The COA reviewed the record and held that the district court's decision did not arbitrarily disregard undisputed evidence, nor was there any evidence of extrinsic considerations such as bias, passion, or prejudice:
Lindsay's affidavit was misleading. When the district court revised Lindsay's affidavit by adding necessary information that was missing from it and correcting misleading information in the affidavit, it concluded that the revised affidavit did not support a showing of probable cause. We agree. The district court did not err in this conclusion. The revised affidavit would not provide probable cause to believe that if Hodge had engaged in aggravated indecent liberties with a child, any evidence of this would be found on his computer.
Finally, the COA rejected the state's claim that the good-faith exception should save this search:
The State's sole argument on this issue is that the district court incorrectly found that Lindsay deliberately misled the magistrate. Lindsay addressed this issue in her testimony at the hearing. Her credibility was a matter for the district court, not us. The district court obviously did not believe that she did not intend to hide information. As stated by the district court, “the purposeful omission of material facts was misleading.” We find support in the record for the district court discrediting Lindsay's testimony on this point. The district court did not err in finding that the Leon exception does not apply.
[Update: the state did not file a PR and the mandate issued on March 18, 2010.]
[Further update: on March 16, 2010, the district court dismissed the Shawnee County prosecution.]
No comments:
Post a Comment