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Utah lawmakers likely to debate use of search warrants

Published August 28, 2013 11:50 am

Civil-rights groups say there's a "great deal of interest" in a bill that would restrict when police can break down doors.
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The way search warrants are served on Utah homes will likely be up for debate during the next legislative session as civil-rights groups call for restrictions on when police can break down doors.

Connor Boyack, director of Libertas Institute, said the libertarian group is leading a legislative campaign to change search-warrant policy, which he called overly broad.

Boyack says the Libertas Institute will lobby to amend the state law so that forcible entry is authorized only in cases where there is a "pre-existing risk to someone's life."

"In cases where there is no risk to other lives, with police officers busting down the door, in our view, it creates dangerous circumstances rather than trying to neutralize," Boyack said Tuesday.

The American Civil Liberties Union of Utah may also lobby for changes.

Marina Lowe, legislative and policy council for ACLU of Utah, said Tuesday that the group has been in talks with Libertas Institute, but it is still early and nothing substantial has been presented yet.

She said the ACLU is concerned with police becoming "more militarized," adding that it is troubling that the drug raid at Matthew David Stewart's home led to death.

The deadly January 2012 raid at Stewart's Ogden home is at the heart of the debate.

The Weber Morgan Narcotics Strike Force served a knock-and-announce warrant that quickly turned into a gunbattle in which Agent Jared Francom was killed and five other officers were wounded. Stewart, who was being investigated for marijuana cultivation, was also wounded.

According to court documents, 16 pot plants were found in his house after the raid.

Stewart, 39, was charged with aggravated murder, seven first-degree felony counts of attempted aggravated murder and one second-degree felony count related to alleged marijuana cultivation.

In May, just days before Stewart committed suicide at the Weber County jail, his attorneys argued unsuccessfully in Ogden's 2nd District Court that Agent Jason Vanderwarf used a stale tip and lied to obtain the search warrant.

Defense attorney Randall Richards suggested in his motion that Vanderwarf may have illegally entered Stewart's backyard to look through a rear window to see evidence of humidifiers, bright lights and extension cords — which Vanderwarf said was indicative of a marijuana grow. Vanderwarf said in the search warrant that he observed those items through a window on the south door while knocking on the door in an effort to speak with Stewart.

On Tuesday, Stewart's family released an affidavit to The Salt Lake Tribune from a private investigator who was investigating the shootout that seems to support Richards' assertion that the warrant was obtained illegally.

Investigator David Doddridge wrote in the affidavit, signed in July, that he was investigating Stewart's backyard last April when he was approached by Ogden Officer Brian Eynon.

"During our discussions, [Eynon] pointed at the rear basement window and stated that it was indeed through this window that task force officers observed the grow to develop PC [probable cause] for the warrant," Doddridge wrote, adding that the conversation was recorded.

That conversation was not presented during the May arguments about the legality of the search warrants. Ultimately, Judge Noel Hyde denied the defense motion for a hearing about the search warrant, saying there was insufficient evidence that Vanderwarf would not have been able to see what he said he saw through the side door.

Richards said Tuesday that the conversation was not used because prosecutors likely would have tried to disqualify it as hearsay. The defense attorney said he is not involved in the push to change search-warrant laws, but added he has offered his help if needed, since he was the lead counsel in Stewart's case.

He said he is concerned about the frequency with which home search warrants are served in Weber County in connection with small amounts of drugs.

"I deal with half a dozen searches in Weber County that involved minuscule amounts of drugs," Richards said. "In every one of these searches, there is the potential of someone getting hurt or killed, whether that is the resident of the home or the police officer."

Richards said he believes limiting search warrants to crimes that put people's lives at risk would be a move in the right direction.

"If there is a danger to the community, a risk to somebody, I'm OK at that point [to enter a home] to save a life," Richards said. "But for a drug bust? I have a hard time with that. And the fact of the matter is, there's a lot of other ways to do it."

Boyack said there has been a "great deal of interest" from legislators in sponsoring the bill. He said that the Stewart case is just one of several Utah police incidents that have pushed the group to ask for changes in the law regarding search warrants.

"There have been enough news stories in the recent years to merit legislative discussion about whether current policies are sufficient," Boyack said. "So the Matthew David Stewart case clearly catalyzed it, but because a police officer died, it allows people to better understand that our effort is not to protect just the victims, but to protect police officers. If our policy was in place, it is extremely likely Officer Francom would be alive today."







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