author: BARFIELD, J. ERVIN, J.,

text:
    Candy Ann TURBEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-5192.
    District Court of Appeal of Florida, First District.
    Oct. 28, 2004.
    Nancy A. Daniels, Public Defender, and Anne H. Dunlap, Assistant Public Defender, Tallahassee, for Appellant.
    Charles A. Crist, Jr., Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   BARFIELD, J.

In this appeal Candy Ann Turben contends she was set up by the prosecutor to answer a question in such a manner as to allow the introduction of evidence not otherwise admissible against her. She asserts that the question asked, when considered in the context of the interrogation on cross examination, should have been viewed differently by the trial judge. This was a discretionary call with which we will not interfere.

AFFIRMED.

POLSTON, J., Concurs; ERVIN, J., Dissents with opinion.

ERVIN, J.,

dissenting.

Appellant, Candy Ann Turben, appeals her convictions for the offenses of (1) possession of a controlled substance, ie., methamphetamine, (2) felony driving while her license had been suspended/revoked (DWLSR), (3) possession of less than 20 grams of cannabis, and (4) possession of drug paraphernalia. She contends the trial court erred in allowing the state to impeach her during cross-examination by producing evidence of her prior convictions of DWLSR. I agree with her argument. I would therefore reverse all of the convictions entered and remand the case for new trial.

Before trial commenced, appellant moved in limine to exclude from evidence any reference to her prior driving record, conditioned upon the following stipulation: “On February 11, 2002, at the time I was driving a vehicle my privilege to drive had been revoked pursuant to F.S. 322.264 (Habitual Offender) and had not been reinstated.” Based on the stipulation, the state also agreed not to place the driving record into evidence, and it also acknowledged, notwithstanding the stipulation, that Turben could defend the current DWLSR charge.

The state’s evidence at trial consisted primarily of the testimony of Deputy Sheriff Brownfield, who stated that he stopped the vehicle appellant was driving for the reason that it displayed an inoperative tag light. During the course of his investigation, he discovered that Turben’s driver’s license had been suspended. He then arrested appellant and inventoried the car, finding within it various items of contraband which gave rise to the remaining charges. The deputy admitted that appellant, following her arrest, had stated she was ill and had repeatedly requested to be taken to the hospital. Because, in his opinion, she did not appear to require medical care, he refused her requests, although he did advise the jail staff to keep her under watch.

Turben was the only witness for the defense. She testified that on the night of her arrest, she had been sorting and collecting certain personal property at the home of a man for whom she provided home health care. She claimed that only two of the items found inside the car were hers, a leather jacket and a pair of dress boots; that the drugs and paraphernalia, a crack pipe, were not hers, and that she was unaware of their existence. Finally, she explained the reason she was driving the car with a license suspended/revoked was to seek immediate treatment at the hospital for a medical condition; she was hemorrhaging, a disorder that had nearly taken her life a year before.

During appellant’s cross-examination, the prosecution focused upon the reason she had given for driving the automobile without a valid license, and the following exchange occurred:

Q And now is it your testimony that if it hadn’t been for this medical problem, that you never would have driven a car because you have no license?
A Oh, yes, ma'am.
Q You never would have done that?
A No, no.

The prosecutor argued that Turben’s testimony had opened her driving history to further questioning. Defense counsel objected, noting that the question was not directed to whether Turben generally drove without a license, but rather it related to the specific reason she had driven the car the night at issue, ie., because of her medical condition. The trial court ruled that, as a result of appellant’s response, the prosecutor could inquire into her prior driving record. Specific details were thereafter elicited regarding each of appellant’s DWLSR violations, which were not occasioned by a medical emergency. Appellant admitted that between 1992 and 1997, she had six such violations.

A trial court’s rulings on the proper scope of cross-examination are subject to an abuse-of-discretion standard of review. See McCoy v. State, 853 So.2d 396, 406 (Fla.2003). See also Winner v. Sharp, 43 So.2d 634, 635 (Fla.1949) (“The admission or rejection of impeaching testimony is within the sound discretion of the trial court.”).

A testifying defendant may “open the door” to otherwise inadmissible evidence of prior offenses by (1) offering a trait of the defendant’s good character, or (2) testifying inaccurately to material facts. See Robertson v. State, 829 So.2d 901, 912 (Fla.2002); Fiddemon v. State, 858 So.2d 1100, 1102 (Fla. 4th DCA 2003); Bozeman v. State, 698 So.2d 629, 630-31 (Fla. 4th DCA 1997). The concept was explained in Boze-man:

To open the door to evidence of prior bad acts, the defense must first offer misleading testimony or make a specific factual assertion which the state has the right to correct so that the jury will not be misled. The “opening the door” concept is based on considerations of fairness and the truth-seeking function of a trial, where cross-examination reveals the whole story of a transaction only partly explained in direct examination.

See Bozeman, 698 So.2d at 630-31 (citations omitted).

In Robertson, the supreme court addressed the permissible scope of impeachment of a testifying defendant. Robertson was charged with, and convicted of, second-degree murder. The state’s theory of the case was that Robertson intentionally shot the victim during a domestic dispute. The defense’s theory was that the .40-caliber handgun accidentally misfired while Robertson was trying to clean it. During Robertson’s cross-examination, the state was -permitted to elicit testimony, over objection, that Robertson had previously used an assault rifle to threaten other persons. Based on Robertson’s response that he had never endangered anyone close to him with a weapon, the state sought admission of rebuttal testimony from Robertson’s former wife that Robertson confronted her with an AK-47 rifle six years earlier. Again, over defense objection, the trial court concluded the rebuttal testimony constituted proper impeachment.

The supreme court concluded that the prosecutor’s inquiry whether Robertson had threatened others in the past with firearms was improper, for the question did not rebut either Robertson’s defense that the shooting was accidental, or his testimony that he was not familiar with the .40-caliber handgun that had killed the victim. The court ruled, therefore, that “Robertson did not open the door to evidence that he allegedly threatened his ex-wife six years before with an assault rifle by testifying inaccurately to material facts.” Robertson, 829 So.2d at 913. The court instructed that “[i]t is critical for the courts to enforce this restriction on impeachment because the failure to do so would allow the State to circumvent the procedural requirement of section 90.404(2)(b)(l), which requires pretrial notice to the defendant when the State intends to introduce evidence of prior crimes.” Id.

The court next addressed the question of whether the error in admitting the collateral crime-evidence was harmless, noting: “This Court has held that the erroneous admission of irrelevant collateral crimes evidence ‘is presumed harmful error because of the danger that a jury will take the bad character or propensity to crime thus demonstrated as evidence of guilt of the crime charged.’ ” Robertson, 829 So.2d at 913-14 (quoting Castro v. State, 547 So.2d 111, 115 (Fla.1989)). The court concluded the state could not establish beyond a reasonable doubt that the admission of such evidence was harmless, and thereupon reversed the conviction and remanded for a new trial.

Similarly, in the case at bar, appellant neither testified inaccurately to material facts, nor offered a trait of her good character into evidence, which would have served as an “opening of the door” to the admission of evidence of her six prior driving violations between 1992 and 1997. Instead, the cross-examination focused on the circumstances of the DWLSR offense at issue, specifically, the medical-emergency defense. It was in this context the prosecutor asked: “And now is it your testimony that if it hadn’t been for this medical problem, that you never would have driven a car because you have no license?” Appellant’s negative response to the question reasonably related to the events leading up to her effort to reach the hospital, culminating in her being stopped for driving a vehicle with an inoperative tag light. The state’s inquiry was phrased in terms far too broad to require the elicitation of specific evidence contradicting appellant’s testimony that she would not have driven on the night of February 11, 2002, but for her medical emergency.

Although appellant had stipulated the existence of the prior driving violations, she nonetheless defended, as it was agreed she could do, the driving violation in this case, on the ground of medical necessity. In my judgment, the trial court abused its discretion in concluding appellant’s response to the prosecutor’s question “opened the door” to the specifics of each of her prior driving offenses. I would therefore reverse appellant’s convictions and remand for new trial as to all, because, based on the analysis in Robertson, I am firmly convinced the state has not demonstrated beyond a reasonable doubt that the erroneous admission of collateral-crime evidence as to the DWLSR offense did not as well impact the jury’s assessment of appellant’s credibility as to the drug-related charges.

      . Appellant later testified that the same evening of her arrest, she was transported by staff to the hospital for treatment.

      . According to appellant, the remaining personal property inside the car belonged to her former employer’s caregivers.

      . The State contends that though it is a "close call,” the allowance of the cross-examination which elicited appellant's admissions to prior driving offenses was not an abuse of discretion, and, in any event, the admission was only harmless in regard to the drug-related charges.


source: Caselaw Access Project

author: WHATLEY, Judge.

license: Public Domain

text:
    Malibu LEITH, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION and New Century Sports Inc., Appellees.
    No. 2D03-3934.
    District Court of Appeal of Florida, Second District.
    Oct. 29, 2004.

      Joel S. Treuhaft of Treuhaft Law Group, P.A., Tampa, for Appellant.
    John D. Maher, Deputy General Counsel, Attorney for Appellee Unemployment Appeals Commission.
    No appearance for Appellee New Century Sports Inc.
   WHATLEY, Judge.

Malibu Leith appeals an order of the Unemployment Appeals Commission (UAC) affirming a decision of the appeals referee. The referee found that Leith was disqualified from receiving benefits due to misconduct connected with work. We conclude that Leith’s conduct at issue was an isolated incident that did not amount to misconduct and reverse.

Misconduct is the willful or wanton disregard of an employer’s interest, such as a deliberate violation or disregard of standards of behavior which the employer has the right to expect, or “carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his or her employer.” § 443.036(29), Fla. Stat. (2002). “In determining whether misconduct has occurred which would disqualify a claimant from receiving unemployment benefits, the statute should be liberally construed in favor of the claimant.” Donnell v. Univ. Cmty. Hosp., 705 So.2d 1031, 1032 (Fla. 2d DCA 1998). Misconduct usually involves repeated violations of explicit policies after several warnings. Bulkan v. Fla. Unemployment Appeals Comm’n, 648 So.2d 846 (Fla. 4th DCA 1995). See Johnson v. Fla. Unemployment Appeals Comm’n, 513 So.2d 1098, 1099 (Fla. 3d DCA 1987) (holding that “a single negligent failure to ring up a sale cannot support a finding that the employee was guilty of misconduct....”).

In Smith v. Krugman-Kadi, 547 So.2d 677 (Fla. 1st DCA 1989), the employee failed to follow office policy by disclosing a confidential memorandum, by adjusting a time card to account for lunch, and by helping to determine the overtime hours of another employee. The First District held that the conduct was not willful or wanton, reasoning that the conduct did not involve an open refusal to perform, a flouting of authority, or a repeated failure to follow an employer’s instructions, which may usually be found in cases of misconduct. Id. at 679.

In the present case, David Jackson, the president of New Century, testified that his company had a policy that employees were not to follow shoplifters out of the store. He testified that he informed employees, including Leith, of this policy during two meetings. However, the store policies were not in writing. Regarding the incident which led to Leith’s dismissal, Leith testified that a shopper looked suspicious because he was wearing several layers of clothing. Leith asked him to leave, but the man refused. Leith testified that, although the suspect appeared to understand him, he would not speak. When Leith began to call 911, the suspect indicated that he wanted to write something to Leith. Leith gave him a scrap piece of paper and the suspect wrote that he was looking for a white jogging suit. Leith then permitted him to shop in the store but continued to watch him. When the man started to leave the store, Leith asked for the piece of paper, but the suspect refused to give it to him. Leith explained that the paper was important because it had notes from Jackson regarding how to run the store while he was on vacation and phone numbers, and Leith needed it “in order to do business in the store.” Leith testified that he followed the suspect outside and continued to ask for the paper. When Leith attempted to grab the paper from the man’s hand, he tackled Leith. Jackson testified that he was not present during the altercation but he watched a store video of the incident. He could not determine if Leith was defending himself from the suspect.

We conclude that even if Leith’s conduct in following the suspect out of the store and attempting to retrieve the paper was a failure to follow the employer’s instructions, it was an isolated incident. There was no allegation that Leith had ever violated this policy in the past. His conduct did not involve an open refusal to perform, a flouting of authority, or a repeated failure to follow his employer’s instructions. See Smith, 547 So.2d at 679. Therefore, Leith’s conduct did not constitute misconduct connected with work, and the UAC erred in affirming the referee’s determination.

Accordingly, we reverse the order of the UAC and remand with directions to award Leith unemployment compensation benefits.

ALTENBERND, C.J., and CANADY, J., Concur.

      . Leith denied that Jackson told him of this store policy.


author: DAVIS, Judge.

text:
    DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellant, v. FLORIDA STATEWIDE ADVOCACY COUNCIL and Florida Local Advocacy Council, Multi-Program, Service Area 15, Appellees.
    No. 2D03-4232.
    District Court of Appeal of Florida, Second District.
    Oct. 29, 2004.

      Josefina A. Tamayo, General Counsel, and Herschel C. Minnis, Assistant General Counsel, Tallahassee, for Appellant.
    Richard A. Filson of Filson & Penge, P.A., Sarasota, for Appellees.
    Bernard P. Perlmutter of University of Miami School of Law, Coral Gables, for Amici Curiae Children & Youth Law Clinic, Center for Ethics and Public Service, and Florida’s Children First!, Inc.
   DAVIS, Judge.

The Department of Children and Family Services (DCF) challenges the final order directing it to grant the Florida Statewide Advocacy Council (FSAC) and the Florida Local Advocacy Council, Multi-Program for Service Area 15 (FLAC) access to certain records as to which DCF was the custodian. We affirm.

FSAC and FLAC are legislatively-created councils, comprised of citizen volunteers, that were established to investigate and monitor state agencies providing services to citizens. In furtherance of their prescribed duties, on August 8, 2003, FSAC and FLAC filed a joint petition in the circuit court seeking an “access warrant” to obtain records of certain named DCF clients pursuant to sections 402.165 and 402.166, Florida Statutes (2003). The affidavit in support of the petition alleged that FSAC and FLAC sought the records pursuant to their investigation of complaints they had received regarding DCF’s handling of cases involving the specifically named clients. According to the affidavit, DCF refused their request, and FSAC and FLAC filed the instant suit.

Following an ex parte hearing, the trial court granted the councils’ petition and entered an access warrant requiring DCF to disclose to FSAC and FLAC all files and records related to the named clients, including those documents that DCF had previously denied to the councils because they were considered “confidential.” DCF moved for a protective order, arguing that certain federal regulations required DCF to keep some types of records confidential and that those records should be excluded from the scope of the warrant. The trial court denied DCF’s motion, finding that the confidentiality requirements of the federal law did not prohibit the disclosure. The trial court further suggested that DCF would not be held liable for the disclosure of confidential records to FSAC or FLAC if the disclosure were made pursuant to a trial court order because such an order would operate like a permission slip to excuse DCF from such liability. Finally, the trial court suggested that the legislature had granted FSAC and FLAC standing to petition for access to such confidential records as part of the investigative procedure just in case the custodial agency “balked” and that issuance of an access warrant was appropriate to ensure the full and open cooperation of the agency being investigated.

In challenging the court’s entry of the access warrant, DCF raises several points on appeal. First, it suggests that the warrant was deficient because service of the warrant on the local district administrator for DCF District VIII, instead of on the Secretary of DCF, did not bind all employees of DCF. However, because there is no issue in controversy as to which DCF employees were bound by the warrant or whether the warrant could be enforced against an employee who was not under the supervision of the local district administrator, the matter is not ripe for review. The same may be said of DCF’s argument that certain language in the warrant suggested that section 402.167 precluded judicial review of the warrant. That issue was never raised or decided below. In fact, the same trial court that entered the warrant containing that language gave DCF an opportunity to file and argue a motion for a protective order and then stayed enforcement of the warrant to allow DCF to seek appellate review.

DCF also argues unsuccessfully that the warrant was deficient because the trial court called it a “warrant” rather than an “order.” While it is true that neither section 402.165(8)(a)(3) nor section 402.166(8)(a)(3) refer to an “access warrant,” neither do those sections offer any suggestion as to the proper name to be given to the relief granted. The use of the term access warrant instead of order is a semantic difference that creates no prejudice and, in fact, may be more appropriate in this type of action, which is more in the nature of an investigatory proceeding than an adversarial action.

Finally, DCF’s argument that certain federal regulations prohibit disclosure of the records to FSAC and FLAC is without merit. The only federal regulation argued by DCF below was HIPAA, which expressly provides for such disclosures if they are made pursuant to a court order, as here. See 45 C.F.R. § 164.512(e)(l)(i).

However, DCF’s argument that the legislature intended that actions brought pursuant to sections 402.165 and 402.166 be adversarial, rather than ex parte as determined by the trial court here, and that as such DCF should be formally served and given an opportunity to litigate the confidentiality issues prior to issuance of the warrant, is worthy of discussion. Since this appears to be a case of first impression, we must examine the statutory scheme to determine the legislative intent. In reviewing the trial court’s finding that this was intended to be an ex parte, not an adversarial, proceeding, we apply a de novo standard of review. See Gilliam v. Smart, 809 So.2d 905, 907 (Fla. 1st DCA 2002).

FSAC was created by the legislature “to have volunteers operate a network of councils that shall, without interference by an executive agency, undertake to discover, monitor, investigate, and determine the presence of conditions or individuals that constitute a threat to the rights, health, safety, or welfare of persons who receive services from state agencies.” § 402.164(a). These responsibilities are to be performed locally by FLAC under the direction of FSAC. The enacting legislation for each council specifically states that the councils were established to serve as “independent third-party meehanism[s] for protecting the constitutional and human rights” of any client of a state agency. §§ 402.165(7)(a), .166(7)(a). Further, the statutes empower the councils to carry out their assigned tasks by making site visits, which may include inspections of agency records. If the visit is in response to a complaint that has been filed with the council, the visit may even be unannounced. §§ 402.165(7)(b), ,166(7)(b). Most importantly, both FSAC and FLAC are statutorily authorized to have “[a]ccess to all client records, files, and reports from any program, service, or facility that is operated, funded, or contracted by any state agency that provides client services and any records that are material to its investigation and are in the custody of any other agency or department of government.” §§ 402.165(8)(a)(2), ,166(8)(a)(l).

However, because access is to be denied if a “specific procedure or prohibition for reviewing records [is] required by a federal law and regulation that supercedes state law,” §§ 402.165(8)(a)(2), .166(8)(a)(l), the legislature statutorily authorizes FSAC and FLAC to seek a court order for access to such records, see §§ 402.165(8)(a)(3), .166(8)(a)(2). In order to have standing under these sections, the council is required to specify in its petition the reason the records are needed and the intended use of the information. §§ 402.165(8)(a)(3), .166(8)(a)(2). The statute also specifies that any information obtained by a council pursuant to such an investigation would be confidential and exempt from disclosure pursuant to a public records request. §§ 402.165(8)(b), .166(8)(b). Willfully disclosing such confidential information is a second-degree misdemeanor. §§ 402.165(8)(e), .166(8)(e).

DCF maintains that even though the legislature has given FSAC and FLAC standing to seek access to records that are designated confidential by federal regulations, the procedure that they must follow is dictated by Florida Department of Children & Families v. Sun-Sentinel, Inc., 865 So.2d 1278 (Fla.2004), which requires formal service on the person named in the report or the agency affected.

However, Sun-Sentinel is distinguishable. That case involved an attempt to obtain information pursuant to Florida’s public records law, section 119.07, Florida Statutes (2003). In Sunr-Sentinel, a newspaper was attempting to obtain information from DCF regarding an abuse investigation that would then be made public via the media. The Florida Supreme Court held that the petitioner in such cases is required to formally serve DCF in order to allow DCF to represent the interests of its client. However, the proceedings before us have not been brought pursuant to the public records law and are not an attempt to make public information that would otherwise be deemed confidential. Rather, the statutory scheme under the FSAC/FLAC legislation is designed to allow an investigative arm of the state to have access to records held by another agency that is being investigated when those records have been designated as confidential by federal or state law. Moreover, disclosure to the investigating body is specifically limited by statute as to where the records may be reviewed, how the information may be used, and to whom the information may be further disclosed. The person named in such a report does not have the same need of representation in these proceedings as does a person in proceedings filed pursuant to the public records law because the information obtained pursuant to a FSAC/FLAC investigation is never made public. In fact, it may be that an unencumbered investigation under FSAC/FLAC would benefit the person named in the report, not prejudice him or her, as in the case of a public records release. For these reasons, Sun-Sentinel does not apply here, and we must look to the statute for further guidance.

The statute repeatedly emphasizes that the goal of the legislature in creating FSAC and FLAC was to ensure open and unhindered investigations. Indeed, the legislature specified that it intended such investigations be conducted “without interference by an executive agency.” § 402.164(l)(a). Furthermore, although the statutory scheme required DCF to provide administrative support to FSAC, the statute also specifically stated that FSAC was “not subject to control, supervision, or direction by the Department of Children and Family Services in the performance of its duties.” § 402.165(1). Similarly, although DCF was required to provide the local councils with administrative staff support, these individual staff members were statutorily required to “perform the functions required by the local councils without interference from the department.” § 402.166(1).

In addition, in performing their duties, both, FSAC and FLAC were authorized to make unannounced site visits to inspect records when investigating specific complaints. §§ 402.165(7)(b), .166(7)(b). The statute authorized the councils to have access to “all client records, files, and reports.” §§ 402.165(8)(a)(l), .166(8)(a)(l). Finally, the legislature required that all directors of state agencies “ensure the full cooperation and assistance of employees of their respective state agencies” with the members of the councils. § 402.167(3). Clearly, the legislature intended that FSAC and FLAC investigations would be able to rely on the existence of open records and on the cooperation and compliance of the employees of the agency being investigated. The fact that the councils were given the right to make unannounced visits that included the inspection of records suggests that the legislature was not contemplating an adversarial proceeding to obtain access to confidential records.

We therefore agree with the trial court’s reading of the statute. While DCF does possess certain records that are designated confidential by HIPAA, HIPAA expressly allows the disclosure of such records if the disclosure is made pursuant to a court order. See 45 C.F.R. § 164.512(e)(1)®. The disclosure that is allowed pursuant to the statutory scheme is limited in its use and is made to another state “agency,” i.e., not the public. Moreover, the statute requires the court to issue an order directing disclosure in order to meet the specifications of review imposed by the federal regulation and to serve as the “permission slip” that absolves DCF of liability for disclosing the information to a third party.

Furthermore, DCF does not have an interest in the information contained in these “confidential” records. It is merely the custodian and has no standing to challenge the limited disclosure required by these provisions. Any liability to which DCF might potentially be subjected is removed by entry of the court’s order. To suggest that DCF must be noticed so as to be able to defend an interest it does not have is illogical.

In conclusion, we acknowledge that the statute is silent as to whether the custodian of the records should be served and afforded an adversarial hearing. However, because (1) this is a part of a statutorily-created investigative process that specifically allows unannounced visits and record inspections, (2) the statute mandates that the agency being investigated must fully cooperate and that DCF is not permitted to interfere in the investigations, and (3) the statute limits the nature of the disclosure of the confidential records, we conclude that an adversarial hearing was not contemplated by the legislature and that formal service on the custodian of the records should not be read into the statutory scheme.

We note parenthetically that under the facts of this case, an adversarial hearing would also seem pointless. Given the fact that DCF had already denied access to the records on confidentiality grounds, an adversarial hearing would not resolve any issues but would add an additional layer of bureaucracy. Based on our reading of the statute, it is clear that the legislature intended that all records be made available for inspection by FLAC and FSAC. Realizing that DCF was burdened with protecting certain records designated confidential, the legislature authorized the councils to seek an access warrant or “permission slip” from the court prior to making the site visit. Thus, FLAC and FSAC could go in unannounced and review all the records, including confidential ones, and accomplish the investigative function contemplated by the legislature. To require notice and an adversarial hearing would negate the “unannounced” element of the investigation and limit the effectiveness of the investigative process.

Concluding that the provisions of sections 402.165 and 402.166 do not contemplate formal service and an adversarial hearing, we affirm the trial court’s issuance of the access warrant.

Affirmed.

SILBERMAN and KELLY, JJ., Concur.

      . The only federal regulation cited by DCF was the Health Insurance Portability and Accountability Act of 1996, which is referred to as HIPAA.

      . The trial court stated: ''[0]nce a court enters an order saying that somebody can have access to it, the party holding the documents is off the hook.”

      . In this case, DCF does not challenge the sufficiency of the petition.

      . We note that pursuant to the 2004 amendment to this subsection, FSAC is now to be located in the Executive Office of the Governor and may be "assigned by the Governor for administrative support purposes to any Governor's agency.” Ch. 04-376, § 2, Laws of Fla.


author: VILLANTI, Judge.

text:
    S.A.S., Appellant, v. STATE of Florida, Appellee.
    No. 2D03-5127.
    District Court of Appeal of Florida, Second District.
    Oct. 29, 2004.

      James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Ap-pellee.
   VILLANTI, Judge.

S.A.S. challenges a withhold of adjudication of delinquency for possession of marijuana and possession of drug paraphernalia entered following his no contest plea that reserved the right to appeal his dis-positive motion to suppress. On the authority of State v. Riley, 638 So.2d 507 (Fla.1994), we reverse.

S.A.S. was driving a car that was the third vehicle stopped at a T-intersection. At the intersection, the street on which S.A.S. was traveling split into two lanes. The right lane was clearly designated as a right-turn-only lane by white markings painted on the street. The left lane had no markings. Because the intersection formed a T, there was no possibility for a driver in either lane to go straight, and there was no possibility of oncoming traffic. S.A.S. was in the left lane, waiting for the red light to turn green, and a police officer was directly behind him. When the light turned green, S.A.S. proceeded through the intersection and turned left. S.A.S. drove a few hundred feet, then made a right turn (using his turn signal), and the officer stopped him for failure to signal at the light at the T-intersection. During this stop, the officer seized a small container of marijuana and a marijuana pipe that were the subject of the motion to suppress. S.A.S. was charged with possession of marijuana and possession of drug paraphernalia. Notably, the officer did not issue a traffic citation.

Section 316.155, Florida Statutes (2003), delineates the requirements for using a turn signal:

(1) No person may turn a vehicle from a direct course upon a highway unless and until such movement can be made with reasonable safety, and then only after giving an appropriate signal in the manner hereinafter provided, in the event any other vehicle may be affected by the movement.
(2) A signal of intention to turn right or left must be given continuously during not less than the last 100 feet traveled by the vehicle before turning, except that such a signal by hand or arm need not be given continuously by a bicyclist if the hand is needed in the control or operation of the bicycle.

Failure to signal as required by section 316.155 is a moving violation, thus giving an officer probable cause to stop a vehicle that does not signal appropriately.

The Florida Supreme Court has interpreted section 316.155 to require a signal only when another vehicle will be affected by the turn. Riley, 638 So.2d at 508. In Riley, a vehicle was stopped after it made a right turn onto the highway without signaling. The officers effectuating the stop both testified that no other vehicle was affected by the turn. Because no other vehicle was affected, the trial court determined the stop was illegal and suppressed the evidence obtained during the stop. The Fifth District affirmed, and the Florida Supreme Court agreed with the Fifth District’s reasoning, explaining that subsections (1) and (2) of section 316.155 must be read in pari materia to require a signal only when another vehicle “is affected by a turn from the highway.” Id. (emphasis added); accord State v. Mae, 706 So.2d 350 (Fla. 2d DCA 1998); Frierson v. State, 851 So.2d 293 (Fla. 4th DCA 2003); see also Crooks v. State, 710 So.2d 1041, 1043 (Fla. 2d DCA 1998) (comparing section 316.155 with the statute requiring vehicles to stay within their proper lanes and interpreting both as requiring “evidence that the driver’s conduct created a reasonable safety concern” before a vehicle may be stopped).

In S.A.S.’s case, there was no evidence that any vehicle was in fact affected by the vehicle’s turn. S.A.S. was third in a line of vehicles in the left lane waiting for the light to turn green. There was no oncoming traffic, and there was no possibility of oncoming traffic because the intersection formed a T. Indeed, the trial court’s findings acknowledged the only way a vehicle in S.A.S.’s position could have affected nearby traffic would be through “an awkward [maneuver],” in which a vehicle in the left lane would be “about to turn right ... into a lane where [a driver in the right turning lane was] trying to turn or pretty close.” Under those particular circumstances, the trial court stated the driver in the right turning lane would want to know the intent of the driver in the left lane. On the other hand, “it would not be of significance to [a driver in the right turning lane] if they [the driver in the left lane] were taking a left and their signal clearly indicated it.” Although we find the trial court’s hypothetical fact pattern interesting, we do not think section 315.155 requires automobile operators to contemplate all hypothetical situations that would warrant using a turn signal in that brief moment before the decision to use the signal is made. Instead, there must actually be other vehicles affected by the turn. Language from Crooks and Frierson interpreting Riley supports this conclusion. Crooks, 710 So.2d at 1043 (interpreting section 316.155 as requiring “evidence that the driver’s conduct created a reasonable safety concern” before a vehicle may be stopped); Frierson, 851 So.2d at 296 (recognizing Crooks ’ interpretation of Riley to this effect).

Because there was no evidence that another driver was actually affected by S.A.S.’s left turn, the officer lacked probable cause to stop S.A.S. and therefore the stop was illegal. Accordingly, we reverse the denial of the dispositive motion to suppress and remand with directions that the order withholding adjudication be vacated.

Reversed and remanded.

NORTHCUTT and SILBERMAN, JJ„ Concur.


author: WALLACE, Judge.

text:
    Mark JOHNSON, Appellant, v. Robin ADAIR, Appellee.
    No. 2D03-5452.
    District Court of Appeal of Florida, Second District.
    Oct. 29, 2004.

      Mark Johnson, pro se.
    Robin Adair, pro se.
   WALLACE, Judge.

Mark Johnson (the Father) appeals the trial court’s “Supplemental Final Judgment Modifying Parental Responsibility/Visitation.” Because the trial court improperly utilized the “tender years” doctrine to designate Robin Adair (the Mother) the primary residential parent, we reverse the trial court’s order.

On June 18, 1997, the parties entered into a Joint Stipulation as to Paternity, Parental Responsibility, Visitation, and Support of the parties’ minor child. On October 8, 1997, the parties’ stipulation was approved, and its exact terms were incorporated into a Final Judgment of Paternity, Parental Responsibility, Visitation, and Support. Under the Final Judgment, primary residential responsibility was awarded to the Mother, and the Father was awarded regular and frequent visitation. However, on March 1, 2001, the trial court entered an Order on Supplemental Petition for Modification of Final Judgment of Paternity. In this order, the trial court awarded the parties shared parental responsibility and ordered joint, rotating custody. Under these new arrangements, the parties rotated custody of the minor child every seven days.

On March 27, 2002, the Mother filed a supplemental petition for modification seeking to regain primary residential responsibility for the minor child. In response, the Father filed a counterpetition for modification on June 27, 2002, seeking sole parental responsibility for the minor child or, in the alternative, primary residential responsibility. On October 23, 2003, the trial judge stated her oral ruling. She analyzed the statutory factors for determining primary residence detailed in section 61.13(3), Florida Statutes (2002), and concluded that the factors were either equal or not applicable. Nevertheless, the trial judge made the following oral ruling:

I am going to modify the custody and visitation ... and it’s based on the age of the child at this point. If the child were older I would be giving primary to the father. But because the child is eight years old I am giving a modified type of primary custody to the mother.

The trial judge also stated to the Father, “I know you want me to give you primary custody, and the reason I’m not giving you primary custody is because of the age of the child at this time.” Finally, in the Supplemental Final Judgment Modifying Parental Responsibility/Visitation entered on October 29, 2003, the trial judge declared: “If the child were older, this court would be granting primary residency to the Father, because the evidence indicates that he attempts to follow the visitation and holiday orders.”

Subsection 61.13(2)(b)(l) expressly states:

The court shall determine all matters relating to custody of each minor child of the parties in accordance with the best interests of the child and in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act. It is the public policy of this state to assure that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys, of childrearing. After considering all relevant facts, the father of the child shall be given the same consideration as the mother in determining the primary residence of a child irrespective of the age or sex of the child.

(Emphasis added.) The First, Fourth, and Fifth District Courts of Appeal have interpreted the underlined portion of subsection 61.13(2)(b)(1) as clearly negating any further application of the “tender years” doctrine. See Cherradi v. LaVoie, 662 So.2d 751 (Fla. 4th DCA 1995); Ketola v. Ketola, 636 So.2d 850 (Fla. 1st DCA 1994); Kerr v. Kerr, 486 So.2d 708 (Fla. 5th DCA 1986).

The “tender years” doctrine gives a preference to the mother of a child of tender years in matters of custody determination. Under the doctrine, with “other essential factors being equal, the mother of the infant of tender years should receive prime consideration for custody.” Dinkel v. Dinkel, 322 So.2d 22, 24 (Fla.1975). In Anderson v. Anderson, 309 So.2d 1 (Fla.1975), the Florida Supreme Court held that the preference recognized by the “tender years” doctrine remained the law of the state despite subsection 61.13(2), which then provided, “Upon considering all relevant factors, the father of the child shall be given the same consideration as the mother in determining custody.” However, since these decisions, legislative amendments have been enacted “to override the court’s persistence in applying this doctrine.” Ketola, 636 So.2d at 851.

Subsection (2)(b)(l) of section 61.13 now provides that “[ajfter considering all relevant facts, the father of the child shall be given the same consideration as the mother in determining the primary residence of a child irrespective of the age or sex of the child.” Effective July 1, 1982, the phrase “regardless of the age of the child” was added to the original language in subsection 61.13(2). Ch. 82-96, § 1, at 233, Laws of Fla. Effective July 1, 1991, this provision was amended again to read “irrespective of the age or sex of the child.” Ch. 91-246, § 4, at 2411, Laws of Fla.

The First District has held that these amendments “clearly evidence an intent to abolish any and all preference for a mother over the father to receive custody of their minor child, regardless of the age or sex of the child.” Ketola, 636 So.2d at 852. In doing so, the court noted the Staff Report issued by the House Judiciary Committee on House Bill 62 and Senate Bill 439, which stated that the amending language “would indicate the Legislature’s intent to override the ‘tender years’ doctrine.” Id.

Since the First District’s decision in Ke-tola, the Fourth District has expressly receded from any implication in DeCamp v. Hein, 541 So.2d 708 (Fla. 4th DCA 1989), suggesting that the court was not in accord with the view that the “tender years” doctrine had been effectively abolished. Kuutti v. Kuutti, 645 So.2d 80 (Fla. 4th DCA 1994). In 1995, the Fourth District further clarified its position and held that the age or sex of the child cannot be considered by the trial court as a separate factor in determining who should be the primary residential parent, but the trial court may consider the age or sex of the child in connection with any other relevant statutory factor affecting the interests of the child. Cherradi, 662 So.2d at 753.

In the present case, the record demonstrates that the trial court expressly based its decision to grant the Mother primary residential responsibility solely on the basis of the child’s age. Moreover, the trial court’s statements that it was basing its decision on the age of the minor child were not made in reference to its analysis of the statutory factors enumerated in section 61.13(3). Thus we are unable to conclude that the court was considering the age of the minor child in connection with any other relevant statutory factor. Therefore, the trial court erred when it based its decision regarding primary residential responsibility on the child’s age.

The trial court also erred in modifying the joint custody arrangement because it did not apply the test for considering the modification of child custody arrangements enunciated in Gibbs v. Gibbs, 686 So.2d 639 (Fla. 2d DCA 1996). The Gibbs test has been summarized as follows:

The test is a two-pronged one. “First, the party seeking to modify a custody decree must plead and establish that circumstances have substantially changed since the final judgment ... [and sjecond, the petitioner must establish that the change has such an important impact on the child that the court is justified in imposing a change of custody in the ‘best interests’ of the child.” The “best interests” prong is proven when the trial court finds that a “change in custody will so clearly promote or improve the child’s well-being to such an extent that any reasonable parent would understand that maintaining the status quo would be detrimental to the child’s overall best interests.”

Blosser v. Blosser, 707 So.2d 778, 781 (Fla. 2d DCA 1998) (quoting from Gibbs, 686 So.2d at 641) (citations omitted).

We have previously required that the Gibbs test be applied to requests for the modification of joint custody arrangements. Ring v. Ring, 834 So.2d 216 (Fla. 2d DCA 2002); Newsom v. Newsom, 759 So.2d 718 (Fla. 2d DCA 2000); Cassin v. Cassin, 726 So.2d 399 (Fla. 2d DCA 1999). Here, the trial court erroneously limited its inquiry to a consideration of the factors set forth in section 61.13(3), as if it were making an initial custody determination. On the issue of the applicability of the standard enunciated in Gibbs to the modification of rotating custody arrangements, we certify conflict with the decision of the Fifth District Court of Appeal in Wade v. Hirschman, 872 So.2d 952 (Fla. 5th DCA 2004).

We reverse the trial court’s order awarding the Mother primary residential responsibility. We remand this case to the trial court to reconsider the parties’ petitions for modification without the application of the “tender years” doctrine and in accordance with Gibbs. The trial court may receive additional evidence if necessary.

Reversed and remanded.

CASANUEVA and VILLANTI, JJ., concur.

      . In Ketola, the First District noted that its decision may be inconsistent with this court's decision in Usher v. Usher, 568 So.2d 471 (Fla. 2d DCA 1990), and later, the Fourth District acknowledged that its opinion in Kuutti possibly conflicted with Usher. See Kuutti, 645 So.2d at 83; Ketola, 636 So.2d at 852. Because the discussion in Usher of the “tender years” doctrine was dicta, that opinion does not conflict with this court's current position that a reasonable reading of subsection 61.13(2)(b)(l) results in the conclusion that the "tender years” doctrine has been abolished by the legislature. See Usher, 568 So.2d at 472.


author: SALCINES, Judge.

text:
    In the Interest of S.B.H., a child, C.B.S., Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D04-624.
    District Court of Appeal of Florida, Second District.
    Oct. 29, 2004.
    Norman A. Palumbo, Jr., Tampa, for Appellant.
    Charles J. Crist, Jr.,' Attorney General, Tallahassee, and Tanya E. DiFilippo, Assistant Attorney General, Tampa, for Ap-pellee.
   SALCINES, Judge.

C.B.S. appeals the trial court order which left the custody of her daughter, S.B.H., with the child’s father, D.H.; terminated the protective supervision of the Department of Children and Family Services; and terminated the jurisdiction of the trial court over the child. We reverse the order.

This matter was before the trial court on C.B.S.’s motion for reunification with her daughter in a dependency proceeding. At the hearing on the motion, the trial court found that C.B.S. had substantially completed her case plan. It was noted that a custody proceeding was pending (or was in the process of being commenced) by the father in Wisconsin. The court determined that the child should temporarily remain in the custody of her father in Wisconsin so she would not be “ping-ponged back and forth” across the country. The transcript of the hearing reveals that the trial court specifically stated that the issue of custody was not being determined and that the placement with the father was only temporary until the custody issue could be determined in the foreign jurisdiction.

Subsequently, an order was entered by the trial court which did not comport with the oral pronouncements made at the hearing. The order must be reversed and the matter remanded for the trial court to enter an order which properly reflects the trial court’s oral ruling. See Bassett v. Saunders, 835 So.2d 1198, 1201 (Fla. 1st DCA 2002).

Reversed and remanded for further proceedings.

WHATLEY and DAVIS, JJ., concur.


author: STRINGER, Judge.

text:
    Samuel MAYBIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-355.
    District Court of Appeal of Florida, Second District.
    Nov. 3, 2004.
   STRINGER, Judge.

Samuel Maybin appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand for the trial court to reinstate Maybin’s sentence of time served and for the trial court to order Maybin’s discharge from custody.

In 1991, Maybin was convicted of sale or delivery of cocaine and possession of a controlled substance. The trial court sentenced him as a habitual felony offender to twenty-five years in prison on the sale count and to five years in prison on the possession count. In 1996, Maybin filed a motion to mitigate sentence pursuant to what is now Florida Rule of Criminal Procedure 8.800(c), alleging a serious health issue. The trial court granted the motion and sentenced him to time served. The State did not seek review of this order. Maybin was released from the custody of the Department of Corrections.

In 1997, the State filed a motion to correct illegal sentence pursuant to rule 3.800(a), arguing that the trial court did not have jurisdiction to modify Maybin’s sentence in 1996. The trial court granted this motion and resentenced Maybin to the original sentence of twenty-five years in prison on the sale of cocaine count. May-bin was recommitted to the custody of the Department of Corrections.

In his motion, Maybin argued that the trial court violated double jeopardy when it resenteneed him to twenty-five years in prison in 1997. The trial court denied the motion as successive, concluding that Maybin raised this claim unsuccessfully several times before. However, Maybin’s motion is not barred as successive because the trial court never addressed the merits of this particular claim. Therefore, the trial court erred in denying it as successive.

In 1996, the trial court lacked authority to mitigate Maybin’s sentence because the motion to mitigate was untimely. See Wilhelm v. State, 543 So.2d 434 (Fla. 2d DCA 1989). However, the State failed to seek review of this order by filing a petition for writ of certiorari in this court. See State v. Williams, 780 So.2d 1031 (Fla. 1st DCA 2001); State v. Swett, 772 So.2d 48 (Fla. 5th DCA 2000). After the trial court mitigated his sentence, Maybin was released from prison. By the time the State filed the rule 3.800(a) motion and the trial court realized its mistake in modifying Maybin’s sentence, Maybin’s modified sentence of time served had already been served. Once a sentence has already been served, even if it is an illegal sentence or an invalid sentence, the trial court loses jurisdiction and violates the Double Jeopardy Clause by reasserting jurisdiction and resentencing the defendant to an increased sentence. Sneed v. State, 749 So.2d 545 (Fla. 4th DCA 2000).

Even though Maybin’s modified sentence was invalid, he had already served it to completion, and the trial court could not set it aside because the question had become moot. See id. at 546. Therefore, the trial court’s reimposition of the twenty-five year sentence four months later violated Maybin’s right to protection against double jeopardy. See id. A sentence that violates double jeopardy may be corrected via a rule 3.800(a) motion when the error is apparent from the face of the record. See Hopping v. State, 708 So.2d 263 (Fla.1998). Accordingly, we reverse and remand for the trial court to reinstate the sentence of time served and to order the discharge of Maybin from the Department of Corrections’ custody.

Reversed and remanded.

ALTENBERND, C.J., and WALLACE, J., Concur.


author:
hVICTORY, J.
     | ¶ GULOTTA, J. (AD HOC), | tWEIMER, J., LCALOGERO, Chief Justice,

text:
    STATE of Louisiana v. Julian Christian LONG.
    No. 2003-KK-2592.
    Supreme Court of Louisiana.
    Sept. 9, 2004.
    Rehearing Denied Nov. 24, 2004.

      McGlynn, Glisson & Koch, Karl J. Koch, Baton Rouge, Marcia S. Koch, for Applicant.
    Charles C. Foti, Jr., Attorney General, Douglas P. Moreau, District Attorney, Jeanne G. Rougeau, Assistant District Attorney, for Respondent.
   hVICTORY, J.

This case elicits as its primary issues both the relevancy of the exclusionary rule when the police are in possession of a valid search warrant and the discretion a trial judge is afforded in ruling on a motion to suppress evidence. After a close examination of the record and a thorough review of applicable law, we find that the exclusionary rule such as was formulated in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct, 1684, 6 L.Ed.2d 1081 (1961), and its progeny was not triggered when a law enforcement officer executed a valid search warrant upon which he reasonably relied. Additionally, we find that the trial judge abused his discretion in suppressing evidence that was obtained by a search conducted without a warrant, pursuant to the “automobile exception.”

FACTS AND PROCEDURAL HISTORY

In March 2001, Officer Dennis Smith of the Baton Rouge Police Department was contacted by a confidential informant (“Cl”) with information that the defendant, Julian Long, and his roommate, John Haarala, were trafficking large amounts of marijuana from Texas to their residence at 541 Castle Kirk Street in Baton Rouge. | ¡After receiving this tip, Officer Smith placed the Castle Kirk address under surveillance and seized several bags of garbage from outside of the residence.

Officer Smith prepared a search warrant affidavit based on the information he gathered from his surveillance and examination of the garbage. In his affidavit, Officer Smith stated that the Cl “advised that Julian Christian Long and John Haarala were trafficking in marijuana from their residence ... [and] that Long transported large quantities of marijuana from Texas to Louisiana for distribution in the Baton Rouge area, assisted by Haarala.” Although the affidavit acknowledged that the “Cl could provide no other information,” Smith maintained that.the “Cl is considered reliable based on providing information regarding narcotics trafficking in the Baton Rouge area which affiant knows to be true and correct.”

Officer Smith further stated in his affidavit that he “is familiar with Long and has in the past received information from two independent sources identifying Long as a person involved in the transportation and trafficking of marijuana.” The affidavit did not contain further information regarding either the officer’s familiarity with the defendant or the basis for the information supplied by the two unidentified sources. Officer Smith conducted surveillance on the residence on several occasions and confirmed that the defendant and Haarala resided there and that vehicles registered to the two men were located in front of the home.

Officer Smith also included in his affidavit the fact that he had seized from the defendant’s garbage the stem of what he believed to be a cured marijuana plant. He further stated he had retrieved from the garbage an empty box of gallon-sized plastic bags, which he knew from experience were often utilized by traffickers in the | ¡¡packaging of large quantities of marijuana, as well as two prescriptions for medication with co-defendant Haarala’s name on them.

After review of the affidavit by a magistrate, a search warrant was issued for the Castle Kirk address. Before he executed the search warrant, however, Officer Smith observed a male individual arrive at the residence in a maroon Ford truck. Officer Smith recognized the man as Kevin Francis, who had been described by the unidentified Cl as an associate of the defendant. Believing that Francis may have obtained marijuana from the residence, Officer Smith ordered two other officers to initiate contact with Francis after he returned to his residence and exited his vehicle. When Francis exited his vehicle, he was advised of the investigation and read his Miranda rights, which Francis stated that he understood. The officers then asked Francis whether he had any marijuana, to which Francis admitted that he had three pounds hidden in a brown paper bag on the rear passenger floorboard of his vehicle. After a search of the vehicle revealed three pounds of marijuana packaged in gallon-sized “Ziploe” bags, Francis divulged that he had obtained the marijuana from the defendant, Long.

After the search of Francis, Officer Smith directed the agents who were still at the Castle Kirk address^ to execute the search warrant on the defendant’s residence. When Officer Smith arrived back at the residence, he observed that a large quantity of marijuana had been found, which was later determined to be twenty pounds. The officers also found a digital scale holding a gallon-sized “Ziploe” bag filled with marijuana and two large black duffel bags filled -with approximately sixteen pounds of marijuana. The defendant was advised of his Miranda rights and indicated that he | ¿understood them. He told Officer Smith that the marijuana belonged to him, and he directed them to a backpack and a computer desk that contained more marijuana. The officers also seized approximately $1,050 in cash from the defendant’s pants pocket and approximately $660 from Haarala’s bedroom.

The defendant was charged by Bill of Information with “Possession with Intent to Distribute Marijuana” and “Possession of a Firearm with a Controlled Dangerous Substance,” and thereafter moved to suppress the evidence seized from his residence on the basis that probable cause had not been established in the search warrant affidavit. The defendant also moved to suppress the evidence seized from the Francis vehicle on the basis that the automobile exception to the warrant requirement did not justify the stop and warrant-less search of the vehicle.

The district court granted the defendant’s motion to suppress the evidence seized from Long’s residence, as well as the evidence seized from the vehicle belonging to Francis. A two-to-one majority of the court of appeal panel granted the State’s writ application and reversed, finding that Officer Smith’s familiarity with the defendant, the information received from the Cl who had provided reliable information in the past, the information collected from the two independent sources, and the items collected from the residential garbage established a substantial basis for the magistrate to find that probable cause existed. State v. Long, — So.2d -, 03-1060 (La.App. 1 Cir. 8/11/03). As to the evidence seized from the Francis vehicle, the appellate court simply stated that the evidence was admissible under the automobile exception to the warrant requirement. From this ruling we granted the defendant’s writ application. State v. Long, 03-2592 (La.1/30/04), 864 So.2d 638.

|5LAW AND ANALYSIS

Search of 541 Castle Kirk

Trial courts are vested with great discretion when ruling on a motion to suppress. Consequently, the ruling of a trial judge on a motion to suppress will not be disturbed absent an abuse of that discretion. See State v. Horton, 01-2529 (La.6/21/02), 820 So.2d 556, 561. Ultimately, however, the appellate courts must determine whether the district court did, in fact, abuse its discretion. In the first issue presented to this Court in the case sub judice, the trial court suppressed the evidence obtained during a search of the de-fendant’s home. In the hearing on the motion to suppress, the defendant argued that the information contained in the affidavit was merely conclusory, because it did not provide any basis for determining the veracity and reliability of the CL The defendant points out that there was no information provided as to how the informant obtained his knowledge regarding the defendant’s drug-related activities, or as to when the said activities may have occurred. Additionally, he argues that the information provided by the Cl remained uncorroborated when the warrant was issued. We find these arguments unpersuasive and find that the correct standard of review was not applied by the district court in its review of the magistrate’s determination of probable cause.

When evaluating whether probable cause exists for the issuance of a warrant, the United States Supreme Court has explained that

the task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him ... 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]’ [citations omitted] that probable cause existed.

Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983).

| ^Following this line of reasoning, the Court in Gates decided that a magistrate should examine the “totality of circumstances” that are presented to him in the affidavit by the officer when determining if a Fourth Amendment violation has occurred. Id., 462 U.S. at 230-231, 103 S.Ct. at 2328. For the following reasons, however, we need not reach a “totality of the circumstances” examination to determine the existence of probable cause.

The United States Supreme Court has held that evidence seized pursuant to a warrant based on less than probable cause need not be suppressed if the officers who executed the warrant believed it to be validly issued. United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). In Leon, the Court evaluated the costs and benefits of suppressing “reliable physical evidence seized by officers reasonably relying of a warrant issued by a detached and neutral magistrate” and found that “such evidence should be admissible in the prosecution’s case in chief.” Id., 468 U.S. at 913, 104 S.Ct. at 3415. In formulating this judicially created good faith rule, the Court reasoned that the good faith of an officer in the execution of a warrant signed by a neutral magistrate should be enough for the evidence obtained as a result of the search to be admissible. Id. Thus, the Court expressed a strong preference for warrants over war-rantless searches by allowing evidence seized in constitutionally questionable searches to be admissible into evidence if the officers were relying on a validly issued warrant.

The Supreme Court justified the creation of a good faith rule by explaining that a search warrant provides a neutral and detached analysis of probable cause by a 17magistrate rather than the “hurried judgment of a law enforcement officer,” and thus should be entitled to reliance by the executing officer. Id., 468 U.S. at 914, 104 S.Ct. at 3416. Following along these lines, this Court addressed the good faith rule in State v. Varnado. 95-3127 (La.5/31/96), 675 So.2d 268, 270. In this case we explained that:

[t]he exclusionary rule “is designed to deter police misconduct rather than to punish the errors of judges and magistrates.” Leon, 468 U.S. at 916, 104 S.Ct. at 3417. Its application therefore “must be carefully limited to the circumstances in which it will pay its way by deterring official lawlessness.” Id., 468 U.S. at 907 n. 6, 104 S.Ct. at 3412 (quoting Illinois v. Gates, 462 U.S. at 257-58, 103 S.Ct. at 2342 (White, J. concurring in judgment)). As a general rule, “an officer cannot be expected to question the magistrate’s probable-cause determination or his judgment that the form of the warrant is technically sufficient.” Leon, 468 U.S. at 916, 104 S.Ct. at 3417.

Varnado, 675 So.2d at 270. However, we also have ruled that a law enforcement officer’s reliance on a magistrate’s determination of probable cause is not boundless. In State v. Horton, 01-2529 (La.6/21/02), 820 So.2d 556, this Court, citing Leon, decided that suppression was the appropriate remedy only if:

(1) the affiant misled the magistrate by including in the affidavit misleading statements which the affiant knew were false or would have known were false, except for reckless disregard for the truth; (2) the magistrate abandoned his neutral and detached role; (3) the affi-ant was so lacking of indicia of probable cause as to render official belief in its existence entirely unreasonable; and (4) the warrant was deficient and could not be presumed valid. 468 U.S. at 914-914, 104 S.Ct. at 3405.

Applying these factors to the current case, we find that the record contains no evidence of any misleading statements that were contained in the affidavit presented to the magistrate. Additionally, there was no evidence that the issuing magistrate abandoned his neutral role in his issuance of the search warrant, nor was there on the face of the warrant anything that would make the warrant so deficient that it could not be presumed valid. Thus, in order for the exclusionary rule to be the proper remedial mechanism in the case sub judice, the affidavit provided by Officer Smith must have 18been “so lacking in the indicia of probable cause as to render official belief in its existence entirely unreasonable.”

Leon’s good faith rule recognizes that “an officer cannot be expected to question the magistrate’s probable cause determination,” but also presupposes that the police have a “reasonable knowledge of what the law prohibits.” Id., 468 U.S. at 919-921, 104 S.Ct. at 3419. It is necessary, then, to examine what information was provided by the officer to the issuing magistrate in order to determine if a “reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.” Id., 468 U.S. at 922, 104 S.Ct. at 3420.

The instant affidavit stated that the Cl’s knowledge of defendant’s drug-smuggling activities was consistent with what the officer knew of defendant’s history through two independent sources. Thus, the affiant had an independent basis for believing the report to be true, and this knowledge corroborated the informant’s report and bolstered his reliability. See State v. Dazed, 378 So.2d 1369 (La., 1979). In Illinois v. Gates, the Supreme Court determined that “[sufficient information must be presented to the magistrate to allow that official to determine probable cause” and that “his actions cannot be a mere ratification of the bare conclusions of others.” 462 U.S. at 239, 103 S.Ct. at 2332. Here, the magistrate was provided with several bases of suspicion, the combination of which provided the magistrate with more than the “bare conclusions of others” from which to determine probable cause. Id. The affiant, after learning of drug trafficking by the defendant from a reliable confidential informant, and already being independently aware of the defendant’s involvement in the drug trade, took the initiative to confiscate the defendant’s trash in order to look for additional information regarding the defendant’s activities. During this search Officer Smith found a portion of a cured marijuana plant of the kind that is bought and 1 asold in the drug trade. Additionally, he found an empty box of large “Ziploc” bags of the type that Officer Smith knew from past experience was used to store marijuana.

As this court stated in Gibson v. State, 99-1730 (La.4/11/00), 758 So.2d 782:

The determination of probable cause, unlike the determination of guilt at trial, does not require the fine resolution of conflicting evidence required at trial, and credibility determinations are seldom crucial in deciding whether available evidence supports a reasonable belief that the person to be arrested has committed a crime. Probable cause, as the very name implies, deals with probabilities. The probable cause standard recognizes that a degree of uncertainty may exist and that an officer need not have sufficient proof to convict but must have more than a mere suspicion. The facts need not eliminate all possible innocent explanations in order to support a finding of probable cause, (citations omitted)

Furthermore, in State v. Barrilleaux, this Court decided that there should be “no specific tests to be satisfied by an informant’s tip, and the magistrate may issue the warrant when the totality of the circumstances, viewed in a common-sense and non-technical manner, establish ‘there is a fair possibility that contraband or evidence of a crime will be found in a particular place.’ ” 620 So.2d 1317, 1320 (La.7/2/93) (citing Gates, 462 U.S. at 239, 103 S.Ct. at 2332 (1983)).

In our case, Officer Smith provided the magistrate with information from a reliable confidential informant as well as his own personal knowledge of the defendant’s history with narcotics through two separate informants, who corroborated this information. Additionally, he informed the judge of the marijuana plant stem and empty box of “Ziploc” bags found in the defendant’s trash. It cannot be said that when all of these factors are taken together Officer Smith was unreasonable in believing that he was providing the magistrate with sufficient information to issue a warrant. Thus, since the facts do not support that the affiant “was so lacking of indicia of probable cause as to render official belief in its existence entirely | munreasonable,” the trial court committed reversible error in suppressing the evidence found pursuant to the search warrant of the defendant’s home. Leon, 468 U.S. at 914-915, 104 S.Ct. at 3405.

Search of Francis’s Vehicle

We turn now to the defendant’s argument that the State failed to establish probable cause to search Francis’s vehicle. Under the constitution of our state, Long has the standing to challenge the seizure of evidence from Francis insofar as it may have adversely affected him. Article I, Section 5 of the Louisiana Constitution provides: “Any person adversely affected by a search or seizure conducted in violation of this section shall have standing to raise its illegality in the appropriate court.” Thus, since Long is adversely affected by the seizure of evidence from Francis’s vehicle, the grounds for having done so may be put at issue in Long’s defense. See State v. Culotta, 343 So.2d 977 (La.1976).

Following a Motion to Suppress by Long, the district court excluded the evidence obtained from Francis’s vehicle finding insufficient evidence to establish probable cause. In his ruling, the trial judge found that the information provided Officer Smith by the Cl plus the mere fact that the Francis vehicle was seen at the Castle Kirk street address was not enough to constitute probable cause for a warrant-less search. After a review of the relevant testimony and evidence in this case, we do not find it necessary to make this determination. Rather, we find that the admission of Francis to the officers concerning the presence of marijuana in his vehicle provided them with sufficient probable cause to search his vehicle pursuant to the “automobile exception” to the warrant requirement.

In Generally, in order for evidence to be excluded at trial, an illegal search or seizure must have taken place that resulted its discovery. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Applying this to our case, either the custodial arrest of Francis or the search of his vehicle must have taken place on less than probable cause in order for the exclusionary rule to pertain. Since the search of Francis’s vehicle occurred subsequent to his informing the officers that he was in possession of marijuana, there must have been a preceding seizure of Francis in order for the subsequent search of his vehicle to be considered to have violated his Fourth Amendment rights. In other words, if Francis was “seized” when the detectives informed him that he was under investigation and given his Miranda warnings, then there is a question of whether probable cause existed to make such an arrest, and the exclusionary rule may apply to the subsequent search of the vehicle. However, if the seizure was not made until after Francis admitted where the marijuana was located, then the search of his vehicle was made subject to probable cause, and the exclusionary rule does not apply. Thus, we must decide at which point Francis was seized for purposes of state and federal law in order to determine whether the product of the vehicle search may be admitted into evidence.

In California v. Hodari D., the United States Supreme Court held that an individual is not “seized” within the meaning of the Fourth Amendment until that [ ^individual either submits to the police show of authority or is physically contacted by the police. 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). This Court has expanded this definition to comport with our law, holding that an individual is “seized” under the Louisiana Constitution when he is either “actually stopped” or when the “actual stop” of the individual is imminent. State v. Tucker, 626 So.2d 707 (La.5/24/93); La. Const. Art. 1, § 5. In Tucker, this Court decided that under Louisiana’s slightly broader definition of the term, a “seizure” may occur “when the police come upon an individual with such force that, regardless of the individual’s attempts to flee or elude the encounter, an actual stop of the individual is virtually certain.” 626 So.2d at 712.

The U.S. Supreme Court addressed a similar, more relevant, issue in Florida v. Bostick, holding that a seizure does not occur simply because an officer approaches an individual and asks a few questions, as long as a reasonable person would feel free to disregard the police and go about his business. 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). In this opinion, the Court stated that even when officers have no basis for suspecting a particular individual of criminal activity, they generally may ask questions of that individual as long as the police do not convey the message that compliance with their requests is required. Id., 501 U.S. at 436, 111 S.Ct. at 2386; State v. Sylvester, 01-607 (La.9/20/02), 826 So.2d 1106. The test for whether a “seizure” has occurred, then, “is whether a reasonable person would feel free to decline the officer’s request or otherwise terminate the encounter.” Bostick, 501 U.S. at 436, 111 S.Ct. at 2386. In deciding what constitutes a “reasonable person,” one must look “form the viewpoint of an innocent person in his position.” Id., 501 U.S. at 438, 111 S.Ct. at 2388. Accordingly, the question that this Court must address in determining at what point a seizure occurred is at what instant would police conduct have communicated to a reasonable, innocent person that he was not free to decline the officer’s request or otherwise terminate the encounter.

The two officers, after following Francis to his residence, approached him, told him that he was under investigation for the distribution of marijuana, and advised him of his rights. There is no evidence of any physical contact between the two officers and Francis, nor did the officers order Francis to submit to any of their commands. However, they did exercise their rights to ask questions of Francis after specifically communicating to him that he was not required to answer them. When asked by the officers if he was transporting any marijuana, Francis admitted that he had marijuana in the back seat of his automobile. Only then did the officers take Francis into custody and search his vehicle, thereby discovering the three pounds of marijuana packaged in gallon-sized “Ziploc” bags.

Given these facts, based on the relevant federal and state law, we cannot say that the search of Francis’s vehicle was the product of an unlawful seizure. When the officers approached the vehicle, a reasonable, innocent person would not believe that he was under arrest. Thus, the admission that Francis had marijuana in his possession was not the fruit of an illegal seizure, but rather it provided the requisite probable cause for the arrest of Francis and search of his vehicle.

CONCLUSION

For the reasons stated above, we find that the trial judge abused his discretion in suppressing evidence obtained pursuant to a properly executed warrant issued by 114a neutral magistrate. Officer Smith’s familiarity with the defendant, the information received from a confidential informant and two independent sources, as well as the items found in the defendant’s garbage provided Officer Smith with sufficient grounds to execute the warrant in good faith. Additionally, we find that Francis was not seized when he was approached by two officers, read his Miranda warnings, and informed that he was the subject of an investigation. Being subject to only noncustodial questioning, Francis provided the officers probable cause for a search pursuant to the “automobile exception” by his own admission to being in possession of marijuana.

DECREE

For the reasons stated herein, the judgment of the court of appeal is affirmed and the case is remanded to the trial court for further proceedings in accordance with this opinion.

AFFIRMED AND REMANDED.

JOHNSON, J., dissents.

GULOTTA, J., concurs in part and dissents in part and assigns reasons.

WEIMER, J., concurs and assigns reasons.

CALOGERO, C.J., dissents and assigns reasons.

| ¶ GULOTTA, J. (AD HOC),

concurring in part and dissenting in part.

I concur in that part of the decision that affirms the ruling of the court of appeal to admit the evidence seized at the defendant’s residence.

I respectfully dissent from that part of the decision that also affirms the ruling of the court of appeal to admit the evidence seized from Kevin Francis’ vehicle.

Francis parked in front of his residence and exited his vehicle. The police approached him, informed him that he was the subject of a narcotics investigation, and warned him of his Miranda rights. Considering these circumstances, I am of the opinion that Francis was under arrest at that point. State v. Butler, 96-1600 (La.App. 4 Cir. 8/27/97); 700 So.2d 224. I conclude that the officers’ conduct when they initially approached Francis would have communicated to a reasonable, innocent person that he was not free to decline the officers’ request or otherwise terminate the encounter. The initial actions of the police in advising Francis that he was under investigation and warning him of his constitutional rights objectively indicated that the officers intended to impose an extended restraint on Francis’s liberty in order to conduct a custodial interrogation. State v. Fisher, 97-1133 (La.9/9/98); 720 So.2d 1179. These actions, in my opinion, constituted a de facto arrest of Francis. State v. Hills, 01-0723, p. 5 (La.11/08/02); 829 So.2d 1027, 1030. That arrest triggered the |2Fourth Amendment’s requirement of probable cause, which I find lacking. I therefore agree with the trial court’s determination that probable cause to arrest Francis did not exist.

Since I conclude that Francis was illegally arrested when he made his admission, the issue then becomes whether the illegality of that arrest so tainted Francis’ admission as to require suppression of the evidence seized in the search of his vehicle. Such an admission made after an illegal arrest is valid only when the circumstances show a break in the connection between the illegal arrest and the admission. State v. Zielman, 384 So.2d 359, 363 (La.1980). Factors to consider in determining whether a break occurred in that connection are: 1) whether the police officers adequately informed the accused that he did not need to comply with their request, 2) the closeness in time between the arrest and the admission, 3) the presence of intervening circumstances, and 4) the purpose and flagrancy of the official misconduct. State v. Mitchell, 360 So.2d 189, 191 (La.1978), citing Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).

I conclude that Francis’ admission was inextricably linked to the initial illegal arrest. Francis made the admission at the scene of the arrest shortly after the arrest occurred, with no intervening circumstances between the arrest and the admission. Moreover, the record does not disclose that Francis was advised of his right to refuse further contact with the officers. Francis’ admission was thus directly connected to his illegal arrest. As such, the evidence seized from the vehicle was subject to suppression as the fruit of the illegal arrest and the tainted admission. In my view, the district court correctly granted the motion to suppress that evidence.

| tWEIMER, J.,

concurring.

I agree with the portion of the decision to affirm the ruling of the court of appeal to admit the evidence seized at the defendant’s residence.

I concur in the portion of the decision which reverses the suppression of the evidence seized from the automobile of Kevin Francis.

As the majority notes, Detective Smith testified that the confidential informant had told him that Francis was purchasing marijuana from Julian Long on a weekly basis and that he was “presently” distributing marijuana in the Baton Rouge area. While the Long residence was being watched in anticipation of the imminent execution of the search warrant, Francis entered and then left the residence after a brief visit. The police followed Francis after he left the Long residence. However, he was not stopped. It was not until Francis parked in front of his own residence that the police approached him.

From the police report of that encounter, read into the record at the suppression hearing, after Francis parked in front of his own residence with the police trailing behind, Detectives Devall and Williams approached him and advised him of the investigation and his Miranda rights, which Francis stated he understood. The officers than asked Francis whether he had any marijuana. Francis replied that he had 1 gthree pounds of marijuana in a brown paper bag resting on the rear passenger floorboard of his car. The officers retrieved the bag and found three separate packages of marijuana hidden in the brown paper bag. Detective Smith arrived shortly thereafter and described Francis as completely cooperative in the investigation.

The trial court and the parties below all treated the police encounter with Francis as a significant Fourth Amendment event that required probable cause to make it lawful. The trial court expressly found on the basis of the testimony at the hearing that the police lacked probable cause to link Francis with any criminal activity occurring at defendant’s residence and that the subsequent search of his vehicle had therefore been illegal. However, the trial court did not expressly state the premise of that finding, that the police had, in fact, stopped or forcibly restrained Francis outside of his own residence before he made his incriminating response and otherwise cooperated in the investigation. As a general rule, the police remain free to approach anyone in a public place, identify themselves, and then ask a few questions, even ones which may elicit incriminating responses, although they do not have probable cause or reasonable suspicion, as long as the officers do not take the individual into custody or otherwise forcibly restrain him. Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 2388, 115 L.Ed.2d 389 (1991) (“[T]he proposition that police officers can approach individuals as to whom they have no reasonable suspicion and ask them potentially incriminating questions ... is by no means novel; it has been endorsed by the Court any number of times.”) (citations omitted); State v. Sylvester, 01-0607, p. 4 (La.9/20/02), 826 So.2d 1106, 1108 (quoting Bostick).

| ¡¡Providing the Miranda warning was a prophylactic measure designed to protect the defendant’s rights. The defendant could have invoked the right to remain silent. Instead, he spoke and incriminated himself.

We must not lose sight of the fact that all of the various analyses were created to aide in making one determination: did the police activity involve “unreasonable searches, seizures, or invasions of privacy.” La. Const, art. I, § 5.1 find the police did not act unreasonably.

Based on the factors outlined above, coupled with the facts an automobile was involved, Francis incriminated himself, and marijuana was found at the Long residence, I would not suppress the evidence of the marijuana found in the automobile of Francis.

LCALOGERO, Chief Justice,

dissents and assigns reasons.

For the reasons that follow, I believe the majority opinion errs in finding a “good faith” exception to the exclusionary rule under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and then affirming the appellate court’s reversal of the district court’s ruling suppressing the evidence seized from the defendant’s home. The majority opinion further errs in affirming the court of appeal and reversing the district court’s ruling suppressing the evidence obtained from the stop of the automobile.

As the district court found, and the majority opinion pretermits review of this finding, the affidavit in this case lacked probable cause and the issuing magistrate did not have a substantial basis for deciding that probable cause existed. Therefore, I do not believe the district court abused its discretion when it granted the defendant’s motion to suppress the evidence seized from his home. The court of appeal, consequently, erred in overturning the district court’s suppression of that evidence.

Furthermore, in my view, the officer’s affidavit was so lacking in the indicia of probable cause as to render official belief in its existence entirely unreasonable. The affidavit lacks any information as to the reliability of the confidential informant (Cl) or the basis of his information. The Cl’s information regarding the defendant, |2containing as it did only easily-knowable information about the defendant’s place of residence, amounts to no more than unsupported allegations of criminal behavior.

The Cl’s sweeping allegations of large-scale, interstate drug trafficking were not bolstered into probable cause to search the defendant’s home by any of the corroborating information offered in the affidavit. The two anonymous informants, generously characterized by the majority as “separate” and “independent sources,” were never identified, and there is absolutely no information as to their reliability or basis of knowledge. Indeed, the officer who obtained and executed the warrant stated in his affidavit that whatever information provided had been received “in the past,” and the officer admitted at the motion hearing that he could provide no information about these persons. Furthermore, the surveillance of the defendant’s home revealed no suspicious activity of any kind, and the presence in garbage — left in front of the home for weekly service for an unknown amount of time — of the empty box for gallon-sized “ziploc” bags and the untested, one-inch-long plant stem, do not support the Cl’s allegations of a large drug retailing operation. Thus, there is only the officer’s vague assertion in the affidavit that he was “familiar” with the defendant to buttress the accusations of serious criminality made by the uncorroborated CL

Based on my review of the record evidence, I conclude that, even though the officer secured a search warrant from a neutral magistrate, the officer’s belief that the search warrant affidavit contained sufficient indicia of probable cause was not reasonable. Accordingly, I believe the exclusion of the evidence was appropriate, and the district court properly granted the defendant’s motion to suppress the evidence seized from his residence.

As to the warrantless search of the Francis vehicle, I agree with the district court that the State failed to establish there was probable cause to search the vehicle ^belonging to Francis, who was seen leaving the defendant’s Castle Kirk residence. Moreover, I disagree with the majority’s finding that Francis was not seized for purposes of the Fourth Amendment prior to his admission.

The courts have consistently held that a search conducted without a warrant issued upon probable cause is per se unreasonable, subject only to a few specifically established and well-delineated exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973); State v. Raheem, 464 So.2d 293, 295-96 (La.1985); State v. Ruffin, 448 So.2d 1274, 1277 (La.1984). Probable cause combined with the inherent mobility of a vehicle, carrying the risk of loss of evidence, underpins the automobile exception and allows police to conduct an immediate warrantless search as thoroughly as could be authorized by a magistrate. Maryland v. Dyson, 527 U.S. 465, 119 S.Ct. 2013, 2014, 144 L.Ed.2d 442 (1999); State v. Tatum, 466 So.2d 29, 31 (1985), citing United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157 (1982).

In the instant case, there was no probable cause to search the vehicle. The officers searched Francis’s vehicle without any articulable reason to believe that marijuana would be located therein. Officer Smith testified that, despite participating in the surveillance with several other officers, he was not in a position to see Francis leave the Castle Kirk residence because he was approximately four or five homes north of the residence. The officer, therefore, did not observe whether Francis carried anything with him to his car before driving away. Nothing in the search warrant affidavit referenced what Officer Smith testified to regarding Francis’s involvement with the defendant, nor was there any indication that Francis was acting suspiciously on his way home. Consequently, there was no basis for stopping Francis and searching his vehicle, because, as the district court reasoned, the information about Francis’s alleged involvement with the defendant suffered from the same infirmities as the information 1 regarding the defendant’s own activities. Because the illegal stop of Francis tainted the recovery of the three pounds of marijuana from the vehicle, the district court, in my view, correctly suppressed that evidence as well.

       Judge James C. Gulotta, retired, sitting for Associate Justice Chet D. Traylor, recused.

      . Officer Smith did not perform a field test on the marijuana, but relied on the training and experience in the identification of marijuana that he acquired during his thirteen years as a narcotics officer. According to Officer Smith’s testimony, the narcotics division of the Baton Rouge Police Department does not have a field test for the identification of marijuana.

      . Officer Smith, who was the only witness who testified at the suppression hearing, was not on the scene when the marijuana was recovered from Francis. The above-mentioned chain of events was read into the record from the police report at the suppression hearing.

      . Francis later informed officers that while at the defendant’s residence, he had given the defendant $1,050 as payment for two pounds of marijuana he had previously obtained from him.

      . Similar to the United States Supreme Court in Leon, we do not review the issue of whether the search warrant was supported by probable cause and only rule on whether, given the trial court's conclusions, suppression is the appropriate remedy.

      . See Illinois v. Gates, 462 U.S. at 239, 103 S.Ct. at 2332, for further analysis of the "totality of the circumstances" standard which should be used when determining if probable cause exists in any particular factual scenario.

      . A search conducted without a warrant issued upon probable cause is per se unreasonable, subject only to a few specifically established and well-delineated exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973); State v. Raheem, 464 So.2d 293, 295-96 (La.1985). One of these exceptions pertains to the search of automobiles, in which the inherent mobility of a vehicle and the risk of losing evidence because of this mobility have prompted courts to allow police to conduct an immediate warrantless search with probable cause. Maryland v. Dyson, 527 U.S. 465, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999); State v. Tatum, 466 So.2d 29, 31 (La.1985) (citing United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157 (1982)).

      . See Segura v. U.S., where the court held that exclusionary rule reaches not only primary evidence obtained as direct result of illegal search or seizure, but also evidence later discovered and found to be derivative of illegality, or "fruit of the poisonous tree.” 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984).

      . It is clear that once Francis informed the officers that he was in possession of the marijuana, he provided the officers with sufficient probable cause to search the vehicle.

      . See also State v. Jackson, 00-3083 (La.3/15/02), 824 So.2d 1124, 1126 (citing People v. Dickinson, 928 P.2d 1309, 1312 (Colo.1996)) (after police officer observed two men sitting in a vehicle with their heads bent down, his action "of merely approaching the vehicle and identifying himself as a police officer did not implicate the protections of the Fourth Amendment.”); see also United States v. Drayton, 536 U.S. 194, 200, 122 S.Ct. 2105, 2110, 153 L.Ed.2d 242 (2002) ("Law enforcement officers do not violate the Fourth Amendment's prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen.”).