Judge takes action against couple in police misconduct lawsuit

jsowell@idahostatesman.comApril 18, 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

A federal magistrate has taken the unusual step of sanctioning the plaintiffs in a civil police misconduct lawsuit after they failed to allow attorneys and investigators defending the case for a former Ada County sheriff's deputy to enter their home.

Under the ruling Wednesday by Magistrate Mikel Williams, Brian J. McNelis and Leslie D. White will be barred from challenging the authenticity of photographs taken in their home when deputies carried out a 2010 search of the couple's residence in the 2800 block of South Cloverdale Road and found 27 marijuana plants, along with a pound of processed marijuana, scales and packaging material.

McNelis and White were charged with drug trafficking. McNelis was also charged with possession and delivery of a controlled substance and destruction, alteration or concealment of evidence.

Fourth District Ada County Judge Timothy Hansen dismissed the criminal cases after ruling that Deputy Stephen Craig lied when he applied for the search warrant in the case. The lawsuit in federal court followed.

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. McNelis and White were able to show that the trash can, which was kept behind a locked gate, was not in front of the house on either of the days Craig said he removed the clippings.

Hansen found that false information was included in the search warrant affidavit and refused to allow evidence from the search to be admitted at trial.

In their lawsuit against Craig, McNelis and White claim that photographs taken at the time of the search were not authentic. They say the photographs were digitally altered, were taken at another home or depicted evidence that was "planted" inside the home.

Craig, who resigned from the Ada County Sheriff's Office following an internal investigation, is being represented by Ada County in defending the lawsuit. He sought access to the home of McNelis and White to take photographs to authenticate the earlier photographs and show they had not been altered.

The defense sought access to the home back in November. Williams asked the two sides to try and resolve the issue on their own and return to court if they could not. The defense filed a renewed motion on Jan. 9. Williams ordered the plaintiffs to provide access to their home.

McNelis and White, who are not represented by an attorney in the case, later asked Williams to reconsider his motion. The judge denied the motion and ordered the plaintiffs to allow an inspection that same day, Jan. 24.

Two attorneys representing Craig, an investigator and a sheriff's deputy familiar with the home arrived for the inspection, but were not granted entry. The plaintiffs said the inspection could not occur because Craig himself wasn't present.

After the defendant sought sanctions, Williams noted that his order did not mean that Craig had to be present for the inspection, only those representing him.

At trial, Williams said McNelis and White will be able to question witnesses on whether the photographs introduced into evidence are a fair representation of the interior of the home. They will also be allowed to question witnesses on whether the marijuana shown in photos was "planted" by police.

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