State v. Linghor

20030360

State of North Dakota, Plaintiff and Appellee
v.
Matthew Linghor, Defendant and Appellant

Appeal from:

District Court, Northwest Judicial District, Williams County
Judge Gerald H. Rustad

Nature of Action:

Counsel:

Appellant:		Chapman Law Office
Appellee:		Nicole Ellan Foster , State's Attorney

Term:

10/2004 Argument: 10/19/2004 1:30pm

ND cite:

2004 ND 224

NW cite:

690 N.W.2d 201

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Issues:

Appellant's Statement of the Issues:
1. Whether there is sufficient, competent evidence to support the trial court's findings that Matthew was searched sufficiently contemporaneous to his arrest to uphold an otherwise illegal pocket search conducted on Matthew prior to his arrest.
2. Whether evidence and information obtained from an otherwise illegal pocket search, prior to an arrest, can be used to support probable cause to arrest.
3. Whether the trial court's decision to deny Matthew's Motion to Suppress is contrary to the manifest weight of the evidence.
4. Whether the trial court erred, as a matter of law, when it held that Matthew was actually under arrest the entire time, including when he was subjected to the illegal pocket search.
5. Whether the trial court abused its discretion in declaring the first jury trial a mistrial.
6. Whether the trial court erred when it denied Matthew's Motion to Dismiss the case based upon double jeopardy grounds.

Appellee's Statement of the Issues:
A. Whether the pocket search of Mr. Linghor was justified as a valid search incident to arrest when probable cause existed to arrest Mr. Linghor at the time of the pocket search, and the arrest was made within minutes of the search. (The combination of Defendant's Issues #1, 2, 4).
B. Whether the pocket search of Mr. Linghor can be upheld based upon the principal of inevitable discovery when it is clear from the evidence presented that Mr. Linghor would have been arrested and searched at the end of the officer's investigation. (This issue appears to be briefly argued by the Defendant although not addressed in his Statement of the Issues).
C. Whether Mr. Linghor's conviction is barred on grounds of Double Jeopardy when he was retried after his first trial ended in a hung jury. (The combination of Defendant's Issues #5, 6).

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Docket entries:

1	12/16/2003	NOTICE OF APPEAL: 12/15/2003
2	02/03/2004	RECORD ON APPEAL, not forwarded with the record were Nos. 3, 7, & 27 (Clerk's Min.),
3	02/03/2004	No. 10 (Ct. rec. Log), No 37 thru 71 (PL Exhibits 1,2,3,5,6a, 7 thru 28,30,32,33,34,36,38,40,41)
4	02/03/2004	99 thru 127 & 129 (PL Exhibits 1 thru 5, 7 thru 17, 19, 20, 22, 24, 26, 27, 28, 30, 31, 32,
5	02/03/2004	32, 34, 36, & 40), 163 (Steno Notes) and 164 (Clerk's Min.)
6	02/04/2004	Supplemental Clerk's Certificate dated 2-3-04 (Entry Nos. 167 & 168)
7	02/05/2004	ORDER FOR TRANSCRIPT: 02/03/2004
8	02/05/2004	Request for Return of ROA by Michael Levitt (letter dated 2-4-04)
9	02/05/2004	ACTION BY CLERK. Granted
10	02/06/2004	RETURN OF ROA TO DIST. CT.
11	03/01/2004	MOT. EXT/TIME TRANSCRIPT
12	03/01/2004	ACTION BY TRIAL COURT. Granted: 04/08/2004
13	04/12/2004	Copy of letter from Mike Levitt to Kevin Chapman RE: request for advanced payment for TRA
14	04/12/2004	MOT. EXT/TIME TRANSCRIPT
15	04/12/2004	ACTION BY CLERK. Granted: 05/14/2004
16	05/04/2004	Copy of letter from Mike Levitt to Matthew Linghar (advance payment not rec'd; considering
17	05/04/2004	suspending further preparation of TRA)
18	05/17/2004	MOT. EXT/TIME TRANSCRIPT (sua sponte)
19	05/17/2004	ACTION BY CLERK (sua sponte). Granted: 05/17/2004
20	05/17/2004	TRANSCRIPTS DATED 4/24/03, 9/17&18/03, 12/4&5/03 (3 vols.)
21	05/18/2004	DISK - (2) TRA (4/24/03, 9/17&18/03 & 12/4&5/03)
22	05/18/2004	Refiled RECORD ON APPEAL Not rec'd: #3,7,27 & 164--Clerk's Min.; 10--Ct. Rec. Log; 163--Steno
23	05/18/2004	Notes; 37-71--PL Exhibits 1, 2, 3, 5, 6a, 7-28, 30, 32, 33, 34, 36, 38, 40, & 41;
24	05/18/2004	99-127 and 129--PL. Exhibits 1-5, 6A, 6B, 7-12, 14-17, 19, 20, 22, 24, 26, 27, 28, 30, 31, 32,
25	05/18/2004	32, 34, 36, & 40
26	06/18/2004	MOT. EXT/TIME APPELLANT BRIEF
27	06/18/2004	ACTION BY CLERK (MAT). Granted: 07/16/2004
28	06/23/2004	Record on Appeal Entry Nos. 37 & 99(Pl's Exh. 1), 38 & 100 (Pl's Exh. 2), 39 & 101(Pl's Exh. 3),
29	06/23/2004	41 & 103 (Pl's Exh. 6-A), 45 & 107 (Pl's Exh. 10), 49 & 111 (Pl's Exh. 14), 52 & 114 (Pl's
30	06/23/2004	Exh. 17), 53 (Pl's Exh. 18), 62 & 120 (Pl's Exh. 27), 70 & 129 (Pl's Exh. 40)
31	07/15/2004	APPELLANT BRIEF
32	07/15/2004	APPELLANT APPENDIX
33	07/16/2004	DISK - atb
34	08/12/2004	APPELLEE BRIEF
35	08/13/2004	DISK - AEB
36	10/19/2004	APPEARANCES: Kevin J. Chapman, Matthew Linghor; Nicole E. Foster
37	10/19/2004	ARGUED: Chapman; Foster (Vol. Z; page 42)
38	10/19/2004	ORAL ARGUMENT WEBCAST
39	12/14/2004	DISPOSITION: AFFIRMED
40	12/14/2004	UNANIMOUS OPINION: VandeWalle, Gerald W.
41	12/14/2004	(CONCUR in Result): Maring, Mary Muehlen: CON/RES
42	12/15/2004	Judgment Mailed to Parties
43	01/05/2005	MANDATE
44	01/07/2005	RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
45	05/20/2011	EXPUNGED - Nonpermanent record items destroyed

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