Defense attorney Randy Richards alleged in the motion that Vanderwarf asked for the search warrant based on "stale information," since the tip about a possible marijuana grow in Stewart's basement came from Stewart's ex-girlfriend, Stacy Wilson, in September 2011 four months before the search warrant was signed by 2nd District Judge Ernie Jones.
Marijuana plants allegedly were found at Stewart's home after the shootout. But Richards argued in a written motion that Wilson would never have seen those plants because she broke up with Stewart in June 2011, and the average cultivation period for marijuana does not extend five months.
But Deputy Weber County Attorney Brandon Miles argued that tip was not stale because it led them to an ongoing and continuous operation.
"[Stewart's] operation, lasting for approximately the past nine years, would not likely have suddenly ceased in the months that lapsed," Miles said in a written motion. "Nor would the equipment, which is usually fairly elaborate and expensive, have been discarded during that time."
Following oral arguments on Wednesday, Judge Noel Hyde sided with the state, ruling that because marijuana cultivation materials are not "transient," it was likely that the equipment Wilson saw would still have been at the home four months later.
Richards also suggested in his motion that Vanderwarf may have illegally entered Stewart's backyard to look through a rear window and to see evidence of humidifiers, bright lights and extension cords. Vanderwarf said in the search warrant that he observed those items through a window on the south door.
But Richards said Stewart always kept a curtain over that door window and, in the motion, called Vanderwarf's statements "a blatant fabrication."
Miles countered that the defense claims were all based on "assumptions that have no proof."
Hyde said there was insufficient evidence that Vanderwarf would not have been able to see what he said he saw through the side door.
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 the officers and Stewart, who was shot and wounded.
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, 39, has maintained that he thought he was being robbed and did not know the men in his home were law enforcement officers.
He 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 appear in court again in August for a status conference.