OGDEN -- Matthew David Stewart's defense team has filed a motion to suppress the search warrant that led to a deadly shootout with police at his home on Jan. 4, 2012.
The 142-page motion would only apply to the 16 marijuana plants seized by police after five officers were wounded and Agent Jared Francom killed, for which Stewart now faces the death penalty.
"It does not affect the capital homicide charge" or other charges relating to the shootings, said Randy Richards, Stewart's lead defense counsel.
Stewart is charged with capital homicide, also known as aggravated murder, and seven counts of attempted aggravated murder, for allegedly shooting at seven other police officers, hitting five, as well as one count of possession of marijuana.
Suppressing the search warrant would lead to the dismissal of the drug charge. "It would be one less thing we have to fight over," Richards said.
The motion claims numerous flaws in the search warrant, arguing the Weber Morgan Narcotics Strike Force was operating on stale, outdated information to get the warrant, served five months after an informant, a former girlfriend of Stewart's, tipped off authorities.
According to testimony at Stewart's preliminary hearing last fall, the marijuana plants seized from Stewart's home were only a few weeks old, the motion readers.
Therefore, the motion argues, they are not the plants referred to in the search warrant by the informant.
Stewart's family says the 38-year-old Army veteran was growing pot to ease his anxiety and depression.
Stewart told investigators he believed he was being robbed when the narcotics task force broke into his house with a "knock and announce" search warrant. But according to testimony at the preliminary hearing, Stewart kept firing at police as they withdrew from his home, dragging wounded officers.
The strongarm raids have drawn some criticism as their numbers increase with more federal funding for armaments and training, leading to controversial raids involving fatal shootings or warrants served at wrong addresses.
The ACLU has begun a nationwide investigation of the militaristic aspects of such police tactics.
Stewart's defense lawyers in January filed a motion saying Utah's law is unconstitutional because it leaves juries with no choice but the death penalty in cases of aggravated murder. Asking a jury to weigh aggravating versus mitigating factors in considering an execution is flawed, claims the motion, since no mitigation can outweigh homicide.
That motion is still pending before 2nd District Judge Noel Hyde. A May 22 hearing is the next scheduled court date for Stewart. That motion also refers to Stewart as a youthful defendant with no criminal history who was under mental or emotional duress.
Stewart's trial is set the spring of next year.
The Ogden public safety building has been renamed for Francom.