author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    Ernestine LEE v. COMMODORE HOLDINGS, LTD.
    No. 2000-CA-1551.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 6, 2006.
    Rehearing Denied Jan. 16, 2007.
    William R. Mustian III, Stanga & Mus-tian, P.L.C., Metairie, LA, for Plaintiff/Appellant.
    Brian D. Wallace, Evans Martin McLeod, Phelps Dunbar LLP, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MAX N. TOBIAS JR. and Judge DAVID S. GORBATY).
   JOAN BERNARD ARMSTRONG, Chief Judge.

hThe plaintiff-appellant, Ernestine Lee, appeals a judgment dismissing, pursuant to an exception of improper venue, her personal injury claim against the defendant-appellee, Commodore Holdings, Ltd. (“Commodore”). For the reasons that follow, we affirm the judgment of the trial court.

Plaintiff, a domiciliary of Jefferson Parish, alleges that she was injured on June 5, 1998, while a passenger aboard the vessel “Enchanted Capri” in the waters of the Mississippi in the Parish of Orleans, when she tripped in an attempt to avoid a falling light fixture. She attributes her injuries to the negligence of Commodore, its agents, officers and employees.

Commodore filed an exception of improper venue based on a forum selection clause contained in the ticket allegedly purchased by Ms. Lee, which clause designates New York City as the proper forum. Commodore cites Carnival Cruise Lines v. Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991) for the proposition that a passenger ticket for an ocean voyage is a maritime contract governed by the general maritime law, and that forum selection clauses contained in such tickets are Invalid and enforceable if fundamentally fair. Also citing Shute, the plaintiff counters that the trial court erred in preventing her from introducing evidence proving that because of her limited financial resources and autistic child, it would be fundamentally unfair to require her to litigate this matter in New York. Plaintiff does not contend that forum selection clauses such as the one Commodore alleges was contained in her ticket are unenforceable in general. Instead, the plaintiff contends that it would be fundamentally unfair to enforce the forum selection clause based on the particular facts of this case.

The defendant contends that the plaintiff should have filed an exception to jurisdiction rather than venue and that not having done so originally, it is now too late to do so. The case cited by the plaintiff, Sanchez v. Commodore Cruise Lines, Ltd., 97-2355 (La.App. 4 Cir. 4/22/98), 713 So.2d 572, does not support this argument as the Sanchez court refers to both venue and jurisdiction without drawing a distinction between them.

In Shute, the Supreme Court implicitly did not treat the forum selection clause question as jurisdictional. It discussed jurisdiction only in connection with the issue of minimum contacts with the forum. Smith v. Doe, 991 F.Supp. 781, 784 (E.D.La.1998), treats the forum selection clause as a venue issue as does Smith v. Commodore Cruise Line Ltd., 124 F.Supp.2d 150 (S.D.N.Y., 2000). See also Digital Enterprises, Inc. v. Arch Telecom, Inc., 95-30 (La.App. 5 Cir. 6/28/95), 658 So.2d 20 and Pique’-Weinstem-Pique’ Architects, Inc. v. New Orleans Aviation, 99-1231 (La.App. 5 Cir. 4/25/00), 762 So.2d 76.

| aFinally, we note that the plaintiff has cited no cases in which a court has held it to be error to raise the forum selection clause as a matter of venue.

Accordingly, we find no error in the trial court’s action in deciding this case in response to the defendant’s exception of venue. Therefore, we will proceed to a consideration of the merits of the defendant’s exception of venue.

In Shute, plaintiff cruise ship passengers brought an action against the cruise line seeking damages for injuries sustained as a result of a slip and fall.

After the Shutes, Washington State residents, purchased passage on a ship owned by defendant Carnival Cruise Lines, Inc., a Florida based cruise line, defendant sent them tickets containing a clause designating courts in Florida as the agreed-upon fora for the resolution of disputes. The Shutes boarded the ship in Los Angeles, and while in international waters off the Mexican coast, Mrs. Shute suffered injuries when she slipped on a deck mat. Id. The Shutes filed suit in a Washington Federal District Court, which granted summary judgment for the defendant. The Court of Appeals reversed, holding, inter alia, that the forum selection clause should not be enforced under The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972), because it was not “freely bargained for,” and because its enforcement would operate to deprive the Shutes of their day in court in light of evidence indicating that they were physically and financially incapable of pursuing the litigation in Florida.

The Supreme Court reversed the Court of Appeals, finding that the forum selection clause requiring litigation of all disputes in Florida was indeed reasonable and enforceable. The Court reasoned that because of the likelihood that a mishap on the cruise could subject a cruise line to litigation in several different fora, the line has a special interest in limiting such fora. Moreover, a clause establishing ex |4ante the dispute resolution forum has the salutary effect of dispelling confusion as to where suits may be brought and defended, thereby sparing litigants time and expense and conserving judicial resources that would be devoted to deciding those motions.

The plaintiff complains that the trial court would not allow her to testify that it would be a “grave inconvenience” for her to have to litigate in New York because of her limited income and her autistic child. This is important to her case as the Supreme Court in Shute indicated that one of the few ways for a party to successfully oppose the enforcement of a forum selection clause is to make a showing of serious inconvenience.

The Supreme Court explained in Shute that its earlier decision in The Bremen, supra, stands for the proposition that,

... even where the forum clause establishes a remote forum for resolution of conflicts, “the party claiming [unfairness] should bear a heavy burden of proof.’’[Emphasis added.]

Id., 499 U.S. at 592, 111 S.Ct. at 1526; See also Smith v. Doe, 991 F.Supp. 781, 784 (E.D.La.1998); Digital Enterprises, Inc. v. Arch Telecom, Inc., 95-30 (La.App. 5 Cir. 6/28/95), 658 So.2d 20 and Pique’-Weinstein-Pique’ Architects, Inc. v. New Orleans Aviation, 99-1231 (La.App. 5 Cir. 4/25/00), 762 So.2d 76.

We find, pursuant to the public policies expressed in Shute as set forth above, that even had the plaintiff been allowed to prove her allegations of inconvenience, such allegations do not constitute “unfairness” as a matter of law. There is no allegation that the forum chosen in the forum selection clause was deliberately chosen to inconvenience the plaintiff. We find it no more burdensome |fifor Ms. Lee to go to New York as required by the forum selection clause in the instant case than it was for the Shutes to go from Washington State to Florida when the United States Supreme Court chose to enforce the forum selection clause in Shute. And just as the Shute court found that Florida was not a “remote alien forum” relative to Washington State, we find that New York is not a remote alien forum relative to Louisiana.

For the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED.

      . This appeal was reinstated pursuant to an opinion rendered in this matter on March 22, 2006.

      . The defendant refers to itself in its pleadings as, "New Commodore Cruise Line Limited."

      . The forum selection clause was identified as a standard clause in the ticketing contract based on the affidavit of the defendant's Chief Financial Officer, Alan Pritzker, over the objection of the plaintiff, which objection was apparently rejected by the trial court.

      . Commodore also cites a number of unreported cases of which we do not take notice.

      . Both of these Smith cases involve the same defendant as in the instant case, Commodore, and apparently the same forum selection clause designating New York as the proper forum.

      . Fraud is another basis, but no fraud is argued by the plaintiff to this Court.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Matthias LOVE.
    No. 2006-KA-0539.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 6, 2006.
    Eddie J. Jordan, Jr., District Attorney, Graham L. Bosworth, Assistant District Attorney, New Orleans, LA, for Plaintiff'Appellee.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III and Judge MICHAEL E. KIRBY.
   JOAN BERNARD ARMSTRONG, Chief Judge.

_JjOn October 25, 2004, the State filed a bill of information charging the defendant-appellant Matthias Love with one count of simple possession of oxycodone, a violation of La. R.S. 40:967. The defendant was arraigned and entered a not guilty plea on November 11, 2004. The trial court denied the defendant’s motion to suppress evidence on November 10, 2004. Trial before a six-person jury occurred on May 16, 2005. The jury returned a responsive verdict of guilty of attempted possession of oxycodone. On May 19, 2005, the court sentenced the defendant to fifteen months at hard labor. The defendant moved for an appeal, which was granted. On June 2, 2005, the defendant was adjudicated a second offender. The court vacated the prior sentence and resentenced the defendant to fifteen months at hard labor under La. R.S. 15:529.1. This appeal follows.

The record reflects that on October 5, 2005, Officers Brian Sullivan and Jennifer Payne of the New Orleans Police Department were on routine patrol in a marked unit near the Gentilly area of New Orleans. When the officers were | ^stopped at the light at the intersection of Franklin and Robert E. Lee, they noticed the defendant crossing the street. When he reached the other side, he bent over and placed his hands on his knees as if he was unwell. The officers made a U-turn in order to stop and determine the defendant’s situation. When the defendant noticed the marked police unit turning around, he “popped up” and began walking away. The officers stopped their vehicle, exited, and called the defendant over. They asked him if he was all right, and the defendant responded that he was merely trying to get home. The officers noticed that the defendant was sweating profusely, had blood shot eyes, and was slurring his speech. Believing he was intoxicated, the officers placed him under arrest for “being intoxicated by incapacitation” and advised him of his rights. The defendant told them, ‘Y’ll think y’ll caught me smoking.” The officers searched the defendant and found an orange pill bottle in his pocket. It was labeled as oxycodone and contained two pills that were consistent with oxyco-done. The name Amber Love was listed on the label as the person to whom the drug had been prescribed. The officers arrested the defendant for possession of the pills.

At trial, Officer Sullivan testified that he and his partner attempted to find out who Amber Love was. They questioned the defendant, who stated she was his sister. They asked him for a number where they could reach her, but he indicated he was not sure what it was. He also told them that she was at her boyfriend’s house, but he did not know the exact street. Officer Sullivan further stated that the defendant said he was taking the pills to his sister.

Officer Payne testified at the trial that the defendant first said he was taking the pills to his sister, but later changed his story and said “he was going to pick | sthem up” and that his story changed. He was unable to give the officers any specific information about where his sister lived.

Both officers testified that they did not find any marijuana in the defendant’s possession or near him. Officer Payne stated that she smelled an odor of marijuana on the defendant.

The parties stipulated that criminalist Harry O’Neal would testify that he tested the pills marked as State’s exhibit one and that they were positive for oxycodone.

The defense called Amber Love as a witness. She testified that she is the defendant’s sister, that the pills found in the defendant’s possession were hers, and that the defendant was bringing them to her at her request. She explained that the prescription had been given to her in May when she had a baby. In September she had moved from her mother’s home at 2500 Madrid Street to a residence on Robert Street. She left the prescription, of which only a few pills remained, at her mother’s house, as well as some of her other belongings. The defendant also lived at her mother’s house at 2500 Madrid Street. On the morning of the defendant’s arrest, Ms. Love testified that she called her mother and asked if someone could bring the medication to her as she was in pain. Ms. Love’s mother said she would send them with the defendant, who had been to Ms. Love’s new residence previously.

In further testimony, Ms. Love stated that the intersection of Robert E. Lee and Franklin was approximately two blocks from her mother’s house. She also Instated that the defendant would have gone to the intersection to get on the bus in order to go uptown to Ms. Love’s Robert Street residence.

On cross-examination, Ms. Love stated that she did not personally speak to her brother on the day of his arrest and could not say what condition he was in at the time. She was asked how much bus fare the defendant would have needed to go to her residence uptown, and she indicated it would probably be three dollars. She also testified that neither she nor her relatives living on Madrid Street had a vehicle.

A review of the record for errors patent reveals that there are none.

No other defense witnesses were presented.

In his sole assignment of error, the defendant argues that the circumstantial evidence presented by the State failed to exclude the reasonable hypothesis of innocence presented by the defendant, specifically that he was in possession of the prescription drugs solely for the purpose of taking them to his sister and not with any illegal intent.

In State v. Clark, pp. 3-4, 2005-0136 (La.App. 4 Cir. 5/18/05), 904 So.2d 793, 794-96, this Court discussed the issue of sufficiency of evidence in a situation where the defendant claimed the drug in his possession had been issued pursuant to a valid prescription:

This court set out the well-settled standard for reviewing convictions for sufficiency of the evidence in State v. Ragas, 98-0011 (La.App. 4 Cir. 7/28/99), 744 So.2d 99, as follows:
In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588J¿So.2d 757 (LaApp. 4 Cir.1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court must consider the record as a whole since that is what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall; Green; supra. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319 (La.1992) at 1324.
In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from Jackson v. Virginia, supra, but rather an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La.1987).
98-0011 at pp. 13-14, 744 So.2d at 106-107, quoting State v. Egana, 97-0318, pp. 5-6 (La.App. 4 Cir. 12/3/97), 703 So.2d 223, 227-228.
La. R.S. 40:967(C) states it is unlawful:
[F]or any person knowingly or intentionally to possess a controlled dangerous substance as classified in Schedule II unless such substance was obtained directly or pursuant to a valid prescription or order from a practitioner, as provided in R.S. 40:978 [Footnote omitted] while acting in the course of his professional practice, or except as otherwise authorized by this Part.
Oxycodone is a Schedule II controlled dangerous substance. La. R.S. 40:964, Schedule II(A)(l)(o). La. R.S. 40:967(C) | ^contemplates that possession of Schedule II drugs is illegal unless the possessor obtained them directly from a practitioner or that the possessor obtained them pursuant to a valid prescription. That is, it would subvert the obvious purpose of the statute to interpret it to mean that one could legally possess Schedule II drugs as long as someone in the chain of possession had obtained them pursuant to a valid prescription.

In Clark, the defendant was in possession of a prescription bottle from which the label had been removed. When arrested, he averred that an unidentified person was going to throw the medication away and that this person gave it to him when he asked for it. Thus, in contrast to the instant case, the defendant in Clark did not present any evidence that there had ever been a valid prescription issued for the drugs found in his possession.

Furthermore, the defendant in Clark was unable to show that he was among the class of persons who could legally possess the medication, assuming there had once been a valid prescription. La. R.S. 40:967(C) exempts from criminal liability persons who possess a Schedule II drug pursuant to a valid prescription as provided in La. R.S. 40:978, which states in pertinent part that:

A. Except when dispensed or administered directly by a medical practitioner or administered by a person authorized to administer by such practitioner, other than a pharmacist, to an ultimate user, no controlled dangerous substance included in Schedule II, which is a prescription drug as determined under the Louisiana Revised Statutes, of 1950, may be dispensed or administered without the written prescription of a practitioner, except that in emergency situations, as prescribed by the department by regulation, such drug may be dispensed or administered upon oral prescription reduced promptly to writing and filed by the pharmacist. Prescriptions shall be retained in conformity with the requirements of La. R.S. 40:976. No prescription for a Schedule II substance may be refilled.

[Emphasis added.]

The definition of an ultimate user is contained in La. R.S. 40:961(40):

|7“Ultimate user” means a person who lawfully possesses a controlled dangerous substance for his own use or for the use of a member of his household or for administration to an animal owned by him or by a member of his household.

[Emphasis added]

The defense in the instant case was that the defendant was an “ultimate user” because he was in possession of the two oxycodone pills solely to deliver them to his sister to whom they had been lawfully prescribed and who was or recently had been a member of his household. In other words, the defendant’s defense was essentially that he was helping his sister move her belongings, specifically her lawfully prescribed medication, to her new home. Assuming that Amber Love was telling the truth when she testified that the defendant was in possession of the drugs solely to deliver them to her at her request because she had failed to take them with her when she moved a month before, it appears that the defendant did not commit the offense with which he was charged.

However, the jury apparently rejected the testimony of Ms. Love and thus the defendant’s reasonable hypothesis of innocence. A factfinder’s credibility decision should not be disturbed unless it is clearly contrary to the evidence. State v. Huckabay, 2000-1082 (La.App. 4 Cir 2/6/02), 809 So.2d 1093; State v. Harris, 99-3147 (La.App. 4 Cir. 5/31/00), 765 So.2d 432. The evidence which supports the jury’s credibility decision here is the testimony of Officer Jennifer Payne that the defendant changed his story regarding whether he was on his way to deliver his sister’s medication to her or whether he was “going to pick them up”. Notably, Officer Sullivan did not testify specifically that the defendant’s story changed; instead he testified that the defendant said he was taking the pills to his sister at her | Rboyfriend’s house, although he stated that the defendant also said he was trying to get home.

The defendant’s statement to the police that his sister was uptown was corroborated by Ms. Love’s testimony that she had moved in with her friend on Robert Street. The defendant’s lack of criminal intent to possess the pills was arguably bolstered by his statement to the police officers that they believed that they had caught him smoking marijuana. This admission by the defendant explained his apparent intoxication, as an admission that he had been smoking marijuana, and was corroborated by Officer Payne’s testimony that an odor of marijuana emanated from the defendant. The defendant’s admission that he had been smoking marijuana also provided an alternate explanation for his attempt to avoid the police. Further corroboration of the defendant’s explanation for his possession of the pills is found in the citation for public intoxication, State’s exhibit S-2. that shows that the defendant was arrested at 9:30 a.m. This corroborates Ms. Love’s testimony that she called her mother in the morning and asked for someone to deliver the medication to her.

The State in its brief argues that the defendant’s story was cast into doubt by the fact that “he did not know his sister’s phone, number, her address, or even where she lived.” However, the testimony of Officer Sullivan was more equivocal than that. He actually testified that the defendant said “he wasn’t sure what the [phone] number was.” Also the defendant said he was not sure of the exact street where his sister was staying, not that he did not know where she lived Furthermore, although the defendant was only a few blocks from his house, which was the same address as was on the prescription bottle, the officers apparently made no attempt to go to the residence on Madrid Street.

InThe State further argues that the defendant was allegedly going to take the bus, but had no money with him. The prosecutor attacked Ms. Love’s credibility by questioning her at length about what bus fare the defendant would have needed to go to her residence, implying that the defendant was without these funds. However, there was absolutely no testimony or evidence to show that the defendant did not have money with him. The prosecutor also attacked Ms. Love’s credibility by suggesting that she was a bad mother by taking pain medication that had possible side effects of dizziness and sedation. Nevertheless, Ms. Love’s testimony that she was given the prescription originally for pain related to childbirth, that the prescription was only for twenty pills, that she did not take them all, and that she needed them again due to pain, was reasonable. The prosecutor’s attack on Ms. Love’s credibility, while successful, was based in large part on matters that were not supported by the evidence or were irrelevant.

Finally, the State in its brief notes that the jury’s verdict was unanimous. The State fails to note that the jury did not return a verdict of guilty as charged of simple possession. Rather, the verdict was guilty of attempted possession. Clearly, the verdict was a compromise as the defendant was in physical possession of the drugs.

Nevertheless, as was stated by the Louisiana Supreme Court in State v. Francois, p. 4, 2003-1313 (La.4/14/04), 874 So.2d 125, 128:

In cases involving circumstantial evidence, when the jury reasonably rejects the hypothesis of innocence advanced by the defense, “that hypothesis falls, and the defendant is guilty unless there is another | inhypothesis which raises a reasonable doubt.” State v. Captville, 448 So.2d 676, 680 (La.1984).

The jury in this matter was presented with a reasonable hypothesis of innocence and rejected it. This Court’s function is not to determine whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence, but instead to “assure that the jurors did not speculate where the evidence is such that reasonable jurors must have a reasonable doubt.” State v. Mussall, 528 So.2d 1305, 1311 (La.1988). (citing 2 C. Wright, Federal Practice and Procedure, Criminal 2d, § 467, at 465-166 (1982)). Furthermore, this Court “cannot substitute its idea of what the verdict should be for that of the jury.” Id. This Court is also “constitutionally precluded from acting as a ‘thirteenth juror’ in assessing what weight to give evidence in criminal cases; that determination rests solely on the sound discretion of the trier of fact.” State v. Mitchell, p. 8, 1999-3342 (La.10/17/00), 772 So.2d 78, citing State v. Azema, 633 So.2d 723, 727 (La.App. 1 Cir.1993). Applying this standard, this Court must conclude that the jury’s verdict was a fundamental denial of due process before it can reverse the jury’s verdict. State v. Mitchell.

This case presents a close question of whether the State’s evidence negated the defense that the defendant was an ultimate user who was not criminally liable under La. R.S. 40:967 for possession of the oxy-codone which had been validly prescribed to his sister, and the assignment of error merits serious consideration. However, because of the standard of review to be applied, it appears that the jury’s verdict should not be reversed.

InFor. the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . The lodging of the appeal was delayed because of disruptions caused by Hurricane Katrina. Also, because of problems caused by the hurricane, the court reporter was unable to prepare the transcript of the multiple offender proceeding. However, the defendant makes no complaint about the absence of the transcript because he has served his sentence.

      . This is also the address listed for her on the prescription bottle label.

      . For example, the prosecutor asked Ms. Love if she was breastfeeding her baby, apparently with the intent to question her about taking medication which is secreted in breast milk. However, Ms. Love replied that she was not breastfeeding. Also, when the prosecutor asked her about caring for her baby while taking the medication, she replied that the infant’s father cared for the child.


author: LEON A. CANNIZZARO, JR., Judge.

text:
    STATE of Louisiana v. Anthony K. ROBERTS.
    No. 2006-KA-0891.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 2006.
    Charles Foti, Attorney General, Darryl W. Bubrig, Sr., District Attorney, 25th Judicial District Parish of Plaquemines, Belle Chasse, LA, and Gilbert V. Andry IV, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant, Anthony K. Roberts.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO, JR.).
   LEON A. CANNIZZARO, JR., Judge.

hThe defendant, Anthony K. Roberts, pled guilty to possession of cocaine. Mr. Roberts, however, reserved his right under State v. Crosby, 338 So.2d 584 (La.1976), to appeal the trial court’s denial of his motion to suppress the evidence against him. He is now appealing that decision.

STATEMENT OF THE CASE

Mr. Roberts was charged by a bill of information with possession of cocaine in violation of La. R.S. 40:967(C). He pled not guilty at his arraignment. The trial court subsequently denied his motion to suppress the evidence against him. After being advised of his constitutional rights and after knowingly waiving those rights, Mr. Roberts pled guilty as charged, but he reserved his right to appeal the trial court’s denial of his motion to suppress. After he waived all legal delays, Mr. Roberts was sentenced to three years at hard labor. Mr. Roberts filed a motion for an appeal, which was granted.

| .FACTS

Captain Ty Joseph Wiltz and his partner, Deputy Grant Solis, who were both employed by the Plaquemines Parish Sheriffs Office, testified at the hearing on the motion to suppress the evidence. Captain Wiltz stated that two narcotics agents from the sheriffs office were conducting an undercover investigation in the Sunrise area of Plaquemines Parish, Louisiana. When the agents observed Mr. Roberts exit a blue Buick automobile that belonged to a known drug buyer and enter a known drug seller’s trailer, the agents called Captain Wiltz, Deputy Solis, and Agent Dean Harvey, who was also working for the Plaquemines Parish Sheriffs Office, for assistance. The agents called the three officers for assistance, because the agents had to leave the area to follow a suspect that they were already observing. Agent Harvey was driving the vehicle in which Captain Wiltz and Deputy Solis were passengers.

After Captain Wiltz, Deputy Solis, and Agent Harvey drove into the area where Mr. Roberts had been seen, which was “a well known drug area,” they saw Mr. Roberts enter an unknown vehicle, a red Chevrolet Blazer. The Blazer was being driven toward Buras, Louisiana, and Captain Wiltz, Deputy Solis, and Agent Harvey followed the Blazer.

The vehicle that Agent Harvey was driving was an undercover, unmarked police vehicle, and none of the officers in the car were in uniform. They did, however, have their guns and badges with them.

When the Blazer arrived in Buras, it pulled into a turn lane and suddenly stopped. Agent Harvey, who was driving the unmarked police vehicle, “had to hit the brakes hard because they [the Blazer] stopped so abruptly.”

|aMr. Roberts exited the Blazer, and Captain Wiltz exited the undercover vehicle. Mr. Roberts began running toward Captain Wiltz, who recognized Mr. Roberts and called him by name. Mr. Roberts continued walking “very fast” toward Captain Wiltz and did not stop when Captain Roberts called his name. When Mr. Roberts got close enough to Captain Wiltz for him to do so, Captain Wiltz grabbed Mr. Roberts and “put him on the hood” of the unmarked car. The red Blazer, whose driver had remained inside the vehicle, then sped away.

When Captain Wiltz asked Mr. Roberts what he was doing, he replied that he thought that the unmarked car was following him “to fight.” Captain Wiltz testified that Mr. Roberts did not try to hit or grab him and that Mr. Roberts did not make any aggressive moves toward him. Additionally, Mr. Roberts did not resist being placed on the hood of the unmarked car, and he complied with all of Captain Wife’s requests. When Captain Wife confronted Mr. Roberts with the fact that he had been seen exiting a known drug buyer’s car, Mr. Roberts explained that he worked on an oyster boat and had gotten a ride from work in that car. Captain Wife testified that he did not believe Mr. Roberts’ explanation, because Mr. Roberts was “entirely to [sic] clean to have been on an oyster boat.”

Captain Wife testified that he was concerned for his safety, because Mr. Roberts had been in a high crime area and had approached him “really fast” after Mr. Roberts had exited the Blazer. Because of his safety concerns, Captain Wife patted down Mr. Roberts. During the pat down, two small rocks of cocaine were found in one of the pockets of Mr. Roberts’ pants. Mr. Roberts was then placed under arrest.

IJERRORS PATENT

A review of the record revealed no errors patent.

ASSIGNMENT OF ERROR

Mr. Roberts has raised a single assignment of error. He asserts that the trial court erred in denying his motion to suppress the evidence against him, because it was seized pursuant to an unlawful war-rantless search.

In the instant case, we must consider whether Captain Wife had reasonable suspicion to conduct an investigatory stop. If we conclude that there was reasonable suspicion, then we must determine whether the cocaine that was in the pocket of Mr. Roberts’ pants was lawfully seized.

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court first recognized that “a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” 392 U.S. at 22, 88 S.Ct. at 1880. According to the Terry case, such an investigatory stop is not an unlawful “seizure” and, therefore, does not violate the prohibition against unreasonable searches and seizures established by the Fourth Amendment to the United States Constitution.

In Louisiana there is statutory authorization for investigatory stops on less than the probable cause required for an arrest. La. C.Cr.P. art. 215.1(A) provides that “[a] law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.”

5In State v. Dank, 99-0390 (La.App. 4 Cir. 5/24/00), 764 So.2d 148, this Court explained the factors a reviewing court must consider in determining whether an investigatory stop was permissible. This Court stated:

“Reasonable suspicion” to stop is something less than the probable cause required for an arrest, and the reviewing court must look to the facts and circumstances of each case to determine whether the detaining officer had sufficient facts within his knowledge to justify an infringement of the suspect’s rights. Evidence derived from an unreasonable stop, i.e., seizure, will be excluded from trial. In assessing the reasonableness of an investigatory stop .... [t]he totality of the circumstances must be considered in determining whether reasonable suspicion exists. The detaining officers must have knowledge of specific, articulable facts, which, if taken together with rational inferences from those facts, reasonably warrant the stop. In reviewing the totality of the circumstances, the officer’s past experience, training and common sense may be considered....

99-0390, pp. 4-5; 764 So.2d at 155 (citations omitted).

At the hearing on the motion to suppress the evidence, Captain Wiltz and Deputy Solis testified that Mr. Roberts had been seen in a high crime area, had been seen entering a trailer belonging to a known drug seller, and had been seen exiting a car belonging to a known drug buyer. Captain Wiltz also testified that Mr. Roberts had lied to him about his reason for being in the car belonging to the known drug buyer, because Mr. Roberts was not dirty enough to have been working on an oyster boat as Mr. Roberts said he had been. Additionally, Captain Wiltz and Deputy Stolis testified that Mr. Roberts quickly approached Captain Wiltz after Mr. Roberts exited the car that had stopped in front of the unmarked police car, but they also said that he was cooperative when Captain Wiltz identified himself as a law enforcement officer.

RHad Captain Wiltz and Deputy Stolis articulated in their testimony the facts that supported them conclusions (1) that it was a known drug buyer whose car Mr. Roberts exited, (2) that it was a known drug seller whose trailer Mr. Roberts entered, and (3) that the area in which Mr. Roberts was seen was a high crime area, the record might have supported the assertion that Captain Wiltz had reasonable suspicion to conduct an investigatory stop. What we have, however, is a record that is devoid of the articulable facts from which Officer Wiltz could have drawn reasonable inferences that Mr. Roberts was involved in an illegal drug transaction. To justify an investigatory stop, the Dank case requires the articulation of the facts upon which the conclusions reached by Captain Wiltz and Deputy Stolis were based. The stop may have, in fact, been justified, but the State has the burden of proving that it was, and the State has not carried its burden of proof. La.C.Cr.P. art. 703(D).

Without any factual basis to support the conclusion that Mr. Roberts was in a car and a trailer belonging to a known drug buyer and a known drug seller, respectively, there is nothing in the record to indicate that the parties were, in fact, what they were said to be. There is nothing in the record to evidence that either party had been arrested, charged, or convicted in connection with any illegal drug activity. Similarly, there was nothing in the record, other than the conclusory statement that Mr. Roberts had been in a high crime area, to evidence that the area was, in fact, a high crime area. There was nothing in the record to reflect what crimes had been committed in the area or even that there had been any arrests in the area.

When Captain Wiltz was asked why he conducted a “pat down” of Mr. Roberts, Captain Wiltz stated that he did so “[f]or the reason that he was in and out |7of a high crime area.” He further said that “[h]e had given me a lie basically about where he had been and why he was there.” Although Captain Wiltz’s testimony reflected that he was concerned for his safety, being in a “high crime area” without more does not lead to a reasonable suspicion sufficient to justify an investigatory stop. Additionally, an unverified statement likewise does not lead to such reasonable suspicion.

It would have been helpful for the trial court to have heard the testimony of the two agents who reported to Captain Wiltz and Deputy Solis that Mr. Roberts was seen in a high crime area and that he had been seen in the car and the trailer of a known drug buyer and a known drug seller, respectively. Additionally, it would have been helpful for the trial court judge to have heard testimony regarding the length of time Mr. Roberts was in the trailer so that the trial court judge could have determined whether the length of time was more consistent with a quick drug transaction rather than some legitimate purpose.

As stated in the Dank case, the reviewing court must look to the particular facts and circumstances in each case involving an investigatory stop. We find that in the instant case, there are no articulable facts in the record to support an investigatory stop of Mr. Roberts.

Because we have found that there was no reasonable suspicion for Captain Wiltz to conduct an investigatory stop, we must conclude that the seizure of the cocaine that was in one of Mr. Roberts’ pockets was unlawful. Therefore, we find that Mr. Roberts’ assignment of error has merit.

CONCLUSION

The trial court’s denial of Mr. Roberts’ motion to suppress the evidence against him is hereby reversed. We also reverse Mr. Roberts’ conviction and|ssentence, and we remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . In the Crosby case the Louisiana Supreme Court held that the court was not barred from reviewing the assignments of error that were specifically reserved at the time of a guilty plea, if the trial court accepted the guilty plea conditioned upon the defendant's right to appeal those assignments of error.