Wednesday, March 22, 2023
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Exclusive: Warrants Provide Inside Look at Deadly APD SWAT Fire

Questions still surround SWAT standoff


The past week saw a flurry of initial media coverage regarding the death of Brett Rosenau, the 15-year-old boy who died of smoke inhalation after the Albuquerque Police Department fired a noise-flash diversionary device during a SWAT standoff. There have been conflicting reports in the media and statements from APD that have added to the confusion.

Here’s what we know: APD SWAT was trying to arrest Qiaunt Kelley for a parole violation warrant and allegedly believed he was involved in other crimes. They surrounded a house on San Joaquin Ave SE, and used flash-bang grenades and 40mm chemical-weapons rounds to try and get Kelley to exit. APD knew that there was another person (Rosenau) in the home, but it’s unclear how they determined whether or not he was a hostage or if they had any notice that he was a child. At some point, Kelley opened the door to the house and laid down on the ground; when he refused to stand up, SWAT fired at least one flash-bang. Later, APD called the fire department after they realized the house was on fire. The fire resulted in Kelley’s surrender. Afterward, APD found 15-year-old Rosenau deceased inside the home.

Why did APD say the man arrested had a federal warrant when none exists?

APD first announced on July 7 that an unknown person (later identified as 15-year-old Brett Rosenau) had been found dead inside a home after they arrested Qiaunt Kelley.

“So yesterday, detectives from the Albuquerque Police Department were conducting surveillance on who is a person of interest in several violent crimes within the city of Albuquerque,” APD Chief Harold Medina said from the scene near San Joaquin Ave SE in a video posted to the department’s social media account. “ also had a felony warrant for robbery at the federal level and detectives were able to track that individual to a home down the street here.”

Except there was no federal warrant for Kelley’s arrest.

It’s likely that Medina initially said there was a federal warrant because of internal confusion since the APD Detective, Eric Endzel, who obtained a search warrant in this case is cross-commissioned by the FBI’s Cyber Crime Task Force and the US Marshals. It’s common practice for federal agencies to have partnerships with local law enforcement and to have officers that are cross-commissioned. The benefit for agencies like APD includes access to certain types of information and warrants that are available at the federal level, but not the local level. This includes things like warrants for electronic data history (like an ankle monitor), which federal law enforcement commonly uses.

Why did a judge give APD a warrant to search for a man accused of violating parole?

Regardless, the only arrest warrant that existed for Kelley at the time of the incident was a parole violation warrant. Kelley was accused of failing to keep in contact with his parole officer.

Carmelina Hart, a spokesperson for the New Mexico Corrections Department (NMCD), explained that Kelley’s parole officer determined on March 17 that Kelley had absconded (that is, stopped participating in parole programs and meetings). Days later, on March 20, a parole violation warrant was issued for Kelley.

Parole violation warrants are different from those warrants issued by a judge, in that they are issued by the parole department and are then entered into the national database. Hart explained that if police come across a parole violator in the normal course of duties, say during a traffic stop, they can arrest the parolee, who is then returned to jail to await a hearing by the parole board.

Kelley is still entitled to a hearing before the parole board to determine whether or not the allegations are sustained. That ruling will determine whether Kelley is returned to prison, or if he is released back to parole. It’s likely he will remain at the Metropolitan Detention Center until after a parole board hearing.

While sometimes Adult Probation and Parole employees coordinate with police to “round-up” or otherwise locate people with parole violation warrants, that wasn’t the case in Kelley’s arrest.

“NMCD probation and parole department was not involved in or on the scene on the date of the incident,” Hart said.

Hart further said that NMCD had not reached out to APD at any time since the issuance of the warrant to ask that they specifically locate or arrest Kelley.

Which search warrants were issued?

APD has claimed in multiple postings on social media that Kelley was wanted for questioning in other crimes but has provided little to no details about those crimes. Second Judicial District Attorney’s Office Spokesperson Lauren Rodriguez said that their office approved two warrants related to Kelley last week.

“We received two separate search warrants for approval from APD last week,” Rodriguez said. “The first was a search warrant for electronic data to try and locate Mr. Kelley. The second was a search warrant for the residence at 8109 San Joaquin Ave SE to search for and locate Mr. Kelley, who had been seen by law enforcement going into that residence.”

The first warrant, for electronic data to locate Kelley is sealed by the court (standard practice for warrants of this type.) The second warrant, a search warrant for the home, details how the situation began.

According to the affidavit, Kelley had fled from APD investigators during a carjacking and robbery investigation on May 25, but it’s unclear whether Kelley was actually a suspect in that case or if APD simply wanted to speak with him. APD also said it located a gun during that investigation, but didn’t say that they have any evidence the gun belonged to Kelley. The language in the warrant itself was confusing, saying that Kelley was wanted on a “felony warrant (robbery) issued by” New Mexico Probation and Parole.

Does APD routinely use flash bangs when serving a warrant?

The warrant, requested by APD Detective Endzel, said officers were watching the home on San Joaquin Ave SE when they saw a man they presumed was Kelley outside.

“ attempted to contact Mr. Kelley at [4:48 p.m],” Endzel wrote. “Mr. Kelley immediately ran North towards the residence and jumped the Eastern wall into the backyard. Detectives and officers in containment positions to the North observed Mr. Kelley running through the yard and gave him lawful commands to stop running.”

But according to APD, Kelley didn’t stop running; instead, he crawled under a tarp near the back of the house. The affidavit said that APD had lost sight of Kelley, but that he had not been seen leaving the home.

The search warrant was approved by Second Judicial District Court Judge Britt M. Baca-Miller at 9:10 pm on July 6 and granted special permission to police to conduct the operation at night.

It was later, when they served the warrant, that the home caught fire.

Albuquerque Fire and Rescue Public Information Officer Tom Ruiz said that Engine 5 was called to the home at 2:45 a.m. after APD noticed that a fire had started.

“Due to the subject still being barricaded was forced to perform a transitional attack from the exterior of the structure in coordination with APD,” Ruiz said.  “As the fire was being extinguished the suspect did exit the structure and was immediately taken into custody by APD. In coordination with APD, AFR fire crews entered the structure and located a deceased individual.”

APD admits that they used a noise-flash diversionary device, commonly known as a flash bang, at the home prior to the start of the fire, but it’s unclear from the APD statement whether or not that device was fired into the home, or outside the home, and that distinction matters.

Flash-bang grenades have been shown to cause fires before, in fact, a 2004 study, Performance Characterization Study: Noise Flash Diversionary Devices (NFDDs), found that flammable objects, especially things like pillows or sofa cushions, could indeed go up in flames.

This image shows the collateral effects of flash bang devices, and was published in federally funded grant study, Performance Characterization Study: Noise
Flash Diversionary Devices (NFDDs)
, in 2004.

While it’s not clear exactly where the flash bang was deployed, it is clear that APD apparently used it to try and get Kelley to stand up, instead of lying on the ground or sitting in place.

“At one point, a man believed to be Kelley, opened the back door of the home and lay on his back as officers monitored his actions,” A press release from the City of Albuquerque read. “He ignored officers’ commands to stand up. He eventually sat in place. Officers used a noise-flash diversionary device to get Kelley to follow commands. But he retreated back into the home, shutting the door.”

SWAT tactics previously questioned by DOJ

The use of flash-bang grenades by SWAT to get suspects to follow commands has been highlighted as a concern before, most notably in the November 2020 Independent Monitor’s Report (IMR), a part of the DOJ oversight of the department.

According to the IMR, SWAT was called to assist APD’s Investigation Division with the arrest of a suspect accused of armed robbery who had barricaded himself inside a home.

“When communications via loudspeaker failed and telephone calls to the suspect’s cell phone went unanswered, officers deployed two noise-flash diversionary devices (NFDD) outside the residence to stimulate a response from the suspect,” the report states. “When no response was received, two rounds of 40 mm direct impact sponge rounds were deployed through a window of the residence to facilitate better communications.”

The problem is, there’s no evidence that these tactics are useful, in fact, the IMR indicates there’s no rational basis for the use of various ammunitions in this sort of situation, which is hauntingly similar to the incident last week where Kelley was arrested and Rosenau died.  

“In short, the use of various 'excuses' for the deployment of 40mm rounds during tactical operations—for tangential reasons—continues unabated,” The report states. “We consider this an issue of deliberate non-compliance at this point.”

APD said it used powder irritants inside the home, and APD Public Information Officer Gilbert Gallegos confirmed yesterday that the tactical team regularly uses 40mm sponge rounds to deploy the powders. In summation, the 40mm rounds the IMR noted were used inappropriately in previous situations were the same rounds used in the same way during the Kelley arrest that resulted in Rosenau’s death.

“More importantly, it continues to be apparent that APD has not had and currently does not have an appetite for taking serious approaches to control excessive or unwarranted uses of force during its police operations in the field.”

Independent Monitor's 13th Report, May 2021

That’s not the only problem, according to the federal monitor in a May 2021 report. APD uses a “layered response,” which is a coordinated and simultaneous deployment of multiple kinds of force without the independent assessment of the effectiveness of each. But according to the IMR, it’s not only the deployment of force but the failure to take a serious approach to control excessive force that concerned federal monitors.  

“More importantly, it continues to be apparent that APD has not had and currently does not have an appetite for taking serious approaches to control excessive or unwarranted uses of force during its police operations in the field,” the May 2021 report states.  “Command and control practices regarding the use of force continue to be weak. APD continues to lack the ability to consistently ‘call the ball’ on questionable uses of force, and at times is unable to ‘see’ obvious violations of policy or procedure related to its officers’ use of force.”

Attorney General is on the case

They have asked New Mexico Attorney General Hector Balderas to review the case.

During his tenure, Balderas has a questionable track record of holding officers accountable. We’ve reported before on the lackluster performance of the Law Enforcement Academy Board, which Balderas chairs by virtue of his position.

Yesterday, another blow to police accountability was dealt when a judge dismissed 2nd-degree murder charges against former Las Cruces Police Department officer Christopher Smelser in a case prosecuted by Balderas’s office.

It’s unclear when any review into APD’s use of SWAT and Rosenau’s death will take place. Balderas’s office has not yet completed its review of the March 2022 shooting of David Aguilera by Chaves County Sheriff’s Office deputies, and a spokesperson for Balderas has repeatedly highlighted a lack of resources and funding for these large and costly investigations.

When Balderas’s office does complete its review, it’s likely that they will be tasked with answering key questions, including whether or not Rosenau was a hostage inside the home and who made the determination regarding his status.

For now, The Paper. is waiting for additional records of the incident to be released by the Albuquerque Police Department and other agencies.


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