A judge has the right to send a Columbia Falls sex offender to jail for violating terms of his probation by having sexual contact with a minor, but new charges that arose from a probation officer’s investigation should not prevail, according to public defender Vicki Frazier.

Frazier asked in a Wednesday hearing that all evidence be suppressed in a case filed in April that charges Jacob Dean Dalager, 21, with two felony counts of sexual abuse of children and one count of sexual intercourse without consent.

 Dalager’s probation officer Kyle Hinzman reported Dalager to the Flathead County Sheriff’s Office in mid-2013 after a tip that Dalager might be in a relationship with a 15-year-old girl. Hinzman investigated and found that Dalager had a Facebook page in violation of a social-media ban imposed by the sex-offender group Dalager has been ordered to attend because of a prior conviction for sexual intercourse without consent.

In that case, Dalager was found guilty of giving a 6-year-old girl $6 to coerce her into a sex act in 2011.

The Facebook page’s existence would have been enough of a probation violation to lead to revocation of Dalager’s 20-year suspended sentence, according to Frazier.

“When he knew my client was on Facebook, he knew he had a revocation,” Frazier said. “He could have revoked him right then.”

But Hinzman arranged for Dalager’s sex offender group leader to confiscate Dalager’s phone. Hinzman searched the phone the next day and Dalager let him also search his Facebook page. Nude photographs of the teenage girl were discovered. Hinzman also found messages where the girl said she was 15, though Dalager claimed he thought she was 18. Dalager also led Hinzman to a safe at his grandmother’s home where another phone was found.

Hinzman forwarded the information to the Sheriff’s Office, which obtained search warrants for the two phones, a family member’s computer, and Dalager’s Facebook page. In addition to the nude images, messages were found where Dalager and the victim described the sexual conduct they had engaged in.

Messages were also found where Dalager allegedly admitted to a friend that he knew the girl was 15. The age of consent in Montana is 16, and minors cannot legally engage in sex with anyone who is more than three years older than the minor.

When a detective interviewed Dalager, he allegedly admitted to having sex with the girl three or four times.

The girl denied the allegations and the investigation was completed in April 2014. Charges were filed a year later.

Frazier argued that because the search warrants specifically refer to information from Hinzman’s investigation, all evidence should be suppressed because Dalager has a constitutionally protected right against self-incrimination.

That right conflicts with Dalager’s legal requirement as a felon to cooperate with law enforcement and submit to search and seizure, Frazier said.

It is not uncommon for probation officers to encounter probationers who break the law, Frazier said. That type of situation typically ends with a petition to revoke, not new charges, according to Frazier.

“We’re not arguing he can’t be revoked,” Frazier said. “He can be revoked all day long. He cannot get new charges.”

Prosecutor Andrew Clegg disagreed, saying that Dalager never technically admitted to his probation officer that he had committed a crime because he told the probation officer that the alleged sexual conduct took place between consenting adults. It was a deputy who later got Dalager to confess that the girl was underage, Clegg argued.

“This wasn’t incriminating information,” Clegg said.

Flathead District Judge Amy Eddy said she would review the case before making a decision. Dalager is scheduled for a revocation hearing before Flathead District Judge Heidi Ulbricht on Dec. 17.

Hinzman said during the hearing that he did not think Dalager would benefit from being sent to prison because other than this incident and some marijuana use, Dalager was doing OK on probation.

“It’s not sex stuff he was screwing up with,” Hinzman said. “I think going to boot camp might benefit him. I don’t think going to prison will benefit him.”

Reporter Megan Strickland can be reached at 758-4459 or mstrickland@dailyinterlake.com.