OGDEN -- As part of the run-up to a likely debate at the state Capitol in January, the Stewart family has released an affidavit questioning the search warrant drug agents were serving in the fatal shootout last year at Matthew David Stewart's home.
The Stewart case is among many that may be detailed to the Utah Legislature in January. The Libertas Institute and the Utah Chapter of the ACLU, likely joined by the Utah Association of Criminal Defense Attorneys, plan to ask lawmakers to add more restrictions to state law guiding the serving of search warrants.
Currently the only parameters that a judge considers are nighttime or daytime serving of the warrant, and whether it can be served as a no-knock warrant -- with no announcement. While most aren't, all search warrants can be served forcibly to prevent destruction of evidence and to ensure officer safety.
In the Jan. 4, 2012, confrontation at Stewart's home, the Weber Morgan Narcotics Strike Force had broken down Stewart's door with a battering ram when he did not answer their knocks as officers yelled they were police serving a search warrant.
Stewart opened fire, according to the allegations, as officers with guns drawn entered the home. Six officers were shot in the 25-minute ordeal, Agent Jared Francom fatally, and Stewart was injured as well. Stewart was found dead in his cell May 24 of an apparent suicide, the death still under investigation.
Erna Stewart, sister-in-law, has said friends and supporters hope to influence authorities to cut back the forceful entries as unjustifiably dangerous, with warrants too easily granted. To that end the family recently released an affidavit written by one of the investigtors with Stewart's defense team of an April 25, 2012, conversation with one of the police detectives in the Stewart case.
The affidavit by David Doddridge says during a tour of the Stewart crime scene, the detective, Brian Eynon, said he believed strike force agents had walked into Stewart's backyard to peer through a basement window to view Stewart's marijuana plants.
The affidavit would have been part of the evidence had Stewart gone to trial, said Randy Richards, Stewart's lead defense counsel. But he did not use the affidavit as part of a suppression motion filed in March.
"Maybe I've been doing this too long," said the veteran defense attorney. "But prosecuctors would have tried to block it as hearsay, probably get it ruled inadmissible."
The 142-page motion challenging the search warrant claimed strike force agents had gone too far just by viewing inside Stewart's home through windows at the south doorway of Stewart's home.
Prosecutors defeated the motion in May, arguing "plain view" doctrine allowed officers to include what they saw at the doorway in the search warrant application, such as ventilator and air-conditioner boxes, as indicators of a marijuana grow.
That, plus a tip from a former girlfriend that Stewart had a major marijuana grow in the basement was enough to meet the "probable cause" standard of evidence for search warrants -- which is the lowest standard of evidence, compared to the "beyond a reasonable doubt" standard needed for conviction at trial.
Richards said the search warrant would have had no direct bearing on the murder and attempted murder charges if it had been suppressed.
But Richards said trial strategy would have included continuing to attack the search warrant, leaving the jury to wonder about the legal ponderings behind warrants served with battering rams. The hope, he said, was it might have had an impact on jurors' deliberations regarding the shootings. Sixteen marijuana plants were found in the basement after the shootout.
Connor Boyack, director of the Provo-based Libertas Institute, which is spearheading the legislative campaign, said Monday his group continues to meet with legislators. But he didn't want to release specific details until a sponsor is found for the proposed legislation.
Case Files: More on the Stewart story: http://www.case-files.standardnetlive.com/