author: PETTIGREW, J. McCLENDON, J.,

text:
    Ronald A. GOUX v. ST. TAMMANY PARISH GOVERNMENT.
    No. 2013 CA 1387.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 24, 2014.

      Jeremy D. Goux, and Paul J. Mayronne, Covington, LA, for Plaintiffs-Appellants, Ronald A. Goux, Quatreg 2112, LLC. and Girt Industries, L.L.C.
    Alex J. Peragine, Covington, LA for Intervenors-Appellees, Aurelia Marek, Richard Marek, James McNary, Mary Bielman, George Harvey, Deborah Harvey, William Weil, Darlene Olano, Richard Olano, Jeff LaCour, Jacquelyn LaCour, Ronald Tweedel, Linda Tweedel, Andrew Moran, and Citizens For Balanced Development, a Louisiana Nonprofit Corporation.
    Michael Sevante, Mandeville, LA, for Defendant-Appellee, St. Tammany Parish Government.
    Before WHIPPLE, C.J., GUIDRY, ' PETTIGREW, MCDONALD, and McClendon, jj.
   PETTIGREW, J.

li>This matter is before us on appeal by plaintiffs from a judgment of the trial court, overruling their exception raising the objection of no right of action and denying plaintiffs’ request for mandamus relief, with regard to an alleged mapping error on the St. Tammany Parish zoning map. For the following reasons, we reverse, in part, the trial court judgment, and grant mandamus in favor of plaintiffs as discussed in more detail below.

FACTS AND PROCEDURAL HISTORY

In 2007, the St. Tammany Parish Council (“Council”) began a comprehensive rezoning of all unincorporated areas of St. Tammany Parish. For this purpose, the Council established a Special Zoning Commission (“Zoning Commission”)' to make recommendations to the Council on all such properties. The Council held various public meetings in and around St. Tammany Parish to get input and hear requests from landowners and residents regarding zoning. At all times pertinent hereto, Ronald A. Goux owned approximately 36.6 acres of land in St. Tammany Parish, with said property being situated in the Southwest corner of the intersection of U.S. Interstate 12 and Louisiana Highway 21, with frontage along Brewster Road (“the 36.6 acres”).

On December 15, 2008, Mr. Goux, through his counsel, issued a written request to St. Tammany Parish Government (“the Parish”) to have the 36.6 acres zoned HC-3. Attached to this letter was a survey map of Mr. Goux’s property, including a legal description of said property. At the January 13, 2009 Zoning Commission meeting, Mr. Goux’s counsel asserted that the 36.6 acres was bordered by U.S. Interstate 12 to the North; property, historically zoned C-2 Highway Commercial, to the East, Brewster Road to the South; and a church, proposed to be rezoned PF-1, to the West. He further argued that similarly situated large parcels of land on the Northwest, Northeast, and Southeast quadrants of the intersection of U.S. Interstate 12 and Louisiana Highway 21 had all | ...historically been zoned C-2 Highway Commercial and were proposed to be rezoned to HC-3 as part' of the Parish’s comprehensive rezoning process.

According to the record, the Zoning Commission recommended that the 36.6 acres be rezoned HC-3 pursuant to the comprehensive rezoning plan, subject to a portion of the 36.6 acres measuring 75' in depth from South to North running the entire length of the property, parallel to Brewster Road, from East to West, being rezoned A-3. This matter was then placed on the agenda for the Council’s February meeting, but tabled. However, the ordinance to adopt the recommendations of the Zoning Commission and comprehensively rezone the Southwest Study Area, which includes the 36.6 acres, was introduced as Ordinance Calendar No. 4029 on March 5, 2009, and then reintroduced multiple times thereafter with amendments. At the June 4, 2009 Council meeting, numerous changes were made to the Southwest Study Zone map, including the rezoning of the 75' strip of Mr. Goux’s property that had previously been zoned A-3 to HC-3. This, presumably, resulted in the entirety of Mr. Goux’s 36.6 acres being zoned HC-3.

On September 3, 2009, Ordinance Calendar No. 4029, as amended, appeared on the Council’s agenda. The ordinance was adopted by the Council and became Ordinance C.S. No. 09-2116. The pertinent portions of Ordinance C.S. No. 09-2116 provided as follows:

THE PARISH OF ST. TAMMANY HEREBY ORDAINS that the Unified Development Code, Volume 1 is hereby amended to include the Zoning Map recommended by the St. Tammany Parish Zoning Commission on February 10, 2009, as amended. (See Attached Map) The attached map being the Zoning Base Map for the South West Study Area.
|4BE IT FURTHER ORDAINED that, upon the effective date of this ordinance, all land uses within the area bounded by Highway 59 on the east, Lake Pontchartrain on the south, the Tangipahoa Parish Line on the west, and the Tchefuncta River to Highway 190 to Highway 36 on the north shall be regulated in accordance with the Unified Development Code and this map.
REPEAL: All Ordinances or parts of Ordinances in conflict herewith are hereby repealed.

Subsequent to the passage of the amended ordinance on September 3, 2009, Parish staff erred when translating the action taken by the Council to the Parish Zoning map. In particular, the westernmost 10 acres of Mr. Goux’s property (“the 10 acres”) was erroneously identified on the Parish zoning map as being zoned CB-1.

In 2012, Mr. Goux discovered this error by the Parish and brought it to the attention of Sidney Fontenot, the Director of Planning and Permits for the Parish, requesting that it be corrected. After investigating the matter, Mr. Fontenot acknowledged the error and indicated that he believed that in order to correct it, the matter would need to be presented to the Zoning Commission and ultimately the Council. Thereafter, the Parish placed a proposal on the Zoning Commission’s agenda to have the 10 acres rezoned from CB-1 to HC-3.

The Parish’s rezoning proposal was first considered by the Zoning Commission at its November 7, 2012 meeting, at which time the matter was tabled. At its December 4, 2012 meeting, the Zoning Commission heard from counsel for Mr. Goux, as well as | ¿numerous residents who lived in neighborhoods around the Brewster Road area. Counsel for Mr. Goux argued that the entirety of the property had already been zoned HC-3 and that the map simply needed to be corrected. The residents all opposed the HC-3 zoning, arguing that the error in the map had misled the public into believing there would be a buffer between the HC-3 property and the numerous neighborhoods adjoining the property. The Zoning Commission’s legal counsel, Terry Hand, advised the commission members that he had researched the matter and believed that the mapping error was a technical change that could be corrected by going through the process of putting it before the Zoning Commission and ultimately the Council. Mr. Hand added further that he had found three prior cases in which the Zoning Commission was presented with similar situations and had corrected the errors before it in each of those cases. Some of the commission members commented that they did not care about precedent, noting that citizens of the Parish had purchased property based on the assumption that there would be a buffer between the neighborhoods and the commercial acreage on Brewster Road. Other commission members indicated that the mapping error was made to the detriment of the people who live in the area of Brewster Road because they did not have the opportunity to have their voices heard. After considering the pleas from the public, and in direct opposition to its own legal counsel’s advice, the Zoning Commission denied a motion to approve the change in zoning for the 10 acres from CB-1 to HC-3. Although constant in his position that the rezoning process instituted by the Parish was erroneous, Mr. Goux appealed the Zoning Commission’s decision to the Council to protect his rights. His appeal was set to be heard in January 2013, but was tabled by the Council upon advice by Mr. Goux that a mandamus action on the matter would be filed.

On February 1, 2013, Mr. Goux, along with Quatreg 2112, LLC, and Girt Industries, LLC (collectively “Goux”), filed a petition for writ of mandamus, requesting that the trial court order the Parish to correct its mapping error so that the Parish zoning map accurately reflects the entire 36.6 acres, including the 10 acres, as being zoned HC-3, pursuant to Ordinance C.S. No. 09-2116. Goux further requested that the trial court direct the Parish to withdraw and dismiss its erroneous rezoning request relative to the 10 Lacres. On February 7, 2013, interveners filed a petition, arguing that mandamus was an extraordinary remedy and that Goux had other remedies available.

The Parish filed an answer to Goux’s petition for writ of mandamus on February 8, 2013, admitting, among other things, that pursuant to Ordinance C.S. No. 09-2116, the'entirety of the 36.6 acres had been zoned HC-3 and that the 10 acres of Mr. Goux’s property had been erroneously identified on the Parish zoning map because “Parish staff erred when performing its ministerial duty of translating the action taken by the Council.” The Parish further admitted that it “instituted a process by which the zoning for the 10 Acres would purportedly be ‘changed’ to HC-3 and as a result the matter was placed on the agenda for the [Zoning Commission].” On February 22, 2013, intervenors filed an answer, generally denying the allegations in Goux’s petition for writ of mandamus. Intervenors also filed exceptions raising the objections of no cause of action and prematurity. Goux responded, filing an exception raising the objection of no right of action against intervenors on March 1, 2013. The Parish answered the petition for intervention on March 7, 2013,

The matter proceeded to hearing before the trial court on March 12, 2013. The trial court first' considered Goux’s exception raising the objection of no right of action as to the petition of intervention and concluded that the intervenors, as owners of nearby property, had a justiciable interest in the matter because of the possibility of a zoning change that could have a negative impact on them. Thus, the exception raising the objection of no right of action urged by Goux was denied. Next, the trial court heard argument on the remaining exceptions and the writ of mandamus. The parties argued their respective positions, entered into various stipulations on the record, and introduced a number of exhibits into evidence. At the conclusion of the hearing, the trial court denied the exception raising the objection of no cause of action filed by intervenors and took the remaining matters under advisement.

|7The trial court issued written reasons for judgment on March 15, 2013, denying intervenors’ exception raising the objection of prematurity and denying Goux’s petition for writ of mandamus. The trial court found that the matter was not appropriate for a writ of mandamus because the action requested by Goux was that the Parish modify the official zoning map “by modifying the present zoning of the ten acres as shown on the map to HC-3 without an ordinance approving this modification,” On March 27, 2013, the trial court signed a judgment in accordance with its findings. It is from this judgment that Goux has appealed, arguing that the trial court erred in denying their petition for writ of mandamus and in overruling their no right of action exception.

RULE TO SHOW CAUSE

After Goux appealed, this court issued a rule to show cause order indicating the March 27, 2013 judgment appeared to lack appropriate decretal language disposing of and/or dismissing Goux’s claims. On October 9, 2013, the trial court signed an amended judgment, which stated, in pertinent part: “IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment in favor of Interve-nors, Aurelia Marek, et al, and against the Plaintiffs, Ronald A. Goux, et al, dismissing with prejudice the Petition for Writ of Mandamus filed by Plaintiffs.” The appellate record was supplemented with the amended judgment. In a December 20, 2013 order signed by this court, the appeal was maintained; however, the final determination as to whether the appeal was to be maintained was referred to this appellate panel for disposition, along with the merits of the appeal.

The March 27, 2013 judgment, as amended by the October 9, 2013 judgment, contains the appropriate decretal language to be a valid final judgment, ie., it names the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted. See Jenkins v. Recovery Technology Investors, 2002-1788, pp. 3-4 (La.App. 1 Cir. 6/27/03), 858 So.2d 598, 600. Therefore, we declare the existence of a final, appealable judgment, and maintain the appeal. See La.Code Civ. P, art.2088; see also Henkelmann v. Whiskey Island Preserve, LLC, 2011-0304, p. 3 (La.App.1 Cir. 6/1/12), 2012 WL 1965853 (unpublished). We now address the merits of Goux’s appeal.

DISCUSSION

On appeal, Goux maintains that mandamus is appropriate, as there is no element of discretion in the present case. Goux argues, “The time for discretionary action by the Parish has passed; the zoning process is behind Goux.” Noting that the legislative intent for the entirety of Mr. Goux’s property to be zoned HC-3 was passed by the Council, Goux asserts that Mr. Fontenot, as Director of Planning and Permits for the Parish, had no discretion as the Council had spoken through Ordinance C.S. No. 09-2116. Rather, Goux alleges, Mr. Fontenot had a ministerial duty, attached to his office by Section 4-08(A)(3) of the St. Tammany Parish Home Rule Charter, to maintain and update the Parish zoning map in accordance with Ordinance C.S. No. 09-2116, which the Parish admitted zoned the entirety of the 36.6 acres as HC-3.

In response, intervenors argue that mandamus is an extraordinary remedy limited to ministerial acts and does not authorize a court to amend a legislative act. Intervenors direct our attention to Section 2 — 11(A) of the St. Tammany Parish Home Rule Charter, which was relied on by the trial court in its denial of Goux’s petition for writ of mandamus. Interve-nors argue that any change to the Parish zoning map would be a modification of the map requiring an ordinance to be introduced by the Council. Thus, intervenors maintain, the trial court was correct in finding that in order to modify the official map or zoning map, an ordinance must be introduced and there must be an affirmative vote by the Council with the opportunity for a public hearing.

| flMandamus is a summary proceeding, which is defined as a writ that may, among other things, be used to direct a public officer to perform ministerial duties required by law. La.Code Civ. P. arts. 3781, 3861, and 3863 Acadian Ambulance Service, Inc. v. Parish of East Baton Rouge, 97-2119, p. 7 (La.App. 1 Cir. 11/6/98), 722 So.2d 317, 322, writ denied, 98-2995 (La.12/9/98), 729 So.2d 583. Mandamus may be issued in all cases where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice. La.Code Civ. P. art. 3862. It is an extraordinary remedy, which must be used sparingly and only to compel action that is clearly provided by law. Pelican Educational Foundation, Inc. v. Louisiana State Bd. of Elementary and Secondary Educ., 2011-2067, pp. 5-6 (La.App. 1 Cir. 6/22/12), 97 So.3d 440, 444.

Mandamus will not lie in matters in which discretion and evaluation of evidence must be exercised. The remedy of mandamus is not available to command performance of an act that contains any element of discretion, however slight. Sund v. St. Helena Parish School Bd., 2005-2473, p. 3 (La.App. 1 Cir. 5/5/06), 935 So.2d 219, 221, writ denied, 2006-1392 (La.9/22/06), 937 So.2d 392. Further, mandamus is to be used only when there is a clear and specific legal right to be enforced or a duty that should be performed. It never issues in doubtful cases. City of Hammond v. Parish of Tangipahoa, 2007-0574, p. 11 (La.App. 1 Cir. 3/26/08), 985 So.2d 171, 181. A writ of mandamus may only Issue to compel the performance of a ministerial duty required by law. Gibson & Associates, Inc. v. State, Dept. of Transp. & Development, 2010-1696, p. 20 (La.App.1 Cir, 5/18/11), 68 So.3d 1128, 1140. “Ministerial duties are duties in which no element of discretion is left to the public officer. [It] is a simple, definite duty, arising under conditions admitted or proved to exist, and imposed by law. If a public officer is vested with any element of discretion, mandamus will not lie.” Hoag v. State, 2004-0857, p. 7 (La.12/1/04), 889 So.2d 1019, 1024 (citations omitted). The appellate court will grant a writ of mandamus only when there is usurpation of judicial power or clear abuse of discretion. Wallace C. Drennan, Inc. v. Sewerage & Water Bd. of New Orleans, 2000-1146, p. 3 (La.App. 4 Cir. 10/3/01), 798 So.2d 1167, 1171.

We have thoroughly reviewed the record before us. Of particular interest to this court is the trial court’s interpretation of the four maps that were stipulated to by the parties at the hearing before the trial court on March 12, 2013 in its written reasons for judgment, the trial court made the following findings of fact and conclusions of law:

FINDINGS OF FACT:
The'property (10 acres) at issue is part of a larger 36.6 acre tract owned by the plaintiffs. On December 15, 2008, counsel for plaintiffs issued a request to have the entire 36.6 acres re-zoned to HC-3 Highway Commercial District rather than the initially proposed A-3 Suburban District. On January 13, 2009. Goux’s counsel appeared before the Special Zoning Commission for the parish to request the re-zoning of the 36.6 acres to the HC-3 zoning classification. At this meeting, the zoning commission approved this recommendation, and it was placed on the agenda for the parish council’s consideration at its February meeting but was tabled.
The ordinance (“Ordinance No. 4029[”]) was originally introduced to the council on March 5, 2009, It was brought before the [council] at subsequent meetings, with many amendments being made to it. Four maps were introduced during these meetings and there is no reference on these maps that zone the 10 acres as HC-3. At the September 3, 2009 council meeting, Ordinance No. 4029 As Amended (Ordinance No. 4029AA), was officially adopted by the St. Tammany Parish Council. (Exhibit 5). The ordinance included the zoning map recommended by the zoning commission on February 10, 2009, as amended, said map being attached to the ordinance. This map shows the 10 acres in question as zoned CB-1.
In late 20f2, Goux discovered that the westernmost 10 acres of the 36.6 acres was identified on the Parish zoning map as zoned CB-1 rather than HC-3. Counsel for plaintiffs made the Director of Planning and Permits for St. Tammany Parish aware of the alleged mapping error and requested that the map be changed to indicate the 10 acres was zoned as HC-3. It appears that counsel for plaintiffs and the parish were of the opinion that the entirety of the 36.6 acres was zoned HC-3, however the official map did not delineate this. The Parish brought the matter before the parish’s zoning commission in December of 2012. The zoning commission denied plaintiffs’ zoning change request.
Plaintiffs appealed the zoning commission’s denial of the zoning change request to the parish council, which appeal was set to be heard in January 2013, The matter was tabled at the hearing, and this “Petition for a Writ of Mandamus” was filed in this Court by plaintiffs on February 1, 2013.
11T CONCLUSIONS OF LAW;
The official zoning map, which is presently in effect, was approved by the St. Tammany Parish Council and made a part of Ordinance 4029, As Amended on September 3, 2009.
The Court notes that the 10 acres in dispute were not designated HC-3 on the zoning map recommended to the council by the zoning commission dated February 10, 2009 or on any subsequent map introduced at the council hearings which the parties had opportunities to review. The zoning map dated September 3, 2009 became the “official map” when it was attached to the ordinance approved on that date by the St. Tammany Parish Council, As all parties agree, this map did not zone the ten acres at issue as HC-3.
Plaintiffs are requesting in this action that the parish modify the official map by modifying the present zoning of the ten acres as shown on the map to HC-3 without an ordinance approving this modification. They point to Section 4-08(A)(3) of the Home Rule Charter which provides that the Director of Planning and Permits shall be responsible for “maintaining and updating the St. Tammany Parish Land Use Map” to provide authority for their position. However, the Court finds that any change to the zoning map that is attached to Ordinance 4049, As Amended, would be considered a modification of the map and therefore would be governed by the clear provisions of section 2-11 of the Home Rule Charter. Pursuant to the provisions of the Home Rule Charter, in order to modify the official map or a zoning map, an ordinance must be introduced and there must be an affirmative vote by the St. Tammany Parish Council with the opportunity for a public hearing.
Therefore, the Court finds based on the above reasoning, that this matter is not appropriate for a writ of mandamus, as the requested action by the plaintiffs is not a ministerial act but must be authorized by the members of the parish council through an ordinance pursuant to section 2-11 of the Home Rule Charter, Accordingly, the “Petition for Writ of Mandamus” is denied. [Emphasis in original.]

The trial court found that any change to the Parish zoning map would be considered a modification, requiring the introduction of an ordinance and an affirmative vote by the Council. While we agree that any zoning change would, in fact, require such action by the Council pursuant to Section 2-11 of the St. Tammany Parish Home Rule Charter, this is not such a case. Rather, in the instant case, the Parish admitted in its answer to Goux’s petition for writ of mandamus that pursuant to Ordinance C.S. No. 09-2116, the 36.6 acres in its entirety was zoned HC-3 by the Council and that “Parish staff erred when performing its ministerial duty of translating the action taken by the Council, pursuant to the Ordinance, to the Parish zoning map.” Goux maintains [12on appeal that unless the definitive boundary lines of Mr. Goux’s property were known with absolute certainty, anyone viewing the September 3, 2009 Parish zoning map “could only reasonably conclude the entire 36.6 [a]cres was zoned HG-3, consistent with the duly passed Ordinance.” We agree.

The trial court notes that the 10 acres in dispute was not designated with HC-3 zoning on any of the Parish zoning maps introduced at the Council hearings. While we agree a cursory review of the maps may cause one to indiscriminately conclude that the 10 acres was never zoned HC-3, a complete review of the record reveals otherwise. As previously discussed, the mapping error by the Parish began with the February 10, 2009 map and was, apparently, perpetuated over the years, varying only slightly in that the erroneous designation of the 10 acres changed from PF-3 zoning to CB-1 zoning.

The Parish admitted in pleadings that “the failure to accurately plot the western boundary of the 36.6 [a]cres, thereby excluding the 10 [a]cres, was an inadvertent error” on the part of 'Parish staff. The Parish further conceded that in connection with the Zoning Commission’s comprehensive rezoning plan, it was recommended to the Council that Mr. Goux’s 36.6 acres be rezoned HC-3, subject to a portion of the 36.6 acres measuring 76' in depth from South to North running the entire length of the property, parallel to Brewster Road, from East to West, being zoned A-3, It follows then that the February 10, 2009 map (Appendix A) reflects what the parties believe to be a true representation of the zoning of Mr. Goux’s property as per the Zoning Commission’s recommendation as of that time. At first glance* the February 10, 2009 map appears to show that as per the Zoning Commission’s recommendation, only the bottom portion of Mr. Goux’s property, running the entire length of the property, was designated with A-3 zoning, while the majority of the acreage was designated with HC-3 zoning. However, upon closer examination, it is clear that the mapping error that is the focus of this appeal began on this February 10, 2009 map, as Mr. Goux’s property line to the west extends past the shaded area for the HC-3 zoning and into the shaded area that is zoned PF-3.

11sLikewise, when the Council amended Ordinance Calendar No. 4029 on June 4, 2009, and rezoned the 75' strip of Mr. Goux’s property that had previously been zoned A-3 to HC-3, the June 4, 2009 map (Appendix B) was prepared to reflect this change. This map clearly shows that the portion of Mr. Goux’s property, which had been designated with A-3 zoning, was rezoned as HC-3, Again, at first glance, the June 4, 2009 map designates HC-3 zoning for what appears to be the entirety of Mr. Goux’s property. However, the same incorrect PF-3 zoning for the 10 acres that appeared on the February 10, 2009 map (Appendix A) is again reflected on the June 4, 2009 map.

Subsequently, Ordinance Calendar No. 4029, as amended, appeared on the Council’s agenda on September 3, 2009, and was adopted by the Council as Ordinance C.S. No. 09-2116. The Parish admitted that pursuant to Ordinance C.S. No. 09-2116, the entirety of Mr. Goux’s 36.6 acres of property was duly zoned HC-3. Although the September 3, 2009 map (Appendix C) appears to designate HC-3 zoning for an area consistent with the shape of the entire 36.6 acres of property owned by Mr. Goux, once again, we note that the 10 acres fail outside the shaded area for HC-3 zoning and, instead, is designated with CB-1 zoning. Moreover, the pertinent portions of the March 12, 2013 map (Appendix D), which is the Parish’s current zoning map, appear identical to the September 3, 2009 map.

As argued by Goux on appeal, the correction to the Parish zoning map sought in this case “is a simple, definite fix of an undisputed ministerial error in mapping.” A writ of mandamus was appropriate in the instant case, as the requested action by Goux was simply a ministerial duty that Mr. Fontenot was required to perform pursuant to his duties as Director of Planning and Permits for the Parish. Mr. Fontenot had no discretion in performing this “simple, definite, duty,” which arose “under conditions admitted or proved to exist, and imposed by law” Hoag, 2004-0857 at 7, 889 So.2d at 1024. The trial court abused its discretion in denying Goux’s petition for writ of mandamus. Thus, we reverse that portion of the October 9, 2013 judgment that dismissed, with prejudice, Goux’s petition for writ of mandamus. We further order that a writ of mandamus issue ordering the Parish to withdraw the rezoning process | ^previously commenced on the 10 acres and to correct the mapping error on the Parish zoning map to reflect the entirety of Mr. Goux’s 36-6 acres, including the 10 acres, as being zoned HC-3 pursuant to Ordinance C.S. No. 09-2116.

DECREE

For the above and foregoing reasons, we reverse the trial court’s dismissal of Goux’s petition for writ of mandamus. It is further ordered that writ of mandamus issue, ordering that the Parish, within 30 days of the finality of this judgment, withdraw the rezoning process previously commenced on the 10 acres and correct the ministerial mapping error to reflect that the entirety of Mr. Goux’s 36.6 acres, including the 10 acres, is zoned HC-3, pursuant to Ordinance C.S. No. 09-2116. All costs associated with this appeal are assessed against intervenors.

APPEAL MAINTAINED; JUDGMENT REVERSED IN PART; MANDAMUS ISSUED.

WHIPPLE, C.J., dissents. Mandamus is an extra ordinary remedy & is only appropriate where the act to be compelled is purely ministerial & involves no discretion. Moreover, there is another remedy available to plaintiff.

McCLENDON, J, dissents with reasons.

| Appendix A

South West Study Area Zoning Commission Recommendations February 10, 2009

| wAppendix B

South West Study Area Recommendations as amended by Council June 4, 2009

\vjAppendix C

South West Study Area Zoning Map as adopted by Council September 3, 2009

McCLENDON, J.,

dissenting.

|tI disagree with the majority that a writ of mandamus is appropriate in this ease. This is not “a simple, definite fix of an undisputed ministerial error in mapping.” To the contrary, the map that was drawn in error was subsequently adopted as part of an ordinance of the Parish Council. As such, any change to the parish zoning map is a zoning change and a modification of the map requiring an ordinance.

As acknowledged by the majority, Section 2-11A of the St. Tammany Parish Home Rule Charter provides, in pertinent part:

An act of the council having the force of law shall be by ordinance. An act requiring an ordinance shall include but not be limited to those which:
(13) Adopt or modify the official map.
(16) Adopt or modify the zoning plan, maps and regulations.
(Emphasis added.)

The trial court correctly concluded that any change to the official zoning map, approved by the St. Tammany Parish Council and made part of Ordinance 4029, as amended, on September 3, 2009, would be considered a modification of the map, and, therefore, would be governed by the clear provisions of Section 2-11 of the Home Rule Charter. The majority attempts to circumvent the clear [2mandate of the Home Rule Charter by referencing an “inadvertent error” on the part of the Parish staff. However, pursuant to the specific provisions of the Home Rule Charter, in order to modify the official map or the zoning map, an ordinance must be introduced and there must be an affirmative vote of the Council with the opportunity for a public hearing. This mandate is clear and unambiguous.

As noted by the trial court:

[T]he 10 acres in dispute were not designated HC-3 on the zoning map recommended to the council by the zoning commission dated February 10, 2009 or on any subsequent map introduced at the council hearings which the parties had opportunities to review. The zoning map dated September 3, 2009 became the “official map” when it was attached to the ordinance approved on that date by the St. Tammany Parish Council. As all parties agree, this map did not zone the ten acres at issue as HC-3.

Because a writ of mandamus is not the only available remedy to Mr. Goux and because a change to the current zoning map requires the passage of a parish ordinance, this matter is not appropriate for a writ of mandamus. Therefore, I respectfully dissent.

      . We note that Mr. Goux's property actually encompasses 36.641 acres as is indicated on the survey map and on all of the Parish maps introduced into the record. Nonetheless, for ease of reference, we refer to the property as "the 36.6 acres” throughout this opinion.

      . The parties stipulated that Exhibit 8, which was introduced as evidence before the trial court, was the map that went along with the recommendation from the Zoning Commission to the Council on February 10, 2009. We have copied the pertinent portion of said map entitled "South West Study Area Zoning Commission Recommendations February 10, 2009” and attach same to this opinion as "Appendix A.”

      .The parties stipulated that Exhibit 9, which was introduced as evidence before the trial court, was the map that went along with the proposed amendments by the Council to Ordinance Calendar No. 4029 on June 4, 2009. We have copied the pertinent portion of said map entitled "South West Study Area Recommendations as amended by Council June 4, 2009” and attach same to this opinion as "Appendix B.”

      . The parties stipulated that Exhibit 10, which was introduced as evidence before the trial court, was the map that went along with the ordinance that was passed by the Council on September 3, 2009. We have copied the pertinent portion of said map entitled "South West Study Area Zoning Map as adopted by Council September 3, 2009” and attach same to this opinion as "Appendix C.”

      . We note that in the petition for writ of mandamus, the allegation is that the Parish erroneously identified the 10 acres as being zoned PF-1 on the Parish zoning map. We can find no map in the record with the PF-1 designation. On the September 3, 2009 map, there is HC-3 zoning designated for an area consistent with the shape of the entire 36.6 acres of Mr. Goux’s property. However, we note that the 10 acres in question fall outside the shaded area for HC-3 zoning and, instead, is designated with CB-1 zoning. The only other map introduced into evidence below was Exhibit 11, which the parties stipulated was the current zoning map for the Parish as it appeared on March 12, 2013. Again, on this March 12, 2013 map, the 10 acres is identified as being zoned CB-1. The pertinent portion of said map entitled "South West Study Area Current Zoning Map March 12, 2013” is attached hereto as “Appendix D.” Nonetheless, regardless of the nature of the mapping error, we note the Parish has admitted to same in its answer to the petition for writ of mandamus.

      .Mr. Goux maintains below, and on appeal, that he never initiated a rezoning process, nor did he concur that the process chosen by the Parish was the appropriate process to correct the mapping error. Mr. Goux remains steadfast in his belief that since the June 4, 2009 Council meeting, the property was already zoned HC-3 and, therefore, did not need to be rezoned. Rather, Mr. Goux argues, this was simply a mapping error that could easily be corrected.

      . Intervenors include several named individuals and a Louisiana non-profit corporation, all of whom own residential land nearby Mr. Goux’s 36.6 acres.

      . Because we find that Goux was entitled to the relief prayed for in the petition for writ of mandamus, the issue of whether intervenors had a right of action in Goux’s mandamus action is moot, and we pretermit consideration of same.

      . Pursuant to Section 4-08(A)(3) of the St. Tammany Parish Home Rule Charter, Mr. Fontenot’s duty was as follows: "The director of the department of planning and permits shall direct and be responsible for: ... [mjaintaining and updating the St. Tammany Parish Land Use Map.”

      . Section 2-11(A) of the St. Tammany Parish Home Rule Charter provides, in pertinent part, as follows: "An act of the council having the force of law shall be by ordinance. An act requiring an, ordinance shall include but not be limited to those which: ... (13) Adopt or modify the official map.... (16) Adopt or modify the zoning plan, maps and regulations.”

      . As we have previously indicated copies of pertinent portions of all four maps have been attached to this opinion.

      . The ordinance adopted the attached map as the official zoning map for the Parish and repealed all ordinances or parts of ordinances in conflict therewith. The ordinance made no reference to any specific boundaries or zoning other than what was shown on the attached map.

      . Importantly, the public also relied on the maps introduced at the council hearings.


source: Caselaw Access Project

author: SAUNDERS, Judge.

license: Public Domain

text:
    John Darrel SOILEAU v. LOUISIANA STATE RACING COMMISSION. Alonzo Loya v. Louisiana State Racing Commission. Alvin Smith v. Louisiana State Racing Commission. Michael H. Taylor v. Louisiana State Racing Commission.
    Nos. 14-540, 14-541, 14-542, 14-543.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2014.

      Dayid Michael Hayes, Donald G. Kelly, Attorneys at Law, Thomas Taylor Townsend, Kelly & Townsend, Natchitoches, LA, for Plaintiffs/Appellants, Michael H. Taylor, Alvin Smith, Alonzo Loya, John Darrel Soileau.
    Rhea P. Loney, Assistant Attorney General, New Orleans, LA, for Defendant/Ap-pellee, Louisiana State Racing Commission.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and BILLY HOWARD EZELL, Judges.
   SAUNDERS, Judge.

_J_|This is an appeal of the trial court upholding the licensure suspension of four horse trainers by the Louisiana State Racing Commission (LSRC) for administering dermorphin to race horses. The trainers contend that the trial court was in error because the hearing before the LSRC was defective and the trial court failed to recognize and correct these deficiencies.

FACTS AND PROCEDURAL HISTORY:

Appellants, John Darrel Soileau, Michael Heath Taylor, Alonzo Loya, and Alvin Smith, Jr., are racing horse trainers. Between May and June of 2012, each Appellant was running at least one horse in the Delta Downs high-stakes prize races. Pursuant to the LSRC’s rules, urine and plasma samples were collected from each horse.

Appellants trained horses whose samples tested positive for dermophin. As such, Stewards from Delta Downs held a hearing for each Appellant, where each received a penalty of $1,000.00 and a six-month suspension, the maximum the Stewards could impose. These cases were then sent to the LSRC.

The LSRC heard Appellants’ cases during a two-day hearing. Subsequently, Appellants Taylor and Loya were each fined $10,000.00, and their licenses were suspended for five years. Appellant Soileau was fined $20,000.00, and his license was suspended for ten years because two of his horses tested positive for dermorphin. Finally, Appellant Smith, Jr. was fined $20,000.00, and his license was suspended ten years for only one violation because his case had the aggravating circumstance of his having prior occurrences of suspensions and fines due to administering improper substances to his race horses.

Appellants then filed petitions with the Fourteenth Judicial District Court, where their cases were eventually consolidated. After briefing and a hearing, the |2trial court rendered a judgment affirming the periods of suspension for each Appellant, but vacated the fines and remanded the case for that issue.

Thereafter, Appellants filed this appeal now before us. In this appeal, Appellants allege five assignments of error.

ASSIGNMENTS OF ERROR:

1. The district court erred in its finding that the LSRC did not abuse its discretion in excluding Appellants’ exhibits.

2. The district court erred in failing to find that the State had established a chain of custody from Dr. Barker to the University of California — Davis and throughout the process while being performed in California.

3. The district trial court erred in finding that the provisions of Daubert and Foret were met by the LSRC in allowing the introduction of the derraorphin test and splits.

4. The district court erred in its finding that the LSRC denied Appellants their right to due process.

5. The district court erred in affirming the excessive suspensions levied by the LSRC.

ASSIGNMENT OF ERROR NUMBER ONE:

Appellants contend that the district court erred in its finding that the LSRC did not abuse its discretion in excluding their exhibits. We find no merit to this contention.

“Judicial review is a multifaceted function involving several categories: statutory or constitutional review, procedural review, substantive review, factual review, and ‘fact finding.’ ” Multi-Care, Inc. v. State, Dept. of Health & Hospitals, 00-2001, p. 3 (LaApp. 1 Cir. 11/9/01), 804 So.2d 673, 674. The Louisiana Administrative Procedure Act, La.R.S. 49:964(G), provides:

[t]he court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6)Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by firsthand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

Given La.R.S. 49:964(G)(6), the standard of review for this court is that of manifest error for any factual findings by the trial court and for any credibility determinations made by the LSRC. Id. However, if the error alleged does not question any factual finding or credibility determination or if we are simply to determine whether an error of law occurred, neither the trial court nor the LSRC is entitled to any deference.

In their first assignment of error, Appellants contend that the LSRC abused its discretion in excluding certain exhibits. Appellants describe the purpose of |4entering those exhibits into evidence as to “accurately explain the history of the Dermorphin issue” and to provide “context .and history for Dr. Hatahet’s testimony and for the Court.”

The following exchange took place during Dr. Hatahet’s testimony while he was being questioned before the LSRC:

Q [Wjere these documents used to assist you in the formation of your opinions and conclusions that are going to be offered here today to some extent?
A They are not necessary, let’s put it this way. I did not rely on them that much. I would have made my opinion— the same opinion without them.

The chairman of the LSRC ruled that these exhibits were not relevant and excluded them after considerable debate on their admissibility. After the chairman made this ruling, Appellants’ counsel examined Dr. Hatahet in a proffer wherein he discussed these exhibits. This entire proffer was conducted before the members of the LSRC, i.e. the adjudicators of the hearing cast with the responsibility to make any credibility determinations. In it, Dr. Hatahet iterated that some exhibits raised the question of whether any valid test for dermorphin in horses existed. During the proffer, when the state’s counsel objected to the LSRC hearing the testimony, the Chairman of the LSRC did not have the members of the LSRC leave the room or tell them to ignore the testimony, rather, he simply told them, “you don’t have to listen to this.”

Further, in reading the transcript, there are instances where members of the LSRC actually asked Dr. Hatahet questions about some of the evidence that the chairman ruled was to be excluded. Thus, it is clear that the adjudicators cast with making credibility determinations, the members of the LSRC, had full knowledge |5of the content of this evidence through hearing Dr. Hatahet’s testimony, regardless of its status as excluded.

Accordingly, we cannot say that Appellants were harmed in any fashion by the Chairman’s technical exclusion of the exhibits. Dr. Hatahet indicated that the admission of the excluded evidence was not necessary for him to reach his opinion. Further, he discussed the excluded evidence before and with the members of the LSRC and the instruction by the chairman to the members of the LSRC can be interpreted to indicate that the LSRC members could decide whether to give the evidence any weight. As such, we find that Appellants’ assignment of error number one is without merit.

ASSIGNMENT OF ERROR NUMBER TWO:

In the second assignment of error, Appellants Soileau and Taylor, assert that the district court erred in finding that the State had established a chain of custody from Dr. Barker to the University of California — Davis and throughout the process while being performed in California. We disagree.

We note that this assignment deals with a contention that the chain of custody was not proven after Appellants Soileau and Taylor exercised their right to have the samples taken from their respective horses split and tested. Thus, it does not pertain to Appellants Loya and Smith, Jr.

Appellants Soileau and Taylor allege that the chain of custody was not proven “from Dr. Barker to the University of California — Davis and throughout the process while being performed in California.” In reviewing the record, it is clear that the split samples sent to California were never in the possession of Dr. Barker. The labels attached to the mailing of the split samples are exhibits entered into the record. They indicate that the split samples were sent directly from the |fiLSRC on Delta Downs Drive in Vinton, LA, to the University of California — Davis. Thus, the allegation that the chain of custody was not properly proven from Dr. Barker to California is misguided.

Further, both Appellants Soileau and Taylor signed “hold harmless” agreements that contain the following language, “IT IS AGREED as follows:

3. Trainer agrees that the results of the split sample(s) Laboratory can be introduced as evidence in any hearing.” Finally, the Louisiana Fourth Circuit, in Segura v. Louisiana Racing Commission, 577 So.2d 1031, 1033 (La.App. 4 Cir.1991) (initial alteration in original, thereafter, alterations added for full citations) stated the following:

The chain of custody rule is intended “to preserve the integrity of the evidence, i.e., to prevent [it] from being tampered with or ... lost.” Bufkin [v. Mid-American Indemnity, Co., 528 So.2d 589, 592 (La.App. 2 Cir.1988) ]. Accord, LaBella [v. La. State Racing Com’n, 569 So.2d 58, 61 (La.App. 4 Cir.1990) ]; Schwab [v. Galuszka, 463 So.2d 737, 742 (La.App. 4 Cir.1985) ]. This Court has determined that, in a civil case, twenty-four hour vigilance of the evidence is not required. LaBella, 569 So.2d at 61. What is essential is preserving the integrity of the evidence and protecting it from tampering and loss. Id. These factors must be established by a preponderance of the evidence. Laborde v. Louisiana State Racing Commission, 560 So.2d 594, 597 (La.App. 4th Cir.1990).

We agree with our sister court that in a civil proceeding such as this one the essential element to the chain of custody is “preserving the integrity of the evidence.” Id. Thus, it is incumbent upon the party seeking to have the evidence excluded “to produce any positive evidence showing that the horse’s specimen was tampered with, lost, or not the one tested.” George v. Dept. of Fire, 93-2421, p. 14 (La.App. 4 Cir. 5/17/94), 637 So.2d 1097, 1107. Here, Appellants Soileau and Taylor have not even alleged such evidence exists.

^Accordingly, we find that this assignment of error has no merit. Appellants Soileau and Taylor’s assignment is misguided. Further, both signed agreements that the evidence they seek to have excluded could be introduced at any hearing and neither has produced any positive evidence that the split samples were lacking in integrity.

ASSIGNMENT OF ERROR NUMBER THREE:

Appellants next contend that the trial court erred in finding that the provisions of Daubert and Foret were met by the LSRC in allowing the introduction of the dermorphin test and splits. While we agree that Appellants likely should have been given the requested Daubert hearing, we find that the denial of those hearings under the particular circumstances of this case do not warrant reversal.

“A witness who is qualified as an expert by knowledge, skill, experience, training, or education, may testify in the form of an opinion or otherwise if: scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” La.Code Evid. art. 702. In State v. Brannon, 07-431, pp. 8-9 (La.App. 3 Cir. 12/5/07), 971 So.2d 511, 517-18, writ denied, 07-2465 (La.5/9/08), 980 So.2d 689, we explained how to determine the admissibility of an expert’s testimony:

In State v. Foret, 628 So.2d 1116 (La.1993), the Louisiana Supreme Court adopted the test set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), regarding proper standards for the admissibility of expert testimony which requires the trial court to act in a gatekeeping function to ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. State v. Chauvin, 02-1188 (La.5/20/03), 846 So.2d 697. To assist the trial courts in their preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and can properly be | ^applied to the facts at issue, the Supreme Court suggested the following general observations are appropriate: 1) whether the theory or technique can be and has been tested; 2) whether the theory or technique has been subjected to peer review and publication; 3) the known or potential. rate of error; and 4) whether the methodology is generally accepted by the relevant scientific community. Daubert, 509 U.S. at 592-594, 113 S.Ct. 2786. In Foret, supra, the court adopted these observations as a helpful guide for our lower courts in considering this difficult issue. Id. Thus, Louisiana has adopted Daubert’s requirement that in order for technical or scientific expert testimony to be admissible under La.[Code Evid. art.] 702, the scientific evidence must rise to a threshold level of reliability. Daubert’s general “gatekeeping” applies not only to testimony based upon scientific knowledge, but also to testimony based on “technical” and “other specialized knowledge.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 1171, [143 L.Ed.2d 238] (1999); Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226. The trial court may consider one or more of the four Daubert factors, but that list of factors neither necessarily nor exclusively applies to all experts or in every case. Id. Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determinations. Kumho, supra at 526 U.S. at 142, 119 S.Ct. 1167.
State v. Allen, 41,548, pp. 11-13 (La.App. 2 Cir. 11/15/06), 942 So.2d 1244, 1254-55[, writ denied, 07-530 (La.12/7/07), 969 So.2d 619].

Here, in reviewing the transcript of the proceedings before the LSRC, the ultimate issue of the Appellants’ alleged violations turned on whether the members of the LSRC believed that the test used by Dr. Barker was valid. Thus, while this court would have preferred that Appellants have been granted their requested Daubert hearing, the actual hearing before the LSRC essentially served the same function as a Daubert hearing. The main issue at the hearing before the LSRC was the validity of Dr. Barker’s dermorphin test. Appellants were afforded the opportunity to present expert testimony before the LSRC that opined that Dr. Barker’s procedures used in his dermorphin test were not peer reviewed or |flpublished, had no known error rate, and was not accepted or rejected in the scientific community through the lengthy testimony of Dr. Ha-tahet. We do note, however, that Dr. Ha-tahet did not disagree with Dr. Barker’s results or methodology. Rather, he only pointed out to the LSRC that Dr. Barker’s test was not an accepted test by generally accepted scientific principles due its early stage in devolvement.

Given the substance of the hearing, the LSRC had a choice between finding that Dr. Barker’s test was valid, and, therefore, finding that Appellants violated La.R.S. 4:150 or finding that Dr. Barker’s test was invalid and, therefore, finding that there was no evidence of any wrongdoing by Appellants. Clearly, they chose the former. As such, the LSRC was heard the arguments and evidence both for and against the validity of Dr. Barker’s test and its decision to give credence of one view over the others was not manifestly erroneous. Further, in contemplating the entirety of the circumstances, we cannot say that the chairman’s denial of Appellant’s requested DaubeH hearing resulted in any prejudice against them. The adjudication before the LSRC, in effect, contained a Daubert hearing therein. Accordingly, we find that this assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER FOUR:

Fourth, Appellants aver that the district court erred in its finding that the LSRC denied Appellants their right to due process. We disagree.

Louisiana Revised Statutes 49:955 states:

A. In an adjudication, all parties who do not waive their rights shall be afforded an opportunity for hearing after reasonable notice.
B. The notice shall include:
(1)A statement of the time, place, and nature of the hearing;
110(2) A statement of the legal authority and jurisdiction under which the hearing is to be held;
(3) A reference to the particular sections of the statutes and rules involved;
(4) A short and plain statement of the matters asserted.
If the agency or other party is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter, upon application, a more definite and detailed statement shall be furnished.
C. Opportunity shall be afforded all parties to respond and present evidence on all issues of fact involved and argument on all issues of law and policy involved and to conduct such cross-examination as may be required for a full and true disclosure of the facts.
D. Unless precluded by law, informal disposition may be made of any case of adjudication by stipulation, agreed settlement, consent order, or default.
E. The record in a case of adjudication shall include:
(1) All pleadings, motions, intermediate rulings;
(2) Evidence received or considered or a resumé thereof if not transcribed;
(3) A statement of matters officially noticed except matters so obvious that statement of them would serve no useful purpose;
(4) Offers of proof, objections, and rulings thereon;
(5) Proposed findings and exceptions;
(6) Any decision, opinion, or report by the officer presiding at the hearing.
F. The agency shall make a full transcript of all proceedings before it when the statute governing it requires it, and, in the absence of such requirement, shall, at the request of any party or person, have prepared and furnish him with a copy of the transcript or any part thereof upon payment of the cost thereof unless the governing statute or constitution provides that it shall be furnished without cost.
G. Findings of fact shall be based exclusively on the evidence and on matters officially noticed.

|1TIn the case before us, the trial court, functioning as an appellate court, stated that “there is no merit whatsoever to the due process issue.” Appellants contend that the LSRC failed to give them time to obtain necessary discovery to prepare for the hearing and acted with such haste that their counsel could not property examine witnesses and present evidence at the hearing. According to the trial court, Appellants’ description of the events were incongruent with the “proceedings as conveyed through the transcript[.]”

After having reviewed the transcript, we are unable to find manifest error by the trial court. Appellants were afforded notice of the allegations against them with time to prepare a defense by procuring expert witnesses. Further, all discovery propounded by Appellants were answered prior to the hearing. Appellants produced expert witnesses to contradict the expert witnesses against them. Those experts were able to voice their views in a nearly 750 page transcript over two days. Finally, Appellants were allowed to cross-examine all witnesses against them. Given these facts, we cannot say that the trial court was erroneous in its finding that Appellants’ due process concerns were without merit.

ASSIGNMENT OF ERROR NUMBER FIVE:

Finally, Appellants assert that the district court erred in affirming the excessive suspensions levied by the LSRC. We find no error by the trial court.

Louisiana Revised Statutes 4:255(A) states, “The commission may impose upon any licensee listed in R.S. 4:169 a fine not exceeding ten thousand dollars and may suspend a licensee indefinitely, or both. Any commission action taken herein shall be consistent with the provisions of this Part.” A trainer is specifically listed in La.R.S. 4:169, and Appellants were all trainers. Thus, La.R.S. 4:255(A) applies to Appellants. Further, La.Admin.Code tit. 35, § 1.1796(B)(1) | ^provides guidelines for suspension and fines for a Class I violation of “suspension of license for a period of not less than one year and not more than five years.”

The trial court vacated the fines in excess of $10,000.00, but upheld the suspensions as they were less than indefinite and fell within the guidelines promulgated by the LSRC when there was an absence of mitigating or aggravating circumstances. The trial court noted that Appellant Soi-leau’s suspension was for a total of ten years as he was found guilty of a Class I violation for two separate horses. Thereafter, the trial court found no abuse of discretion by the LSRC in making Appellant Soileau’s suspension consecutive rather than concurrent because it involved two separate incidents.

Appellants argue in brief that the suspensions were the maximum they could have received under the guidelines and, as such, were unduly harsh. We find no merit to this argument. Our reading of the statutes is consistent with the trial court’s. The LSRC guidelines call for suspension of licenses between one and five years for a Class I violation when no mitigating or aggravating circumstances are present. Here, the record contains no mitigating circumstances for any Appellants, and we find no error by the trial court in upholding the LSRC’s suspensions.

CONCLUSION:

Appellants, John Darrel Soileau, Michael Heath Taylor, Alonzo Loya, and Alvin Smith, Jr., raised four assignments of error. Further, Appellants Soileau and Taylor raised an additional assignment of error.

We find no merit to any of the assignments of error raised by Appellants. Accordingly, we affirm the trial court’s judgment upholding the ruling of the Louisiana State Racing Commission. Costs of these proceedings are assessed to John Darrel Soileau, Michael Heath Taylor, Alonzo Loya, and Alvin Smith, Jr.

|1SAFFIRMED.


author: PAUL A. BONIN, Judge. BELSOME, J.,

text:
    STATE of Louisiana v. Bradley GAYTON and Reginald Cummings.
    No. 2013-KA-1613.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 10, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Donna Andrieu, Chief of Appeals/Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant, Bradley Gayton.
    (Court composed of Judge ROLAND L. BELSOME, Judge PAUL A. BONIN, Judge DANIEL L. DYSART).
   PAUL A. BONIN, Judge.

| Bradley Gayton appeals his conviction for possession of cocaine, a controlled dangerous substance. In his sole assignment of error, Mr. Gayton asserts that the trial judge abused his discretion by improperly denying his motion to suppress the evidence seized as a result of a warrantless search of his person at the time of his arrest. The trial judge found Detective Brooks’ uncontradicted testimony that, from his extensive experience with narcotics enforcement, he believed that he had observed a. hand-to-hand illegal drug transaction between Mr. Gayton and his co-defendant, Alfred Jones, sufficient to establish probable cause for the arrest of Mr. Gayton. Applying the trial judge’s supported findings of fact, we also conclude that probable cause was present. And, because a search incident to a lawful arrest is a well-recognized exception to the Fourth Amendment’s warrant requirement, the trial judge was legally correct in determining that the search was reasonable and that the evidence seized should not be suppressed. Thus, we affirm Mr. Gayton’s conviction and sentence.

|2We turn now to a fuller explanation of our decision.

I

•In this Part we set forth the facts contained in the uncontradicted police testimonies at the hearing on Mr. Gayton’s motion to suppress and at trial. See State v. Sylvester, 02-0743, p. 3 (La.App. 4 Cir. 12/11/02); 834 So.2d 1166, 1168 (“In reviewing a trial court’s ruling on a motion to suppress, an appellate court is not limited to evidence from the motion hearing. It may also consider the evidence presented at trial.”). We note at the outset that Mr. Gayton did not avail himself of the right to testify at the suppression hearing despite the protection afforded the use of such testimony. See La.C.Cr.P. art. 703 E(1) (“The defendant’s testimony [at a hearing on a motion to suppress] cannot be used by the state except for the purpose of attacking the credibility of the defendant’s testimony at the trial on the merits.”).

The New Orleans Police Department received several complaints about criminal activity, specifically, armed robberies and burglaries, in and around the 2200 block of St. Anthony Street. In response, the Fifth District narcotics unit was 'assigned to proactive patrol of the area, and Detective Travis Brooks was ordered to conduct surveillance for suspicious activity. Detective Brooks, dressed in plain clothes and driving an unmarked police vehicle, situated himself on the 2200 block of St. Anthony Street in the early afternoon, specifically focusing his attention on the residence located at 2221 St. Anthony Street. A “take-down” unit, consisting of several other officers from the narcotics unit including Detective Todd Durel, |swas located nearby and was in continuous radio communication with Detective Brooks to perform such tasks as necessary to facilitate his continued, uncompromised surveillance of the area.

Shortly after beginning his unobstructed surveillance roughly twenty feet from the residence, Detective Brooks observed Mr. Jones exit the house, stand on the porch, and look in the direction of Lake Pontchartrain or toward the 2300 block of St. Anthony Street. After roughly ten minutes, Mr. Gayton approached from that direction and joined Mr. Jones on the porch; the men never entered the house together. Detective Brooks could not hear the men’s conversation on the porch, but did observe Mr. Gayton reach into his shirt pocket, hand money to Mr. Jones, and, in return, receive a small unknown object which he placed in the left front pocket of his pants.

From his extensive experience with narcotics enforcement, Detective Brooks believed that he had observed Mr. Gayton and Mr. Jones engage in a hand-to-hand drug transaction. Detective Brooks alerted Detective Durel and the other members of the “take-down” unit, describing Mr. Gayton, his distinctive clothing and his direction of travel. Mr. Gayton then walked out of Detective Brooks’ sight, and his location and activities were briefly unaccounted for. Shortly thereafter, Detective Durel located Mr. Gayton leaving a nearby convenience store; the police then stopped and searched him. Detective Durel found crack cocaine in a clear plastic bag in one front pocket of Mr. Gayton’s pants and a glass cylinder in a brown paper bag in the other. The detective placed Mr. Gayton in handcuffs and informed him of his Miranda rights. Mr. Gayton then stated that he had purchased the cocaine and “crack pipe” for someone else.

l4Later, other officers stopped Mr. Jones in his vehicle and searched him, recovering $415 in cash but no drugs. Detective Du-rel then left to obtain a search warrant for the residence at 2221 St. Anthony Street. During that time, Reginald Cummings, another co-defendant, exited the house and was detained by other officers. In executing the search warrant, the officers discovered a “crack pipe” on a coffee table, a marijuana cigarette under a bed, crack cocaine in a pair of shorts hanging on a bedroom door, and a digital scale, small plastic bags and razors on the kitchen table. The police also found a bill for the house addressed to Mr. Cummings, who was subsequently arrested.

II

In this Part we determine whether the trial judge abused his discretion by denying Mr. Gayton’s motion to suppress the evidence seized during the warrantless search of his person. Mr. Gayton claims that this search was unreasonable under the Fourth Amendment, arguing that even if the police officers possessed the requisite reasonable suspicion to conduct an investigatory stop, the police failed to articulate a proper basis for conducting a Terry weapons frisk of his person. See, e.g., State v. Carter, 13-1452 (La.App. 4 Cir. 12/19/13); 131 So.3d 479. Mr. Gayton also contends that the police lacked probable cause to arrest him before initiating the stop and thus the resultant search cannot be justified as incidental to his lawful arrest. See, e.g., United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).

Because we find that probable cause existed prior to the police initiating the stop of Mr. Gayton, we do not discuss the merits of his claim that an impermissible | ¿weapons frisk occurred. The trial judge found credible the uncontradicted testimony of Detective Brooks that he had witnessed what he believed to be a hand-to-hand illegal drug transaction between Mr. Gayton and Mr. Jones. We apply these supported factual findings to our de novo review of the trial judge’s rulings on questions of law and conclude that probable cause was present to justify the arrest of Mr. Gayton. As the police effectuated a lawful arrest, a search incident to that arrest is permitted and reasonable under the Fourth Amendment.

A

In this Part we discuss the legal precepts that guide our review of Mr. Gay-ton’s assignment of error.

The Fourth Amendment to the U.S. Constitution and Article I, Section 5 of the Louisiana Constitution protect persons against unreasonable searches and seizures. See Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (quoting Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)) (commenting that “the Fourth Amendment protects people, not places”). In order for the Fourth Amendment to guard a citizen from unreasonable state action, however, that person must have a reasonable expectation of privacy at the time of the seizure or search. See id. (quotations omitted).

“Reasonableness is always the touchstone in striking the balance between legitimate law enforcement concerns ... and protected individual privacy interests.” State v. Francis, 10-1149, pp. 4-5 (La.App. 4 Cir. 2/16/11); 60 So.3d 703, 708 (quotations omitted). “[T]he reasonableness of any intrusion on an ^individual's privacy interests depends on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” State v. Kelley, 05-1905, p. 5 (La.7/10/06); 934 So.2d 51, 54 (quoting Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977)) (quotations omitted).

Warrantless searches and seizures are per se unreasonable under the Fourth Amendment unless the governmental conduct is shielded by one of the few narrowly-drawn exceptions to the warrant requirement. See State v. Surtain, 091835, p. 7 (La.3/16/10); 31 So.3d 1037, 1043 (citing Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993)). The prosecution carries the burden of proving that a warrantless search is compatible with one of these exceptions and is thus reasonable under the Fourth Amendment. See La. C.Cr.P. art. 703 D. This requires that pertinent facts and circumstances be articulated through testimony by law enforcement officials at evidentiary hearings on motions to suppress. See State v. Temple, 02-1895, p. 5 (La.9/9/03); 854 So.2d 856, 860.

To enforce the mandates of the Fourth Amendment and La. Const. art. I, § 5, evidence recovered pursuant to an unreasonable search or seizure may be suppressed and rendered inadmissible at trial. See Mapp, 367 U.S. at 656-57, 81 S.Ct. 1684. Evidence recovered as a result of an unconstitutional search and seizure should not be suppressed, however, simply as a result of the violation of a citizen’s constitutional rights. See Herring v. United States, 555 U.S. 135, 140, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (citing Illinois v. Gates, 462 U.S. 213, 223, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). A trial judge should only grant a motion to suppress upon finding that the application of the exclusionary rule furthers the interests protected by that constitutional guarantee. See Hudson v. Michigan, 547 U.S. 586, 593, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006).

| /With regards to violations of the Fourth Amendment, the exclusionary rule should only apply where it results in appreciable deterrence of police misconduct. See Herring, 555 U.S. at 141, 129 S.Ct. 695 (citing United States v. Leon, 468 U.S. 897, 909, 104 S.Ct. 3405, 82 L.Ed.2d 677 (2004)). “This requires ‘an assessment of the flagrancy of the police misconduct[ ]’ and review of whether ‘the law enforcement officer had knowledge, or may be properly charged with knowledge, that the search was unconstitutional under the Fourth Amendment.’ ” State v. McClen don, 13-1454, p. 5 (La.App. 4 Cir. 1/30/14); 133 So.3d 239, 245 (quoting Herring, 555 U.S. at 143, 129 S.Ct. 695). The trial judge, prior to ruling on a motion to suppress, should then weigh the benefit of the resulting deterrence against the social costs of the application of the exclusionary-rule — stifling truth-seeking and releasing potentially guilty defendants. See Herring, 555 U.S. at 141, 129 S.Ct. 695; Hudson, 547 U.S. at 591, 126 S.Ct. 2159.

In our review of a trial judge’s decision to grant or deny a petitioner’s motion to suppress evidence seized as a result of a warrantless search, we first examine the factual findings underlying that ruling. See Sibron v. New York, 392 U.S. 40, 59, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) (“The constitutional validity of a warrantless search is preeminently the sort of question which can only be decided in the concrete factual context of the individual case.”). “We grant great deference to these findings of fact[] and will ‘not overturn those findings unless there is no evidence to support [them].’ ” McClendon, 13-1454, p. 6; 133 So.3d at 245 (quoting State v. Wells, 08-2262, pp. 4-5 (La.7/6/10); 45 So.3d 577, 580-81). See also State v. Morgan, 092352, p. 5 (La.3/15/11); 59 So.3d 403, 406 (“Furthermore, a reviewing court must give due weight to factual inferences drawn by resident judges.... ”); Sylvester, 02-0743, p. 3; 834 So.2d at 1168 (holding that findings of fact made by the trial judge in its ruling on a motion to suppress are reviewed under a “clear error” standard).

|sThe heightened deference granted to a trial judge’s factual findings is rooted in the limited scope of our appellate review of criminal matters as set forth in La. Const. art. V, § 10(B), which provides, “In criminal cases [an appellate court’s] jurisdiction extends only to questions of law.” Excessive intrusion into the factual findings of trial judges imbalances the “complementary role of trial courts and appellate courts,” State v. Love, 00-3347, p. 9 (La.5/23/03); 847 So.2d 1198, 1206, as trial judges have the unique “opportunity to observe the witnesses and weigh the credibility of their testimony.” Wells, 08-2262, p. 5; 45 So.3d at 581. See also State v. Dorsey, 99-1819, p. 5 (La.App. 4 Cir. 4/19/00); 763 So.2d 21, 24.

Applying those supported findings of fact, we then review the trial judge’s holdings on questions of law, including the reasonableness of governmental conduct under the Fourth Amendment and La. Const. art. I, § 5, de novo. See Wells, 08-2262, p. 4; 45 So.3d at 580; McClendon, 13-1454, p. 6; 133 So.3d at 245. One such question of law is the trial judge’s determination of whether probable cause existed to justify a warrantless arrest. See Sylvester, 02-0743, p. 3; 834 So.2d at 1168. Should we find no reversible legal error, we must then determine whether the trial judge abused his discretion by granting or denying the motion to suppress. See Wells, 08-2262, p. 5; 45 So.3d at 581. This is the appropriate standard to be applied as a ruling as to “whether the exclusionary rule is being properly applied under Fourth Amendment doctrine is a mixed question of law and fact.” McClendon, 13-1454, p. 6; 133 So.3d at 246. See also State v. Lewis, 11-0889, p. 11 (LaApp. 4 Cir. 2/1/12); 85 So.3d 150, 157-58.

I i)B

The district attorney contends that the warrantless search of Mr. Gayton by Detective Durel was constitutionally permissible as incidental to his lawful "arrest. See State v. Sherman, 05-0779, p. 8 (La.4/4/06); 931 So.2d 286, 292 (citing Robinson, 414 U.S. at 224, 94 S.Ct. 467; State v. Breaux, 329 So.2d 696, 699 (La.1976)) (“It is well established that a search incident to a lawful custodial arrest is a limited exception to the constitutional prohibition of warrantless searches.”).

The U.S. Supreme Court has long held that the warrantless arrest of a suspect based on probable cause is reasonable under the Fourth Amendment. See Robinson, 414 U.S. at 235, 94 S.Ct. 467. Article 213 of the Louisiana Code of Criminal Procedure permits officers to execute war-rantless arrests of persons when “[t]he person to be arrested has committed an offense in his presence.... ” See La. C.Cr.P. art. 213 A(l). See also Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001) (“If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.”).

[,0“ProbabIe cause to arrest exists when the facts and circumstances known to the arresting officer, and of which he has reasonable and trustworthy information, are sufficient to justify a man of ordinary caution in the belief that the accused has committed an offense.” Surtain, 09-1835, p. 7; 31 So.3d at 1043. Probable cause is a non-technical concept, weighing “factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Gates, 462 U.S. at 231, 103 S.Ct. 2317. This standard does not require that “the police officers know at the time of the arrest that the particular crime has definitely been committed; it is sufficient that it is reasonably probable that the crime has been committed under the totality of the known circumstances.” Sylvester, 02-0743, p. 4; 834 So.2d at 1168. The concept is fluid, “turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.” Gates, 462 U.S. at 232, 103 S.Ct. 2317. “The fundamental philosophy behind the probable cause requirement of the Fourth Amendment is that common rumor or report is not an adequate basis for the arrest of a person.” Sylvester, 02-0743, p. 5; 834 So.2d at 1169 (citing State v. Fisher, 97-1133, p. 7 (La.9/9/98); 720 So.2d 1179, 1184).

“The determination of probable cause, unlike the determination of guilt at trial, does not require the fine resolution of conflicting evidence that a reasonable doubt or near a preponderance standard demands.” State v. Lawrence, 02-0363, p. 3 (La.App. 4 Cir. 5/8/02); 817 So.2d 1216, 1220. Our review is “based on an assessment of the collective knowledge possessed by all of the police involved in the investigation.... ” State v. Pratt, 08-1819, p. 1 (La.9/4/09); 16 So.3d 1163, 1164 (per curiam). “Deference should be given to the experience of the policemen who were present at the time of the incident. A certain look or gesture may not |nmean anything to the ordinary person; however, a policeman has sound judgment based on long experience to interpret these acts.” State v. Cook, 99-0091, p. 7 (La.App. 4 Cir. 5/5/99); 733 So.2d 1227, 1232 (citations omitted). Furthermore, “[t]he reputation of the area is an articulable fact upon which a police officer may legitimately rely.” Lawrence, 02-0363, p. 3; 817 So.2d at 1220.

After examining the events leading up the arrest, the trial judge should “decide “whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to’ probable cause.” Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003) (citing Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)) (emphasis added). The subjective intentions of police officers “play no role in ordinary, probable-cause Fourth Amendment analysis.” Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). “[A] reviewing court is not constrained by a law enforcement officer’s characterization of a detention or search, nor is the court’s analysis of the facts circumscribed by that characterization.” Surtain, 09-1835, p. 9; 31 So.3d at 1045. “[T]he fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s actions does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.” Whren, 517 U.S. at 813, 116 S.Ct. 1769.

Once probable cause exists to justify a lawful arrest, a search incidental to that arrest is permissible and requires no further justification. See Robinson, 414 U.S. at 235, 94 S.Ct. 467. “A police officer’s determination as to how and where to search the person of a suspect whom he has arrested is a necessarily a quick ad hoc judgment 112which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search.” Sherman, 05-0779, p. 14; 931 So.2d at 295 (citing Robinson, 414 U.S. at 235, 94 S.Ct. 467). “It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is ... ‘reasonable’ ... under [the Fourth] Amendment.” Robinson, 414 U.S. at 235, 94 S.Ct. 467.

“Warrantless searches incidental to arrest are reasonable because when an arrest is made, it is reasonable for a police officer to expect the arrestee to use any weapons he may have and to attempt to destroy any incriminating evidence then in his possession.” Sherman, 05-0779, p. 14; 931 So.2d at 295 (citing Cupp v. Murphy, 412 U.S. 291, 295, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973); Chimel v. California, 395 U.S. 752, 762-63, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969)). Thus, “[t]he justification or reason for the authority to search incident to a lawful arrest rests as much on the need to disarm the suspect in order to take him into custody as it does on the need to preserve evidence on his person for later use at trial.” Id., 05-0779, p. 11; 931 So.2d at 293 (citing Robinson, 414 U.S. at 234, 94 S.Ct. 467). The authority to search a person incident to a lawful arrest “does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the' person of the suspect.” Robinson, 414 U.S. at 235, 94 S.Ct. 467.

C

Applying these guiding precepts to the facts of the present case, we find that the warrantless search of Mr. Gayton was reasonable as incident to his lawful arrest. There is no question that Mr. Gayton, while walking down the sidewalk, was entitled to the protection of the Fourth Amendment and La. Const. art. I, § 5. See, e.g., Terry, 392 U.S. at 9, 88 S.Ct. 1868. The crucial inquiry in this case is whether probable 113cause existed to justify the arrest of Mr. Gayton prior to the police initially stopping him. Our analysis therefore centers on Detective Brooks’ uncon-tradicted testimony.

As previously stated, while on surveillance for suspicious activity, Detective Brooks observed Mr. Gayton from roughly twenty feet away receive a small unknown object in exchange for money. His view was unobstructed, and Detective Brooks stated that his focus was solely on Mr. Jones and Mr. Gayton. Based on his experience with narcotics enforcement, Detective Brooks testified that he believed that he had witnessed a hand-to-hand illegal drug transaction. Mr. Gayton did not testify or introduce any evidence to contradict Detective Brooks’ testimony. The trial judge, in denying Mr. Gayton’s motion to suppress, properly granted deference to Detective Brooks’ testimony.

Accepting this supported' factual finding, we must next determine de novo whether probable cause existed to justify the arrest of Mr. Gayton. We find that Detective Brooks acted as an objectively reasonable officer in determining that Mr. Gayton had purchased narcotics. After Detective Brooks witnessed the suspected drug transaction from close proximity, probable cause existed for Detective Durel to arrest Mr. Gayton for possession of an illegal narcotic. Since the police officers had probable cause, a search incidental to Mr. Gayton’s arrest was reasonable under the Fourth Amendment.

The Louisiana Supreme Court has twice found that a police officer, after witnessing a hand-to-hand transaction, had probable cause to believe that an offense had occurred. See State v. Smith, 11-0312, p. 1 (La.2/21/11); 56 So.3d 232, 233 (per curiam); Surtain, 09-1835, p. 12; 31 So.3d at 1046. In Smith, the police witnessed a hand-to-hand transaction occur in a hotel parking lot between a | Hperson on foot and the occupant of a vehicle that was driving slowly, possibly “trolling” for drug buyers, through two separate hotel parking lots known for drug trafficking. The Court found the circumstances sufficient to establish probable cause to justify the arrest of the defendant.

In Surtain, the police were performing surveillance in a neighborhood when they observed the defendant standing in front of an abandoned apartment building known for drug sales. An individual approached and handed money to the defendant in exchange for a small, white, unknown object that he removed from a larger bag. The Court found the subsequent search of the defendant to be reasonable as incident to his lawful arrest, holding that the police, after witnessing a hand-to-hand transaction, were objectively reasonable in believing that a crime had occurred.

Thus, we find that the trial judge did not abuse his discretion in denying Mr. Gay-ton’s motion to suppress the evidence seized from his person as a result of a warrantless search.

DECREE

We affirm the conviction and sentence of Bradley Gayton.

AFFIRMED

BELSOME, J., dissent with reasons.

BELSOME, J.,

dissent with reasons.

hi respectfully dissent from the majority opinion, as it relates to the warrantless search and seizure of evidence. Since the search did not fall under any exceptions to the warrant requirement the evidence was inadmissible. Therefore, I find it was error to deny the motion to suppress.

The majority opinion finds that there was probable cause for arrest, which would warrant an incidental search. I disagree. I acknowledge that pursuant to a lawful arrest, the officer may lawfully conduct a full search of the arrestee and the area within his immediate control for weapons and for evidence of a crime. State v. Morgan, 445 So.2d 50, 51 (La.App. 4 Cir. 1984). Probable cause for an arrest must be judged by the probabilities and practical considerations of everyday life in which average people, and particularly average police officers, can be expected to act. State v. Franklin, 598 So.2d 1147 (La.App. 1 Cir.1992).

According to the testimony, Detective Travis Brooks was conducting undercover surveillance in the 2200 of St. Anthony Street with a team of officers, |2including Detective Todd Durel, due to an influx of armed robberies and burglaries in the area. Approximately twenty minutes into the surveillance, Detective Brooks observed what he believed to be hand-to-hand transaction at 2221 St. Anthony Street. In particular, he observed Mr. Alfred Jones emerge from the home, then Mr. Gayton approached and gave Mr. Jones currency in exchange for an unknown object. After placing the object in his left pocket, Mr. Gayton left the scene. Meanwhile, Detective Brooks notified Detective Durel, who stopped Mr. Gayton outside of a convenience store. Detective Durel stopped Mr. Gayton, notified him he was under investigation for a possible narcotics violation, and conducted a patdown search. Detective Durel felt a small object in his left pocket and a cylindrical object in his right pocket. Through his knowledge and experience as a police officer, Detective Durel believed the small object to be contraband, and the cylindrical object to be a crack pipe.

The majority cites to State v. Smith, 11-312, p. 1 (La.2/21/11), 56 So.3d 232, and State v. Surtain, 09-1835, p. 12 (La.3/16/10), 31 So.3d 1037, 1046, in support of its conclusion that probable cause to arrest Gayton existed. However, these cases are distinguishable in that the facts involved more than an apparent hand-to-hand transaction, in which an unknown object is exchanged for currency. In both Smith and Surtain, the hand-to-hand transactions were observed in areas known for drug trafficking. There is no such evidence regarding the neighborhood in the instant case. Also, in Surtain, supra, one officer observed the defendant tie off a clear plastic bag in a manner consistent with narcotics trafficking. The bag contained a white substance, which the officer knew to be cocaine. In the instant case, Detective Brooks could not identify the object that'Mr. Jones exchanged with Mr. Gayton, and, without more, probable cause for arrest did not exist. Thus, the search was not one incidental to arrest.

|o!n addition, the State argues that the warrantless search was justified under the “plain feel exception,” when the officer felt the drugs during a weapons frisk. Conversely, Mr. Gayton argues that the pat-down search was for drugs, thus it was unlawful. I agree.

Article 1, Section 5 of the Louisiana Constitution of 1974 and the Fourth Amendment to the United States Constitution protect individuals from unreasonable searches and seizures. A search conducted without a warrant is per se unreasonable under the Fourth Amendment to the United States Constitution, subject only to a “few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). One such exception was recognized in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), which allows an officer to perform an investigative stop where there is reasonable suspicion to be believe that the individual has committed or is about to commit a crime. Id. at 24, 88 S.Ct. at 1881; See also La.C.Cr.P. art. 215.1(A). In determining whether reasonable suspicion exists for investigatory stop, reviewing court must consider circumstances known to police collectively, not on separate, individual basis. State v. Huntley, 97-965, p. 1 (La.3/13/98), 708 So.2d 1048, 1049. Although Detective Durel did not have probable cause to arrest Mr. Gayton, Detective Brooks’ observation of what he believed to be a hand-to-hand drug transaction gave Detective Durel reasonable suspicion to believe that a crime had just been committed to warrant a Terry stop.

If a law enforcement officer has legally stopped a person pursuant to La. C. Cr. P. Art. 215.1(A), the officer may frisk the outer clothing of the person if the officer reasonably suspects that he. is in danger. La.C.Cr.P. art. 215.1(B). If the officer reasonably suspects that the person possesses a dangerous weapon, he may search the person. Id. To frisk a person who has been detained, there must be some basis for fear for the officer’s safety or fear that the suspect is armed. State v. James, 07-1104, p. 6 (La.App. 4 Cir. 3/5/08), 980 So.2d 750, 754. “The officer need not be absolutely certain that the person is armed, but the officer must be warranted in his belief that his safety or that of others is in danger.” Id.

Detective Durel has never testified that he was performing a weapons frisk on Mr. Gayton, nor has he articulated any basis for the belief that his safety was at risk. In fact, on cross-examination at trial, the officer honestly admitted that the pat-down search was for drugs. This type of search is precisely what the Fourth Amendment is intended to prevent. Under these circumstances, the search was not lawful.

Without probable cause for arrest to substantiate an incidental search or a reasonable suspicion of danger to substantiate a weapons frisk, there is no basis for a warrantless search, thus the trial court abused its discretion in denying the defendant’s motion to suppress the evidence. Since the evidence surely contributed to the verdict, I would reverse and remand. For these reasons, I dissent from the majority opinion.

      . We have — as always — conducted a review for patent errors. See La.C.Cr.P. art. 920(2). The only error detected in these proceedings was the failure of the trial judge to observe the mandatory twenty-four-hour delay between the denial of Mr. Gayton’s motion for new trial and the imposition of sentence. See La.C.Cr.P. art. 873. But see State v. White, 404 So.2d 1202, 1204 (La.1981) (when "there has been no objection raised regarding the sentence imposed” and "no showing or suggestion that defendant was prejudiced by the failure to observe the delay,” judicial efficiency dictates that a reviewing court "need not follow the useless formality of remanding for reimposition of a sentence which has not been challenged”).

      . Detective Brooks testified that narcotics units are assigned to conduct surveillance for non-drug-related crimes because the units are usually better equipped to conduct the task.

      . Detective Brooks’ motivation for focusing on that particular house is unclear. The rea-sonings testified to are various and include a tip from a confidential informant, complaints from concerned citizens, and no reason whatsoever.

      . Mr. Cummings, a co-defendant, has also filed an appeal of his subsequent conviction and sentence. At a later date we will render a decision in his appeal under the same proceeding number as this one.

      . The limitations on governmental action and remedies for such conduct set forth in the Fourth Amendment and the U.S. Supreme Court’s interpretive jurisprudence apply to State prosecutions through the Fourteenth Amendment. See Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

        . We also apply a reasonableness standard when analyzing governmental conduct under La. Const. art. I, § 5. See State v. Tucker, 626 So.2d 707, 711 (La.1993). See also State v. Lewis, 11-0889, p. 4 (La.App. 4 Cir. 2/1/12); 85 So.3d 150, 154.

      . Here, the initial search of Mr. Gayton actually occurred prior to his formal arrest. When the formal arrest follows "quickly on the heels of the challenged search,” however, the United States Supreme Court has not found it “particularly important that the search preceded the arrest than vice versa.” Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980). Naturally, it is "axiomatic that an incident search may not precede an arrest and serve as part of its justification.” Sherman, 05-0779, p. 8; 931 So.2d at 292 (citing Sibron, 392 U.S. at 63, 88 S.Ct. 1889).

      . La.C.Cr.P. art. 213 A provides:
      A. A peace officer may, without a warrant, arrest a person when any of the following occur: ,
      (1) The person to be arrested has committed an offense in his presence; and if the arrest is for a misdemeanor, it must be made immediately or on close pursuit.
      (2) The person to be arrested has committed a felony, although not in the presence of the officer.
      (3) The peace officer has reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer.
      (4) The peace officer has received positive and reliable information that another peace officer from this state holds an arrest warrant, or a peace officer of another state or the United States holds an arrest warrant for a felony offense.

      . This differs from our analysis of Terry stops in which police officers must have reasonable suspicion to initiate the investigative stop and then articulate proper grounds for conducting a protective pat-down search of the person for weapons. See, e.g., Carter, 13-1452; 131 So.3d 479. See La.C.Cr.P. art. 215.1.

      . The pertinent exceptions are the search incidental to arrest and "plain feel” exceptions. See United States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467, 471, 38 L.Ed.2d 427 (1973) (search incident to a lawful custodial arrest is a limited exception to the constitutional prohibition of warrantless searches); and Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (evidence discovered during a lawful investigatory frisk may be seized under the "plain feel” exception to the warrant requirement).

      . The testimony was elicited at the probable cause and motion to suppress hearing.

      . In reviewing a trial court’s ruling on a motion to suppress, an appellate court is not limited to evidence adduced at the hearing on the motion to suppress; it may also consider any pertinent evidence given at trial of the case. State v. Craft, 03-1852, p. 5 (La.App. 4 Cir. 3/10/04), 870 So.2d 359, 363.