Man accused of kidnapping, killing Diana Alvarez awaits decision on cell phone evidence

The man accused of kidnapping and killing 9-year-old Diana Alvarez is working on getting key cell phone evidence thrown out of his upcoming trial.

Jorge Guerrero’s attorneys say that law enforcement took his phone without a warrant, making its search unlawful.

On the first day of the hearing, witnesses testified about how Guerrero tried to get rid of the phone around the same time he was accused of kidnapping and killing Diana Alvarez.

A key witness in the case admitted on Wednesday that she did not know whether the Lee County Sheriff’s Office had obtained a warrant to search Guerrero’s cell phone.

Cape Coral Police Department Detective Patricia Bell, who worked with the FBI’s child exploitation taskforce at the time, said on the stand that the phone was already unlocked when she began to interview Guerrero, so she searched it.

Bell said she did ask Guerrero for a password to a Vault app he used to hide photos. During their interview, Bell said Guerrero admitted to sending photos to Diane’s uncle, and he was willing to show them to her.

“We’re talking about the messages and pictures on the phone, and he says, ‘well, it’s just that those… If her mom finds out, she’ll just about kill me since I sent them to their uncle. But you guys can check on the phone. That one. On mine. I sent them. I don’t know if via WhatsApp to Mario. That’s her uncle. But I didn’t send them to anyone else, just to him,'” said Bell.

The defense also wants the judge to throw out the statements Guerrero gave during his interviews with LCSO on the basis of not being read his Miranda rights.

Bell said when she talked with Guerrero, an interpreter did read him his rights.

WINK News does not know when Judge Margaret Steinbeck will rule whether Guerrero’s phone or statements can be used as evidence in his September trial. The judge said they would not be making that decision on Wednesday.

“This really is a key issue for the state because I almost came in here and ruled that the state had not overcome the burden. I may ultimately land here, but one of the things that is very problematic is the interpretation did not give a very clear warning,” said Steinbeck.

Here’s what happened in the hours after Alvarez’s disappearance:

SUNDAY, MAY 29, 2016

2 A.M.: Diana was last seen on 3500 block of Unique Circle when her pregnant mother, Rita Hernandez, checked the rooms of their home in the Sheltering Pines Mobile Home Village.

3 A.M.: Guerrero may have been with Diana at this time. “Based on statements Mr. Guerrero made to law enforcement, there are admissions that place him with Diana at some period in the morning, approximately at 3 o’clock in Lee County,” Alvarez family’s lawyer Tom Busatta said in June.

3 A.M. – 7 A.M.: The whereabouts of Diana at this time are unknown, but when Hernandez woke up, she noticed all four of the burners on her stove were turned on and that Diana’s purple-striped shoes were missing.

10:40 A.M.: The Lee County Sheriff’s Office sent out its first in a slew of many public emails about Diana Alvarez. It was titled “Lee County Sheriff’s Office Press Release: Missing Juvenile Diana Alvares” and featured a school photo of Diana.

1 P.M.: Authorities discussed Jorge Guerrero as a suspect. They had his date of birth, a description of his car and his possible location, according to deputy emails.
6:44 P.M.: The sheriff’s office sends a photo of Guerrero to the Florida Department of Law Enforcement.

MONDAY, MAY 30, 2016

12:05 A.M.: FDLE sends a missing child alert for Diana after receiving the request from LCSO. It does not mention Guerrero.“FDLE received a request from Lee County Sheriff’s Office for a Missing Child Alert. A Missing Child Alert was issued,” said Gretl Plessinger, spokesperson for FDLE.

THURSDAY, JUNE 2, 2016

11:43 A.M.: LCSO requests that FDLE issue an AMBER Alert for Diana. The agency in charge of any missing child case must request the alert from FDLE. The requirements for an AMBER Alert include:

A request from the local law enforcement agency
Child under 18
Clear indication of abduction
Detailed description of child, abductor or vehicle

12:30 P.M.: FDLE issues an AMBER Alert for Diana. This time it includes a photo of Guerrero and lists his connections to Orange and Okeechobee counties.

Her remains were not found until 2020 near Yeehaw Junction in Central Florida after investigators found pictures of Diana on Guerrero-Torres’ cell phone.

They found that the phone had traveled from Orlando to the Fort Myers area just one day before Diana was reported missing, then to Yeehaw Junction.

Guerrero-Torres was ultimately arrested and charged with her kidnapping. He was later convicted in federal court for child pornography relating to those photos and sentenced to 40 years in federal prison.