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 Firm, P.C.
Appellee:		Nicole Ellan Foster , State's Attorney

Term:

10/2004 Argument: 10/19/2004

ND cite:

2004 ND 224

NW cite:

690 N.W.2d 201

Listen to recording of oral argument in MP3 format

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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