Couple charged in pot bust sue former Ada County sheriff's deputy

The sheriff’s office is now defending him in federal court

jsowell@idahostatesman.comJanuary 8, 2014 

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Brian McNelis and his wife, Leslie White were charged with manufacturing marijuana after sheriff's deputies obtained a search warrant. The charges were later dropped after they contended the deputy who obtained the search warrant lied about finding marijuana clippings in their trash. They have filed a federal lawsuit against the deputy and the county. Monday December 23, 2013

KYLE GREEN — kgreen@idahostatesman.com Buy Photo

CORRECTION: Stephen Craig resigned from the Ada County Sheriff's Office due to the investigation into the falsified affidavit, but was not fired.

A judge in 2011 decided that Stephen Craig lied when he applied for a search warrant that led to marijuana trafficking charges against a Boise couple.

Now, Brian J. McNelis and Leslie D. White are suing Craig in federal court. Representing themselves after initially having an attorney assist them, they are seeking undetermined damages that they say they will prove at trial.

The suit, filed in January 2012 in U.S. District Court in Boise, stems from an investigation two years earlier.

Craig swore in a Jan. 6, 2010, affidavit that he twice found marijuana clippings inside bags of trash taken from a can placed outside the couple’s home in the 2800 block of South Cloverdale Road. Craig said he removed the trash bags on Dec. 29, 2009, and Jan. 6, 2010.

The information Craig provided was crucial in obtaining a warrant to search McNelis’ house, Fourth District Ada County Judge Timothy Hansen found.

Searching the house and garage, police said they found 27 marijuana plants, along with a pound of processed marijuana, scales and packaging material.

McNelis and White, who declined to talk about their lawsuit for this story, were charged with marijuana trafficking. McNelis was also charged with possession and delivery of a controlled substance and destruction, alteration or concealment of evidence.

McNelis’ teenage daughter was removed from the house and placed into the custody of state Health and Welfare workers. The girl, now 17, was later taken by her mother to live out of state.

In court, McNelis and White testified that they didn’t put their trash out until the morning that it was collected. Otherwise, the can was kept behind a locked gate next to a shed in their backyard.

They also testified that they were in Salt Lake City visiting relatives after the Christmas holiday and didn’t return home until the afternoon or evening of Dec. 30, their trash day. They said they had been gone for Christmas and didn’t have enough trash to put out before they left for Utah.

On Jan. 6, 2010, McNelis and White had filled the trash can with rotting meat, fish, huckleberries and ice cream pulled from a freezer that had gotten unplugged. They hadn’t bothered to place the garbage in bags, they said. A witness who delivered frozen potatoes to place in the freezer corroborated their account.

In an affidavit filed March 3, 2011, Craig said he “did not purposely falsify, manufacture or otherwise misrepresent the collection or existence of evidence found on (McNelis’) property or in his trash collection bin.” Craig also said he did not enter the Cloverdale property to collect evidence until the search warrant was served.

Two months later, Judge Hansen ruled that the evidence showed otherwise. “False information,” he wrote, “was included in the search warrant affidavit knowingly and intentionally, or with reckless disregard for the truth.” He refused to allow the evidence found at the house to be introduced at trial.

Charges against both defendants were dismissed.

Craig, who had worked for the Ada County Sheriff’s Office since July 2005, resigned due to the investigation in October 2011. The Canyon County Sheriff’s Office then hired him in July 2012. He did not return a message for comment for this story.

‘A DIFFERENT INTERPRETATION’

Though it’s hard to put numbers to, a law enforcement officer losing his job for perjury appears to be rare. In 1994, a police chief in Kimberly was fired during an investigation into whether he perjured himself at a trial for a man convicted of sexually abusing a child. But an investigation by the Idaho attorney general stopped short of concluding that James Campbell committed perjury.

The Idaho Supreme Court concluded that an Idaho State Police trooper likely committed perjury in 2006 during a murder trial in Kootenai County. But ISP officials who conducted their own investigation decided that Cpl. Fred Rice told the truth during his testimony in court.

“A just legal process relies on every officer following proper procedure,” Ada County sheriff’s spokeswoman Andrea Dearden said in a written statement about Craig’s case. “Detective supervisors who took immediate action found this was an anomaly and that proper procedures were being followed during other investigations.”

No other cases were compromised because of Craig’s actions, Dearden said.

“From the investigative side, this was an isolated situation,” she said.

Heather Riley, a deputy Ada County prosecuting attorney who has supervised county narcotics cases since 2008, said she did not believe Craig intentionally misled anyone.

“Our office has a different interpretation than Judge Hansen of what happened,” Riley said.

Prosecutors asked Hansen to reconsider his ruling, but he was adamant that the evidence gathered during the home search could not be used.

Riley said Craig worked on at least a dozen drug cases that she handled. She found him to be truthful and professional.

“I would still call Officer Craig as a witness,” she said.

After dismissing him, Ada County is defending Craig in the lawsuit since his misconduct took place on the job.

Ada County Deputy Prosecutor Heather McCarthy, who is handling Craig’s defense, did not return a call.

Ada County Sheriff Gary Raney and a county evidence custodian, Jose Del Rio, were originally named as co-defendants in the lawsuit. U.S. Magistrate Judge Mikel Williams dropped them from the case in early 2013 after he said the plaintiffs were unable to show they were part of a conspiracy to deny McNelis and White their civil rights.

In their lawsuit, the couple contend that some of the photographs submitted into evidence showing a marijuana operation were taken at a different residence but depicted as coming from their house. The county is seeking court permission to enter the home to take measurements and take photographs to answer those allegations.

No trial date for the suit has been set.

John Sowell: 377-6423, Twitter: @IDS_Sowell

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