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Attorneys for the man accused of killing one police officer and wounding five others during a shootout at his Ogden home are asking a judge for a hearing to determine whether evidence that led to a search of Stewart's home was legally obtained.
Matthew David Stewart's defense attorney filed a motion asking for the hearing Friday, alleging Weber Morgan Strike Force Agent Jason Vanderwarf "either knowingly and intentionally, or with reckless disregard for the truth, included false and/or misleading statements in the search warrant affidavit."
Also in the case, 2nd District Judge Noel Hyde on Tuesday denied a previous motion from defense attorney Randy Richards declaring the death penalty was unconstitutional. Hyde wrote that in the ruling that the Utah Supreme Court has repeatedly held that the death penalty was constitutional.
In the motion to toss evidence related to marijuana cultivation, Richards alleges that Vanderwarf asked for the search warrant based on "stale information."
Vanderwarf testified during Stewart's preliminary hearing that an investigation into Stewart's possible marijuana cultivation began with a tip from Stewart's ex-girlfriend, Stacy Wilson, in September 2011. She told Vanderwarf there were 12 to 15 plants in the home, and that Stewart had been growing pot for about nine years.
The search warrant, however, wasn't executed until January 4, 2012. That was four months after the tip was received. Richards argues that Wilson would never have seen the plants found at Stewart's home after the shootout, since Wilson had not been at Stewart's home since they broke up in June 2011, and the average cultivation period for marijuana does not extend five months.
"According to the state's expert witness, [Layton City police] Sgt. Juan Moreno, the plants found at [Stewart's] residence were only a few weeks old," Richards wrote. "Therefore, on Jan. 4, 2012, when Agent Vanderwarf submitted the search warrant affidavit, it would not be possible for the plants that Stacy allegedly had seen to still be alive and growing."
Richards also suggests in the motion that Vanderwarf may have illegally went into Stewart's backyard to look through a rear window and saw evidence of humidifiers, bright lights and extension cords. Vanderwarf said in the search warrant he observed those items through a window on the south door. Richards said Stewart always kept a curtain over that door window, and called Vanderwarf's statements "a blatant fabrication."
About 8 p.m. on Jan. 4, 2012, several strike force agents were attempting to serve the search warrant on Stewart's Jackson Avenue home. A shootout erupted between Stewart and the officers.
Agent Jared Francom was killed in the shootout, and five other officers were injured. Stewart was also injured during the incident.
Agent Shawn Grogan testified during Stewart's preliminary hearing that when he stood in the hallway of Stewart's home, he saw an arm and a gun coming around the bedroom door. He said the shooter said nothing but fired first, one of the first shots striking Grogan in the left cheek.
But Stewart allegedly told an investigator with the Weber County Attorney's Office that he had armed himself when he heard someone enter his home. He allegedly said he pointed his gun around the corner of his bedroom hallway, and was met with gunfire. Stewart told the investigator he didn't pull his trigger until he was shot at.
Stewart has maintained that he thought he was being robbed and did not know the men in his home were law enforcement officers.
In the death penalty motion, Richards argued the death penalty violates Stewart's due process rights under the U.S. and Utah constitutions. He notes the death penalty may be imposed only if the jury finds that the aggravating factors of the crime outweigh mitigating factors — such as youth, no criminal history, or that the person was under emotional distress.
Richards argued that no mitigating factors could ever overcome the aggravating factor of murder, making the law impossible, but Hyde said in his written ruling that Richards did not provide any empirical data or statistics to support his argument.
Stewart, 38, is charged with aggravated murder for Francom's death. He also is charged with seven first-degree felony counts of attempted aggravated murder for allegedly trying to kill other officers, and one second-degree felony count related to alleged marijuana cultivation.
Stewart is scheduled to be in court again on May 22 for a status conference.
Twitter: @jm_miller