author: STEWART, J. BROWN, Chief Judge,

text:
    STATE of Louisiana, Appellee v. Samuel WASHINGTON, Appellant.
    No. 46,265-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 17, 2011.

      Louisiana Appellate Project, Jonesboro, LA, by James E. Beal, for Appellant.
    Samuel Washington, Pro se.
    William R. Coenen, Jr., District Attorney, Penny W. Douciere, Kenneth D. Wheeler, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART and GASKINS, JJ.
   STEWART, J.

_JjThe defendant, Samuel Washington, was charged with possession of cocaine with intent to distribute and possession of marijuana with intent to distribute. He was convicted of possession of cocaine with intent to distribute and of the responsive verdict of possession of marijuana. He was sentenced to serve 20 years’ imprisonment at hard labor for the cocaine conviction and a concurrent six-month term for the marijuana conviction. He now appeals, urging one counseled assignment of error and five pro se assignments. The defendant’s counseled assignment of error, which alleges ineffective assistance of counsel, is substantial. For reasons discussed below, we set aside the defendant’s conviction and sentence, and remand the case for a new trial.

FACTS

In 2007, the Richland Parish Sheriffs Office (“RPSO”) received a tip that the defendant, Samuel Washington, was selling narcotics from a home on Edgar Street in Delhi, Louisiana. On July 24, 2007, investigators employed a confidential informant who allegedly bought cocaine from the defendant. Based upon that purchase and other information gathered through surveillance, the agents sought a search warrant for the home. Investigator Brandon Fleming prepared an affidavit in support of the warrant, which alleged that the occupants of the residence were a Samuel Boston and a Kimberly Criss. A district judge signed the warrant, and a tactical team executed the warrant that same evening.

12Three RPSO agents, Brandon Fleming, Joel Williams and Perry Fleming, followed the tactical team into the defendant’s home. They discovered that he was not present. Four young adult males, Devon Williams, Samuel Boston, Jr., Lee Arthur Jones, and Devaun Jones, were present in the home. The agents detained and searched the young men, but found no narcotics. The agents then searched the home.

Brandon Fleming conducted the search. In plain view on top of a television, he located a baggie containing about six grams of powder cocaine (worth about $600) and a small paper bag containing marijuana. In the back bedroom, Fleming found a small pile of loose marijuana atop the dresser. The total weight of marijuana from the bag on top of the television and the pile on the dresser was 3.2 grams. In a drawer in that same dresser, he found a baggie containing about ten rocks of crack cocaine, worth about $20 each. In addition, the agents found a set of digital scales in the kitchen, some rolling papers and tobacco cigars, a paper bag containing what one agent described as “cigar guts tobacco,” and some sandwich bags.

The agents also found recent utility bills for the house addressed to the defendant, and a document and a prescription pill bottle containing antibiotics bearing the name Lashanna Humes.

The agents arrested the four young men who were at the house. Later that evening, the defendant learned that his house had been raided, so he turned himself in to RPSO. He was arrested and charged with possession of | scocaine and marijuana with intent to distribute, as well as conspiracy to distribute those substances.

The defendant was appointed an attorney, but in 2009, he retained a new attorney. New counsel engaged in substantial pretrial motion practice, including filing a motion for discovery, a motion for a preliminary examination, a motion to identify the confidential informant, a motion to suppress the drug evidence, an opposition to other crimes evidence, a motion for the criminal records and pending charges against all state’s witnesses, and a motion to quash for untimely prosecution.

The court conducted a hearing on the motion to produce the identity of the informant and the motion to suppress the drug evidence. At this hearing, the court denied the motion to produce the identity of the informant, and further ordered that the state would not be allowed to make any reference at trial to the purchase by the informant.

The motion to suppress the drug evidence alleged that the information in the affidavit supporting the warrant was inaccurate. The court heard testimony from Fleming, who reported that the RPSO received numerous complaints from the defendant’s neighbors regarding traffic in and out of the defendant’s house, and that the RPSO had also obtained information from the Delhi Police Department. Fleming said that he and other agents met with an informant that the RPSO had used before, searched him to ensure he had no drugs, gave him money, and followed him to the defendant’s house. The informant then went into the house, came back out, and then met the agents at ^another location about five minutes later. The informant produced powder cocaine that he had purchased and advised that he made the purchase from the defendant. Fleming then prepared an affidavit in support of a search warrant, which stated, in part:

This residence is occupied by Samuel Boston and Kimberly Criss.
This affiant has received information from informants, complainants in the area and other police officer of illegal narcotics sell’s [sic ] from this house located at 115 Edger St Delhi, La, 71232. On 7-24-2007 at approx. 2:35 P.M. a Reliable Confidential Informant was given money to purchase Powder Cocaine from Samuel Boston at his house located 115 Edgar St. Reliable Confidential Informant went to that residence and purchased One Hundred Dollars ($100.00) worth of Powder Cocaine from Samuel Boston. This buy was made at approx. 2:46 P.M. and was controlled through surveillance. A short time later the R.C.I. turned the evidence over to me and advised that Boston went to a back room and returned with the powder Cocaine. R.C.I. Advised that he / she saw a bag of marijuana on the pool table.

The court denied the motion to suppress, finding the information in the affidavit sufficiently correct. The trial court also denied the motion to quash, citing the defendant’s choice in changing counsel as the justification for the delay.

At the opening of the trial on May 25, 2010, the jury heard, by stipulation, that the defendant had a prior conviction in Richland Parish for possession of cocaine under the name Samuel Tyronne Boston. This conviction occurred on October 15, 2002.

The jury heard testimony from all three of the agents from the Richland Parish Sheriffs Office who participated in the search. During cross-examination, the jury was made aware of the discrepancies between the | information in the search warrant and the facts as discovered after the search, including the fact that no evidence was found to show that Kimberly Criss was a resident of the home and that no marijuana was found on the pool table. Defendant’s counsel offered the search warrant into evidence; the court admitted the document as Exhibit D-2 and it was published to the jury.

Devaun Jones, who was one of the four young men at the defendant’s house when the warrant was executed, testified that he and the defendant had cleaned the home’s carpet earlier that day. Although he admitted that he had previously smoked marijuana, he denied possession of any drugs or having any knowledge of the drugs in the defendant’s home on the day in question. He also said that he had never been to the back bedroom. He further testified that he did not see any of the three other men in possession of any drugs in the defendant’s home.

Dustin Dykes, who was with the defendant away from the home at the time the warrant was executed, testified that he had been in the house earlier that day and had seen no drugs there.

Tamarcus Jones testified that during the day of July 24, 2007, he, Devaun Jones and the defendant cleaned the floor of the home. He explained that they had taken all of the furniture out of the living room and moved it outside before cleaning the floor. He related that they did not move the television. Jones said that he did not see any drugs in the home while he was there, nor had he seen the defendant sell any drugs to anyone. After finishing the cleaning, he, the defendant and Dustin Dykes left the home to get food and to go to the store. They were not there at the time the police arrived.

|(¡Samuel Lee Boston, Jr., who is the defendant’s cousin, testified that while he was at the house that day, he had seen marijuana sitting on the couch between Devaun Jones and Lee Arthur Jones. On cross-examination, Boston, Jr. admitted that he had previously told the prosecutor that he had not seen any marijuana in the house prior to the raid.

In the jury instructions, the court advised the jury that the accused may choose not testify in his own behalf, and if he does not, that fact cannot be construed against him. However, they were not instructed that the defendant’s silence after his arrest was not substantive evidence of his guilt.

The jury returned verdicts of guilty of possession of cocaine with intent to distribute and possession of marijuana. The vote was 10-2 on the cocaine charge and 11-1 on the marijuana charge.

At sentencing, the judge reviewed the defendant’s presentence investigation report and six letters from friends attesting to his character. The judge recognized that the defendant had an employment history, but also noted that he had a prior drug conviction and had subsequently been arrested on another drug-related matter. As mentioned earlier in the opinion, the judge sentenced Washington to serve 20 years’ imprisonment at hard labor for the cocaine conviction and, concurrently and with credit for time served, six months in the parish jail for the marijuana conviction. The defendant did not object to the sentences and this record does not contain a motion to reconsider sentence. The defendant now appeals.

|7LAW and discussion

Ineffective Assistance of Counsel

In the first assignment of error, the defendant contends that the defense counsel’s ineffectiveness at trial resulted in the denial of a fair trial to him.

In alleging ineffective assistance of counsel, a defendant must satisfy a two-pronged test by showing, first, his attorney’s performance to be so deficient as to deny him the “counsel” guaranteed by the Sixth Amendment, and second, that those errors are so serious as to deprive the accused of a fair proceeding, i.e., one with a reliable result. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Washington, 491 So.2d 1337 (La.1986). In order to prevail under the Strickland test, the defendant must demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. State v. Gipson, 28,113 (La.App. 2 Cir. 6/26/96), 677 So.2d 544, writ denied, 96-2303 (La.1/31/97), 687 So.2d 402.

As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief (“PCR”) in the trial court rather than by appeal. This is because PCR creates the opportunity for a full evidentia-ry hearing under La. C. Cr. P. art. 930. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Ellis, 42,520 (La.App.2d Cir.9/26/07), 966 So.2d 139, writ denied, 07-2190 (La.4/4/08), 978 So.2d 325.

In some instances, defense counsel may be ineffective for “opening the door” to allow the prosecutor to take advantage of the defendant’s post-arrest, |8post-Mi-randa silence. When the record is sufficient, this issue may be resolved on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Willars, 27,394 (La.App.2d Cir.9/27/95), 661 So.2d 673. In the instant case, the record is sufficient to review the defendant’s claim of ineffective assistance of counsel.

In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the United States Supreme Court held that a state may not impeach a defendant’s testimony at trial with evidence that he remained silent immediately after his arrest and after receiving the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In a case like this one, where the defendant does not take the stand, “there is even less justification here for the State to call attention to his silence at the time of arrest than there was in Doyle, because the argument cannot be made that he was under cross-examination and thus fair game for impeachment by use of his silence at the time of his arrest.” State v. Montoya, 340 So.2d 557, 560 (La.1976).

The contemporaneous objection rule is that an irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence. La. C. Cr. P. 841; State v. McGee, 39,336 (La.App. 2 Cir. 3/04/05), 895 So.2d 780. Doyle errors are subject to the contemporaneous objection rule unless the error casts substantial doubt on the reliability of the fact-finding process. State v. Langston, 43,923 (La.App.2d Cir.2/25/09), 3 So.3d 707, writ denied, 2009-0696 (La.12/11/09), 23 So.3d 912. Likewise, such errors are subject to harmless error analysis. Langston, supra; State v. Bradley, 43,593 (La.App.2d Cir.10/29/08), 997 So.2d 694, writ denied, 2008-2997 (La.9/18/09), 17 So.3d 384, certiorari denied, Bradley v. Louisiana, — U.S. -, 130 S.Ct. 2093, 176 L.Ed.2d 723 (2010).

Under some circumstances, the state may permissibly make a limited reference to a defendant’s post-arrest, post-Miranda silence. As the court explained in U.S. v. Martinez-Larraga, 517 F.3d 258 (5th Cir.2008):

However, Doyle also expressly recognizes that a prosecutor’s reference to a defendant’s post-Miranda silence may properly be made where it is not “used to impeach” the defendant’s “exculpatory story,” or as substantive evidence of guilt, but rather to respond to some contention of the defendant concerning his post-arrest behavior. See 96 S.Ct. at 2245 n. 11 (citing United States v. Fairchild, 505 F.2d 1378, 1383 (5th Cir.1975)). In Fairchild we stated that where the defendant had “opened the door” respecting his post-arrest interaction with the authorities “he discarded the shield which the law had created to protect him” from comment on his post-arrest silence, although the prosecution still could not go beyond a proper response so as to use the silence “as direct evidence” of guilt. Id., 505 F.2d at 1383. We, and other circuits, have continued to recognize this “open the door” or “reply” exception to Doyle, see, e.g., United States v. Allston, 613 F.2d 609, 611 (5th Cir.1980); United States v. Shue, 766 F.2d 1122, 1129 (7th Cir.1985), while likewise recognizing that it does not permit the prosecution to argue “that the jury should infer ... [the defendant’s] guilt directly from his post-arrest silence.” United States v. Rodriguez, 260 F.3d 416, 421 (5th Cir.2001).

In this case, we note that Fleming briefly testified about the defendant’s booking at the detention center, but the exact timing and circumstances of the arrest are not made clear, and no mention is made of any Miranda warning.

During cross-examination, the defense counsel questioned Investigator Fleming about the items in the house that belonged to other people and whether those people had been charged in connection with the narcotics. |inFleming related that he had spoken with Ms. Criss in the course of the investigation and learned that she was not living there at the time. Counsel then asked Fleming about the drugs found on top of the television, whether the drugs could have been in the possession of the four young men in the house, and the statements made by these men. He related that each of the young men said that they had not seen the drugs sitting on top of the television set. Next, they had this exchange:

Defense: Could anyone have been able to see what’s on top of the TV that they were watching and playing games on?
Fleming: I have no idea.
Defense: You have no idea? And I assume this goes for all the people that were playing that game, correct? They all told you they did not see it, they didn’t know it was there? Correct?
Fleming: Right. Yes, sir.
Defense: Did Samuel Boston, did — the junior cousin of Mr. Washington told you the same thing?
Fleming: Yes, sir.
Defense: That he didn’t see anything there? Did Mr. Washington here told [sic ] you he saw anything there or he knew those things were there? Yes or no?
Fleming: Sir?
Defense: Did Mr. Washington tell you that he knows [sic] those drugs were there? Yes orno?
Fleming: Did he tell me that ...
Defense: Yes.
Fleming: ... that he knew it?
| uDefense: Right.
Fleming: They didn’t give us an interview, sir.
Defense: Correct. But did tell [sic] you if he knew anything was there, correct?
Fleming: He did or didn’t? I can’t understand.
Defense: Did he or did he not?
Fleming: He did not tell us nothing.

(Emphasis added.) In the emphasized remarks, Washington’s attorney asked the agent whether the defendant made any statements to the agents about the drugs. We note that the jury had never heard any substantial details about Mr. Washington’s arrest, nor did they hear anything regarding whether the defendant was provided his Miranda rights.

On redirect examination, the prosecutor engaged the investigator in this colloquy:

Prosecutor: Investigator Fleming, you were asked ... I believe the question was “What did Mr. Washington tell you about the drugs?” Do you remember that response?
Fleming: Yes, sir. He didn’t respond, didn’t say nothing.
Prosecutor: Okay. Defense counsel asked you that question, correct?
Fleming: Yes, sir.
Prosecutor: He didn’t say anything to you about them?
Fleming: No, sir.
Prosecutor: Did you give him the opportunity?
Fleming: Yes, sir.
Prosecutor: Did yOu ask him about them?
| ^Fleming: Yes, sir.
Prosecutor: Did he deny that they were his?
Fleming: No, sir.
Prosecutor: Did he say they were Mr. Jones’?
Fleming: No, sir.
Prosecutor: Did he say they were Ms. Humes’, they weren’t mine?
Fleming: No, sir.
Prosecutor: Did he say they were Ms. Criss’, they’re not mine?
Fleming: No, sir.
Prosecutor: Did he say they were Mr. Williams’ who was there?
Fleming: No, sir.
Prosecutor: Did he point to any other person and say, “Those belonged to them, not me?”
Fleming: No, sir.
Prosecutor: Did he cooperate with you in any way?
Fleming: No, sir.
Prosecutor: Did the four young men who were there when you got there cooperate with you?
Fleming: Yes, sir.
Prosecutor: Did they deny it?
Fleming: No, sir, they said they had no idea the dope was in the house.

Counsel for the defendant did not object to the prosecutor’s questions to the investigator about whether the defendant had made any statements denying knowledge of the drugs.

|1sBoth parties questioned the investigator extensively about his investigation, because a key issue in the case was the ownership, or at least the control of, the narcotics. At the time the search warrant was executed, the defendant was not present, yet the biggest quantity of cocaine discovered was in plain view of the four people sitting nearby.

The state argues that the defendant’s choice to question Investigator Fleming about the defendant’s “post-arrest” statements, and silence, opened the door to further questions and comment by the prosecutor about that silence. On redirect examination, the prosecutor emphasized the point that no party had confessed to owning the drugs and that the four young men nearest the drugs had cooperated in the investigation. The prosecutor was within the “opened door” of relevancy to ask whether the investigator gave the defendant the opportunity to make a statement, and perhaps whether the defendant attempted to blame any other person.

Counsel’s decision to ask the investigator if the defendant had made any statements to him is arguably a strategic move on his part, and not an act of ineffective assistance. Since the defense counsel opened the door to that line of questioning, the prosecutor’s questions were proper.

At the close of the evidence, the prosecutor gave a closing argument, as did defense counsel. On rebuttal argument, the prosecutor stated:

... I want to ask you this question. Have you heard one piece of evidence in this case that these drugs belonged to anybody else other than this defendant? Have you heard anybody else in this case say “Well, I saw so and so with the cocaine, I saw so and so with the crack, I saw so and so with the powder?” No. All his friends and family that have come and testified about who these drugs belonged to, not one single one of them said it belonged to somebody else.
114Pefense counsel opened the door for this and he asked Investigator Fleming sitting right here, he said, “Investigator Fleming, what did my client Mr. Washington tell you about those drugs?” He didn’t tell him anything about those drugs. He didn’t say anything. He never once when given the opportunity denied they were his drugs, he never once when given the opportunity said “Those aren’t my drugs, Investigator Fleming, I can tell you who they are, they belong to so and so.” He didn’t do that. He didn’t say “I don’t know anything about the drugs. I don’t know why they’re there.” He didn’t say that opportunity [sic]. Ladies and gentlemen if — if any one of you here today had got accused of drugs you would yell from the rooftops “Officer, I have no idea how those drugs got in my house! I don’t know why they’re there. I didn’t see them, they’re not mine, I’m telling you the truth.” When given that opportunity there was deafening silence. That tells more about this than anything. He marches all these friends and family in here to say this and that but not one single one of them said that cocaine belonged to anybody else but this defendant. We would all be screaming our innocence, “It doesn’t belong to me” when given that ...
Defense: Objection, your honor.
Court: Thank you.
Defense: That’s ...
Court: Objection sustained.
Defense: And I will — I will request that I be able to rebut that too, Judge.
Prosecutor: No, there’s no rebuttal.
Court: There’s no rebuttal.
Defense: Well ...

Though counsel objected to the prosecutor’s use of the defendant’s silence as evidence of his guilt during his closing argument, he should have immediately moved for a mistrial pursuant to La. C. Cr. P. art. 770, which states:

| isUpon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
(3) The failure of the defendant to testify in his own defense; or
(4) The refusal of the judge to direct a verdict.
An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

Under La. C. Cr. P. art. 771, where the prosecutor or a witness makes a reference to a defendant’s post-arrest silence, the trial judge is required, upon the request of the defendant or the state, promptly to admonish the jury. In cases where the trial judge is satisfied that an admonition is not sufficient to assure the defendant a fair trial, upon motion of the defendant, the trial judge may grant a mistrial. State v. Kersey, 406 So.2d 555 (La.1981).

In this case, the defense counsel should have requested a mistrial. Based on the trial court’s act of quickly sustaining counsel’s objection, it is clear that it recognized the negative impact that the prosecutor’s comments could have on the jury. At the very least, counsel should have requested that the trial court admonish the jury to disregard the prosecutor’s comments regarding the defendant’s failure to talk to Fleming.

| ^Although counsel objected to the prosecutor’s argument, and that objection was sustained, counsel did not move for a mistrial, nor did counsel request an admonition. If an objection is sustained, the defendant cannot on appeal complain of the alleged error unless at the trial level he had requested and had been denied either admonition to disregard or a mistrial. State v. Robertson, 97-0177, p. 40 (La.3/4/98), 712 So.2d 8, 42, cert. denied, 525 U.S. 882, 119 S.Ct. 190, 142 L.Ed.2d 155 (1998).

The prosecutor’s comments are not harmless in this case. The prosecutor’s closing argument clearly overreached the “open door” doctrine by asking the jurors to speculate what they would have done if wrongly accused of possessing drugs. With these remarks, the prosecutor was openly using the defendant’s silence as substantive evidence of the defendant’s guilt, saying: “When given that opportunity, there was deafening silence. That tells more about this than anything.” The prosecutor exploited all of the leeway allowed by the questions asked by defense counsel during Fleming’s cross-examination, and then invited the jury to consider Washington’s silence as proof that he possessed the drugs. “[T]he prosecution still could not go beyond a proper response so as to use the silence ‘as direct evidence’ of guilt.” Martinez-Larraga, supra.

This case is based on circumstantial evidence. The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to be proved, in order to convict, it must exclude every reasonable hypothesis of. innocence. La. R.S. 15:438. The circumstantial evidence provision set forth in La. R.S. 15:438 does not establish a stricter standard of 117review than the more general Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), formula, but a hypothesis of innocence that is sufficiently reasonable and strong must necessarily lead a rational finder to entertain a reasonable doubt as to guilt. State v. Moore, 46,252 (La.App. 2 Cir. 5/18/11), 69 So.3d 523; State v. Charleston, 33,393 (La.App. 2 Cir. 6/23/00), 764 So.2d 322, writ denied, 00-2603 (La.9/14/01), 796 So.2d 672. Circumstantial evidence consists of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Moore, supra; State v. Major, 604 So.2d 137 (La.App. 2 Cir.1992), writ denied, 609 So.2d 255 (La.1992).

The photos show that the bulk of the cocaine, which was approximately six grams, was in a clear plastic bag on top of the television that was being used by the four young men playing a video game. A brown paper sack containing marijuana was also found on top of the television. Tamarcus Jones testified that Devaun Jones smoked marijuana, and that he saw Devaun with “something in a brown paper bag” in his pocket that day. Tamarcus related that Devaun did not want anybody to see the contents of this brown paper bag. Samuel Boston, Jr., testified that he too was aware that Devaun smoked marijuana. Boston, Jr. stated that he saw marijuana on the couch between Devaun Jones and Lee Jones that day. Each of these young men had a strong motive to lie and deny knowledge of the drugs, which were not hidden in any way.

| lsAfter a careful review of the record, we note that it is absent of any indication that the bedroom where a portion of the drugs were found belonged to the defendant. The state failed to present any evidence that the defendant’s belongings were located in the bedroom, or in the chest of drawers containing the drugs. The defendant’s brother, William Washington, testified that the bedroom in question was a spare bedroom, and that no one stayed in there. While the state tendered electricity and gas bills in the defendant’s name, they did not show that they were located in the bedroom with the drugs.

There was evidence that the defendant was not the sole resident of the house. William testified that he stayed at the house approximately three times a week, including the night before the execution of the warrant, and that Humes also stayed there. William also stated that his mother rented the house. The police also failed to collect any fingerprints on the drugs seized that would link the defendant to the drugs.

Considering the fact that the felony conviction is for possession with intent to distribute, and the bulk of the cocaine was in the living room with the guests, we cannot say that the error of allowing the jury to consider the defendant’s silence as evidence of guilt had no effect on the verdict. Given that this case is based on circumstantial evidence, the prejudicial inference raised by the prosecution’s argument clearly was detrimental to the defendant’s defense. There is a strong likelihood that the jury concluded that the defendant’s failure to speak up meant that he was admitting to possession of all of the drugs. The jury obviously did not believe the theory that the defendant intended to distribute the small amount of marijuana seized. This |19is a strong indication that counsel’s failure to move for a mistrial significantly impacted the outcome of the case. Had counsel moved for and been granted a mistrial, the prosecutor’s extremely prejudicial remarks would not have been considered by the jury. An admonishment would have lessened the impact on the jury at the least.

The defendant has made a good showing that his trial counsel made serious errors during the trial, and the reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. Counsel should have moved for a mistrial, or in the alternative, asked for the court to admonish the jury. His failure to do so indicates that the defendant received ineffective assistance of counsel. This assignment of error alleging ineffective assistance of counsel warrants reversal of the defendant’s convictions and sentences and a new trial.

Pro Se Assignments of Error

Since we are setting aside the defendant’s convictions and sentences and remanding the case for a new trial, the defendant’s pro se assignments of error are pretermitted.

CONCLUSION

The defendant’s trial counsel erred by opening the door to questioning about the defendant’s post-arrest silence, and that error was compounded by the questions and argument of the prosecutor that went far beyond the matters put at issue by defense counsel. For the foregoing reasons, the defendant’s conviction and sentence are set aside, and the case remanded for a new trial.

JjgCONVICTIONS AND SENTENCES SET ASIDE; CASE REMANDED FOR NEW TRIAL.

BROWN, Chief Judge, dissents with written reasons.

BROWN, Chief Judge,

dissents.

1 ,The majority opinion reverses defendant’s convictions because of ineffective assistance of counsel. Although recognizing that defense counsel objected to certain remarks made by the prosecutor in closing argument and that the objection was sustained by the trial court, the majority concludes that defense counsel should have requested a mistrial and not doing so was “substantial” error. In his rebuttal closing argument, the prosecutor started to get into defendant’s post- or possibly pre-ar-rest silence stating “We would be screaming our innocence, it doesn’t belong to me, when given that ...” At this point the objection was made and sustained.

The majority opinion is silent as to the critical facts underlying this issue. Prior to trial, the defense effectively suppressed all evidence related to defendant’s sale of cocaine at his house just four hours before the search. In his opening and closing statements, defense counsel repeatedly asked, “Why (charge) Mr. Washington?” Defense counsel continued to argue that the four teenagers in the house at the time of the search, as well as defendant, denied possession of the drugs but the police let the four boys off and focused only on defendant. Defense counsel continued to argue that the police did not investigate thoroughly.

In United States v. Fairchild,, 505 F.2d 1878 (5th Cir.1975), as part of his defense to charges of receiving and concealing two stolen automobiles in violation of the Dyer Act, 18 U.S.C. § 2313, counsel had alluded to Fairchild’s active cooperation with the police, as the court found, |2“in order to build up his client in the eyes of the jury.” Id. at 1383. In examining the reasons for not permitting prosecutorial comment on a defendant’s post-arrest, post -Miranda silence, the court stated,

Miranda establishes that the prosecution may not use as a part of its case in chief a criminal defendant’s silence following his arrest and warning. This evidence, even though it might be relevant and probative, is normally excluded. But it is important to note that it is excluded for the purpose of protecting certain rights of the defendant. It is not excluded so that the defendant may freely and falsely create the impression that he has cooperated with the police when, in fact, he has not.... Assuming the law would have excluded from evidence Fairchild’s silence had he not broached the subject of cooperation, once he did broach it the bar was lowered and he discarded the shield which the law had created to protect him.... Here the evidence of Fairchild’s Miranda silence was admissible for the purpose of rebutting the impression which he attempted to create: that he cooperated fully with the law enforcement authorities. (Emphasis added) (Citations omitted). Id.

As to post-arrest silence, the Louisiana Supreme Court in State v. Bell, 446 So.2d 1191 (La.1984), found an applicable exception. Bell was accused of forging his grandmother’s name to three checks made out in his favor. Defense counsel’s opening statement disclosed his client’s defense — that the grandmother had authorized defendant’s action and that defendant would take the stand to so testify; that defense counsel could not say why defendant was being prosecuted; that “people make mistakes. They don’t investigate thoroughly. Possibly that’s the situation here.” The supreme court in Bell, 446 So.2d at 1194, stated:

In this case since defense counsel suggested to the jury that the state had failed to investigate the matter, and implied that, had it been investigated properly, the forgery charges would not have been brought against the defendant, the state was allowed to respond by asking the defendant and the investigating officers whether or not they tried to determine the defendant’s involvement by questioning |shim at the time of his arrest. The defendant may not tell the jury that the state’s case is the result of improper investigation without allowing the state to try to show the jury that the investigation was indeed thorough, or at least sufficiently thorough as to include inquiries of the defendant in order to get leads which might verify, or dispute, defendant’s noninvolvement.

Additionally, in State v. Brown, 395 So.2d 1301 (La.1981), the Louisiana Supreme Court refused to reverse a conviction because a prosecutor referred to defendant’s failure to sign the rights form in order to counter suggestions that defendant’s attitude at the time of his arrest was one of nonchalance.

In the present case, the suppression of critical evidence and the opening and closing argument of defendant’s retained attorney are significant.

In July 2007, the Richland Parish Sheriffs Office (“RPSO”) received a tip that defendant, Samuel Washington, was selling cocaine from his home on Edgar Street in Delhi, Louisiana. On July 24, 2007, investigators used a confidential informant who, under surveillance, bought “powder” cocaine from defendant at defendant’s Edgar Street residence. This sale occurred at 2:46 p.m. Immediately following the sale, the agents obtained a search warrant for defendant’s house. They returned to defendant’s home at 7:24 p.m. and executed the search warrant. The drugs seized during that search resulted in the present charges. The witnesses for both the state and defendant testified that defendant was at his Edgar Street residence that afternoon and, particularly, at the time of the sale to the informant. Just before the arrival of the search team, defendant had left the house to run some errands. At the time of the search, four teenagers, Devon Williams, |4Samuel Boston, Jr., Lee Arthur Jones, and Devaun Jones, were present in the home. Powder cocaine and marijuana were found on top of the TV in the living room. The teenagers were playing video games in the living room. In a back bedroom rocks of cocaine and more marijuana were found. In the kitchen were digital scales, baggies, rolling paper, and cigars. Utility bills in defendant’s name and testimony clearly showed that defendant resided at this address.

Defendant was initially appointed an attorney, but later retained counsel. Defendant’s attorney engaged in substantial pretrial motion practice. The most damning evidence against defendant on the charges of possession with intent was the actual sale of the cocaine the same afternoon as the search. In effect, defense counsel was successful in suppressing this evidence. The court denied defendant’s motion to produce the identity of the informant, but ordered that the state would not be allowed to make any reference at trial to the purchase by the informant.

In his opening statement to the jury, defense counsel stated that the police failed to thoroughly investigate the case, and that the police and prosecutor accepted the denials of the four teenagers who were in the house, while rejecting defendant’s denials. Defense counsel repeatedly asked, “Why Mr. Washington?” Of course, the primary answer could not be revealed, that is, that Mr. Washington sold cocaine to a confidential informant under police surveillance just four hours prior to the search.

|sBoth parties questioned Deputy Brandon Fleming extensively about his investigation. It was during cross-examination by defense counsel that Deputy Fleming revealed that defendant had not said anything. Defense counsel particularly emphasized that defendant was not present at the house when it was searched, that the powder cocaine was discovered in plain view of the four teenagers, and that the officers focused on defendant even though all, including defendant, denied possession of the drugs. This is also what defense counsel said in his opening and closing statements.

The majority opinion states that, “Counsel’s decision to ask the investigator if the defendant had made any statements to him is arguably a strategic move on his part, and not an act of ineffective assistance. Since the defense counsel opened the door to that line of questioning, the prosecutor’s questions were proper.” I agree with this statement.

At the close of the evidence, the prosecutor made a closing argument, as did defense counsel. In his closing argument, defense counsel repeatedly commented on the prejudicial police investigation. Some of his remarks were: “They (the deputies) were told whose marijuana it was. But that’s not acceptable, they want who they want and that’s Mr. Washington;” “Why did they dismiss these charges (against the four teenagers)? Don’t ask me, I don’t know. But one thing I do know is that this law should not be about who you know (Lee and Devaun Jones’ uncle was a detective with the RPSO); and, repeatedly, “I wonder why Mr. Washington was charged?”

On rebuttal argument, the prosecutor stated:

When given that opportunity there was deafening silence. That tells more about this than anything. He marches all these | ^friends and family in here to say this and that but not one single one of them said that cocaine belonged to anybody else but this defendant. We would all be screaming our innocence, “It doesn’t belong to me” when given that ...

At this point defense counsel objected and the court sustained the objection. Defense counsel did not request a mistrial. Without exploring all possible reasons for counsel’s strategy in not asking for or even wanting a mistrial, the majority concludes that a mistrial should have been asked for and that, if it had been, the trial court would have granted it. With this I disagree.

Defense counsel presented a defense. Devaun Jones, one of the four young men at defendant’s house when the warrant was executed, testified for the state that he and defendant had cleaned the home’s carpet earlier that day. Although Jones admitted that he had previously smoked marijuana, he denied possession of any drugs or having any knowledge of the drugs in defendant’s home on the day in question. Jones also said that he had never been to the back bedroom. Jones further testified that he did not see any of the three other boys in possession of any drugs in defendant’s home. He admitted, however, to “underage” drinking by the teenagers. Defendant was 30 years old.

Defense witness, Samuel Boston, Jr., who is defendant’s cousin, testified that while he was at the house that day, he had seen marijuana sitting on the couch between Devaun Jones and Lee Arthur Jones. On cross-examination, Boston admitted that he had previously told the prosecutor that he had not seen any marijuana in the house prior to the raid.

17Photographs show that the bulk of the cocaine, which was approximately six grams, was in a clear plastic bag on top of the television that was being used by the four young men who were playing a video game. A brown paper sack containing marijuana was also found on top of the television. Tamarcus Jones testified that Devaun Jones smoked marijuana, and that he saw Devaun with “something in a brown paper bag” in his pocket that day. Tamarcus related that Devaun did not want anybody to see the contents of this brown paper bag. Samuel Boston, Jr., testified that he too was aware that De-vaun smoked marijuana. Boston stated that he saw marijuana on the couch between Devaun Jones and Lee Jones that day. Each of these young men had a strong motive to lie and deny knowledge of the drugs, which were not hidden in any way.

Defense counsel had presented a strong case for acquittal. A second trial obviously would not have been better than what he already had. Even if the remarks by the prosecutor were error, it was harmless as he simply repeated testimony that the majority found to be admissible. I do agree that the prosecutor was starting to become repetitive and that the trial court properly put a stop to it.

For the foregoing reasons, I respectfully dissent.

      . The jury did not hear evidence about the informant or this sale.

      . Boston is a family name, but the defendant now goes by Samuel Washington.

      . Based upon subsequent interviews, the prosecutor did not pursue drug charges against these men.

      . The conspiracy charges were dismissed at trial.

      . Defendant learned of the search at his house and voluntarily went to the Sheriff's office. There was no testimony presented concerning his arrest and the reading of his Miranda rights.

      . Devaun Jones testified that he was 18 years old and that the others were high school classmates. The other boys were not asked their age.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    Geneva F. ODOM, in her official capacity as assessor for East Carroll Parish, Plaintiff-Appellee v. SOUTHERN NATURAL GAS CO. and Tennessee Gas Pipeline Company, Defendants-Appellants. DeAnna K. Smith, in her capacity as assessor for West Carroll Parish, Plaintiff-Appellee v. ANR Pipeline Company, Southern Natural Gas Company & Louisiana Tax Commission, Defendants-Appellants. Eddie Gatlin, in his official capacity as assessor for Jackson Parish, Plaintiff-Appellee v. Southern Natural Gas Company and Tennessee Gas Pipeline Company, Defendants-Appellants.
    Nos. 46,598-CA, 46,599-CA, 46,600-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 17, 2011.
    Rehearing Denied Sept. 15, 2011.

      Hilton S. Bell, New Orleans, LA, Angela W. Adolph, Heather L. Landry, Baton Rouge, LA, for Appellants, Southern Natural Gas Company, Tennessee Gas Pipeline Company and ANR Pipeline Company.
    Brian A. Eddington, Baton Rouge, LA, for Appellees, Geneva F. Odom, DeAnna K. Smith and Eddie Gatlin.
    Robert D. Hoffman, Jr., for Appellee, Louisiana Tax Commission.
    Before BROWN, WILLIAMS and CARAWAY, JJ.
   WILLIAMS, J.

hln these consolidated cases, the defendants, Southern Natural Gas Company, Tennessee Gas Pipeline Company, and ANR Pipeline Company, appeal separate judgments in favor of the Assessors in East Carroll Parish, West Carroll Parish and Jackson Parish. The district courts reversed and vacated a ruling of the Louisiana Tax Commission. For the following reasons, we affirm.

FACTS

ANR Pipeline Company, Southern Natural Gas Company and Tennessee Gas Pipeline Company (“the taxpayers”) are natural gas pipeline companies that operate in Louisiana and in interstate commerce. Their property is classified as “public service property” under LSA-R.S. 47:1851 and subject to assessment at 25% of fair market value under La. Const. Art. VII, Section 18. In contrast, intrastate pipelines are deemed “non-public service property” and assessed at the lower rate of 15% of fair market value. For property tax purposes, public service property is assessed on a systemwide basis by the Louisiana Tax Commission (“LTC”), which then allocates valuations to the individual parishes. The taxpayers’ property is also regulated by the Federal Energy Regulatory Commission (“FERC”).

In the 1990s, ANR filed lawsuits alleging that the LTC had failed to assess the public service property of other, competing pipelines regulated by the Public Service Commission (“PSC pipelines”) at 25% of fair market value. Instead, the PSC pipelines’ property was assessed at 15% of fair market value by the parish assessors. Southern Natural Gas Company and Tennessee Gas Pipeline Company joined the ANR lawsuit for the years |22000-2003. After a trial in 2005, the 19th Judicial District Court (JDC) found that the LTC had violated the taxpayers’ right to uniform taxation by allowing the PSC pipelines to be locally assessed. However, the trial court rejected the taxpayers’ claims for refunds based on assessment at 15% of the LTC’s fair market valuation. Rather, the trial court remanded the matter to the LTC and ordered that the taxpayers’ property be reassessed by parish assessors at 15% of fair market value, using the same valuation method as was used for the PSC pipelines. The taxpayers appealed, claiming that they were entitled to a refund, not a reassessment, but the First Circuit affirmed the remedy ordered by the trial court. ANR Pipeline Co. v. Louisiana Tax Commission, 05-1142 (La.App.1st Cir.9/7/05), 923 So.2d 81, writ denied, 05-2372 (La.3/17/06), 925 So.2d 547 (“ANR VI ”). On remand, the LTC issued Order No. 03-22-06, ordering the parish assessors to reassess the taxpayers’ property at 15% of fair market value, using the same valuation methodology as that used for non-public service property.

In June 2006, the taxpayers filed their reassessment returns with the assessors of East Carroll, West Carroll and Jackson Parishes. The taxpayers reported the depreciated replacement cost of their pipelines and requested a reduction in value for obsolescence, which was based on pipeline utilization rates, FERC regulation and competition. Finding a lack of factual support, the assessors denied the claims for obsolescence and assessed the property at the values stated by the taxpayers on the return forms. The resulting reassessed valuations were approximately two times higher than the LTC’s original valuations, negating the taxpayers’ claims for refunds. The | .¡taxpayers filed protests with the parish boards of review, which denied the protests. The taxpayers then appealed the reassessments to the LTC.

After a hearing in October 2009, the LTC ruled that the assessors had used the same valuation and assessment methodology as that used to assess the PSC pipelines. However, the LTC found that the taxpayers had met them burden of proving a reduction in value for obsolescence and that the assessors’ failure to adjust the fair market values for obsolescence in accord with the service factor for throughput resulted in an incorrect valuation and was an abuse of discretion. The LTC ordered the assessors to reduce the valuations based on the throughput figures provided in the affidavit of Sally Costley, the taxpayers’ employee.

Subsequently, the assessors of East Carroll, West Carroll and Jackson Parishes filed petitions for judicial review of the LTC ruling pursuant to LSA-R.S. 47:1998. In response, the taxpayers filed exceptions of improper venue, lis pendens, no cause of action, no right of action and lack of subject matter jurisdiction. The district courts denied all exceptions. Following trial, the three courts found that the taxpayers failed to provide sufficient evidence to support their claim of obsolescence and that the assessors acted within their discretion in denying the taxpayers’ claims. Accordingly, the courts found that the LTC had exceeded its authority in reducing the assessments of the parish assessors and rendered judgments reversing and vacating the LTC’s order. The taxpayers appeal the judgments.

DISCUSSION

In five assignments of error, the taxpayers contend the trial courts |4erred in denying the exceptions of no right of action, no cause of action, improper venue, lis pendens and lack of subject matter jurisdiction. The taxpayers argue that the assessors did not have a right of action to seek direct judicial review of the LTC’s ruling because LSA-R.S. 47:1998 does not apply to public service property.

The exception of no right of action requires a court to determine whether the plaintiff is a member of the class of persons to whom the law grants the cause of action asserted in the petition. Gisclair v. Louisiana Tax Commission, 2010-0563 (La.9/24/10), 44 So.3d 272 (“Gisclair II”). In considering an exception of no cause of action, the court’s inquiry is to determine whether the law provides a remedy to anyone if the facts alleged in the petition are accepted as true. The legal question is whether a cause of action exists. See Jackson v. State Dept. of Corrections, 2000-2882 (La.5/15/01), 785 So.2d 803.

The correctness of assessments by a parish assessor are subject to review first by the parish governing authority, then by the Louisiana Tax Commission and finally by the courts, in accordance with procedures established by law. La. Const. Art. VII, Section 18(E). Regarding judicial review, LSA-R.S. 47:1998(A) provides that any taxpayer or bona fide representative of an affected tax-recipient body dissatisfied with the final determination of the LTC under LSA-R.S. 47:1989 (review of appeals by LTC) shall have the right to institute suit in the district court of the parish where the LTC is domiciled “or the district court of the parish where the property is located contesting the correctness of assessment.” The assessor | Kshall bring suit when necessary to protect the interest of the state and shall have the right of appeal. LSA-R.S. 47:1998(C).

Citing Gisclair II, the taxpayers argue in their brief that Section 1998 does not authorize a parish assessor to seek review of LTC decisions involving public service property. However, unlike the present case, Gisclair II did not involve a situation in which the parish assessors were ordered by a court to assess public service property. Thus, Gisclair II does not support the taxpayers’ argument that Section 1998 is not applicable in this case. In ANR VI, the First Circuit recognized that although the remedy of local assessment of the taxpayers’ public service property was not, consistent with state law, such a remedy was necessary for uniformity of assessment. Once the parish assessors completed their assessments of the taxpayers’ property, La. Const. Art. VII, Sec. 18(E) expressly provided that the correctness of those assessments was subject to review by the parish, the LTC and then the courts. This procedure was followed by the taxpayers in filing objections with the parish boards of review and appealing to the LTC. Pursuant to Section 1998, the parish assessors were authorized to seek judicial review of the LTC’s decision concerning those assessments in the district court of the parish where the property is located. As this court stated in Jones v. Southern Natural Gas Co., 46,347 (La.App.2d Cir.4/13/11), 63 So.3d 1080, Section 1998 confers subject matter jurisdiction, a right of action, a cause of action and proper venue for the assessors to file the actions challenging the LTC’s ruling in this case. Given the applicability of Section 1998, the taxpayers’ argument that the district courts lack | (jurisdiction to release taxes paid under protest is not relevant. In ANR VI, the court noted that the LTC was responsible to issue any refunds through modification of the tax roles. Additionally, the taxpayers’ argument based on a potential Commerce Clause claim lacks merit in light of the supreme court’s decision in Transcontinental Gas Pipeline Corp. v. Louisiana Tax Commission, 09-1988 (La.3/16/10), 32 So.3d 199, concluding that the Louisiana ad valorem tax scheme is not unconstitutional under the Commerce Clause of the U.S. Constitution. The district courts did not err in denying those exceptions.

When two or more suits are pending in Louisiana courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by filing an exception of lis pen-dens. LSA-C.C.P. art. 531. Here, the taxpayers’ first suit and the actions by the assessors are not from the same transaction and are not between the same parties. The district courts did not err in denying the exception of lis pendens. The assignments of error lack merit.

Burden of Proof

The taxpayers contend the LTC and the district courts erred in placing the burden of proving obsolescence on the taxpayers. The taxpayers argue that the assessors have a mandatory duty to gather all data necessary to determine fair market value under LSA-R.S. 47:2324 and that the assessor is required to request additional supporting data.

Each assessor shall gather all data necessary to properly determine the fair market value of property subject to taxation within his respective parish. 17In securing this data, the assessor may employ the use of self-reporting forms by property owners. LSA-R.S. 47:2324. When an officer charged with that duty has completed an assessment for the taxation of property which is subject to taxation within his jurisdiction, there results an assessment which is presumed to be valid unless and until the taxpayer proves otherwise. Gisclair v. Louisiana Tax Commission, 09-0007 (La.6/26/09), 16 So.3d 1132. The LTC guidelines set forth in the Louisiana Administrative Code (L.A.C.) state that functional or economic obsolescence shall be considered in the analysis of fair market value as substantiated by the taxpayer in writing. L.A.C. 61:I.1301(A).

In them brief, the taxpayers argue that the assessors’ valuations are not entitled to the presumption of correctness because the court-ordered assessments were solely for the purpose of computing refunds, not calculating taxes. The parish assessors were charged by the courts and the LTC to assess the taxpayers’ property located within their parishes and the resulting assessments are presumed to be correct absent evidence to the contrary. Thus, the record does not support the taxpayers’ argument.

Citing Bailey v. EnerVest Operating Co., 45,553 (La.App.2d Cir.6/30/10), 43 So.3d 1046, the taxpayers argue that just as an assessor has a mandatory duty to gather data to determine fair market value and to inform the taxpayer about the information required after a change in policy, the assessors should also have been required to inform the taxpayers about the applicable policies concerning obsolescence the first time they submitted their tax forms. However, neither EnerVest, supra, nor any other case cited |sby the taxpayers imposes such a duty on the assessors. Rather, the LTC guidelines require the taxpayers to substantiate in writing the evidence of obsolescence. This argument lacks merit.

Contrary to the taxpayers’ assertion in them brief, this court in Jones did not ignore Section 2324 or the EnerVest decision in considering the issue of the burden of proof. In concluding that the taxpayers have the burden of proving obsolescence, we adopt the prior discussion of this issue in Jones, supra, in pertinent part:

This court stands by its statement of the burden of proof in EnerVest, supra: “Under the guidelines, the burden is on the party claiming obsolescence to give the assessor sufficient data to support the claim.” Further, “We do not find that the burden is on the assessor to substantiate a claim for obsolescence, but we do find that when an assessor changes a policy or procedure regarding the information to be provided by a taxpayer then the assessor should take steps to inform the taxpayer of what information is required before completing the determination of fair market value and the assessment.” Id., at 17, 19, 43 So.3d at 1056-1067.
In the instant cases, the assessors were not changing their policy or procedure regarding the quality or quantity of data needed to support a claim of obsolescence. On the contrary, they were assessing public service property for the first time, pursuant to court order in ANR VI, supra, and an LTC ruling, expressly using the same methodology as for non-public service property. There was no basis for shifting the burden of proof: the burden was, and remained, with the taxpayers. The LTC and the district courts did not err in imposing the burden of proof; this assignment lacks merit.

Standard of Review

In reviewing an administrative adjudication, the district court functions as an appellate court. Once the district court renders a final judgment, an aggrieved party may seek review by appeal to the appropriate appellate court. On review of the district court’s judgment, the court of | ^appeal owes no deference to the factual findings or legal conclusions of the district court. Smith v. State Dept. of Health and Hospitals, 39,368 (La.App.2 Cir.3/2/05), 895 So.2d 735, writ denied, 2005-1103 (La.6/17/05), 904 So.2d 701, and citations therein; Bailey v. EnerVest, supra.

Under the Administrative Procedure Act, LSA-R.S. 49:964(G), the district court and court of appeal may reverse or modify the agency’s determination if the substantial rights of the party seeking review have been prejudiced because the administrative findings, inferences, conclusions or decisions are (1) in violation of constitutional or statutory provisions, (2) in excess of the agency’s statutory authority, (3) made upon unlawful procedure, (4) affected by other error of law, (5) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion, or (6) manifestly erroneous in view of the reliable, probative and substantial evidence in the record. Smith v. State, supra; Bailey v. EnerVest, supra. Obsolescence

Initially, we note that the taxpayers assert the same assignments of error contesting the substantive rulings of the district courts, which overruled the LTC and rejected their claims of a deduction for obsolescence, as those asserted in Jones, supra. Specifically, the taxpayers contend the LTC and the courts erred in finding that the assessors had utilized the same methodology as used for non-public service pipelines in their parishes; that the LTC erred in adopting the assessors’ determinations of fair market value and applying a deduction for throughput/capacity utilization; that the trial | incourts erred in adopting the assessors’ determinations of fair market value; and that the LTC and the trial courts erred in failing to recognize additional obsolescence on the taxpayers’ property.

The LTC guidelines provide that for assessment purposes, pipelines are to be valued at cost less physical deterioration. This “cost-new” is to be reduced for the appropriate allowance for physical deterioration based on the age of the pipeline, by multiplying replacement cost by the appropriate percent good factor. L.A.C. 61:1.1301(A)(2); Crosstex LIG, LLC v. Bailey, 06-1013 (La.App. 1st Cir.9/15/06), 936 So.2d 886 (unreported), writ denied, 06-2475 (La.12/15/06), 945 So.2d 691. Assessment will be based on fair market value listed on LAT Form 14, unless the taxpayer provides evidence of conditions that warrant change. Economic obsolescence is a loss in value of personal property above and beyond physical deterioration. L.A.C. 61:I.1305(F). Economic obsolescence may be recognized with a service factor that represents the remaining utility of the pipeline. The service factor is calculated using a formula stated as Service Factor = (Actual Throughput/Rated Capacity). L.A.C. 61:1.1305(0; EnerVest, supra.

The taxpayers contend the assessors failed to properly consider the effect of FERC regulation on the value of the taxpayers’ property. The taxpayers assert that the testimony of Richard Smead and Tom Tegarden that FERC regulation has a significant impact on value constituted substantial evidence of economic obsolescence. However, the testimony of Smead and Tegarden was not specific to the property located in the parishes involved in this case. In addition, there was other testimony that 11, substantially all of the taxpayers’ pipeline capacity was subscribed under contracts by which they received monthly payments from customers based on the capacity reserved under the contract, rather than the amount of gas actually transported. Thus, this argument lacks merit.

In reviewing the record of these consolidated cases, we note that the evidence submitted to the assessors by the taxpayers in seeking a reduction of value for obsolescence is essentially the same as the evidence considered in Jones, supra. This evidence included the taxpayers’ original LAT forms with attachment and the August 2006 letter with the attached affidavits of Sally Costley, their tax agent, listing the pipelines’ capacity used in 2000-2003; of Thomas K. Tegarden, an expert in utilities appraisal, listing the fair market value of the property for the same period; and of Richard Smead, an expert in FERC rate proceedings, stating that the effect of regulation was to depress the value of the property.

Given the similarity of the evidence presented and of the taxpayers’ arguments on appeal, and based on our review of this record, we conclude that this court’s analysis of the issue regarding proof of obsolescence stated in Jones, supra is equally applicable to the present matter. Consequently, we adopt the relevant discussion from Jones, supra, in pertinent part:

The heart of the [taxpayers’] argument is that both the LTC and the district courts failed to apply the critical concepts of fair market value, the basis of taxation under La. Const. Art. VII, § 18(B) and (D), defined in La. R.S. 47:2821 as “the price for property which would be agreed upon between a willing and informed buyer and a willing and informed seller under usual and ordinary circumstances[.]” They contend that appraisers use three nationally recognized approaches: the market, cost and income approaches. La. R.S. 47:2828 C. Further, in valuing their public service property, the LTC 112originaIly used the cost (historical cost less depreciation, or net book value) and income (capitalized earnings) approaches, giving appropriate weight to each to fix a fair market value; the resulting process is called the unit approach ....
The taxpayers argue that the assessors failed to apply the service factor [of the LTC guidelines]; and that although the LTC applied it, the LTC then failed to give an additional deduction for the effect of FERC regulation, which causes economic obsolescence and otherwise diminishes the price that a willing and informed buyer would pay for heavily regulated property. Finally, they reiterate the list of fair market values and service factors stated in Ms. Costle/s affidavit, and Mr. Tegarden’s testimony before the LTC that this was substantial evidence of obsolescence.
The assessors respond that no court has ever held that the LTC Guidelines mandate a reduction of value for obsolescence; such a reduction is discretionary, based on the quality of the evidence submitted by the taxpayer. Dow Chem. Co. v. Pitre, [468 So.2d 747 (La.App. 1st Cir.1985) ]; Crosstex LIG v. Bailey, supra; Bailey v. EnerVest Operating Co., supra. They characterize the information received from the taxpayers as “free-standing and wholly unsupported” numbers which purportedly represented the systemwide average of “percentage of pipeline capacity used” for each year. They reiterate that many of the capacity utilization figures inexplicably [and] curiously diminished between the original returns and the August 28 affidavit, and thus could not be considered detailed supporting information. They submit that their assessments were legally grounded and factually based on the information submitted, that the LTC abused its discretion in overruling the assessments and ordering reductions based on Ms. Costley’s unsupported figures, and that the district courts were correct to vacate the LTC’s order.
The supreme court recently approved the assessors’ methodology in Transcontinental Gas Pipeline Corp., [supra]. Transcontinental was a constitutional challenge to Louisiana’s system of assessing intrastate pipelines at 15% and interstate pipelines at 25%, and did not involve the unique facts arising from ANR VI, a remand to local assessors to assess [public] service property for the first time. However, because ANR VI directed local assessors to utilize the same methodology previously applied to non-public service pipelines, Transcontinental’s discussion is germane and persuasive:
There is no evidence in the record showing that the interstate companies are paying more ad valorem tax than their unregulated intrastate competitors. To the contrary, there is some indication in the record that the 11scost approach, utilized by the parish assessors, regularly values property higher than property which has been valued on the unit method, depending on whether the value is adjusted for economic obsolescence. The record further reflects that parish assessors normally do not account for economic obsolescence absent extraordinary circumstances, as they are not required to consider that factor under § 1305(G) of the LTC guidelines. The indication is that while the local assessors are obligated to follow the guideline charts for different sizes and types of pipes, they are allowed great discretion in determining other factors such as obsolescence, and normally do not even take that factor into consideration absent an extraordinary showing. Economic obsolescence is important to the unitary method of appraisal of rate-regulated companies by the LTC, because rate-regulated entities are capped in the amount of earning capability they can derive from a particular piece of property. There is some expert testimony indicating that if all factors, including economic obsolescence, .are taken into account for both methods of appraisal, the values from the two different methods, at best should approach each other. The overall implication from the record, however, is that, typically, the method currently used by the parish assessors to assess the fair market value of pipes within their parishes comes out higher than the method used by the LTC, such that the plaintiffs’ tax burden could likely increase if they were treated like their claimed favored competitors, the unregulated intrastate companies. When asked which method currently results in a higher tax burden, no expert could give a definite answer.
Id., at 23-24, 32 So.3d at 213-214 (emphasis added, footnotes omitted).
Transcontinental plainly reaffirms the notion that parish assessors are not required to reduce for economic obsolescence “absent an extraordinary showing” and thus their methodology may result in a higher assessment than if the LTC applied its unit approach to the same property. The supreme court found no basis to reject the assessors’ approach; on this record, neither can we.
Without belaboring this enormous record, we find merit in the assessors’ position. The taxpayers did not give the assessors financial data or other evidence of economic loss, only a document listing the percentages of pipeline capacity used for each tax year. Testimony before the LTC revealed that 114the percentages were not specific to the individual parishes but based on a systemwide average. This appears to be the same quality and quantity of evidence that was found lacking in Crosstex LIG, supra. ... Unlike the situation in EnerVest, supra, the taxpayers did not introduce a third-party engineering report or long-term production levels. Taken as a whole, the evidence here does not rise to the level of an “extraordinary showing” that would obligate the assessors to exercise their discretion in applying a reduction for functional [or economic] obsolescence.
For the same reasons, we find that the LTC’s decision to reverse the assessors and order reduced assessments was arbitrary, capricious, and not supported or sustainable by a preponderance of the evidence as reviewed by this court. La. R.S. 49:964 G; Bailey v. EnerVest, supra; Smith v. State, supra. The district courts did not err in reversing the LTC, and these assignments of error lack merit.

Constitutional Claims

The taxpayers’ final assignments urge that the LTC guidelines, the assessors’ methodology, or both, violated the uniformity guarantee of La. Const. Art. VII, § 18(D), and the due process guarantee of the 14th Amendment and La. Const. Art. I, § 2. The taxpayers’ arguments in effect raise three issues.

(1) Uniformity. The taxpayers contend the actions of the LTC and the assessors in valuing the taxpayers’ property to determine refunds violated the uniformity requirements of the Louisiana Constitution and equal protection and due process clauses of the Louisiana and U.S. Constitutions. They argue that in the wake of ANR VI, “a number of parish assessors in the revaluation process granted plaintiffs functional and economic obsolescence based on the same information the taxpayers submitted to the assessor,” resulting in unequal treatment and entitling the taxpayers to a reduction.

As stated in Jones, supra, the First Circuit has already considered and 115rejected this claim in Crosstex LIG v. Bailey, supra, on the basis that the grant of economic obsolescence depends on the quality and quantity of the evidence presented. “[Constitutional and statutory law requirements of uniformity in assessment do not mandate that every pipeline within a parish be assessed identically or that every parish render the same assessment as to a single pipeline.” Id., at 15, 63 So.3d 1080. Likewise, in the instant case we do not find that the denial of the taxpayers’ obsolescence claim was so unrelated to the quantity and quality of the evidence offered to support the claim as to amount to unequal treatment of the taxpayers.

(2) Due process — fair treatment by assessors. The taxpayers urge that the LTC Guidelines, §§ 1301, et seq., used by the assessors in valuing the taxpayers’ property to determine refunds, do not specify the information the taxpayers were to provide to the assessors to determine obsolescence in their properties and are thus so vague as to violate the taxpayers’ due process and equal protection rights. They also urge that the assessors’ practice of disclosing information that they will consider in granting an allowance for obsolescence only after the tax rolls have closed violates the taxpayers’ rights of due process and equal protection.

As we noted in Jones, supra, a federal district court has already dismissed the taxpayers’ constitutional challenges of the revaluation process based on the commerce clause, equal protection and due process. See ANR Pipeline Co. v. Louisiana Tax Comm’n, 10-2622, 2011 WL 163547 (E.D.La.1/19/11). The U.S. Fifth Circuit recently affirmed the dismissal of their claims. See ANR Pipeline Co. v. Louisiana Tax Comm’n, 646 F.3d 940 (5th Cir.2011). Here, the | t (¡taxpayers assert that due process requires the assessors to advise them precisely what kind of information is needed to support an obsolescence claim. However, the taxpayers have not shown any authority, and we are unaware of any, requiring the assessors to provide this level of information concerning a discretionary reduction. The burden is not on the assessor to substantiate a claim for obsolescence. Bailey v. Ener-Vest, supra. We perceive no constitutional violation.

(3) Due process — changes to Guidelines. The taxpayers contend the LTC Guidelines, §§ 1301, et seq., for the years 1998 through 2003, are invalid and conflict with LSA-R.S. 47:2323. They argue that the use of the LTC Guidelines violated their due process and equal protection rights because the taxpayers were not given notice that the Guidelines would apply to their property. The record shows that portions of the LTC guidelines changed between 1999 and 2008. As stated in Jones, supra, the change of phraseology from shall to may in § 1305 does not abolish anyone’s right to obtain a reduction for economic obsolescence, but merely alters the burden of proof. A change in the burden of proof, without affecting the claimant’s substantive rights, is not a due process violation. Burmaster v. Plaquemines Parish Gov’t, 07-2432 (La.5/21/08), 982 So.2d 795; Sudwischer v. Estate of Hoffpauir, 97-0785 (La.12/12/97), 705 So.2d 724. Considering that reduction for economic obsolescence was never an absolute right, and that the amendments to the LTC guidelines merely revised the burden of proving such a reduction, we find no violation of due process.

In addition, the court and LTC orders that required the parish |17assessors to assess the taxpayers’ property using the same valuation methodology as that used for non-public service properties were sufficient notice to the taxpayers that the LTC guidelines would be applied to their property. These assignments of error lack merit.

CONCLUSION

For the foregoing reasons, the judgments reversing and vacating the ruling of the Louisiana Tax Commission, and reinstating the assessments of the taxpayers’ property by the assessors of East Carroll, West Carroll and Jackson Parishes, are affirmed. Costs of this appeal are assessed to the appellants, Southern Natural Gas Company, Tennessee Gas Pipeline Company and ANR Pipeline Company.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, GASKINS, CARAWAY and DREW, JJ.

Rehearing denied.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee v. James SINCLAIR, Appellant.
    No. 46,623-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 17, 2011.

      Peggy J. Sullivan, Louisiana Appellate Project, Monroe, LA, for Appellant.
    Jonathan M. Stewart, District Attorney, Benjamin J. Bleich, Assistant District Attorney, for Appellee.
    Before BROWN, WILLIAMS, and PEATROSS, JJ.
   BROWN, Chief Judge.

|! Defendant, James Sinclair, a passenger in a vehicle stopped for a traffic violation, was formally charged by bill of information with possession of marijuana, second offense, in violation of La. R.S. 40:966(E)(2). Defendant filed a motion seeking to suppress all evidence obtained in connection with his arrest.

At the hearing on the motion to suppress, William Jackson, the arresting officer, was the only witness. Officer Jackson testified that on August 28, 2010, at approximately 3:00 a.m., he initiated a traffic stop on Ransom Street in Arcadia, Louisiana. Officer Jackson stated that he observed the following: ‘Well, [the car] come out of Mooreland Street and he actually run in the ditch which brought my attention to him. And he swerved the car a couple of times.... I asked [the driver] why he was swerving and he stated that he was running out of gas.” Officer Jackson stated that once he approached the vehicle, he noticed that the passenger, James Sinclair, was “acting a little fidgety” and suspicious. Unaware of whether Sinclair had a weapon, Officer Jackson asked Sinclair to step out of the vehicle. Officer Jackson then conducted a pat-down of Sinclair. Although he did not find any weapons, Officer Jackson felt a bag in Sinclair’s pocket which he believed to contain marijuana. When questioned by Officer Jackson, Sinclair stated that he had “a bag of weed” in his pocket. Thereafter, Officer Jackson retrieved the marijuana from Sinclair’s pocket. Sinclair now claims that this search and seizure was unlawful.

Officer Jackson wrote two reports. In neither written report did Officer Jackson state that the car swerved; he did write that the vehicle did |2not have a license plate. However, both reports state that Officer Jackson first saw the Honda Accord when it “backed from Mooreland St. onto Ransom St.” Officer Jackson at trial added that after the vehicle backed up, it proceeded and almost went into the ditch and swerved.

The trial court denied defendant’s motion to suppress without reasons. Following the denial, defendant entered a Crosby plea to possession of marijuana. In State v. Crosby, 388 So.2d 584 (La.1976), the supreme court held that a defendant may be allowed appellate review if, at the time he enters a guilty plea, he expressly reserves his right to appeal a specific adverse ruling in the case and where the trial court accepted the plea of guilty so conditioned (which the court has discretion to refuse). In accordance with an agreement, defendant was sentenced to one year in the parish jail with credit for time served. He now appeals the trial court’s denial of the motion to suppress.

Discussion

In Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009), a passenger in a traffic stop setting moved to suppress evidence obtained through a pat-down search. In its unanimous decision, the U.S. Supreme Court reversed the Arizona Supreme Court’s suppression of the evidence, stating:

For the duration of a traffic stop, we recently confirmed, a police officer effectively seizes “everyone in the vehicle,” the driver and all passengers. Brendlin v. California, 551 U.S. 249, 255, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007). Accordingly, we hold that, in a traffic-stop setting, the first (Terry v. Ohio) condition — a lawful investigatory stop — is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation. The police need not | shave, in addition, cause to believe any occupant of the vehicle is involved in criminal activity. To justify a patdown of the driver or a passenger during a traffic stop, however, just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous.

555 U.S. at 327, 129 S.Ct. at 784.

|4In the present ease, defendant argues that both the traffic stop and pat-down were unlawful. First, the defense argues that Officer Jackson did not provide a credible explanation for the reason he stopped the vehicle, and without a credible basis for the stop, it was unlawful. The defense points out that Officer Jackson’s arrest report stated that he stopped the vehicle because it did not have a license plate, while at the hearing he testified the reason for the stop was because the vehicle ran into a ditch and swerved. The defense also argues that the subsequent pat-down was unlawful because Officer Jackson did not articulate any legitimate reasons for conducting the pat-down. The defense argues that Officer Jackson’s reasoning that the defendant was “fidgety” was not enough to justify the pat-down, that is, a reasonable belief that defendant was armed and dangerous. Therefore, the defense contends since the traffic stop and pat-down were unlawful, any evidence seized as a result thereof should be suppressed.

Most traffic stops resemble, in duration and atmosphere, the kind of brief detention authorized in Terry v. Ohio. Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 8138, 82 L.Ed.2d 317 (1984). Furthermore, traffic stops are “especially fraught with danger to police officers.” Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). The risk of harm to both the police and the occupants of the stopped vehicle is minimized if the officers routinely exercise unquestioned command of the situation. Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997).

|sIn Arizona v. Johnson, supra, the U.S. Supreme Court noted that three decisions cumulatively portray Terry’s application in a traffic-stop setting: Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (per curiam); Maryland v. Wilson, supra; and Brendlin v. California, supra. In these three eases, the Supreme Court, in dictum, stated that officers who conduct “routine traffic stop[s]” may “perform a ‘pat-down’ of a driver and any passengers upon reasonable suspicion that they may be armed and dangerous.” Arizona v. Johnson, supra. The Court stated “[t]hat forecast, we now confirm, accurately captures the combined thrust of the Court’s decisions in Mimms, Wilson, and Brendlin.” Arizona v. Johnson, 129 S.Ct. at 787.

A lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation. The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. Normally, the stop ends when the police have no further need to control the scene, and they inform the driver and passengers they are free to leave. Brendlin v. California, supra. An officer’s inquiries into matters unrelated to the justification for the traffic stop do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop. Arizona v. Johnson, supra.

For a traffic stop to be justified at its inception, an officer must have an objectively reasonable suspicion that some sort of legal violation, such as a traffic violation, occurred or is about to occur before stopping the vehicle. Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). When determining whether an investigatory stop was justified by reasonable suspicion, a reviewing court must consider the totality of the circumstances, giving deference to the inferences and deductions of a trained police officer. State v. Huntley, 97-0965 (La.03/13/98), 708 So.2d 1048. The determination of reasonable suspicion for an investigatory stop, or probable cause for arrest, does not rest on the officer’s subjective beliefs or attitudes, but turns on a completely objective evaluation of all the circumstances known to the officer at the time of the challenged action. State v. Landry, 98-0188 (La.01/20/99), 729 So.2d 1019; State v. Arnold, 34,194 (La.App.2d Cir.12/06/00), 779 So.2d 840. When an officer observes what he objectively believes is a traffic offense, the decision to stop the vehicle is reasonable, regardless of the officer’s intent. Whren v. United States, supra.

In Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), the Supreme Court addressed whether non-threatening contraband detected through the sense of touch during a Terry pat-down may be admitted into evidence. Analogizing to the “plain view” doctrine, which provides that if police are lawfully in a position to view an object and its incriminating character is immediately apparent they may seize it without a warrant, see Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990), the Dickerson Court held that when a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the |7officer’s search for weapons, and its warrantless seizure is justified by the same practical considerations that inhere in the plain view context. Minnesota v. Dickerson, supra.

Great weight is placed upon the trial court’s ruling on a motion to suppress, in regard to the finding of facts, because it had the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Jackson, 26,138 (La.App.2d Cir.08/17/94), 641 So.2d 1081. Accordingly, appellate courts review a district court’s ruling on a motion to suppress under the manifest error standard in regard to factual determinations, while applying a de novo review to its findings of law. State v. Hemphill, 41,526 (La.App.2d Cir.11/17/06), 942 So.2d 1263, writ denied, 06-2976 (La.03/09/07), 949 So.2d 441.

In this case, the evidence adduced at the hearing on the motion to suppress supports the trial court’s denial of defendant’s motion to suppress. Officer Jackson testified that he initiated a traffic stop because he noticed a car backing down one street and turning onto another, before almost running into a ditch and swerving. Although the officer’s reports state that his initial reason to initiate the stop was that it was his belief that the car lacked a license plate, either reason would have been enough to initiate a traffic stop. We note that Officer Jackson on cross-examination stated that he initially did not see a license plate but did see the plate after the stop. Both the United States and Louisiana Supreme Courts have held that officers may make an initial traffic stop after observing a traffic infraction, even if the stop is a pretext to investigate for controlled dangerous | ^substances. Whren v. United States, supra; State v. Kalie, 96-2650 (La.09/19/97), 699 So.2d 879. Further, regardless of any perceived inconsistencies by the defense, it was within the trial court’s discretion to make factual determinations based upon Officer Jackson’s credibility, and its determination should not be disturbed on appeal absent a showing of an abuse of discretion. Based upon Officer Jackson’s observation of a traffic violation, he was justified in initiating a traffic stop.

Once Officer Jackson approached the vehicle, he noticed that defendant, a passenger in the vehicle, was fidgety and looked suspicious. Thus, following his instinct and in the interest of officer safety, he executed a weapons search. As Officer Jackson conducted the pat-down, he felt what he believed to be a bag of marijuana. Additionally, Officer Jackson testified that the defendant confirmed that he had marijuana in his pocket. Applying the “plain-feel” doctrine, the seizure of the marijuana was valid and lawful. See Minnesota v. Dickerson, supra.

The traffic stop and subsequent search and seizure were valid and lawful. Therefore, the trial court correctly denied the motion to suppress.

In his pro se brief, defendant states that the police video dash cam was neither subpoenaed nor introduced into evidence. Defendant argues that since technology allows traffic stops to be recorded, police officers should be required to submit the video footage into evidence. Defendant goes further to request that this Court not consider an officer’s testimony that is not corroborated by video surveillance.

| aThis was a hearing in the trial court on the motion to suppress. Only Officer Jackson testified and nothing was asked or said about whether there was such a video or even a camera in the police cruiser. No objection on this ground was made nor was there any request for a video. There is nothing in the record concerning the existence of a video dash camera.

We also note that the only challenge to Officer Jackson’s testimony was that he did not write in his police report that the vehicle swerved. The state had the burden to prove an exception to the warrant requirement. An officer’s testimony alone, if believed, is sufficient to prove a fact. State v. Willis, 36,759 (La.App.2d Cir.04/09/03), 843 So.2d 592.

Conclusion

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

      . The facts of the case as stated in the Court’s opinion are:
      On April 19, 2002, Officer Maria Trevizo and Detectives Machado and Gittings, all members of Arizona’s gang task force, were on patrol in Tucson near a neighborhood associated with the Crips gang. At approximately 9 p.m., the officers pulled over an automobile after a license plate check revealed that the vehicle’s registration had been suspended for an insurance-related violation. Under Arizona law, the violation for which the vehicle was stopped constituted a civil infraction warranting a citation. At the time of the stop, the vehicle had three occupants' — the driver, a front-seat passenger, and a passenger in the- back seat, Lemon Montrea Johnson, the respondent here. In making the stop the officers had no reason to suspect anyone in the vehicle of criminal activity.
      The three officers left their patrol car and approached the stopped vehicle. Machado instructed all of the occupants to keep their hands visible. He asked whether there were any weapons in the vehicle; all responded no. Machado then directed the driver to get out of the car. Gittings dealt with the front-seat passenger, who stayed in the vehicle throughout the stop. While Ma-chado was getting the driver’s license and information about the vehicle’s registration and insurance, Trevizo attended to Johnson.

        Trevizo noticed that, as the police approached, Johnson looked back and kept his eyes on the officers. When she drew near, she observed that Johnson was wearing clothing, including a blue bandana, that she considered consistent with Crips membership. She also noticed a scanner in Johnson's jacket pocket, which "struck [her] as highly unusual and cause [for] concern,” because "most people” would not carry around a scanner that way “unless they’re going to be involved in some kind of criminal activity or [are] going to try to evade the police by listening to the scanner.” In response to Trevizo’s questions, Johnson provided his name and date of birth but said he had no identification with him. He volunteered that he was from Eloy, Arizona, a place Trevizo knew was home to a Crips gang. Johnson further told Trevizo that he had served time in prison for burglary and had been out for about a year.
      Trevizo wanted to question Johnson away from the front-seat passenger to gain "intelligence about the gang [Johnson] might be in.” For that reason, she asked him to get out of the car. Johnson complied. Based on Trevizo's observations and Johnson’s answers to her questions while he was still seated in the car, Trevizo suspected that "he might have a weapon on him.” When he exited the vehicle, she therefore "patted him down for officer safety.” During the pat-down, Trevizo felt the butt of a gun near Johnson's waist. At that point Johnson began to struggle, and Trevizo placed him in handcuffs.
      Johnson was charged in state court with, inter alia, possession of a weapon by a prohibited possessor.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . Officer Jackson testified that one other officer arrived on the scene "before (defendant) stepped out of the vehicle.”