author: I .PETERS, J.

text:
    William M. KELLER v. Cleadieus McLEOD, et al.
    No. CA 03-267.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 11, 2004.

      Rudie J. Soileau, Jr., Thomas Townsley, Lake Charles, LA, for Plaintiff/Appellant, William M. Keller.
    Charles N. Harper, Swift, Spears & Harper, L.L.P., Lake Charles, LA, for Defendant/Appellee, Hercules, Inc.
    Patrick J. Briney, Richard R. Montgomery, Briney & Foret, Lafayette, LA, for Defendants/Appellees, Load Right Timber Sales, Inc. Clarendon National Insurance Co.
    Michael E. Parker, Allen & Gooch, Lafayette, LA, for Intervenors/Appellants, Kenneth. Parker Logging, Inc., Louisiana Safety Association of Timbermen Self Insurer’s Fund, Safety National Casualty Corporation, Sedgwick Claims Management Services, Inc.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.
   I .PETERS, J.

William M. Keller and his wife, Audrey, brought this suit to recover damages for injuries he sustained in an October 15, 1996 accident that occurred at the Hercules, Inc. (Hercules) plant located in Lum-berton, Mississippi. After Mr. Keller presented his evidence at trial, the trial court granted a directed verdict in favor of Load Right Timber Sales, Inc. (Load Right) and its insurer, Clarendon National Insurance Company, dismissing them from the litigation. Mr. Keller and various interve-nors in the litigation (hereinafter referred to collectively as “Parker Logging”) appeal the trial court judgment granting the directed verdict. The trial court rendered a subsequent judgment granting Hercules’ peremptory exception of prescription and dismissing it from the litigation. Mr. Keller and Parker Logging appeal that judgment as well. For the following reasons, we affirm the trial court’s judgments in all respects.

DISCUSSION OF THE RECORD

The facts applicable to the judgments below are not in dispute. Load Right is in the business of buying and selling trees, leasing and renting flatbed trailers, and delivering tree stumps to various locations. Hercules uses tree stumps at its various facilities, including its Lumberton, Mississippi facility. Accordingly, on January 11, 1996, Load Right and Hercules entered into two written contracts for the harvesting and hauling of “dead pine stumps and dead and down pine topwood” (hereinafter referred to collectively as “stumps”), namely, the “Harvesting Contract” and the | ^“Freight Contract.” Pursuant to these contracts, Hercules agreed to pay Load Right to harvest tree stumps from various locations specified by Hercules and to haul the stumps to Hercules’ facilities.

At the time the parties entered into these contracts, Load Right owned flatbed trailers capable of carrying the stumps. However, according to Cleadieus McLeod, one of Load Right’s owners, the company “desired to have self-insured contractors doing as much of the [Hercules contract] work as possible.” Because Load Right had an ongoing business relationship with Parker Logging, it engaged Parker Logging to extract the stumps from the ground. Additionally, because it also had an ongoing business relationship with Michael W. Saveli Trucking (Saveli Trucking), Load Right negotiated an agreement with Saveli Trucking on behalf of Parker Logging whereby Saveli Trucking would provide the tractor rigs and drivers to pull the flatbed trailers once the trailers were loaded with stumps. Pursuant to these agreements, Saveli Trucking would deliver the flatbed trailers to the harvesting location, where they would be loaded after Parker logging had extracted the stumps. After the trailers were loaded, Saveli Trucking drivers would transport them to the Hercules facility.

Mr. Keller was one of the drivers employed by Saveli Trucking. On October 15, 1996, he picked up a load of stumps and delivered them to Hercules’ Lumber-ton facility. While cleaning dirt and debris from the flatbed trailer after the stumps had been unloaded, Mr. Keller sustained injuries when his left foot fell through a hole in the wooden floorboard of Load Right’s trailer. Parker Logging provided workers’ compensation benefits in connection with Mr. Keller’s injuries.

On October 8, 1997, Mr. Keller and his wife filed the instant suit, initially [ ¡¡naming only Load Right and Mr. McLeod as defendants. Shortly thereafter, on October 20, 1997, Parker Logging filed a petition of intervention seeking reimbursement for indemnity and medical benefits paid on behalf of Mr. Keller. Mr. Keller added Hercules as a defendant on July 10,1998.

The case went to trial against the remaining defendants. At the close of the presentation of evidence by Mr. Keller, Load Right moved for a directed verdict on the basis that it was Mr. Keller’s statutory employer and as such was entitled to statutory immunity. The trial court granted the directed verdict and dismissed the claim against Load Right.

Hercules then filed an exception of prescription, which the trial court declined to rule on at the time. The case thereafter proceeded with Hercules as the only defendant. Upon completion of the presentation of all evidence, the jury returned a verdict establishing Mr. Keller’s damages at $731,000.00 and apportioning the fault among the various parties causing Mr. Keller’s injuries as follows: Hercules, 10%; Load Right, 50%; Saveli Trucking, 37%; and Mr. Keller, 3%. Thereafter, the trial court granted Hercules’s exception of prescription and dismissed the claims against it. Mr. Keller and Parker Logging filed a motion for new trial, which the trial court denied.

Mr. Keller and Parker Logging then timely filed this appeal, asserting that the trial court erred in granting Load Right’s directed verdict and in granting Hercules’ exception of prescription.

OPINION

Statutory Employer Defense

|4The rights and remedies granted to an employee under the Workers’ Compensation Act are exclusive of all other rights, remedies, and claims for damages, except for intentional acts, against any principal. La.R.S. 23:1032(A)(l)(a). “[T]he word ‘principal’ shall be defined as any person who undertakes to execute any work which is a part of his trade, business, or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.” La. R.S. 23:1032(A)(2). Louisiana Revised Statutes 23:1061(A) provided at the time of the accident the following in part:

When any person, in this Section referred to as the “principal”, undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person, in this Section referred to as the “contractor”, for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer....

Parker Logging urges this court to recognize a temporal element in the two-contract theory under La.R.S. 23:1061 for statutory immunity purposes. Specifically, it asserts that this court should recognize that in order for the general contractor to avail itself of statutory immunity, the contract between the principal and the general contractor must predate the contract between the general contractor and the subcontractor. Here, Parker Logging and Load Right had a preexisting relationship. Parker Logging contends that when Load Right entered into the contracts with Hercules, nothing had changed between Load Right and Parker Logging other, than the amount of work being done and the destination of the trucks. In other words, there was no “new” contract in which Load Right made specific arrangements with | sParker Logging to provide trucks, equipment, or drivers as a result of the contract with Hercules. Thus, Parker Logging contends that the trial court erred in granting the directed verdict because the “temporal element is lacking in this case.”

Without commenting on whether the ongoing business relationships were sufficient to constitute preexisting contracts in any event, we note that during the pen-dency of this appeal the supreme court decided Allen v. State, Through Ernest N. Morial—New Orleans Exhibition Hall Authority, 02-1072 (La.4/9/03), 842 So.2d 373, in which it concluded that La.R.S. 23:1032 and La.R.S. 23:1061 impose no temporal requirement on the two-contract defense. Thus, we reject Parker Logging’s assignment of error in this regard.

Nevertheless, Mr. Keller asserts that Load Right did not assert the two-contract defense until the “eve” of trial and that, in any event, the two-contract defense requires a service contract, not a sales contract. He contends that the contract between Load Right and Hercules was an agreement of sale, while the contract between Load Right and Parker Logging/Saveli Trucking was a service agreement.

As we appreciate Mr. Keller’s position, he does not dispute that Load Right timely filed the affirmative defense of statutory immunity. Rather, Mr. Keller asserts that at the time the affirmative defense of statutory immunity was raised, Load Right urged the defense only pursuant to the “trade, business, or occupation” portion of La.R.S. 23:1061(A), and not pursuant to the two-contract portion of that same statute. The trial court found that there was “no prejudice to [Mr. Keller] in this instance because [he had] known all along that there’s a statutory immunity pled.”

Pursuant to La.Code Civ.P. art. 1005, “[t]he answer shall set forth affirmatively ... any ... matter constituting an affirmative defense.” Importantly, “[t]he policy [(¡behind [La.Code Civ.P. art. 1005] is the prevention of ‘trial by ambush.’ ” Patterson v. State, 95-1668, p. 8 (La.App. 3 Cir. 12/11/96), 685 So.2d 473, 478, writs denied, 97-27, 97-108 (La.2/21/97), 688 So.2d 513. “[T]ort immunity provided by the [Workers’ Compensation] Act operates as an affirmative defense.... ” Brown v. Adair, 02-2028, p. 5 (La.4/9/03), 846 So.2d 687, 690. Because Mr. Keller was well aware of the affirmative defense of tort immunity, there was no trial by ambush. Mr. Keller has cited us to no authority, nor are we aware of any, that would require forfeiture of a timely pled affirmative defense because the specific bases of that defense were not disclosed until the “eve” of trial. Thus, we reject Mr. Keller’s argument in that regard.

Concerning the nature of the contracts between Load Right and Hercules, the supreme court in Allen, 842 So.2d 373, 383, set forth the requirements of the two-contract defense: “[I]n order to raise the ‘two contract’ defense, a defendant must establish only that: (1) it entered into a contract with a third party; (2) pursuant to that contract, work must be performed; and (3) in order for the defendant to fulfill its contractual obligation to perform the work, the defendant entered into a subcontract for all or part of the work performed.” In the instant case, Load Right entered into a harvesting contract and a freight contract with Hercules; pursuant to the contracts, Hercules agreed to “buy” stumps from Load Right which were “harvested by [Load Right] from locations specified by Hercules and delivered to Hercules”; and, in order to fulfill its contractual obligations to harvest and deliver the stumps, Load Right entered into subcontracts with Parker Logging and Saveli Trucking for this portion of the work to be performed.

However, because the contracts between Load Right and Hercules contained 17elements of sale, Mr. Keller argues that the two-contract defense is not available to Load Right. In support, Mr. Keller cites Insurance Co. of North America v. Gaylord Container Corp., 99-904, 99-905 (La.App. 1 Cir. 6/23/00), 764 So.2d 1214. In that case, Murphy Johnny LaBauve was employed as a truck driver for V.B. Fair-ley. Apparently m the course of this employment, Mr. LaBauve delivered pulpwood to Gaylord Container Corporation on behalf of Whitfield Timber Company. While on the Gaylord premises, Mr. La-Bauve fell into a hole. The first circuit explained that the two-contract defense was not applicable and analyzed it instead under the “trade, business, or occupation” provision of La.R.S. 23:1061(A). The first circuit ultimately concluded as follows:

The agreement between Gaylord and Whitfield was thus limited to the price that Gaylord agreed to pay for received deliveries by Whitfield. LaBauve was performing the single service of delivering pulpwood at the Gaylord site for the purpose of selling it to Gaylord on behalf of Whitfield. The lack of any obligation by Whitfield to sell to Gaylord, or to perform a specific service in favor of Gaylord, negates the possibility that Fairley’s employee was a statutory employee of Gaylord. Moreover, although Gaylord appears to have customarily bought any pulp wood that was delivered by its various dealers, there has been no demonstration that it was under any legal obligation to do so.

Id. at 1217-18.

In the instant case, Load Right was to perform work in fulfillment of the contracts with Hercules to the extent of harvesting and then delivering the stumps. Moreover, Mr. Keller admits that the contracts between Load Right and Parker Logging and Saveli Trucking were service contracts. Although interpreting a different version of the statute, the supreme court in Hart v. Richardson, 272 So.2d 316, 319 (La.1973), explained: “There is no reference in the act to an exclusion from coverage because there exist elements of a vendor-vendee relationship between the injured workman and the one sought to be held as an employer. If all the other | ^elements are present required by the act before there is coverage ... and the injured workman is performing a necessary and indispensable activity which is part of the business operation of the one sought to be held as ‘employer,’ the mere fact that elements of sale are present in the relationship will not defeat recovery.”

Likewise, under the version of La.R.S. 23:1061 in effect at the time of the accident, there is no reference to an exclusion from coverage because elements of a vendor-vendee relationship exist in one of the two contracts at issue. All that is required is that the principal “undertakes to execute any work ... which he ha[s] contracted to perform, and contracts with any person ... for the execution by or under the contractor of the whole or any part of the work undertaken by the principal.” La. R.S. 23:1061(A). We find no error in the trial court’s determination that Load Right was the statutory employer of Mr.- Keller.

Prescription

Finally, Parker Logging and Mr. Keller contend that the trial court erred in finding that Mr. Keller’s timely filed suit against Load Right did not interrupt prescription against Hercules where Load Right was ultimately dismissed from the suit.

“Interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors.” La.Civ.Code art. 2324(C). Further, “a suit timely filed against the employer for worker’s compensation interrupt[s] prescription as to the subsequent claim against the third party tort-feasor for damages.” Williams v. Sewerage & Water Bd. of New Orleans, 611 So.2d 1383, 1390 (La.1993). In the instant case, Load Right was dismissed from the suit as being statutorily immune from tort liability, and there is no indication in the record that suit was timely filed against Load Right for | ¡¡workers’ compensation benefits.

In Layman v. City of New Orleans, 98-0705 (La.App. 4 Cir. 12/9/98), 753 So.2d 254, Arthur Layman timely filed suit against several defendants, including the New Orleans Convention Center, in connection with injuries he sustained while working at the Convention Center. Over four years after the alleged accident, Mr. Layman amended his original petition to add Hufcor as a defendant. The trial court granted Hufcor’s exception of prescription, and Mr. Layman appealed. The fourth circuit affirmed, stating:

The Convention Center is the acknowledged employer of the plaintiff. Layman sued only for negligence damages. He did not sue for worker’s compensation benefits. Hufcor concedes that a claim against an employer for compensation benefits is solidary with the employee’s claim against third party tort-feasors. But Hufcor argues that an employee has no cause of action against an immune employer for negligence. Therefore, Layman’s suit which asserts no compensation claim against the Convention Center fails to state a cause of action for negligence against the Convention Center. Accordingly, plaintiffs suit asserts no claim against the Convention Center upon which a solidary relationship with Hufcor can be based. We conclude that the naming of the Convention Center as a defendant does not interrupt prescription as to Hufcor.

Id. at 256-57 (citations omitted) (footnote omitted).

Additionally, in Williams v. Holiday Inn Worldwide, 02-0762 (La.App. 4 Cir. 5/15/02), 816 So.2d 998, writs denied, 02-2116, 02-1875, 02-1906, 02-1983 (La.10/14/02), 827 So.2d 408, 426, 427, 428, Vanessa Williams filed suit for damages for injuries she sustained as a security guard at the Holiday Inn Crowne Plaza. Ms. Williams timely filed suit against Holiday Inn Worldwide (later substituted as Bristol Hotel Company). Over a year after the alleged accident, Ms. Williams supplemented her original petition to include as a defendant, among others, Ernest Verges, an architect. Bristol/Holiday Inn was dismissed with prejudice on the grounds that it | inwas Ms. Williams’ statutory employer. Mr. Verges then filed an exception of prescription on the ground that Bristol/Holiday Inn was not solidarily liable with him because it had been dismissed and, therefore, prescription had not been interrupted. The trial court denied the exception, and Mr. Verges filed an application for writs. The fourth circuit concluded:

As Bristol/Holiday Inn was dismissed with prejudice from the tort action, it is not solidarily liable with Verges.... The plaintiff never filed an action for workers compensation against Bristol/Holiday Inn or sought appellate review of Bristol/Holiday Inn’s dismissal with prejudice. Therefore, plaintiff has no other remedies against Bristol/Holiday Inn. Bristol/Holiday Inn is not, and will not, be liable to plaintiff for any of her alleged damages. Therefore, the suit against Bristol/Holiday Inn did not interrupt prescription as to Verges....

Id. at 1001.

Likewise, in the instant case, as Load Right was dismissed with prejudice from the tort suit as being the statutory employer of Mr. Keller, it is not solidarily liable with Hercules. Mr. Keller did not file an action for workers’ compensation benefits against Load Right and therefore has no other remedies against Load Right. Load Right, therefore, is not liable to Mr. Keller for any of his damages, and, as a result, the suit against Load Right did not interrupt prescription as to Hercules.

DISPOSITION

For the foregoing reasons, we affirm the judgment below and assess one half of the costs of this appeal to William M. Keller and one half of the cost of this appeal to Kenneth Parker Logging, Inc., Louisiana Safety Association of Timbermen Self Insured Fund, Safety National Casualty Corporation, and Sedgwick Claims Management Services, Inc.

AFFIRMED.

      . For purposes of this opinion, we will refer only to Load Right when referencing its insurer as well.

      . The intervenors included Kenneth Parker Logging, Inc., Mr. Keller’s borrowing employer; Louisiana Safety Association of Timber-men Self Insured Fund and Safety National Casualty Corporation, the workers' compensation carriers; and Sedgwick CMS, the third-party administrator of the claim. As stated above, for convenience, we will refer to all intervenors collectively as “Parker Logging-”

      . Mrs. Keller later dismissed her claim.

      . Before trial, the trial court granted a summary judgment dismissing Mr. McLeod as a party defendant.


source: Caselaw Access Project

author: h COOKS, Judge.

license: Public Domain

text:
    Dianne CORMIER, et al. v. LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT.
    No. 03-975.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 11, 2004.
    Patrick M. Wartelle, Roy, Bivens, Judi-ce, Roberts & Wartelle, Lafayette, LA, for Appellant, Lafayette City-Parish Consolidated Government.
    Pride J. Doran, DiVincenti, Fontenot-Roberts & Doran, Lafayette, LA, for Ap-pellee, Northern Insurance Company.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR and GLENN B. GREMILLÍON, Judges.
   h COOKS, Judge.

On June 21, 2000, Joseph Cormier was killed as the result of a single, car accident that occurred on Malapart Road near its intersection with Gouaux Road in Lafayette Parish. ■ The vehicle driven by Cormier ran off the road and came to rest in a roadside ditch.

Cormier’s heirs' filed a lawsuit against Lafayette City-Parish Consolidated Government (hereafter LCG), J.B. Talley & Company, and its insurer, Zurich Insurance Company, a/k/a Northern Insurance Company of New York (hereafter Northern). The basis of plaintiffs’ claims against LCG is that Malapart Road was defective and under the care and custody of LCG. Plaintiffs contended LCG failed to “adequately warn drivers of the irregular edges of the roadway and other defective conditions present on the road surface” and failed “to make adequate and timely road counts and traffic observations on Malapart Road to bring the roadway up to par with the amount of traffic that the roadway routinely accommodates, and the speeds at which the traffic customarily travels.”

Northern was named a defendant on the basis that it insured J.B. Talley (who has since become insolvent), which prior to the accident completed a contract it had with LCG to make improvements on Malapart Road. J.B. Talley’s contract with LCG included a provision that J.B. Talley would “defend, indemnify, and hold forever harmless” LCG for certain claims “arising out of or resulting from the performance of any of the work and/or obligations contemplated under the contract.”

LCG filed a cross-claim against Northern, alleging it was an additional insured under the Northern policy with J.B. Talley. LCG then filed a motion for summary judgment against Northern on that same ground. The trial court denied the motion, [¡¿holding as follows:

... regardless of whether [LCG] was a named insured under the policy, the policy clearly provides that coverage is not afforded “when that portion of ‘your work’ under the hvork contract’ out of which any injury or damage arises has been put to its intended use ...” Counsel for [LCG] acknowledges that [LCG] accepted the work, and this court finds that the work had been put to its intended use; thus, there is no coverage.

LCG then switched counsel and filed another motion for summary judgment arguing it was owed a defense and indemnity under the Northern policy. Northern then filed a cross motion for summary judgment contending there was no coverage afforded LCG under its policy with J.B. Talley. The trial court denied LCG’s motion and granted partial summary judgment in favor of Northern, concluding:

As I previously maintained, on page 8 of 17 of the policy language, Section 11-F provides for an opportunity for the named insured to extend coverage of this policy to another person or organization for a specific period of time.
And for me to interpret that as an open-ended extension of coverage by one of the two parties to the contract sounds unjust. I will not do it.

The judgment rendered by the trial court decreed that “there is no coverage to the benefit of [LCG] under the Northern Insurance Company policy issued to J.B. Talley & Co., and that Northern Insurance Company does not have a duty to defend [LCG] in this litigation.” LCG appealed, contending the trial court erred in ruling that Northern was not required to provide indemnity and a defense to LCG under its insurance policy with J.B. Talley. For the following reasons, we affirm.

ANALYSIS

In support of its argument, LCG cites this court to two cases, Allstate Insurance Co. v. Romero, 579 So.2d 1187 (La.App. 3 Cir.1991) and Charles v. LeBlanc, 93-871 (La.App. 3 Cir. 3/2/94), 633 So.2d 866, writ denied, 94-1314 (La.9/2/94), 643 So.2d 148. In Romero, the defendant installed and furnished air conditioning units in the plaintiffs residence. Years later a fire destroyed the residence, allegedly due to defendant’s negligence in the installation of the units. Defendant’s insurer at the time of the installation filed a motion for summary judgment, arguing there was no coverage relying on the completed operations exclusion in the policy. The trial court denied the motion for summary-judgment and this court affirmed, finding since the named insured was “allegedly negligent by failing to perform his work properly, this negligence consists of omissions which are not excluded from coverage by the completed operations hazard exclusion.” Romero, 579 So.2d at 1189.

In Charles, a welder who allegedly was negligent in performing repairs and inspections on a trailer was sued by the driver. The welder filed a third party demand against his insurer to enforce the policy and provide him a defense to the driver’s claim. The trial court relied on Romero in refusing to grant the insurer’s motion for summary judgment. A panel of this court affirmed finding “the case sub judice is factually similar to Allstate v. Romero, as it involves allegedly negligent omissions of the [welder] in repairing and inspecting the vehicle involved in the accident.” Charles, 633 So.2d at 869.

LCG cited these two cases in the proceedings below and the trial court found they were distinguishable. We agree. The difference between the present case and Romero and Charles is that LCG is not the named insured in the Northern policy with J.B. Talley. LCG is only an additional insured by virtue of the indemnity provision set forth in the policy, which specifically limits coverage to occurrences predating “when the work was put to its intended use.”

Unlike Romero and Charles, this is not a case of an insurer attempting to |4exclude coverage to its named insured. Section 11-F of the Northern insurance policy provides the named insured (J.B. Talley) the opportunity to extend coverage of the policy to a third party for a specific limited period of time, in this case up to the date when the “work was put to its intended use.” To hold as LCG requests would force an insurer to provide coverage, for an indeterminable period of time, to third parties based on a contract to which they were not privy. Therefore, we find the trial court did not err in concluding the Northern policy did not provide coverage to LCG. We note that our opinion in this case is limited to LCG’s right to require Northern to provide indemnity and a defense to LCG under its insurance policy with J.B. Talley. It does not speak to the plaintiffs’ right to seek redress against J.B. Talley and Northern.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to appellant, Lafayette City-Parish Consolidated Government.

AFFIRMED.


author: _JjPICKETT, Judge. h COOKS, J.,

text:
    STATE of Louisiana v. Aaron STOGNER.
    No. 03-1272.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 18, 2004.

      Earl B. Taylor, District Attorney — 27th JDC, Opelousas, LA, for State of Louisiana.
    Paula Corley Marx, Louisiana Appellate Project, Lafayette, LA, for Aaron Stogner.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, JOHN D. SAUNDERS, BILLIE COLOMBARO WOODARD, OSWALD A. DECUIR, JIMMIE C. PETERS, MARC T. AMY, MICHAEL G. SULLIVAN, GLENN B. GREMILLION, ELIZABETH A. PICKETT, BILLY H. EZELL, ARTHUR J. PLANCHARD  Judges.

       Judge Arthur J. Planchará, Retired, participated in .this decision by appointment of the Louisiana Supreme Court as Judge Pro Tem-pore.

   _JjPICKETT, Judge.

Presently before this court is a Motion to View Pre Sentence Investigation Report and Proffered Exhibit # 1 filed by the Defendant, Aaron Stogner, with this court on September 29, 2003. By Order signed by one judge acting on behalf of the court, defense counsel was granted permission to review the documents (the presentence investigation was to be amended to delete any confidential information). The presen-tence investigation report was amended and counsel was permitted to examine the documents on the afternoon of October 2, 2003.

The District Attorney sought relief in the Louisiana Supreme Court, contesting this court’s Order granting the motion for inspection. Specifically, the State asserted that it was denied the opportunity to respond to the motion, that the issues should have been assigned as error in the Defendant’s appellate brief instead of raised by motion, and that the Defendant should not have been permitted to view the documents without remanding the case to the trial court for its consideration of the motion.

The Louisiana Supreme Court granted the State’s writ on October 13, 2003, stating:

Writ granted. Because it appears that defendant’s Motion to View Pre Sentence Investigation Report and Proffered Exhibit # 1 was granted by order of a single judge of the court of appeal, it is ordered that the action be vacated and this matter remanded to the court of appeal for consideration of the motion by a three judge panel, after providing the parties with an appropriate opportunity to brief the issue. State v. Will, 02-2363 (La.9/13/02), 824 So.2d 1192; Gootee Const. Inc. v. Amwest Sur. Ins. Co., 2000-2341 (La.11/13/00), 775 So.2d 1044. Briefing on the merits of the appeal is stayed pending the court of appeal’s resolution of the defendant’s motion.

State v. Stogner, 03-2817 (La.10/13/03), 855 So.2d 742.

On remand, this court has chosen to consider this motion en banc.

J¿PRE-SENTENCE INVESTIGATION REPORT

After remand, this court gave both parties an opportunity to submit a brief addressing the motion before the court. In brief, defense counsel argues that, by permitting viewing of the documents, this court has preserved the Defendant’s constitutional right to the effective assistance of counsel.

Louisiana Code of Criminal Procedure Article 877 provides:

A. The presentence and postsen-tence investigation reports shall be privileged and shall not be disclosed directly or indirectly to anyone other than the sentencing court, the victim or the victim’s designated family member as defined in R.S. 46:1842, the prosecutor, members of the division of probation and parole within the office of adult services, the officer in charge of the institution to which the defendant is committed, the Board of Parole, the probation or the parole officer if the defendant is placed on probation or released on parole, medical authorities directly involved in the defendant’s rehabilitation or treatment if the defendant is committed to a hospital or a substance abuse program, the Board of Pardons, and the governor or his representative. However, this Article shall not require the disclosure of sources of confidential information.
B. Before imposing sentence the court may advise the defendant or his counsel of the factual contents and conclusions of any presentence investigation report. The sources of confidential information shall not, however, be disclosed. If the defendant contests any information contained in the presentence report, the court shall provide the district attorney the same access to the report as was given to the defendant or his counsel. The district attorney may respond to the defendant’s contentions concerning the information in the pre-sentence report.
C. The presentence investigation report, edited to protect sources of confidential information, shall be made a part of the record if the defendant seeks post-conviction relief only on' the grounds of an excessive sentence imposed by the court.

Louisiana Code of Criminal Procedure Article 877 does not list counsel for defendant as a party who is entitled to view the presentence investigation. However, the trial court may “advise the defendant or his counsel of the factual contents and conclusions” contained in the report. Section B of Article 877 provides that, prior to the imposition of sentence, the trial court may advise counsel or the defendant of the | scontents of the presentence investigation report. Section C requires the inclusion of the PSI as part of the record in those cases where the defendant seeks post conviction relief on the grounds of an excessive sentence imposed by the trial court; however, the' presentence investigation report is to be edited to delete the sources of confidenr tial information. Therefore, the Legislature has recognized that a defendant is entitled to limited information contained in a presentence investigation report under certain circumstances. We find access to information in a presentence investigation report would be important in situations where the trial judge relies on the information contained in the report to impose sentence and that information is false. We also recognize that a majority of counsel that represent criminal defendants before this court were not counsel of record at the time of sentencing. Therefore, even though the judge may have made defense counsel privy to the information in the report prior to sentencing, this information may not have been passed on to appellate counsel,- who has the responsibility to review the record for errors which should be raised on appeal. Failure to permit appellate counsel to be privy to the same information provided to defense counsel at sentencing could result in appellate counsel’s failure to pursue sentencing issues, which, if raised,-are meritorious.

The fourth circuit reviewed a defendant’s right of access to the information in a presentence investigation report at length in State v. Simmons, 466 So.2d 777 (La.App. 4 Cir.1985). The court stated:

Article 877 of the Code of Criminal Procedure declares that the report is privileged and shall not be disclosed except to certain enumerated officials. Neither the defendant nor his attorney are among those enumerated. However, the Supreme Court has held that principles of fundamental fairness may, in some circumstances, dictate disclosure of the contents of the report to a defendant or his attorney. To require disclosure, it must be clear the Trial Judge is relying on the report to guide him in imposing a fair sentence, but we can reasonably conclude that when a Trial Judge reviews the pre-sentence report- before sentencing, it plays some part in his consideration of the sentencing | ¿guidelines. State v. Trahan, 367 So.2d 752 (La.1978). When counsel for defendants timely move for disclosure of the report, alleging with particularity that it contains false information detrimental to the defendant, the Trial Court errs if the contents are not disclosed and the defendant given an opportunity to contradict or explain substantially prejudicial information. State v. Trahan, supra.
In the instant case, counsel for defendant moved for disclosure of the report, but did not allege that it contained false information — because he knew of none. Of course, he had no way of knowing unless the contents were made known to him. And because the report is privileged save to a few, we do not know how counsel could have learned from legitimate sources that the report might have contained detrimental false information.
The Trial Judge told counsel he was not entitled to see the report. When sentencing the defendant, the Trial Judge tersely said the basis of his sentence was three of the aggravating factors listed in the Article 894.1 sentencing guidelines:
(1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
(2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
(3) A lesser sentence will deprecate the seriousness of the defendant’s crime.
The Judge did not say how he arrived at those conclusions, but we presume they were based on the report. If the underlying facts included in the report had been disclosed before the Trial Judge sentenced Simmons, counsel might well have been satisfied and secure in the knowledge that accurate information supports the Judge’s conclusions.
But since experience shows that judges often routinely recite the aggravating circumstances of the sentencing guidelines without explaining how they reached their conclusions, the recitation is meaningless unless the underlying basis is disclosed. Hence, we hold that principles of fundamental fairness require disclosure upon request, after the Trial Judge conducts an in camera inspection of the report, excising only that information given in the expectation of confidentiality. We find support for our view in the American Bar Association Project on Minimum Standards for Criminal Justice which formulates standards to provide safeguards against the imposition of sentences based on erroneous information:
4.4 Presentence report; disclosure; parties.
|fi(a) Fundamental fairness to the defendant requires that the substance of all derogatory information which adversely affects his interests and which has not otherwise been disclosed in open court should be called to the attention of the defendant, his attorney, and others who are acting on his behalf. •
(b) This principle should be implemented by requiring that the sentencing court permit the defendant’s attorney, or the defendant himself if he has no attorney, to inspect the report. The prosecution should also be shown the report if it is shown to the defense. In extraordinary cases, the court should be permitted to except from disclosure parts of the report which are not relevant to a proper sentence, diagnostic opinion which might seriously disrupt a program of rehabilitation, or sources of information which has been obtained on a promise of confidentiality. In all cases where parts of the report are not disclosed under such authority, the court should be required to state for the record the reasons for its action and to inform the defendant and his attorney that information has not been disclosed. The action of the court in excepting information from disclosure should be subject to appellate review.
4.5 Presentence report: Time of disclosure; presentence conference.
(a) The information made available to the parties under section 4.4 should be disclosed sufficiently prior to the imposition of sentence as to afford a reasonable opportunity for verification.
(b) In cases where the presentence report has been open to inspection, each party should be required prior to the sentencing proceeding to notify the opposing party and the court of any part of the report which he intends to controvert by the production of evidence. It may then be advisable for the court and the parties to discuss the possibility of avoiding the reception of evidence by a stipulation as to the disputed part of the report. A record of the resolution of any issue at such conference should be preserved, for inclusion in the record of the sentencing proceeding (section 5.7[a][iii]).
This is not a novel idea in Louisiana. The Supreme Court in State v. Owens, 377 So.2d 316 (La.1979) recommended that trial judges [(¡follow the procedure suggested by the American Bar Association. See also Joseph, Criminal Law and Procedure, The Work of the Louisiana Appellate Courts for the 1978-79 Term, 40 La.L.Rev. 635, 658 (1980).

Id. at 779-80.

In State v. Carrier, 453 So.2d 1216, 1217-18 (La.App. 3 Cir.1984), this court held that a defendant is not automatically entitled to inclusion of the presentence investigation report in the appellate record, as follows:

In regard to the presentence investigation, defendant makes only the following argument on appeal:
“It must also be noted that it is impossible to review the mitigating circumstances in this matter because the presentence investigation has not been made part of the record.”
LSA-C.Cr.P. art. 877 protects the confidentiality of presentence investigation reports; however, it provides that “the court may advise the defendant or his counsel of the factual contents and conclusions of any pre-sentence investigation report.” There is no requirement that the report be entered into the record for review on appeal, nor does the record show that defense counsel made any such request. In fact, there is no allegation that defendant requested that the report be made part of the record or that he be allowed access to it. Absent such a request, there is no error in not making the report a part of the record. State v. Boone, 364 So.2d 978 (La.1978), cert. den. 444 U.S. 825, 100 S.Ct. 46, 62 L.Ed.2d 31 (1979). Defendant also makes no claim that the report contained false information prejudicial to him which would entitle him to access. See State v. Bindom, 410 So.2d 749 (La.1982).

The second circuit has held that a defendant must make a timely request to review the presentence investigation report before sentencing, stating:

The' purpose of this constitutionally-required “access” is to afford the defendant and his counsel ah “opportunity” to deny, rebut or explain any adverse, incorrect and prejudicial PSI or other information (even that otherwise secret to the sentencing judge himself) to which the trial court was exposed prior to imposing sentence in order to avoid an excessive sentence improperly resulting from materially false information. CCrP Arts. 875 and 876[.] Cases have construed “access” to mean “disclosure,” “access” and “to examine.”
|7A trial judge is not necessarily required to allow defense counsel access to or give him a copy of defendant’s PSI. Even if failure to provide defense counsel with PSI report was error, where adverse report information was provided to defense counsel and the report contains no adverse information not given to defense counsel that could logically form the basis for or be subject to challenge by a motion to traverse, the error was harmless. Where, however, a trial court fails to allow a defendant access to the report and an opportunity to rebut any adverse and materially prejudicial information, reversible error has occurred.
While a defendant is guaranteed the right to contest allegations and statements in a PSI report and additional information to which the sentencing court was exposed, defense counsel must make a timely request prior to sentencing for access to the PSI report and must make some showing that the report contains, or other information upon which a trial court relies in imposing sentence consists of, materially false or misleading information prejudicial to the defendant.
Thus, while sentencing procedures must meet due process requirements, those requirements are met by permitting the defendant access and an opportunity to rebut or explain prejudicial or erroneous information included in a PSI. Due process does not necessarily require a full-scale presentence evidentia-ry hearing.

State v. Coleman, 574 So.2d 477, 480-81 (La.App. 2 Cir.1991) (citations omitted); see also State v. Wood, 34,819 (La.App. 2 Cir. 8/22/01), 793 So.2d 441, writ denied 00-3264 (La.8/24/01), 795 So.2d 335.

In State v. Lanieu, 98-1260 (La.App. 1 Cir. 4/1/99), 734 So.2d 89, writ denied, 99-1259 (La.10/8/99), 750 So.2d 962, the defendant alleged that the trial court improperly denied him access to the presentence investigation report, even though he had requested the opportunity to review it prior to sentencing. The first circuit denied relief on the basis that the defendant had failed to allege that the information the court relied on in arriving at the sentence was false.

Although these cases concern a defendant’s denial of the right to access to the presentence investigation report prior to sentencing, we find the reasoning set forth is applicable to the issue before this court.

|sWe conclude that a defendant does not have the absolute right to review the presentence investigation report; however, under certain circumstances he is entitled to at least know the information contained in the presentence investigation report. Having so found, we must now decide who is in the best position to decide whether defense counsel should be given access to the information in the presen-tence investigation report for appeal purposes.

Any motion submitted to this court, seeking to obtain access to the information in the presentence investigation report, would appropriately be made during the preparation of appellant’s brief, prior to the issues for review by this court being assigned. Louisiana Code of Criminal Procedure Article 877(C) requires that the presentence investigation report, edited to delete confidential sources, be placed in the record if excessive sentence claims are raised. Errors are not assigned by counsel prior to the lodging of the appeal with this court. Therefore, the trial court’s clerk’s office is not in a position to determine whether the presentence investigation report should accompany the appeal record. Furthermore, the record filed with this court may not provide information which would be helpful in determining whether appellate counsel should be permitted access to the information in the presentence investigation report, such as whether the sentencing; court advised defendant or his counsel of the contents of the presentence investigation report prior to sentencing and the extent to which the sentencing court relied on the information in the report in arriving at the sentence. These are all factors which should be given consideration in ruling ón a motion to view or have access to the information in the presentenee investigation report. Therefore, we find the sentencing court is in the best position to make the determination of what, information counsel should be privy to in | ^preparation of his appellate brief and we will remand the case for its consideration of the motion.

PROFFERED EXHIBIT #1

The State also challenged this court’s Order granting defense counsel permission to view , evidence which was proffered at the Defendant’s post conviction hearing wherein he sought, and was granted, an out-of-time appeal. This hearing was held on July 29,- 2003. At that hearing, the Chief Public Defender, Edward Lopez, testified concerning the procedure followed in St. Landry Parish regarding habitual offender bills. Basically, he testified that the assistant district attorney who wishes to seek a multiple offender adjudication against a defendant must request permission, in writing, from the district attorney by submitting a memo explaining why a particular defendant deserved to be multiple billed. If a memorandum is prepared, the district attorney will give defense counsel an opportunity to explain why the defendant should not be multiple billed. The defense counsel also called the district attorney’s representative, Donald Richard. During his testimony, defense counsel questioned whether a memorandum seeking permission to multiple bill the Defendant was filed in this case. Mr. Richard stated one was submitted and was contained in their file. Defense counsel moved to introduce the memo, the State objected and the trial judge sustained the objection. The defense proffered the evidence, indicating that it goes toward the possibility of prose-cutorial misconduct based on misstatements of facts within the memo. The judge permitted the proffer, stating:

I am going to seal this proffer from public view in that I find that it’s an internal decision making process of the District Attorney’s Office, and as a result, I am going to seal from public view that proffer and if the Court of Appeals wishes to do something else, that of course, is their prerogative.

ImOn appeal and in preparation of the defense brief, appellate counsel for the Defendant asked to view this proffered evidence. The State contends that the proffered exhibit is work-product of the district attorney’s office and the admissibility of this evidence should be addressed by an assignment of error. The State further contends that, by permitting the defense attorney the right to view this evidence, it requires this court to resolve the question concerning -the admissibility of the evidence by motion, which would be improper/ We need not reach the eviden-tiary issue. The evidence in question was proffered at an evidentiary hearing held on the Defendant’s application for post conviction relief. The sole issue raised in the application alleged ineffective assistance of counsel for counsel’s failure to move for an appeal. The relief sought by the Defendant was the reinstatement of his right to appeal. Without consideration of the evi-denee at issue, the trial court granted the application and ordered an out-of-time appeal. The State did not seek review of the trial court’s ruling. In fact, the case is currently before this court on appeal. Therefore, the proffered evidence is no longer relevant to any issue pending before the court. Accordingly, defense counsel’s motion to view this evidence is denied.

CONCLUSION

We deny defense counsel’s request to view proffered exhibit #1. As to defense counsel’s motion to view the presentence investigation report, we remand this case to the sentencing court for consideration by it of that part of the motion filed by defense counsel addressing the presen-tence investigation report. The sentencing court should decide what information in the presentence investigation report appellate counsel should be made privy to, if any, and shall provide this information to counsel. This motion should be considered and, if granted, appellate counsel given a time and place for obtaining the information, without undue delay, but in no event not later l^than twenty days from the date of this opinion. Upon completion, the trial court shall cause to be lodged with this court a supplemental record which shall contain its ruling on the motion. This supplemental record should be filed with this court within five days of either the trial court’s ruling on the motion or satisfaction of the trial court’s ruling on the motion, whichever is later. Upon receipt of the supplemental record, briefing on the appeal will resume.

We recognize that in this case, defense counsel has already viewed the redacted presentence investigation report and the proffered exhibit # 1. Therefore, we order counsel to limit her discussion on appeal, with regard to the information contained in the presentence investigation report, to only that information which the sentencing court permits her to review. Furthermore, counsel shall refrain from referring to any information she may have become privy to as a result of this court’s prior Order granting counsel permission to view the proffered exhibit # 1.

MOTION TO VIEW PROFFERED EXHIBIT # 1 DENIED; MOTION TO VIEW PRESENTENCE INVESTIGATION REPORT REMANDED WITH INSTRUCTIONS.

COOKS, J., dissents in part and assigns written reasons.

h COOKS, J.,

dissents in part.

The majority’s position that defendant does not have the absolute right to review the presentence investigation report except under certain limited circumstances and only to a limited extent is too restrictive to protect defendant’s constitutional right to due process and fairness at every stage of the criminal proceeding. .There is no rational basis for the State to grant the prosecutor the right to review the presen-tence report at any stage of the proceedings without any restrictions and to deny the same access to the defendant. Any interest the State may have in protecting the sources of confidential information contained in the reports have been addressed in Louisiana Code of Criminal Procedure Article 877. See State v. Simmons, 466 So.2d 777 (La.App. 4 Cir.1985); State v. Owens, 377 So.2d 316 (La.1979). Why the majority has elected today to turn the criminal justice clock back in time is baffling to me, particularly considering that the Louisiana Supreme Court nearly twenty-four (24) years ago recommended that the trial judges follow the procedure suggested by the American Bar Association. The Association has long recognized that fundamental fairness requires inspection of presentence reports by | ^defendants, except under certain limited circumstances and even then the court should state for the record the reasons for its action which should be subject to appellate review.

      . Although article 877 has been amended since the date of this case, it still retains similar language concerning the rights of the defendant or his counsel to view the presen-tence investigation report.


author: |, COOKS, Judge.

text:
    STATE of Louisiana v. Bobby HOLMES.
    No. 03-177.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 18, 2004.
    Charles Riddle, III, Avoyelles Parish District Attorney’s Office, Mansura, LA, for PlaintiffAppellee — State of Louisiana.
    Bobby Holmes, Cottonport, LA, for De-fendanVAppellant — Bobby Holmes.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR and GLENN B. GREMILLION, Judges.
   |, COOKS, Judge.

Defendant, Bobby Holmes, was charged with two counts of obscenity in violation of La.R.S. 14:106. The first alleged act of obscenity occurred on August 14, 2001, when a female prison guard accused Defendant of “stroking his erect penis with his hand in a masturbating manner” while in the prison shower. The second act occurred on April 22, 2002 when defendant allegedly exposed his penis to another female guard and masturbated. Defendant filed a Motion to Quash the charges, alleging the bill of information did not contain sufficient facts to charge the crime of obscenity. After a hearing, the trial court denied the Motion to Quash. Defendant sought supervisory writs with this court. We held:

WRIT DENIED: Based upon the application before this court, we do not find that the trial court abused its discretion in denying Defendant’s Motion to Quash. The bills of information contain sufficient facts to charge the crime of obscenity. Furthermore, the record presented to this court is void of any evidence indicating the location within the correctional center of the alleged offenses. Therefore, we cannot say that the bills of information should have been quashed. Accordingly, the Defendant’s writ application is denied.

See State v. Holmes, an unpublished writ bearing docket number 02-416 (La.App. 3 Cir. 5/24/02).

Following the denial of writs, Defendant pled guilty to both counts of obscenity. He was sentenced, pursuant to a plea agreement, to one year on each count, to be served consecutively. Defendant filed an application for post-conviction relief in the trial court, which was denied with written reasons issued on January 6, 2003. No hearing was conducted in the matter.

Defendant now alleges one of the crimes for which he was convicted (the August 14, 2001 incident in the prison shower) did not exist, and his plea to this |«>charge was invalid. He argues the application of the newly amended statute to his case constitutes a prohibited ex post facto application of the law. In his current filing, Defendant includes documents to support his claim, which were not part of the record in the previous filing. After reviewing these documents, we note the location of the alleged offense (the prison shower) was not disclosed by the State the first time we considered this matter. We find this fact requires that we reverse and vacate Defendant’s sentence on the obscenity charge which occurred prior to the amendment of the obscenity statute.

ASSIGNMENT OF ERROR

Defendant alleges he was charged with exposing and fondling himself in front of a female guard while in the prison shower, and that the inclusion of “any prison or jail” in La.R.S. 14:106(A)(1), as a place where obscenity can be charged, occurred after the date on which the offense in his case occurred. Thus, Defendant protests that he was charged with a “nonexistent offense” and as such his plea must be vacated.

We note the offense occurred on August 14, 2001, at 6:09 p.m., and that La.R.S. 14:106(A)(1) was amended by Acts 2001, Number. 177, which took effect on August 15, 2001, or five hours and fifty-one minutes after Defendant’s conduct occurred.

Prior to the 2001 amendment, the crime of obscenity was defined, in pertinent part, as:

Exposure of the genitals, pubic hair, anus, vulva, or female breast nipples in any public place or place open to the public view, with the intent of arousing sexual desire or which appeals to prurient interest or is patently offensive.

| ¡¡(Emphasis ours.)

Acts 2001, Number 177, amended the statute to read:

Exposure of the genitals, pubic hair, anus, vulva, or female breast nipples in any public place or place open to the public view, or in any prison or jail, with the intent of arousing sexual desire or which appeals to prurient interest or is patently offensive.

(Emphasis ours.)

We are aware of the -second circuit’s decision in State v. Narcisse, 36,595 (La.App. 2 Cir. 12/11/02), 833 So.2d 1186, writ denied, 03-0150 (La.5/2/03), 842 So.2d 1099, where the defendant was charged with exposing himself in a prison infirmary, to a pris’on employee, in violation of La.R.S. 14:106(A)(1), prior to the legislative amendment addressing such conduct “in any prison or jail” as a specifically enumerated basis for conviction. The defendant was found guilty as charged' after a jury trial. On appeal he claimed, as in the present case, that his conduct was not criminalized until the revised statute became effective. In rejecting that contention, the Nardsse court found that:

It is not necessary that a defendant expose himself to the general public in a completely public and open area in order to be convicted of obscenity. A public place or place open to the public view does not have to be open to all members of the public. Any person who can see the act of obscenity being committed is a member of the public. If we were to exclude jail infirmaries as public places or places open to the public view, then every staff member or visitor could be victimized and harassed by obscene acts from prisoners.

State v. Narcisse, 833 So.2d at 1192.

We find the occurrence of the incident in the prison shower distinguishes this case from Nardsse. It is common sense that a prison shower is a location afforded greater privacy than a prison infirmary. Obviously, there are no visitors in prison showers, and it cannot be reasonably held to be a “place open to the public view” as the statute provides. It is true a prisoner’s expectation of privacy, to a large extent, must give |4way to the immediacy of his imprisoned circumstances and the security measures which must be put in play to assure the orderly conduct of daily life in such a confined environment. Still, a “prison shower” heretofore has been regarded as one of the few places a prisoner is permitted to attend to his “private needs” except for minimal security monitoring by authorized prison personnel. While we today pass no judgment on the wisdom of the legislative amendment to La.R.S. 14:106(A)(1), we find the conduct for which this Defendant was charged did not amount to obscenity under the previous law. Therefore, we reverse Defendant’s conviction and sentence.

DECREE

For the foregoing reasons, the judgment of the trial court denying Defendant’s application for post-conviction relief is reversed. The conviction and sentence are reversed.

CONVICTION AND SENTENCE REVERSED.

      . The bill of information erroneously listed the date of the offense as September 24, 2001. It was admitted by all concerned that the correct date of the alleged offense was August 14, 2001.

      . Defendant did not appeal his obscenity conviction for the act which occurred on April 22, 2002, which came after the effective date of the amendment of La.R.S. 14:106(A)(1).

      . For example, prisoners are allowed, in certain instances, to have conjugal visits, to meet with their attorneys, and to receive counseling from members of the clergy in private areas.


author: | ¡MARION F. EDWARDS, Judge.

text:
    STATE of Louisiana v. Frank W. KANG.
    No. 01-KA-1262.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 23, 2004.
    Rehearing Denied March 15, 2004.

      Paul D. Connick, Jr., District Attorney, 24th Judicial District, Thomas J. Butler, Terry M. Boudreaux, Richard R. Pickens, II, Assistant District Attorneys, Gretna, LA, for Appellee.
    Robert Glass, New Orleans, LA, for Appellant.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and MARION F. EDWARDS.
   | ¡MARION F. EDWARDS, Judge.

In our previous decision in this case, State v. Kang, we found that the trial court had erred in refusing to strike a prospective juror for cause and reversed defendant’s conviction. Thereafter, the supreme court reversed our finding and remanded for this court to consider the defendant’s remaining assignment of error. For the following reasons, defendant’s conviction is affirmed.

Defendant, Frank Kang, argues that the trial court erred in refusing to grant his motion to suppress his two statements on the basis they were the product of an illegal arrest made without probable cause. He first challenges the initial detention of the vehicle in which he was riding. Kang contends the detention should have ended when the police realized that the car they stopped was a black Honda and not a black Lexus for which they were looking. Kang further challenges his arrest, which he contends occurred after the initial investigatory stop when he was handcuffed and transported to the Detective Bureau, arguing that his mere presence in a car with a named suspect does not create probable cause to arrest him. As psuch, Kang asserts his arrest was invalid and the two statements he gave following his arrest were suppressible as fruit of the poisonous tree.

A trial court’s ruling on a motion to suppress a confession is entitled to deference. In reviewing the trial court’s ruling, the evidence presented at trial may be considered in addition to the evidence presented at the hearing on the motion to suppress.

The Fourth Amendment to the United States Constitution and Article I, Section 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. If evidence was derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from the trial. There are three tiers of interaction between the police and citizens as it relates to the Fourth Amendment. The first tier is mere communication between offices and citizens where there is no coercion or detention. Such communication does not implicate the Fourth Amendment. The second tier is the investigatory stop where the police may briefly seize-a person if the officer has reasonable' suspicion, supported by specific and articulable facts, that the person is, or is about to be, engaged in criminal conduct or is wanted for past criminal acts. And, the third tier is a custodial arrest where the police must have probable cause to believe that the person has committed a crime.

The first issue in determining the admissibility of Kang’s two statements is whether the initial stop of the vehicle in which defendant was riding was justified. The initial stop of the vehicle falls under the second tier of interaction, or an investigatory stop. Investigatory stops require reasonable suspicion of criminal activity. “Reasonable suspicion” is something less than probable cause and is determined under the facts of each case by whether the officer had sufficient | ¿knowledge of facts and circumstances to justify an infringement on the individual’s right to be free from governmental interference.

The officer “must have a particularized and objective basis for suspecting the particular person stopped of criminal activity” and must be able to articulate the specific facts upon which his suspicion is based. The facts upon which an officer bases an investigatory stop should be evaluated in light of the circumstances surrounding the incident. A reviewing court must take into consideration the totality of the circumstances and give deference to the inferences and deductions of a trained police officer that might elude an untrained person.

At the hearing on the motion to suppress, Detective Randy Thibodeaux testified he was patrolling an area on the West-bank encompassing Manhattan Boulevard on the night of March 4, 2000 when he heard a broadcast referencing a shooting in Metairie. The broadcast indicated the vehicle involved was a black Lexus with three Asian males from the Westbank. He later learned through further radio communication that one of the perpetrators was James Oh and that he lived on Lake Michelle in the Stonebridge area.

After ascertaining that enough time had passed to allow James Oh to make it back to Stonebridge from the scene of the shooting, Detective Thibodeaux went looking for the vehicle in the Stonebridge area. He was stopped at the intersection of Harvey and Wall when a vehicle fitting the description of the black Lexus turned in front of him. The window was rolled down and Detective Thibodeaux saw two Asian males inside the car. Detective Thibo-deaux looked in his rearview mirror and believed the car was a Lexus. He then turned around and stopped the vehicle.

|BAs Detective Thibodeaux approached the vehicle, he discovered it was a black Honda as opposed to a black Lexus. He nonetheless proceeded to ask the occupants for their names and identification. Detective Thibodeaux explained that he continued with his investigation into the car’s occupants for several reasons. He stated it was early in the morning, the vehicle was coming out of Stonebridge in the same area as Lake Michelle and it contained Asian males. Detective Thibo-deaux worked paid details in Stonebridge and stated it was unusual to see Asian males out in Stonebridge at that time of morning. He further stated, based on his experience, that people are not always accurate in describing vehicles. Since he initially believed the vehicle he stopped was a Lexus, he stated it was very possible that a witness could have confused the make of the car involved. Since he did not have a license plate number, he could not verify if the vehicle they were looking for was in fact a Lexus. Finally, Detective Thibodeaux explained it was possible the perpetrators switched cars.

We find that the following facts provide reasonable suspicion to support an investigatory stop: Detective Thibodeaux, while on patrol, heard the radio dispatch that a black Lexus with three Asian males from the Westbank was being sought in connection with a shooting on the Eastbank in Metairie. Through further radio communication with Lieutenant Walsdorf, who was on the scene of the shooting in Metair-ie, Detective Thibodeaux learned one of the suspects in the black Lexus was James Oh who lived on Lake Michelle in the Stonebridge subdivision. Approximately 30 minutes after the shooting, a reasonable time lapse in which the vehicle being sought could have driven from the East-bank to the Westbank, Detective Thibo-deaux stopped a black vehicle with Asian male occupants coming out of the Stone-bridge subdivision near the area of Lake Michelle. We find that although the vehicle was a Honda as opposed to a Lexus, the officer’s training and experience, as discussed above, justified a continuation of the investigatory stop.

| (¡Having found the initial stop of the vehicle in which defendant was riding to be a valid investigatory stop based on reasonable suspicion, the next inquiry is at what point defendant was arrested and whether probable cause to arrest existed at that time.

After stopping the vehicle, Detective Thibodeaux asked for identification from all four occupants. The only occupant who could provide identification was James Oh, the named suspect. Thereafter, each of the four occupants was transported separately to the Detective Bureau. The record shows that Kang was handcuffed and placed in the back of a marked police unit before being transported to the Detective Bureau. Lieutenant Steve Buras testified that Kang was not arrested at that time nor when he arrived at the Detective Bureau. However, Lt. Buras stated that Kang was not free to leave the Detective Bureau.

The Louisiana Supreme Court has discussed an arrest as follows:

An arrest is “the taking of one person into custody by another [through] actual restraint [that] may be imposed by force or may result from submission of the person arrested to the custody of one arresting him.” La.Code Crim. Proc. art. 201. Whether a person has been arrested is determined by an objective test; neither the person’s subjective impression nor the lack of formality of the arrest resolves the issue.
The determination of whether an arrest occurred depends on the totality of the circumstances, but several factors distinguish an arrest from lesser infringements on personal liberty. A prime characteristic of any Fourth Amendment seizure of a person is whether, under the totality of the circumstances, a reasonable person would not consider himself or herself free to leave. Ultimately, whether a person has been arrested depends on circumstances indicating an intent to impose an extended restraint on the person’s liberty.

In the present case, the police restrained Kang by handcuffing him and putting him in the back seat of a police car bound for the Detective Bureau. The jurisprudence makes it clear that an arrest occurred at that time. In State v. Fisher, supra, the defendant was likewise handcuffed and placed in a police unit bound for the police station. The supreme court determined that no reasonable person in the same position could have believed he was free to go. The supreme court also noted that the police officer’s testimony that he intended to take Kang to the police station indicated “an unmistakable intent to impose a restriction on defendant’s liberty more extensive than an investigatory stop.”

Having found defendant was arrested at the scene of the investigatory stop, the next issue is whether there was probable cause to arrest him at that time.

Probable cause to arrest exists when the facts and circumstances within an officer’s knowledge, and of which he has reasonable trustworthy information, are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed or is committing a crime. A police officer need not be able to negate all possible lawful explanation of a situation before making an arrest but must have within his knowledge information upon which to reasonably base a belief that the person to be arrested is criminally connected with the circumstances.

The determination of the existence of probable cause must be judged by the probabilities and practical considerations of everyday life on which average police officers can be expected to act. Probable cause, although requiring something more than bare suspicion, does not require evidence sufficient to support a conviction. When a defendant seeks suppression of a confession obtained | ^through an arrest allegedly made without probable cause, the State bears the burden of proving probable cause.

The determination of probable cause is very fact specific. In State v. Fisher, supra, the Louisiana Supreme Court found there was no probable cause to arrest defendant based on neighborhood gossip. In particular, one of the police officers investigating a murder was told by unnamed people in the neighborhood who did not see the shooting that defendant had shot the victim. The police officer did not share this information with anyone else in the homicide division nor did he attempt to question the defendant on his own. The court concluded he made no effort to follow up the lead he received. Five months later, the police officer saw the defendant riding in a car. He hollered to the defendant that he wanted to talk to him. The defendant yelled back-to the officer that he would call him. The officer followed the car for several blocks and then stopped the car with flashing lights. There was no traffic violation and the only reason the police stopped the car was to question defendant about the murder. The officer removed defendant from the car, handcuffed him, placed him in the back seat of the police car and drove him to the police station. The court determined the neighborhood gossip did not constitute probable cause.

However, in State v. Fauria, the Louisiana Supreme Court determined there was probable cause to arrest three defendants, who were cutting cable wires, for theft. In Fauria, a police officer observed three defendants near a spool of cable lying on the ground. The men had a cable cutter and were transferring cut pieces of cable into the rear of a pickup truck. The officer recalled a theft complaint of copper cable made earlier by the Harbor Police. The officer held the |9three men until the Harbor Police arrived. When the Harbor Police officer arrived, he indicated the wire and spool were “similar” to the type of wire and spool that had been stolen from the wharves several days earlier. One of the defendants stated he chased somebody down and picked the wire up. The three defendants were placed under arrest and charged with theft and receiving stolen goods.

The supreme court determined there was probable cause to arrest the defendants based on the facts the copper cable in the defendants’ possession was the type taken from the wharves and the defendants’ response to the officer’s interrogation was unsatisfactory. The court concluded the facts and circumstances within the officer’s knowledge were sufficient to justify a man of average caution in the belief that the defendants had committed an offense. The court noted that “[c]on-sidering the circumstances and the unlikely story told by the defendants, it was more probable than not that the defendants’ activity consisted of criminal behavior.”

In the present case, Kang argues that, at the time of his arrest, the police had no evidence he had any connection to the shooting, that he was ever in the “Lexus” at issue or that he was even at the scene of the shooting. He contends his mere presence in the car with a named suspect did not justify his arrest. However, considering the totality of the circumstances, we find that the police had probable cause to arrest Kang.

Specifically, the police knew a shooting had occurred in Metairie at approximately 3:45 a.m., three Asian males in a black Lexus were involved in the shooting, the perpetrators were from the Westbank, and one of the perpetrators was James Oh who lived on Lake Michelle in the Stonebridge subdivision. At approximately 4:35 a.m., the police stopped a black Honda, which is similar in characteristic to a Lexus, with four Asian males occupants in an area near the hnStonebridge subdivision where Lake Michelle is located. After asking the occupants for identification, they learned James Oh was in the car.

Once the police learned James Oh was one of the occupants, the reasonable suspicion, which had justified the investigatory stop, ripened into probable cause. Since the police knew more than one perpetrator was involved in the shooting, they had probable cause to suspect all the occupants in the vehicle had just committed an offense. The totality of circumstances including 1) the time of morning, 2) the time period between the shooting and the stop, 3) the location of the stop near the area where one of the perpetrators was known to live, 4) the similarity between the car the men were in and the car the police were looking for, 5) the fact all occupants inside the car being Asian male matched the description of the perpetrators, and 6) the presence of the named perpetrator inside the vehicle, made it more probable than not that the occupants had been involved in criminal activity.

Since the police had probable cause to arrest Kang, his arrest was lawful. As such, we find that the trial court did not err in denying his motion to suppress his statements as products of an illegal arrest.

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, and State v. Weiland. The review reveals one error patent in this case.

In accordance with the statute, the trial court sentenced Kang to life imprisonment without the benefit of parole, probation or suspension of sentence. However, the commitment only shows the sentence is to be served without the benefit of probation and suspension of sentence. Thus, the commitment fails to indicate defendant’s sentence is without the benefit of parole. Where there is a discrepancy between the transcript and the minute entry, the transcript prevails. In We therefore order the trial court to correct defendant’s commitment to reflect that his sentence is to be served without the benefit of parole as indicated by the sentencing transcript.

In all other respects, defendant’s conviction is affirmed.

AFFIRMED.

      . 01-1262 (La.App. 5 Cir 10/29/02), 831 So.2d 409.

      . State v. Fisher, 97-1133 (La.9/9/98), 720 So.2d 1179, 1182

      . Id.

      . State v. Benjamin, 97-3065 (La.12/1/98), 722 So.2d 988, 989.

      . State v. Fisher, 720 So.2d at 1183 (internal citations omitted).

      . State v. Sanders, 97-892 (La.App. 5 Cir. 3/25/98), 717 So.2d 234, 240, writ denied, 98-1163 (La.9/25/98), 724 So.2d 774.

      . State v. Huntley, 97-0965 (La.3/13/98), 708 So.2d 1048, 1050, quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981) (citation omitted).

      . State v. Huntley, 708 So.2d at 1049.

      . State v. Fisher, 720 So.2d at 1183 (internal citations omitted).

      . State v. Fisher, 720 So.2d at 1183. See also, State v. Kenner, 384 So.2d 413, 417 (La.1980), where the court held defendant was arrested when he was detained and placed in the police car in handcuffs even though he was not formally arrested until after he was identified by the victims.

      . State v. Fisher, 720 So.2d at 1184; State v. Harris, 00-1930 (La.App. 5 Cir. 4/11/01), 786 So.2d 798, 803.

      . State v. Phillips, 347 So.2d 206, 209 (La.1977).

      . State v. Fisher, 720 So.2d at 1184; State v. Harris, 786 So.2d at 803.

      . State v. Simms, 571 So.2d 145, 148-149 (La.1990).

      . State v. Fisher, 720 So.2d at 1184.

      . The court also rejected the State’s contention that defendant fled from the police which may have provided probable cause in the totality of the circumstances. The court noted that there was no evidence of flight to avoid apprehension. State v. Fisher, 720 So.2d at 1185.

      .393 So.2d 688 (La.1981).

      . State v. Fauria, 393 So.2d at 690.

      . 312 So.2d 337 (La.1975).

      . 556 So.2d 175 (La.App. 5 Cir.1990).

        .State v. Lynch, 441 So.2d 732, 734 (La.1983).


author: WALLER, Justice, COBB, Justice, McRAE, Presiding Justice,

text:
    STATE of Mississippi v. Steve WOODS.
    No. 2001-KA-1585-SCT.
    Supreme Court of Mississippi.
    Oct. 16, 2003.
    Rehearing Denied Oct. 16, 2003.

      Thomas L. Rosenblatt, Natchez, attorney for appellant.

      David M. Read, Natchez, attorney for appellee.
   ON MOTION FOR REHEARING

WALLER, Justice,

for the Court.

¶ 1. The motion for rehearing is denied. The original opinions are withdrawn, and these opinions are substituted therefor.

¶ 2. The State of Mississippi appeals from the dismissal of criminal charges against Steve Woods. The charges were dismissed after the circuit court granted Woods’ motion to suppress because the search warrant issued during the investigation of the criminal charges contained insufficient indicia of the confidential informant’s veracity and reliability. We affirm but modify the dismissal to be without prejudice.

FACTS

¶ 3. After Woods was indicted for possession of cocaine with intent to sell, he filed a motion to suppress, claiming that the confidential informant, upon whose information the affidavit for the search warrant was based, was “an individual previously unknown for her reliability.” The information supplied by the confidential informant “was not corroborated by any independent, reliable source, and, accordingly, could not be used as the single source for the issuance of the” search warrant. Certain evidence was seized during the execution of the warrant and a confession was given. Woods therefore asked the circuit court to suppress all the evidence seized, to suppress the confession, and to quash the indictment.

¶ 4. David Lindsey, the agent who applied for the search warrant, attached his affidavit which set out the following underlying facts: the Natchez/Adams Metro Narcotics Unit received a telephone call from a person who was previously unknown to them, that is, a confidential informant who had never been used by the Unit before. The Cl stated that she had seen a large Ziploc bag of crack cocaine in Woods’ residence located at 14 O’Brien Street in Natchez. She advised that Woods kept the crack either behind his stereo or in his closet, and that Woods called it “butter” because of its yellowish color. Later the same day, the Cl called again to report that she had again seen the crack at Woods’ apartment. Lindsey concluded, “Though the Cl has never made a case for the Metro Narcotics Unit the information she has given concerning Steve Woods, the vehicles, and the address at 14 O’Brien St. seem to be true and correct.”

¶ 5. A hearing was held on the motion to suppress. Lindsey testified that the Cl was a “female” whose name was Keisha Flowers and that Flowers and Woods were dating at the time she called the Unit. Her motivation for calling the Unit was that Woods “was doing wrong and that she wanted [the Unit] to take care of it for her.” Lindsey did a background check on Flowers and found no pending criminal charges against her or any prior arrests. Another agent drove by Woods’ house to verify the street address. During the search, the agents found cocaine exactly where Flowers told them it would be.

¶ 6. The issuing judge testified at the hearing that he found that probable cause existed because the Cl had personally observed the cocaine in Woods’ apartment, and that this fact was the entire “totality of the circumstances” upon which his decision was made. He added that the Cl seemed reliable because the fact that Woods’ address matched the address given by the Cl to the officer, and the fact that Woods’ vehicles matched the description of the vehicles given by the Cl to the officer.

¶ 7. The circuit court granted the motion to suppress, threw the confession out, and dismissed the indictment, finding as follows:

That a search warrant was issued for the purpose of searching the defendant's residence on November 21, 2000. That this search warrant was issued solely based upon two telephonic conversations a metro narcotics agent had with a confidential informant who had never previously supplied any information to any law enforcement agencies. That the agent failed to conduct an in person interview with the informant, or to otherwise make attempts to test her veracity or credibility other than conducting an NCC background check. Further, the agent failed to corroborate any of the information supplied by the informant through any independent investigatory means. For these reasons, the Court finds that, based upon the totality of the circumstances, the application for, and issuance of, the instant search warrant is constitutionally defective and that the warrant and the fruits thereof are suppressed and held for naught.

From this ruling, the State appeals.

DISCUSSION

I. DID PROBABLE CAUSE EXIST FOR THE ISSUANCE OF THE SEARCH WARRANT?

¶ 8. Neither Woods’ motion nor the circuit court’s order specifically referenced the search and seizure clause of the Fourth Amendment to the United States Constitution or its Mississippi counterpart, Miss. Const, art. 3, § 23. However, it is apparent that Woods sought to enforce his rights under those two constitutional provisions. Accordingly, we analyze the motion and the circuit court’s order under those two provisions. See Longstreet v. State, 592 So.2d 16, 18-19 (Miss.1991).

¶ 9. Article 3, § 23 of the Mississippi Constitution provides that “[t]he people shall be secure in their persons, houses, and possessions, from unreasonable seizure or search; and no warrant shall be issued without probable cause, supported by oath or affirmation, specially designating the place to be searched and the person or thing to be seized.” Section 23 provides greater protections to citizens than does the United States Constitution. Simmons v. State, 805 So.2d 452, 481-82 (Miss.2001). Furthermore, the protection afforded by § 23 should be liberally construed in favor of individual citizens and strictly construed against the State. Graves v. State, 708 So.2d 858, 861 (Miss.1997).

¶ 10. To -make an arrest for a felony, either with or without a warrant, a police officer must have (1) reasonable cause to believe that a felony has been committed; and (2) reasonable cause to believe that the person proposed to be arrested is the one • who committed it. Conerly v. State, 760 So.2d 737, 740 (Miss.2000); Henry v. State, 486 So.2d 1209, 1212 (Miss.1986). “Arrest warrants or search warrants shall be issued only by the judge after a judicial determination that probable cause exists based upon the affidavit or other evidence before the court.” Miss. Unif. R.P.J.C. 3.03. The United States Supreme Court has established a “totality of the circumstances” standard for determining the existence of probable cause: The task of the issuing magistrate is simply to make a practical, commonsense decision based on all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). We adopted the Gates “totality of the circumstances” test in Lee v. State, 435 So.2d 674, 676 (Miss.1983).

¶ 11. Probable cause is:

a practical, non-technical concept, based upon the conventional considerations of every day life on which reasonable and prudent men, not legal technicians, act. It arises when the facts and circumstances within an officer’s knowledge, or of which he has reasonably trustworthy information, are sufficient to justify a man of average caution in the belief that a crime has been committed and that a particular individual committed it.

Strode v. State, 231 So.2d 779, 782 (Miss.1970). Perhaps more simply put, “probable cause means more than a bare suspicion but less than evidence that would justify condemnation.” Wagner v. State, 624 So.2d 60, 66 (Miss.1993).

¶ 12. In reviewing the issuance of a search warrant and whether it was based on probable cause, we look “both to the facts and circumstances set forth in the affidavit for the search warrant as well, the sworn oral testimony presented to the issuing magistrate.” Petti v. State, 666 So.2d 754, 758 (Miss.1995) (quoting Williams v. State, 583 So.2d 620, 622 (Miss.1991)). The duty of the issuing judge is:

to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supply hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for ... concluding” that probable cause existed....

Gates, 103 S.Ct. at 2332.

¶ 13. The Cl’s statements in this case provided evidence to the Unit that cocaine was in Woods’ apartment. The Cl obtained her information in a reliable way because she personally observed the cocaine in Woods’ apartment. See Spinelli v. United States, 393 U.S. 410, 425, 89 S.Ct. 584, 593, 21 L.Ed.2d 637 (1969) (White, J., concurring) (“[If an informant’s] report ... purports to be first-hand observation, remaining doubt centers on the honesty of the information, and that worry is dissipated by the officer’s previous experience with the informant.”). Therefore, the Cl’s basis of knowledge, i.e., personal observation, supports a finding that the issuance of the search warrant was based on probable cause.

¶ 14. However, the affidavit, standing alone, lacks indicia of veracity and reliability. Lindsey averred in the affidavit that this particular Cl had never provided evidence to the Unit before and was unknown to any of the Unit officers. The affidavit is entirely devoid of any corroborating evidence which would have shown that the Cl was truthful or reliable. Usually this corroborating evidence consists of a statement that the officer had successfully used the Cl in the past, see United States v. Satterwhite, 980 F.2d 317, 321 (5th Cir.1992) (assertion that informant had in the past given true and reliable information sufficiently establishes veracity), or that the suspect had a prior criminal record relating to the current investigation, see id. at 322 (suspect’s extensive criminal record corroborates informant’s report), or that an undercover agent had seen the suspect engaging in behavior consistent with the current investigation, see Williams v. State, 583 So.2d 620, 623 (Miss.1991) (agents’ observation of suspect selling marijuana creates a reasonable, objective basis for probable cause). Because the affidavit sub judice does not contain any corroborating evidence to show that the Cl was truthful and reliable, the affidavit, standing alone, does not support a finding that probable cause existed for the issuance of the search warrant.

¶ 15. However, as stated previously, we also look to the information presented to the judge at the time of the issuance of the search warrant. Petti, 666 So.2d at 758. The issuing judge testified that he found that probable cause existed because the Cl had personally observed the cocaine in Woods’ apartment and because the Cl seemed reliable because the fact that Woods’ address matched the address given by the Cl to the officer, and the fact that Woods’ vehicles matched the description of the vehicles given by the Cl to the officer. He could not recall any independent corroboration of the Cl’s information being given by the officers.

¶ 16. We find that probable cause under Article 3, § 23 of the Mississippi Constitution did not exist for the issuance of the search warrant because the .information given to the Unit by the Cl was not independently corroborated, because the Cl was unknown to the Unit, and because no indicia of veracity or reliability was either included in the affidavit or presented orally to the issuing judge. Given this conclusion, we do not need to address the propriety of the search warrant under the Fourth Amendment to the United States Constitution. Furthermore, if the arrest was illegal because of the insufficiency of the search warrant, the cocaine found in Woods’ apartment and his subsequent confession should be suppressed as fruit of the poisonous tree. See, e.g., Conerly v. State, 760 So.2d 737, 741 (Miss.2000).

¶ 17. The State argues that a reviewing judge should give deference to the findings of the issuing judge and should not substitute his own judgment as to whether the affidavit and facts were sufficient to support the warrant. However, even giving deference to the findings of the issuing judge, we find that the seareh warrant did not contain probable cause for the search of Woods’ apartment. The search warrant was completely devoid of any corroboration' or indicia of veracity or reliability. And the issuing judge’s testimony at the hearing on the motion to suppress proves that the issuing judge did not rely upon any other information to determine the existence of probable cause. No court should have issued this search warrant.

¶ 18. The State also claims that the fact that the stashes of cocaine were in the places that the Cl said they would be supports a finding that the Cl’s information was truthful and reliable and lessened the need for corroboration. The State cites Garvis v. State, 483 So.2d 312, 315 (Miss.1986) (“Affidavits containing specific, facially credible details regarding a suspect and alleged contraband are entitled to greater weight in probable cause determinations than those employing vague, generally or merely conclusory language.”), in support of this contention. However, Gar-vis is distinguishable from the case sub judice. Unlike here, in Garvis the Cl had given reliable information in the past and the information the Cl had given was corroborated.

¶ 19. The United States Court of Appeals for the Fifth Circuit has held in several post-Gates cases that there must be some corroboration to support a search warrant which relies upon an unknown confidential informant’s statement. See, e.g., United States v. Shugart, 117 F.3d 838, 843-45 (5th Cir.1997) (Cl’s uncorroborated allegations were verified by DEA agents’ independent investigation of defendant’s activities); United States v. Fields, 72 F.3d 1200, 1213-14 (5th Cir.1996) (affidavit to search warrant established probable cause where independent police investigation supported conclusory statements given by CIs); United States v. Mitchell, 31 F.3d 271, 275 (5th Cir.1994) (affidavit averred that each Cl was credible and reliable because the information they provided was corroborated through independent investigations, personal observation, and information provided by other informants and because it also indicated that the CIs had provided reliable information in the past); United States v. Broussard, 987 F.2d 215, 221-22 (5th Cir.1993), overruled on other grounds, J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) (information supplied by a Cl, which was corroborated by other evidence, supported a magistrate’s finding of probable cause, despite a lack of evidence regarding the informant’s reliability or veracity). Therefore, even if Gates abandoned the requirement of indi-cia of reliability for unknown CIs, courts have still placed great emphasis on corroboration of an unknown Cl’s information.

¶20. Finally, the State contends that the dismissal of the indictment should be without prejudice. We agree. The items seized pursuant to the invalid search warrant may be only part of the evidence that tends to show that Woods may have committed a crime. We would not presume to speculate as to the substance of the prosecution’s case against Woods.

CONCLUSION

¶21. We affirm the dismissal of the indictment against Woods because the circuit court correctly suppressed the evidence against Woods. We modify the dismissal of the indictment so that the case against Woods is dismissed without prejudice.

¶ 22. AFFIRMED AS MODIFIED.

SMITH, P.J., and CARLSON, J., concur. EASLEY, J., concurs in result only without separate written opinion. GRAVES, J., concurs in part and dissents in part without separate written opinion. COBB, J., concurs in result only with separate written opinion joined by PITTMAN, C.J. McRAE, P.J., dissents with separate written opinion. DIAZ, J., not participating.

COBB, Justice,

concurring in result only.

¶23. Although I join the decision to deny the motion for rehearing but to withdraw the original opinion in order to correct the trial court’s erroneous dismissal with prejudice, I do so reluctantly, for two reasons. First, in my view, the case does not have to go back to the grand jury to begin again. The trial would simply proceed without the suppressed evidenced, if the state determines that there is sufficient remaining evidence. The motion for rehearing before the Court simply seeks remand for the trial court to enter “a more proper order-one suppressing the evidence and confession only, not dismissing the case.”

¶ 24. Second, I must abandon my original dissent, which in my view was solidly grounded in law and fact, applying the Gates "totality of the circumstances” test expressly adopted by this Court in Lee v. State, 435 So.2d 674, 676 (Miss.1983), and recognizing the special nature of eyewitness Keisha Flowers’ information as acknowledged by this Court in Walker v. State, 473 So.2d 435, 437 (Miss.1985). Although the plurality concedes that Flowers’ “basis of knowledge, i.e., personal observation, supports a finding that the issuance of the search warrant was based on probable cause,” it nevertheless goes on to affirm the suppression of the evidence because of a lack of “indicia of veracity and reliability.”

¶ 25. That having been said, the reality is that we are faced with only two choices in deciding what action to take with regard to the Motion for Rehearing which is before us: (1) deny the motion and let the original opinion stand, thus acquitting Woods, or (2) join the plurality opinion in result only so that the State may continue its prosecutorial efforts. I choose the latter.

PITTMAN, C.J., joins this opinion.

McRAE, Presiding Justice,

dissenting.

¶26. I would affirm the circuit court’s dismissal of the indictment against Woods. However, the dismissal should not be modified to be “without prejudice.” Clearly, double jeopardy applies and the circuit court’s dismissal “with prejudice” should be affirmed. For this reason, I respectfully dissent.

      . Even when this Court required that credibility be established in the pre-Gates manner, we recognized the special nature of eyewitness information: "We ... have held that, when information is furnished by an eyewitness rather than from an informant, there is no need to show the party supplying the information was a credible person.” Walker, 473 So.2d at 437 (summarizing pre-Gaies holdings).