Assistant AG says Red Lodge police raid ‘inappropriate’

Bearcreek

Ed Kemmick/Last Best News

This is the house in Bear Creek that was the target of a drug raid in January, a raid that has been the focus of much contention since then.

An assistant state attorney general has declined to file charges arising from a drug raid that Red Lodge police officers carried out on a house in Bearcreek.

Brant Light, chief of the Prosecution Services Bureau in the AG’s office, also said in a letter to Carbon County Attorney Alex Nixon that he believed the Bearcreek search, conducted by police officers without the prior approval of the Carbon County attorney or sheriff, “was inappropriate.”

Light noted that the drug raid yielded only “residue,” apparently referring to the “white powder from TV stand” mentioned on an evidence receipt filed by police after the raid.

Because of that, and because “I firmly believe the search to be inappropriate,” Light wrote, “I do not believe I can justify spending any further resources or manpower on the matter.”

Nixon said Wednesday that Light’s decision means no charges will be filed against William M. Evans Jr. and Stacey Palmer, who were arrested during the Jan. 24 raid on the house at 112 N. First St. in Bearcreek.

The two were taken to the Yellowstone County jail, from which they were arraigned by video in Red Lodge City Court. Red Lodge City Prosecutor Joel Todd dismissed the charges without prejudice, meaning they could be re-filed later.

Todd said last month that dismissing the charges would give Nixon the chance to re-file them in Justice Court, if he chose to. After city and county officials got into a dispute over the drug raid, Red Lodge Mayor Ed Williams suggested that Nixon ask the AG’s office to prosecute the case. Light’s letter, which was received by Nixon on Feb. 29, was in response to that request.

yellowstone_fitness
As reported early last month, the dispute arose after a Greg Srock, a city police officer who was also a sheriff’s reserve deputy, applied for the search warrant in his capacity as a reserve deputy. Nixon subsequently sent a strongly worded letter to Williams saying that the search warrant may have been obtained by fraudulent means, and that Srock had been relieved of his duties as a reserve deputy.

Nixon and Carbon County Sheriff Josh McQuillan also wrote letters to Red Lodge Police Chief Steve Hibler, Carbon County Justice of the Peace Kevin Nichols and police chiefs in Fromberg and Joliet, saying that in the future, either the sheriff’s or county attorney’s office would have to sign off on out-of-city warrants granted by a justice of the peace or a district court judge.

Williams and Todd denied that any fraud was involved in obtaining the warrant or that there was anything illegal about the raid in Bearcreek, a tiny incorporated town six miles east of Red Lodge.

Todd

Joel Todd

Todd repeatedly referred to Montana statute 46-5-220, which states that “a peace officer, the city or county attorney, or the attorney general,” may apply for a search warrant. The statute also says a warrant can be issued by a judge “within the judge’s geographical jurisdiction.”

That means the jurisdiction refers not to the officer seeking the warrant, Todd said in February, but to the judge. In the Bearcreek case, Justice of the Peace Nichols issued the warrant, and his jurisdiction, Todd said, extends all over the county.

Light rejected that line of reasoning. He said the reference to a peace officer in the statute Todd cited “must be construed to mean any police officer with power to act. There is no Montana statute that authorizes a city police officer to serve a search warrant outside the boundaries of his or her territorial jurisdiction.”

“It is a general rule that a police officer’s authority cannot extend beyond his jurisdiction, i.e., the city limits,” Light continued. “Thus, a city police officer cannot make an arrest outside his jurisdiction.”

Nixon said in an interview Wednesday that he and McQuillan had come to the same conclusion. “Most certainly that was Josh’s and my take,” he said of Light’s opinion.

Light said he recognized that the police department “did make some efforts to advise and include the Sheriff’s Office in the search warrant. The Chief of Police did place a call to the Carbon County Sheriff in reference to the search and the Sheriff approved the utilization of several deputies in executing the search.”

However, he added, the notice should have been given before the warrant was issued and the sheriff “needed to be fully advised of the specific search warrant that was being executed.”

McQuillan said last month that he was not called until 12:02 a.m. on the day of the raid, 24 minutes after Nichols was called at home to authorize the warrant. McQuillan also said that when he talked to Hibler, he was given to understand that the warrant was similar to an earlier warrant that had been sought for the house in Bearcreek, related to a crime that occurred in Red Lodge, not to drug dealing in Bearcreek.

Nixon

Alex Nixon

Nixon said he sent copies of Light’s letter to Hibler and Todd but has not heard back from them. He said he did not expect to, because the city and two of its police officers are defendants in a lawsuit filed over the Bearcreek raid, and the attorney representing them has ordered them not to comment on the case.

Todd cited the lawyer’s instructions when he was asked for comment by Last Best News.

That lawsuit was filed by Red Lodge attorney A.W. “Tony” Kendall on behalf of Tiffany McKinney, who said she was injured and unlawfully arrested during the drug raid. The suit said police officers conducting the raid also entered her house, which sits behind the house that was the target of the search warrant.

The suit, which computed damages “at no less than One Million Dollars,” names the city of Red Lodge, Chief Hibler and Officer Srock. The lawsuit alleges that Srock and Hibler entered her house after shouting, “Search warrant!” McKinney said they forced her to her knees, handcuffed her and led her outside, where she slipped on ice and fell to the ground. She was then put in the back of a locked police car for up to 25 minutes before being released.

Kendall, like Nixon, said Light’s opinion on the raid affirmed his thoughts on the jurisdictional issue.

“He’s stating what the rest of us believe to be settled law,” he said.

Light’s letter, he said, also strengthens his client’s case against the city.

“It puts the lie to the word coming out of the city that it was a perfectly good raid,” Kendall said.

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