Page:Jackson v. State, 2013 Ark. 201, 427 S.W.3d 607.pdf/25

 mean "clearly against the greater weight of the evidence?" If so, then that seems to fall short of the "clearly erroneous standard." And if it is simply another way of saying "clearly erroneous" then it is confusingly redundant.

But beyond those inquiries, a more pressing question remains: to which part of "the circuit court's ruling" does it apply? Does it apply strictly to findings of fact or does it also apply to conclusions about the existence of probable cause or reasonable suspicion? If applied to the latter, then how can it be squared with an appellate court's mission to conduct a de novo review? Taken in context, I (like Justice Fogleman in Vault), do not know what our standard means.

Given such deficiencies inherent in the "clearly against the preponderance of the evidence" language, I respectfully submit that it is time to permanently retire the phrase from our search-and-seizure parlance and to return to the language that Davis announced, though with a slight clarifying elaboration. Such elaboration is merited since the threshold test articulated – that we will conduct a de novo review – may seem inconsistent with subsequent language stating that we will review "findings of historical facts for clear error and determin[e] whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court." How can these two seemingly-contradictory standards co-exist for the same core issue?

Fortunately, the two clauses can be harmonized. The explanation lies in the fact that the two standards apply to different aspects of the analytical process that an appellate court must employ when reviewing probable cause and reasonable suspicion rulings. Circuit courts and appellate courts addressing search and seizure issues seldom have the luxury of facing