author: CAMPBELL, Judge.

text:
    Mark MEYER, a minor, By and Through his natural mother, Inez MEYER, and Inez Meyer, individually, Appellants, v. John C. TORREY, Susan L. Torrey, Fidelity Southern Insurance Co., and Be-Mac’s Services, Florida Farm Bureau Casualty Insurance Co., Appellees. and John C. TORREY, Susan L. Torrey, Fidelity Southern Insurance Co., Cross-Appellants, v. BE-MAC’S SERVICES, Florida Farm Bureau Casualty Insurance Co., Cross-Appellees.
    No. 83-1816.
    District Court of Appeal of Florida, Second District.
    July 18, 1984.
    Gerald R. Herms and Robert R. Carbo-nell, Tampa, for appellants.
    Gary W. Nicholson of Carson & Guem-mer, Tampa, for appellees/cross-appellants, John C. Torrey, Susan L. Torrey and Fidelity Southern Ins. Co.
    Thomas P. Scarritt, Jr., of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for appellees/cross-appellees, Be-Mac’s Services and Fla. Farm Bureau Cas. Ins. Co.
   CAMPBELL, Judge.

Appellants appeal final summary judgments entered against them on their complaint against appellees. Appellees, John C. Torrey and Susan L. Torrey, cross-appeal from the summary judgment entered against them on their cross-claim against cross-appellee, Be-Mac’s Services. We affirm the trial court in all respects.

On the afternoon of October 20, 1981, then eight-year-old Mark Meyer was the social guest of the sons of the appellees Torrey. The Torrey boys were aged seven and eleven. The Torreys and the Meyers were neighbors. While the three boys were playing football in the Torrey’s back yard, Mark Meyer was attempting to catch a pass thrown by the older Torrey son. In his attempt to catch the pass, he dove for the ball in a manner described by him as “like when you’re in a swimming pool, you just dive, like that, straight out.” As a result of his dive for the ball, he landed in a pygmy date palm planted in a landscaped area between the edge of the grass yard and the Torrey’s house. In doing so, his left eye was pierced by thorns growing on the stem of the palm fronds between the trunk of the palm and the beginning of the fronds. The palm tree, approximately three feet tall, had been planted in the landscaped area by the appellee Be-Mac’s Services, as a result of a contract to landscape the Torrey’s back yard. The essence of the appellants’ complaint was that the Torrey’s were negligent in having the pygmy date palm planted next to their house when they knew children would be playing in the yard, and were also negligent in maintaining the palm. The complaint also alleged negligence on the part of Be-Mac’s Services in recommending and planting such a palm in the Torrey’s yard.

Young Mark Meyer testified by deposition that he was aware of the palm in the yard, although when he dove for the pass, he was not conscious of its proximity. He also testified that he knew it had thorns, as he had been stuck by thorns in a palm he believed to be just like it in his own yard. Although there is some variation in the testimony as to the exact location of the palm in the Torrey’s yard, there is no question that it was planted between the grass area of the yard and relatively close to a porch area of the Torrey home. It was not planted in an area where children were intended to play. An injury could occur from the thorns only by reaching into the tree or by falling or running into it as young Mark Meyer did.

We conclude that the court below was correct in its summary judgments for the appellees. The standard for the determination of negligent conduct in a case such as this is the exercise of reasonable care under the circumstances. Wood v. Camp, 284 So.2d 691 (Fla.1973). Most shrubbery found in Florida homeowners’ yards will likely cause some -type of physical harm when dived into, whether the shrubbery be a pygmy date palm or otherwise. We are of the opinion that Cassel v. Price, 396 So.2d 258 (Fla. 1st DCA 1981) is closely on point and thereby persuasive.

We find some of Judge Larry Smith’s statements in Cassel v. Price of sufficient import to our decision to warrant repeating and quoting here:

The two basic duties owed by a landowner to invitees have been recently reiterated in Pittman v. Volusia County, 380 So.2d 1192 (Fla. 5th DCA 1980), quoting from Maldonado v. Jack M. Berry Grove Corp., 351 So.2d 967, 970 (Fla.1977), as follows:
In Florida, a landowner owes two duties to a business invitee: (1) to use reasonable care in maintaining the premises in a reasonably safe condition; and (2) to give the invitee warning of concealed perils which are or should be known to the landowner, and which are unknown to the invitee and cannot be discovered by him through the exercise of due care.
It is still fundamental, of course, that the mere occurrence of an accident does not give rise to an inference of negligence, and is not sufficient for a finding of negligence on the part of anyone. Robinson v. Allstate Insurance Company, 367 So.2d 708 (Fla. 3rd DCA 1979); Marcano v. Puhalovich, 362 So.2d 439 (Fla. 4th DCA 1978); Lash v. Nolan, 321 So.2d 104 (Fla. 4th DCA 1975); and City Cab of Orlando Inc. v. Green, 308 So.2d 540 (Fla. 4th DCA 1975).
Liability is imposed upon the landowner only if natural or artificial conditions involve an “unreasonable risk.” Gifford v. Galaxie of Homes of Tampa, Inc., 194 So.2d 25 (Fla. 2nd DCA 1967), cert. dis. 204 So.2d 1 (Fla.1967); Grail v. Risden, 167 So.2d 610 (Fla. 2nd DCA 1964); Crutchfield v. Adams [152 So.2d 808 (Fla. 1st DCA 1963) ], supra.

396 So.2d at 264.

Before a jury would be permitted to find that defendant’s conduct contributed to the child’s death there would have to be facts which would afford a reasonable basis for a conclusion that it is “more likely than not” that the conduct of defendant was “a substantial factor in bringing about that result.” See Greene v. Flewelling, 366 So.2d 777 (Fla. 2nd DCA 1978), quoting from Prosser, The Law of Torts, 241 (4th Ed.1971). The quotation continues (opinion page 781):
A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.
See also Greenhouse Inc. v. Thiermann, 288 So.2d 566 (Fla. 2nd DCA 1974).

396 So.2d at 266.

Affirmed.

BOARDMAN, A.C.J., and OTT, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Kenneth G. ODOM, Appellant, v. Angelia L. ODOM, Appellee.
    No. 83-2312.
    District Court of Appeal of Florida, Second District.
    July 18, 1984.
    Elizabeth A. Stewart of Edmund, McDaniel & Mars, Bartow, for appellant.
    Judith Ann Cutting, Lakeland, and Jesse J. Bennett, Jr. of Bennett & Bennett, P.A., Winter Haven, for appellee.
   PER CURIAM.

Appellant/husband, Kenneth G. Odom, appeals from a final judgment in a dissolution of marriage proceeding. Appellant’s single point on appeal urges error on the part of the trial court in awarding the appellee/wife, Angelia L. Odom, the husband’s interest in the jointly owned marital home “as a partial award of alimony and property settlement.” We affirm.

The parties were married on March 24, 1979. One child was born of the marriage on June 22, 1980. The wife was awarded custody of the child and $55.00 per week child support.

Both husband and wife are employed, the husband’s take-home pay being $765.52 per month and the wife’s being $470.68 per month. The husband was ordered to pay $953.00 in outstanding bills of the parties, and one-half of another $710.86 obligation. The court reserved jurisdiction to award the wife alimony, only to the extent she might be called upon to pay the obligations the husband was ordered to pay.

The parties’ equity in the jointly owned marital home was $3,200.00. The wife was awarded the husband’s equity, and the wife is obligated to make the mortgage payments of $270.00 per month.

While the court cannot award property of the parties as a “property settlement,” it is within the discretion of the court to award the jointly owned home to the wife as lump sum alimony where the wife has a need for the award and the husband has the ability to satisfy the award. We cannot say the award of the husband’s equity of $1,600.00 in the marital home to the wife as lump sum alimony, was an abuse of his discretion to do equity between the parties.

AFFIRMED.

SCHEB, A.C.J., and CAMPBELL and LEHAN, JJ., concur.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Willie L. CELESTINE.
    No. 82-KA-2376.
    Supreme Court of Louisiana.
    May 14, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Mike Harson, Asst. Dist. Atty., for plaintiff-appellee.
    Bertrand DeBlanc, Lafayette, for defendant-appellant.
   MARCUS, Justice.

Willie L. Celestine was charged by the grand jury in the same indictment with three separate counts of aggravated rape in violation of La.R.S. 14:42. Prior to trial, the court granted a severance of count three. After trial by jury, defendant was found guilty as charged on the remaining two counts and was sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence on each count. The court expressly directed that the sentences be served concurrently. On appeal, defendant relies on four assignments of error for reversal of his convictions and sentences.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in denying his motion for a new trial on the ground there was insufficient evidence to support the convictions. Specifically, he argues there was insufficient evidence to prove he was the perpetrator of the two rapes.

Count 1

In support of count one, aggravated rape of Ms. S on June 4, 1981, the state introduced the following evidence. Ms. S testified that, at the time of the rape, she was a sixty-five-year old widow who resided alone on Alsador Drive in Lafayette. On the evening of June 3, she went to bed about 11:30 p.m. She was sleeping face down on her stomach when a man jumped on her back. He held her arms down and said, “My name is Michael, and don’t you move or I’m going to cut you.” After cutting her three times, he forcibly had anal intercourse with her. The attacker left the apartment by using the back door. Ms. S testified that she could not see her attacker and did not recognize his voice. After the incident, she went to a neighbor’s home where she had a bowel movement and thoroughly cleaned herself. The police took her to the hospital where she was examined by a doctor. When she returned home, she noticed that the back screen door had been cut near the latch. She concluded her testimony by locating her apartment on an aerial photograph of the housing project area by placing an “X” on the picture; her building is on a cul-de-sac and is the last one on Alsador Drive before the drainage ditch.

The doctor who examined Ms. S at the hospital testified that she had three lacerations and a “small perianal abrasion.” He stated that the abrasion, which is usually caused by trauma, would be consistent with anal intercourse. There was no semen visible in the rectal area. But, according to the doctor, because Ms. S had had a bowel movement and did a thorough cleaning, the chances were slight that there would be any evidence of semen.

Finally, the state introduced in evidence defendant’s confession. In the confession, defendant admitted to raping a woman who lived in the last house before the curve on the right hand side of Alsador Drive. He stated that he got into the house by cutting a hole in the back screen door so that he could unlatch the screen door. He also stated that the woman was sleeping on her stomach and that she remained on her stomach with her face in the mattress throughout the incident. After the act, he left the apartment by using the back door. He denied having a knife, threatening to cut the victim and raping her other than vaginally.

Count■ 2

In support of count two, aggravated rape of Ms. B on September 5, 1981, the state introduced the following evidence. Ms. B testified that, at the time of the rape, she was a fifty-nine-year old widow who resided alone on Alsador Drive in Lafayette. On the evening of September 4, she went to bed about 10:00 p.m. Sometime early in the morning, she was awakened by a man who was choking her and who told her, “If you don’t do what I say, I’ll kill you.” Because there was no light in the bedroom, she could not see her attacker. Soon after the attack began, she passed out. The next thing she remembered was waking up in the hospital. When she returned from the hospital, she noticed that the kitchen window screen was “all twisted” and the back screen door had a square cut near the latch. Finally, just as Ms. S had done, Ms. B located her house on the same aerial photograph of the housing project; it was the fourth building from the corner on the right hand side of Alsador Drive. Ms. B also marked the house where defendant lived with his mother. The photograph indicates that the S, B and Celestine residences were within a one-block radius of each other.

The doctor who examined Ms. B at the hospital testified that she was unconscious when she arrived. He noticed that she had minute hemorrhages on her face and head and large hemorrhages on her neck. His opinion was that she had been choked into unconsciousness. He took a rectal swab and vaginal washing. A forensic chemist testified that the swab and washing both showed the presence of spermatozoa.

An expert in fingerprint identification testified that a latent print lifted from the inside kitchen window sill area of Ms. B’s home had about fifteen identical points with a roll print of defendant’s left ring finger. Ms. B was recalled to the stand and testified that she had no knowledge of defendant ever being inside her house.

The state then introduced in evidence defendant’s confession. He admitted to raping a woman who lived in the fourth house on the right hand side of Alsador Drive. The incident occurred late one Friday night or Saturday morning. He stated that he entered the house through the kitchen window and raped the woman in a dark bedroom.

The standard of review for the sufficiency of evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Sweeney, 443 So.2d 522 (La.1983). It is well settled that an accused party cannot be legally convicted on his own uncorroborated confession without proof that a crime has been committed by someone; in other words, without proof of the corpus delicti. State v. Simmons, 443 So.2d 512 (La.1983); State v. Mullins, 353 So.2d 243 (La.1977); State v. Morgan, 157 La. 962, 103 So. 278 (1925). Once the corpus delicti has been independently established, a confession alone may be used to identify the accused as the perpetrator of the crime. United States v. Opdahl, 610 F.2d 490 (9th Cir. 1979), cert. denied, 444 U.S. 1091, 100 S.Ct. 1056, 62 L.Ed.2d 780 (1980); United States v. Johnson, 589 F.2d 716 (D.C.Cir.1978); State v. Reed, 420 So.2d 950 (La.1982) (Calogero, J., concurring); State v. Freetime, 334 So.2d 207 (La.1976); 1 H. Underhill, Criminal Evidence § 36, at 18 (6th ed. P. Herrick 1980 Supp.); 1 F. Wharton, Criminal Evidence § 691, at 490 (13th ed. C. Torda 1972).

In the instant case, since the corpus delicti of each count of aggravated rape was established by sufficient evidence independent of the confession, defendant’s confession may be considered together with all of the other evidence in the sufficiency of the evidence review. With regard to count one, Ms. S testified that she was the victim of an aggravated rape. She described how a man committed an act of anal intercourse on her without her consent. She further described how she was prevented from resisting the act by a threat that she would be knifed if she did not comply. Her testimony about the rape and the presence of a knife were corroborated by the doctor who examined her at the hospital. To prove defendant was the author of this crime, the state introduced in evidence defendant’s confession. In the confession, defendant admitted to raping a woman and provided a detailed account of the incident. His description of the events and the testimony of the victim matched on several points: mode of entry (cut back screen door to unlock latch); position of victim during the incident (lying on her stomach); manner of departure (through the back door); and location of the building where the crime occurred (last house before the cul-de-sac on the right hand side of Alsador Drive). Viewing this evidence in the light most favorable to the prosecution, a rational trier of fact could have determined beyond a reasonable doubt that defendant committed an aggravated rape on Ms. S. Hence, the trial judge did not err in denying defendant’s motion for a new trial on count one.

With regard to count two, Ms. B testified that she was the victim of an attack by a man who threatened her with death if she did not comply with his wishes. Although she passed out and did not remember the rest of the incident, she did not consent to have sexual intercourse with the man. The forensic chemist testified that there was evidence of spermatozoa in the rectal swab and vaginal washing taken from Ms. B when she arrived at the hospital. To prove defendant was the author of this crime, the state introduced in evidence the testimony of the fingerprint analyst and defendant’s confession. The expert in fingerprint identification testified that the latent fingerprint found on the inside kitchen window sill matched defendant’s left-ring finger. In the confession, defendant admitted to raping a woman and provided a detailed account of the incident. As above, his description of the events and the testimony of the victim matched on several points: mode of entry (through the kitchen window); time of incident (early one Saturday morning/late Friday evening); and location of the building where the crime occurred (fourth building on the right hand side of Alsador Drive). Viewing this evidence in the light most favorable to the prosecution, a rational trier of fact could have determined beyond a reasonable doubt that defendant committed an aggravated rape on Ms. B. Hence, the trial judge did not err in denying defendant’s motion for a new trial on count two.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial judge erred in denying his motions to quash and sever the two counts of the indictment. He argues the two counts were improperly joined and he was prejudiced at trial by the joinder of these offenses.

Two or more offenses may be joined in the same indictment in a separate count for each offense under La.Code Crim.P. art. 493 if the offenses charged

are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.

In the instant case, the offenses charged, two counts of aggravated rape, are of the same or similar character. Also, since the punishment for each offense is necessarily confinement at hard labor, the mode of trial (jury composed of twelve jurors, ten of whom must concur to render a verdict) is the same. La.Code Crim.P. art. 782. Hence, the offenses were properly joined in the same indictment. La.Code Crim.P. art. 493.

When an accused has been charged in the same indictment with two or more offenses pursuant to art. 493, he may apply for severance of offenses under La. Code Crim.P. art. 495.1, which provides:

If it appears that a defendant or the state is prejudiced by a joinder of offenses in an indictment or bill of information or by such joinder for trial together, the court may order separate trials, grant a severance of offenses, or provide whatever other relief justice requires.

Such a motion is addressed to the sound discretion of the trial court and the court’s ruling should not be disturbed on appeal absent a showing of an abuse of discretion. State v. Williams, 418 So.2d 562 (La.1982). According to State v. Washington, 386 So.2d 1368 (La.1980), considerations for the trial court in determining whether prejudice may result from joinder include

whether the jury would be confused by the various counts; whether the jury would be able to segregate the various charges and evidence; whether the defendant could be confounded in presenting his various defenses; whether the crimes charged would be used by the jury to infer a criminal disposition and finally, whether, especially considering the nature of the charges, the charging of several crimes would make the jury hostile.

In State v. Carter, 352 So.2d 607 (La.1977), we held that art. 495.1, as it read at that time, normally required severance when the offenses were joined solely because they were of the “same or similar” character unless evidence of each offense would have been respectively admissible at the separate trial of the other. In Washington, we held that Carter still remained viable as a criterion for judging when there is a strong possibility of prejudice, even though art. 495.1 had been amended. However, under the new article, a severance need not be granted if the prejudice could effectively be avoided by other safeguards. Thus, a severance is not mandated simply because the offense would not be admissible at separate trials if the defendant is-not “prejudiced” by the joinder. We have held that there is no prejudicial effect from the joinder of two or more offenses when the evidence of each offense is relatively simple and distinct, even though such evidence might not have been admissible in separate trials of the offenses because, with a proper charge, the jury can easily keep the evidence of each offense separate in its deliberations. State v. Williams, supra; State v. Washington, supra; State v. Robinson, 404 So.2d 907 (La.1981).

In the instant case, the two aggravated rapes, although strikingly similar, were not so unique as to qualify as “signature crimes.” Thus, the offenses would not have been admissible under the Prieur rationale. Therefore, it is necessary to determine whether the jury knew that defendant was charged with separate offenses requiring separate verdicts as to each offense and that the evidence of one offense could not be considered as evidence of the other offense. After a review of the proceedings, we conclude that the jury was sufficiently apprised of its function and responsibilities to protect defendant from being prejudiced by the joinder. The trial judge’s jury charge on this issue was as follows:

The defendant is charged with aggravated rape of [Ms. S] and [Ms. B]. These are two (2) separate charges and should be considered as such. You must make a determination in each of these charges and reach a separate but independent verdict in each case. These verdicts should be reached after a full consideration of all the charges I have given you and will give you as to the nature of your deliberation. You are not to consider the evidence — Excuse me. You are to consider the evidence in each case and determine which is the proepr verdict in that particular case. The verdicts may be similar or dissimilar, according to how you are impressed with the evidence in each particular case.

The judge supplied the jury with two separate verdict forms. Also, in closing argument, the prosecutor informed the jury of its responsibility to keep the charges separate: “It is very important to remember that Mr. Celestine is at this time charged with two counts ... You’ll be told by the Judge that these are to be considered separately by you. Despite the fact that they are included in one indictment, they are two separate charges_ [I]n your consideration, you should consider them separately.” Moreover, the state presented its evidence in a logical and straight-forward manner, keeping the evidence of each offense as separate as possible. Admittedly, the jury was not specifically instructed that the evidence of one crime could not be used in determining defendant’s guilt of. the other; however, under the circumstances of this case, defendant was not prejudiced by the absence of such an instruction. The trial judge’s instruction, the separate verdict forms and the closing argument of the prosecutor did more than merely advise the jury to bring in separate verdicts; the jury was clearly admonished to consider guilt or innocence as to each individual count independently and separately based upon the evidence in that particular case. And, the presentation of the evidence by the prosecutor in an orderly fashion enabled the jury to accomplish this task.

Therefore, defendant was not prejudiced by the joinder of these offenses for trial. Accordingly, the trial judge did not abuse his discretion in denying defendant’s motions to quash and for a severance.

Assignment of Error No. 3 is without merit.

DECREE

For the reasons assigned, defendant’s convictions and sentences are affirmed.

      . Defendant was tried separately for the first degree murder of the victim of the aggravated rape charged in count three. His conviction and death sentence have been affirmed by this court. State v. Celestine, 443 So.2d 1091 (La.1983).

      . Assignments of Error Nos. 2 and 4 do not present reversible error nor do they involve legal issues not governed by clearly established principles of law. They will be treated in an appendix which will not be published but which will comprise part of the record in this case.

      . La.Code Crim.P. art. 495.1 provided prior to its amendment by Acts 1978, No. 466, § 1:
      The court, on application of the prosecuting attorney, or on application of the defendant shall grant a severance of offenses whenever:
      (a) if before trial, it is deemed appropriate to promote a fair determination of the defendant's guilt or innocence of each offense; or
      (b) if .during the trial upon consent of the defendant, it is deemed necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense. The Court shall consider whether, in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to-distinguish the evidence and apply the law intelligently as to each offense.

      . State v. Prieur, 277 So.2d 126 (La.1973).


author: DENNIS, J.,

text:
    STATE of Louisiana v. James Sanford SNIDER.
    No. 84-KK-1020.
    Supreme Court of Louisiana.
    June 25, 1984.
    Reconsideration Denied Sept. 20, 1984.
   In Re: James Sanford Snider, applying for writ of Certiorari, Mandamus and Prohibition to the Fourteenth Judicial District Court, Parish of Calcasieu, No. 9543-83; Third Circuit Court of Appeal, No. K83-937.

Case below; 449 So.2d 749.

Granted. The rulings of the courts below are set aside. The case is remanded for an evidentiary hearing on the motion to suppress.

DENNIS, J.,

concurs. The stipulation’s facts are too sparse for us to determine with any confidence the important constitutional issues involved.

LEMMON, J., dissents from the order.


author: LEMMON, Justice.

text:
    STATE of Louisiana v. Eli JACKSON.
    No. 83-K-2360.
    Supreme Court of Louisiana.
    June 25, 1984.
    Anne L. Jordan, Frank J. Saia, Georgia Wilemon, Baton Rouge, for applicant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Kay Kirkpatrick, Asst. Dist. Atty., for respondent.
   LEMMON, Justice.

We granted certiorari to decide whether an appellate court, on an appeal by the defendant in a criminal case, may take notice of and correct an illegally lenient sentence so that the defendant is worse off for having exercised his right to appeal. We hold that an appellate court under such circumstances should disregard sentencing errors favorable to the defendant unless the prosecution has raised the issue in the trial court and has sought appellate review.

Defendant was convicted of simple burglary of a pharmacy in violation of La.R.S. 14:62.1. The trial court sentenced defendant as a second offender under La.R.S. 15:529.1 to ten years imprisonment at hard labor, without mentioning the denial of parole eligibility required by the statute.

Defendant appealed, contending among other things that the trial court erred in finding him to be a multiple offender and in imposing an excessive sentence. The court of appeal rejected all of defendant’s contentions, but amended the sentence to provide that defendant was not eligible for parole, even though the prosecution had not raised the issue in the trial court and appealed or otherwise sought appellate review of the legality of the sentence. 439 So.2d 622. We granted certiorari. 443 So.2d 1123.

La.C.Cr.P. Art. 882 provides that an illegal sentence may be corrected by the trial court at any time. Additionally, an appellate court may take notice of the illegality of a sentence as an error patent on the face of the record. La.C.Cr.P. Art. 920. However, there is a fundamental precept in appellate procedure that when a party exercises his right to appeal, the appellate court should not, by taking cognizance of an issue not properly raised by either the appellant or the appellee, render a judgment on appeal which is less favorable to the appellant than the judgment from which the appeal was taken. This precept is particularly applicable in the case of appeals by defendants in criminal cases. An unsought modification by an appellate court, if the result is a harsher sentence, either is or appears to be retaliatory in nature. Such modifications thus may produce a “chilling effect” on the exercise of the right to appeal.

On defendant’s appeal in State v. Napoli, 428 So.2d 957 (La.App. 1st Cir.1983), the court of appeal, on its own motion and without any request for review by the prosecution, corrected an illegal sentence so as to deny parole eligibility to the defendant for an additional thirty months more than the sentence imposed by the trial court. This court, on defendant’s application, rendered the following per curiam decision, reported at 437 So.2d 868:

“GRANTED IN PART. When the defendant alone seeks review of a conviction and sentence, the court of appeal should review only those issues raised by the defendant and any patent errors favorable to defendant. The court of appeal erred in this case by reviewing a sentencing error unfavorable to defendant, thereby providing a chilling effect on defendant’s exercise of his right to appeal. State v. Goodley, 398 So.2d 1068 (La.1981). The judgment of the court of appeal, 428 So.2d 957, is set aside as to the sentence for attempted aggravated crime against nature, and the original sentence of the trial court is reinstated. Otherwise the writ is denied.” (Emphasis supplied.)

Unfortunately, although the import of the ruling was very clear, this court cited the wrong Goodley decision, the correct citation being 423 So.2d 648 (La.1983). In the first Goodley decision (which was incorrectly cited in Napoli), this court had recognized an illegal jury verdict as patent error on defendant’s appeal and had set aside the verdict. Of course, as the court of appeal correctly noted in the present case, the first Goodley decision was not authority for the proposition that recognizing a patent error unfavorable to defendant on defendant’s appeal has a chilling effect on a defendant’s exercise of his right to appeal. However, the second Goodley decision clearly stands for (and was intended to be cited for) the proposition that an appellate court’s review for patent errors should not work to a defendant’s disadvantage on his own appeal.

In the present case, the court of appeal expressed doubt about the import of the per curiam decision in Napoli (with its incorrect citation) and about the procedure for correcting a patent error in sentencing. There is no cause for doubt. When a defendant alone appeals and the record contains a patent error unfavorable to the defendant, an appellate court should recognize and correct the error. However, when a defendant alone appeals and the record contains a patent error favorable to the defendant, the appellate court should ignore the error, unless the prosecution, having properly raised the issue in the trial court, has sought appellate review. Otherwise, as noted earlier, a defendant’s exercise of his right to appeal would result in his coming out of the appeal with a harsher sentence than he had going into the appeal.

Therefore, if a trial judge imposes a sentence without mentioning denial of parole eligibility required by a statute, it is inappropriate for an appellate court to correct the sentence when the defendant alone seeks appellate review. Only the prosecution can seek correction of the error, and this should be done by applying first to the trial court, subject to subsequent appellate review. See State v. Speed, 335 So.2d 28 (La.1976); State v. Jimmerson, 432 So.2d 1093 (La.App. 3d Cir.1983).

Finally, the court of appeal compounded its error in the present case by correcting the sentence itself, rather than remanding the case to the trial court to do so. Correction of a sentence by an appellate court is arguably appropriate in some cases. However, since it is possible that the trial judge at the time of sentencing in the present case simply overlooked the “without benefit” provision of the statute, a reviewing court cannot determine whether the judge might have imposed a sentence of fewer than ten years if the prosecution had pointed out the restriction to him. Thus, the action of the appellate court possibly denied defendant the right to have the trial judge exercise informed sentencing discretion.

Accordingly, the portion of the judgment of the court of appeal amending the sentence is set aside, and the sentence imposed by the trial court is reinstated. The conviction and original sentence are affirmed.

DIXON, C.J., concurs.

      . Of course, if a defendant requests relief on appeal which results in his being in a less advantageous position after appeal than he was before the appeal, then it is the defendant, and not the appellate court, which has produced this result, and there is no element or appearance of retaliation present. Nor is there a chilling effect on the exercise of the right of appeal, but there is only a realization of the maxim that all relief sought by a party on appeal is not necessarily beneficial to that party. See, for example, State ex rel. LaFleur v. Donnelly, 416 So.2d 82 (La.1982), (note 2, Lemmon, J., concurring.)

      . In the first Goodley case, this court held that the trial court erred in permitting a non-unanimous jury (10-2) to return a responsive verdict of manslaughter in a capital case. Although neither party had objected to the non-unanimous manslaughter verdict, this court noted the error and reversed. In the second Goodley case, this court refused to allow the state to retry the defendant for murder, rather than manslaughter.

      .There certainly can be no cause for doubt on the basis of State v. Telsee, 425 So.2d 1251 (La.1983). The court of appeal stated that the Tehee decision "corrected a sentencing error adverse to the state even though the state did not raise an objection.” Actually, the Tehee decision set aside as excessive (and not as a patently illegal sentence) a sentence of 40 years and imposed a sentence of 25 years. In doing so, this court included a (meaningless) provision denying parole eligibility for two of the 25 years, as required by the statute. Significantly, the amended 25-year sentence (on which defendant would not be eligible for parole for well in excess of two years anyway) was still far more favorable to the defendant than the original sentence imposed before defendant appealed. The Telsee decision, therefore, is hardly authority for amending a sentence to defendant’s detriment on defendant’s own appeal.

      . This was also pointed out clearly by this court to the same appellate court in State v. Williams, 439 So.2d 387 (La.1983), as follows:
      "Granted. The ruling of the Court of Appeal, 434 So.2d 585, is reversed and the sentence imposed by the district judge is reinstated. R.S. 14:52 set only a maximum fine, not a minimum. State v. Telsee, 425 So.2d 1251 (La.1983), is not applicable. Increasing a lawful sentence chills the right to appeal.
      "CALOGERO and LEMMON, Justices, Concurring. When the defendant appeals the ex-cessiveness of the sentence, the appellate court may not increase the severity of the sentence."

      . This court has also ruled that the Department of Corrections has no authority to correct the illegal sentence, since the Department's function is to carry out the sentence ordered by the trial judge. See State ex rel. Almore v. Criminal District Court, 433 So.2d 712 (La.1983); State ex rel. Pierre v. Maggio, 445 So.2d 425 (La.1984). In Pierre, this court rendered the following per curiam decision:
      "Granted. Relator’s sentence, thirty-three years at hard labor, was not imposed without benefit of parole, probation or suspension of sentence; whereas the Department of Corrections records reflect parole ineligibility. The determination of the sentence a defendant is to serve, and what, if any, conditions are to be imposed on that sentence, is made by the trial judge, not the defendant’s custodian. The custodian’s obligation is to see that the sentence imposed is the sentence served. The State of Louisiana in the person of the prosecutor was party to the proceedings in which this sentence was imposed. The prosecutor has not objected and has not sought to have the sentence set aside. Accordingly, the Department of Corrections is ordered to correct their records to show that relator’s sentence is to be served as imposed by the trial judge, without the restriction of parole ineligibility. See State v. Almore, 433 So.2d 712 (La.1983).
      "MARCUS and BLANCHE, JJ., concur. It is the prosecutor’s duty to have a sentence set aside if it is not in accordance with the statute. The Department's duty is to comply with the sentence of the trial judge as rendered.”


text:
    Marie BROWN v. WINN-DIXIE LOUISIANA, INC. and XYZ Insurance Company.
    No. 82-C-1892.
    Supreme Court of Louisiana.
    June 26, 1984.
    Herbert W. Barnes, Samanie & Barnes, Houma, for applicant.
    Robert L. Morris, Henderson, Hanemann & Morris, Houma, for respondents.
   LEMMON, Justice.

This “is a slip and fall” case. The issue is whether a supermarket operator, after proof by plaintiff that a foreign substance on the floor of the store caused her to slip, fall and sustain injuries, presented proof which exculpated itself from liability.

While shopping at defendant’s supermarket, plaintiff slipped on rice in the aisle and fell to the floor. After the fall, the manager found rice scattered in a three-foot area to the right of the center of the eight-foot aisle. The aisle was covered by floor tiles, described as “speckled grayish-beige” in color.

According to defendant’s evidence, the entire store was swept and mopped each morning before opening. Cleaning during the day was performed on an “as needed” basis. There were no periodic inspections for spills or other hazards, but all employees were instructed to be on the lookout for dangerous conditions.

On the day of the accident, the manager had walked down the particular aisle only 10 to 15 minutes before the fall and had not noticed any rice on the floor. While he admitted in testimony that the rice was not “very noticeable”, he pointed out that he was trained to look for foreign substances on the floor and probably would have noticed the rice if the spill had already occurred at the time he passed.

The trial court dismissed the suit after a trial on the merits, concluding that the lack of periodic inspections was not a cause of the accident. Finding that there was no rice on the floor when the manager walked down the aisle 15 minutes before the accident, the court held that there was insufficient time between the spill and the accident to constitute constructive notice to the defendant of the foreign substance on the floor.

The court of appeal affirmed. 417 So.2d 44. Relying on Maryland v. Winn-Dixie La., Inc., 393 So.2d 316 (La.App. 1st Cir. 1980), cert. denied, 398 So.2d 530, the court held that defendant had proved the rice was not on the floor for a sufficient period of time to constitute constructive notice. The court also rejected plaintiff’s contention that the rice on the floor rendered the premises defective and presented an unreasonable risk of harm to the public, thereby making defendant strictly liable under La. C.C. Art. 2317. The court reasoned that the temporary presence of a foreign substance on the floor of a supermarket is not a defect for which the operator would be held strictly liable and that an otherwise flawless floor is not rendered defective because a foreign substance is spilled on its surface. We granted certiorari to review the judgments of the lower courts. 420 So.2d 452.

Prior to Kavlich v. Kramer, 315 So.2d 282 (La.1975), and Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.1976), a tort victim injured by a fall in a supermarket caused by a foreign substance on the floor could recover only by proving that the store operator or his employee caused the hazard, or that the operator had actual or constructive knowledge of the hazard and failed to take reasonable steps to remedy the condition. In Kavlich this court held that once the victim proves that the substance caused him to slip, fall and sustain injuries, the store operator has the burden of going forward with “evidence to exculpate itself from the presumption that it was negligent”. Id. at 285. The court reasoned that the victim was in no position to know how the substance came to rest on the floor or to prove that the employees were negligent.

In Gonzales the court emphasized that fault was the basis for recovery in this type of case, but held that “the store owner has failed to exculpate itself from negligence”. Id. at 489. The court in Gonzales recited a number of considerations in determining the reasonableness of protective measures utilized by store operators to avoid or minimize the risk of harm.

The critical effect of the partial shifting of the evidentiary burden was the virtual elimination of proof of actual or constructive knowledge as an element of plaintiff’s case. The spill of a foreign substance onto the floor is caused either by a store employee or by a customer. Under the new evidentiary burden, the store operator is required to prove that his employees did not cause the hazard and that he exercised such a degree of care that he would have known under most circumstances of a hazard caused by customers. Implicit in the change of judicial attitude regarding constructive knowledge is the consideration that diligent protective measures by store operators will lead to the actual discovery of most hazards. Indeed, this consideration is the very basis for imposing the duty on the store operator to utilize adequate protective measures that lead to the actual discovery of dangerous conditions. The degree of vigilance, of course, must be commensurate with the risk involved, as determined by the overall volume of business, the time of day, the section of the store, and other such considerations.

The court of appeal in the present case held that although defendant did not prove the use of adequate protective measures as a basis for exculpating itself, defendant did prove that the substance had not been on the floor for a sufficient period of time to constitute constructive notice of its presence. The more appropriate inquiry is whether the store operator took reasonable steps to fulfill its twofold duty to discover and to correct dangerous conditions reasonably anticipated in its business activity.

One of the reasonably expected risks inherent in the operation of a large self-service supermarket is that an employee or a customer will cause a substance on display to fall or to spill onto the floor and thereby create a hazard to customers subsequently shopping in the area. Because of this, the operator has a high duty to discover unreasonably dangerous conditions existing on the premises and to take reasonable steps to prevent injury resulting from the condition. An operator who never conducts inspections is unlikely to discover unreported hazards. Under such circumstances, the lack of inspections and other preventive measures results in the failure to discover dangerous conditions and contributes substantially to the causation of the ensuing fall and injury.

In the present case, plaintiff proved the existence of a condition that presented an unreasonable risk of harm which resulted in her injury. Defendant proved only that the manager did not notice the rice in a three-foot area while walking in an eight-foot aisle with other things on his mind, 15 minutes before the fall. Defendant therefore failed to exculpate itself from liability for failing to discover the dangerous condition. Therefore, plaintiff is entitled to recovery of her damages.

For these reasons, the judgments of the lower courts are reversed, and the case is remanded to the court of appeal for the assessment of damages. All costs are to be assessed against defendant.

      . The court stated:
      “The circumstances that determine the reasonableness of protective measures include the type and volume of merchandise, the type of display, the floor space utilized for customer service, the nature of customer service, and the volume of business.” 326 So.2d at 488.


author: DIXON, Chief Justice. LEMMON, Justice,

text:
    STATE of Louisiana v. Reginald ANDREWS.
    No. 82-KA-2429.
    Supreme Court of Louisiana.
    June 27, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Morgan Gou-deau, III, Dist. Atty., Robert Brinkman, Asst. Dist. Atty., for plaintiff-appellee.
    Hugh William Thistlethwaite, Felix Octave Pavy, Thistlethwaite, Thistlethwaite & Pavy, Opelousas, for defendant-appellant.
   DIXON, Chief Justice.

Reginald Andrews was charged with the first degree murder (R.S. 14:30(3)) of Patrick Anderson. A jury found him guilty of the charge and recommended life imprisonment. Accordingly, the trial judge sentenced Andrews to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. The case was originally scheduled for summary treatment; however, after review we decided to treat one issue (Assignments of Error Nos. 8 and 9) in a written opinion. Finding the evidence insufficient to support the jury’s verdict, we amend it and render a judgment of conviction on the lesser included responsive offense of second degree murder.

Andrews and Patrick Anderson were involved in a fight in a night club in which Patrick’s brother, Joel, joined. Andrews then left the club and went to his girl friend’s house. He asked for a gun and told his girl friend’s mother and sister that he intended to kill both the Anderson brothers.

Andrews, accompanied by the two women, then went to search for his girl friend. Along the way, Andrews saw Joel. He grabbed a gun from a purse and ran after Joel, who fled. No shots were fired. Andrews continued to search for the two brothers in the area around the night club where the fight had occurred.

Andrews then saw Patrick walking out of the club with a friend. He shot and killed Patrick and questioned his companion as to Joel’s whereabouts. Not finding him, Andrews returned to his girl friend’s house. Police arrested Andrews later that night as he attempted to flee the city. He told police that he intended to “get” both brothers.

R.S. 14:30(3) provides that first degree murder is “the killing of a human being ... [w]hen the offender has a specific intent to kill or to inflict great bodily harm upon more than one person.” To find Andrews guilty of this crime, the jury must have concluded that Andrews, as he was shooting Patrick, simultaneously harbored a specific intent to kill Joel, even though the act of firing the gun at Patrick could not have affected or struck Joel.

In reviewing convictions on appeal, the court must decide whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In this case, specific intent to kill or inflict great bodily harm upon more than one person is an essential element. The general part of the Criminal Code defines specific intent as “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act." R.S. 14:10(1). (Emphasis added).

Firing at and killing Patrick is the act which produced the “prescribed criminal consequence.” Based on this record, no rational trier of fact could have concluded beyond a reasonable doubt that Andrews, by firing at Patrick, actively intended to kill both Patrick and Joel.

This court, pursuant to C.Cr.P. 821(E), has the power to modify the verdict and render a judgment of conviction on a lesser included responsive offense. Second degree murder is a responsive verdict to first degree murder. C.Cr.P. 814(A)(1). R.S. 14:30.1(1) defines second degree murder as “the killing of a human being ... [w]hen the offender has a specific intent to kill or inflict great bodily harm.” Second degree murder carries a mandatory sentence of life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. The record clearly supports a conviction on such a charge.

Accordingly, defendant’s conviction is modified to second degree murder (R.S. 14:30.1(1)). The conviction (as modified) and the sentence (the same for second degree murder as the one imposed for first degree murder) are affirmed.

LEMMON, J., dissents and assigns reasons.

LEMMON, Justice,

dissenting.

The Legislature, in defining first degree murder in La.R.S. 14:30 as a killing “where the offender has a specific intent to kill or to inflict great bodily harm upon more than one person”, focused on defining the offender’s state of mind at the time of the killing of one human being. The criminal consequence element of the statute requires proof of the killing of one person. The additional intent element requires proof that the offender, at the time of the killing, must have also formed a specific intent to immediately kill or inflict great bodily harm upon a second person. Proof of that intent need not include evidence that a second intended victim was present at the time of the killing; the evidence of intent is sufficient if it establishes that the offenders intent was immediately capable of accomplishment in a single consecutive course of conduct. See State v. Welcome, (La.1984) (No. 82-KA-2232) (which involved the issue of the sufficiency of the evidence to support the aggravating circumstance in La.C.Cr.P. Art. 905.4(d) that “the offender created a risk of death or great bodily harm to more than one person”).

In the present case, the offender clearly-had the specific intent, throughout his single continuous course of conduct closely related in time and place, to kill or inflict great bodily harm on both brothers. The evidence that defendant had an “active desire” to kill both Anderson brothers, which was formulated prior to the chasing of the first brother and which persisted through the killing of the second brother, was sufficient to support the conviction of first degree murder.

      . Andrews’ other assignments are without merit. We have treated them in an unpublished appendix which is attached to this opinion and is part of the official record in this case.

      . But see State v. Willie, 360 So.2d 813 (La.1978). Willie was convicted of first degree murder at a time when R.S. 14:30 carried a mandatory death sentence. The crime, however, was still defined as the killing of a human being “with the specific intent to kill or to inflict great bodily harm upon more than one person.” State v. Willie, supra, at 816.
      Willie knew and was apparently in love with the victim who lived with him. She did not care for Willie, however, and filed suit to stop him from harassing her. He then wrote, but did not mail, several letters in which he resolved to kill the woman along with her mother and father. Early one morning he broke into her parents’ home, thinking that all three would be inside. Only the victim and her two children were there, however. Willie shot the victim and left the children unharmed.
      On appeal, he argued that there was no evidence of specific intent to kill more than one person. Whether these facts are distinguishable from those in the present case is debatable. The legal standards, however, have clearly changed. At the time of the Willie decision, the standard for review on appeal was the "no evidence” rule. A majority of this court held that the letters, Willie’s knowledge of the victim’s whereabouts, and the late entry at a time when the parents would have presumably been inside were sufficient to establish “some evidence” of the intent to kill more than one person, and the court affirmed the jury’s decision. Application of the Jackson v. Virginia standard to the facts in Willie might well require a different conclusion. See also State v. Tyler, 342 So.2d 574, 582 (La.1977).
      In addition, the statute under which Willie’s mandatory death sentence was imposed had been declared unconstitutional by the United States Supreme Court. The harshest sentence which Willie could receive was life imprisonment without benefit of parole, probation or suspension of sentence for twenty years. State v. Willie, supra, at 815.
      Finally, there was no procedure at the time of the Willie decision for this court to modify a judgment of conviction to a lesser included responsive verdict after reviewing the sufficiency of the evidence. See State v. Willie, supra, at 817-18 (Tate and Dennis, JJ., concurring). After State v. Byrd, 385 So.2d 248 (La.1980) and the subsequent amendment to C.Cr.P. 821, the court now has this power.

      . La.R.S. 14:30(3) provides:
      "First degree murder is the killing of a human being:
      * * * * * *
      “(3) Where the'offender has a specific intent to kill or to inflict great bodily harm upon more than one person.”

      . In Welcome, the defendant became involved in a fight with two people. He killed one victim with several shots, the first fired at close range and the remainder while pursuing the victim around the house. Defendant then reloaded his pistol, returned to the front of the house, threatened the second victim and chased her down the street, where he fired multiple shots into her while she begged for mercy.
      In determining whether the evidence supported a finding of the aggravating circumstance, this court stated:
      "Either a single act of homicide by an offender must create a genuine risk of death or great bodily injury to more than one person, such as the risk created by the explosion of a bomb in a crowded building; or, a single consecutive course of conduct by the offender must contemplate and actually cause the death of one person and the death or great bodily harm of another, such as the slaying of four persons in close proximity and in rapid succession in a house trailer.” (Emphasis supplied.)
      See also State v. Martin, 376 So.2d 300 (La.1979); State v. Sonnier, 402 So.2d 650 (1981).
      The present case raises for the first time an issue concerning the difference in terminology between La.R.S. 14:30(3), which defines one of the aggravating factors required as an essential element of the crime of first degree murder, and La.C.Cr.P. Art. 905.4(d), which defines one of the statutory aggravating circumstances required for a recommendation of the death penalty in the sentencing phase of a bifurcated capital trial. When a defendant acts with a specific intent to kill more than one person, but does not actually and "knowingly create a risk of death or great bodily harm to more than one person”, he is guilty of first degree murder, but arguably may not be "death qualified” because of the insufficiency of proof of a statutory aggravating circumstance. The present case, however, does not present this problem, because the jury did not recommend the death penalty.

      . Whether the killing of one or more victims in a pre-planned series of murders which takes place over an extended period of time would qualify as first degree murder under La.R.S. 14:30(3) is not before us. This murder of one victim occurred in the same area and time frame as the search for and encounter with the second intended victim, and the offender at the time of the killing had the specific intent to immediately kill or inflict great bodily harm on both.

      . It is interesting to note that defendant, when he armed himself with a dangerous weapon and set out in search of the two intended victims with a specific murderous intent toward both, was clearly guilty under La.R.S. 14:27 of attempted first degree murder of each brother, even if he had not found either. La.R.S. 14:27 provides that the offender’s acts are "sufficient to constitute an attempt” if the offender is “searching for the intended victim with a dangerous weapon”.


text:
    STATE of Louisiana ex rel. Lionel MUSE v. Judge MARULLO, Section “D”, Criminal District Court.
    No. 84-KH-0544.
    Supreme Court of Louisiana.
    June 25, 1984.
   In re Lionel Muse, applying for remedial writs to the Criminal District Court, for the Parish of Orleans.

Granted. The district court is ordered to act on relator’s writ application on or before July 5, 1984.


text:
    STATE of Louisiana ex rel. Obadiah STEPHENSON v. CLERK OF COURT DIVISION “A”, CRIMINAL DISTRICT COURT PARISH OF ORLEANS, State of Louisiana.
    No. 84-KH-0713.
    Supreme Court of Louisiana.
    June 25, 1984.
   In re Obadiah Stephenson, applying for writ of mandamus to the Criminal District Court, Division “A”, No. 215-783, Parish of Orleans.

Granted. The judge of Division “A” is ordered to furnish relator a Boykin transcript in case No. 215-703.


text:
    MARSHBURN AGENCY, INC. v. UNIVERSAL ENGINEERING & SUPPLY, INC., et al.
    No. 84-C-1055.
    Supreme Court of Louisiana.
    June 25, 1984.
   In re Universal Engineering & Supply, Inc., et al., applying for writ of certiorari, and/or review, to the Third Circuit Court of Appeal, No. 83-661, from the Fourteenth Judicial District Court, Parish of Calcasieu, No. 82-326.

Granted. The judgments of the district court and the court of appeal are reversed and the case is remanded to the district court with instructions to the trial judge to consider the proffered evidence and to take additional evidence on the issue of a credit for premiums attributable to Texas coverage from April 15, 1979 to November 28, 1979.


text:
    STATE of Louisiana ex rel. Dale H. MALONEY v. Johnnie JONES, Warden, Louisiana Correctional Institute for Women.
    No. 84-KK-0988.
    Supreme Court of Louisiana.
    June 25, 1984.
   In re Dale H. Maloney, applying for writ of habeas corpus, to the Twenty-Second Judicial District Court, Parish of St. Tammany, No. 90854, from the First Circuit Court of Appeal, No. KW-84-0540.

Denied.

WATSON, J., would grant the writ.


text:
    Donna DIVINCENTI v. CHRYSLER CREDIT CORPORATION.
    No. 84-CC-1043.
    Supreme Court of Louisiana.
    June 25, 1984.
   In re Donna Divincenti, applying for remedial writ, to the 4th Circuit Court of Appeal, No. C-2284; Parish of Orleans, Civil District Court, No. 83-21056.

Denied.


text:
    Rev. Ezzard E. BOWMAN v. TWENTY-FOURTH JUDICIAL DISTRICT COURT, Clerk of Court and Judge Lionel R. Collins, Division “L”.
    No. 84-CC-1056.
    Supreme Court of Louisiana.
    June 25, 1984.
   In re Rev. Ezzard E. Bowman, applying for supervisory and remedial writ of mandamus, to the 24th Judicial District Court, Parish of Jefferson, No. 285-851 “L”; Fifth Circuit Court of Appeal, No. 84-C-175.

Denied.

Reconsideration denied, 455 So.2d 1178.


text:
    STATE of Louisiana v. Charles BUHLER.
    No. 84-KK-1101.
    Supreme Court of Louisiana.
    June 25, 1984.
   In re Charles Buhler, applying for writ of review to the Eighteenth Judicial District Court, Parish of Point Coupee, No. 30007, from the First Circuit Court of Appeal, No. KW 84/0554.

Denied.


text:
    Sherwin JUNEAU v. AVOYELLES PARISH POLICE JURY, Fred Juneau, President; Matt Bordelon, Anthony Deselle, Arthur Fuqua, Gaston Juneau, Jr., Alvis Laprairie, Jan Lemoine and Lonnie Juneau.
    No. 84-CC-1114.
    Supreme Court of Louisiana.
    June 25, 1984.
   In re Avoyelles Parish Police Jury, applying for writ of certiorari and review, to the 12th Judicial District Court, Parish of Avo-yelles, No. 84-5368; Court of Appeal, Third Circuit, No. 84-445.

Denied.

MARCUS, J., would grant the writ.


text:
    STATE of Louisiana v. James M. WHITTINGTON.
    No. 84-KK-1148.
    Supreme Court of Louisiana.
    June 25, 1984.
   In re James M. Whittington, applying for supervisory writ and stay order to the Fourth Judicial District Court, No. M-53056, Parish of Ouachita, Second Circuit Court of Appeal, No. 16532-KW.

Denied.


text:
    STATE of Louisiana, ex rel. James FLOWERS v. Ross MAGGIO, et al.
    No. 84-KP-1214.
    Supreme Court of Louisiana.
    June 25, 1984.
   In re State of Louisiana, through the District Attorney, John M. Mamoulides, applying for writ of review, 24th Judicial District Court, Parish of Jefferson, No. 81-3950.

Denied.


text:
    STATE of Louisiana ex rel. Edward J. BOURGEOIS v. Honorable Bernard J. BAGERT, Judge Criminal District Court—Section “H” Parish of Orleans, State of Louisiana.
    No. 84-KH-0994.
    Supreme Court of Louisiana.
    June 25, 1984.
   In re Edward J. Bourgeois, applying for writ of mandamus to the Criminal District Court, Parish of Orleans, No. 262-823, Section “H”.

Granted. Trial court is ordered to rule not later than July 5, 1984.


text:
    STATE of Louisiana v. Leon TURNER.
    No. 84-KH-1088.
    Supreme Court of Louisiana.
    June 25, 1984.
   In re Leon Turner, applying for remedial writ to the First Circuit Court of Appeal, No. 83-KA-1040, Parish of East Baton Rouge, Nineteenth Judicial District Court, No. 1-83-13.

Granted. Relator’s application is transferred to the 1st Circuit, Court of Appeal.


text:
    UNION NATIONAL BANK v. Michael D. COINES.
    No. 84-C-0819.
    Supreme Court of Louisiana.
    June 25, 1984.
   In re Thomas & Parker Auto Sales, Inc., applying for reconsideration of denied writ of May 25, 1984, 450 So.2d 955, Court of Appeal, Second Circuit, No. 16025-CA; First Judicial District Court, Parish of Cad-do, No. 294-247.

Reconsideration denied.


text:
    STATE of Louisiana ex rel. Joel MORRISON v. Hon. Edwin A. LOMBARD, Clerk of Court, Parish of Orleans.
    No. 84-KH-0373.
    Supreme Court of Louisiana.
    June 25, 1984.
   In re Joel Morrison, applying for writ of mandamus to the Criminal District Court, Parish of Orleans, Nos. 207-177 and 268-605.

Denied.


text:
    STATE of Louisiana v. Arthur LEE.
    No. 84-KH-0724.
    Supreme Court of Louisiana.
    June 25, 1984.
   In re Arthur Lee, applying for remedial writs, to the Criminal District Court, Parish of Orleans, No. 288-560.

Denied. Appeal now pending.


text:
    STATE of Louisiana v. Adrian PERKINS.
    No. 84-K-0883.
    Supreme Court of Louisiana.
    June 25, 1984.
   In re Adrian Perkins, applying for writ of certiorari or review, to the First Circuit Court of Appeal, No. 83-KA-1232; Parish of East Baton Rouge, Nineteenth Judicial District Court, Section V, No. 6-82-704.

Case below: 450 So.2d 396.

Denied. The record supports the sentence imposed by the trial court.


text:
    STATE of Louisiana v. Walter R. TAYLOR, III and Sherri M. Taylor.
    No. 84-KK-0968.
    Supreme Court of Louisiana.
    June 25, 1984.
   In re Walter R. Taylor, III and Sherri M. Taylor, applying for writ of certiorari and mandamus to the Fifth Judicial District Court, Parish of Richland, No. 40362, from the Second Circuit Court of Appeal, No. 16495-KW.

Denied.


text:
    STATE of Louisiana ex rel. Ray T. WOODALL, Jr. v. Hon. James F. McKAY, III, Judge, Orleans Criminal District Court, Section H.
    No. 84-KH-0969.
    Supreme Court of Louisiana.
    June 25, 1984.
   In re Ray T. Woodall, Jr., applying for writ of mandamus, to the Criminal District Court, Parish of Orleans.

Denied.


text:
    STATE of Louisiana v. Sammy GRAY.
    No. 84-K-1065.
    Supreme Court of Louisiana.
    June 25, 1984.
   In re Sammy Gray, applying for writ of review, to the Second Circuit Court of Appeal, No. 15728-KA; Parish of Caddo, First Judicial District Court, No. 122193.

Case below: 448 So.2d 119.

Denied.


text:
    STATE of Louisiana v. Freeman PALMER, Jr.
    No. 84-K-1066.
    Supreme Court of Louisiana.
    June 25, 1984.
   In re Freeman Palmer, Jr., applying for writ of review to the Second Circuit Court of Appeal, No. 15775-KA, from the First Judicial District Court, Parish of Caddo, No. 120924.

Case below: 448 So.2d 765.

Writ denied.


text:
    STATE of Louisiana v. Bobby Ray REED.
    No. 84-K-1067.
    Supreme Court of Louisiana.
    June 25, 1984.
   In re Bobby Ray Reed, applying for writ of review to the Second Circuit Court of Appeal, No. 15918-KA, from the First Judicial District Court, Parish of Caddo, No. 120263.

Case below: 448 So.2d 794.

Denied.


text:
    STATE of Louisiana v. Carey ANDERSON.
    No. 84-K-1069.
    Supreme Court of Louisiana.
    June 25, 1984.
   In re State of Louisiana, applying for writ of review to the Fourth Circuit Court of Appeal, No. KA-0845; Criminal District Court, Parish of Orleans, No. 298-148.

Case below: 450 So.2d 684.

Denied.


text:
    Katherine L. GUERRA v. Phillip P. KARAM, Leonard Welch, Insured Lloyds, and United Services Automobile Association.
    No. 84-C-1086.
    Supreme Court of Louisiana.
    June 25, 1984.
   In re Katherine L. Guerra, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, No. 83-609; 27th Judicial District Court, Parish of St. Landry, No. 83-279-1.

Case below: 449 So.2d 738.

Denied.

DENNIS, J., would grant the writ.


text:
    ACADIAN HERITAGE REALTY INC. v. The CITY OF LAFAYETTE.
    No. 84-C-1093.
    Supreme Court of Louisiana.
    June 25, 1984.
   In re Beulah Guilbeau, Louis Guilbeau, Clara Baudoin, Joseph Baudoin, John Des-hotels, Gable Augillard, Wayne Baudoin, Abby Noel, and Anne Noel, applying for writ of review and/or certiorari to the Third Circuit Court of Appeal, No. 84-35, from the Fifteenth Judicial District Court, Parish of Lafayette, No. 793350 G.

Case below: 451 So.2d 17.

Denied.

DENNIS and LEMMON, JJ., would grant the writ.


text:
    ACADIAN HERITAGE REALTY, INC., v. The CITY OF LAFAYETTE.
    No. 84-C-1103.
    Supreme Court of Louisiana.
    June 25, 1984.
   In re Gilbert W. Gossen and Florence G. Gossen, applying for writs of certiorari or review to the Third Circuit Court of Appeal, No. 84-35, from the Fifteenth Judicial District Court Parish of Lafayette, No. 793350.

Case below: 451 So.2d 17.

Denied.

DENNIS and LEMMON, JJ., would grant the writ.


text:
    JACKSON COURT CONDOMINIUMS, INC. v. The CITY OF NEW ORLEANS.
    No. 84-C-1096.
    Supreme Court of Louisiana.
    June 25, 1984.
   In re Jackson Court Condominiums, Inc., applying for writ of certiorari and review to the Fourth Circuit Court of Appeal, No. CA-1423, from the Civil District Court Parish of Orleans, No. 82-7469.

Case below: 450 So.2d 688.

Denied.


text:
    Application of Clive Adrian Stafford SMITH.
    No. 84-OB-1220.
    Supreme Court of Louisiana.
    June 27, 1984.
   In re Application of Clive Adrian Stafford Smith, applying for permission to take the Louisiana Bar Examination.

Granted in part. Relator is granted permission to take the July, 1984 bar examination.

MARCUS and BLANCHE, JJ., dissent.


text:
    STATE of Louisiana DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT v. Harry C. STUMPF, et al.
    No. 84-CC-1113.
    Supreme Court of Louisiana.
    June 27, 1984.
   In re Harry C. Stumpf, Nat B. Knight, Ada B. Knight, Amy L. Stumpf, Susan Stumpf Landry, Shelby Stumpf Key, Ver-nell J. Relie, and The Estate of Joseph J. Relie, applying for writs of certiorari, review and mandamus to the Twenty-Fourth Judicial District Court, Parish of Jefferson, No. 265-296, from the Fifth Circuit Court of Appeal, No. 84-C-227.

Granted.


text:
    In re Anne T. TURISSINI.
    No. 84-OB-1215.
    Supreme Court of Louisiana.
    June 27, 1984.
   In re Anne T. Turissini, applying for permission to take the Louisiana State Bar Examination.

Motion to take Bar Examination is granted.


text:
    STATE of Louisiana v. Rene J. LEBOUEF, Jr.
    No. 84-KK-1099.
    Supreme Court of Louisiana.
    June 27, 1984.
   In re Rene J. Lebouef, Jr., applying for supervisory writ of review to the 32nd Judicial District Court, Parish of Terrebonne, No. 141-487, Division “E”; First Circuit Court of Appeal, No. KW 84/0654.

Denied.

DIXON, C.J., and CALOGERO and DENNIS, JJ., would grant the writ.


text:
    STATE of Louisiana, ex rel. Darryl PATTERSON v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-1584.
    Supreme Court of Louisiana.
    June 27, 1984.
   In re Darryl Patterson, applying for writ of mandamus, Criminal District Court No. 278-480, Orleans Parish.

Denied. Moot.


text:
    STATE of Louisiana v. Darrell WINFREY.
    No. 84-KH-0957.
    Supreme Court of Louisiana.
    June 28, 1984.
   In re Darrell Winfrey, applying for writ of habeas corpus, Criminal District Court, Parish of Orleans, No. 266-519.

Granted. The trial court is ordered to conduct an evidentiary hearing and to reconsider relator’s application in the light of that evidence.


text:
    FIRST FINANCIAL BANK, FSB v. HUNTERS FOREST LIMITED PARTNERSHIP and Hugh L. Cornay, J. Edwin Kyle, Jr., Edgar G. Mouton, Jr., and Donald J. Romero.
    No. 84-CC-1206.
    Supreme Court of Louisiana.
    June 28, 1984.
   In re First Financial Bank, FSB, applying for supervisory writ of review, to the Fifteenth Judicial District Court, Parish of Lafayette, Division H, No. 83-7203, from the Third Circuit Court of Appeal, No. 84-446.

Granted.


text:
    STATE ex rel. Robert JOHNSON v. CRIMINAL DISTRICT COURT SECTION “I”.
    No. 84-KH-0993.
    Supreme Court of Louisiana.
    June 28, 1984.
   In re Robert Johnson, applying for remedial writs to the Criminal District Court, Parish of Orleans, No. 271-377.

Granted. The out of time appeal previously granted herein on February 3, 1984 vests jurisdiction of this appeal in the Court of Appeal. Accordingly, this writ is transferred to the Court of Appeal for consideration.


text:
    STATE of Louisiana v. James PARRIS, Louisiana Toy Co., William Cook and Terry Webster.
    No. 84-KK-1205.
    Supreme Court of Louisiana.
    June 28, 1984.
   In re James Parris, Louisiana Toy Co., William Cook and Terry Webster, applying for writs of certiorari, review and stay order, to the Criminal District Court, Parish of Orleans, No. 301-142, Section “C”, Fourth Circuit Court of Appeal, No. K-2320.

Denied.


text:
    STATE of Louisiana v. Glen BURTON.
    No. 84-KH-1240.
    Supreme Court of Louisiana.
    June 29, 1984.
   In re Glen Burton, applying for writ of review to the Criminal District Court, Parish of Orleans, Division “J”, No. 292-027.

Denied.


text:
    STATE of Louisiana v. Oliver CYRUS.
    No. 84-KK-1225.
    Supreme Court of Louisiana.
    June 29, 1984.
   In re Oliver Cyrus, applying for writ of certiorari or review and supervisory writs to the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 3-84-415, First Circuit Court of Appeal, No. KW-84-0649.

Granted. The case is remanded to the Court of Appeal for briefing, argument and opinion.


text:
    Michael James WHITCRAFT v. Barbara Beck WHITCRAFT. Barbara Beck WHITCRAFT v. Michael James WHITCRAFT.
    No. 84-CC-1143.
    Supreme Court of Louisiana.
    June 29, 1984.
   In re Michael James Whitcraft, applying for writ of certiorari, to the First Circuit Court of Appeal, No. CW 84/0592; Parish of Livingston, 21st Judicial District Court, Nos. 42255 and 42258, Division B.

Denied.


text:
    In re Lance Lindenberg BURGER, Tatiana Maria Desjobert, and Krishan Chand Diwan.
    No. 84-OB-1247.
    Supreme Court of Louisiana.
    July 2, 1984.
   In re Lance Lindenberg Burger, Tatiana Maria Desjobert and Krishan Chand Di-wan, applying to take Bar Examination.

Granted. See Application of Megwa, 404/1234, Application of Appert, et al., 434/413; Application of Appert, et al., 444/1208. A person lawfully residing in the United States is a “resident alien” under Articles of Incorporation, Article 14, Section 7(B)(3).

MARCUS, J., dissents from the order.


text:
    STATE of Louisiana v. Joseph V. FOSTER, Jr.
    No. 84-KH-1241.
    Supreme Court of Louisiana.
    July 3, 1984.
   In re Joseph V. Foster, Jr., applying for remedial writs to the Twenty-First Judicial District Court, Parish of Livingston, Nos. 4867, 4868, 4869, 4870 and 4871, Section “A”.

Denied.


text:
    Barbara Ward CABRAL v. Harry R. CABRAL, Jr.
    No. 84-CC-1244.
    Supreme Court of Louisiana.
    July 5, 1984.
   In re Barbara Ward Cabral, applying for emergency supervisory writs of review and mandamus to the Civil District Court, Parish of Orleans, No. 84-6474, Section “F”; Fourth Circuit Court of Appeal, No. C-2485.

Denied.

DIXON, C.J., and MARCUS, J., vote to grant the writ.


text:
    Carolyn Parker SIMMONS v. Bryan SIMMONS.
    No. 84-CC-1252.
    Supreme Court of Louisiana.
    July 5, 1984.
   In re Carolyn Parker Simmons, applying for supervisory writs to the Ninth Judicial District Court, Parish of Rapides, No. 131815, Section “D”; Third Circuit Court of Appeal, No. 84-555.

Granted and transferred to the Court of Appeal for consideration under its supervisory jurisdiction. While the Court of Appeal is correct that relator has a remedy by appeal from interlocutory rulings which cause irreparable injury (CCP article 2083), there simultaneously exists a right in relator to seek the Court of Appeal’s exercise of its supervisory jurisdiction; and the latter alone will afford relator effective relief in this case.


text:
    Gary W. COLEMAN v. LOUISIANA FARM BUREAU MUTUAL INSURANCE COMPANY.
    No. 84-CC-1325.
    Supreme Court of Louisiana.
    July 10, 1984.
   In re Louisiana Farm Bureau Mutual Insurance Company, applying for supervisory writs, and stay order, 14th Judicial District Court, Parish of Calcasieu, No. 83-4446; Court of Appeal, Third Circuit, No. 84-413.

Stay order denied. Writ denied.


text:
    STATE of Louisiana v. Perry YELVERTON a/k/a Perry Garland.
    No. 84-KH-1236.
    Supreme Court of Louisiana.
    July 11, 1984.
   In re Perry Yelverton a/k/a Perry Garland, applying for remedial writ to the Twenty-Fourth Judicial District Court, Parish of Jefferson, No. 81-1304, Section “E”.

Granted for the purpose of transferring to the Court of Appeal, Fifth Circuit, which has not yet reviewed the merits of relator’s attack on his guilty plea.


text:
    STATE of Louisiana v. Adam LAWRENCE.
    No. 84-KK-1328.
    Supreme Court of Louisiana.
    July 12, 1984.
   In re Adam Lawrence, applying for writ of certiorari and/or review to the Criminal District Court, Parish of Orleans, No. 300-846; Fourth Circuit Court of Appeal, No. K-2311.

Stay order denied. Writ denied.

DENNIS, J., would grant the writ.


text:
    In re PROCEEDING CONCERNING A JUDGE NO. 0029 Before the Judiciary Commission of Louisiana.
    No. 84-O-1327.
    Supreme Court of Louisiana.
    July 16, 1984.
   In re Application on Behalf of a Judge, for supervisory writs to review the procedures implemented by the Judiciary Commission of Louisiana, No. 0029.

Denied.


text:
    STATE of Louisiana, ex rel. Antonio JAMES v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 84-KD-1379.
    Supreme Court of Louisiana.
    July 23, 1984.
   In re Antonio James, applying for stay of execution, supervisory writs, and writ of habeas corpus; Criminal District Court, Parish of Orleans, Nos. 271-107 and 271-108.

Denied.


author: KLIEBERT, Judge.

text:
    STATE of Louisiana v. Charles JACKSON.
    No. 83-K-863.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 3, 1984.
    Writ Granted June 15, 1984.
    Ralph Capitelli, New Orleans, for relator.
    William C. Credo, III, Asst. Dist. Atty., Gretna, for respondent.

      Before KLIEBERT, BOWES and DU-FRESNE, JJ.
   KLIEBERT, Judge.

Defendant, Charles Jackson, was arrested for the illegal possession of a controlled dangerous substance in violation of R.S. 40:967. He filed a motion to suppress evidence obtained as a result of a warrantless search of a piece of luggage in his possession. The motion to suppress was denied by the trial court. The defendant’s application for supervisory writs to this court was denied. On application to the Supreme Court, supervisory writs were granted and the case transferred to this court for argument and opinion. For the reasons which follow, we affirm the trial court’s dismissal of the motion to suppress the evidence.

The facts surrounding Jackson’s arrest and search are as follows: Two members of the Jefferson Parish Sheriff’s Office, Narcotics Division, i.e., Agents Hurley and Whitehead were routinely assigned to the New Orleans International Airport in an attempt to curb the trafficking of controlled dangerous substances via air traffic. As part of their routine observation of incoming flights, the officers observed with particularity those flights coming from “source cities”, that is, cities that experience has proven to be a distribution hub for illegal drug trafficking. In observing these flights the officers paid particular attention to those persons who fit a “drug courier profile”. The “drug courier profile” is in essence the collective and distilled experiences and observations of narcotics officers concerning characteristics observed in drug couriers.

Both deputies testified that Mr. Jackson fell under suspicion because:

1). He was arriving on a plane from Los Angeles which is considered a source city;
2). While departing the plane he stopped on several occasions to look over his shoulder;
3). He walked very slowly on the concourse and gave the appearance of being nervous;
4). He claimed only one small piece of luggage which they concluded unusual after such a long flight.

The officers initially approached Jackson after he had claimed his luggage from the baggage carousel. They identified themselves and Agent Whitehead asked Jackson if he would answer a few questions. The officers testified that Agent Whitehead asked Jackson for a driver’s license and for his plane ticket. According to their testimony, Jackson responded by saying he did not have a driver’s license and had left his ticket on the plane. Agent Whitehead then explained to Jackson that because of his similarities to the drug courier profile he was suspected of transporting illegal drugs and asked him if he would consent to a search of his luggage, which he refused. Upon this refusal, the officers informed him they would obtain a search warrant and asked if he would accompany them to their third floor narcotics office at the airport. Mr. Jackson then accompanied the officers to the office, which was a small room, about 12 x 12, containing a couple of desks, file cabinet, chairs and a sofa.

Upon their arrival in the waiting room, Agent Whitehead performed a “frisk search” of the defendant’s person for weapons. He located a white paper, hand rolled cigarette which he believed to be marijuana in defendant’s sock. Jackson was then arrested for possession of marijuana. Agent Whitehead then asked Jackson to empty his pockets, which were found to contain an additional small quantity of marijuana. He also found a Delta Airline ticket in the name of James Jackson in the defendant’s inside coat pocket. While Agent Whitehead was conducting the search of his person, the defendant asked Agent Hurley what he was doing. In response, he was told Agent Hurley was preparing a search warrant. Agent Whitehead, after informing defendant he was not required to do so, again asked if he would permit a search of his luggage. At this time, the defendant consented to the search and signed a consent to search and a rights of arrestee form. Upon searching the luggage, a large quantity of preludin was found.

The defendant’s version of the events leading to his arrest is essentially the same as that of the officers. He said he looked around the concourse because he was unfamiliar with the airport and was trying to find his way out and that he walked slowly because he was unaccustomed to the heat of New Orleans’ sub-tropic climate. He further testified as to a subjective belief he was under arrest before being taken to the upstairs narcotics office as follows:

“CAPITELLI:
Q. He told you he was going to have to take you upstair ‘cause he was going to obtain a search warrant?
A. Right.
Q. At that point, did you have any option or chance or opportunity to leave?
A. None whatsoever.
Q. Did he tell you you had the opportunity to leave?
A. No, at that point I felt that I was under arrest.”

THE INVESTIGATORY ENCOUNTER AT THE AIRPORT

The validity of airport searches on facts similar to those in the instant case have been addressed by us and then affirmed by the Louisiana Supreme Court in State v. Ossey, 446 So.2d 280 (1984). The United States Supreme Court in Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) and United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) has also addressed the question. As the plurality in Royer stated, there is no:

‘_litmus paper test for distinguishing a consensual encounter from a seizure or for determining when a seizure exceeds the bounds of an investigatory stop. Even in the discrete category of airport encounters, there will be endless variations in the facts and circumstances....’ Id. 103 S.Ct. at 1329.”

The instant case is obviously one of the endless variations of facts and circumstances that will occur in airport searches. The dispositive issues in the case appears to be whether or not the confinement went beyond the restraint upon the individual outlined in United States v. Mendenhall, supra. The State argues that the intrusion on Jackson was justified either because Jackson submitted to the entire encounter consensually and/or that there was reasonably articulable suspicion to justify the temporary encounter that did not overstep the bounds of the type approved in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and subsequently in United States v. Mendenhall, supra. Thus, we must examine the facts of this case to determine if an unconstitutional seizure and search was conducted in the light of the United States Supreme Court’s decision in the Royer and Mendenhall cases, supra, and the Louisiana Supreme Court’s decision in the Ossey case, supra.

The initial contact by the officers was based on Jackson’s actions and conduct as he left the plane. Specifically, that he was coming from a source city, he walked slowly, and he appeared to be nervous. The officers did not violate the Fourth Amendment by merely approaching Jackson in a public place and asking him if he would voluntarily answer some questions concerning possible criminal activity. Likewise, the fact that they identified themselves as police officers does not convert the encounter into an illegal seizure. State v. Ossey, supra; Florida v. Royer, supra.

We next consider whether further actions of the police officers in the encounter amounted to a detention of Jackson. The state seeks to distinguish the Royer case from the present one while the defendant argues Royer is directly in point. The decisive question becomes the voluntariness of Jackson’s consent to be detained. The answer is to be determined by reviewing the totality of the circumstances present in the case; State v. Ossey, supra; Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In Royer, the plurality found Royer had not consented to the search because the officers had retained his license and plane ticket and took possession of his baggage when they “requested” he come with them.

In the instant case, Jackson did not give the officers his license or his ticket, which they could have used to coerce him. The fact that he refused to produce identification or a ticket indicates his awareness of his ability to refuse the requests of the officers to accompany them to the narcotics office. The element of non-consensual coercion present in Royer is not present here. Factually, the case is more analogous to the facts of U.S. v. Mendenhall, supra, where no luggage was involved, and the ticket and the identification were immediately returned. The objective approach to restraint adopted in Mendenhall clearly indicates Jackson knew he was free to refuse to cooperate with the officers if he so wished. Further, the factual determination of consent must be left to the discretion of the trial court unless clearly erroneous. Ossey, supra.

Although reasons of safety and security were not urged as reasons for the transfer from the baggage area to the narcotics office, the plurality in Royer, supra, 103 S.Ct. at page 1328, recognized “there are undoubtedly reasons of safety and security that would justify moving a subject from one location to another during an investigatory detention, such as, from an airport concourse to a more private area, Cf. Pa. v. Mimms, 434 U.S. 106, 109-111 [98 S.Ct. 330, 332-334, 54 L.Ed.2d 331] (1977). Undoubtedly experienced police officers have subjective reasons of safety and security in mind when transferring a subject to a more secure area during an investigatory encounter.

In our view, the officers did not act unreasonably in the investigatory encounter.

THE FRISK FOR WEAPONS

Having determined the investigatory encounter was legal, we have to determine if the “frisk for weapons” which produced the marijuana cigarette and the defendant’s arrest was a permissible search under the United States and the Louisiana Constitutions. These constitutional provisions assure the “right of the people to be secure in their persons, ...., against unreasonable searches and seizures.” U.S. Constitutional Amendments IV and XIV; Louisiana Article I, Section 5. Thus, the inquiry here is whether the “frisk for weapons” was reasonable.

The United States and Louisiana Supreme Courts have held that warrantless searches are per se unreasonable unless they are subject to well defined exceptions. U.S. v. Katz, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Terry v. Ohio, supra; State v. White, 399 So.2d 172 (La.1981); State v. Hunter, 375 So.2d 99 (La.1979).

The Terry -type cases have required that the officers have a reasonable belief a person is armed before a search for weapons is made. In the instant case, the officers testified the pat-down search was conducted because of the fear of being confined in a small room with someone who might have a weapon. Judged from the standard established by the Terry -type cases, i.e., the officer must be “able to point to particular facts from which he reasonably inferred the individual was armed and dangerous” (State v. Hunter, supra, at p. 101) the reasonableness of the search here is questionable. Yet, these courts have never applied this rule systematically without first examining the facts of the particular case. State v. Thompson, 448 So.2d 666 (La.1984).

The United States and Louisiana Supreme Courts have recognized that the protection afforded citizens by the Fourth Amendment against unreasonable seizures and searches is a delicate balance between legitimate public interest and the individual’s right to be free from unreasonable interference of police officers. State v. Thompson, supra; United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975).

We must recognize, as did the concurrence and dissents in the Royer case, supra, the enormous public interest the state seeks to further in conducting airport searches. Airports operate as a bottleneck in the mass distribution of controlled drugs. Drug couriers carrying drugs in large volumes operate as hubs in the mass distribution of drugs. The state, in protecting the legitimate interest of its citizens, serves the public well in attempting to stop the flow of drugs at this bottleneck. In the instant case the efforts of two officers has impounded a quantity of drugs that otherwise would have taken an army of officers months to control.

The legitimate interest of the state to control activities at airports and other points of travel has long been recognized. Limited intrusions are allowed to combat airline hijackings. U.S. v. Skipwith, 482 F.2d 1272 (5th Cir.1973). Limited stops and searches have been allowed at border crossings to combat the flow of illegal aliens. U.S. v. Brignoni-Ponce, supra; Limited searches to enforce agricultural quarantines. State v. Schafer, 461 F.2d 856 (9th Cir.1972). Likewise, there has been a recognition of a “vital national interest in preventing illegal entry and smuggling, particularly narcotics”. W. LaFave, Search and Seizure, A Treatise of the Fourth Amendment, § 10.5 at z79.

The court in Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1741, 18 L.Ed.2d 930 (1967) went on to state:

that there is no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails. But we think that a number of persuasive factors combine to support the reasonableness of area code-enforcement inspections. First, such programs have a long history of judicial and public acceptance. * * * Second, the public interest demands that all dangerous conditions be prevented or abated, yet it is doubtful that any other canvassing technique would achieve acceptable results. * * * Finally, because the inspections are neither personal in nature nor aimed at the discovery of evidence of crime, they involve a relatively limited invasion of the urban citizen’s privacy.

Thus, viewed in the totality of the circumstances, the situation involved here is not an investigatory stop by patrolling police officers followed by a search at a street corner which raises a confrontation between the individual’s right to personal security and an arbitrary interference by the government. Rather, it is a confrontation between the state’s legitimate interest in the control of the mass distribution of drugs by commercial airline and the limited intrusion into the privacy of an individual who has continuously aroused the suspicions of the police officers as the investigatory events developed. Under such circumstances the reasonableness of the pat-down search should not turn solely on whether the officers noticed a bulge in the defendant’s coat or a sound leading him to believe there was a possibility of a weapon or some other physical evidence which led him to believe there was a possibility the defendant was armed as would be required in a confirmation between the individual’s right to personal security and the arbitrary interference of a police officer at the street corner. Rather, the standard applied in those cases where the government has a legitimate and vital interest in the protection of its people from airline hijacking or the protection of its borders should be applied.

In State v. Thompson, supra, Justice Blanche said:

“The ‘public interest’ involves the societal costs incurred due to the exclusion of evidence seized in violation of the Fourth Amendment. Such evidence usually forms the basis of the case against the accused because it is factual, tangible evidence of the most reliable nature. Its exclusion results in a harm to society by interfering with the truthseeking function of a criminal trial. Society must absorb the cost of the exclusion’s result — that a violent criminal is returned to freedom within society. Thus, there is a public interest in bringing the criminal element of our society to justice.
The intrustion into the ‘sanctity of a man’s home and the privacies of life’, Boyd v. United States, [116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886)], supra, must be balanced with the public interest in bringing criminals to justice and with the societal costs involved in releasing a criminal back into society in determining whether a search is ‘unreasonable’. This balancing must be made by an examination of the totality of the circumstances surrounding the alleged illegal search to determine whether that search was ‘unreasonable’ under the Fourth Amendment. cf. United States v. Brignoni-Ponce, supra; Terry v. Ohio, 392 U.S. 1 [88 S.Ct. 1868, 20 L.Ed.2d 889] (1968); Camara v. Municipal Court, 387 U.S. 523 [87 S.Ct. 1727, 18 L.Ed.2d 930] (.1967). Common sense dictates that reasonableness varies with the circumstances of the search. Preston v. United States, 376 U.S. 364 [84 S.Ct. 881, 11 L.Ed.2d 777] (1964). Whether a particular search is unreasonable is something to be determined by the facts of a given case. Schmerber v. California, 384 U.S. 757 [86 S.Ct. 1826, 16 L.Ed.2d 908] (1966); see also Justice Black’s dissent in Vale v. Louisiana, 399 U.S. 30, 36 [90 S.Ct. 1969, 1973, 26 L.Ed.2d 409] (1970).”

In balancing the state’s vital interest of controlling the flow of contraband at bottleneck areas, such as airports, against the individual passenger’s freedom from unreasonable governmental interference, can only lead to the conclusion that the Terry v. Ohio, supra, standard for determining the reasonableness of a search must be relaxed in this limited setting. The officers here had accumulated suspicions tantamount to the “reasonable suspicion” required to conduct a strip search at a border search. United States v. Olcott, 568 F.2d 1173 (5th Cir.1978); United States v. Asbury, 586 F.2d 973 (2nd Cir.1978). The same interest to be protected and exigent that exists in border searches are present here. Much like the recognition by LaFave that the state has a vital interest in protecting against smuggling of drugs and that “The Mexican-American border is the scene of wholesale drug trade”, we recognize that large volumes of illegal drugs flow from “source cities” (in this instance Los Angeles) to metropolitan areas throughout the United States (in this case New Orleans). This recognition is advocated by the separate opinion of Justices Powell and Blackmun in the Royer case.

The limited searches of suspected persons at airports in order to combat the flow of illicit drugs is, as we have previously discussed, effective and as stated in the Camara case, supra, “No other canvassing technique would achieve acceptable results”. Also, the technique employed here involved the least amount of interference with the public as a whole, and the individual who is searched suffers a limited invasion considering the limited expectation of privacy associated with public air transportation.

We recognize that the limited exception to probable cause created by the Terry case was justified by the concern over the reasonable safety of investigating officers and should not be extended beyond that except on particular facts. Here, the exigencies surrounding airport searches to control the flow of illicit drugs compels a less of the strict application of the Terry exceptions and its progeny. Like Justice Powell’s concurrence in Royer, we must recognize that flights in domestic service and the officers attempting to police the flow of illegal drugs merit special consideration. In 103 S.Ct. at page 1329 in the Royer case he said:

“I join the plurality opinion. This is an airport ‘stop for questioning’ case similar in its general setting to that before us in United States v. Mendenhall, 446 U.S. 544 [100 S.Ct. 1870, 64 L.Ed.2d 497] (1980). The plurality opinion today has discussed helpfully the principles applicable to investigative stops for questioning. Since I was the author of one of the opinions in Mendenhall, id., at 560 [100 S.Ct. at 1880], I write briefly to repeat that the public has a compelling interest in identifying by all lawful means those who traffic in illicit drugs for personal profit. As the plurality opinion emphasizes, ante, at- [103 S.Ct. at 1329], the facts and circumstances of investigative stops necessarily vary. In view of the extent to which air transportation is used in the drug traffic, the fact that the stop at issue is made by trained officers in an airport warrants special consideration.”

We cannot say that the limited intrusion of the investigatory stop or of the pat-down search and the subsequent discovery of the marijuana or the consensual search of the defendant’s baggage were unreasonable in light of the interest to be balanced in conducting a search which the plurality in Royer described: “that discrete category of airport encounters”. Accordingly, the trial court’s denial of the motion to suppress is affirmed.

AFFIRMED.