OGDEN -- A revelation crystallized in all the discussion of the Matthew David Stewart case is the nature of search warrants:
All can be served forcefully, with a "breach" in which officers literally break down the subject's door, officials explain. And, they say, evidence that is insufficient to arrest someone can be enough to break down their door.
This legal anomaly of sorts results from the difference in scope of the standard of evidence that applies, so-called probable cause, officials explain in legalese.
A search warrant applies to a location, and the probable cause must be pinpointed to a specific item or items. An arrest warrant is broader, encompassing behavior, as the complex explanation goes.
"A search warrant is for gathering evidence in order to make the arrest," said Weber County Attorney Dee Smith.
And while a probable cause standard is enough to make an arrest by law, it is not enough to support the filing of formal charges against the arrestee, he said. So, his office essentially waits until evidence meets a higher standard before authorizing an arrest.
But officers can't delay when they get wind of contraband in a residence, Smith said. And appellate courts have long upheld the forcible serving of search warrants to prevent the destruction of evidence and in consideration of officer safety.
An investigation, for the example most popular in the officials' explanations, of child porn in a computer can quickly lead to a search warrant for the computer. But because multiple people might have access to the computer, much more investigation is needed to find out who put the porn in the computer and arrest them. While, technically, everyone in sight of the computer could be arrested, getting charges to stick to anyone won't happen until the computer is examined.
Defense attorneys take a different view.
"It's clearly a violation of Fourth Amendment protections against unreasonable search and seizure," said one of Stewart's attorneys, Randy Richards. "I would hope the Legislature would look at it someday."
Mike Studebaker, also a local defense attorney, said the standard of evidence for issuing a search warrant obviously needs to be raised well above probable cause.