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: Drugs/Contraband
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

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:
112/16/2003 NOTICE OF APPEAL: 12/15/2003
202/03/2004 RECORD ON APPEAL, not forwarded with the record were Nos. 3, 7, & 27 (Clerk's Min.),
302/03/2004 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)
402/03/2004 99 thru 127 & 129 (PL Exhibits 1 thru 5, 7 thru 17, 19, 20, 22, 24, 26, 27, 28, 30, 31, 32,
502/03/2004 32, 34, 36, & 40), 163 (Steno Notes) and 164 (Clerk's Min.)
602/04/2004 Supplemental Clerk's Certificate dated 2-3-04 (Entry Nos. 167 & 168)
702/05/2004 ORDER FOR TRANSCRIPT: 02/03/2004
802/05/2004 Request for Return of ROA by Michael Levitt (letter dated 2-4-04)
902/05/2004 ACTION BY CLERK. Granted
1002/06/2004 RETURN OF ROA TO DIST. CT.
1103/01/2004 MOT. EXT/TIME TRANSCRIPT
1203/01/2004 ACTION BY TRIAL COURT. Granted: 04/08/2004
1304/12/2004 Copy of letter from Mike Levitt to Kevin Chapman RE: request for advanced payment for TRA
1404/12/2004 MOT. EXT/TIME TRANSCRIPT
1504/12/2004 ACTION BY CLERK. Granted: 05/14/2004
1605/04/2004 Copy of letter from Mike Levitt to Matthew Linghar (advance payment not rec'd; considering
1705/04/2004 suspending further preparation of TRA)
1805/17/2004 MOT. EXT/TIME TRANSCRIPT (sua sponte)
1905/17/2004 ACTION BY CLERK (sua sponte). Granted: 05/17/2004
2005/17/2004 TRANSCRIPTS DATED 4/24/03, 9/17&18/03, 12/4&5/03 (3 vols.)
2105/18/2004 DISK - (2) TRA (4/24/03, 9/17&18/03 & 12/4&5/03)
2205/18/2004 Refiled RECORD ON APPEAL Not rec'd: #3,7,27 & 164--Clerk's Min.; 10--Ct. Rec. Log; 163--Steno
2305/18/2004 Notes; 37-71--PL Exhibits 1, 2, 3, 5, 6a, 7-28, 30, 32, 33, 34, 36, 38, 40, & 41;
2405/18/2004 99-127 and 129--PL. Exhibits 1-5, 6A, 6B, 7-12, 14-17, 19, 20, 22, 24, 26, 27, 28, 30, 31, 32,
2505/18/2004 32, 34, 36, & 40
2606/18/2004 MOT. EXT/TIME APPELLANT BRIEF
2706/18/2004 ACTION BY CLERK (MAT). Granted: 07/16/2004
2806/23/2004 Record on Appeal Entry Nos. 37 & 99(Pl's Exh. 1), 38 & 100 (Pl's Exh. 2), 39 & 101(Pl's Exh. 3),
2906/23/2004 41 & 103 (Pl's Exh. 6-A), 45 & 107 (Pl's Exh. 10), 49 & 111 (Pl's Exh. 14), 52 & 114 (Pl's
3006/23/2004 Exh. 17), 53 (Pl's Exh. 18), 62 & 120 (Pl's Exh. 27), 70 & 129 (Pl's Exh. 40)
3107/15/2004 APPELLANT BRIEF
3207/15/2004 APPELLANT APPENDIX
3307/16/2004 DISK - atb
3408/12/2004 APPELLEE BRIEF
3508/13/2004 DISK - AEB
3610/19/2004 APPEARANCES: Kevin J. Chapman, Matthew Linghor; Nicole E. Foster
3710/19/2004 ARGUED: Chapman; Foster (Vol. Z; page 42)
3810/19/2004 ORAL ARGUMENT WEBCAST
3912/14/2004 DISPOSITION: AFFIRMED
4012/14/2004 UNANIMOUS OPINION: VandeWalle, Gerald W.
4112/14/2004 (CONCUR in Result): Maring, Mary Muehlen: CON/RES
4212/15/2004 Judgment Mailed to Parties
4301/05/2005 MANDATE
4401/07/2005 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
4505/20/2011 EXPUNGED - Nonpermanent record items destroyed

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