURAZO on the left forearm area. DURAZO grabbed "Ike" by the collar and proceeded to walk back in between the FORD and GEO, towards UNIT 24, which was unlocked and left running with weapons inside that could be used against both officers. Me PSPD-004676 After reviewing Officer Colantuono's deployment of K-9 "Ike" upon DURAZO, I found that he used reasonable force, per PC 8' ) 5a., in his attempt to arrest DURAZO by deploying the K-9. DURAZO'S actions, violent behavior, and highly unusual ability to carry a trained police dog backwards during a bite, continued to justify the force that was being used. DURAZO armed himself with a handgun while near the driver's door of Unit 24. He then fired two to three shots from the handgun. Officer Colantuono saw that the second shot was directed towards him. Officer Duthaler heard the first shot and subsequently saw DURAZO point and fire two more rounds in the direction where Officer Duthaler had last saw Officer Colantuono. It was later determined that one of the bullets struck Officer Colantuono. It was also determined that either the same round or one of the other round(s) DURAZO fired, struck and killed "Ike". I find all of the specific applications of force used by each officer during this violent encounter reasonable per PC 835a. The use of force was also in compliance with PSPD Policy Manual Sections 400.00 and 400.0. The use of force was documented and investigated in compliance with PSPD Policy Manual Sections 400.02, 400,03, 400.04 and 400.05. PC 196 JUSTIFIABLE HOMICIDE BY PUBLIC OFFICER: Homicide is justifiable when committed by public officers and those acting by their command in their aid and assistance, either- 1 . In obedience to any judgment of a competent Court; or, 2. When necessarily committed in overcoming actual resistance to the execution of some legal process, or in the discharge of any other legal duty; or, 3. When necessarily committed in retaking felons who have been rescued or have escaped, or when necessarily con-unitted in arresting persons charged with felony, and who are fleeing from justice or resisting such arrest. HOMICIDE DEFINED: Homicide is the killing of one human being by another, either lawfully or unlawfully. Homicide includes murder and manslaughter, which are unlawful, and the acts of excusable and justifiable homicide, which are lawful. SELF DEFENSE: The shooting of another person in self-defense or in the defense of others is justifiable and not unlawful, The law of self-defense and the defense of others was codified in 1872 and has remained substantially unchanged since then. It is found in Penal Code sections 197 through 199. all PSPD-004677 It requires that the user of deadly force honestly believe that he or someone else is in imminent and deadly peril, and that a reasonable person in the same circumstances would believe the same and would deem it necessary to use deadly force in order to protect against such peril. The means of force used, whether lethal or non -lethal, must be reasonable under the circumstances. If a firearin is pointed at a person in a threatening manner and under such circumstances as to induce a reasonable belief that it is loaded, and will be discharged, the person threatened may use all necessary force to avert the apparent danger. People v, Anderson L1872) 44 Cal. 65, 68. The standard California Criminal Jury Instruction on self defense states: The killing of another person in self-defense is justifiable and not unlawful when the person who does the killing actually and reasonably believes: 1. That there is imminent danger that the other person will either kill [him] [or] [her] or cause [him] [or] [her] great bodily injury; and 2. That it is, necessary under the circumstances for [him/her] to use in self-defense force or means that might cause the death of the other person for the purpose of avoiding death or great bodily injury to [himself] [or] [herself]. A bare fear of death or great bodily injury is not sufficient to justify a homicide. To justify taking the life of another in self-defense, the circumstances must be such as would excite the fears of a reasonable person placed in a similar position, and the party killing must act under the influence of those fears alone. The danger must be apparent, present, immediate, and instantly dealt with, or must so appear at the time to the slayer as a reasonable person, and the killing must be done under a well-founded belief that it is necessary to save one's self from death or great bodily harm. (CALJIC- 5.12) In analyzing the use of deadly force by both officers in this incident, I investigated whether the homicide of DURAZO was justified based on the perspectives of Officer Colantuono and Officer Duthaler. In reviewing Officer Colantuono's use of deadly force upon DURAZO, I analyzed whether he had honest belief that his and Officer Duttialer's lives were in imminent serious danger and whether a reasonable person in the same circumstance would deem it necessary to use deadly force to protect against such danger? Evidence, statements, and our investigation support the conclusion that Officer Colantuono had an honest belief that his and Officer Duthaler's lives were in imminent serious danger. This conclusion is based on the escalating resistant and violent actions by DURAZO preceding the shooting, Officer Colantuono hearing one gunshot which was followed by Officer Colantuono observing a muzzle flash from a second gunshot in his direction from DURAZO, who was a few feet away. Officer Colantuono's fear was immediate and serious. Officer Colantuono's actions were also objectively reasonable under the circumstances and were within Department policy. NN PSPD-004678 Officer Colantuono was not required to wait longer and see what DURAZO intended to do. DURAZO continued his violent, resistant behavior and remained an immediate threat to Officer Colantuono. Officer Colantuono shot DURAZO because DURAZO remained a threat and not because DURAZO shot K-9 "Ike." Officer Colantuono was confronted with a deadly weapon, shot at two to three times from close range, and under these circumstances, it was reasonable to defend himself with deadly force. Officer Colantuono was not aware that K-9 "Ike" had been shot until after DURAZO was no longer a threat. In reviewing Officer Duthaler's use of deadly force upon DURAZO, I analyzed whether he had an honest belief that his and Officer Colantuono's lives were in imminent serious danger and whether a reasonable person in the same circumstance would deem it necessary to use deadly force to protect against such danger? Evidence, statements, and our investigation support the conclusion that Officer Duthaler had an honest belief that he and Officer Colantuono's lives were in imminent serious danger. This conclusion is based on the escalating resistant and violent actions by DURAZO preceding the shooting followed by Officer Duthaler hearing one gunshot and observing DURAZO point and fire a handgun two times in the direction of where Officer Duthaler last saw Officer Colantuono. Officer Duthaler's fear for Officer Colantuono's safety was immediate and serious. Officer Duthaler's actions were also objectively reasonable under the circumstances. Officer Duthaler was not required to wait longer and see what DURAZO intended to do or if Officer Colantuono had been shot. Officer Duthaler was confronted by the sight of DURAZO with a handgun, the observation of DURAZO firing towards Officer Colantuono two to three times from close range, and under these circumstances, it was reasonable to defend Officer Colantuono and himself with deadly force. At the conclusion of our investigation, I found both Officer Colantuono, and Officer Duthaler justified in their use of deadly force in accordance with PC 196. DURAZO caused both officers to use deadly force in self defense, and in defense of each other, to prevent great bodily injury and/or death upon themselves and each other. The deployment of justifiable deadly force by both of the officers to defend themselves was within PSPD Policy Manual Sections 400.00 and 400.01. Department members are reminded that the use of force is discretionary. While sworn officers have a duty to use that degree of force necessary to protect human life, the use of deadly force is not justified merely to protect property interests. Personnel of this department are expected to use good judgment and each situation will dictate the level of force to be used. Sworn personnel using deadly force are accountable for its use. Deadly force can only be used in compliance with this Section. The use of firearms and force will be judged on the basis of necessity and reasonableness under the circumstances. 63 PSPD-004679 PSPD POLICY 400.01 LEGAL STANDARDS: California Penal Code section 835(a) states that: "any peace officer who has -reasonable cause to believe that a person to be arrested has committed a public offense may use reasonable force to affect the arrest, prevent escape or overcome resistance." "A peace officer who makes or attempts to make an arrest need not retreat or desist from his or her efforts by reason of resistance or threatened resistance of the person being arrested; nor shall such officer be deemed an aggressor or lose his or her right to self- defense by the use of reasonable force to effect the arrest or to prevent escape or to overcome resistance," The use of force is governed by "an objective reasonableness standard." Objective reasonableness is determined "from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight," and "must embody the allowance for the fact that police officers are often forced to make split-second judgments - in circumstances that are often tense, uncertain, and rapidly evolving - about the amount of force that is necessary in a particular situation. Graham v. Conner (1989,E 490 U.S. 386 The law recognizes that no one is capable of advising an officer how to react in every situation that may occur, Police Officers need not avail themselves to the least intrusive means of responding to a particular situation; they need only act within that range of conduct identified as objectively reasonable -under the circumstances. A Police Officer should adjust the level of force to meet the changing demands needed to maintain control of the situation. A number of factors shall be taken into consideration when evaluating whether reasonable force has been used. These factors include but are not limited to: 1-Officer/subject factors (age, size, relative strength, skill level, injury/exhaustion, and number of officers versus number of subjects 2-Influence of drugs or alcohol 3-Proximity to weapons 4-Availability of other options 5-Seriousness of the offense in question Based on my training, my experience, the investigation at the scene, the statements by Officer Colantuono and Officer Duthaler, evidence collected, the witness statements, the injuries sustained by Officer Colantuono and Officer Duthaler, the unlawful killing of K-9 "Ike", and the justifiable homicide of DURAZO, I believe the actions of Officer Colant-Liono and Officer Duthaler in this incident were within the legal standards of the State of California and within the standards set forth by Palm Springs Police Department Policy Manual Sections 400.00 and 400.01. The incident was reported and investigated within the standards set forth by Palm. Springs Police Department Manual Sections 400.02, 400.03, 400.04, and 400.05. In conclusion, we find both officers exonerated as to violating Palm Springs Police Department Policy Sections 400.00 and 400.01. I 5V PSPD-004680 ATTACHMENT INDEX 1 Notice of Personnel Investigation Officer Colantuono 2 Notice of Personnel Investigation Officer Duthaler 3 Miranda Advisement Officer Colantuono 4 Lybarger Advisement Officer Colantuono, 5 Miranda Advisement Officer Duthaler 6 Lybarger Advisement Officer Duthaler 7 CD-R of Officer Colantuono's Administrative Interviews 8 CD-R of Officer Duthaler's Administrative Interview 65 PSPD-004681 N� PSPD-004682 TO: Officer Luciano Colantuono #14397 FROM: Sergeant Mike Kovaleff #10969 SUBJECT: Notice of Personnel Investigation 2011 -00_ A Personnel hivestigation is currently being conducted into the events that occurred on April 171h, 2011, report # I I 04P-3653 . During this incident, an Officer Involved. Shooting occurred. A fonnal interview with you is necessary to complete this investigation that is to determine if the policies and procedures of the Palm Springs Police Department, and current law, were followed throughout your involvement in this incident. You are to report to the Palm Springs Police Department at a date to be determined to answer questions relating to this Personnel Investigation. I will be the officer in charge of the interrogation. No other officers are scheduled to attend this interview. All questions during the interrogation shall be asked, by or through, no snore than two interrogators at one time. The complete interrogation will be recorded. You will have access to the tape if any further proceedings are contemplated or prior to any flirther interrogation at a subsequent time. You have the right to bring your own recording device and record any and all aspects of the interrogation. You will be entitled to all reports and /or complaints made by investigators or other persons, except those that are deemed by the Department to be confidential. No notes or reports that are deemed to be confidential by the department will be entered into your personnel file. You have the right to be represented by a representative of your choice who may be present at all times during the interrogation. This representative shall not be a person subject to the same investigation. Your representative shall not be required to disclose, nor be subject to any punitive action for refusing to disclose, any information received from you while under investigation in non -criminal matters. You will not be subject to visits by the press or news media without your express consent. Neither your home address nor photograph will be given to the press or -news media without your express consent. If this interrogation occurs during off duty time, you shall be compensated for your time in accordance with regular department procedures. If prior to, or during the interrogation, it is deemed that you may be charged with acriminal offense, you shall be numediately informed of your constitutional rights, You are advised that your rights are fully outlined in the Public Safety Officers Procedural Bill of Rights Act, Government Code Sections 3300-3311. PSPD-004683 If you have any questions prior to the interrogation, please do not hesitate to call one. My phone number is 760-902-6803. Sincerhy, Sergeant Mike v - I 1 4 01cK aleff April 17', 2011 K PSPD-004684 r+ E 0 ry► PSPD-004685 V� I L . ffl-%V1 it If 2 &.%1 1 1 TO: Officer Chris Duthaler #15293 FROM: Sergeant Mike Kovaleff #10969 SUBJECT: Notice of Personnel Investigation 2011-00_ A Personnel Investigation is currently being conducted into the events that occurred on April 17t", 2011, report 4 11 04P-3653, During this incident, an Officer Involved Shooting occurred. A fortnal interview with you is necessary to complete this investigation that is to determine if the policies and procedures of the Palm Springs Police Department, and current law, were followed throughout your involvement in this incident. You are to report to the Pah-n Springs Police Department at a date to be determined to answer questions relating to this Personnel Investigation. I will be the officer in charge of the interrogation. No other officers are scheduled to attend this interview. All questions during the interrogation shall be asked, by or through, no more than two interrogators at one time. The complete interrogation will be recorded. YoAill have access to the tape if any further proceedings are contemplated or prior to any further interrogation at a subsequent time. You have the right to bring your own recording device and record any and all aspects of the interrogation. You will be entitled to all reports and /or complaints made by investigators or other persons, except those that are deemed by4fic Department to be confidential. No notes or reports that are deemed to be confidential by the department will be entered into your personnel file. You have the right to be represented by a representative of your choice who may be present at all times during the interrogation, This representative shall not be a person subject to the same investigation. Your representative shall not be required to disclose, nor be subject to any punitive action for reftising to disclose, any information received from you while under investigation in non -criminal matters. You will not be subject to visits by the press or news media without your express consent. Neither your home address nor photograph will be given to the press or news media without your express consent. If this interrogation occurs during 1 off duty time, you shall be compensated for your time in accordance with regular department procedures. If prior to, or during the interrogation, it is deemed that you may be charged with a criminal offense, you shall be immediately informed of your constitutional rights. You are advised that your rights are fully outlined in the Public Safety Officers Procedural Bill of Rights Act, Government Code Sections 3300-33 11. PSPD-004686 INFAfflum [FongLZROTI-I If you have any questions prior to the inter -rogation, please do not hesitate to call me. My phone number is 760-902-6803. Sine e Sergeant Mike Kovaleff April 17"', 2011 Ice 9s Duthaler 2 PSPD-004687 Vf I IVIUY I %J , z%f I I TO: Officer Colantuono FROM: Sergeant Kovaleff SUBJECT: Miranda Advisement Due to the nature of this administrative investigation, Government Code 3303(h) requires me to advise you of your constitutional rights. Therefore, it is important that you understand that criminally: *You have the right to remain silent. *Anything you say may be used against you in court. *You have the right to an attorney before and during questioning. *Do, Y7 understand each of these rights that I have explained to you? Yes No *With these rights in mind, would you like to speak to me now? Yes Signature 7iXlesstiqature 120 S Cate Time PSPD-004689 PSPD-004690 vw1 V. Vt"Y I W , iw a I TO: Officer Colantuono FROM: Sergeant Kovaleff SUBJECT: Lybarger Advisement M= "While you have the right to remain silent with regard to any criminal investigation, you do not have the right to refuse to answer my questions as part of an administrative investigation such as I am presently conducting. Accordingly, I am ordering you to answer all of my questions fully and honestly. If you refuse to answer my questions, your silence can be deemed insubordination and result in administrative discipline, up to and including termination. As a general rule, the use of any statement you make under compulsion of the threat of such discipline is limited to administrative purposes only. However, you should also be aware that there are certain legal exceptions that may allow your statements to be used in any subsequent civil proceeding by the Department seeking civil sanctions against you or any other officer, as well as in any civil or administrative actions brought by you, or your exclusive representative, arising out of a disciplinary action. Further, your statements may be used in a court of law or subsequent administrative proceeding to impeach your testimony at that proceeding after the court reviews your statements to determine whether these statements serve to impeach your testimony. In the unfortunate event of your death, your statements may also be used for all purposes during a court or subsequent administrative proceeding. Where the Department is under a legal obligation to do so, your statements will also be produced to any subpoenaing party in state PSPD-004691 ■ MMOMM811M or federal court, including the U.S. Attorneys' Office or representatives from the Department of Justice. Though your statements may have to be produced to a subpoenaing party, these statements usually cannot be used against you in court unless the judge first determines that the use of your statements does not violate your Fifth Amendment rights. The Department recognizes that you are not waiving your Fifth Amendment right to remain silent and we will not be providing any criminal investigator with access to this interview absent a court order to do so. In the event that any criminal investigator insists on access, we will notify you of the request for access and you will be given the opportunity to oppose such efforts as you and your counsel see fit. It is the Department's position that there are adequate safeguards to prevent the use of this statement against you in the event of criminal prosecution. Therefore, it is my responsibility to complete this administrative interview, and I remind you that you may face disciplinarytion up, to, and including, termination if you refuse to cooper �fifith this lawful order to answer my questions." Signature Date/Time 6 PSPD-004692 PSPD-004693 "P% I L- may I U I I&V I I TO: Officer Duthaler FROM: Sergeant Kovaleff SUBJECT: Miranda Advisement Due to the nature of this administrative investigation, Government Code 3303(h) requires me to advise you of your constitutional rights. Therefore, it is important that you understand that criminally: *You have the right to remain silent. *Anything you say may be used against you in court. *You have the right to an attorney before and during questioning. *Do yop understand each of these rights that I have explained to you? Yes"` No *With these rights in mind, would you like to speak to me now? Yes na Z t'ure Date/Ti(ne 'a ig - t1IIt I( I Dafe/Time PSPD-004694 59 3 0) PSPD-004695 t An'EMORANDUM DATE: May 181h, 2011 TO: Officer Duthaler FROM Sergeant Kovaleff SUBJECT: Lybarger Advisement Lybarger "While you have the right to remain silent with regard to any criminal investigation, you do not have the right to refuse to answer my questions as part of an administrative investigation such as I am presently conducting. Accordingly, I am ordering you to answer all of my questions fully and honestly. If you refuse to answer my questions, your silence can be deemed insubordination and result in administrative discipline, up to and including termination. As a general rule, the use of any statement you make under compulsion of the threat of such discipline is limited to administrative purposes only. However, you should also be aware that there are certain legal exceptions that may allow your statements to be used in any subsequent civil proceeding by the Department seeking civil sanctions against you or any other officer, as well as in any civil or administrative actions brought by you, or your exclusive representative, arising out of a disciplinary action. Further, your statements may be used in a court of law or subsequent administrative proceeding to impeach your testimony at that proceeding after the court reviews your statements to determine whether these statements serve to impeach your testimony. In the unfortunate event of your death, your statements may also be used for all purposes during a court or subsequent administrative proceeding.. Where the Department is under a legal obligation to do so, your statements will also be produced to any subpoenaing party in state PSPD-004696 or federal court, including the U.S. Attorneys' Office or representatives from the Department of Justice. Though your statements may have to be produced to a subpoenaing party, these statements usually cannot be used against you in court unless the judge first determines that the use of your statements does not violate your Fifth Amendment rights. The Department recognizes that you are not waiving your Fifth Amendment right to remain silent and we will not be providing any criminal investigator with access to this interview absent a court order to do so. In the event that any criminal investigator insists on access, we will notify you of the request for access and you will be given the opportunity to oppose such efforts as you and your counsel see fit. It is the Department's position that there are adequate safeguards to prevent the use of this statement against you in the event of criminal prosecution. Therefore, it is my responsibility to complete this administrative interview, and I remind you that you may face disciplinary action up to, and including, termination if you refuse to cooperate with this lawful order to answer my questions." —5/9// /'2- 2- Officers Signature Date/Time N PSPD-004697 rt rah Ai S m rt N rr! PSPD-004698 PSPD-004699 PSPD-004700 110 1 • «1 I1!1lEF9-Tn KOVALEFF: Alright, it's uh Wednesday, May eighteenth at about twelve oh even hours, present in the room is Sergeant Mike RILEY: Kim Riley of Lackey, De Meyer and McGill. COLANTUONO: Officer Luciano Colantuono. KOVALEFF: The purpose of this interview is an administrative interview April 17 th the incident began at approximately zero one nineteen hours. Just for everybody's sake here, this is being recorded on my audio recorder and it's also hopefully being recorded via video and audio in the room here. We'll go over some questions, but before I do, due to the purpose of this interview as an administrative interview, I don't want you to be alarmed by any of this. This is a standard procedure during any administrative interview, but I am going to read you your rights, it's probably not something you're really comfortable with, it's probably something that you don't usually have done to you, but it's just a matter of procedure and I don't want you to be alarmed by it. Due to the nature of this administrative investigation, Government Code thirty, three oh three H, requires me to advise you of your Constitutional Rights. Therefore it is important that you understand that criminally you have the right to remain silent, anything you say may be used against you in court. You have the right to an attorney Interview of Officer Luciano Colantuono Page I of 5 PSPD-004701 hL-4�t,j& �,, �-vx �,a, * �,-fin — Part One 5118/11 — 1158hrs-1 1206hrs before and during questioning. Do you understand each of these rights that I have explained to you? COLANTUONO: Yes, sir. KOVALEFF: With these rights in mind, would you like to speak to me • COLANTUONO: No. KOVALEFF: Okay. Do me a favor and just sign here and date and put the time as twelve oh eight. Okay, the follow-up to that is the Lybarger Admonishment and this is the second part of this phase of the administrative investigation and uh, for per the same Government Code, I am going to read you your Lybarger Admonishment. While you have the right to remain silent with regard to any criminal investigation, you do not have the right to refuse to answer my questions as part of an administrative investigation such as I am presently conducting. Accordingly, I am ordering you to answer all my questions fully and honestly. If you refuse to answer my questions, your silence can be deemed insubordination and result in administrative discipline up to and including termination. As a general rule, the use of any statement you make under compulsion of the threat of such discipline is limitec I rl ;41 to administrative •purposes only. However, you should als be aware there are certain legal exceptions that may allov your statements to be used in any subsequent civil proceeding by the department seeking civil sanctions against you or any other officer, as well as in any civil or Interview of Officer Luciano Colantuono Page 2 of 5 PSPD-004702 your statements to determine whether these statements served to impeach your testimony. In the unfortunate event of your death, your statements may also be used for all purposes during a court or subsequent administrative proceeding. When the department is under the legal obligation to do so, your statements will also be produced to any subpoenaing party in the State or Federal Court, including the US Attorney's Office or representatives from the Department of Justice. Though your statements may have to be produced to a subpoenaing party, these statements usually cannot be used against you in court unless the Judge first determines that the use of your statements does not violate your Fifth Amendment Rights. The department recognizes that you are not waiving your Fifth Amendment Right to remain silent and we will not, we will not be providing any criminal investigator with access to this interview absent a court order to do so. In the event that any criminal investigator insists on access, we will notify you of the request for access and you will be given the opportunity to oppose such efforts as you Interview of officer Luciano Calantuona Page 3 of 5 PSPD-004703 5/18/11 - 1158hrs-11206hrs administrative actions brought by you or your exclusive represent, representative arising out of a disciplinary action. Further, your statements may be used in a court of law or subsequent administrative proceeding to impeach your testimony at that proceeding after the court reviews PSPD-004704 5/18/11 — 1158hrs-11206hrs and your counsel see fit. It is the department's position that there are adequate safeguards to prevent the use of this statement against you in the event of criminal prosecution. Therefore, it is my responsibility to complete this administrative interview and I remind you that you may face disciplinary action up to and including termination if you refuse to cooperate with this lawful order to answer my questions. Sign and date and time there and we will use twelve, twelve. I will provide you with copies of this following thl interview. Okay, alright, I know you've already been interviewed on the criminal side of this by Sergeant Anderson and Detective Studer. We are going to go over some details of - - kind of a background on what preceeded this incident and the reasonable suspicion for the stop. If at any time you have any question or want to clarify anything, let me know. If there is anything you want to add, feel free to just expand on it. But, these are going to be some very straight forward questions about the events up to and leading to that incident. MLEY: Real quick, I want to clarify, did you say you were going to get into the reasonable suspicions of the stop? KOVALEFF: Yes, just the initial contact and that's it. RILEY: Okay, then we are going to have to take a break and, and discuss that a little bit further. Interview of Officer Luciano Colantuono Page 4 of 5 PSPD-004705 1104P-3653 interview of Officer Luciano Colantuono — Part 0 . 5/18111 — 1158hrs-1 1206hrs KOVALEFF: okay. Do you want to pause here? RILEY: Uh. huh. KOVALEFF: Going off the record. Do you want to step out and go into there or - - RILEY: Yeah. We're going to need some time - - KOVALEFF: Okay. RILEY: - - to go over everything. KOVALEFF: If the uh - - okay. Typed by: Sandee Bosl"M *1 July 15, 2011/1050h] interview of Officer Luciano Colantuono Page 5 of 5 PSPD-004706 5/18/11 - 1412hrs-1423hrs KOVALEFF: It's just going to be me - - RILEY: Okay.' KOVALEFF: - - Matt (inaudible - door closing) Okay, this is Sergeant Kovaleff we're going to continue the interview which began around noon, we're back on recorder. Present in the room, myself Sergeant Kovaleff - - COLANTUONO: Officer Luciano Colantuono. RILEY: Kim Riley, Lackey, DeMeyer and McGill. KOVALEFF: Uh, Sergeant Beard has left. Remind you you're under Miranda, you do not want to discuss this incident. You've been admonished with your Lybarger Admonishment which you signed, any questions on that matter at all? COLANTUONO: No. happened - - pretty much began about one nineteen am on Sunday, April seventeenth in the twenty-seven hundred block of Verona Road. What shift were you working that day? COLANTUONO: I work swing shift patrol. KOVALEFF: And how many months had you been working that shift? COLANTUONO: I've been on that shift, the same rotation since K9s for at least two years now. KOVALEFF: Okay. How much sleep did you get prior to going to work on the Sixteenth, for that shift? COLANTUONO: Approximately five to six hours. KOVALEFF: Did you feel rested? COLANTUONO: Yes. KOVALEFF: Were you sick or injured prior to this incident? Interview of Officer Luciano Colantuono Page 1 of 7 PSPD-004707 1104P-3653 Interview of Officer Luciano Colantuono — Part Two 5/18/11 —1412hrs-1423hrs COLANTUONO: No. KOVALEFF: Had you consumed any alcohol prior to coming to work that day or during your shirt? COLANTUONO: No. KOVALEFF: Had you taken any drugs, prescription or illegal drugs prior to coming to work that day or during your shift? COLANTUONO: Prescriptions. KOVALEFF: Which prescription drugs? COLANTUONO: Seizure, Kepra and Gavopantene. KOVALEFF: And these prescribed drugs are something you've been taking for how long? COLANTUONO: Since I was hospitalized in two thousand eight. KOVALEFF: What were you assigned to do during your shift that evening? COLANTUONO: Assigned swing shift K9 patrol. Primary duties are alarm calls and assist in high -risk or searches of suspects (inaudible). KOVALEFF: How long had you been working with your assigned partner Ike, prior to that night. COLANTUONO: We were going on two years. KOVALEFF: Do you regularly attend K9 training or did you, I should say, regularly attend K9 training with your assigned K9, Ike? COLANTUONO: Yes. KOVALEFF: Did you regularly attend K9 training with other K9 officers? COLANTUONO: Yes. interview of Officer Luciano Colantuono Page 2 of 7 PSPD-004708 5/18111 — 1412hrs-1423hrs KOVALEFF: In terms of your training with Ike and the other Officers, including Officer Duthaler, had you had specific training related to what occurred during this incident? COLANTUONO: Yes. KOVALEFF: Okay, um, let's reference on the background now, a few questions on just the reason you were there. I've reviewed the interview with Sergeant Anderson, I just want to go over a few things. The address in question we're talking about is twenty-seven ninety Verona Road in the City of Palm Springs. Now many times do you think you had been there prior to this night on law enforcement related contacts? COLANTUONO: I want to say at least approximately ten times on my own doing knock and talks and consentual encounters in the front yard. KOVALEFF: And were these ten times, were they in - - spread out over a five year period or more recent? COLANTUONO: I'm going to say approximately throughout a two to thre,,;, month period. KOVALEFF: So, fairly recent, ten contacts over a two to three month period of time? U'm, the night before this shift, you had arrested an individual there I correct? COLANTUONO: Correct. KOVALEFF: And uh, when you arrested him, he was in possession of a controlled substance? COLANTUONO: Correct. Interview of Officer Luciano Colantuono Page 3 of 7 PSPD-004709 5/18111 — 1412hrs-1423hrs KOVALEFF: Okay. He was the owner of a registered vehicle, I believe it was a lifted Ford truck that was parked outside the location? COLANTUONO: Correct. KOVALEFF: Okay. So on April seventeenth, two thousand and eleven, you went to that location and you saw a vehicle that had peaked your interest. What vehicle was that? COLANTUONO: It was a newer model Honda Accord parked in the driveway. KOVALEFF: And it is my understanding that, that vehicle you believed had been involved in a pursuit approximately one month earlier, a vehicle that had been driven by a suspect named Francisco Durazo, correct? COLANTUONO: Correct. KOVALEFF: How did you know that information? COLANTUONO: I remembered seeing the car when, it was parked here for processing and I remember the last plate, the last three on the plate and they matched similar and when I ran the plate with the RO it matched the, the name sounded familiar also to the stolen, the victim of the stolen vehicle. KOVALEFF: After seeing that vehicle, did you discuss the vehicle, the registered owner and any other information regarding that vehicle with Officer Duthaler? COLANTUONO: Yes. KOVALEFF: Did he mention any fact that, any contacts regarding that registered owner of that vehicle? COLANTUONO: She had narcotics related contacts. KOVALEFF: Were you familiar with the registered owner at all? Interview of Officer Luciano Colentuono Page 4 of 7 PSPD-004710 1104P-3653 Interview of Officer Luciano Colantuono — Part Two 5/18111 — 1412hrs-1423hrs COLANTUONO: I remember pulling up Alliance and just running the kind of contacts and I wasn't sure if she was the arrestee or suspect, but there was narcotics and she also had the victim contacts for the ten, eight, five - - the stolen vehicle. KOVALEFF: Okay, So would it be safe to say that you went by this house, you'd been there approximately ten times, you saw a vehicle that you knew was involved in a pursuit with a armed and dangerous suspect named Francisco Durazo, and you were under - - you had information to believe that the registered owner of that vehicle had law enforcement contacts for narcotics offenses, correct? COLANTUONO: Correct. KOVALEFF: After discussing that, those issues with Officer Duthaler and doing some of your own investigation, was there anything else that peaked your interest to the point of reasonable suspicion regarding that vehicle? COLANTUONO: That I knew that the keys were stolen with the vehicle and usually if a car is stolen, it's reported stolen, the keys are rarely taken with them unless they're left inside the vehicle, at this time the keys weren't left inside the vehicle and it wasn't involved in a residential burglary, so it just raised my suspicion that you know usually a car doesn't get stolen with it's keys and I remember Officer Duthaler was also talking about there was a car seat in the trunk of the car and when questioned about it to the victim when she picked it up, she was saying nothing in that car was hers. So it just didn't make sense on why there was a child Interview of Officer Luciano Colantuono Page 5 of 7 PSPD-004711 listfill 5/18/11 — 1412hrs-1423hrs seat in the car and the keys were taken with the car, If she didn't know who had taken it. KOVALEFF: Understood. So following your discussion and you did some homework on the computer with Officer Duthaler, it is my understanding that you saw an individual walk over towards the car? COLANTUONO: I saw an individual walk to a car that pulled up while I was watching the Honda. There was a separate car that pulled up to the location. KOVALEFF: And this activity, what did you believe it was? COLANTUONO: The car pulled up, lights turned off and then immediately after a subject walked out and went inside the car. At that point I figured there was some sort of maybe a transaction going on because of the time that it, that the, the sub, subject walked out, it was quick. No one walked up to the door, everything was - - stayed inside the car. All the lights were off and it wasn't as though someone was picking them up and driving away, so I believed there was some sort of transaction that may be conspiring at that time. KOVALEFF: Okay. And then you, shortly thereafter you proceeded to drive up on that vehicle, correct? COLANTUONO: Correct. KOVALEFF: The Honda that was registered to the person that was on probation? COLANTUONO: I didn't drive up to the Honda, I drove up to the car that pulled up, the teal hatchback. Interview of Officer Luciano Colantuono Page 6 of 7 PSPD-004712 1104P-3653 ly, 1412hrs-1 423'rrs KOVALEFF: Okay. Okay, understood. And when you saw that vehicle, it was occupied? COLANTUONO: Correct. KOVALEFF: And you saw somebody seated in that vehicle. COLANTLIONO: Correct. KOVALEFF: Okay. Is there anything else you'd like to add? RILEY: I have nothing further. KOVALEFF: Okay. I have nothing further. If you feel there is anything you'd like to add, feel free to add it, otherwise we will be going off the record. RILEY: Okay. Typed by: Sandee Bosler July 15, 2011/1128hrs Interview of Officer Luciano Colantuono, Page 7 of 7 PSPD-004713 C 0) F M9 PSPD-004714 5/18111 — 1214hrs-1223hrs KOVALEFF: Okay, we're on the record, I'm Sergeant Mike Kovaleff. It's May eighteenth, two thousand and eleven at approximately twelve twenty-three pm. Present in the room are - - BEARD: Sergeant Matt Beard. DUTHALER: Officer Chris Duthaler. RILEY: Kim Riley with Lackey, De Meyer and McGill. KOVALEFF: And the purpose of this interview today is an administrative interview reference an incident that occurred on Sunday, April 1th7 , two thousand and eleven involving you and Officer Colantuono up in the twenty seven hundred block of Verona. Prior to this interview, due to the administrative nature of it, I have to read you your Rights. I'm not trying to alarm you or anything like that, it's just standard protocol. Due to the nature of this administrative investigation, Government Code thirty, three oh three H, requires me to advise you of your Constitutional Rights. Therefore, it is important that you understand that criminally you have the right to remain silent, anything you say may be used against you in court. You have the right to an attorney before and during questioning. Do you understand each of these rights that I have explained to you? DUTHALER: Yes, sir. KOVALEFF: With these rights in mind, would you like to speak to me now? DUTHALER: No. Interview of Officer Chris Duthater Page 1 of 6 PSPD-004715 1104P-3653 5/18/11 — 1214hrs-1 223hrs KOVALEFF: Do me a favor Chris, just sign, date and the time is twelve, twenty-five on here, the date is the uh eighteenth of May. DUTHALER: What's the time sir? KOVALEFF: Twelve, twenty-five. Now, the follow-up to the Miranda Advisement in the administrative process is the Lybarger Admonishment. While you have the right to remain silent with regard to any criminal investigation, you do not have the right to refuse to answer my questions as part of an administrative investigation such as I am presently conducting. Accordingly, I am ordering you to answer all my questions fully and honestly. If you refuse to answer my questions, your silence can be deemed insubordination and result in administrative discipline up to and including termination. As a general rule, the use of any statement you make under compulsion of the threat of such discipline is limited to administrative purposes only, However, you should also be aware there are certain legal exceptions that may allow your statements to be used in any subsequent civil proceeding by the department seeking civil sanctions against you or any other officer, as well as in any civil or administrative actions brought by you or your exclusive represent, representative arising out of a disciplinary action. Further, your statements may be used in a court of law or subsequent administrative proceeding to impeach your testimony at that proceeding after the court reviews Interview of Officer Chris Duthaler Page 2 of 6 PSPD-004716 Interview of Officer Chris Duthaler 5/18/11 —121 hrs-1223hrs your statements to determine whether these statements unfortunateIn the s, death, your statements Federalmay also be used for all purposes during a court or subsequent administrative proceedling. When the department is under no, or, I'm sorry, when the Department is under a legal obligation to do so, your statements will also be produced to any subpoenaing party in the State or # ■ # Office or representatives-#. of Justice. Though your statements may have to be produced to a subpoenaing party, these statements usual�ly cannot be used against you# i#," first determines that the use of your statements does not violate your Fifth Amendment #. The department#gnizes that you are not . # your Fifth Amendment silent and we will not be providing any criminal investigator access to this interview absentwcourt order 4 # • In the event that any criminal investigator insists on the access, we will notify you of the request for access and you will be given the opportunity to, to oppose such efforts as you and your counsel see fit. It is the department's position that there are adequate safeguards to prevent the use of this statement against you in the event of criminal prosecution. Therefore, it is my responsibility to complete Interview of officer Chris Duthaier Page 3 of 6 PSPD-004717 1104P-3653 Interview of Officer Chris Duthaler 5/18/11 — 1214hrs-1223hrs this administrative interview and I remind you that you may face disciplinary action up to and including termination if you refuse to cooperate with this lawful order to answer my questions. Please sign and date that there. Okay, how this portion of the administrative interview is going to work - - Officer involved shooting that occurred - - the incident began about one, nineteen hours on Sunday, April seventeenth outside of twenty-seven ninety Verona Road. What shift were you working that day? DUTHALER: Graveyard. KOVALEFF: And how many months had you been working that shift? DUTHALER: I've worked that for the last five years, I believe. KOVALEFF: How much sleep did you get prior to going to work that day on uh - - DUTHALER: Six to seven hours. KOVALEFF: Did you feel rested? DUTHALER: Yes. KOVALEFF: Were you sick or injured prior to this incident? DUTHALER: No. KOVALEFF: Had you consumed any alcohol prior to coming to work that day or during your shift? DUTHALER: No. KOVALEFF: Had you taken any drugs, prescription or illegal, prior to coming to work that day or during your shift? DUTHALER: No. Interview of Officer Chris Duthaler Page 4 of 6 PSPD-004718 1104P.3653 tntm-vi-aw 1210,,rs-1223Yrs KOVALEFF: What were your assigned duties during your shift? DUTHALER: As patrol to handle calls for service. KOVALEFF: And you have a partner that was assigned to you, is that correct? DUTHALER: My K9? KOVALEFF: Yes. DUTHALER: Yes, lax. KOVALEFF: How long had you been working with your assigned partner lax prior to this incident? DUTHALER: Almost five years. KOVALEFF: And did you regularly attend K9 training with lax? DUTHALER: Yes., KOVALEFF: And did you regularly attend K9 training with other K9 Officers? DUTHALER: Yes. KOVALEFF: And, had you done specific training that related to this type of incident? DUTHALER: Yes. KOVALEFF: And had you and Officer Colantuono had training that would relate specifically to what occurred in this incident? DUTHALER: Yes. KOVALEFF: I don't have any further questions. If you want to provide any additional information, you're more than welcome to. Sergeant did you want to add anything? BEARD: No. RILEY: I have nothing further. Interview of Officer Chris Duthaler Page 5 of 6 PSPD-004719 5/18111 — 1214hrs-1223hrs KOVALEFF: That concludes the interview. It's twelve -thirty pm on the I -AN PFRUZY85.11 -0 Interview of Officer Chris Duthaler Page 6 of 6 July 15, 2011/1220hrs PSPD-004720