OGDEN -- A judge has denied a defense challenge to the pot search warrant that led to the armed shootout at Matthew David Stewart's home that injured six and left a narcotics officer dead.
The motion attacked the credibility of the members of the Weber Morgan Narcotics Strike Force who forcibly entered Stewart's Ogden home with guns drawn Jan. 4, 2012, to serve the warrant authorized by a judge as a "knock and announce" warrant. Stewart is accused of shooting six officers, Jared Francom fatally, and was himself wounded. He faces the death penalty for Francom's death.
The warrant served on his home differed from a "no-knock" warrant, where officers "breach" a home with a battering ram and forcibly enter with the element of surprise to ensure officer safety and prevent evidence from being destroyed. Officials describe a "knock and announce" warrant as employing a brief pause meant to give the subject of the warrant a chance to let officers in voluntarily before a breach.
In filing the 142-page motion challenging the Stewart search warrant in March, lead defense counsel Randy Richards said it only related to the 16 marijuana plants seized from the home the day after the shootings, and did not directly affect the homicide and other charges against Stewart.
It specifically accuses the strike force case agent who led the investigation of Stewart, Jason Vanderwarf, of lying in obtaining the search warrant. Vanderwarf was among the injured officers from the shootout.
At Wednesday's hearing on the motion 2nd District Judge Noel Hyde told Richards he preferred the term allegation, but Richards persisted.
He called a lie the very first line on page three of the affidavit, where Vanderwarf wrote that he contacted Stewart's former girlfriend, who had tipped the strike force to the marijuana plants, in November 2011.
"The very first line we have falsity," said Richards, because Vanderwarf testified at Stewart's preliminary hearing last fall that the contact was actually in October 2011.
The dates go to what Richards called a "staleness" problem, in that Vanderwarf was unaware -- or intentionally left off the warrant -- that the ex, Stacy Wilson, had told another strike force member that she hadn't been in Stewart's home since June 2011.
In denying the motion, Judge Hyde ruled the mistakes on the warrant were just that, negligent and harmless. He did find "substantial" Richards' argument that Vanderwarf could not have seen the humidifier and air-conditioning boxes the agent claimed were on the premises, indicators of a marijuana grow.