author: MARION F. EDWARDS, Chief Judge.

text:
    Felton GOUDIA, Jr., Anthony Goudia, Chenell Goudia-Brown, Bethany Gou-dia Lovette, Chad Hilaire and Doris Ann Franklin on Behalf of her Minor Child, Jayvon Franklin v. Dr. Willard Kenneth MANN, the Louisiana Mutual Medical Insurance Company, Life Care Hospital of New Orleans, LLC, and the Louisiana Patients’ Compensation Fund.
    No. 11-CA-960.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 22, 2012.

      G. Frederick Kelly, III, Attorney at Law, New Orleans, LA, for Plaintiffs/Appellants.
    Jacqueline G. Griffith, Rebecca J. Beck, Carl L. Aspelund, Chehardy, Sherman, Ellis, Murray, Recile, Griffith, Stakelum & Hayes, L.L.P., Metairie, LA, for Defendant/Appellee.

      Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   MARION F. EDWARDS, Chief Judge.

| gPlaintiffs/appellants, Felton Goudia, Jr., Anthony Goudia, Chenell Goudia-Brown, Bethany Goudia Lovett, Chad Hi-laire, and Doris Ann Franklin, on behalf of her minor child Jayvon Franklin (“plaintiffs”), appeal a jury verdict as well as the denial of a Motion Notwithstanding the Verdict, in favor of defendants/appellees, Dr. Willard K. Mann (Dr. Mann) and Louisiana Mutual Medical Insurance Company (LAMMICO), dismissing their claims.

Felton Goudia, Sr. (Mr. Goudia) died while hospitalized at Life Care Hospital of New Orleans, LLC (Life Care) on April 12, 2002. The general facts are that Dr. Mann treated Mr. Goudia, a diabetic, at Kenner Regional Medical Center (Kenner Regional) and at Life Care Hospital (Life Care), a separate facility within the Ken-ner building. Mr. Goudia was admitted for treatment for surgery that involved the amputation of Mr. Goudia’s left great toe, the revision of amputation sites at two other toes, and a skin graft to his left foot. Following surgery, and despite the fact that he could not be fully aroused, he was transported to Life Care |son the third floor of the hospital. While there, he was placed under the care of Nurse Rosa Hebert. Nurse Hebert determined that Mr. Goudia was unresponsive and reported this to her supervisor, Allen Nash, a registered nurse. Mr. Goudia’s vital signs began to deteriorate, and he became tachycardic. He remained unresponsive to stimuli and continued to deteriorate throughout the day. Later that night, Mr. Goudia died.

A complaint of malpractice filed by plaintiffs was evaluated by a Medical Review Panel. The Panel returned a unanimous opinion that Mr. Goudia was properly informed of the procedure; that the procedure was indicated and properly performed; that Dr. Mann’s post-operative treatment of Mr. Goudia was proper; and that Dr. Mann exercised good judgment based upon the information he received. The Panel concluded that the evidence did not support the conclusion that Dr. Mann failed to meet the applicable standard of care. The present lawsuit was subsequently filed.

Plaintiffs’ petition alleged that Mr. Gou-dia’s death was caused by the acts and omissions of Dr. Mann and Life Care through its employees, Nash, Hebert, Col-lette Jackson, and Adele Guerringer. Named as defendants were Dr. Mann, LAMMICO, Life Care, and the Louisiana Patients’ Compensation Fund.

Prior to trial, plaintiffs settled with Life Care, Nurse Hebert, and the Louisiana Patients’ Compensation Fund. The matter proceeded to a jury trial only against Dr. Mann and LAMMICO. The jury found that Dr. Mann did not breach the standard of care required of him, and the trial court dismissed the case. The court later denied a Motion for Judgment Notwithstanding the Verdict (JNOV). Plaintiffs appeal the verdict and judgments.

At trial, Sandra Pitre testified that she was a nurse in the recovery room at Ken-ner Regional at the time Mr. Goudia was a surgical patient. She testified that,

14aIthough Dr. Mann was the surgeon, Dr. Stock, a nephrologist, was his primary physician. Following his surgery, Mr. Goudia’s vital signs were stable but he was not responsive. However, nursing notes indicated that he was “arousable to verbals,” which' does not really mean awake and alert. Prior to being discharged to Life Care, Mr. Goudia was seen by Dr. Stock, who did not object to the discharge. The anesthesiologists also released him. Nurse Pitre helped transport Mr. Goudia to Life Care, during which time he remained unresponsive. Life Care, which is like a long-term ICU, took in very sick patients. Dr. Mann was not notified because Mr. Goudia’s condition was not a surgical issue, such as bleeding or a surgical complication.

Nurse Hebert testified that she was a licensed practical nurse employed at Life Care at the time Mr. Goudia was admitted following surgery. The charge nurse, RN Alan Nash, was her supervisor. According to Nurse Hebert’s notes, Mr. Goudia was unresponsive when he was admitted, and he did not wake up after the administration of IV fluids. She had never seen this in a post-operative patient. His pupils were non-reactive to light, and he could not be aroused with hard or painful stimuli. Nurse Hebert was concerned. At some point, Dr. Mann was paged. Hebert mentioned to him that the patient was unresponsive, and Dr. Mann gave orders for medication (Narcan) to raise his blood pressure and for IV fluids. After the medications were administered, Mr. Goudia’s conditioned improved somewhat. A short while later, as a result of a blood sugar reading, Dr. Mann was again contacted and new orders were given regarding IV fluids. Mr. Goudia’s blood pressure dropped again. After contacting Dr. Mann again, he ordered Dilantin to be given in the IV and shortly thereafter, Nurse Hebert went off duty. Nurse Hebert was concerned that Dr. Mann did not come to see Mr. Goudia after being advised that he remained non-responsive. She was certain that she spoke Rwith Dr. Mann about the administration of Dilantin, because Mr. Goudia was unresponsive, although she was uncertain as to whether she made two or three phone calls to him.

RN Alan Nash testified that he was the charge nurse at Life Care on the day of Mr. Goudia’s death. He supervised Nurse Hebert and had no reason to doubt her care of patients or her documentation of records. His recollection of this case was based on review of the medical records.

Adele Guerringer was a nurse at Life Care in 2002 and she, too, only recollected the matter after review of the medical records. Nurse Hebert was very thorough. Nurse Guerringer’s notes indicate that she took over Mr. Goudia’s case when Nurse Hebert’s shift was over, and she, too, found him unresponsive with non-reactive pupils. His vital signs were checked at about 8:00 p.m. at which time his heart rate and pulse were regular. His breathing was normal, and he did not appear to be in distress. She did not observe any condition that would make her call a physician. Mr. Goudia died a short time later.

Dr. Mann testified that Mr. Goudia suffered from severe diabetic neuropathy and kidney disease, and he was on dialysis. He also had severe cardiomyopathy and severe peripheral vascular disease. He had been an “exceptionally chronically ill” man. He had burned his foot, but, because of the neuropathy, he did not realize the extent of the injury and did not seek treatment immediately. Dr. Mann wanted to treat him with hyperbaric oxygen treatment to avoid amputation, and Mr. Goudia was admitted to Life Care. During this time, Mr. Goudia had a series of debride-ments at Kenner Regional, which procedures removed non-viable tissue. Mr. Goudia had an episode of seizures and was transferred to Kenner Regional. A CT scan revealed a small infarct or blockage on the brain that caused atrophy in certain areas of the brain. The atrophy was way beyond his age of fifty-four years, |fiand there were multiple areas of ischemic-type events. This was consistent with his other medical problems. Mr. Goudia returned to Life Care for continuation of treatment. The hyperbaric treatment rendered an “unbelievable” response, so that Mr. Gou-dia would not lose his leg or foot, but only some toes.

The surgery was originally scheduled for April 11, 2002, but, due to a spike in temperature, Dr. Mann consulted Dr. Pen-ico, an infectious disease specialist. After consulting with Dr. Penico, it was determined that the temperature spike had improved, and they decided to go ahead with the surgery the next day to prevent or retard an infectious process. Although he had suffered intermittent episodes of confusion, Mr. Goudia was not confused when Dr. Mann saw him. Dr. Mann explained the situation to Mr. Goudia and stated that the surgery would be postponed for a day. The patient had no problem conversing or understanding. On the morning of surgery, Mr. Goudia was “up for it.” He had already agreed to the surgery, but no consent form was signed that day because he felt too shaky.

The surgery went exceptionally well, and Dr. Mann had great hope that Mr. Goudia would be able to go home. In the recovery room, the patient was groggy but doing well. Mr. Goudia nodded at him when told everything had gone well. He was post-anesthetic, awake, and responsive. There was no one in the waiting room to speak with; Mr. Goudia’s family had not been informed that the surgery had been rescheduled due to privacy issues, and it was felt that Mr. Goudia could communicate with his family as he wished. There was no one in his family that the doctor had spoken with on a regular basis. Mr. Goudia had been in danger of developing sepsis from the time of his burn, so he had been placed on antibiotics with a plan to remove the toes, which were expected to become gangrenous. Surgery was performed to prevent sepsis. Following surgery, antibiotics were presumed, the patient would be monitored, and Dr. Mann was to be notified if there were any extreme changes in status.

If there was trouble arousing a patient after surgery, the first person to be called would be the anesthesiologist.

When Nurse Hebert first called him, she reported his vital signs and said the patient’s blood pressure had dropped. She also said he was “hard to arouse” and Narcan, which counteracts the effects of other narcotic medication, was ordered. She did not say that Mr. Goudia was unresponsive. Dr. Mann felt that, because Mr. Goudia was a dialysis patient, his body might be slow to clear the anesthesia. He ordered albumin, which is very concentrated, to pull fluid into the body because he did not want to flood the patient, who would not be receiving dialysis that day, with fluid. Normal amounts of saline would have killed him. On the second phone call, Nurse Hebert told him that Mr. Goudia’s pressure had improved, his pulse was better, and his blood sugar had gone down. He ordered normal saline. If there is a change in neurological status, the nurse is supposed to inform him. Again, Dr. Mann was not told that the patient was non-responsive. He did not give an order for Dilantin because it can lower the blood pressure. Nurse Hebert may have told him she could not give the Dilantin orally, and Dr. Mann may have told her Dilantin could be given via IV later “if we need to.” The third call he got with regard to Mr. Goudia stated that he was in a code status.

Dr. Mann testified that it is not unexpected that a patient with Mr. Goudia’s problems had probable blockages in his heart and could die of an arrhythmia.

Dr. Mann was shocked to discover the entries regarding Mr. Goudia’s unresponsiveness, in particular non-responsive pupils, as these are serious red flags. If he had been notified of this, he would have checked Mr. Goudia immediately.

18Pr. Michael S. Hickey was accepted as an expert in the field of general surgery. He testified that he reviewed the medical records of Mr. Goudia, as well as relevant depositions, including that of Dr. Mann. Based on the information, Dr. Hickey opined that the treatment received by Mr. Goudia between 8:80 p.m. and the time he died was below the standard of care. Mr. Goudia had been responsive and reactive, and, after being transferred to Life Care, there was documentation that he was unresponsive, indicating a significant change. Between 10:05 a.m., when he left the recovery room, and 10:20 a.m., when he was brought to Life Care, something happened, and there were definite neurological changes. He may have had septic shock, he may have had a stroke, or he may have had some event associated with hypoglycemia. Upon being apprised of the situation, a physician should have attended to the patient by calling another physician, transferring him to ICU, or seeing the patient. In Mr. Goudia’s case, his blood pressure was low, his respiratory rate was high, he was unresponsive, and he had non-reactive pupils. He had blood sugar problems. His dilated pupils indicated hypotension or low blood glucose, not narcotics. The order to give saline solution “half normal” would not increase the blood volume enough; he should have been given normal fluid volume. After Dr. Mann was informed that his patient was lethargic, not easily aroused and had low blood pressure, he should have seen the patient or should have had another physician do so. Dr. Hickey believed that Dr. Mann departed from the standard of care expected of general surgeons. Had Dr. Mann attended Mr. Goudia, he had a chance of survival even in light of his general condition.

Dr. Hickey rendered two reports, which were introduced into evidence. There, among the other factors to which he testified, he criticized Dr. Mann for not recognizing that Mr. Goudia was becoming septic prior to surgery; for proceeding | awith a general anesthetic when a general block could have been used; for not sending Mr. Goudia to ICU following surgery; for not specifying particular monitoring guidelines; and for other actions and non-actions (where Dr. Hickey assumed Dr. Mann had been fully informed of the patient’s condition by the nursing staff). Dr. Hickey also had numerous criticisms regarding failures of the nursing staff.

Dr. Julius Levy, a general surgeon, was a member of the Medical Review Panel on the present case. Prior to rendering the panel opinion, he reviewed medical records and depositions. Dr. Levy believed that the surgery was necessary because, without it, gangrene would have progressed. Immediately following the burn wound, it would not have been in the patient’s best interest to amputate his foot without attempting to heal it via hyperbaric treatment and antibiotics. It appears that the surgery was properly performed. The statistics on the nursing flow sheets indicated that Mr. Goudia’s breathing was rapid, but not labored, he had good pulses in his extremities, and, although his blood pressure was low, it was also low when he got to the operating room. Although there was some degree of sepsis, Dr. Levy did not believe Mr. Goudia was in septic shock. If he had been in septic shock when released from post-operative care, he would likely have been dead by 3 in the afternoon. Further, Mr. Goudia did not exhibit the signs of shock, such as cold clammy skin, a severe drop in blood pressure, pallor of the arm and leg, and he would have been totally non-responsive.

It was not a problem that Mr. Goudia was sent to Life Care instead of the hospital ICU. It was appropriate for Dr. Mann to accompany Mr. Goudia to the recovery room and then leave. The decision of when a patient leaves recovery is that of the anesthesiologist. A qualified nurse should be expected to recognize problems with certain statistics, such as blood pressure, respiration, and pulse, linwithout being given a written order. When Dr. Mann was told of Mr. Goudia’s low pressure and difficulty waking, the medications he ordered were appropriate. Because Mr. Goudia was a dialysis patient and had had congestive heart failure, it would be wrong to overload him with an excess of IV fluids. When told that Mr. Goudia’s blood sugar was low, Dr. Mann’s order of one-half saline solution was low and, thus, appropriate, giving him enough glucose without too much fluid. You can assess a patient to a large degree over the phone with a nurse.

When reviewing for the Medical Review Panel, Dr. Levy relies mostly on the medical records, although many times facts come out on statements and depositions that are pertinent and enable him to examine the records more carefully. On cross-examination, Dr. Levy opined that Mr. Goudia’s condition was such that, had a doctor been at his bedside, there was nothing more that could have been done. Mr. Goudia did not die because he was unattended by a physician, but, rather, he died because of his illnesses.

Dr. Michael Williams, an expert in anesthesiology, testified that he provided anesthesia to Mr. Goudia for the surgery. Prior to the surgery, Dr. Williams discussed it with the patient, who knew he had to have the operation. If Dr. Mann had requested an inappropriate type of anesthesia, Dr. Williams would not have agreed to give it. Dr. Williams administered a number of anesthesia medications, including Diprivan, Rocuronium, a neuro-muscular blocker; Fentanyl, Lidocaine, and several others. It was not a breach of care for Dr. Mann to order general anesthesia, as it was fairly light and the surgery was relatively short. Mr. Goudia’s blood pressure during surgery was lower than usual, but that is very common during general anesthesia. Ephedrine was given to maintain his blood pressure. After surgery, Dr. Williams accompanied the patient to the recovery room. Mr. Goudia was stable and arousable, but sleeping lightly. If stimulated, he would | nopen his eyes. The choice of anesthesia had nothing to do with Mr. Goudia’s death; rather, it was his pre-existing illnesses and postoperative course. There was no indication in the report by Nurse Pitre that the patient was in distress.

On appeal, plaintiffs contend that the jury erred in determining that Dr. Mann did not breach the applicable standard of care, and the trial court erred in denying the JNOV filed on their behalf. They urge that it was below the standard of care for Dr. Mann to fail to personally attend Mr. Goudia, or to summon another physician to do so, after having received the phone calls from Nurse Hebert informing him of the patient’s change in condition following surgery, and for him to lie unattended by a doctor for over ten hours.

Medical records, including the nursing notes from Life Care on April 12, 2002, were introduced into evidence. In the chart records, Nurse Hebert noted the physicians’ first orders for Albumin and Narcan; the low flow IV fluid; and, later, for Dilantin “IVPB slowly run for 2 hrs[.]”; and, finally, that Mr. Goudia was pronounced dead. It is not clear when Dr. Mann initialed those entries.

The standard of review on appeal is as follows:

It is well-settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of manifest error or unless it is clearly wrong.... To reverse a fact-finder’s determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and that the record establishes that the finding is clearly wrong. Mart v. Hill, 505 So.2d 1120 (La1987). Where the jury’s findings are reasonable, in light of the record viewed in its entirety, the court of appeal may not reverse. Even where the court of appeal is convinced that it would have weighed the evidence differently to reach a different result, reversal of the trial court is improper unless the trial court’s ruling is manifestly erroneous, or clearly wrong....
... [Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, where conflict exists in the testimony.... However, where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact-finder would li2not credit the witness’s story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination....

La. R.S. 9:2794, in pertinent part, provides:

A. In a malpractice action based on the negligence of a physician ... the plaintiff shall have the burden of proving:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care, the plaintiff suffered injuries that would not otherwise have incurred.

The plaintiff must establish the standard of care applicable to the charged physician, a violation by the physician of that standard of care, and a causal connection between the physician’s alleged negligence and the plaintiffs injuries resulting therefrom. Whether alleged malpractice constitutes negligence is a question for the jury. With respect to causation, a plaintiff must prove by a preponderance of evidence that he suffered injury due to a defendant’s conduct. The issues in loss of chance of survival eases are whether the tort victim lost any |ischance of survival because of the decedent’s negligence and the value of that loss. The plaintiff need not show that the decedent would have survived had she received the appropriate treatment; rather the plaintiff need only show that the decedent had a chance of survival which was denied as a result of the defendant’s negligence. The burden of proof in such case is by a preponderance of evidence.

In the present case, on appellate review we find no manifest error in the jury’s findings and conclude such findings were reasonable, in light of the record viewed in its entirety. The jury’s findings appear to turn largely on a credibility finding in favor of Dr. Mann. Although Nurse Hebert testified that she informed Dr. Mann of Mr. Goudia’s condition, Dr. Mann testified that he was not made aware by the Life Care nursing staff that Mr. Goudia was unresponsive and had fixed and dilated pupils. Dr. Mann was shocked to learn of the existence of these unreported “red flag” symptoms and would have taken action had they been conveyed to him.

Dr. Levy opined that a qualified nurse should be expected to recognize problems with certain statistics, such as blood pressure, respiration, and pulse without being given a written order. In his medical opinion, Mr. Goudia did not die because he was unattended by a physician, but, rather, he died because of his illnesses, and, had a doctor been at his bedside, there was nothing more that could have been done. Although his opinion conflicted with that of Dr. Hickey, the rule that questions of credibility are for the trier of fact applies to the evaluation of expert testimony, unless the stated reasons of the expert are patently unsound. The evaluation of and resolution of conflicts in expert testimony are factual issues to be 114resolved by the trier of fact, and the determinations of the fact finder should not be disturbed on appeal in the absence of manifest error.

Even absent a credibility question, plaintiffs argue that Nurse Hebert conveyed to Dr. Mann the “change in condition,” which should have triggered his immediate intervention. They contend that the issue is whether or not Dr. Mann, if he had been informed at 3:30 p.m. of such change as testified to by Nurse Hebert, could have made an earlier diagnosis of a dangerous condition that called for a different course of treatment. If so, the second question is whether Dr. Mann’s failure to undertake that course of treatment decreased Mr. Goudia’s chances of survival. There is no evidence in the record that supports such a conclusion. Dr. Hickey testified that, between the time Mr. Goudia left the recovery room and 10:20 a.m., when he was brought to Life Care, “something happened” to cause definite neurological changes. The nursing care notes indicate that Mr. Goudia was categorized as “non-responsive” upon his arrival at Life Care, and, although his blood pressure and blood sugar waxed and waned, this problem did not. Interestingly, as late as 8:00 p.m., Nurse Guerringer did not observe any condition that would cause her to call a physician.

Dr. Hickey opined that, among. other things, Dr. Mann should have transferred Mr. Goudia to ICU; should have had him assessed for a stroke or other central nervous system injury; should have administered more Narcan; should have ordered additional blood tests; should have evaluated Mr. Goudia; and should have administered the appropriate fluids to resuscitate him. This latter finding, as with several others, assumed Mr. Goudia was in septic shock, of which there is no evidence in the record. Dr. Hickey did not assess what the quantitative chances of survival would have been had any of these measures been taken. The testimony 115and evidence support a conclusion that a significant change occurred by the time Mr. Goudia was assessed at Life Care. There is no evidence in the record that any of the procedures suggested by Dr. Hickey would have increased the chances that Mr. Goudia would have survived whatever neurological event occurred.

The Louisiana Supreme Court considered loss of chance of survival in a cardiac arrest case. There the court discussed the evidence in the record and stated:

Plaintiffs seem to argue that we should assume that the defendants’ failure to employ preventive treatment measures decreased the patient’s chances of survival. It is true that one can logically assume that certain alternative methods of treatment, such as moving the patient to intensive care and placing her on a heart monitor, would have constituted an effort to decrease the risk that she would go into cardiac arrest. But would the risk of cardiac arrest actually have been decreased? This is a question which the record before us does not answer, and absent at least some evidence on the issue, we cannot simply assume that the defendant’s failure to employ a more active course of treatment denied this heart patient a chance of survival.

A similar analysis applies here. There is simply no evidence in the record as to whether treatment undertaken earlier would have provided Mr. Goudia a chance of survival that he otherwise would not have had.

The standard to be used in determining whether a JNOV has been properly granted has been set forth in our jurisprudence as follows:

A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable jurors could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. If there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. In making this determination, the court should not evaluate the credibility of the witnesses and all reasonable inferences or factual questions should be resolved in favor of the non-moving party.

|1fiThe standard of review for a JNOV on appeal is a two part inquiry. In reviewing a JNOV, the appellate court must first determine if the trial court erred in granting the JNOV. This is done by using the aforementioned criteria just as the trial judge does in deciding whether or not to grant the motion. After determining that the trial court correctly applied its standard of review as to the jury verdict, the appellate court reviews the JNOV using the manifest error standard of review. If reasonable people could have arrived at the same verdict, given the evidence presented to the jury, then the JNOV is improper.

As we have already reviewed the jury’s findings and found no manifest error, we cannot say that the jury’s verdict as finally rendered was unreasonable or. clearly contrary to the law and the evidence.

For the foregoing reasons, the verdict and judgments are affirmed.

AFFIRMED

      . Little v. Boston Scientific Corp., 08-271 (La.App. 5 Cir. 1/13/09), 8 So.3d 591, 597, writ denied, 09-0546 (La.4/17/09), 6 So.3d 801 (citing Rabalais v. Nash, 06-0999 (La.3/9/07), 952 So.2d 653, 657).

      . Braud v. Woodland Vill., L.L.C., 10-0137 (La.App. 4 Cir. 12/8/10), 54 So.3d 745, 750, reh'g denied, (1/13/11), writ denied, 11-0311 (La.4/1/11), 60 So.3d 1254 (citing Pfiffner v. Correa, 94-0924, 94-0963, 94-0992 (La.10/17/94), 643 So.2d 1228, 1232; Beaucoudray v. Walsh, 07-0818 (La.App. 4 Cir. 3/12/09), 9 So.3d 916, 923).

      . Id.

      . Banister v. Day, 08-835 (La.App. 5 Cir. 5/26/09), 13 So.3d 229, 232-33, writ denied, 09-1529 (La.10/9/09), 18 So.3d 1286; See also, Gordon v. La. State Univ. Bd. of Supervisors, 27,966 (La.App. 2 Cir. 3/1/96), 669 So.2d 736, writ denied, 96-1038 (La.5/31/96), 674 So.2d 263.

      . Smith v. State, Dep’t of Health and Hosp., 95-0038 (La.6/25/96), 676 So.2d 543; Greer v. Lammico, 34,058 (La.App. 2 Cir. 12/22/00), 779 So.2d 894, 899-900, writ denied, 01-0445 (La.4/27/01), 791 So.2d 116.

      . Greer v. Lammico, supra.

      . Braud v. Woodland, supra.

      . Galen-Med, Inc. v. Porter, 05-0788 (La.App. 4 Cir. 3/29/06), 928 So.2d 681, 688-89 (citing Lasyone v. Kansas City S. R.R., 00-2628 (La.4/3/01), 786 So.2d 682).

      . Id.

      . Smith v. State through Dep’t of Health & Human Res. Admin., 523 So.2d 815, 821 (La.1988) (emphasis as found in the original).

      . Davis v. Wal-Mart Stores, Inc., 00-0445 (La.11/28/00), 774 So.2d 84, 89 (citations omitted).

      . Id.

      . Miller v. PNK, 11-216 (La.App. 3 Cir. 10/5/11), 76 So.3d 122, 130 (citing Anderson v. New Orleans Pub. Serv., Inc.., 583 So.2d 829 (La.1991)).


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Lionel BURTON.
    No. 11-KA-1023.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 22, 2012.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Vincent Paciera, Jr., Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Kevin V. Boshea, Attorney at Law, Me-tairie, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and ROBERT A. CHAISSON.
   ROBERTA. CHAISSON, Judge.

12This is .Lionel Burton’s second appeal. The sole issue raised herein is whether the trial court erred in denying defendant’s motion to suppress evidence. For the reasons which follow, we affirm the ruling of the trial court.

PROCEDURAL HISTORY

On May 6, 2010, defendant pled guilty to possession of a firearm by a convicted felon, a violation of LSA-R.S. 14:95.1 (count one), and to possession with intent to distribute heroin, a violation of LSA-R.S. 40:966 A (count two). The trial court thereafter sentenced defendant to imprisonment at hard labor for fifteen years on count one and to imprisonment at hard labor for twenty years on count two, to run concurrently. Both sentences were ordered to be served without benefit of parole, probation, or suspension of sentence.

|3Aso, on May 6, 2010, the State filed a bill of information pursuant to LSA-R.S. 15:529.1 alleging defendant to be a second felony offender. After defendant admitted to the allegations in the multiple bill, the trial court vacated the sentence on count one and re-sentenced defendant as a second felony offender to imprisonment at hard labor for twenty years without benefit of parole, probation, or suspension of sentence to be served concurrently with the sentence imposed on count two. Defendant thereafter filed a motion for appeal which was granted by the trial court.

In his first appeal, defendant argued that he was denied his right to appeal the ruling on the motion to suppress because the transcript of those proceedings could not be obtained. He also argued that since he was unable to appeal the ruling on the motion to suppress, he was entitled to withdraw his guilty pleas. This Court denied defendant’s request to withdraw his guilty pleas but remanded the matter to the trial court to conduct another suppression hearing. State v. Burton, 10-972 (La.App. 5 Cir. 6/14/11), 71 So.3d 379.

On September 23, 2011, another hearing was held on defendant’s motion to suppress in accordance with this Court’s instructions. After considering the evidence presented, the trial court denied defendant’s motion to suppress evidence and statement. It is from this denial that defendant now appeals.

FACTS

On February 24, 2009, at 2:47 a.m., Deputy Westley West of the Jefferson Parish Sheriffs Office was on duty when he heard a broadcast over the radio that there was an armed robbery in progress which involved a “white van type vehicle.” Approximately three to five minutes later, Deputy West saw a white Land Rover 14heading southbound on Clearview Parkway. Deputy West made a u-turn, got behind the vehicle, and activated his overhead lights and sirens.

The vehicle crossed over Airline Highway, and at that point, Deputy West thought the vehicle was going to stop. However, as Deputy West approached the rear of the vehicle, the vehicle took off again and headed southbound on Clear-view Parkway at a high rate of speed while changing lanes. The vehicle then took a right heading westbound on the Earhart Expressway and stopped in a dark area. Deputy West pulled his marked unit behind the suspect vehicle and advised the subject three times to exit the vehicle. After the third time, an individual, later identified as defendant, got out of the vehicle.

Deputy West told defendant to approach the rear of his vehicle and the front of the police unit. Defendant eventually complied with those instructions. Deputy West walked over and patted down defendant. As he did so, he found a large sum of money, with rubber bands around it, in both of defendant’s pockets. Deputy West handcuffed defendant and told him he was not under arrest, but rather was being detained. Deputy West then advised defendant of his Miranda rights. Defendant told Deputy West that the money was from real estate activity; however, later on, defendant said he won the money gambling.

About that time, Deputy Roy Lambert arrived to assist with the stop. Deputy West informed Deputy Lambert that there was a gun on the floorboard in defendant’s vehicle. Deputy Lambert walked over to the vehicle, saw the handgun, retrieved it, and gave it to Deputy West. At the suppression hearing, Deputy West explained that he had previously seen what appeared to be a gun on the floorboard of the vehicle at the time of the stop with his light. Deputy West testified that he |5saw the gun when he was in front of his police unit, and defendant was coming out of his vehicle.

Deputy Lee Hardy also arrived at the scene to assist with the stop. When he got there, defendant was already in the back seat of the police unit. While Deputy Hardy was standing there, he noticed behind the right front tire of Deputy West’s patrol car a large bag of what appeared to be crack cocaine. Deputy Hardy pointed the bag out to Deputy West, who then retrieved it. At the suppression hearing, Deputy West explained that two balls of narcotics were found where he had patted down defendant by the police unit on the side of the road. Deputy West further testified that at some point he saw something white fall, and as he walked by, Deputy Hardy pointed it out.

After considering this evidence presented at the suppression hearing, the trial court denied defendant’s motion to suppress evidence and motion to suppress statement.

DENIAL OF MOTION TO SUPPRESS

On appeal, defendant challenges the trial court’s denial of his motion to suppress evidence. Defendant specifically contends that Deputy West did not have reasonable suspicion of illegal activity; therefore, the initial stop of defendant and subsequent seizure of the evidence were not justified. To support this argument, defendant points out that the stop took place over thirty minutes after the armed robbery call was made; defendant’s clothing, a multi-colored shirt, did not match the description provided in the armed robbery call that the perpetrator wore a green shirt; the vehicle description provided in the armed robbery call of a white van with a television in it did not match defendant’s vehicle, a white Land Rover with no television; and the armed robbery call actually emanated from Yale Street and not York Street as testified to by the officers. Defendant also argues that the | ^search of the Land Rover and subsequent seizure of the gun was illegal under Arizona v. Gant because he had already been removed from the vehicle, handcuffed, and placed against Deputy West’s police unit. We find no merit to these arguments.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. State v. Addison, 05-378 (La.App. 5 Cir. 12/27/05), 920 So.2d 884, 890, writ denied, 06-1087 (La.11/9/06), 941 So.2d 36. If evidence is derived from an unreasonable search or seizure, the proper remedy is to exclude the evidence from trial. State v. Boss, 04-457 (La.App. 5 Cir. 10/26/04), 887 So.2d 581, 585.

In a hearing on a motion to suppress, the State bears the burden of proof in establishing the admissibility of evidence seized without a warrant. LSA-C.Cr.P. art. 703(D). The trial court’s denial of a motion to suppress is afforded great weight, and it will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Addison, 920 So.2d at 890.

It is well established that a police officer may conduct a brief investigatory stop when the officer has a reasonable articulable suspicion of criminal activity. LSA-C.Cr.P. art. 215.1; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert, denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). Reasonable suspicion is something less than probable cause to arrest and requires that police officers have sufficient knowledge of the facts and circumstances to justify an infringement of an individual's right to be free of government interference. State v. Parker, 10-1038 (La.App. 5 Cir. 6/14/11), 71 So.3d 383, 388.

|7The facts upon which an officer bases an investigatory stop should be evaluated in light of the circumstances surrounding the incident. A reviewing court must take into consideration the totality of the circumstances and give deference to the inferences and deductions of a trained police officer that might elude an -untrained person. State v. Bums, 04-175 (La.App. 5 Cir. 6/29/04), 877 So.2d 1073, 1076.

In the instant case, Deputy West was aware that an armed robbery had just been committed in the general vicinity of where he was located. He then spotted a vehicle that matched the general description of the vehicle involved in the armed robbery and began following the vehicle.

Reasonable suspicion has been found to exist under similar circumstances. In State v. Turner, 500 So.2d 885 (La.App. 1 Cir.1986), an employee of a convenience store informed Officer Morris that a black man wearing a light colored hat and a light colored jacket or sweater grabbed her and took money from the store cash register. The incident occurred at approximately 2:50 a.m. Officer Morris was also advised that a witness had seen the suspect leave the store parking lot in a green Chevrolet Nova automobile. Information about the robbery and a description of the vehicle were broadcast over the police radio network. Officer Phares, on patrol in the vicinity, heard the broadcast and noticed a vehicle meeting the description. He forced the vehicle to stop at 3:05 a.m. The occupants were arrested after the officer determined that they were involved in the robbery.

In Turner, defendant moved to suppress evidence retrieved from the vehicle, which the trial court denied. On appeal, defendant argued that the trial court erred by failing to grant his motion to suppress, arguing that the police did not have reasonable suspicion to stop his automobile. The First Circuit found that the officer was clearly justified in making a stop for further investigation, noting that | Rthe officer was aware that a robbery had been committed, and that the automobile he was following matched the description of the vehicle used to flee the scene of that robbery just moments earlier. State v. Turner, 500 So.2d at 886-87.

In the instant case, as in Turner, Deputy West was aware that an armed robbery had just been committed in the general vicinity of where he was located, and that the white Land Rover he was following matched the description of the vehicle used in the robbery just minutes earlier. Although defendant claims in his brief that the stop took place thirty-one minutes after the armed robbery was reported to the police, the incident history detail log and Deputy West’s testimony reflect otherwise. The log, which was admitted into evidence at the suppression hearing, shows that at 2:46:21, an entry was made regarding the robbery that had just occurred at 5039 Yale Street. The log reflects that at 2:58:18, approximately twelve minutes later, the white Land Rover was spotted, and at 3:15:24, it was pulled over.

Additionally, Deputy West testified that he heard over the radio that an armed robbery was in progress which involved a “white van type vehicle,” and that approximately three to five minutes later, he saw a white Land Rover heading southbound on Clearview Parkway. Further, when Deputy West attempted to pull defendant’s vehicle over, defendant fled at a high rate of speed away from the officer. See State v. Morgan, 09-2852 (La.3/15/11), 59 So.3d 408, 411, where the Louisiana Supreme Court concluded that defendant’s unprovoked flight, coupled with the late hour, dimly lit area, and the sergeant’s inferences and deductions based upon his experience with individuals who flee from the police, together supported a finding of reasonable suspicion.

In the present case, considering the totality of the circumstances, including that defendant’s vehicle matched the description of the vehicle used in the armed | nrobbery, the short amount of time between the armed robbery and the spotting of the vehicle, the location of the robbery being in the general vicinity of where the officer was located, defendant’s unprovoked flight from the officer, and the lateness of the hour, we find that the officer had reasonable suspicion to stop the vehicle for further investigation.

Having concluded that the initial stop was justified, we must now determine whether the officer was thereafter justified in seizing the weapon that was inside the vehicle. Police may seize evidence under the plain view doctrine when: 1) there is prior justification for an intrusion into the protected area; and 2) it is immediately apparent, without close inspection, that the items seized are evidence or contraband. State v. Tate, 09-619 (La.App. 5 Cir. 2/9/10), 33 So.3d 292, 300-01. Under the plain view doctrine, if police are lawfully in a position from which they view an object that has an incriminating nature that is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant. State v. Leger, 05-0011 (La.7/10/06), 936 So.2d 108, 155, cert, denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007). The plain view exception does not require a police officer to be certain that the object in plain view is contraband; it simply requires that the officer have probable cause to believe the item in question is either evidence and/or contraband. State v. Tate, 33 So.3d at 301.

In State v. Parker, 71 So.3d at 389, this Court found, under similar circumstances, that the officers were justified in seizing the weapon pursuant to the plain view doctrine. In Parker, an officer stopped a vehicle he believed was involved with a burglary. As the officer was pulling the passenger out of the vehicle, he observed two handguns between the seats and the center console. This Court found that the officer had reasonable suspicion to stop the vehicle, and that 110the firearms were properly seized under the plain view doctrine. This Court noted that the officer was standing outside the vehicle, that he had a right to be standing there, that the firearms were obvious to him, and that it was immediately apparent the items were evidence or contraband.

Likewise, in the instant case, the deputy was standing outside of defendant’s vehicle, and he had a right to be standing there. Deputy West’s testimony indicates that the firearm was obvious to him and that it was immediately apparent the item was evidence or contraband. Given these circumstances, we find that the firearm was properly seized under the plain view exception to the warrant requirement.

After defendant was placed in the police unit, Deputy West and Deputy Hardy saw what appeared to be narcotics by the right front tire of Deputy West’s police unit, the same place where Deputy West had previously patted down defendant. Therefore, the last issue is whether those narcotics were lawfully seized.

If property is abandoned without any prior unlawful intrusion into a person’s right to be free from governmental interference, that property may be lawfully seized. In such cases there is no expectation of privacy and thus no violation of the person’s custodial rights. Only when the person is actually stopped without reasonable cause or when a stop without reasonable cause is imminent, is the right to be left alone violated, thereby rendering unlawful any resultant seizure of abandoned property. State v. Short, 95-742 (La.App. 5 Cir. 1/30/96), 668 So.2d 1240,1245.

In the instant case, Deputy West had reasonable suspicion to conduct an investigatory stop, and defendant apparently abandoned the narcotics by dropping _[i¡them to the ground during that stop. Therefore, the officer was likewise justified in seizing the narcotics.

Based on the foregoing discussion, we find that the initial stop of defendant and the subsequent seizure of the firearm and narcotics were justified. Accordingly, we conclude that the trial court did not err by denying defendant’s motion to suppress evidence.

AFFIRMED

      . Defendant entered his guilty pleas pursuant to State v. Crosby, 338 So.2d 584 (La.1976), thereby reserving his right to appeal the trial court’s denial of his motion to suppress.

      . In defendant’s first appeal, this Court amended his sentence on count two to delete the denial of parole eligibility. State v. Burton, 10-972 (La.App. 5 Cir. 6/14/11), 71 So.3d 379, 383.

      . The first appeal record contained a memo from John Andressen, Chief of Court Reporters for Jefferson Parish, explaining that the 24th Judicial District Court had experienced a "loss of connectivity” with the audio server on January 15, 2010 (the date of the hearing). As a result, the audio files were unable to be retrieved, and a transcript from that date was not available.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)

      . Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009)

      . Defendant argues that the seizure of the gun was illegal under Arizona v. Gant, supra. However, because the firearm was properly seized under the plain view exception to the warrant requirement, it is unnecessary to discuss Arizona v. Gant, supra, as it relates to the instant case.


text:
    STATE of Louisiana v. Laine E. CORTEZ.
    No. 11-KA-1041.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 22, 2012.

      Thomas F. Daley, District Attorney, Sharrolyn J. Miles, Assistant District Attorney, Edgard, LA, for Plaintiff/Appellee.
    Gwendolyn K. Brown, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and ROBERT A. CHAISSON.
   CLARENCE E. McMANUS, Judge.

I STATEMENT OF THE CASE

On February 28, 2011, the St. John the Baptist Parish District Attorney filed a bill of information charging defendant, Laine E. Cortez, with creation or operation of a clandestine laboratory for the unlawful manufacture of a controlled dangerous substance in violation of LSA-R.S. 40:988 (count one), distribution/possession with intent to distribute methamphetamine in violation of LSA-R.S. 40:967(A)(1) (count two), and possession of methamphetamine in violation of LSA-R.S. 40:967(C)(2).

Defendant pled not guilty to these charges at her arraignment on March 2, 2011. On June 16, 2011, a hearing was conducted on defendant’s motion to suppress evidence and on August 3, 2011, the trial court denied the motion to suppress.

On August 23, 2011, defendant was advised of her Boykin rights and pled guilty to counts one and three. The waiver of rights form includes a factual explanation of this case: “That on or about January 1, 2011 defendant did allow a Meth lab to be run in her home and she did possess Meth[.]” Further, during the guilty plea colloquy, defendant provided the following: “I allowed methamphetamine to be made in my home for [sic], and I had it in my possession for my personal, personal [sic] use.”

|sAfter sentencing delays were waived, the trial court sentenced defendant to ten years imprisonment with the DOC as to count one and five years imprisonment with the DOC as to count three, to run concurrently with each other. Five years of the sentence was suspended, and defendant was placed on active probation for five years.

Although the transcript did not mention that the guilty pleas were entered pursuant to Crosby, the waiver of rights form filed in the record does indicate that the pleas were pursuant to Crosby. On August 25, 2011, defendant filed a motion to amend the minutes, contending that the plea was a Crosby plea as indicated in.the “Boykin,” but that counsel had failed to indicate the basis of the Crosby plea for the record. Defendant requested that the minute entry be corrected to show the basis for the appeal was the denial of the motion to suppress. According to the September 8, 2011 minute entry, after considering defendant’s motion to amend, the court noted that defendant’s guilty pleas on August 23, 2011, were pursuant to Crosby in regards to the motion to suppress.

On September 28, 2011, defendant filed a motion for Crosby appeal and designation of record. The trial court granted the appeal on October 3, 2011. This appeal follows.

DISCUSSION

First, we note that defendant failed to file her motion for appeal within the legally allotted time period. Defendant was sentenced on August 23, 2011. She filed a written motion for appeal on September 28, 2011. According to LSA-C.Cr.P. art. 914, a motion for an appeal must be made no later than 30 days after the rendition of the judgment or ruling from which the appeal is taken or 30 days from the ruling on a motion to reconsider sentence filed pursuant to LSA-C.Cr.P. art. 881.1, if one is filed. In this case, a motion to reconsider sentence was not | Tiled. As such, defendant had 30 days from August 23, 2011, the date of her sentencing, to file her appeal and failed to do so. However, between sentencing and filing the motion for appeal, defendant was attempting to correct the record to reflect that her plea was pursuant to Crosby and involved the denial of the motion to suppress. The trial court granted defendant’s motion for appeal, the State has not complained about any procedural irregularities in the ordering of the appeal, and the trial court appointed the Louisiana Appellate Project to represent defendant. Therefore, we will address the merits of the appeal by defendant.

ASSIGNMENT OF ERROR NUMBER ONE

In her only assignment of error, defendant argues that the search conducted by Sergeant Howell, after he was contacted by Sergeant Wale concerning the contents of the house and before he secured the search warrant, was unconstitutional. Defendant suggests that the trial court attempted to excuse the warrantless search on the basis that Sergeant Howell was faced with exigent circumstances that prevented him from securing a warrant, but argues that the facts failed to support this position. Defendant also argues that the court approved the search because the items were discovered in plain view but failed to account for the fact that the State failed to prove that Sergeant Howell had a right to be in the place where he observed the items. Defendant claims that because the State failed to prove either exigent circumstances justified the search or Sergeant Howell had a right to be in the residence at the time he made his observations in plain view, the evidence should be suppressed.

At the suppression hearing, Sergeant Edward Howell of the St. John the Baptist Parish Sheriffs Office was the only witness to testify. He testified that on January 1, 2011, he participated in an investigation that led to the arrest of defendant and others. He explained the events leading to the arrests. He said that | Bon January 1, 2011, he was off duty but had his police radio on when he heard members of the Felony Intercept Unit and the Detective Bureau asking where Bobby Boudreaux was living at the time. They were looking for Darren Sterling regarding a shooting incident or an attempted murder charge and he was supposed to be “hiding out” with Boudreaux. Sergeant Howell called Sergeant Wale and advised him that Bou-dreaux had been under investigation by the Narcotics Bureau for several months in reference to methamphetamine production and believed that he was staying with defendant at her residence at 246 East Twelfth Extension Street in Reserve. He warned Sergeant Wale that if he made entry into the residence to be cautious because there could be a methamphetamine lab inside the residence with many hazardous chemicals. He was concerned about the safety of the officers and occupants. He advised Sergeant Wale to be on the lookout for precursors for manufacturing or for an active lab in the residence.

Sergeant Wale called Sergeant Howell about an hour later to inform him that he had observed numerous items throughout the residence in plain view and believed they were consistent with the manufacturing of methamphetamine. Defendant had given the officers permission to enter her house to detain Sterling.

Sergeant Howell went to the residence after hearing about the items observed. He believed that an active lab was in the residence and wanted to confirm that the lab was not in the process of cooking. He explained that there was no time to get a search warrant, which could have taken hours, because if they were in the process of cooking, there could have been an explosion. All subjects were detained inside of the residence. Sergeant Howell went through each room and took a “quick look” around. He observed several precursors in plain view. He observed camp fuel and lye in Boudreaux’s bedroom and in defendant’s bedroom. He found coffee filters throughout the residence. Sergeant Howell explained that 16he noticed there was a light odor from cooking methamphetamine present when he walked into the front door and there was a strong odor in the kitchen, which was coming from the garage. He believed that he had to make sure there was no active lab in the garage where methamphetamine was. being cooked. He explained that there was an open door in the kitchen that led to the attached garage, where it appeared the actual cooking was taking place. He found a reaction vessel in the garage. He observed a Gatorade bottle with camp fuel in it. He saw lithium battery strips, fertilizer, chicken feed, and an unknown liquid as well. He explained that one has to keep an eye on the cooking and “burp it” to vent or it could result in an explosion. He said that he did not have a search warrant to go into the garage, but did so for officer and occupant safety. He said that after seeing precursors, knowing the history, and smelling the odor, he went to make sure there was no active lab. He testified that there was the risk of explosion if there had been an active lab that was not tended to the entire time and explained the necessity of securing it. After realizing there was no imminent danger, Sergeant Howell left the residence to prepare a search warrant for defendant’s residence while members of the Felony Intercept Unit stayed at the residence. He also contacted the DEA HAZMAT cleanup crew, as was required, to go to the scene to dispose of any hazardous/toxic materials.

The probable cause affidavit for the search warrant provided the following:

On January 1st 2011 at approximately 1830 hours, Detective Corporal Edward Howell was contacted by Sgt Wale of the St John the Baptist Sheriffs Office Felony Intercept Unit in reference to a possible meth lab being discovered in a residence.

Sgt Wale stated that the FIU along with a Detective from SJSO went to a residence in an attempt to make contact with a person whom was wanted for questioning in a shooting incident that had occurred recently. Sgt Wale stated that they were met at the door of the residence by the homeowner who then let them into the residence to apprehend the suspect. As the officers were looking for the subject in the residence, Sgt Wale |7noticed many items through out [sic] the house consistant [sic] with the manufacturing of Methamphetamine (Camp fuel, drain cleaner, gatorade bottles with unknown liquid, coffee filters, alcohol etc), as well as numerous items of parafernalia [sic]. Sgt Wale stated that he immediately secured the residence as well as all occupants and called Det. Howell of the St John Parish Sheriffs Office Bureau of Narcotics.

Det. Howell proceded [sic] to the residence to ensure the safety of the officers and the occupants as Sgt Wale was unsure if there was an actual working lab inside. When Det Howell arrived on-scene, he observed many of the above mentioned items throughout the bedrooms and in the garage. Also located in the garage was a plastic bottle containing chicken feed, lithium strips and an unknown clear liquid. There was no movement in the bottle as it appeared that one of the ingredients had not yet been introduced. Det. Howell immediately contacted his Supervisors to inform them of the findings and the residence was secured.

Judge Snowdy issued the search warrant, and Sergeant Howell returned to the residence and he, along with others, searched the residence. The evidence was photographed.

When conducting the search, the officers brought some of the materials to the HAZ-MAT team and they disposed of the hazardous materials. They provided the officers with a manifest for the items taken for destruction. Several items, including methamphetamine, were seized from the residence pursuant to the search warrant. Further, Sergeant Howell testified that several precursors or materials used for the methamphetamine lab were located in almost every room. He explained that such items included camp fuel, lye, coffee filters, a glass bowl with a spoon containing a white residue, drain cleaner, tubing, and 164 grams of Ephedrine (a key ingredient in the manufacturing of methamphetamine). He found a reaction vessel in the garage, along with a garbage bag with blister packs from Sudafed and lithium battery wrappers. He concluded that it appeared that the manufacturing of methamphetamine was taking place at the residence. Sergeant Howell testified that he learned through his training and experience that three precursors were needed to arrest someone for cooking methamphetamine. He | «explained that only a certain amount of Sudafed/Ephedrine products can be purchased each month. He testified that logs of all those who purchase the products are kept and all of the defendants in this case, except for Sterling, were on the log.

Sergeant Howell interviewed defendant and she gave him a voluntary statement two days after the search warrant and her arrest. She said the items found were used in the manufacturing of methamphetamine. She said Boudreaux and others cooked the methamphetamine.

Sergeant Howell agreed that there were items included in the probable cause affidavit that were not listed in the inventory of items seized. He explained that items turned over to HAZMAT for destruction, such as the reaction vessel containing fertilizer, lithium strips and camp fuel, were not in his possession and were not included in the return for the search warrant. He believed the items listed in the return were the items in the custody of the Sheriffs Office. However, he testified that his report listed all of the items found and noted that there was a manifest of items as well. He testified that the manifest included Sudafed, Sudafed blister packs, plastic tubing, a bottle of drain opener, three bottles of lye, a clear plastic Gatorade bottle with a clear liquid acid substance, three containers of salt, a bottle of peroxide, fertilizer, camp fuel, coffee filters, and a black container of an unknown liquid. He also testified that photographs were taken of the items. Sergeant Howell testified that he may have omitted items from the return not in their possession because he knew that the DEA would give them a manifest of items that were taken.

Sergeant Howell testified that he did not conduct a complete search of the residence without a warrant, but went to the residence looking for an active methamphetamine lab for officer and occupant safety. He believed that the exigent j^circumstances allowed it. He believed the items that the Felony Intercept Unit had observed were sufficient for a methamphetamine lab. He explained that he had to make sure there was no active lab cooking in the residence. He said he walked through the residence and saw things in plain view. He did not consider the first time he entered the residence a search.

Defendant argued that there were items included in the search warrant application that were not listed on the return for the search warrant, which violated the particularity requirement of the application. Defendant argued that if the items were not listed in the return they were not found, and listing the items in the application deceived the judge. Further, defendant argued that there were no exigent circumstances when the officer searched the garage prior to getting the search warrant. As such, defendant argued that the items located were the products of an illegal search. Defendant claimed that a search warrant should have been applied for before the initial search because the residence had been secured. The trial court found no problem with the probable cause affidavit, but admitted concern about the seized evidence that was not included in the return. The State explained that the officers were required to bring in the DEA HAZMAT crew in this situation, noting that meth labs are extremely dangerous. The State also explained that the items on the manifest were not taken into police custody but were destroyed. The State provided that only the items taken into police custody were included on the return.

The trial court denied the motion to suppress. In making the ruling, the court explained that it was initially concerned about the items removed from the scene and not listed in the return, but realized there was no problem after the transcript was re-read because it did not affect the search warrant. The court then addressed the consent to enter the residence given by the owner to Sergeant Wale |Tnto search for Sterling, explaining that Sergeant Wale saw items in plain view after entry. The court noted -that Sergeant Wale did not request or sign the affidavit for the search warrant, but Sergeant Howell did after observing the same items in plain view. Noting that nothing was found exactly on point in the matter, the court found that the officer had a right to enter and see things in plain view, which gave the other officer the right to enter.

On appeal, defendant contends that the State failed to prove either exigent circumstances justified the search or that Sergeant Howell had a right to be in the residence at the time he made his observations in plain view. Defendant contends that if Sergeant Howell had a genuine fear for officer safety he would have suggested that his fellow officers leave the house. Noting that the house was secured at the time, defendant believes there were no justifiable reasons for failing to secure a warrant. She contends that even assuming that the initial entry by Sergeant Wale and his officers was justified by their need to apprehend Sterling, once Sterling was taken into custody and the other occupants had been arrested any exigency ended. Defendant argues that the court erred by finding that Sergeant Wale’s justification for entering the home transferred to Sergeant Howell because the law is clear that the warrantless entry into a home as a result of exigent circumstances is limited in scope to the exigencies that justified the warrantless intrusion. Defendant concludes that because Sergeant Howell obtained the information that he used to support his warrant application from his illegitimate warrantless intrusion into defendant’s home, the court erred by denying the motion to suppress.

The State responds that all evidence seized pursuant to the search warrant was admissible because the warrant itself was valid. The State maintains that the items seized from defendant’s home were admissible under the plain view |T1 exception to the search warrant requirement, in addition to being admissible because they were seized pursuant to a valid search warrant. The State contends that Sergeant Wale observed items believed to be used in the manufacture of methamphetamine and was lawfully in the place where the items were observed because he had been given permission to enter the home by defendant who owned the home. The State argues that the plain view exception to the search warrant requirement existed once Sergeant Wale identified the precursor materials based on his observations and knowledge. The State notes that nothing under the law prohibits an officer from relying on information previously provided to him by another law enforcement officer in establishing probable cause. The State contends that based on what Sergeant Wale knew, there was a probability that incriminating evidence was involved and the plain view exception to the search warrant requirement also justified the trial court’s denial of the motion to suppress. The State concludes that the evidence was properly seized pursuant to a valid search warrant and the plain view exception applied even in the absence of a valid search warrant.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. State v. Thomas, 08-390, p. 6 (La.App. 5 Cir. 1/27/09), 8 So.3d 80, 83, writ denied, 09-0626 (La.11/25/09), 22 So.3d 170. If evidence is derived from an unreasonable search or seizure, the proper remedy is to exclude the evidence from trial. Id. A defendant who is adversely affected may move to suppress evidence from the use at the trial on the merits on the ground that it was unconstitutionally obtained. LSA-C.Cr.P. art. 703(A).

As a general rule, searches and seizures must be conducted pursuant to a validly executed search warrant or arrest warrant. State v. Holmes, 08-719, p. 6 (La.App. 5 Cir. 3/10/09), 10 So.3d 274, 278, writ denied, 09-0816 (La.1/8/10), 24 So.3d 857. A search warrant may be issued only upon probable cause to establish to the satisfaction of a magistrate, by the affidavit of a credible person, particularly describing the person or place to be searched and the things to be seized. State v. Lee, 05-2098, p. 14 (La.1/16/08), 976 So.2d 109, 122, cert. denied, 555 U.S. 824, 129 S.Ct. 143, 172 L.Ed.2d 39 (2008); State v. Johnson, 08-265, pp. 4-5 (La.App. 5 Cir. 8/19/08), 994 So.2d 595, 598. Probable cause for the issuance of a search warrant exists 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 that is to be searched. Lee, 05-2098 at 14, 976 So.2d at 122 (quotations omitted). The facts establishing probable cause for the warrant must be contained within the four corners of the affidavit. State v. Green, 02-1022, p. 8 (La.12/4/02), 831 So.2d 962, 969.

In a hearing on a motion to suppress, the defendant shall have the burden of proving the ground of his motion, except that the State shall have the burden of proof in establishing the admissibility of a purported confession or statement by the defendant or of any evidence seized without a warrant. When evidence is seized pursuant to a search warrant, the defendant bears the burden of proof at a hearing on his motion to suppress that evidence. See LSA-C.Cr.P. art. 703(D); Johnson, 08-265 at 5, 994 So.2d at 599. An affidavit supporting a search warrant is presumed to be valid, and the defendant has the burden of proving that the representations made in the affidavit are false. Id. The task for a reviewing court is simply to ensure that under the totality of the circumstances the magistrate had a “substantial basis” for concluding that probable cause existed. Lee, 05-2098 at 14, 976 So.2d at 122 (quotation omitted).

I isThe trial court is afforded great discretion when ruling on a motion to suppress, and its ruling will not be disturbed absent an abuse of its discretion. Lee, 05-2098 at 15, 976 So.2d at 122; State v. Rogers, 09-13, p. 9 (La.App. 5 Cir. 6/23/09), 19 So.3d 487, 493, unit denied, 09-1688 (La.4/9/10), 31 So.3d 382.

Even assuming the affidavit did not establish probable cause to support the issuance of a search warrant, suppression of the evidence seized pursuant to the warrant is not automatically required. Johnson, 08-265 at 7, 994 So.2d at 600 n. 8. Where a law enforcement officer relies in good faith on a magistrate’s probable cause determination and the technical sufficiency of the warrant, exclusion of the evidence is not proper. Johnson, supra.

In the present case, defendant’s argument on appeal is not that the search warrant was deficient, but that the search warrant was required prior to when Sergeant Howell entered the residence after speaking to Sergeant Wale. Further, defendant argues, as she did in the trial court, that certain items were omitted from the return for the search warrant. Defendant argues that Sergeant Howell lacked probable cause and that the circumstances did not create exigent circumstances to allow entry into the residence without a warrant. However, we find that this case did involve exigent circumstances and that there was probable cause for Sergeant Howell to enter the residence.

The Fourth Amendment has drawn a firm line at the entrance to the home, and a police officer must have both probable cause to arrest or search and exigent circumstances to justify a non-consensual warrantless intrusion into private premises. State v. Brisban, 00-3437, p. 5 (La.2/26/02), 809 So.2d 923, 927. In Kirk v. Louisiana, 536 U.S. 635, 638, 122 S.Ct. 2458, 2459, 153 L.Ed.2d 599 (2002) (per curiam) (citing Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)), the United States Supreme Court reiterated the firmly | ^established rule that police officers need either a warrant or probable cause plus exigent circumstances in order to make a lawful entry into a home.

Probable cause is defined as reasonable grounds for belief, supported by less than prima facie proof, but more than mere suspicion. State v. Warren, 05-2248 p. 10 (La.2/22/07), 949 So.2d 1215, 1224 (quotation omitted). Probable cause can also be demonstrated through the collective knowledge of all of the police officers involved in the investigation, even if some of the information is not communicated to the arresting or searching officers. State v. Roberson, 46,697 (La.App. 2 Cir. 12/14/11), 81 So.3d 911, 919-20 (citing State v. Landry, 98-0188 (La.1/20/99), 729 So.2d 1019 (per curiam)).

In determining whether sufficient exigent circumstances exist to justify the warrantless entry and search or seizure, the court must “consider the totality of the circumstances and the ‘inherent necessities of the situation at the time.’ ” Warren, supra (quotation omitted). The United States Supreme Court has described exigent circumstances as “a plausible claim of specially pressing or urgent law enforcement need.” Illinois v. McArthur, 531 U.S. 326, 331, 121 S.Ct. 946, 950, 148 L.Ed.2d 838 (2001). Exigent circumstances justify a warrantless entry, search, or seizure when “ ‘police officers, acting on probable cause and in good faith, reasonably believe from the totality of the circumstances that (a) evidence or contraband will imminently be destroyed or (b) the nature of the crime or character of the suspect(s) pose a risk of danger to the arresting officers or third persons.’ ” Warren, 05-2248 at 11-12, 949 So.2d at 1225 (quotation omitted). Exigent circumstances may arise from the need to prevent the offender’s escape, to minimize the possibility of a violent confrontation that could cause injury to the officers and the public, and to preserve evidence from destruction or concealment. Brisban, 00-3437 at 5, 809 So.2d at 927-28.

11fiThe existence of ammonia has been recognized as constituting exigent circumstances due to its explosive nature. See State v. Guidry, 03-625, p. 11 (La.App. 5 Cir. 1/27/04), 866 So.2d 944, 950. In State v. Shumaker, 40,275, p. 1 (La.App. 2 Cir. 10/28/05), 914 So.2d 1156, 1159, the defendant appealed his conviction of attempted creation or operation of a clandestine laboratory for the unlawful manufacture of a controlled dangerous substance. In Shu-maker, officers responded to a complaint about the smell of ammonia coming from a trailer. Upon the officers’ arrival to conduct a “knock and talk,” they noticed a strong chemical odor that indicated the manufacture of methamphetamine. A babysitter consented to a search of the premises. Id. The defense filed a pre-trial motion to suppress, arguing, among other things, that the babysitter did not have authority to consent to the warrantless search of the premises. The trial court denied the motion and found the babysitter had authority to consent to the search. Shumaker, 40,275 at 2, 914 So.2d at 1160. On appeal, one of the defendant’s arguments was that the district court erred because the babysitter did not have the proper authority to consent to the search. Shumaker, 40,275 at 12, 914 So.2d at 1165. The appellate court found that the search appeared to have been primarily limited to common areas and the babysitter would have had the authority or at least apparent authority to give consent to search those areas. Shumaker, 40,275 at 16, 914 So.2d at 1167. The court further found the search of the trailer was justified under the exigent circumstances exception to the warrant rule. The court believed that “[ujnder these circumstances, clear public safety concerns associated with the illegal manufacture of methamphetamine existed for the officers’ entrance into the trailer without a warrant.” On these grounds, the court found that the warrantless search was lawful and the trial court did not err in denying the motion to suppress. Shumaker, 40,275 at 18, 914 So.2d at 1168.

11i;Based on the foregoing, we find Sergeant Wale had the right to enter the residence to locate Sterling, as was permitted by defendant who apparently owned the residence. While trying to locate Sterling inside of the residence, Sergeant Wale was able to see items consistent with the operation of a methamphetamine lab. Sergeant Wale then had probable cause to believe that a methamphetamine lab was inside of the residence. Also, the exigent circumstances of the matter became evident at that time. Although Sergeant Howell said that Boudreaux had been under investigation for manufacturing methamphetamine, there was now probable cause that this was being done in defendant’s residence. Sergeant Wale’s findings were shared with Sergeant Howell. Through collective knowledge, there was probable cause.

Sergeant Howell appeared to have knowledge regarding methamphetamine labs and their dangerous nature. He testified that he was concerned for officer safety and the safety of the occupants and needed to confirm that there was no active lab cooking methamphetamine at the time. He discussed the risk of leaving the lab unattended and the possibility of explosion. He had the right to enter the residence based on the exigent circumstances and the transferred probable cause. Once realizing that the lab was not in the process of cooking methamphetamine, Sergeant Howell obtained a search warrant.

Once lawfully inside of the residence, Sergeant Howell observed items in plain view. Police may seize evidence under the “plain view” doctrine when: 1) there is prior justification for an intrusion into the protected area; and 2) it is immediately apparent, without close inspection, that the items seized are evidence or contraband. State v. Tate, 09-619, p. 12 (La.App. 5 Cir. 2/9/10), 33 So.3d 292, 300-01 {citing Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990)). “Under the plain view doctrine, if police are lawfully in a position |17from which they view an object that has an incriminating nature that is immediately apparent, and if the officers have a lawful right to access to the object, they may seize it without a warrant.” State v. Leger, 05-0011, p. 65 (La.7/10/06), 936 So.2d 108,155, cert, denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007). The “plain view” exception does not require a police officer to be certain that the object in plain view is contraband; it simply requires that the officer have probable cause to believe the item in question is either evidence and/or contraband. Tate, 09-619 at 12, 33 So.3d at 301.

Even though Sergeant Howell could have seized things found in plain view, his observations were brief, and once he realized that the methamphetamine lab was not actively cooking, he obtained a search warrant for the residence. He returned after the warrant was obtained to conduct a more thorough search of the residence. Thus, we find the trial court did not abuse its discretion in denying defendant’s motion to suppress.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland) 556 So.2d 175 (La.App. 5 Cir.1990). The following matters are presented for review.

First, the waiver of rights form and the transcript reflect that defendant was properly advised of the prescriptive period for filing an application for post-conviction relief pursuant to LSA-C.Cr.P. art. 930.8. However, the minute entry reflects an incomplete advisal of the prescriptive period. The entry reflects that defendant had “2 YEARS TO FILE POST CONVICTION RELIEF AFTER JUDGMENT OF CONVICTION BECOMES FINAL.” This Court has held that the failure to advise a defendant that the prescriptive period runs from the time his conviction and sentence become final is incomplete. State v. Grant, 04-341, p. 5 118(La.App. 5 Cir. 10/26/04), 887 So.2d 596, 598 (emphasis as found in original). However, the transcript prevails when there is a discrepancy between the commitment and the transcript. State v. Lynch, 441 So.2d 732, 734 (La.1983). Based on the transcript, we find that defendant was properly advised of the prescriptive period for filing post-conviction relief pursuant to LSA-C.Cr.P. art. 930.8.

Next, the minute entry of August 23, 2011, which contains the sentencing of defendant, contains another discrepancy. It mistakenly reflects that defendant received a five-year sentence for count two, instead of count three. This should be corrected for purposes of accuracy, thus, we direct the district court to make the entries reflecting these changes and direct the clerk of court to transmit the original of the minute entry to the officer in charge of the institution to which the defendant has been sentenced. See LSA-C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam). We also order that a copy of the corrected minute entry be sent to the Department of Correction’s Legal Department.

Accordingly, we affirm the defendant’s convictions and sentence.

AFFIRMED