author: HUGHES, J.

text:
    BLPR, INC. v. NATIONAL GAMING, INC.
    No. 2010 CA 1221.
    Court of Appeal of Louisiana, First Circuit.
    April 6, 2011.

      Erik L. Burns, Denham Springs, LA, for Plaintiff/Appellant BLPR, Inc.
    Michael T. Tusa, Jr., Mandeville, LA, Philip Bohrer, Baton Rouge, LA, for Defendant/Appellee National Gaming, Inc.
    Before PARRO, GUIDRY, and HUGHES, JJ.
   HUGHES, J.

12This is an appeal from a district court’s summary judgment dismissing an action for contractual commissions allegedly owed on the placement of video poker devices at a truck stop. For the reasons that follow, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

In October of 1993, Gil Lerma, who would later become one of the shareholders of BLPR, Inc. (“BLPR”), entered into an “Independent Associate Contract” with Louisiana Gaming Management, Inc. (“Louisiana Gaming”), the company assets of which would later be acquired by National Gaming, Inc. (“National Gaming”). Mr. Lerma’s contract provided to him a ten percent commission on net revenue received by Louisiana Gaming on each video draw poker device placed in a licensed establishment through his efforts. Mr. Lerma was successful in placing Louisiana Gaming’s video draw poker devices at a Quality Inn Truck Stop (now known as the Econo Lodge Lucky Bayou Truck Stop (“ELLB Truck Stop”)), located in Chal-mette, Louisiana, in March of 1994. The ELLB Truck Stop contract, dated March 18, 1994, was for an initial ten year term, with optional additional five year renewal periods.

hAlso, in March of 1994, Mr. Lerma formed the BLPR corporation, with himself, Richard L. Barrios, Jr., Guy Palermo, and Richard E. Redd as shareholders. The stated purpose of the corporation was to promote the business of and obtain contracts for Louisiana Gaming for the operation of video poker establishments. At the same time, Mr. Lerma executed an 14assignment of rights in favor of BLPR of “any revenues owed to him as a consequence of any agreement by him to act as an associate or master associate or in any capacity with [Louisiana Gaming].” Payments were satisfactorily made to BLPR by Louisiana Gaming under the contract, although the parties later agreed that only a five percent commission would be paid due to the financial difficulties of Louisiana Gaming. Subsequently, in approximately May of 2000, Louisiana Gaming filed for bankruptcy protection in the Bankruptcy Court for the Eastern District of Louisiana (Case Number 99-15405), and the ELLB Truck Stop contract was acquired in that proceeding, along with other assets, by National Gaming. Thereafter, in August of 2000, National Gaming ceased paying commissions to BLPR, ostensibly because it determined that in order to be entitled to collect the commission on the ELLB Truck Stop contract, BLPR was required to meet the suitability requirements of LSA-R.S. 27:S10(D), which requires certain persons, in addition to license holders, to establish to the satisfaction of the “division” that they are “suitable” to be allowed to participate in the video draw poker gaming industry. These persons include, in summary: persons controlling more than a five percent ownership, income, or profit interest in an entity which has or applies for a license; persons who receive more than five percent revenue interest in the form of a commission, finder’s fee, loan prepayment, or any other business expense related to the gaming operation; or persons who have the ability to exercise a significant influence over the activities of a licensee.

No further commission payments were made to BLPR, which filed the instant suit on January 27, 2004, against National Gaming, seeking to recover the commission payments allegedly owed, along with other economic damages sustained. National Gaming asserted numerous defenses to the action, and subsequently filed a motion for summary judgment, contending that BLPR was ineligible to receive the monies it requested because “(a) it has failed to meet the gaming suitability requirements of [LSA-] R.S. 27:310; , and (b) some of its principals, and/or others required by law, have failed to apply for or meet gaming suitability requirements as required by [LSA-] R.S. 27:310, by order of the Bankruptcy Court[,] and by the [Louisiana] Gaming Control Board” (“LGCB”).

Following a hearing on the motion for summary judgment, the district court rendered judgment in favor of National Gaming, granting the motion and dismissing BLPR’s action. In its oral reasons for judgment, the district court stated that “the Court ... is firmly of the opinion that if five percent is met, they’re obligated to meet suitability requirements in accordance with statutory interpretation inasmuch as gaming is a business that is effective [sic] with the public good. It’s got to be strictly controlled.” This appeal followed.

On appeal, BLPR asserts that the trial court erred in granting summary judgment in favor of National Gaming, as material facts remain in dispute. BLPR further assigns as error the consideration by the district court of evidence submitted relative to the administrative suitability investigation conducted by the Video Gaming Division of the Office of State Police |fi(“VGD/OSP”) as to BLPR, contending that such a reconsideration of those issues by the district court was violative of the separation of powers doctrine, as well as exceeded the district court’s original subject matter jurisdiction (asserting that review of the administrative findings would constitute an exercise of appellate jurisdiction).

LAW AND ANALYSIS

Motion for Summary Judgment

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by LSA-C.C.P. art. 969; the procedure is favored and shall be construed to accomplish these ends. LSA-C.C.P. art. 966(A)(2). Summary judgment shall be rendered in favor of the mover if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B).

Appellate courts review summary judgments de novo under the same criteria that govern a district court’s consideration of whether summary judgment is appropriate. Samaha v. Rau, 2007-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882; Allen v. State ex rel. Ernest N. Morial-New Or leans Exhibition Hall Authority, 2002-1072, p. 5 (La.4/9/03), 842 So.2d 373, 377; Boudreaux v. Vankerkhove, 2007-2555, p. 5 (La.App. 1 Cir. 8/11/08), 993 So.2d 725, 729-30.

In ruling on a motion for summary judgment, the judge’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. All 17doubts should be resolved in the non-moving party’s favor. Hines v. Garrett, 2004-0806, p. 1 (La.6/25/04), 876 So.2d 764, 765.

A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id., 2004-0806 at p. 1, 876 So.2d at 765-66.

On motion for summary judgment, the burden of proof remains with the movant. However, if the moving party will not bear the burden of proof on the issue at trial and points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense, then the non-moving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the opponent of the motion fails to do so, there is no genuine issue of material fact and summary judgment will be granted. See LSA-C.C.P. art. 966(C)(2).

When a motion for summary judgment is made and supported as provided in LSA-C.C.P. art. 967, an adverse party may not rest on the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in LSA-C.C.P. art. 967, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. LSA-C.C.P. art. 967(B). See also Board of Supervisors of Louisiana State University v. Louisiana Agricultural Finance Authority, 2007-0107, p. 9 (La.App. 1 Cir. 2/8/08), 984 So.2d 72, 79-80; Cressionnie v. Intrepid, Inc., 2003-1714, p. 3 (La.App. 1 Cir. 5/14/04), 879 So.2d 736, 738.

[^Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Richard v. Hall, 2003-1488, p. 5 (La.4/23/04), 874 So.2d 131, 137; Dyess v. American National Property and Casualty Company, 2003-1971, p. 4 (La.App. 1 Cir. 6/25/04), 886 So.2d 448, 451, writ denied, 2004-1858 (La.10/29/04), 885 So.2d 592; Cressionnie v. Intrepid, Inc., 2003-1714 at p. 3, 879 So.2d at 738-39.

Video Draw Poker Devices Control Law

The applicable law in this case is provided by the Louisiana Gaming Control Law, LSA-R.S. 27:1, et seq., and the Video Draw Poker Devices Control Law, LSA-R.S. 27:301, et seq. Louisiana Revised Statute 27:309(B) makes it a crime for any person to operate a video draw poker device without the license required by LSA-R.S. 27:301, et seq. The primary licensing requirements for a video draw poker device owner, operator, or distributor are set forth in LSA-R.S. 27:306 and LSA-R.S. 27:310 et seq.

In this case, National Gaming was required to be licensed as the owner, operator, or distributor of the video poker devices located at the ELLB Truck Stop. As stated in the case cited to this court by National Gaming, Gaming Venture, Inc. v. Tastee Restaurant Corporation, 2008-310 (La.App. 5 Cir. 9/30/08), 996 So.2d 515, writ denied, 2008-2590 (La. |g1/9/09), 998 So.2d 723, licensing, along with the accompanying requisite contract and suitability reviews by the VGD/OSP, are prerequisites to beginning the operation of video poker machines, pursuant to LSA-R.S. 27:306 and La. Admin. Code, Title 42, Part XI, § 2411. See Gaming Venture, Inc. v. Tastee Restaurant Corporation, 2008-310 at p. 4, 996 So.2d at 517. Further, LSA-R.S. 27:306(A)(7)(a) specifically states, in pertinent part, that “[a]ny person applying for a truck stop facility license must meet all requirements provided by this Chapter prior to licensing.” Louisiana Revised Statute 27:311(E) also provides that “[n]o license shall be issued by the division except upon receipt of a sworn application and a finding by the division that the applicant, the application, and all persons described in R.S. 27:310 meet the requirements of that Section.” Even though it was not asserted in this case that BLPR was required to obtain a license, other gaming participants may be required to submit to a suitability review, in accordance with LSA-R.S. 27:310(D), and, if so required, “shall |inmeet all suitability requirements and qualifications for licensees,” as stated therein.

In its motion for summary judgment, National Gaming asserted that BLPR was required to submit to an administrative suitability review, pursuant to: LSA-R.S. 27:310(D), administrative regulations, and the Bankruptcy Court’s order. We will review each of these asserted authorities. LSA-R.S. 27:310(D)

In addition to licensees, Louisiana law has required since July 1, 1994 that “[e]very person ... who receives more than five percent revenue interest in the form of a commission ... related to the gaming operation ... shall meet all suitability requirements and qualifications for licensees.” See LSA-R.S. 27:310(D) and its precursor, former LSA-R.S. 33:4862.10(D) (as amended by 1994 La. Acts, 3d Ex. Sess., No. 13, § 1, effective July 1, 1994) (emphasis added). National Gaming contends that BLPR was required to meet suitability requirements on the basis of this provision.

However, in the instant case, it was not established that BLPR was receiving more than a five percent revenue interest in the ELLB Truck Stop contract. Although BLPR’s original contract with Louisiana Gaming | n provided for a ten percent commission, BLPR had verbally agreed with Louisiana Gaming to take only a five percent commission. The date on which this agreement was made was not conclusively established in the record, though it was before Louisiana Gaming went bankrupt. The parties do not appear to dispute that National Gaming was also paying only a five percent commission to BLPR before the payment of commissions was discontinued in August of 2000. Thus, the record presented on appeal does not establish that BLPR was receiving more than five percent, in order to trigger the LSA-R.S. 27:310(D) mandate for a suitability determination as to BLPR.

Administrative Requirements

National Gaming further contends that a suitability determination was required to be made as to BLPR under the authority of La. Admin. Code, Title 42, Part XI, § 2411(H)(3), stating: “If requested, every person who is party to any video gaming contract with an applicant for a video gaming license, or a licensee of the division, shall provide the division with any and 11?all information requested by the division that is necessary for a determination of suitability.” (Emphasis added.) A March 27, 1997 letter from the chairman of the LGCB, directed to renewal applicants, also declared that included within the persons required to submit to a suitability determination was “anyone who receives a percentage of the gaming revenue and their spouses.” (Emphasis added.) Further, a copy of the LGCB application instructions was filed into the record and states that the term “person required to meet suitability” includes “any person who receives or may receive a percentage of the gaming revenue from the applicant; ... [a]lso spouses of any person who receives or may receive a percentage of the gaming revenue from the applicant.” (Emphasis added.) In conjunction with its motion for summary judgment, National Gaming filed into the record a copy of an August 8, 2000 letter from Trooper Kirk A. Pierce of the VGD/OSP, requesting, in connection with National Gaming’s purchase of the Louisiana Gaming assets, suitability applications from National Gaming’s associates “receiving video poker revenue,” and specifically naming, in addition to others, BLPR. National Gaming asserts that “BLPR was never found suitable by the [LGCB].” (Underscoring original.)

Our review of the record reveals a question of fact as to whether BLPR was, in fact, found suitable by the VGD/OSP. BLPR filed its application for suitability on December 13, 2001. Excerpts from the | ^deposition and written report of Trooper Pierce, the investigating agent for the VGD/OSP, were filed into the record. Following his investigation and the settlement agreement between BLPR and the Redd parties, Trooper Pierce stated that, pursuant to the law and regulations governing video draw poker (specifically LSA-R.S. 27:310), he “found nothing to preclude anyone associated with BLPR to receive commission,” though he could not say whether a letter to that effect, as to BLPR, had been issued. Trooper Pierce also indicated that the investigation concerning BLPR was unique, in that BLPR was not applying for a license; he stated that licensees always receive written notification of the results of an investigation. Trooper Pierce further indicated that, because BLPR was not seeking a license and its case only involved third party revenue (i.e., commissions), he was not sure whether the investigation results had been issued in writing. Trooper Pierce also stated that he had never encountered this type situation before. However, Trooper Pierce related that the Attorney General’s office became involved in reviewing the BLPR documents and ascertaining whether the April 17, 2003 settlement agreement reached between BLPR and the Redd parties (whereby the Redd parties divested themselves of any interests/rights in BLPR), would result in BLPR meeting suitability requirements. Trooper Pierce stated that when a corporation under review has a shareholder who presents suitability issues, the corporation is given the opportunity to rectify the situation. Trooper Pierce further stated that it is sometimes possible for a corporation to remove the party with questionable suitability (i.e., by purchasing stock, | uchanging officers, etc.), and after approval by the Attorney General’s office, an investigation may be satisfactorily finalized in that way. Trooper Pierce indicated that this was the procedure utilized in the BLPR case. The deposition testimony of Trooper Pierce and accompanying documentation, taken as a whole, indicates that BLPR was found suitable. No evidence was presented to the contrary.

Moreover, we find no merit in the assertion that the cited administrative rules, regulations, and or actions validly require a suitability review as to BLPR, because such a requirement would exceed the legislatively-established parameters for suitability. The regulations promulgated by an agency may not exceed the authorization delegated by the Legislature. State v. Alfonso, 99-1546, pp. 8-9 (La.11/23/99), 753 So.2d 156, 162; Farmer’s Seafood Company v. State Through the Department of Public Safety, 2010-1746, p. 14 (La.App. 1 Cir. 2/14/11), 56 So.3d 1263, 1272; Piazza’s Seafood World, LLC v. Odom, 2007-2191, p. 12 (La.App. 1 Cir. 12/28/08), 6 So.3d 820, 828. See also LSA-R.S. 49:963. An agency exercising delegated authority is not free to pursue any and all ends, but can assert authority only over those ends that are connected with the task delegated by the legislative body. The open-ended discretion to choose ends is the essence of legislative power; it is this power that the legislative body possesses, but its agents lack. State v. Alfonso, 99-1546 at p. 9, 753 So.2d at 162.

With respect to this case, we conclude that although the legislature has delegated the power of investigation, as well as other powers, to the LGCB 11sand the VGD/OSP (including authority to promulgate rules and regulations in furtherance of that power), pursuant to LSA-R.S. 27:15, 27:20, 27:24, 27:308, and 27:313, neither the LGCB nor the VGD/OSP should be allowed to enlarge the scope of this investigatory power to instances not statutorily authorized. To the extent the cited administrative rules and/or regulations and other administrative actions seek to legislate, prescribe, or expand those instances in which a non-licensee is required to meet suitability, in addition to those set forth by the legislature in LSA-R.S. 27:310(D), we conclude that these administrative directives do not create any suitability requirement beyond that contained in LSA-R.S. 27:310.

Bankruptcy Court Order

National Gaming asserts in brief to this court that the Bankruptcy Court “specifically ordered associates of [Louisiana Gaming] and anyone receiving commissions from gaming revenues to apply to meet suitability.” We disagree.

The order of the Bankruptcy Court for the Eastern District of Louisiana stated, in pertinent part, as follows:

Pursuant to Sections 365(a) and 1123(b)(2) of the Bankruptcy Code, all executory contracts between Debtor [Louisiana Gaming Management, Inc.] and any person or enti[t]y shall be assumed by the Debtor under this Plan and assigned to the Purchase[r],[] except: (1) Associate Contracts between the Debtor and persons or entities determined to be unsuitable by the LGCB; ....
* * *
The Associate Contracts shall be assumed in accordance with the Plan and the May 25, 2000 National Gaming offer in that the commission paid on the assumed Associate Contracts shall be the lesser of the contract rate or twenty [percent] (20%) of the net gaming revenue (as that term is defined in the associate contracts).
h fiFinally, all location agreements of the Debtor, including those specifically listed on Exhibit “B” to the Plan are expressly assumed and assigned to Purchaser and Purchaser shall have all of the Debtor’s rights, title, and interest under those contracts.

(Emphasis added.) National Gaming asserts that the phrase in this order stating, “except ... Associate Contracts between the Debtor and persons or entities determined to be unsuitable by the LGCB” constitutes an affirmative directive to all persons or entities having associate contracts with Louisiana Gaming, being transferred to National Gaming, to apply for and obtain a declaration of suitability. On the contrary, the language at issue was obviously meant to declare only that if, in the normal course of its business and pursuant to the application of Louisiana law, the LGCB determined any of the referenced persons or entities to be “unsuitable,” the contracts of those persons/entities were not required to be assumed by National Gaming. We find no merit in National Gaming’s argument on this issue.

Having rejected all of National Gaming’s asserted bases for contending BLPR was required to obtain a favorable suitability determination, but failed to do so, we conclude National Gaming was not entitled to summary judgment in its favor. Having decided the appeal on these grounds, we find it unnecessary to address the remaining assignments of error asserted by BLPR.

CONCLUSION

For the reasons assigned herein, the judgment of the district court, rendering summary judgment in favor of National Gaming, Inc. and dismissing the claims of BLPR, Inc., is hereby reversed, and the matter is remanded for further proceedings in accordance with the foregoing. All costs of this appeal are to be borne by National Gaming, Inc.

REVERSED AND REMANDED.

      . The ELLB Truck Stop contract terminated effective March 18, 2004, pursuant to the December 2, 2003 notice of termination forwarded by the truck stop to National Gaming.

      . Mr. Barrios died on December 9, 1994, owning a one-quarter interest in BLPR. A certified copy of the judgment of possession rendered in his succession proceeding was filed into the district court record. However, it is not clear which of the listed assets represented Mr. Barrios’s BLPR stock. Several assets were listed that referenced corporate stock (“2500 Shares of Blipper, Inc.,” "1000 shares Barrios Investments, Inc.,” "1000 shares of Old World Casinos, Inc.,” and "1000 Shares of Stock One Source, Inc.") and one asset was named as "Glenn's Video Poker Contract,” but none were denominated “BLPR.” Some of these assets were community property and some were separate property. The judgment of possession indicated that Mr. Barrios’s will left his wife, Patricia Vos-burg Barrios, undivided one-half interests in both his community and separate property, and the other one-half interests in Mr. Barrios’s community and separate property were left to his children, Lisa Barrios Jordan, Roxanne Barrios, Pamela Barrios Cuculla, and Stacie Barrios Nola. Thus, if the BLPR stock was community property, Mrs. Barrios owned a one-half share of the one-quarter interest in BLPR (a one-eighth interest in BLPR), and inherited one-half of Mr. Barrios’s one-eighth share in BLPR (a one-sixteenth interest in BLPR), which would have given Mrs. Barrios a total three-sixteenth interest in BLPR (in other words, an 18.75% interest). Under this community property scenario, Mr. Barrios’s four children would have shared equally in the other one-half interest in Mr. Barrios’s one-eighth interest in BLPR, which would have given them, individually, a one-quarter share of a one-sixteenth share (in other words, an undivided one-sixty-fourth interest, which is a 1.5625% interest, each, in BLPR). If the BLPR stock was Mr. Barrios’s separate property, then Mrs. Barrios would have inherited one-half of that one-quarter interest in BLPR (a one-eighth interest, which is a 12.5% interest in BLPR), and the children would have inherited quarter shares each in the other half of Mr. Barrios’s one-quarter interest in BLPR (in other words, a one-thirty-second interest, each, which is a 3.125% interest in BLPR). In brief to the district court, counsel for BLPR stated that Mrs. Barrios inherited a 12.5% interest and that the children inherited a 3.125% interest in BLPR, indicating the separate property scenario was correct. However, none of the separate property assets named in the judgment of possession ("Glenn’s Video Poker Contract” (the instant video poker contract originally belonged to Gilbert "Gil” Lerma), "1000 shares of Old World Casinos, Inc.,” or ”1000 Shares of Stock One Source, Inc.”) have any relevant or apparent connection to the BLPR stock, while one of the community assets listed has a greater appearance of being the BLPR stock, "2500 Shares of Blipper, Inc.,” for the following reasons. It was indicated in the corporate deposition of BLPR, given by Guy Palermo, that, originally, 10,000 shares of stock were authorized for BLPR and that each of the four stockholders were to receive 2,500 shares each, though no stock certificates were actually issued. Further, BLPR's Articles of Incorporation, a copy of which was filed into the district court record, recite: “The aggregate number of shares the corporation shall have authority to issue is 10,000. Each of the four incorporators will receive 2,500 shares.” Mr. Palermo also indicated in his deposition that there was a nickname for the company. When Palermo referred to the company, he called it "BLPR” (as recorded in the transcript), and the examining counsel asked, "Just for the record, when you refer to BLPR — ,” to which Mr. Palermo responded, "I’m sorry, BLPR. It’s a nickname." Although it is not further explained by the partial deposition excerpt appearing in the record on appeal, it appears that Mr. Palermo may have pronounced "BLPR” phonetically, which would sound like "Blipper." So, the 2,500 shares of stock Mr. Barrios owned in BLPR may have been listed in the succession judgment of possession as "2500 Shares of Blipper, Inc.” We further note that, on April 17, 2003, in a settlement agreement between the BLPR shareholders, it was stated: "Richard L. Barrios, Jr., died on December 9, 1994 and Darlene C. Redd represents that she subsequently acquired a one eight [sic] (1/8) interest in BLPR, Inc., from four of his heirs.” No other documentation of this alleged transfer appears in the record on appeal. Consequently, if the issue is found to be a material issue of fact, we note that the record presented on appeal does not establish, via the pleadings, depositions, answers to interrogatories, admissions on file, or affidavits, precisely what percentage of BLPR shares was inherited by Mr. Barrios’s wife and children, or whether those percentages were still owned at all relevant times.

      . Mr. Redd's interest in BLPR was alleged to have later been transferred to his wife, Darlene C. Redd, who was declared to be separate in property from him, and that she then transferred her interest in BLPR to her solely-owned corporation, Redd Investments, Inc. Thereafter, in the April 17, 2003 settlement agreement, Richard E. Redd, Darlene C. Redd, and Redd Investments, Inc. ("the Redd parties”) transferred any and all interests/rights they possessed in BLPR to BLPR.

      . The "division,” as stated by LSA-R.S. 27:3(7), means "the division in the office of state police, Department of Public Safety and Corrections which provides investigatory, regulatory, and enforcement service to the [Louisiana Gaming Control Board] in the implementation, administration, and enforcement of [the Louisiana Gaming Control Law].” The Video Draw Poker Devices Control Law, LSA-R.S. 27:301 et seq., also provides in LSA-R.S. 27:301(B)(6) that " ‘Division’ shall have the same meaning as that term [is] defined in R.S. 27:3.” In furtherance of the authority granted to it by LSA-R.S. 27:308, the "division,” known as the "Video Gaming Division of the Office of State Police” ("VGD/OSP”), has promulgated rules and regulations applicable to video draw poker devices in La. Admin. Code, Title 42, Part XI, § 2401 et seq., in order to "protect the video gaming industry from infiltration by organized crime and other harmful and unscrupulous elements, thereby ensuring the fair play of all video gaming devices, and the prosperity and longevity of the industry.” La. Admin. Code, Title 42, Part XI, § 2411(B).

      . Louisiana Revised Statute 27:309(B) provides:
      Any person who manufactures, distributes, sells, possesses, or operates a gambling device as described in R.S. 15:31, or a video draw poker device as described in this Chapter without the license required by this Chapter or at a location or on premises not authorized by the division shall, upon conviction, be imprisoned with or without hard labor for not more than ten years or be fined not more than ten thousand dollars, or both.

      . A "person” is defined as including "any ... corporation.” See LSA-R.S. 27:3(22); 27:301(B)(22).

      . However, we note that the Gaming Venture case dealt only with the license holder and did not address any issues related to a person entitled to a commission by virtue of a contractual agreement related to facilitation of the establishment of the video poker gaming operation; therefore, the case has limited applicability in the instant litigation. In Gaming Venture, at issue was the validity and enforceability of contracts for the installation and operation of video poker machines by the plaintiff in several of the defendant’s locations; however, the machines were never installed and one of the defenses presented in the ensuing breach of contract suit was that, with respect to one location, the contract had not been properly submitted for approval to the VGD/OSP as required by the Video Draw Poker Devices Control Law. In Gaming Venture, the plaintiff’s suit was dismissed by partial summary judgment, upon a finding by the trial court that the contracts were absolute nullities because of noncompliance with licensing regulations. On appellate review, the Fifth Circuit recognized that the law required that a location’s owners must be subjected to a suitability determination before receiving a license. No such determination had been made in that case and the result reached by the trial judge was found correct. Although the parties may have previously been licensed and passed a suitability review, the appellate court held that compliance with applicable laws was required for each new contract, citing La. Admin. Code, Title 42, Part XI, § 2411(H)(2) (requiring "[a]ll applicants and licensees shall submit copies of all written contracts pertaining to the operation of video gaming devices ... to which they are party or intend to become party within 10 business days of signing or making such contracts”) and LSA-R.S. 27:309(B) (making it a criminal offense for any person to operate a video poker machine without complying with all of the requirements for obtaining a license). Gaming Venture, 2008-310 at pp. 3-4, 996 So.2d at 516-17. The Fifth Circuit affirmed the trial court finding that since there had been incomplete compliance with the licensing procedures for the contracts at issue, the contracts had not become effective and enforcement of the contracts would be against public policy. See Gaming Venture, 2008-310 at p. 4, 996 So.2d at 517. We note that the circumstances of the instant case differ on a significant point from those presented in Gaming Venture, in that, in this case, the licensee (National Gaming) presumably has met all requisite suitability requirements, and the issues presented herein deal only with whether a non-licensee (BLPR) was also required to be declared suitable by the VGD/ OSP.

      . Participants in the gaming industry that are required to be licensed include: device owners, operators, distributors, service entities, and gaming establishments. See LSA-R.S. 27:311.

      . Louisiana Revised Statute 27:310(D) provides in full:
      Every person who has or controls directly or indirectly more than a five percent ownership, income, or profit interest in an entity which has or applies for a license in accordance with the provisions of this Chapter, or who receives more than five percent revenue interest in the form of a commission, finder’s fee, loan repayment, or any other business expense related to the gaming operation, or who has the ability, in the opinion of the division, to exercise a significant influence over the activities of a licensee authorized or to be authorized by this Chapter, shall meet all suitability requirements and qualifications for licensees. For the purposes of this Chapter, all gaming related associations, outstanding loans, promissory notes, or other financial indebtedness of an applicant or licensee must be revealed to the division for the purposes of determining significant influence and suitability.
      No facts were alleged in the instant case implicating the applicability of the provision relative to "persons who have the ability to exercise a significant influence over the activities of a licensee;” therefore, it is not at issue herein.

      .National Gaming's arguments on appeal also seem to assert that certain BLPR minority shareholders were subject to LSA-R.S. 27:310(D)'s requirement that "[ejvery person who has or controls directly or indirectly more than a five percent ownership, income, or profit interest in an entity” must pass a suitability review. National Gaming contends that the suitability of these BLPR shareholders, i.e., the children of Mr. Barrios (Lisa Jordan, Roxanne Barrios, Pam Cuculla, and Stacie Nola), who allegedly owned more than a five percent interest in BLPR, should have been determined and was not. However, the foregoing referenced provision of LSA-R.S. 27:310(D) is qualified by the phrase “which has or applies for a license in accordance with the provisions of this Chapter;” therefore, the provision only applies to an entity that "has or applies for a license.” As previously stated herein, BLPR did not, nor was it required to, hold or apply for a license. We find no merit in this argument by National Gaming. However, we note that only if BLPR receives more than a five percent revenue interest, so as to trigger LSA-R.S. 27:310(D)’s suitability requirement on that basis, would the requirement that "all suitability requirements and qualifications for licensees” be met, thereby also triggering the requirement that "[e]very person who has or controls directly or indirectly more than a five percent ownership, income, or profit interest in an entity” pass a suitability review. In such a case, BLPR's “more than five percent" shareholders would also be required to meet suitability requirements. Notwithstanding, as noted hereinabove, Mr. Barrios's children would only have owned either a 1.5625% or a 3.125% interest, each, in BLPR, depending on whether Mr. Barrios’s stock was community or separate property, and would not be required to meet suitability, pursuant to this LSA-R.S. 27:310(D) provision.

      . We do not reach the issue of whether the "revenue interest,” discussed in LSA-R.S. 27:310(D), references "the gaming operation” of the licensee (in this case, National Gaming) as an entity, which might include other gaming locations owned or operated by the licensee, or whether "the gaming operation” is limited only to those gaming locations in which the “person” (in this case, BLPR) has a "revenue interest,” as a ruling on the issue is not necessary for the resolution of the issues presented in this appeal.

      . Louisiana Administrative Code, Title 42, Part III, § 120(B) requires that "[a]ll applicants, licensees, permittees and persons required to be found suitable shall fully comply with all instructions contained in the prescribed forms and shall provide all documentation and information requested therein.”

      . We note that suitability investigations are not conducted directly by the LGCB, but rather, in accordance with LSA-R.S. 27:310(B)(1), these determinations are made by "the division,” which as stated herein-above, pursuant to LSA-R.S. 27:3(7), is the "division in the office of state police, Department of Public Safety and Corrections which provides investigatory, regulatory, and enforcement service to the [Louisiana Gaming Control Board] in the implementation, administration, and enforcement of [the Louisiana Gaming Control Law],” known as the Video Gaming Division of the Office of State Police ("VGD/OSP”). Thus, it is the VGD/OSP that makes the suitability determinations with respect to the Video Draw Poker Devices Control Law.

      . With respect to BLPR shareholders, Gil Lerma, Guy Palermo, and Patricia Barrios, the Office of State Police did issue individual letters as to each, on December 5, 2003, reciting satisfactory results following suitability investigations. We note that if the allegations made in the instant suit are true and correct, i.e., that Richard Barrios’s children sold their interests in BLPR to Darlene Redd, and that she thereafter transferred all of her interests/rights in BLPR to BLPR, then the only remaining shareholders, at that time, would have been Gil Lerma, Guy Palermo, and Patricia Barrios.

      . Louisiana Revised Statute 49:963 provides, in pertinent part, that "[t]he validity or applicability of a rule may be determined in an action for declaratory judgment in the district court of the parish in which the agency is located,” and that ”[t]he court shall declare the rule invalid or inapplicable if it finds that it violates constitutional provisions or exceeds the statutory authority of the agency or was adopted without substantial compliance with required rulemaking procedures.”

      . Although it was not directly stated in the Bankruptcy Court order, the parties do not dispute that the purchaser referenced was National Gaming.


source: Caselaw Access Project

author: CLARENCE E. McMANUS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Timothy SANTINI.
    No. 10-KA-594.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 12, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desirée M. Valenti, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   CLARENCE E. McMANUS, Judge.

| STATEMENT OF THE CASE

On March 6, 2008, a Jefferson Parish Grand Jury indicted defendant, Timothy Santini, for the second degree murder of Raymond Babin in violation of LSA-R.S. 14:30.1. On the following day, defendant was arraigned and pled not guilty to this charge. On June 2, 2008, the trial court denied defendant’s motions to suppress evidence, identification, and statement. The motion to suppress evidence was re-opened on April 13, 2009 and was again denied.

Defendant proceeded to trial on December 8, 2009. The following testimony and facts were elicited at trial. On November 27, 2007, a Tuesday morning, Charles R. Lodriguez went to Missile Street to check on Raymond Babin, who was employed by Mr. Lodriguez’s cousin. Mr. Lodriguez’s cousin, Eric Hoffman, requested that he go to Mr. Babin’s residence because he had not heard from Mr. Babin for a couple of days, which was unusual. Mr. Hoffman also contacted the victim’s brother, Howard Babin, Jr., and informed him of his concern. Howard Babin also left to go check on his brother. Mr. Lodriguez arrived at the residence first. When Mr. Lodriguez arrived at the residence, the iron gate was open and the door was unlocked and partially closed. Mr. Lodri-guez opened the door and saw Mr. Babin lying on the floor in his residence. After | ¡¡calling out to him and not getting a response, Mr. Lodriguez called for an ambulance. However, the victim had a knife protruding from his neck and was dead.

Colonel Timothy Scanlan of the Jefferson Parish Sheriffs Office Crime Laboratory, an expert in the field of crime scene reconstruction and bloodstain analysis, testified that there were no signs of forced entry to the residence. A kitchen drawer in the residence contained knives that appeared similar to the one found in the victim’s neck. A cordless phone, a pillow and a slipcover with bloodstains, eyeglasses, and a denture plate with bloodstains were all found near the victim’s body. It appeared the victim had been dead for some time. A newspaper, which was dated November 24, 2007, was found on the table.

Howard Babin had last seen his brother for Thanksgiving. According to Howard Babin, the victim lived alone and had medical problems. He usually kept the back door unlocked during the day, but always kept the front door locked. Although he would have allowed people to use his phone, Howard Babin did not believe his brother would have given someone his credit cards or his checkbook.

The victim had a gold Buick LeSabre, which he always parked in the front of his “driveway door.” According to the victim’s brother, Mr. Babin would not let others drive his vehicle. However, the victim’s vehicle was not parked in the driveway at the time the victim’s body was discovered. The victim’s daughter-in-law informed the police that the victim’s vehicle was equipped with “On-Star.” Within about ten minutes, the police said the vehicle had been located in Mississippi.

While on the scene, the detectives listened to the victim’s answering machine and heard a message from Ricky Dufrene, a bank manager at Capital One. He had called on the day prior to when the victim’s body was discovered to verify [4a check that someone was trying to cash at the bank. Detective Keith Locascio of the Jefferson Parish Sheriffs Office went to the bank and spoke with Mr. Dufrene and with bank teller Ashley Pleasant. Ms. Pleasant believed the person trying to cash the check was named Tim or Timothy and was able to give a description of the individual and his clothing, which included a jacket. The bank’s corporate security emailed a still surveillance photograph of the image of the individual taken at 5:07 p.m. on November 26, 2007.

Mr. Dufrene testified that he called the victim, who was a bank customer, after a teller brought him a check where the signature looked “a little off.” He explained that the signature looked like it had been traced. Ms. Pleasant testified that the check was not cashed because Mr. Dufrene did not get in touch with the customer. She gave the individual the check back, and testified that he did not appear upset. She was shown a photographic lineup and tentatively chose two photographs from the lineup. One of the photographs was of defendant.

Lieutenant John Kramer, an investigator in Poplarville, Mississippi, was notified on November 27, 2007, that the Jefferson Parish Sheriffs Office was investigating a homicide and that a vehicle was stolen in the homicide. This vehicle was equipped with OnStar and through this satellite tracking communication technology the vehicle was located in his jurisdiction. Lieutenant Kramer went to the location at approximately 1:45 p.m. and observed the gold Buick LeSabre parked at a residence. Defendant was in the driver’s seat with the keys in the vehicle’s ignition. There were two other occupants in the vehicle — Adam Tyson and Alphonso Jones. Lieutenant Kramer conducted a “felony stop on the vehicle” and everyone was removed from the vehicle and searched. In defendant’s right, rear pants pocket, he had a Louisiana identification/driver’s license in his name and three credit cards that contained the victim’s name. All | ¡¡three individuals were arrested and brought to the Pearl River County Jail. Jefferson Parish authorities were contacted.

Lieutenant Donald Meunier and Sergeant David Spera of the Jefferson Parish Sheriffs Office arrived in Mississippi at approximately 4:30 or 5:00 p.m. It was learned that three people were stopped in the vehicle and that defendant was driving. Mr. Jones and Mr. Tyson gave taped statements. After speaking with them, Lieutenant Meunier did not believe that either of them were involved in the victim’s murder. Defendant was read his rights, and he also gave a statement. Lieutenant Meunier described defendant’s demeanor as relatively quiet and agreed that he appeared calm.

Defendant’s statement was played in court. In his statement, defendant admitted that he knew the victim for ten to twelve years, but denied that he was involved in the victim’s murder. He claimed that Troy Ruiz gave him the vehicle on Saturday and that the credit cards in the victim’s name were in the console of the vehicle. He said that he knew the victim as “Mr. Ray” and did not know his last name, so he did not realize the credit cards were for him. He stated that the victim never wrote him a check, and he denied trying to cash a check at the bank.

Lieutenant Meunier explained that defendant said he got the vehicle from Troy Ruiz and that Mr. Ruiz was interviewed by another detective. However, after the interview, it was not believed that Mr. Ruiz was involved in the killing of the victim. After obtaining this information regarding Mr. Ruiz and receiving the photograph from the bank that he believed looked like defendant, Lieutenant Meunier returned to talk to defendant. Defendant responded that Mr. Ruiz was lying. Lieutenant Meunier testified that defendant’s demean- or changed once confronted with this information and with the photograph and he became angry and agitated, and did not want to continue the interview.

1 (¡Lieutenant Meunier advised that he was charging defendant with the homicide, and the other two suspects were released. Defendant’s clothing was released after a property release form was completed at approximately 10:25 p.m. This property included a gray/black jacket and a pair of black Nike basketball shoes that defendant had on. Lieutenant Meunier recovered the victim’s credit cards and defendant’s jacket and black shoes from Lieutenant Kramer in Mississippi. There were specific items that the police were looking for in the investigation. A bloody footprint was found in the victim’s house and a surveillance photograph from the bank was obtained. The photograph reflected that the suspect who tried to cash one of the victim’s checks was wearing a distinct jacket.

Defendant’s girlfriend, Sherika Washington, turned over socks and pants to Lieutenant Meunier and Sergeant Spera and also gave them a statement. It was thought that defendant may have been wearing the pants at the time of the incident.

Lieutenant Meunier testified that he did not leave with defendant because he had to go to Jefferson Parish to prepare an arrest warrant for defendant for Mr. Babin’s murder. Defendant remained in the custody of the Mississippi police at the time. Defendant was brought to the Jefferson Parish Correctional Center on the day after he was arrested in Mississippi. The pants and shirt defendant was wearing at the time of the arrest were also transferred with him when he was brought from Mississippi. Lieutenant Meunier had transported the jacket and shoes to Jefferson Parish and gave them to the Crime Scene Technician. The victim’s vehicle was towed from Mississippi and then searched. A single check and the victim’s checkbook were found in the vehicle.

Mr. Tyson and Mr. Jones both testified that when they were arrested with defendant they believed it was for having open containers. Defendant told Mr. |7Tyson that a friend who was working offshore had let him use the car. He told Mr. Jones that the car belonged to someone working on a boat. Both denied that they had anything to do with Mr. Babin’s murder.

Mr. Ruiz denied ever working offshore and testified that he never owned a gold Buick LeSabre. He testified that he followed officers to the investigation bureau and gave them a statement. He testified that he grew up with defendant and they were friends, but that in November of 2007, he had not seen defendant for a few years. He said he never went to Missile Street and denied knowing the victim.

Trim Santini, defendant’s father, was the victim’s good friend and next door neighbor for approximately ten years. He testified that he had last seen the victim on Saturday, November 24th, probably around noon. Defendant had been living at his house for about two weeks prior to November 27, 2007, and before that he lived in Mississippi. Defendant’s father and mother, Deborah McCrackin, who were divorced, both testified that they went to the police station on November 27, 2007, after learning that defendant was driving Mr. Babin’s car. Defendant’s mother had talked to defendant’s girlfriend who lived in Mississippi and his girlfriend described the car that defendant was driving. The car’s description matched the victim’s car that was missing. Ms. McCrackin also testified that her son had called her a couple of times from Mr. Babin’s house and that defendant told her that Mr. Babin let him use his phone. Defendant’s father and mother both identified the person in the still photograph obtained from the bank as their son.

Sherika Washington testified that she was defendant’s girlfriend at one time. She said defendant lived with her in Picayune, Mississippi and that they broke up before Thanksgiving and he left to go with his father. She recalled that defendant called her from his neighbor’s house after he was living with his father. She testified that she spoke with defendant on the Saturday after Thanksgiving and he | Rsaid he had a car that his friend was letting him use and that he was coming to Mississippi. He arrived in Mississippi on Saturday evening around 7:30 or 7:45 p.m. and stayed with her. He was in a LeSabre and said his friend who worked offshore was letting him use it. She said that she had defendant’s cell phone when his mother called looking for him. His mother asked her what kind of car he had come in and she told her. She also testified that defendant told her that the credit cards belonged to the same person the car belonged to. She testified that defendant left on Monday, November 26th, after saying he had to go to New Orleans to get clothes and to apply for an offshore job. She said that when the police came she gave them the sweatpants that defendant was wearing when he came to her house.

Betty Studzinski testified that she lived on Missile Street and knew Trim Santini and the victim because they were her neighbors. She identified defendant in court as Trim’s son and testified that she talked to the victim’s brother at the funeral and advised him that she saw defendant outside arguing with someone over the phone about money. She then left to run errands and when she returned the victim’s car was gone and the house was dark. She said that the police later spoke with her. She explained that the victim always parked his car in the driveway. She had last seen the victim on November 24th around lunchtime. She saw the defendant on that Saturday pacing on the sidewalk, across the street between his father’s house and the other neighbor’s house (not the victim’s house). He was talking loudly on his cell phone, arguing with someone over money, and saying he would get them the money by that day. She said she returned around 6:30 or 7:30 p.m. The police showed her a photographic lineup, and she identified defendant in the lineup.

Michael Haggerty, Lead Analyst with AT & T, testified regarding telephone records from the victim’s land line and cell phone records from defendant’s cell Lphone. Multiple calls were made from the victim’s phone to phone numbers with a “601” area code. The last three calls made from the victim’s telephone were made on the evening of November 24, 2007, at 5:18, 5:51, and 5:53 p.m. The last numbers called were numbers that defendant had previously called multiple times according to his cell phone records.

One of the victim’s credit cards was used on November 24, 2007 at 6:28 p.m. for a transaction at the Discount Zone in Terry-town. It appears the victim’s credit card was used on the following two days in Picayune, Mississippi. Defendant’s fingerprints or DNA was not found anywhere in the victim’s house. A shoe print was found in the residence. Defendant’s shoes were examined, but the print contained insufficient detail to be linked to defendant’s shoe. However, defendant’s shoes did contain the victim’s DNA. Further, the victim’s blood was found on clothing that was recovered from defendant.

Pamela Williams-Cyprian, an expert in the field of forensic serology, testified that human blood was found on the Air Jordan shoes and the jacket she examined. A substance that was consistent with human blood was also found on defendant’s pants. Sarah Corrigan, an expert in the field of forensic DNA analysis, testified that the defendant’s shoes, pants, and jacket contained DNA that was consistent with the victim’s genetic profile. The expert explained that the frequency would occur in approximately one in greater than 100 billion individuals.

Dr. Karen Ross, an expert in the field of forensic pathology, performed an autopsy on the victim. She explained that the time and date of defendant’s death was on November 27, 2007 at 9:59 a.m., but that this was merely the time the body was pronounced dead. She could not say an exact time of death. She believed that |10the actual time of death was prior to that due to the evidence of early decompositional change. She testified that Mr. Babin was the victim of a homicide and died as a result of a stab wound to his neck. The victim suffered from bruising on both sides of his face, the muscles on both sides of his head, both of his shoulders, and on his left upper chest. He also had rib fractures on the back left side of his body. She explained that the stab wound was singularly lethal, but the victim additionally had some bruising on his tongue and lip with some tiny hemorrhages in his right eye, which indicated asphyxia. She concluded that the stab wound was the cause of the victim’s death, but there could have been a component of blunt force injuries with traumatic asphyxia and/or suffocation. There was also bruising on the victim’s lower lip and chin. She testified that the asphyxia could be associated with the blood loss from the stab wound. However, she also testified that the asphyxia could have been from a pillow, and the wounds on the victim’s lip and chest would be consistent with that.

The wound was at least three and three-quarters of an inch and grazed the victim’s spine, passing through the carotid artery. The wound almost went all the way through to the back of the victim’s neck. The knife also went through the victim’s clothing. No defensive wounds were found on the victim. Dr. Ross believed that the victim’s death was not instantaneous and would have been painful.

After a four-day trial, a unanimous 12-person jury found defendant guilty as charged. On January 4, 2010, defendant filed a motion for new trial. This motion was denied on the following date. Also on January 5, 2010, defendant was sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence. Defendant’s appeal follows.

11,ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues that some evidence should have been suppressed because there was no court order issued or search warrant obtained before his clothes were examined for blood and DNA evidence. He further argues that the examination of his clothing without a warrant was illegal and not based upon exigency or any other exception to the warrant requirement. He concludes the introduction of this evidence cannot be deemed harmless, and therefore, a new trial is required.

The State responds that the trial court properly denied defendant’s motion to suppress evidence because the clothing was seized after probable cause existed to believe defendant’s clothing was evidence of a particular crime.

At the motion to suppress hearing on June 2, 2008, Lieutenant Kramer of the Poplarville Police Department explained that on November 27, 2007 he was notified of a stolen vehicle in his jurisdiction. He later learned that the vehicle belonged to a homicide victim. He testified that the vehicle was located and three occupants were removed from the vehicle and taken into custody. Defendant was in the driver’s seat of the vehicle. Lieutenant Kramer testified that defendant had his State identification card and three credit cards with the victim’s name in his pocket. He further testified that officers from the Jefferson Parish Sheriffs Office later arrived in Mississippi. He was advised later that night that defendant was being arrested and charged with murder.

Also at this hearing, Sergeant Meunier of the Jefferson Parish Sheriffs Office testified that he advised defendant of his rights and defendant made a statement to him. Sergeant Meunier testified that he received the credit cards and the clothing defendant was wearing when he was arrested.

After hearing this testimony and the testimony from other witnesses, the trial court denied the suppression motions. However, on April 13, 2009, defense 112counsel requested that the court re-open the suppression hearing as to the evidence that was seized. Defense counsel explained that there was no issue with the clothes taken by the Poplarville police and there was no problem with Lieutenant Meunier receiving the property based on signing the acknowledgement. Defense counsel argued that because the property was seized as a result of intake booking in Poplarville, the property should have been placed in defendant’s property at the Jefferson Parish Correctional Center where he was booked. Counsel explained that if this had happened then the officers would have needed a search warrant to obtain the property. Counsel added that a court order would have been required to put the property into evidence. He further argued that the examination of the shoes without a court order was inappropriate. Counsel concluded that the shoes should have been suppressed. The State responded that the officers did not need a search warrant, and alternatively, the evidence need not be suppressed because of the inevitable discovery rule. The court denied the motion to suppress, deciding that the officers did not need a search warrant. Thereafter, on April 23, 2009, a Motion to Transfer Defendant’s Property into Evidence was filed and granted.

The Fourth Amendment to the United States Constitution and Article 1, § 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. Thomas, supra. A defendant who is adversely affected may move to suppress any evidence from use at the trial on the merits on the ground that it was unconstitutionally obtained. LSA-C.Cr.P. art. 703(A).

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 | isproof in establishing the admissibility of a purported confession or statement by the defendant or of any evidence seized without a warrant. LSA-C.Cr.P. art. 703(D). The 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. State v. Lee, 05-2098, p. 15 (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. Haywood, 00-1584, p. 5 (La.App. 5 Cir. 3/28/01), 783 So.2d 568, 574.

The right of the police to conduct a personal effects inventory search at the time of an arrested person’s booking is a recognized exception to the search warrant requirement. State v. Wilson, 467 So.2d 503, 517 (La.1985), cert. denied, 474 U.S. 911, 106 S.Ct. 281, 88 L.Ed.2d 246 (1985); State v. Burns, 44,937, p. 12 (La.App. 2 Cir. 2/2/10), 32 So.3d 261, 270 (citing LSA-C.Cr.P. art. 228; United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974); Wilson, supra; State v. Nuccio, 454 So.2d 93 (La.1984)).

However, the police may not seize any item that they choose. The item they seize must be contraband, an instrumentality of the crime, a fruit of the crime, or evidence of a crime. Wilson, supra at 517; Burns, supra. For the seizure of the defendant’s clothing under these circumstances to be upheld, the State must affirmatively show the existence of probable cause that the thing seized is somehow related to a particular crime. The State must establish a nexus between the item seized and criminal behavior. In the case of “mere evidence,” instead of contraband, or instrumentalities or fruits of the crime, probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction. Wilson, 467 So.2d at 517 (quotation omitted); Burns, 44,937 at 12, 32 So.3d at 271 (quotation omitted).

In United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), the United States Supreme Court provided the following:

[B]oth the person and the property in his immediate possession may be searched at the station house after the arrest has occurred at another placet,] and if evidence of [a] crime is discovered, it may be seized and admitted in evidence. Nor is there any doubt that clothing or other belongings may be seized upon arrival of the accused at the place of detention and later subjected to laboratory analysis or that the test results are admissible at trial.
... With or without probable cause, the authorities were entitled at that point not only to search [the defendant’s] clothing but also to take it from him and keep it in official custody.... The police were also entitled to take from [the defendant] any evidence of the crime in his immediate possession, including his clothing.

415 U.S. at 803-05, 945 S.Ct. at 1237-38 (footnotes omitted).

The Court in Edwards further stated:

[T]he police had lawful custody of [the defendant] and necessarily of the clothing he wore. When it became apparent that the articles of clothing were evidence of the crime for which [the defendant] was being held, the police were entitled to take, examine, and preserve them for use as evidence, just as they are normally permitted to seize evidence of crime when it is lawfully encountered .... [I]t is difficult to perceive what is unreasonable about the police’s examining and holding as evidence those personal effects of the accused that they already have in their lawful custody as the result of a lawful arrest.

415 U.S. at 806, 94 S.Ct. at 1238.

In Wilson, supra at 515-17, soon after a murder, the defendant was apprehended by police officers wearing clothing that contained stains that appeared to be fresh blood. Following the defendant’s arrest, police officers instructed the defendant to remove his clothing, and the clothing was tagged by the officers and sent to the state crime laboratory. The Louisiana Supreme Court found that the seizure and retention of the defendant’s clothing was lawful and stated the following:

By any standard, the detectives’ conclusion that the bloodstained clothing would eventually aid in the conviction of [the victim’s] murderer is reasonable. The defendant’s bloodstained clothing 1^potentially constituted persuasive circumstantial evidence of his involvement in the homicide. The state had probable cause to seize the clothing as evidence of criminal activity, and the police seizure and retention of such evidence without a warrant was lawful.

Wilson, 467 So.2d at 517.

In Burns, supra, the defendant was convicted of one count of simple burglary and two counts of attempted simple burglary. Burns, 44,937 at 1, 32 So.3d at 265. The Second Circuit found that at the time the defendant’s clothing was seized, law enforcement had lawful custody of the defendant and his clothing. Further, the court recognized that upon the defendant’s arrival at the place of detention, the police officers were entitled to search his clothing and keep it in official custody. Bums, 44,937 at 14, 32 So.3d at 271. Additionally, the court found that it was apparent that the items of clothing the defendant was wearing were evidence of the crimes for which the defendant had been arrested. Burns, 44,937 at 14, 32 So.3d at 271-72. The court also agreed that the police officers’ conclusion that the clothing would eventually aid in the identification of the defendant as the perpetrator of the crimes was reasonable, recognizing that the clothing worn by the person depicted on surveillance matched clothing that the defendant was wearing at the time of his arrest. Thus, the court concluded that the officers were entitled to take the items, examine them, and use them as evidence. Accordingly, the court determined the seizure and retention of the defendant’s clothing, without a warrant, was lawful. Burns, 44,937 at 14, 32 So.3d at 272.

In the present case, at the suppression hearing, Lieutenant Kramer testified that Sergeant Meunier advised him, after the defendant was interviewed, that the defendant was being arrested and charged with the murder. Sergeant Meunier testified that he received the clothing and credit cards from the Poplarville police 11fiwhen he went to Mississippi. The items had been taken from defendant after he was arrested in Mississippi.

In determining whether the trial court’s ruling on a motion to suppress is correct, an appellate court is not limited to the evidence presented at the motion to suppress hearing, but also may consider pertinent evidence presented at trial. State v. Mollette, 08-138, p. 10 (La.App. 5 Cir. 11/25/08), 2 So.3d 461, 467, unit denied, 09-155 (La.10/16/09), 19 So.3d 472 (emphasis added). The facts presented at trial appear to present further explanation as to when defendant was actually arrested for the homicide.

Lieutenant Kramer testified at trial that he released the shoes and jacket that defendant was wearing when he was arrested, to Sergeant Meunier on November 27th at 10:25 p.m. just before he left. He testified that the detective advised him that he would charge defendant. Sergeant Spera testified that they received the jacket and shoes from Lieutenant Kramer, knowing that they were looking for specific items in their investigation. Sergeant Spera explained that a bloody footprint was found in the victim’s house and a surveillance photograph from the bank where the victim’s check was attempted to be cashed showed that the suspect was wearing a distinct jacket. Sergeant Meu-nier testified that he received defendant’s clothing from Lieutenant Kramer. He also explained that he did not leave that night with defendant, but instead he returned home and an arrest warrant was prepared for defendant to return to Louisiana while he remained in the custody of the Mississippi police department. Sergeant Meunier testified that no search warrant was obtained for the clothing. It was later determined that defendant’s shoes and jacket contained the victim’s DNA.

As such, the testimony at trial shows that defendant was arrested in Mississippi after being found in possession of the homicide victim’s stolen vehicle. | i7However, the shoes and jacket, which were received at the time defendant was booked in Mississippi, were given to the Jefferson Parish authorities prior to defendant being arrested for the homicide. Nevertheless, we find jurisprudence supports the conclusion that no search warrant was necessary in the instant case.

State v. Nuccio, 454 So.2d 93 (La.1984), involved a situation where a defendant’s property was taken at booking for one crime and then used in another crime. In Nuccio, supra at 96-97, the defendant was convicted of armed robbery, in which the victim later died in the hospital. During the robbery, one of the men wore a reddish bandanna. Id. at 96. On the night of the robbery, the defendant was arrested for an unrelated charge of possession of marijuana. Id. at 97. At his booking for that charge, a reddish bandanna and a large quantity of coins were taken from the defendant during the booking inventory search. These items were “ ‘seized’ ” by the sheriffs office, and were not returned to the defendant upon his release from jail. Later, as a result of an unrelated shooting incident, another defendant was arrested and made a statement to the sheriffs office in which he indicated that Nuccio had committed the robbery. The defendant was arrested for armed robbery as a result. Id.

On appeal, Nuccio argued that he sought to suppress the introduction of the coins and bandanna which were taken from him during his booking for possession of marijuana. He argued that the items should have been returned to him upon his release from jail, two days after his arrest, and that the items, while being held during his detention, should have been treated not as evidence seized without probable cause, but only as personal effects taken in the booking. Id. at 98.

One of the arresting officers made it known at the marijuana booking that he wanted to keep the large quantity of coins and the bandanna which were taken from Nuccio as possible evidence in the robbery. This arresting officer testified hsthat the sheriffs office did not consider Nuccio to be a suspect in the robbery, nor did they have probable cause for his arrest in connection with that crime. It was only after another defendant in an unrelated crime made his statement that the police had such probable cause. The court cited State v. Bryant, 325 So.2d 255, 257-59 (La.1975), for the proposition that once a person has been “lawfully deprived of the possession of ... [his property], and the custody and control of ... [the] objeet[s] was legitimately under the dominion of the police, it was not an unreasonable search and seizure for the police to use it as evidence of another crime.” Id. at 259.

The Louisiana Supreme Court noted that the propriety of the seizure of the coins and bandanna, then, could be upheld if they constitute “evidence” of the armed robbery or some other crime. The court further noted that the seizure of property must be supported by a finding that the thing probably will lead to an arrest or conviction of a person for a particular crime. It concluded that the bandanna, and alleged fruits of the crime, the large quantity of coins, were seized from Nuccio at his marijuana booking at which time the police already had a version of what had happened at the robbery: a man wearing a reddish bandanna stole some money, which probably contained a large amount of loose change. The court further concluded that it was reasonable for the police officer to conclude that, while he could not be certain that Nuccio was one of the armed robbers, there was a possibility that the bandanna and the unusually large quantity of coins would eventually lead to an apprehension or conviction of some person. In Nuccio, the court explained that the evidence alone was too circumstantial to support a finding of probable cause to arrest Nuccio, but there was probable cause for the police to believe that the items eventually would lead to an arrest or conviction. Thus, the |1flcourt concluded that the coins and the bandanna were not seized and retained unlawfully.

The present case differs slightly from Nuccio because this case involved two different police departments, whereas Nuccio appeared to involve the same police department. However, in the present case, defendant does not challenge on appeal the transfer of the property from Mississippi authorities to the Jefferson Parish authorities. In fact, counsel conceded at the suppression hearing that this transfer was not an issue. Instead, defendant only challenges on appeal the testing done on the clothing -without a search warrant, arguing that the trial court erred by not suppressing unauthorized DNA and blood evidence. However, we find that case law, as discussed above, suggests otherwise.

In this present case, the officers knew of a bloody footprint found in the victim’s residence and had a photograph from the bank of the person who tried to cash the victim’s check on the day before his body was discovered. The person in the photograph was wearing a jacket. With this knowledge, we find it was reasonable that the officers were interested in obtaining defendant’s shoes and jacket. We find the officers also had the authority to examine defendant’s shoes and jacket without a search warrant. As such, 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 387 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). We note no errors which require corrective action.

Accordingly, defendant’s conviction and sentence are affirmed.

AFFIRMED

      . Ms. Washington, who lived in Mississippi, testified as to phone numbers belonging to her family, which all included the “601” area code.