Phoenix Law Enforcement Association

In Over Their Heads

PLEA has great concerns with the way that the interim police management team is handling the Drenth murder investigation with regard to collection of DNA samples.  The departement has engaged in casting an ever widening heavy-handed net to obtain DNA samples.  The department asked dozens of officers to voluntarily comply with providing DNA samples to assist in the investigation. A small group of officers had  concerns similar to those of PLEA regarding whether or not their DNA would be enetered into the CODIS database.

The department was unable to satifactorily address this question that had been posed by the officers and their attorney.  On August 8th, 2011, the department obtained search warrants to obtain DNA evidence for five officers essentially stating that the evidence is being obtained because they are potential suspects in a homicide investigation.  What follows are e-mail exchanges that recently occurred between PLEA and City management regarding the issue.

CLICK HERE to view a copy of one of the search warrants issued (note: at present time the search warrant affadavits are sealed).

PLEA’s initial Communication to City Manager on Friday, August 19, 2011

David,

The attached search warrants are being sent to you out of courtesy to notify the City Manager’s office that 5 Phoenix Police Officers are being treated as suspects in a homicide ref. the death of Sgt. Sean Drenth. These five officers are stellar employees with an exemplary work history record.

The fact that our members are being treated in this fashion is OUTRAGEOUS!

As I’ve stated to you and Mr. Zuercher in the past – Assistant Chief Jim Pina is in over his head. This poor decision is being paid for on the backs of my members who are now and forever more connected to the death of a Phoenix Police employee as suspects.

Lt. Anthony Vasquez communicated to one of the 5 involved officers that “it would be a shame if the Department had to get a search warrant for their DNA and that information was leaked to the media.” Maybe it’s a far stretch, but I can understand where Officer ________ took this as a threat. In lieu of a court order (i.e. search warrant), these five officers were willing to provide DNA samples with the agreement that the Police Department would afford written assurance that they (the officers) would not be entered into a DNA tracking database. Former police legal advisor Bob Kavanagh, who represents several of the officers involved in this situation, was given the clear impression from Commander Dave Faulkner of an offer on the table that would meet the needs of the 5 officers. Below is the communication that has taken place between Mr. Kavanagh and the Phoenix Police Department.

From: Robert J. Kavanagh [mailto: RobertKavanagh@azbar.org]
Sent: Friday, August 12, 2011 9:09 AM
To: jennifer.laroque@phoenix.gov
Subject: DNA samples

Jen,
I am not going to think about this DNA issue anymore for a while after this email. I will be gone August 17-27, 2011 on vacation. Based on my telephone conversation with you and Cmdr Faulkner on 8/9/11, believing that all parties were acting in good faith to really get the matter resolved, I dropped everything that I was trying to get completed before I left on vacation and scrambled to get this matter resolved. I was asked point blank to get the matter resolved pretty quickly and I did – I had at least 4 of the 5 officers who I represent on board. The 5th officer simply wants to know if he (through the PPD or a private lawyer) can petition the federal or state government to have his DNA sample removed from CODIS if it gets into the data base (ie maybe it’s already there as an unknown sample collected at a crime scene). I don’t know what happened to make the PPD reverse its position in a matter of 48 hours, especially since the PPD contacted me with the proposal. My opinion is that the PPD does not have enough evidence to obtain a court order for the DNA from the officers. I suppose the PPD could go to a rubber stamp magistrate and get the order but there would be significant fallout if that happens. It is well documented that the officers have been told that their DNA is for elimination purposes only and the PPD has plenty of evidence that these officers had nothing to do with the death of Sgt. Drenth. The compelled the production of a bodily substance (blood, urine, breath, DNA) is a search. A search and seizure of DNA is probably much more intrusive than the others mentioned due to all of the things that DNA can tell about a person. These officers want to get this matter resolved but they also want some protection against having their DNA end up permanently in a national data base. I don’t blame them. I will try one more effort: can the PPD find out the step by step process for expunging DNA samples from CODIS if the officers’ DNA gets into CODIS (whether as an unknown sample collected at a crime scene and the officer is later eliminated as a suspect, or otherwise). I really think that this is the biggest issue. As I said, I will be gone for a while but perhaps when I return we will have a real resolution to this matter. Please forward this to whomever you need to. I don’t have Cmdr. Faulkner’s email address, otherwise I would have copied him too. I ask that if the PPD decides to obtain a court order for the officers’ DNA that the PPD give me the courtesy of notice and an opportunity to object. Thank you for your attention to this matter.

Bob Kavanagh
Law Office of Robert J. Kavanagh
90 South Kyrene Road, Suite 1
Chandler, AZ 85226
Office: 480-831-3040
FAX: 480-456-0920
robertkavanagh@azbar.org

David,

You might be amazed of all the personal implications and issues that can arise when one’s DNA is obtained. Perhaps Assistant Chief Jim Pina would be willing to give up his DNA in an effort to lead by example. Doctors are at hospitals. Pilots are at airports. Police officers are at crime scenes. None of these are unusual. How mere presence at a location where an employee is supposed to be is probable cause to list them as a suspect of a crime that occurred at the location they were being paid to be present at is most unreasonable. A portion of the warrant reads (pdf – search warrant 1): “That this evidence is to be used to assist in the identification (emphasis mine) or exclusion of ____________, white male, date of birth _________ as the perpetrator of the offense listed herein;” If the officers’ DNA is found at a scene they were supposed to be at, how does this prove or provide evidence that they perpetrated that crime? PLEA understands the importance of “exclusion” but is opposed to the use of a court order that has permanent implications on the reputation of Phoenix Police employees and PLEA members. The pursuit of the least disruptive and harmful venue in obtaining DNA to further this investigation was abandoned by Assistant Chief Jim Pina for the consistent heavy-handed tactics of the interim management team. For some reason Interim Assistant Chief Joe Yahner and Assistant Chief Jim Pina struggle with the constitutional rights afforded to Phoenix Police Officers.

David, how are my officers going to answer the following question on the stand in a court of law under oath the rest of their career – the question being: “Officer, have you ever been considered a suspect in the homicide of a police officer?” Why doesn’t Jim Pina get on the stand and answer that for them? Once again, Assistant Chief Jim Pina is in over his head.

As Mr. Kavanagh communicated in his email, the protective offer sought by police employees was withdrawn and search warrants were served on my officers. It should be noted that it is our belief, as well as Mr. Kavanagh, that these warrants, along with the necessary affidavits, were already in existence prior to the agreement provided by the Department and reviewed by Mr. Kavanagh. We call this bad faith in our office.

PLEA is submitting three requests for your consideration:

1. PLEA would like to sit down to obtain face-to-face dialogue with you, Ed, Yahner, Pina, and Faulkner.
2. Direct Assistant Chief Jim Pina to explain to the media as to his thought process which facilitates the status of 5 Phoenix Police Officers as suspects involved in the homicide of a Phoenix Police Sergeant.
3. Direct Assistant Chief Jim Pina to explain to the 5 officers as to his thought process which facilitates their status as suspects involved in the homicide of their peer and friend Sgt. Sean Drenth.

Your timely response is greatly appreciated seeing that at least 5 police families have been seriously and permanently disrupted and damaged.

MARK SPENCER
PLEA

p.s. Joe Yahner made it clear this morning to PLEA Vice President and Grievance Chair Dave Kothe that he did not wish to discuss this issue any further with PLEA

RESPONSE FROM ED ZUERCHER ON FRIDAY, AUGUST 19, 2011

Dear Mark –

David is on a well-deserved vacation today and is back Monday. I’m sure we can all sit down and discuss the concerns. I’ll start the process of getting a meeting together with Chief Yahner, Assistant Chief Pena, Commander Faulkner and your folks. I agree that it would be inappropriate for anyone to discuss leaking information to the media. We’d all agree that leaking information to the media is a bad practice that doesn’t serve anyone well and has no place in a professional environment. What you reported is not acceptable for a supervisor and I’ve asked Chief Yahner to review the issue of what Lt. Vasquez is reported to have said and address it through his chain of command.

Chief Yahner informed me of this issue this week. It is my understanding that this court order is part of an effort to solve the death of Sgt. Shawn Drenth. I am told that as part of the investigation, over 100 people gave their DNA when requested by investigators. Those who led by example in submitting DNA included Joe Yahner, Jeri Williams, Jim Pena, Kevin Robinson, and Jack Harris. I am told that there were 5 who were inside the inner perimeter of the scene who refused to submit DNA. It is my understanding that as part of the ongoing investigation, a court order was obtained, in consultation with the county attorney’s office, to obtain DNA from everyone who was inside the inner perimeter of the scene. I am also aware that Cmdr. Faulkner worked hard to try to resolve this situation this week but in the end was not able to without a court order. We can discuss all this together to clarify where you have different information.

Mark, I also think it’s important to de-escalate the rhetoric about individual assistant chiefs and managers. I can tell that this is an emotional issue, but we need to discuss disagreements without derogatory statements about assistant chief Pena.

Dava will be in touch with you about scheduling a time to get together.

Thanks,
Ed

PLEA RESPONSE TO ZUERCHER ON FRIDAY AUGUST 19, 2011

Ed,

Thanks for you timely response. When you’re told that 5 officers “refused to submit DNA” that translates quite plainly –THEY EXERCISED THEIR CONSTITUTIONAL RIGHTS. I wonder what’s more serious: “rhetoric” about a manager or front-line rank-and-file officers being listed as a homicide suspect in an official court document? Are the five courageous managers who gave up their DNA implicated in official court papers as suspects in the murder of a police officer? Courage is only a deep as the risk is great.

We look forward to the meeting.

Mark Spencer

PLEA