Page:Jackson v. State, 2013 Ark. 201, 427 S.W.3d 607.pdf/24

 infiltrated our standard of review, see, e.g., Laime, 347 Ark. at 152, 60 S.W.3d 464 (2001) (requiring us to "view the evidence in the light most favorable to the State"), and reformulated it to read:

"Our standard is that we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court."

Davis, 351 Ark. at 413 (2003) (citing Ornelas). Although this language is, at first blush somewhat paradoxical, the Davis test properly charts the multi-step analysis that an appellate court must conduct as it evaluates the mixed questions of law and fact that underlie a proper analysis of reasonable suspicion and probable cause. Significantly, the "clearly against the preponderance of the evidence" language was not mentioned as having any role in the analysis.

But by 2007, such "clearly against the preponderance of the evidence" verbiage inexplicably started re-appearing as a sort-of legal coda to the Davis search and seizure standard of review. See, e.g., Yarbrough v. State, 370 Ark 31, 36, 257 S.W.3d 50 (2007) (citing Laime). That approach has continued, albeit inconsistently, up through the present. E.g., Menne v. State, 2012 Ark. 37, at 5, 386 S.W.3d 451. But see State v. Thompson, 2010 Ark 294, at 5, 377 S.W.3d 207 (omitting such language in reversing the grant of a motion to suppress).

Regardless of its pedigree, the "clearly against the preponderance of the evidence" clause muddles what is already a somewhat-challenging test. Fusing the preponderance of the evidence" language (which our civil juries are asked to employ in civil trials) with the additional adverb "clearly" creates a hybrid that admits of no easy interpretation. Does it