author: MAX N. TOBIAS, JR., Judge.

text:
    Jean Laforge Wife of/and Jay Michael NAPOLITANO v. STATE of Louisiana, through the DIVISION OF ADMINISTRATION, in its Capacity as Successor to the Board of Commissioners of the Orleans Levee District and BellSouth Telecommunications, Inc.
    No. 2011-CA-1286.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 21, 2012.

      Jeffrey C. Napolitano, Juge, Napolitano, Guilbeau, Ruli, Frieman & Whiteley, Me-tairie, LA, for Plaintiffs/Appellants.
    Charles T. Curtis, Jr., Marcy Howcott Monrose, Gerard G. Metzger, APLC, Edward H. Bergin, Shantell L. Payton, Jones Walker Waechter Poitevent Carrere & De-negre, L.L.P., New Orleans, LA, for Defendants/Appellees.
    (Court composed of Chief Judge CHARLES R. JONES, Judge MAX N. TOBIAS, JR., Judge JOY C. LOBRANO).
   MAX N. TOBIAS, JR., Judge.

| Mean Laforge, wife oí/and Jay Michael Napolitano (collectively hereinafter, “the Napolitanos”), the plaintiffs/appellants, appeal the judgment denying their request for a permanent injunction against defendants/appellees, BellSouth Telecommunications, Inc. (“BellSouth”) and the State of Louisiana, through the Division of Administration, in its capacity as successor to the Board of Commissioners of the Orleans Levee District (“OLD”). After reviewing the record and applicable law, we affirm the judgment of the trial court.

At issue in this case is BellSouth’s construction of a cabinet — a telecommunications network facility — in Floral Park, one of the interior parks in the Lake-Vista Subdivision. Floral Park is owned by OLD, a state agency and is state land.

LWhen the Lake-Vista Subdivision was created in 1947, the state and the neighborhood homeowners association entered into a covenant that mandated that all telecommunication equipment be located underground and not within sight. Residents of the neighborhood are required to agree to be subject to strict building restrictions that, among other things, governed the height of homes, the square footage of homes, and any fencing the residents may have desired.

All building plans were required to be submitted to the state, through OLD, for approval prior to commencing construction. OLD enforced the provisions of the building restrictions, and made sure that all construction was in compliance with restrictions.

The Napolitanos appreciated the unobstructed green space offered by Floral Park and protected by the Lake-Vista Subdivision Building Restrictions. When a property lot along Floral Park became available, the Napolitanos bid on the property, and the bid was accepted by OLD. The property, Lot 36-C, was conveyed by OLD to the Napolitanos on 10 October 2003.

The act of cash sale made reference to the Lake-Vista East Subdivision building restrictions and a copy of the Building Restrictions was attached to the act of sale. The act of sale conveyed to the Napolitanos “all the rights, ways, privileges, servitudes, advantages, etc. thereunto belonging or in anywise appertaining” to the property as described therein. That act of sale, together with the survey and the building restrictions, were registered in the Office of the Orleans Parish Register of Conveyances on 22 October 2003.

|sThe Napolitanos hired an architect to design the plans and specifications for the house they desired to have constructed. The view of Floral Park, adjacent to the lot, was an attractive view from the property. Accordingly, the house was designed so that the den, master bedroom, study, and back porch were on the Floral Park side of the house.

After the plans and specifications were completed, the plans were first submitted to the OLD Engineering Department for approval. The plans were revised several times to meet the specifications and requirements of the OLD and conform to the neighborhood’s building restrictions.

On 20 January 2005, the Chief Engineer of the OLD stamped his approval on the plans for the construction of the home. A letter of “no objection” was issued and sent to Mr. Napolitano on that date by Stephen G. Spencer, P.E., Chief Engineer of the OLD. Thereafter, the plans were submitted to the Lake Vista Property Owners Association Incorporated for its approval, which was a condition precedent before obtaining a building permit. The plans were approved by the neighborhood building association and thereafter the plans and specifications were taken to the New Orleans Department of Safety and Permits for issuance of a building permit. On 16 February 2005, the department issued a building permit for the construction of a two-story family residence at 114 Lark Street, the municipal address for Lot 36-C.

Construction of their home began in March 2005. By the end of August 2005, when Hurricane Katrina approached the city of New Orleans, the house had |4been framed, the windows and doors had been hung, sheeting had been installed upon the exterior walls of the house, and the roof had been covered with roofing felt, thus completely sealing the interior of the house from ordinary water intrusion. The Napolitanos thereafter evacuated to Florida and did not return to New Orleans until June of 2006, although Mr. Napolitano made visits to the city, partially to check on the house.

Hurricane Katrina destroyed much of the city’s critical infrastructure, including, but not limited to vital telecommunications services. Particularly, BellSouth’s 1976 telecommunications structure, which provided telecommunications services to the Lake-Vista Subdivision and surrounding neighborhoods, was ruined by flood waters. As such, it was necessary for Bell-South to construct and install the cabinet in Floral Park in order to restore and maintain telephone and other telecommunications services in the Lake-Vista Subdivision in the aftermath of Hurricane Katrina.

The cabinet houses the wires, fiber optic cables, and other electronic equipment necessary to transmit voice, data, and video. Additionally, the cabinet provides telephone, internet, and similar telecommunications services to BellSouth’s customers in the Lake-Vista Subdivision and to customers of other telecommunications providers who provide service over Bell-South’s transmission network.

Prior to Hurricane Katrina, BellSouth provided its telecommunications network services through large buried copper trunk cables that were interconnected |Rto the wires serving individual residences and buildings. Even though the cables were buried below ground, the interconnection between the trunk cables and the wires to individual homes occurred in facilities called “cabinets” and/or “cross boxes” that were located above-ground. Since 1976, BellSouth had one of its aboveground cross boxes in Floral Park, immediately adjacent to the current telecommunications network facility at issue in this litigation, the cabinet.

Because the flood waters destroyed Bell-South’s 1976 copper-wire based cross box, BellSouth decided to upgrade its network to fiber-optic cables in order to safeguard against wind, water, and flooding associated with future tropical storms or hurricanes. Given that fiber optic cables were involved, and building codes required new structures to be elevated (in a post-Katrina era), BellSouth’s new telecommunications network facility, the cabinet, had to be larger than the cross box that it replaced. Like the 1976 cross box, the cabinet would serve as the central interconnection point between the network of underground cables and wires to individual houses. As such, it had to be located where the cables and wires came together. After investigating several locations, it was decided that the best location was immediately adjacent to BellSouth’s damaged 1976 cross box in | ^Floral Park; the site was already an established interconnection point where the cables and wires converged.

Because OLD owned Floral Park, Gary Majors, BellSouth’s right-of-way agent, sought a 30 by 30 feet servitude from OLD granting BellSouth permission to construct and install the cabinet in Floral Park where it currently sits. In connection with its request for a servitude, BellSouth explained to OLD exactly what it intended to construct upon that servitude.

Mr. Majors conducted a title search of the public records of the Orleans Parish Conveyance Office, temporarily relocated to the Ernest N. Morial Convention Center due to Hurricane Katrina flood waters, for any encumbrances at the desired Floral Park location. Many of the conveyance records were flooded and others were being shipped to a depository in Maryland to be dried and restored. As such, the public records available at the Convention Center were sparse and often hard to locate. Mr. Majors found no encumbrances on the desired Floral Park location.

In its November meeting, OLD Planning, Engineering and Construction Committee discussed and recommended a servitude at “101 Lark Street.” Later, in follow up, OLD’s Board of Commissioners issued a resolution granting a servitude to BellSouth at “111 Lark Street.” At no time during any of OLD committee or board meetings did anyone mention that BellSouth actually wanted a servitude on a plot of land “opposite” the municipal address of 111 Lark Street, which would 17place the servitude in the middle of Floral Park. However, the parties understood that the cabinet would be placed at, or near, the location of the previous cross box.

At the 21 December 2005 OLD board meeting, a BellSouth representative presented the servitude documents for 111 Lark Street, New Orleans, which was executed by one of the authorized OLD representatives. An inspection of the records in the conveyance office revealed that the actual servitude granted was on land “opposite 111 Lark Street.” The representatives of BellSouth did not know about the Lake-Vista Building Restrictions so they were not taken into consideration. They were never mentioned by OLD.

BellSouth paid OLD $25,000 for the servitude. The servitude granted does not reference any Lake-Vista Building Restrictions or other encumbrances, and nothing in the servitude limits BellSouth’s ability to elevate the cabinet to protect its fiber optics from water damage.

In February 2006, BellSouth commenced work at the site in Floral Park to prepare to place the cabinet. By late May 2006, the cabinet was completed, and in place in Floral Park. When the Napolita-nos returned to their home after Hurricane Katrina, they found the cabinet built 53 feet from their property line.

BellSouth was intending to landscape around the cabinet, but before it could do so, the Napolitanos filed suit seeking a permanent injunction and obtained a preliminary injunction which directed that:

The status quo of the parties remains the same until a trial on the permanent mandatory and prohibitory injunction is heard before this Court.

|sThe Napolitanos filed suit against OLD and BellSouth, seeking a permanent injunction to void the servitude, removal of the cabinet, damages for trespass, mental anguish and inconvenience, and attorney’s fees.

A trial on the merits was held on 6 July 2011. The trial court rendered judgment in favor of OLD and BellSouth, denying the Napolitanos, request for injunctive relief and damages. In written reasons for judgment, the court reasoned:

Over a century ago, in State et al. v. Cumberland Telephone and Telegraph Co., [52 La.Ann. 1411], 27 So. 795 (La.1899), the Louisiana Supreme Court held that a telephone company can utilize rights of way over state lands without paying compensation. The Court based its decision on St. 1880, No. 124, a direct predecessor of La. R.S. 45:781. By its plain language the statute gives “[s]uch companies shall be entitled to the right of way over all lands belonging to the state.” This holding has never been overturned, and indeed, was reaffirmed by the Fourth Circuit in State Through Div. of Admin., State Land Office v. South Cent. Bell Telephone Co., 619 So.2d 749 [ (La.App. 4th Cir.1993).]

Addressing the plaintiffs’ argument that the right granted by La. R.S. 45:781 is subject to the subsequently adopted Lake-Vista Building Restrictions and servitudes, and that all owners in Lake-Vista should be compensated, the trial court stated,

The Court holds that [BellSouth’s] right came into being when the statute was passed. Arguing otherwise would imply that the right came into existence when BellSouth attempted to exercise it, which would lead to absurd results. For example a community that wished to eschew technology altogether could pass a building restriction forbidding all telephone lines whatsoever. Such subsequent building restrictions cannot trump the statute itself, nor make it so onerous as to be impractical. In the instant case, if BellSouth is subject to the building restrictions, then it must attempt to obtain consent from and make just compensation therefore from every resident of Lake Vista subdivision, even those who cannot see the control box, or are otherwise unaware of its existence.
|flThis seems to be the exact opposite of the intent of the 1880 statute and La. R.S. 45:781, which is to make it easier for companies that are in the business of “transmitting intelligence” to provide their services to residents of the state. Making BellSouth subject to building restrictions put into place after the statute leads to an absurd result; BellSouth must partake of extremely time consuming and (potentially) expensive negotiations with hundreds of people, many of which are not in proximity to (or even aware of) the control box.
The Court finds that the intent behind the statute is that once the right comes into existence, it cannot be bound by a subsequent servitude or building restriction, even if the right of way is not exercised until after such servitudes came into existence.

Consequently, the trial court denied the relief sought by the Napolitanos and this timely appeal followed.

The Napolitanos have assigned eight errors for review:

1.The trial court erred as a matter of law in ruling that La. R.S. 45:781, which provides telecommunication companies the right to use certain public property, applies to any and all state land, wherever located, whereas the statute clearly limits such use only to state property which is located along public roads or public works, or parallel to any railroads in the state, or along and over the waters of the state.
2. The trial court erred as a matter of law ruling that upon the passage of St. 1880, No. 124, the direct predecessor of La. R.S. 45:781, BellSouth was automatically vested with property rights on all land owned by the state, which preempts any servitudes that came into being after the year 1880, regardless of when BellSouth decides to exercise their rights to request and purchase servi-tudes in order to construct telephone lines.
3. The trial court erred as a matter of law in holding that BellSouth is allowed to construct telephone lines in violation of servitudes of other persons without having secured such right by consent, contract, or agreement of such other persons, or in its absence, by legal expropriation proceedings.
|104. The trial court erred as a matter of law in not granting Napolitanos’ injunction for removal of the offending structure.
5. The trial court erred as a matter of law in holding that the transaction between OLD and BellSouth conveying the servitude was a valid transaction.
6. The trial court erred as a matter of law in failing to find that OLD breached its duty to the Napolitanos to enforce the building restrictions which prohibited the placement of anything within Floral Park and requiring BellSouth to submit construction plans in compliance with the building restrictions.
7. The trial court erred as a matter of law in not allowing into evidence the Napolitanos’ proof of attorney’s fees incurred in the prosecution of the claim.
8. The trial court erred as a matter of law in not awarding damages for trespass, mental anguish, inconvenience and attorney’s fees.

The first issue before us is the correct interpretation of La. R.S. 45:781. Because this matter involves the interpretation of a statute, a question of law, it is reviewed under a de novo standard. Thibodeaux v. Donnell, 08-2486, p. 3 (La.5/5/09), 9 So.3d 120, 122. However, this case also involves factual determinations made by the court below; these are subject to review for manifest error. Rando v. Anco Insulations Inc., 08-1163, p. 29 (La.5/22/09), 16 So.3d 1065, 1087.

We begin with our analysis of La. R.S. 45:781, that states in pertinent part:

Corporations, domestic or foreign, formed for the purpose of transmitting intelligence by telegraph or telephone or other system of transmitting intelligence, may construct and maintain telegraph, telephone or other lines necessary to transmit intelligence along all public roads or public works, and along and parallel to any of the railroads in the state, and along and over the waters of the state, if the ordinary use of the roads, works, railroads, and waters are not obstructed, and along the |n streets of any city, with the consent of the city council or trustees. Such companies shall be entitled to the right of way over all lands belonging to the state and over the lands, privileges and ser-vitudes of other persons, and to the right to erect poles, piers, abutments, and other works necessary for constructing and maintaining lines and works, upon making just compensation therefor. If the company fails to secure such right by consent, contract or agreement upon just and reasonable terms, then the company has the right to proceed to expropriate as provided by law for railroads and other works of public utility, but shall not impede the full use of the highways, navigable waters, or the drainage or natural servi-tudes of the land over which the right of way may be exercised. [Emphasis supplied.]

As stated in Sensebe v. Canal Indemnity Co., 10-0703, pp. 8-9 (La.1/28/11), 58 So.3d 441, 447:

The starting point in the interpretation of any statute is the language of the statute itself. Words and phrases shall be read in context and shall be construed according to the common and approved usage of the language. La. R.S. 1:3. The meaning and intent of a law is determined by considering the law in its entirety and by placing a construction on the law that is consistent with the express terms of the law and with the obvious intent of the legislature in enacting the law.

We do not interpret the statute as urged by the Napolitanos. While companies “formed for the purpose of transmitting intelligence by telegraph or telephone or other system of transmitting intelligence” may construct its lines along the public roads, works, railroads, and waters of the state, their rights go further. These companies are also entitled to a right of way “over all lands belonging to the state and over the lands, privileges and servitudes of other persons.” This right of way in the second sentence of the statute is far broader than the right of way described in the first sentence.

It is undisputed that Floral Park is owned by OLD and hence the state. The issue thus is whether the building restrictions create a privilege and/or predial | ^servitude in favor of the Napolitanos, thereby requiring BellSouth to pay just compensation. The Napolitanos argue that the building restrictions do just that.

In Brier Lake, Inc. v. Jones, 97-2413, pp. 6-8 (La.4/14/98), 710 So.2d 1054, 1057-58, the Court addressed the issue of predial servitudes and building restrictions as follows:

In 1977, the Louisiana Legislature repealed Title V of Book II of the Louisiana Civil Code governing the surveying of lands and the fixing of limits and enacted a new Title V regulating building restrictions. Thus, building restrictions are now defined and governed by Articles 775-783 of the Louisiana Civil Code. These articles generally codified the existing jurisprudence, because prior to 1977 the Code did not specifically deal with building restrictions.
Building restrictions are defined as “charges imposed by the owner of an immovable in pursuance of a general plan governing building standards, specified uses, and improvements. The plan must be feasible and capable of being preserved.” La. C.C. art. 775. The comments to Article 775 describe building restrictions as “the most important category of restraints on the use or disposition of immovables from the viewpoints of urban and suburban developments in Louisiana.” La. C.C. art. 775, comment (d). “The requirements of an ancestor in title and of a general development plan are essential features of building restrictions as sui generis real rights.” Id.
Article 777 describes the nature and regulation of building restrictions as follows: “Building restrictions are incorporeal immovables and real rights likened to predial servitudes. They are regulated by application of the rules governing predial servitudes to the extent that their application is compatible with the nature of building restrictions.” La. C.C. art. 777. Although the comments to this article state that the article codified existing jurisprudence, the jurisprudence prior to 1977 had inconsistently treated building restrictions as predial servitudes, real obligations accompanying the land into the hands of the vend-ee, or covenants or equitable restrictions running with the land.
| rsThis Court has since consistently held that building restrictions “constitute real rights, not personal to the vendor, and inure to the benefit of all other grantees under a general plan of development, and are real rights running with the land; and that the remedy of the other grantees to prevent a violation of the restrictions by another is by injunction.” Diefenthal v. Longue Vue Management Corp., 561 So.2d 44, 51 (La.1990); Cashio v. Shoriak, 481 So.2d 1013, 1015 (La.1986); Oakbrook Civic Ass’n, Inc. v. Sonnier, 481 So.2d 1008, 1010 (1986).

In Diefenthal v. Longue Vue Foundation, 02-1470, pp. 18-19 (La.App. 4 Cir. 1/7/04), 865 So.2d 863, 875-76, we also examined the nature of building restrictions and their relationship to predial ser-vitudes:

Although building restrictions and predial servitudes are alike in that they both create real rights, these two concepts are different in at least three respects; to wit: (i) building restrictions may be imposed in the absence of a dominant estate, predial servitudes may not; (ii) building restrictions may impose affirmative duties that are reasonable and necessary for the maintenance of the general plan, predial servitudes may not; and (iii) building restrictions may exclude performance of certain juridical acts, predial servitudes may not. Patrick Johnson, Jr., Comment, The Civil Code Articles on Building Restrictions: A Cntical Analysis, 53 Tul. L.Rev. 588, 590 (1979).
Since the rules governing building restrictions are different from those governing predial servitudes, a classification issue is presented as to the precise nature of the rights created when restrictions are imposed by agreement among all the landowners. See La. C.C. art. 776 (providing that a building restriction may be imposed either by the owner of an immovable — i.e., the original developer — before the property is subdivided, or by all the owners of the affected immovable after the property is subdivided). The resolution of the classification issue h/⅛ a matter of contractual interpretation, resolved in the light of the facts of each case and in accordance with the intention of the parties.” La. C.C. art. 776, Comment (b). When there is any doubt as to the existence, validity, or extent of building restrictions, Article 783 requires that the matter be resolved in favor of unrestricted use of the immovable.

Later that same year, our brethren on the Second Circuit Court of Appeal, in Tri-State Sand & Gravel, L.L.C. v. Cox, 38,217, pp. 4-5 (La.App. 2 Cir. 4/7/04), 871 So.2d 1253,1256, came to the same conclusion:

Defendant argues that the real rights sought to be enforced by Tri-State are reciprocal predial servitudes. Defendant’s assertion is misplaced. Building restrictions are incorporeal immovables and real rights merely likened to predial servitudes. In addition, building restrictions are regulated by applying the rules governing predial servitudes to the extent that these rules are compatible with the nature of building restrictions. See, La. C.C. art. 777. Comment (d) to Article 777 notes that as sui generis real rights “akin” to predial servitudes, building restrictions are regulated by the “general rules applicable to predial servitudes, subject to certain modifications concerning the ... enforcement ... of building restrictions.”
Unlike predial servitudes, building restrictions may be imposed in the absence of a dominant estate. See, Comment (d) to La. C.C. art. 775. By definition, a predial servitude is a charge on a servient estate for the benefit of a dominant estate. La. C.C. art. 646. [Emphasis in original.]

Based upon the Civil Code and jurisprudence, we thus conclude that the building restrictions do not confer a predial servitude in favor of the Napolitanos. Therefore, BellSouth did not violate La. R.S. 45:781, and such precludes the necessity of consent by adjacent property owners, expropriation proceedings, or the payment of compensation.

The Napolitanos also argue that the cabinet violates Section XII I of the building restrictions that require that “all services, such as gas, telephone, power, |]fisewers, drains and water pipes shall be place underground from the property line to the building.” This restriction does not apply to Floral Park but from a landowner’s property line to his home that is, or will be built, on the lot purchased from OLD.

The Napolitanos further contend that nothing may be placed in a park (except Lake-Vista park) “to the detriment, inconvenience or annoyance of the resident or owner of any part or portion of ground or of adjacent property” as reflected in Section XIV of the building restrictions. We find that this does not apply to BellSouth because of La. R.S. 45:781. BellSouth made no such agreement where state-owned land was concerned. We find that OLD could grant a perpetual servitude to BellSouth in Floral Park for the purpose of constructing the cabinet.

The Napolitanos also contend that the transaction between OLD and BellSouth conveying the perpetual servitude was not valid. The resolution in question conveying the servitude is dated 18 January 2006.

Since 1976, BellSouth had a cross box in Floral Park behind 111 Lark Street. The cross box was about four feet tall by about two feet deep (below the ground) by about three to four feet wide. This box, which was copper line fed, was destroyed by the storm. It was decided that all new equipment would use fiber optic cables and be placed some distance above the ground to prevent future damage from flooding. The purpose of the cabinet is to turn the light that is transmitted by the fiber optic lines into electricity that can be used by consumers.

Representatives from OLD and Bell-South testified at trial that it was understood that the new cabinet be placed in approximately the same location as the ruined cross box. This was so that services could be restored to consumers 11fiquicker. While BellSouth referred to the cross box as the “111 Lark cross box,” that did not mean it was on the property of the homeowner; it was a designation so that the technician would know where to go for service calls and maintenance. Approximately between 900-1200 homes are serviced by that unit. It would cost about $500,000.00 to move the unit.

Both OLD and BellSouth agreed that the drawings and the original servitude recorded for that site did not exactly depict where the cabinet was actually placed; 101 Lark Street was listed, not 111 Lark Street. However, it was placed at or near the location of the earlier cross box. An act of correction was later filed in September 2010.

After hearing all the testimony, the trial court stated in its written reasons for judgment:

There was a considerable amount of testimony regarding whether the servitude BellSouth allegedly purchased from the Orleans Levee District was valid. The minutes of the November 9, 2005 Planning, Engineering and Construction Committee Meeting were presented, as well as the minutes of the Board of Commissioners of the Orleans Levee District meeting held on November 16, 2005. It is certainly true that the minutes of the Planning, Engineering and Construction Committee meeting referred to a perpetual servitude at “101 Lark Street” instead of 111 Lark Street. Nonetheless, the Board of Commissioners resolution clearly specifies 111 Lark Street, as does the Act of Correction issued on September 14, 2010.
It was alleged that the Orleans Levee District did not follow its own internal procedures, and therefore the servitude is invalid. The Court found the Orleans Levee District witness to be credible. He testified that the Board was desirous of restoring basic telephone service as quickly as possible in the aftermath of Katrina. The Court declines to find that the resolution passed by the Board of Commissioners of the Orleans Levee District resolution is improper and has no effect. Furthermore, given the possibility of a typographical error in the minutes of the 117Planning committee meeting, the fact that at least one other drawing shows the servitude to be located at 111 Lark Street, and the fact that the Court finds the testimony that Bell-South wished to place the current control box next to the 1976 control box credible, the Court finds the servitude to be properly located.

After reviewing the testimony given at trial, we cannot say that the trial court was manifestly erroneous in its determinations of credibility or in the conclusions reached. We also find the procedures of OLD to be valid and that the cabinet was placed where the parties intended. We are also cognizant of the suggestions of the court below concerning landscaping around the cabinet in “an aesthetically pleasing manner to provide a better view for nearby landowners.” The court also suggested that a gate be placed around the facility to protect local children playing in the park. We would agree that these are excellent suggestions.

Based on the foregoing, we affirm the judgment of the trial court.

AFFIRMED.

      . We use "OLD” herein to mean both the Board of Commissioners of the Orleans Levee District and the Orleans Levee District, any difference being meaningless for the purposes of this opinion.

      . We find the proper name of the subdivision to be "Lake-Vista,” although we note that by common usage the subdivision is known as "Lake Vista.”

      .At the time the facts of this case occurred, OLD was a political subdivision of Louisiana. As a result of post-Hurricane Katrina legislation, OLD ceased being a political subdivision and became a state agency effective 1 January 2007. The legislation did not change the fact that OLD is the owner of Floral Park; only the management and status of OLD changed.

      . Likewise, Floral Park contains a number of transformer vaults (the "vaults”) constructed and maintained by Entergy New Orleans, Inc. ("ENOI”). The vaults, that are approximately 14 feet by 14 feet by 7 feet high, were constructed and installed in Floral Park in the 1940s, before the Lake-Vista Subdivision Building Restrictions were adopted in 1947. The vaults house the equipment required to deliver electrical service to a number of nearby homes in Lake-Vista, using underground lines to connect between the vaults and customers' homes. The purpose of the vaults is to connect electric lines from customer’s homes to ENOI's electric distribution system. ENOI's electric distribution system is an underground service system, although the vaults are located above-ground. All homes in the Lake-Vista Subdivision receive underground electrical services.

      . Brier Lake was legislatively overruled by Act 309 of 1999, which amended La. C.C. arts. 776 and 780 (regarding amendments and termination of building restrictions), and 783 (regarding conflicts with the Louisiana Condominium Act, the Louisiana Timesharing Act, and the Louisiana Homeowners Association Act). Act 309 also enacted the Louisiana Homeowners Association Act, La. R.S. 9:1141.1 to 9:1141.9. These changes do not affect the dicta in Brier Lake regarding the differences between predial servitudes and building restrictions.

      . To the extent we have not addressed a specific assignment of error made by the Napoli-tanos, we pretermit a discussion thereof because our conclusions hereinabove make a discussion unnecessary.


source: Caselaw Access Project

license: Public Domain

text:
    Dwayne HALEY v. Cheryl G. LEARY.
    No. 2011-CA-1144.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 21, 2012.
    Rehearing Denied April 13, 2012.

      See also, 942 So.2d 55 and 69 So.3d 430.
    Dwayne Haley, Harvey, LA, Plaintiff/Appellant, In Proper Person.
    Lawrence J. Boasso, Scott G. Jones, In-abnet & Jones, L.L.C., Mandeville, LA, for Defendant/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME).
   MAX N. TOBIAS, JR., Judge.

11 This litigation arises from an ongoing child custody dispute between the plaintiff/appellant, Dwayne Haley, and the mother of the minor child, Cheryl G. Leary. Mr. Haley was awarded in forma pauperis status that allows him to avoid the payment of all costs in advance or as they accrue. La. C.C.P. art. 5181. This court has addressed numerous and continuous issues between Mr. Haley and Ms. Leary in several prior filings by Mr. Haley.

In January 2011, Mr. Haley filed a motion for contempt against Beverly Howze, Ph.D. Dr. Howze was appointed by the trial court to perform an evaluation of Mr. Haley, Ms. Leary, and the minor child to assist the court in the underlying child custody matter. Mr. Haley sought the return of the evaluation fee he paid Dr. Howze. Mr. Haley later filed a rule to show cause why Dr. Howze | ¡.should not be “removed from the Judiciary list of Court appointed custody evaluators.”

In response to the motions for contempt, Dr. Howze filed a cross motion for contempt, as well as an exception of no right of action. This latter pleading addressed the issue of the immunity afforded to court-appointed experts.

The matters were heard on 22 March 2011, at which time the trial court granted the exception of no right of action, thereby dismissing the motion for contempt filed by Mr. Haley. The trial court also denied Dr. Howze’s cross motion for contempt, as well as Mr. Haley’s rule to have Dr. Howze removed from the judicial list of court appointed custody evaluators. The judgment was signed on 30 March 2011.

Thereafter, Mr. Haley filed motions for new trial and to vacate and set aside the judgment, as well as a motion to correct and complete the record. All these motions were denied.

Mr. Haley appealed, arguing that the trial court erred by ruling in Dr. Howze’s favor on his motion to be reimbursed for the fee paid for the evaluation and denying her removal from the judicial list of approved court appointed custody evaluators. He also argues that the trial court did not have jurisdiction over the matter while his writ of certiorari was pending before the United States Supreme Court.

When deciding whether to hold someone in contempt, the trial court is vested with great discretion. City of Kenner v. Jumonville, 97-125, 97-210, 97-602 3(La.App. 5 Cir. 8/27/97), 701 So.2d 223; Reeves v. Thompson, 95-0321 (La.App. 4 Cir. 12/11/96), 685 So.2d 575. The manifest error rule is used when an appellate court is called to review the propriety of civil contempt orders. Parish of Jefferson v. Lafreniere Park Foundation., 98-345 (La.App. 5 Cir. 9/15/98), 720 So.2d 359.

The law in this state is clear and unequivocal: court-appointed experts are afforded absolute immunity as stated by the Louisiana Supreme Court in Marrogi v. Howard, 01-1106, pp. 13-14 (La.1/15/02), 805 So.2d 1118, 1127:

A few Louisiana courts have discussed absolute judicial immunity from civil suit in the context of court-appointed experts. In S.T.J. v. P.M., 556 So.2d 244 (La.App. 2nd Cir.1990), the court held that three psychologists appointed by the court during a custody dispute to evaluate an allegation of sexual abuse of a minor were entitled to absolute judicial immunity from any tort liability asserted in a subsequent suit filed by the losing parent. The court reasoned that the appointed professionals were non-judicial persons fulfilling quasi-judicial functions and, pursuant to La.Code Civ. Proc. art. 373, are classified as officers of the court with functions intimately related to the judicial process. Therefore, such court-appointed experts are entitled to absolute judicial immunity, as are judges, protecting them from having to litigate the manner in which they perform these functions. 556 So.2d at 247, relying on Myers v. Morris, 810 F.2d 1437 (8th Cir.1987) (psychologists-therapists who evaluated child victims of alleged sexual abuse have absolute immunity for damages arising from their performance of delegated functions). The court opined, “Should they be found unprotected by such immunity, it can be envisioned that psychologists would seek to avoid future court appointments and that fear of civil liability could mar opinions and recommendations given to the court.” 556 So.2d at 247.

La. C.C.P. art. 373 supports the Court’s conclusion:

14An expert appointed by a trial court to assist it in the adjudication of a case in which his special skill and knowledge may aid the court is an officer of the court from the time of his qualification until the rendition of final judgment in the case.

Consequently, this assignment of error is without merit.

Next, Mr. Haley argues that the trial court erred when it declined to remove Dr. Howze from the judicial list of court appointed custody evaluators. While it is an assigned error, Mr. Haley does not address the assignment of error in his brief. The testimony from the hearing does not shed light on the matter. Therefore, we do not have sufficient facts to properly review this assignment of error. In any event, based on what we have in the record before us, we find that the trial court was not manifestly erroneous when it denied Mr. Haley’s rule to show cause against Dr. Howze.

The final assignment of error concerns Mr. Haley’s filing of a writ of cer-tiorari pending before the United States Supreme Court; the writ concerns Mr. Haley’s in forma pauperis status. Mr. Haley argues that the trial court did not have jurisdiction to hear the contempt matters because of the pending writ application. We disagree.

Mr. Haley’s in forma pauperis status concerns only the payment of costs for filing and proceeding with this case; it has no substantive impact on the issues presented in this case or the appeal. We also note that this jurisdictional issue was not raised by Mr. Haley before the trial court except for the issue regarding Mr. Haley’s in foma pauperis, which was continued until the United States Supreme Court issued a decision on his pending writ. Consequently, we find that the Impending writ did not interdict the remaining issues then pending before the trial court. In any event, the United Supreme Court has denied Mr. Haley’s application. Haley v. Leary, — U.S. —, 132 S.Ct. 104, 181 L.Ed.2d 32 (2011)

The court understands Mr. Haley’s frustration with his ongoing custody battle with the mother of his child. But not every adverse decision to a party to litigation arises out of bias and/or conspiracy. Arguing bias and/or conspiracy prolongs the litigation process, and brings one no closer to a resolution of his or her case.

Based on the foregoing, we affirm the decision of the trial court at appellant’s cost.

AFFIRMED.

BAGNERIS, J., concurs in the result.

      . In die latest matter before this court, we affirmed the judgment of the trial court, but noted from the record that Mr. Haley was employed as a member of the staff at the First City Court of the City of New Orleans. We, therefore, remanded the matter to the district court for a contradictory hearing to determine whether his in forma pauperis status should be revoked. See Haley v. Leary, 09-1626 (La.App. 4 Cir. 8/4/10), 69 So.3d 430, writ denied 10-2265 (La.12/17/10), 51 So.3d 14. That issue was reviewed by the United States Court based on an application for a writ for certiorari filed by Mr. Haley, and the application was denied. Haley v. Leary, — U.S. —, 132 S.Ct. 104, 181 L.Ed.2d 32 (2011).

      . La. C.C.P. art. 2164.


author: ROSEMARY LEDET, Judge.'

text:
    STATE of Louisiana v. John CUNNINGHAM.
    No. 2011-K-0886.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 21, 2012.

      Bruce Gerald Whittaker, Kimya M. Holmes, Meghan C. Harwell, New Orleans, LA, for Relator/John Cunningham.
    Leon A. Cannizzaro, Jr., District Attorney, Orleans Parish, Matthew Caplan, Assistant District Attorney, New Orleans, LA, for Respondent/State of Louisiana.
    (Court composed of Judge TERRI F. LOVE, Judge JOY COSSICH LOBRANO, Judge ROSEMARY LEDET).
   ROSEMARY LEDET, Judge.'

| ¶ This application for supervisory writ is before the court on remand from the Louisiana Supreme Court. The sole issue is whether the district court correctly denied a motion to suppress evidence seized pursuant to a search warrant for a residence.

STATEMENT OF THE CASE

In August 2010, the Relator, John Cunningham, and three codefendants (Arthur Grandpre; Phillip Dominick, III; and Gerald Williams, Jr.) were indicted on one count each of first degree murder and conspiracy to commit first degree murder. They all plead not guilty to the charges.

In March 2011, the district court heard various suppression motions and took the matters under advisement. In April 2011, the district court denied the defense motion to suppress evidence seized from Mr. Williams’ house pursuant to a search warrant. From that decision, Mr. Cunningham filed a writ application with this court. Noting that the Relator would have an adequate remedy on appeal if ultimately convicted, this court denied his writ. State v. Cunningham, 11-0886 (La.App. 4 Cir. 8/4/11) (unpub.). The Louisiana Supreme Court granted Mr. Cunningham’s writ and remanded to this court “for briefing and argument to ^address the defendant’s motion to suppress.” State v. Cunningham, 11-1924 (La.1/13/12), 77 So.3d 954. On remand, we entertained additional oral and written argument from both sides. For the reasons that follow, we find no error in the district court’s denial of the motion to suppress and deny Mr. Cunningham’s writ.

STATEMENT OF THE FACTS

The charges in this case stem from a shooting that occurred in February 2010 in the 2300 block of D’Abadie Street in New Orleans. One victim was killed, David Neiswonger; and another victim was wounded, Glen Holly. The lead investigator of the shootings, Detective Orlando Matthews, testified at the March 2011 motions hearing that he developed Mr. Grandpre as the suspected gunman in the shootings. Detective Matthews showed a lineup containing Mr. Grandpre’s photograph to a female witness, who was not an eyewitness to the shooting. She identified Mr. Grandpre as the shooter and noted that he dated her sister. Detective Matthews also showed the lineup to the surviving victim, Mr. Holly. Mr. Holly, however, was unable to make any identification. Using a more recent photograph of Mr. Grandpre, Detective Matthews compiled a second lineup. From the second lineup, Mr. Holly identified Mr. Grandpre as the man who shot him and the deceased.

Further information led Detective Matthews to suspect that Mr. Williams was the person who drove Mr. Grandpre to the scene of the shooting. According to Detective Matthews, Mr. Holly told him that earlier on the morning of the shooting he saw a red Mustang pass by the residence. When Detective Matthews showed Mr. Holly a lineup containing Mr. Williams’ photograph, Mr. Holly identified Mr. Williams as the man whom he saw driving the Mustang that morning several hours before the shooting. Mr. Holly indicated that he often saw this Mustang in the ^neighborhood parked near the residence where the shooting occurred. Mr. Holly also indicated that the man who shot him and the deceased was a passenger in the Mustang when it passed by the residence earlier that morning. Detective Matthews admitted that another man and woman were also present in the residence when the shooting occurred, but they were in another room. Because they both were so impaired by substance use at the time of the shooting that they would have been unable to make any identification, Detec-five Matthews did not show either of them a lineup.

Based upon a jailhouse tip, Detective Matthews subsequently interviewed Mr. Dominick at police headquarters. After being advised of his Miranda rights and waiving those rights, Mr. Dominick gave a statement admitting that he spoke over the telephone with Mr. Cunningham (the Relator), who at that time was incarcerated in connection with an unrelated murder. In his statement, Mr. Dominick told the detective that during his telephone conversation with Mr. Cunningham, Mr. Cunningham told him that Mr. Holly must have been “talking.” Detective Matthews stated that Mr. Cunningham “basically” put a “hit” out on Mr. Holly. Detective Matthews testified that the verbiage used by Mr. Dominick and Mr. Cunningham during the call, which was recorded as a matter of routine by the sheriffs office, paralleled that used in the movie State Property. Detective Matthews testified that Mr. Dominick admitted Mr. Williams later called him and told him that he and Mr. Grandpre had “taken care of the matter.”

After obtaining Mr. Dominick’s statement, Detective Matthews obtained search warrants for the red Mustang, which belonged to Mr. Williams’ mother, and for 4147 Bayouview Court, the residence where Mr. Williams and his mother lived. Evidence was seized from both the vehicle and the residence.

|4In the affidavit for the warrant to search the vehicle, the red Mustang, Detective Matthews attested to the following:

• He began investigating the shootings at 2327 D’Abadie in February 2010.
• His investigation revealed the shootings were part of an attempt to kill a witness to a separate homicide.
• He learned that the Mustang took the shooter to the crime scene and may-have helped the shooter leave from the scene.
• The surviving victim said that the gunman should have had blood on his clothing due to a struggle that occurred during the shooting.
• He learned that the driver of the Mustang was “Gerald,” and the registered owner of the Mustang that was the subject of the search warrant had a son named “Gerald.”
• The owner’s son was connected to jailhouse recordings with a suspect in jail for the earlier homicide.
• The Mustang may contain evidence to connect “Gerald” to the homicide and others already arrested.

Based upon this affidavit, Detective Matthews obtained a warrant to search the red Mustang on June 16, 2010.

On the following day, Detective Matthews submitted an almost identically worded affidavit to the same magistrate to obtain a warrant to search 5147 Bayouview Court, Mr. Williams’ residence. The affidavit included the misstatement that Detective Matthews learned that “the above listed vehicle” (apparently referring to the red Mustang registered to Mr. Williams’ mother) was used to transport the shooter to the scene and possibly to transport him from the scene after the shooting. The only difference between the two affidavits concerned language at the end of the affidavit for the residence stating: “Gerald has been |sheard on jail records indicating his part in the murder and he indicated the part the shooter played in the murder.” Pursuant to this affidavit, Detective Matthews obtained a warrant to search 5147 Bayouview Court, Mr. Williams’ residence.

On the same date that Detective Matthews sought and obtained the search warrant for Mr. Williams’ residence, he also obtained a warrant for Mr. Williams’ arrest. The arrest warrant was obtained before the search warrant for the residence. In the affidavit for the arrest warrant, Detective Matthews recounted that he investigated the shooting and that he learned from several arrested subjects that the shooting was an attempt to kill a witness to a separate homicide. The affidavit further stated that Detective Matthews also learned that the vehicle that took the shooter to the residence, and also may have driven him away after the shooting, was a red Mustang and that the driver of the Mustang was a subject known as “Gerald.” The affidavit still further stated that subsequent investigation revealed that the owner of the suspected Mustang has a son named Gerald, who resided at 5147 Bayouview Court. Detective Matthews ran a search and learned that Gerald Williams had previously been arrested with Mr. Cunningham, who was in jail at that time for the earlier murder. The affidavit noted that Mr. Williams had admitted his involvement in the present murder and attempted murder at 2327 D’Aba-die Street, providing details including that he waited outside while the shooter went inside to murder the deceased.

DISCUSSION

In the present writ, the Relator contends that the district court erred in denying the motion to suppress the evidence seized from the residence. Although Isthe evidence that the Relator seeks to suppress was seized from Mr. Williams’ residence, not his own residence, the Relator nonetheless has standing to challenge the admissibility of this evidence. Standing to contest an illegal search is conveyed by Article 1, § 5 of the Louisiana Constitution to any person who is “adversely affected” by the search or seizure. State v. Lewis, 08-0172, p. 3 (La.App. 4 Cir. 6/25/08), 988 So.2d 789, 790-91 (citing State v. Gant, 93-2895 (La.5/20/94), 637 So.2d 396). Among the items seized from Mr. Williams’ residence were an Orleans Parish Sheriffs Office visitor card in Mr. Williams’ name, allowing him to visit the Relator in jail, and a video of the movie State Property. Because the visitor card positively links Mr. Williams to the Relator, the Relator has standing to contest the admissibility of the items seized from Mr. Williams’ residence.

Probable cause for the issuance of a search warrant is shown “when the facts and circumstances within the affiant’s knowledge and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched.” State v. Johnson, 408 So.2d 1280, 1283 (La.1982); see also State v. Green, 02-1022, pp. 6-7 (La.12/4/02), 831 So.2d 962, 968; State v. Fournette, 08-0254 (La.App. 4 Cir. 7/2/08), 989 So.2d 199. “Additionally, a search warrant must establish a probable continuing nexus between the place sought to be searched and the property sought to be seized.” State v. Casey, 99-0023, p. 4 (La.1/26/00), 775 So.2d 1022, 1028 (citing State v. Weinberg, 364 So.2d 964, 968 (La.1978)). The affidavit also must set forth sufficient information to enable a magistrate “to determine that the charges are not capricious and are sufficiently supported to justify bringing into play the further steps of the criminal justice system.” State v. Rodrigue, 437 So.2d 830, 833 (La.1983); Foumette, | -¿supra. At that stage the magistrate must determine if the affidavit sets forth sufficient facts, within the “four corners” of the warrant, to conclude “that there is a fair probability that evidence of a crime or contraband will be found in the place described in the warrant.” Fournette, 08-0254 at p. 25, 989 So.2d at 215.

A reviewing court’s task is to insure that under the totality of the circumstances the issuing magistrate has a “substantial basis” for finding that probable cause existed. Green, 02-1022 at p. 8, 831 So.2d at 969 (citing Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). “The process of determining probable cause for the issuance of search and arrest warrants does not involve certainties or proof beyond a reasonable doubt, or even a prima facie showing, but rather involves probabilities of human behavior, as understood by persons trained in law enforcement and as based on the totality of circumstances.” Rodrigue, 437 So.2d at 832-33 (citing Gates, supra).

Furthermore, “if the magistrate finds the affidavit sufficiently detailed and reliable to show probable cause, reviewing courts should interpret the affidavit in a realistic and common sense fashion, aware that it is normally prepared by non-lawyer police officers in the midst and haste of a criminal investigation.” Green, 02-1022 at p. 8, 831 So.2d at 969. “Within these guidelines, courts should strive to uphold warrants to encourage their use by police officers.” Id. Accordingly, “[t]he magistrate’s determination of probable cause, prior to issuance of a search warrant, is entitled to significant deference by the reviewing court and marginal cases should be resolved in favor of finding the magistrate’s assessment to be reasonable.” Rodrigue, 437 So.2d at 833.

The defendant bears the burden of proof to show that evidence seized pursuant to a search warrant should be suppressed. State v. Williams, 03-0302, p. 5 8(La.App. 4 Cir. 10/6/03), 859 So.2d 751, 754; La.C.Cr.P. art. 703 D. The defendant in this case (the Relator) argues that the affidavit for the warrant to search the residence does not set forth probable cause to believe that evidence of the murder would be found there. He further argues that the good faith doctrine enunciated in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), does not apply in this case because the affidavit was so lacking in evidence to support a finding of probable cause that Detective Matthews could not have reasonably relied upon the validity of the warrant in good faith. He notes that the affidavit for the residence, which apparently was copied almost word-for-word from the affidavit for the search warrant for the vehicle, does not set forth a basis for the magistrate to find that there was probable cause for the issuance of the warrant. The Relator’s argument on this point is persuasive.

The affidavit for the residence does not contain any information that ties the residence to the murder or even to anyone arrested for the murder. The affidavit mistakenly includes the allegation that “the above listed vehicle,” meaning the Mustang, took the shooter to the scene of the crime. The affidavit states that the Mustang was registered to a woman who had a son named “Gerald” and that “Gerald” was connected to recordings of phone calls from jail concerning the murder of the deceased in this case. However, the affidavit contains no allegation that “Gerald” lived at the Bayouview residence or that the Mustang was registered to a woman who lived at that address. Thus, the affidavit by itself fails to set forth probable cause for the magistrate to believe that there was evidence of the murder at the residence.

19Nonetheless, evidence seized pursuant to a warrant that is ultimately found not to contain probable cause for its issuance need not be suppressed “if the officers who executed the warrant believed it to be validly issued.” State v. Long, 03-2592, p. 6 (La.9/9/04), 884 So.2d 1176, 1180 (citing Leon, supra). The Court in Leon based its ruling on the purpose of the exclusionary rule — to deter police misconduct — and found that suppression is not necessary unless some sort of police misconduct was implicated. The Court in Leon, however, set forth four instances in which the good faith doctrine would not apply: (1) where the affiant misled the magistrate by including misleading statements in the affidavit that the affiant knew were false or that he should have known were false in the , absence of a reckless disregard for the truth; (2) where the magistrate abandoned his detached and neutral role; (3) where the affidavit was “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable;” or (4) where the warrant was so facially deficient that the officers could not presume it to be valid. Leon, 468 U.S. at 923, 104 S.Ct. at 3421.

This court has declined to apply the Leon good faith doctrine when information contained in an affidavit for a warrant was gleaned through an illegal arrest and when an affidavit contained unreliable information from an out-of-state officer. See State v. Scull, 93-2360 (La.App. 4 Cir. 6/30/94), 639 So.2d 1239; State v. Snee, 99-0257 (La.App. 4 Cir. 9/1/99), 743 So.2d 270. In Snee, this court noted that upholding the seizure of evidence in these situations would reward officers for reliance on misconduct by other officers.

1 inIn Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009), the United States Supreme Court reiterated its holding in Leon, supra, that the exclusion of evidence is mandated only when there has been some sort of police misconduct. In Herring, soon after notifying the arresting officers about the warrant, officers in the other department learned that the warrant had been recalled but the recall had not been placed in the computer. The officers immediately contacted the arresting officers, but the arresting officers had already searched the defendant and found contraband. The Supreme Court upheld the lower courts’ rulings that refused to suppress the evidence, noting that the question of the exclusion of the evidence “turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct.” Herring, 555 U.S. at 137,129 S.Ct. at 698.

Reiterating that the express purpose of the exclusionary rule is to deter police misconduct, the Supreme Court in Herring found that there was no improper conduct that led to the defendant’s arrest. The Court noted that although the district court found the error on the part of the other police department was negligent, it was neither reckless nor deliberate. The Court further noted that the error did not require “the extreme sanction of exclusion,” because there was no police misconduct that suppression of the evidence would deter. Herring, 555 U.S at 140, 129 S.Ct. at 700, The Court explained that the exclusionary rule is triggered when “police conduct [is] sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Herring, 555 U.S at 144, 129 S.Ct. at 702.

Similarly, in State v. Santamarina, 10-0028 (La.App. 4 Cir. 11/10/10), 51 So.3d 822, this court affirmed the trial court’s denial of a motion to suppress evidence seized pursuant to a warrant. Among other arguments, the defendant |ncontended that the affidavit for the warrant failed to mention that before obtaining the warrant, the officers had arrested the defendant and found no drugs on his person. He argued that this omission rendered the search warrant invalid. This court disagreed. Citing Leon, we noted that the omission of this information did not show any indication of police misconduct that would show any bad faith on the affiant’s part and that this omission did not render the affidavit so deficient that the officers who executed the warrant could not in good faith believe that it was valid.

In this case, the Relator acknowledges the Leon good faith doctrine, but he contends that it does not apply because a reading of the affidavit shows that it obviously failed to set forth probable cause for the issuance of the warrant and that the officers were entirely unreasonable in relying upon it. Contrary to the Relator’s contention, we find it more likely that Detective Matthews, when preparing the affidavit for the residence, mistakenly copied most of the affidavit that he prepared the day before for the warrant to search the Mustang; and he simply forgot to include the link from the Mustang to the residence. Indeed, as pointed out by the State, the missing information was included in Detective Matthews’ affidavit for Mr. Williams’ arrest, which he prepared and presented to the same magistrate on the same day that he prepared and presented the affidavit for the search warrant for the residence. The affidavit for the arrest warrant was presented to the magistrate and signed by him at 3:40 p.m. on June 17, 2010. The affidavit for the search warrant for the residence was presented to the same magistrate and signed by him at 4:10 p.m. on the same date. When the magistrate signed the search warrant for the residence, he was aware of the connection between the Mustang and the residence from the affidavit for the arrest warrant. 11gThe misconduct contemplated by Leon that would prevent the district court or this court from applying the good faith doctrine is not present here.

The Relator also contends that the information a magistrate can consider must be within the “four corners” of the affidavit. However, in State v. Barrilleaux, 620 So.2d 1317 (La.1993), cited by the State, the Louisiana Supreme Court held that a magistrate can consider not only the information contained in the affidavit, but also information orally supplied to the magistrate at the time that the affiant seeks the warrant. The Louisiana Supreme Court refused to apply the exclusionary rule to instances where the magistrate is orally apprised of information that is not included in the affidavit but which if it had been included would have provided probable cause for the issuance of the warrant. Such is the case here.

The only information missing in the affidavit for the search warrant for the residence is the link between the Mustang used in the shooting and the residence. This information was included in the affidavit for Mr. Williams’ arrest warrant that was presented to the same magistrate a few minutes earlier. Moreover, as the district court noted at the hearing on the motion to suppress, “[t]he Magistrate could have said, is this the address of Gerald and he [(Detective Matthews)] could have said, oh, yes, I forgot to put that in there.” The district court further noted that:

“[T]he search warrant for the house does not indicate that the house is, in fact, the address of Gerald; however, that’s the only person we’re talking about in this search warrant and the search warrant for the vehicle states that the vehicle is registered to the suspect, Gerald’s mother and it has been traced back to this particular address. And so I think that there was enough information for the Magistrate to sign that search warrant. I don’t believe that the Magistrate was purposefully misled in this instance, based on what I see and based on the evidence that I now know the Detective had at the time.”

| isThe district court still further noted that the Relator’s argument may have been stronger had it been two different magistrates, but it was the same magistrate.

In sum, we find that Detective Matthews’ failure to include information in the affidavit for the search warrant linking the residence to the Mustang used in the shooting was an apparent oversight. Nonetheless, the magistrate was aware of this link because it was contained in the affidavit for Williams’ arrest warrant, which the magistrate read and signed mere minutes before reading the affidavit for the search warrant for the residence. Detective Matthews and the other officers were not unreasonable in relying on the validity of the search warrant for the residence. Nor is there evidence of any police misconduct on Detective Matthews’ part. Given these circumstances coupled with the fact that the magistrate was in possession of the information linking the residence to the Mustang before he signed the search warrant for the residence, none of the exceptions to the good faith doctrine applies to this case. Thus, the district court did not err in denying the motion to suppress the evidence seized from the residence. Accordingly, the Relator’s writ application is denied.

WRIT DENIED

      . An almost identically worded affidavit was submitted to search the residence, 4147 Bay-ouview Court.

      . The Relator does not object in this writ to the district court’s denial of the motion to suppress the evidence seized from the Mustang, nor does he object to the admissibility of the tapes of his phone conversations from jail.

      . Under the good faith doctrine enunciated in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), evidence seized pursuant to a warrant need not be suppressed if the officers who executed it acted in good faith that the warrant was properly issued.


text:
    STATE of Louisiana in the Interest of K.G.
    No. 2011-CA-1559.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 21, 2012.
    Tenee Felix, Juvenile Regional Services, New Orleans, LA, for appellant.

      Leon A. Cannizzaro, Jr., District Attorney, Matthew Caplan, Assistant District Attorney, New Orleans, LA, for appellee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., JUDGE MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME).
   MAX N. TOBIAS, JR., Judge.

_JjThe defendant, K.G., appeals from her adjudication as a juvenile delinquent based upon her tampering with surveillance or electronic monitoring equipment in violation of La. R.S. 14:110.3 on the grounds that the evidence is insufficient to sustain an adjudication of delinquency as to the petition charged. For the following reasons, we affirm the juvenile court’s adjudication of K.G. as a delinquent child.

FACTS AND PROCEDURAL BACKGROUND

K.G. was a participant in the New Orleans Police Department’s (“NOPD”) Electronic Monitoring Program (“EMP”) and, as such, had an electronic monitoring device, ie., an ankle bracelet, affixed to her person. On 15 September 2011, K.G. was petitioned with one count of tampering with surveillance or electronic monitoring equipment in violation of La. R.S. 14:110.3. That same day, K.G. appeared in juvenile court for a continued custody hearing and was not wearing the ankle bracelet. At the close of the custody hearing, the court found probable cause for K.G.’s arrest for violation of La. R.S. 14:110.3. K.G. entered a denial to the petition charged.

12An adjudication hearing was held in this matter on 11 October 2011. The prosecution presented the testimony of Officer Shannon Brewer and Deputy Earl Fox. Both officers are assigned to the NOPD’s “electronic monitoring” section. K.G. presented no witnesses.

Officer Brewer testified that at 1:50 a.m. on the morning of 12 September 2011, she received an alert from the ankle bracelet attached to the person of K.G. indicating the electronic monitoring device had been removed. Officer Brewer stated that she personally affixed the bracelet to KG.’s ankle and was responsible for the electronic monitoring of K.G. While Officer Brewer did not personally observe K.G. remove the ankle bracelet on the morning of 12 September 2011, and had no personal knowledge regarding the circumstances under which the device was removed from KG.’s person, she testified that only NOPD personnel responsible for electronic monitoring are authorized to remove the devices from the defendants that participate in the EMP. It is undisputed that no such authorized person removed KG.’s ankle bracelet.

Deputy Earl Fox likewise testified at KG.’s adjudication hearing. He stated that he responded to a call on 12 September 20011, immediately after receiving a tamper alert from K.G.’s monitoring device indicating that the ankle bracelet had been removed. Deputy Fox recovered the device at its last recorded location, which was on the ground at the intersection of Buffalo Road and Wales Street in New Orleans. K.G. was not in the area where the bracelet was recovered. Upon his arrival, Deputy Fox observed that the pins within the bracelet had been pulled out. According to Deputy Fox, once the bracelet is locked into place, the only way to remove the device is by intentionally breaking the pins that secure the device to the ankle, which is done by using a tool specifically designed for this purpose. l3While he did not personally observe K.G. or anyone else remove the device, because of the way the pin was broken at the top and the bottom part of the pin was not loosened, Deputy Fox stated that he was able to confirm that the electronic monitoring device had been tampered with.

At the conclusion of the hearing, K.G. was adjudicated delinquent for tampering with surveillance or electronic monitoring equipment and was committed to the Department of Public Safety and Corrections for three months. KG. timely filed the instant appeal.

ASSIGNMENT OF ERROR

The sole issue presented for our review is whether the evidence presented at the adjudication hearing was sufficient to adjudicate K.G. delinquent of La. R.S. 14:110.3, tampering with surveillance or electronic monitoring equipment.

STANDARD OF REVIEW

In order to adjudicate a child delinquent, the state must prove beyond a reasonable doubt that the child committed every element of the offense alleged in the petition. La. Ch.C. art. 883. The standard for the state’s burden of proof is no less strenuous than the standard of proof required in a criminal proceeding against an adult. State ex rel. T.C., 09-1669, p. 2 (La.App. 4 Cir. 2/16/11), 60 So.3d 1260, 1262; State in the Interest of A.G., 630 So.2d 909, 910 (La.App. 4th Cir.1993). When a conviction is based on circumstantial evidence, La. R.S. 15:438 requires that such evidence “must exclude every reasonable hypothesis of innocence.” State in the Interest of C.B., 09-1114, p. 6 (La.App. 4 Cir. 12/16/09), 28 So.3d 525, 528. As a court of review, we grant great deference to the juvenile court’s |4factual findings, credibility determinations, and assessment of witness testimony. State ex rel. W.B., 08-1458, p. 1 (La.App. 4 Cir. 4/22/09), 11 So.3d 60, 61.

In evaluating the sufficiency of evidence to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This standard of review is applicable in juvenile delinquency cases. State in the Interest of T.E., 00-1810, p. 4 (La.App. 4 Cir. 4/11/01), 787 So.2d 414, 417.

In addition, La. Const, art. V § 10(B) mandates that an appellate court review both law and facts when reviewing juvenile adjudications. Therefore, as in the review of civil cases, a factual finding made by a trial court in a juvenile adjudication may not be disturbed by an appellate court unless the record evidence as a whole does not furnish a basis for it, or is clearly -wrong. See State in the Interest of Batiste, 367 So.2d 784 (La.1979); State in the Interest of S.S., 557 So.2d 407 (La.App. 4th Cir.1990); State ex rel. E.D.C., 39,892 (La.App. 2 Cir. 5/11/05), 903 So.2d 571. In sum, we apply the “clearly wrong-manifest error” standard of review to determine whether there is sufficient evidence to satisfy the standard of proof beyond a reasonable doubt.

LAW AND ANALYSIS

La. R.S. 14:110.3 defines the crime of tampering with surveillance or electronic monitoring equipment and provides, in pertinent part:

A. No person shall intentionally defeat, degrade, tamper, damage, alter, destroy, remove, disable, obstruct, or impair in any way the operation of any surveillance ... or monitoring system of any nature or purpose, including but not limited to any of the following:
|B(1) Removing, damaging, altering, destroying, tampering with, or temporarily or permanently delaying or interrupting the internal or external signal or electronic wire or wireless analog or digital transmissions of any surveillance ... or monitoring system.
C. (1) Whoever commits the crime of tampering with surveillance ... or monitoring systems shall be fined not more than one thousand dollars, imprisoned with or without hard labor for not more than one year, or both.

KG. argues the evidence was insufficient to sustain the trial court’s adjudication of delinquency beyond a reasonable doubt because the evidence presented by the state through the testimony of Officer Brewer and Deputy Fox was entirely circumstantial and failed to exclude every hypothesis of innocence. Specifically, K.G. presented two alternative hypotheses regarding how the device could have come off her ankle: (1) the device could have fallen off; or (2) someone else could have removed the bracelet from her ankle without her consent.

When analyzing circumstantial evidence, La. R.S. 15:438 provides that the fact finder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence (not merely every conceivable alternative theory). However, when a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. See State in the Interest of R.L.K., 95-1277, p. 6 (La.App. 1 Cir. 12/19/95), 666 So.2d 427, 431.

While KG. presented these two alternative hypotheses under which the monitoring device could have been removed from her person at the hearing, KG.’s suggestion that the device could have “fallen off’ of her ankle was rebutted by | r,Deputy Fox’s testimony that the device, once locked, can only be removed by intentionally breaking the pins, making this theory implausible or unreasonable. In other words, according to the trial testimony, it is impossible for the device to simply “fall off’ of a defendant’s ankle as posited by KG.

KG.’s next hypothesis — that the device could have been removed from KG. without her consent — is likewise implausible and unreasonable. The testimony adduced at trial established that, by design, the device is difficult to remove and is normally done so by using a specifically designed tool. Once removed from KG., the ankle bracelet was left in the exact location where the device signaled a tamper alert. The testimony further established that when K.G. spoke to Officer Brewer following the removal of the device from her ankle, KG. offered no information regarding who removed it or the circumstances under which the bracelet was removed from her person. The juvenile judge obviously rejected the two hypotheses posited by K.G. and we agree that they are not sufficiently reasonable to preclude a finding of proof of guilt beyond a reasonable doubt. No other hypothesis of innocence was presented.

Applying the relevant standard of review to the circumstances of this case, we conclude the juvenile judge was not clearly wrong in finding beyond a reasonable doubt that the ankle bracelet was intentionally defeated in direct violation of La. R.S. 14:110.3. Even though Officer Brewer and Deputy Fox did not actually observe K.G. physically removing the device from her person, we agree that the juvenile judge could reasonably have concluded from the testimony presented that K.G. either removed the device herself or had someone else, who was not authorized to do so, remove the device with her knowledge and consent. The pins securing the device to KG.’s ankle had been broken at the top and taken |7out of the bracelet. The bracelet was found on the ground unattended at its last recorded location where the alert indicating a tamper was first detected. Three days later K.G. appeared in juvenile court without wearing the bracelet and provided no explanation or information relative to its removal. Therefore, we find that the evidence, although circumstantial, was sufficient to exclude every reasonable hypothesis of KG.’s innocence.

After a careful review of the record, we find the evidence supports the trial court’s determination. We are convinced that a rational trier of fact, viewing all of the evidence as favorable to the prosecution, could have concluded that the state proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that K.G. was guilty of tampering with the electronic monitoring device attached to her ankle. Therefore the trial court did not err in adjudicating her to be a delinquent.

CONCLUSION

For the foregoing reasons, the trial court’s adjudication of K.G. as a delinquent child for violation of tampering with surveillance or electronic monitoring equipment is affirmed.

AFFIRMED.

      . Pursuant to the requirements of confidentiality of juvenile proceedings as set forth in La. Ch.C. art. 412, the defendant herein is referred to by initials only.

        . The commitment was to run “consecutive” to case number 2009-096-02-DQC.