author: DREW, J.

text:
    Bessie Mae JACKSON, Plaintiff-Appellee v. Arthur REED, Ivy Reed, and XYZ Insurance Company, Defendant-Appellant.
    Nos. 47,293-CA, 48,128-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 29, 2013.

      Zelda W. Tucker, for Appellants, Arthur Reed and Ivy Reed.
    Casten & Pearce, APLC, by Marshall Reeves Pearce, D. Brennan Hussey, Shreveport, LA, for Intervenor/Appellant, State Farm Fire & Casualty Co.
    John Bernard Slattery, Jr., Springhill, LA, for Appellant, Ivy McGee f/k/a Reed.
    Bradford Law Office, LLC, by Reshon-da L. Bradford, for Appellee, Bessie Mae Jackson.
    Before BROWN, DREW and MOORE, JJ.
   DREW, J.

|,Charles Ray Kelly died on August 9, 2008, at 607 East College Street, Homer, Louisiana. The property was owned by Arthur and Ivy Reed.

On March 18, 2009, a death certificate was issued, reflecting that:

• Kelly’s cause of death was “neck injuries,”

• the cause of these injuries was “unknown,” and

• both injury and death occurred at 6:30 p.m. on August 9, 2008.

On March 18, 2010, Kelly’s mother, Bessie Mae Jackson, filed a wrongful death suit against the Reeds and their unknown insurer. Ms. Jackson sought recovery based upon negligence and strict liability.

On August 4, 2011, a preliminary default was entered.

On September 12, 2011, plaintiff confirmed the preliminary default against the Reeds and their unknown insurer.

At confirmation, she presented only the following evidence:

• the death certificate;
• an uncertified “parcel description” from the Claiborne Parish Assessor, reflecting the Reeds’ ownership of the property; and
• the complete record including the verified pleadings.

| gJudgment as prayed for was granted in favor of plaintiff.

On October 11, 2011, State Farm filed a suspensive appeal. The Reeds filed an appeal the next day.

Ivy and Arthur Reed also filed a petition to annul the default judgment. Numerous filings, motions and cross-motions ensued, culminating in a hearing on all matters on November 14, 2011, at which the trial court ruled that the default judgment was an absolute nullity.

On January 18, 2012, the trial court signed a judgment which:

• granted Ivy Reed’s petition to annul the default judgment and the Reeds’ petition to annul the confirmation of the default, declaring the default judgment to be an absolute nullity;
• denied Jackson’s motions to strike, for contempt, and to amend/modify default judgment, and also denied her peremptory exception of no cause of action; and
• cast Jackson with costs of the proceedings.

State Farm and the Reeds attack on appeal the original default judgment in our appellate record # 47,293-CA.

Ms. Jackson filed an application for supervisory writs seeking review of the judgment of absolute nullity. On July 19, 2012, this court ordered that Ms. Jackson’s writ application be treated as a motion for appeal.

We twice ordered plaintiff to inform this court whether she still sought judicial review of the November 14, 2011, judgment of nullity which had not been perfected as an appeal. On September 26, 2012, plaintiff filed in the district court a motion for devolutive appeal of the judgment of nullity rendered in open court on November 14, 2011, and signed January 18, 2012. IsThe trial court granted the order of appeal on September 28, 2012. This appeal is found in our appellate record # 48,128-CA.

The appeals are consolidated.

This court has pending three exceptions of prescription:

• On April 27, 2012, State Farm filed under our docket # 47,293-CA;
• On May 18, 2012, the Reeds filed under our docket # 47,293-CA; and
• On June 28, 2012, State Farm filed in the trial court in the same Second Judicial District (Claiborne Parish) record (docket # 38,850), found in our docket # 48,128-CA.

On May 31, 2012, a writ panel of this court referred the exceptions of prescription to the merits of this appeal.

DISCUSSION

There are several ancillary issues briefed which are moot, as we make two findings, either of which independently disposes of plaintiffs lawsuit:

1. The evidence at confirmation failed to establish the required prima facie case of defendants’ liability; and
2. Plaintiffs damage claim had prescribed before suit was filed.

Confirmation of Default

A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. La. C.C.P. art. 1702(A). Aprima facie case is established when the plaintiff proves the essential allegations of the petition with competent evidence to the same extent as if the ^allegations had been specifically denied. The plaintiff must present competent evidence that convinces the court that it is probable that she would prevail at trial. Appellate review of a default judgment is restricted to determining the sufficiency of the evidence offered in support of the judgment. Youngblood v. Southern Air, Inc., 46,183 (La.App.2d Cir.3/2/11), 58 So.3d 1020.

Generally, to obtain a reversal of a default judgment, a defendant must overcome the presumption that the judgment has been rendered on sufficient evidence and is correct. This presumption does not attach, however, where the testimony is transcribed and contained in the record. Youngblood, supra. In this matter, no witnesses testified. The record does contain the transcript of the abbreviated confirmation hearing. The trial court gave plaintiffs counsel the opportunity to have plaintiff testify but the offer was declined.

La. C.C.P. art 1702(B) contains the evidentiary prerequisites to establish a prima facie case sufficient to confirm a default. For a delictual claim, the testimony of the plaintiff with corroborating evidence is admissible, self-authenticating, and sufficient. Ms. Jackson argued that the language in art. 1702(B) is permissive and that the petition and plaintiffs accompanying oath of the truth of its allegations plus the service returns, when considered with the evidence presented at the confirmation hearing, are sufficient.

We disagree with Ms. Jackson’s contention. The supreme court explained in Arias v. Stolthaven New Orleans, LLC, 2008-1111 (La.5/5/09), 9 So.3d 815, that a confirmation of a default is similar to a trial and mandates sufficient proof to establish a prima facie case. The plaintiff must prove the existence and validity of her claim and cannot be different from what is sought in the petition and quantum must be properly proven. Arias, supra.

In reviewing a default judgment, the appellate court is restricted to determining the sufficiency of the evidence offered in support of the judgment. The determination is a factual one governed by the manifest error standard of review. Absent any error of law or a manifestly erroneous or clearly wrong factual finding, a court of appeal may not overturn a judgment of a trial court. Cameron v. Roberts, 47,789 (La.App.2d Cir.2/27/13), 111 So.3d 438.

Ms. Jackson’s effort fell far short of presenting a prima fade case establishing that plaintiff was likely to have prevailed at trial. The evidence presented did not demonstrate, inter alia:

• who or what caused Kelly’s death, and how he died;

• whether the death was intentional or accidental;

• whether there was a structural defect that caused the neck injury;

• whether the defendants knew or should have known of any defect; and

• whether a policy of homeowner’s insurance existed on August 9, 2008.

Plaintiff adduced no testimony or evidence to establish any basis for her recovery for the allegedly wrongful death of Charles Ray Kelly. The record contains no information establishing any negligent or substandard 16behavior by defendants. There is no evidence about any alleged deficiency in the property itself. The record is devoid of any competent evidence to establish a prima fade case of liability under any theory of tort recovery.

Aside from the allegation in plaintiffs petition, there is no information in the record establishing Ms. Jackson’s precise relationship to the decedent and her procedural eligibility to file this suit. See La. C.C. art. 2315.2. The death certificate states decedent’s parents were Orie Kelly and Bessie Mae Brown. Although the death certificate indicates Charles Ray Kelly never married and had no children, there is no testimony or evidence in the record to establish his relationship to plaintiff, his marital history and whether he left issue. The September 12, 2011, judgment should have never been granted.

The trial court recognized the inadequacy of the evidence buttressing the original judgment. The court rendered a subsequent judgment declaring the September 12, 2011, judgment to be an absolute nullity. Annulment of judgments, however, covers certain vices of form or fraud and ill practices. See La. C.C.P. arts.2001-2006.

This appeal was initially focused upon the legality of the default judgment itself. There being inadequate proof to support its issuance, we therefore reverse the judgment on the merits. La. C.C.P. art. 1702. This ruling obviates the need to consider the propriety of the judgment of nullity.

Prescription

A one-year period of prescription applies to Louisiana wrongful death suits. La. C.C. art. 2315.2. Kelly died on August 9, 2008, and this suit was ]7not filed until March 18, 2010, 19 months after his death. Nothing in this record and nothing argued in brief justifies the late filing of this lawsuit. In her sworn petition, Ms. Jackson averred that she was informed the decedent was found unconscious on the Reeds’ property and later died. She also alleged that she did not learn the cause of death until receipt of the death certificate on March 20, 2009. She argues that her suit is therefore timely.

In Huddleston v. Huddleston, 47,418 (La.App.2d Cir.9/26/12), 106 So.3d 567, writ denied, 2012-2345 (La.12/14/12), 104 So.3d 446, this court explained that delictual actions are subject to a one-year libera-tive prescriptive period which commences to run from the day injury or damage is sustained. La. C.C. art. 3492. Prescription begins when a plaintiff obtains actual or constructive knowledge of facts that would indicate to a reasonable person that she is the victim of a tort. Constructive notice exists when a party has information sufficient to motivate curiosity and attention or place a reasonable person on guard to call for inquiry. Scranton v. Ashley Ann Energy, L.L.C., 46,984 (La.App.2d Cir.4/11/12), 91 So.3d 1174, writ denied, 2012-1345 (La.9/28/12), 98 So.3d 846.

The party asserting the peremptory exception of prescription bears the burden of proof at the trial of the exception unless the claim is prescribed on the face of the pleadings. In that case, the burden shifts to the plaintiff. Scranton, supra.

The record belies plaintiffs contention that the suit was timely. Filed some 19 months after decedent’s death, the suit is prescribed on its face. Ms. Jackson learned of the death right away. The death certificate states | 8that she provided information as the “informant” on September 12, 2008, and that decedent’s interment took place on August 16, 2008.

La. C.C.P. art. 2163 directs that an appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record. The exceptions of prescription were timely filed in our court prior to the submission of the case to the appellate court for decision. When the peremptory exception of prescription is filed in the appellate court, the plaintiff may demand that the case be remanded to the trial court for trial of the exception. There is no indication here that plaintiff sought a remand. This record contains nothing hinting that the prescription defect can be cured by plaintiff amending her pleadings, pursuant to La. C.C.P. art. 934. Given the reversal of the default judgment, a remand would not serve the interests of judicial economy.

CONCLUSIONS

No prima facie case was presented to justify the original judgment in favor of Ms. Jackson. Accordingly, the September 12, 2011, judgment is reversed, at the cost of plaintiff, Ms. Bessie Mae Jackson. Prescription began tolling on the date of death, not the date that counsel received the death certificate. Thus, the suit was untimely filed. The exceptions of | nprescription are sustained. This ruling disposes of the nullity controversy. As we have struck down the initial judgment, the judgment of nullity is moot.

DECREE

The exceptions of prescription filed by-Arthur Reed, Ivy Reed, and State Farm are sustained, at the cost of plaintiff.

The judgment of September 12, 2011, which forms the basis of the litigation under our Docket #47,293-CA, is reversed at the cost of plaintiff.

The suit for nullity, found under our docket # 48,128-CA, is hereby dismissed, at the cost of plaintiff.

      . One year to the day after issuance of the death certificate.

      . Ms. Jackson filed the suit as plaintiff, pursuant to La. C.C. art. 2315.2, alleging that Kelly never married and died without issue. The applicable text of the code article follows.
      Art. 2315.2. Wrongful death action
      A. If a person dies due to the fault of another, suit may be brought by the following persons to recover damages which they sustained as a result of the death:
      (1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.
      (2) The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving.

      B. The right of action granted by this Article prescribes one year from the death of the deceased.

      . The insurer was later determined to be State Farm Fire and Casualty Company.

      . The order of the trial court setting a return date was considered to be a order granting her appeal. Shows v. Shows, 434 So.2d 1090 (La.1983).

      . There is only one trial court record: Claiborne Parish Civil Docket # 38,850.

      . Other potential issues, unnecessary to this disposition: service, long-arm service, acquiescence, and the trial court’s separate judgment annulling the default judgment.

      . La. C.C.P. art. 934
      When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed.


source: Caselaw Access Project

author: JOY COSSICH LOBRANO, Judge.

license: Public Domain

text:
    Janice CLABORNE and Sheryl Jones v. The HOUSING AUTHORITY OF NEW ORLEANS.
    No. 2012-CA-0808.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 29, 2013.
    Thomas E. Loehn, Aynsley B. Bourne, Charles K. Chauvin, Boggs Loehn & Ro-drigue, Metairie, LA, Darleen M. Jacobs, Jacobs Sarrat & Lovelace, William L. Pratt, Everitt, Pratt & Latham, L.L.P., Warren A. Forstall, Jr., Law Offices of Warren A. Forstall, Jr., Robert G. Harvey, Sr., Law Office of Robert G. Harvey, Sr., APLC, T. Carey Wicker, III, Capitelli & Wicker, New Orleans, LA, Joseph J. McKernan, McKernan Law Firm, Neil D. Sweeney, Baton Rouge, LA, for Plaintiffs/Appellants, on Behalf of the Toxic Mold Committee, LLC.
    Warren Horn, Heller Draper Hayden Patrick & Horn, L.L.C., Kim M. Boyle, Brandon E. Davis, Alex H. Glaser, Phelps Dunbar LLP, New Orleans, LA, for Defendant/Appellee, Guste Resident Management Corporation.
    Matthew John Ungarino, Ungarino & Eckert, Metairie, LA, for Defendant/Ap-pellee, Penn-America Insurance Company.

      Ben Louis Mayeaux, Laborde & Neuner, Lafayette, LA, for Defendant/Appellee, Jefferson Insurance Company of New York.
    Wayne Joseph Lee, Lesli Danielle Harris, Stone Pigman Walther Wittmann L.L.C., New Orleans, LA, for Defendant/Appellee, The Housing Authority of New Orleans.
    Glenn Brozman Adams, Porteous Haink-el & Johnson, L.L.P., New Orleans, LA, for Defendant/Appellee, Scottsdale Insurance Company.
    Dennis Joseph Phayer, Burglass & Tankersley, L.L.C., Metairie, LA, for Defendants/Appellees, B.W. Cooper Resident Management Corporation and Guste Resident Management Corporation.
    Gary Mark Zwain, Duplass Zwain Bourgeois Pfíster & Weinstock, Metairie, LA, for Defendant/Appellee, Odyssey Re, ftk/a Sphere Drake Insurance Company, Ltd.
    William Peter Connick, Michael S. Fut-rell, Connick and Connick, L.L.C., Metair-ie, LA, for Defendant/Appellee, Canal Indemnity Company.
    (Court composed of Judge JOY COSSICH LOBRANO, Judge ROSEMARY LEDET, Judge SANDRA C. JENKINS).
   JOY COSSICH LOBRANO, Judge.

11 The plaintiffs in this proposed class action appeal four trial court judgments that sustained peremptory exceptions of prescription, dismissing their claims against the defendants, the Housing Authority of New Orleans (“HANO”); Guste Homes Resident Management Corporation (“Guste”); B.W. Cooper Resident Management Corporation (“B.W. Cooper”); and their insurers, Odyssey Re (London) Limited f/k/a Sphere Drake Insurance Company; Jefferson Insurance Company of New York; and Canal Indemnity Company (collectively “defendants”). For the reasons that follow, we vacate the judgments and remand the matter to the trial court for further proceedings consistent with this opinion.

In December 2001, the plaintiffs, Janice Claborne and Sheryl Jones, filed a Class Action Petition for Certification and Damages on behalf of themselves and others similarly situated, for damages related to their alleged exposure to toxic mold while living in housing developments operated by HANO. They alleged that HANO acted intentionally, recklessly, and flagrantly and/or negligently by failing to repair apartments containing mold, and by failing to adopt policies and procedures for cleaning the mold. Shortly thereafter, the plaintiffs filed a motion to certify their claims as a class action pursuant La. C.C.P. art. 592A(1).

|gA year later, the plaintiffs filed a Master Supplemental and Amending Petition, which added fourteen (14) additional plaintiffs and proposed a class of persons living in HANO housing as of December 31, 2001. The Amending Petition specifically detailed the plaintiffs’ allegations relating to their purported exposure to mold, including property damage, inconvenience, loss of quality of life, aggravation of sinus and asthmatic conditions, medical expenses, nuisance damages, damages to contents of premises and mold remediation while residing in the HANO, B.W. Cooper, and Guste housing developments.

In March 2003, the plaintiffs filed a First Supplemental and Amending Master Supplemental and Amending Class Action Petition, proposing that the purported class include all residents and domiciliaries “who have occupied their premises between 1980 and the present date [and] who have sustained damages and/or aggravation of sinus and asthmatic conditions as a result of the negligence and/or inaction of the defendants” and alleging that “some of these residents [] have been exposed to mold and mold substances as early as 1980.”

After deposing the available class representatives, the defendants raised exceptions of prescription, arguing that the plaintiffs’ tort claims were prescribed on the face of the petition. The plaintiffs opposed the exceptions, arguing that the doctrines of contra non valentón and continuing tort applied to their claims to defeat prescription.

The trial court held a class certification hearing on March 12,13, and 14, 2007. At that time, the plaintiffs asserted breach of contract claims based upon the [.¡leases they had entered into with HANO and argued a ten-year liberative prescriptive period applied. The defendants objected to the late assertion of the breach of contract claims and the use of the HANO leases to support those claims.

The trial court held a three-day hearing on the exceptions of prescription in May, 2007, and subsequent hearings on February 2 and 24, 2011.

On January 17, 24 and 25, and February 27, 2012, the trial court rendered the judgments, sustaining the exceptions of prescription, dismissing the plaintiffs’ claims. The trial court issued one set of written Reasons for Judgment, setting forth its findings. The trial court determined that plaintiffs had failed to assert breach of contract claims or file a motion to amend the pleadings to incorporate such claims within the deadlines established in the court’s Case Management Orders. The trial court also found the defendants had objected timely to the plaintiffs’ efforts to expand the pleadings. Because the plaintiffs did not timely assert the breach of contract claims, the court concluded the ten (10) year prescriptive period governing contracts did not apply.

As to the tort claims, the trial court determined the plaintiffs were aware of their symptoms and observed mold in their housing units more than a year before they filed their suit. Citing the Louisiana Supreme Court’s decisions in Hogg v. Chevron USA, Inc., 2009-2632, 2009-2635 (La.7/06/10); 45 So.3d 991 and Marin v. Exxon Mobil Corp., 2009-2368, 2009-2371 (La.10/19/10), 48 So.3d 234, |4the trial court concluded the doctrines of contra non va-lentem and continuing tort did not apply to the plaintiffs’ claims.

On appeal, the plaintiffs argue that trial court erred in sustaining the peremptory exceptions of prescription. Based on our review of the record, we conclude the trial court improvidently dismissed the plaintiffs’ claims without first ruling on their motion for class certification.

Louisiana Code of Civil Procedure Articles 591-597 govern class actions. Regarding the certification procedure, La. C.C.P. art. 592 provides, in pertinent part:

A. (1) Within ninety days after service on all adverse parties of the initial pleading demanding relief on behalf of or against a class, the proponent of the class shall file a motion to certify the action as a class action. The delay for filing the motion may be extended by stipulation or the parties or on a motion for good cause shown.
(3)(a) No motion to certify an action as a class action shall be granted prior to a hearing on the motion. Such a hearing shall be held as soon as practicable, but in no event before:
(i) All named adverse parties have been served with the pleading containing the demand for class relief or have made an appearance or, with respect to unserved defendants who have not appeared, the proponent of the class has made due and diligent effort to perfect service of such pleading; and
(ii) The parties have had a reasonable opportunity to obtain discovery on class certification issues, on such terms and conditions as the court deems necessary.

IsThe record in this case indicates that four days after the plaintiffs filed their original petition, they filed a motion to certify the action as a class action pursuant to La. C.C.P. art. 592A(1). The defendants were timely served with the pleading containing the demand for class relief, and the parties conducted thorough, extensive discovery on the issues related to class certification. Although the trial court held a three-day hearing on class certification, it did not render a judgment on the issue.

Instead, the court heard arguments on the peremptory exceptions of prescription. Based on the evidence submitted at the earlier class certification hearing, the trial court sustained the exceptions. While expressing no opinion as to the correctness of the trial court’s ruling, we conclude the ruling would not bind the nonnamed class members who are not parties to the class action litigation before the class is certified. See Smith v. Bayer Corp., 564 U.S. -, -, 131 S.Ct. 2368, 2380, 180 L.Ed.2d 341 (2011)(“Neither a proposed class action nor a rejected class action may bind nonparties”); Devlin v. Scardelletti, 536 U.S. 1, 16, n. 1, 122 S.Ct. 2005, 2014, n. 1, 153 L.Ed.2d 27 (2002) (SCALIA, J., dissenting) (“[A] nonnamed class member is [not] a party to the class-action litigation before the class is certified ”). The plaintiffs alleged in their petitions and motion to certify the class that “countless” residents and occupants of the HANO, Guste and B.W. Cooper housing developments are potential class members. Thus, the trial court’s sustaining of the peremptory exceptions of prescription, more than likely, would not end the litigation of this case.

| (¡Given the fact that the trial court previously conducted the class certification hearing, we conclude that in the interest of judicial economy the trial court should have resolved the issue of class certification before dismissing the plaintiffs’ claims.

Accordingly, in view of our conclusion that the trial court improvidently dismissed the plaintiffs’ claims without first ruling on the motion for class certification, we vacate the judgments and remand the matter to the trial court for further proceedings consistent with this opinion.

VACATED AND REMANDED

      . Correspondence introduced into evidence indicates that on March 9, 2007, the parties had stipulated that for purposes of the class certification hearing all the named class representatives had signed leases with HANO.

      . In anticipation of the class certification hearing, plaintiffs filed a supplemental memorandum in support of the motion for class certification on February 9, 2007, asserting for the first time the breach of contract claims. An action on a contract is governed by the ten year prescriptive period for personal actions. See La. C.C. art. 3499 and Roger v. Dufrene, 613 So.2d 947 (La.1993), n. 5.

      . The defendants suggest in their supplemental memorandum in support of the peremptory exceptions of prescription that sustaining the exceptions and dismissing the plaintiffs' claims would result in the dismissal of the entire suit.

      . At the hearings on the exceptions of prescription, the parties agreed that the trial court would consider the evidence they previously submitted at the class certification hearing.


author: TERRI F. LOVE, Judge.

text:
    GUSTE HOMES RESIDENT MANAGEMENT CORPORATION v. Renard THOMAS. Guste Homes Resident Management Corporation v. Renard Thomas.
    Nos. 2012-CA-1493, 2012-C-0386.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 29, 2013.

      Laetitia Black, Law Office of Laetitia Black, LLC, New Orleans, LA, for Plain-tiffiAppellant/Guste Homes Resident Management Corporation.
    Amanda Golob, Southeast Louisiana Legal Services, New Orleans, LA, for Defendant/Appellee/Renard Thomas.
    (Court composed of Judge TERRI F. LOVE, Judge ROLAND L. BELSOME, Judge MADELEINE M. LANDRIEU).
   TERRI F. LOVE, Judge.

1 jThis appeal arises from the trial court’s dismissal of the rule for possession filed by Guste Homes Resident Management Corporation (“Guste”) based on the criminal activity of Guste resident Renard Thomas. The trial court found that Guste failed to prove that the alleged criminal activity of Renard Thomas threatened the health, safety, or peaceful enjoyment of the premises by Guste residents or staff. Guste alleges that the trial court’s denial of its rule for possession is reversible error. We find that the trial court did not err in denying Guste’s rule for possession as it failed to prove by a preponderance of the evidence that Renard Thomas’ criminal activity threatened the health, safety, or peaceful enjoyment of the premises by Guste residents and staff. For the reasons set forth below, we affirm the trial court’s denial of the rule for possession.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Renard Thomas leased an apartment owned by the Housing Authority of New Orleans (“HANO”). This public housing authority apartment is managed by Guste and is governed by federal and state laws that apply to public housing authority tenancies and their termination.

|RIn May 2011, Guste management received notification from residents that local news media exposed a fellow resident’s arrest for a crime committed at the New Orleans Arena. Upon receiving notice, Guste conducted an independent review of the allegations to determine whether the tenant engaged in activity which breached the lease agreement. The New Orleans Police Department’s incident report indicated that Mr. Thomas was charged with theft in the amount of $2500 and illegal possession of stolen things in the amount of $2500. The report indicated that the crime occurred at the New Orleans Arena near the locker room and was captured by video surveillance during the course and scope of Mr. Thomas’ employment as a photographer.

Guste filed two separate notices to vacate in December 2011: one related to criminal activity and the other related to two other lease violations referenced in the NOPD incident report. In February 2012, Guste filed its rule for possession based on Mr. Thomas’ criminal activity. A trial on the merits of the eviction was held. In its case in chief, Guste presented evidence that Mr. Thomas was convicted of misdemeanor theft in violation of La. R.S. 14:67(B)(3), occurring at the New Orleans Arena, and the testimony of Guste property manager Keywanda Francis.

Ms. Francis testified at trial that one of her duties as property manager is to ensure that tenants comply with Guste’s lease agreement and to determine whether a violation has occurred and if it is cause for eviction. Ms. Francis testified that Guste residents called to report that the local news media covered a story about fellow Guste resident Mr. Thomas for his involvement in a theft at the New Orleans Arena. She further testified that she conducted an independent | ¡¡investigation and reviewed the police incident report. As a result of her investigation, she learned that Mr. Thomas was charged with theft and possession of stolen goods. Ms. Francis further testified that based on this information Guste determined that a violation of the lease occurred and Mr. Thomas was served with a notice of termination of the lease agreement.

During Ms. Francis’ testimony, the trial court asked Ms. Francis to explain how Mr. Thomas’ actions threatened other tenants’ health, safety, and peaceful enjoyment of the premises. Ms. Francis was unable to substantiate her claim that Mr. Thomas’ actions threatened the health, safety, and peaceful enjoyment of the premises of other residents and staff.

On cross-examination, Ms. Francis was asked if Guste received any calls that complained of Mr. Thomas being a threat. Ms. Francis replied, “No, not specifically.” Following Guste’s case in chief, counsel for Mr. Thomas orally moved for involuntary dismissal pursuant to La. C.C.P. Art. 1672(B). Counsel argued that Guste failed to meet its burden of proving that the criminal activity was of such nature to warrant Mr. Thomas’ eviction. The trial court granted Mr. Thomas’ motion concluding that the criminal activity was not a threat to the health, safety, or peaceful enjoyment of the premises of other residents and staff. An appeal to this Court followed.

STANDARD OF REVIEW

A trial court’s granting of an involuntary dismissal pursuant to La. C.C.P. Art. 1672(B) should not be reversed absent manifest error. Kelly v. Housing Authority of New Orleans, 02-0624, p. 6 (La.App. 4 Cir. 8/14/02), 826 So.2d 571, 575. See also Morgan v. City of New Orleans, 94-0874 (La.App. 4 Cir. 12/15/94), 647 So.2d 1308. “The issue to be resolved is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.” Id. (citing Stobart v. State, Dept. of Trans. & Dev., 617 So.2d 880, 882 (La.1993)). Additionally,

[t]he reviewing court may not disturb the reasonable evaluations of credibility and reasonable inferences of fact when viewed in light of the record in its entirety even though it feels its evaluations are more reasonable. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in testimony. However, where documents or objective evidence so contradict the witness’ story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfin-der would not credit the witness’ story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon credibility determination. If the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.

Id. (citations omitted).

Guste contends the trial court committed manifest error when it granted Mr. Thomas’ motion for involuntary dismissal. Additionally, Guste argues that it proved by a preponderance of evidence from which a trier of fact could reasonably conclude that Mr. Thomas engaged in criminal activity that warranted his eviction .pursuant to state and federal law.

MANIFEST ERROR

Guste filed a rule for possession to evict Mr. Thomas alleging that he committed theft and possession of stolen property. The rule for possession alleged that the criminal activity amounts to a violation of the “One Strike and You’re Out” policy. Under federal law, a housing authority tenant may only be evicted 1 ñfor drug-related crimes, violent crimes, and other crimes when the criminal activity threatens the health, safety, or peaceful enjoyment of the premises by other tenants or staff. See 42 U.S.C. § 1437d(i )(5)-(6); and 24 C.F.R. § 966.4.

Guste argues that Mr. Thomas may be evicted for any criminal activity that occurs on or off Guste premises pursuant to federal statute and the lease agreement; however, Guste’s assertions are based on inaccurate interpretations of the law and lease agreement. Both the federal statutes and lease provisions that Guste points to in order to support this contention are in reference to drug-related crimes and crimes of violence; neither of which are applicable in this ease. Due to the nature of the crime alleged, the rule for possession was limited to the allegation that Mr. Thomas engaged in criminal activity that threatened the health, safety, or peaceful enjoyment of the premises by the other tenants and staff.

To terminate the lease, Guste has the burden to prove by a preponderance of evidence that Mr. Thomas violated his lease and the violation constituted sufficient grounds for the eviction under the lease and the applicable federal law. See Mouton v. P.A.B., Inc., 83-679 (La.App. 3 Cir. 5/16/84), 450 So.2d 410, 412. Furthermore, an eviction may not be granted without evidence of the lease violation. See Houston v. Chargois, 98-1979, p. 1 (La.App. 4 Cir. 2/24/99), 732 So.2d 71, 73 (The record, virtually absent of testimony or documentary evidence, did not support the conclusion that an oral lease existed between plaintiff and her stepfather with respect to plaintiffs rule for possession to evict plaintiffs stepfather.)

The relevant federal regulation mandates that no tenant, member of the tenant’s household, or guest engage in “[a]ny criminal activity that threatens the ^health, safety, or right to peaceful enjoyment of the premises by other residents.” See 24 C.F.R. § 966.4(f)(12)(i)(A).

Additionally, 24 C.F.R. § 966.4(Z )(2)(iii) states in pertinent part that the public housing agency may terminate the tenancy only for “[ojther good cause” including criminal activity as provided in paragraph (0(5).

24 C.F.R. § 966.4C )(5)(ii)(A) provides: The lease must provide that any criminal activity by a covered person that threatens the health, safety, or right to peaceful enjoyment of the premises by other residents (including PHA management staff residing on the premises) or threatens the health, safety, or right to peaceful enjoyment of their residences by persons residing in the immediate vicinity of the premises is grounds for termination of tenancy.

At trial, Guste’s evidence included Mr. Thomas’ conviction for misdemeanor theft and the testimony of Guste site manager, Keywanda Francis. Ms. Francis testified that she believed that Mr. Thomas’ criminal activity threatened the health, safety, and peaceful enjoyment of the premises. However, when the trial court asked her how Mr. Thomas’ actions threatened other tenants, Ms. Francis was unable to substantiate her belief with testimony or evidence:

THE COURT: Well how did it threaten their health and safety?
THE WITNESS: The right to peaceful enjoyment. How can you have peace if a threat lurks?
THE COURT: What’s the threat?
THE WITNESS: Mr. Thomas’ actions.
THE COURT: That’s not a threat.
THE WITNESS: It’s a threat to then-peace.
THE COURT: But that’s what I want you to tell me. How is it a threat to their peace? It didn’t happen on the premises.
|7THE WITNESS: It didn’t. But it can happen.
THE COURT: But we don’t deal with can, or would have, should have, or maybe. What is the threat? If it’s a criminal activity that happened off of the premises, if it involves a theft — how—It has to be a threat. How were they threatened?

Ms. Francis testified that after the crime was reported on the news, Guste residents called to report Mr. Thomas. When questioned how reporting that their neighbor was on the news affected then-health, safety, and peaceful enjoyment, Ms. Francis was unable to provide a response.

THE COURT: No. I want to know how were they threatened? [sic] You are just telling me that they reported it. They saw it on the news.
THE WITNESS: His actions.
THE COURT: How were they threatened? How did that disturb then-peaceful enjoyment?
THE WITNESS: It’s about being proactive.
THE COURT: Okay. I understand. Proactive is why they reported it to you. But how were they threatened by this activity?
THE WITNESS: It’s the likelihood of being threatened.
THE COURT: Well, we don’t evict people — I can’t evict him for the likelihood that they might be threatened down the line.

Guste offered no other witnesses or evidence to show that there was an actual threat to the health, safety, and peaceful enjoyment of the premises by other tenants and staff. This type of evidence is a necessary element to demonstrate that Mr. Thomas’ actions warrant eviction and are the type of criminal activity contemplated under the “One Strike” eviction laws and the lease agreement. Thus, 1¡¡although both parties agree Mr. Thomas engaged in criminal activity, there was no testimony to demonstrate that Mr. Thomas’ actions warranted his eviction pursuant to 42 U.S.C. § 1437d(1)(5)-(6) and 24 C.F.R. § 966.4. Accordingly, the trial court determined that Guste failed to meet its burden of proof to evict Mr. Thomas and granted Mr. Thomas’ motion for involuntary dismissal.

The record indicates that although Guste residents reported to management that the local news exposed Mr. Thomas’ criminal activity, no one complained of feeling threatened or concerned for their individual health, safety, or peaceful enjoyment of the premises. At trial, Guste carries the burden of proving by a preponderance of the evidence that there is cause for the eviction. Absent any showing of a threat, the trial court reasonably found Mr. Thomas did not meet its burden at trial. Accordingly, we find nothing manifestly erroneous or clearly wrong with the trial court judgment granting Mr. Thomas’ motion for involuntary dismissal.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED

      . The rule for possession was limited to the notice to vacate relative to the alleged criminal activity under the "One Strike” policy only.

      . The “One Strike Policy” is a based on 42 U.S.C. § 1437 d(1)(5)-(6), 24 C.F.R. § 966.4.


author: MADELEINE M. LANDRIEU, Judge.

text:
    STATE of Louisiana v. James J. KENNY, Jr.
    No. 2011-KA-1819.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 29, 2013.
    Rehearing Denied June 19, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Felicity Strachan, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.
    G. Patrick Hand, Jr., The Hand Law Firm, APLC, Gretna, LA, Graham L. Bos-worth, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge PAUL A. BONIN, Judge MADELEINE M. LANDRIEU, Judge SANDRA C. JENKINS).
   MADELEINE M. LANDRIEU, Judge.

| Appellant, James J. Kenny, Jr., was convicted of vehicular homicide in violation of Louisiana Revised Statute 14:32.1. He was sentenced to five years at hard labor, without benefit of parole, probation, or suspension of sentence, and fined $2,000.00. For the reasons that follow, we reverse Mr. Kenny’s conviction.

FACTS AND PROCEEDINGS BELOW

On February 24, 2009 (Mardi Gras day) at approximately 8:30 p.m., Mr. Kenny was driving on Tulane Avenue near its intersection with South Gayoso Street. Testimony established that the victim and several other people had just crossed one side of Tulane Avenue, reaching the neutral ground. As the victim attempted to cross the other side of Tulane Avenue, he was struck by Mr. Kenny’s vehicle. No one who testified actually saw Mr. Kenny’s vehicle strike the victim, but evidence established that the victim was dragged some distance under Mr. Kenny’s car and suffered multiple blunt force traumas, abrasions, and lacerations. He died as a result of these injuries.

On the evening in question, Richard Jones was in front of a nearby business, the Chat Room, where he and some friends had just set up D.J. equipment, He ^testified that music was playing, but otherwise the street was quiet. Üpon hearing a loud impact, Mr. Jones looked up, saw a white sport utility vehicle (Mr. Kenny’s vehicle) that seemed to have come out of nowhere, and heard a girl scream. He did not hear any braking sounds. When the car did not stop, one of Mr. Jones’s friends took off running and chased it down. His friend ran alongside the vehicle yelling until the driver pulled over to the right. At one point, Mr. Jones testified that the SUV stopped in the “the middle of the next block.” Later in his testimony, he described this distance as “a half a block down the street.” After Mr. Kenny’s vehicle stopped, Mr. Jones saw an individual, whom he had seen earlier crossing the street, roll out from under the vehicle. He stated that the victim apparently had been dragged after he was struck by Mr. Kenny’s vehicle. Mr. Jones further testified that people gathered at the scene and were quite upset. Some threatened Mr. Kenny, but Mr. Jones kept them at bay.

Two officers with the Traffic Fatality Unit of the New Orleans Police Department (NOPD), who responded to the accident, testified as to their part in the investigation. Officer Michael Baldassaro testified that he photographed the scene of the accident. Officer Michael Wahl testified that he participated in the arrest of Mr. Kenny.

Officer Wahl testified that when he first arrived on the scene, EMS and fire units were already there. It was dark and difficult to see. He spoke with Mr. Kenny who was nervous and upset. Mr. Kenny smelled strongly of alcohol. Because of the strong odor of alcohol, Officer Wahl turned Mr. Kenny over to a First District Unit to be transported to the DWI station for testing. Mr. Kenny was then [.¡transported to University Hospital where blood was drawn by Ms. Rachael Stephenson, a registered nurse, at the direction of and while in the custody of law enforcement. Officer Wahl then took the blood samples to the New Orleans Police Department Evidence Room. Finally, with respect to his investigation, Officer Wahl testified that he and Officer Baldassaro tried to locate the people who were with the victim when he was struck by Mr. Kenny, but they were unable to locate them.

In addition to his testimony as to his investigation of the accident, Officer Wahl was offered by the State and accepted by the court as an expert in accident reconstruction. He presented a diagram that he constructed of the site of the accident, but did express an expert opinion as to the cause of the accident. Officer Wahl expressed no opinion as to the point of impact between Mr. Kenny’s SUV and the victim; he expressed no opinion as to the lane of travel Mr. Kenny and the victim were in at the time of impact; and he expressed no opinion as to the estimated speed of Mr. Kenny’s vehicle before or after the point of impact. Officer Wahl offered no opinion as to how close a reasonable person driving the speed limit would have had to be to notice the pedestrian in the roadway (assuming he was there) and take corrective action. Officer Wahl did testify that there were no skid marks at the scene, but gave no opinion as to what conclusion could be drawn from their absence.

Mr. Michael Sunseri, an expert in accident reconstruction, was called to testify on Mr. Kenny’s behalf. Mr. Sunseri relied on the police report, photographs, the autopsy report, and his reconstruction of the accident to form his opinion. He testified that there was not enough evidence for him to calculate the speed at which Mr. Kenny’s vehicle was traveling. However, based upon the fact |4that the victim did not strike the windshield, Mr. Sunseri estimated that Mr. Kenny’s speed was not more than fifty miles per hour. Using photographs of the scene and visibility calculations that he performed, Mr. Sunseri opined that pedestrian error caused the accident. He opined that because of the darkness, Mr. Kenny could not have seen the victim step into the street in time to avoid hitting him, and that even a sober person would have struck the victim under these circumstances. Mr. Sunseri acknowledged, however, that a blood alcohol level of 0.16 gram percent was significant and “would certainly” impair a person’s ability to react.

Nam Tran, who was qualified as an expert in forensic toxicology analysis, tested the blood samples taken from Mr. Kenny. The samples were delivered to the lab for analysis on April 7, 2009, and the analysis was conducted on May 4, 2009. To ensure the precision of the analysis, Mr. Tran conducted testing on two replicate samples of the blood. The tests showed that Mr. Kenny’s blood alcohol level was 0.16 gram percent.

Prior to trial, Mr. Kenny filed a motion to suppress the blood results, alleging that the arresting officer did not adhere to the regulations promulgated in the Louisiana Administrative Code as mandated by La. R.S. 32:662 for the analysis of blood samples. At a hearing on the motion, the State and counsel for Mr. Kenny stipulated to the following: on February 24, 2009, a sample of blood was taken from Mr. Kenny; also on February 24, 2009, the kit containing the sample was delivered to Officer Wahl; on February 25, 2009, Officer Wahl delivered the sample to the New Orleans Police Department Evidence Room; and on April 7, 2009, Officer Wahl delivered the sample to the Louisiana State Police Crime 15Lab oratory for analysis. The State conceded that it did not strictly comply with the Administrative Code regulations because Officer Wahl did not deliver the sample to the laboratory within the seven-day time period provided therein. The samples were not submitted to the Louisiana Crime Laboratory for analysis until April 7, 2009-42 days after the sample was taken. The district court denied the motion to suppress, but ruled that the State could not rely on the presumption of intoxication found in La. R.S. 32:662 because of this noncompliance.

A bench trial was held on July 18 and August 5, 2011. The trial court found Mr. Kenny guilty as charged of vehicular homicide. In accordance with Louisiana Revised Statute 14:32.1(B), the court sentenced Mr. Kenny to five years at hard labor, without benefit of parole, probation, or suspension of sentence, and fined him $2,000.00. Mr. Kenny timely filed the instant appeal.

ERRORS PATENT

A review of the record for errors patent reveals none. See, La.C.Cr.P. art. 920(2).

ASSIGNMENTS OF ERROR

1. Mr. Kenny contends that the evidence was insufficient to support the guilty verdict.
2. Mr. Kenny contends that he was denied his due process rights when the trial court allowed the State to introduce the results of the blood alcohol test at trial.
3. Mr. Kenny contends that the failure of the bill of information to include the issue of blood alcohol content over 0.15 percent as an element of the offense did not give him fair notice of the offense charged.
|fi4. Mr. Kenny contends that the sentence imposed is excessive.

SUFFICIENCY OF EVIDENCE

By this assignment of error, Mr. Kenny asserts that the evidence was insufficient to sustain his conviction for negligent homicide. The standard of review for the sufficiency of the evidence is “whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Pursuant to Jackson, the totality of the evidence, direct and circumstantial, must be sufficient to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt. State v. Huckabay, 2000-1082, p. 32 (La.App. 4 Cir. 2/6/02), 809 So.2d 1093, 1111.

It is well-settled that the entirety of the evidence, both admissible and inadmissible, is to be considered when assessing a conviction for sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992); State v. Brown, 2008-1434, p. 8 (La.App. 4 Cir. 3/18/09), 7 So.3d 1238, 1242. If a defendant claims on appeal that certain evidence was improperly admitted, and the reviewing court finds that any rational trier of fact, viewing all the evidence in a light most favorable to the prosecution, could have found all the essential elements of the offense present beyond a reasonable doubt, the reviewing court then reviews other assignments of trial errors to determine whether the defendant is entitled to a new trial. Hearold, 603 So.2d at 734; Brown, 7 So.3d at 1242.

If the reviewing court determines there has been a trial error (which was not harmless) in cases in which the entirety of the evidence was sufficient to support 17the conviction, the defendant must receive a new trial. He is not entitled to an acquittal even though the admissible evidence, considered alone, was insufficient. On the other hand, if the review of the entirety of the evidence, admissible and inadmissible, reveals that the evidence is insufficient, the defendant is entitled to an acquittal. Hearold, 603 So.2d at 734; Brown, 7 So.3d at 1242-1243.

The crime of vehicular homicide is defined by Louisiana Revised Statute 14:32.1, which provides in pertinent part:

A. Vehicular homicide is the killing of a human being caused proximately or caused directly by an offender engaged in the operation of, or in actual physical control of, any motor vehicle, ... whether or not the offender had the intent to cause death or great bodily harm, whenever any of the following conditions exists and such condition was a contributing factor to the killing:
(1) The operator is under the influence of alcoholic beverages as determined by chemical tests administered under the provisions of R.S. 32:662.
(2) The operator’s blood alcohol concentration is 0.08 percent or more by weight based upon grams of alcohol per one hundred cubic centimeters of blood.
* * *
(4) The operator is under the influence of alcoholic beverages.

In the instant case, Mr. Kenny’s argument on sufficiency of evidence is twofold. He urges that the State not only failed to prove that he was intoxicated but also failed to establish that any alleged intoxication caused the accident.

According to the record before us, the evidence introduced at trial of Mr. Kenny’s alleged intoxication when he struck the victim was Officer Wahl’s testimony that Mr. Kenny smelled strongly of alcohol at the time of the accident and that he was nervous and upset; Mr. Tran’s testimony that Mr. Kenny’s blood alcohol level was 0.16 gram percent; and, evidence that Mr. Kenny drove some | ^distance after impact, implying that he was unaware that he had struck a pedestrian. The second of these is the subject of one of Mr. Kenny’s assignments of error and the last of these is circumspect. It comes in the testimony of Mr. Jones who testified that after he heard the impact, his friend ran alongside Mr. Kenny’s car causing Mr. Kenny to stop. This seems implausible if Mr. Kenny had been speeding (or even driving the speed limit) as Mr. Jones intimated in his testimony. We note that this “friend” was not a witness at the trial. Assuming this collective evidence to be sufficient to prove Mr. Kenny’s intoxication beyond a reasonable doubt, we are still required to address the issue of causation.

In order to convict a defendant under the vehicular homicide statute, the State must prove that an offender’s unlawful blood alcohol concentration, combined with his operation of a vehicle, caused the death of a human being. State v. Taylor, 463 So.2d 1274, 1274-1275 (La.1985). “It is insufficient for the state to prove merely that the alcohol consumption ‘coincides’ with the accident.” State v. Archer, 619 So.2d 1071, 1074 (La.App. 1st Cir.1993).

The Louisiana Supreme Court has determined that a causal relation between the defendant’s conduct and the harm for which the prosecutor seeks to impose criminal sanctions is an essential element of every crime. Causation is a question of fact which has to be considered in the light of the totality of circumstances surrounding the ultimate harm and its relation to the actor’s conduct. State v. Kalathakis, 563 So.2d 228, 231 (La.1990). A defendant should not be held responsible for remote and indirect consequences which a reasonable person could |9not have foreseen as likely to have flowed from his conduct or from those consequences which would have occurred regardless of his conduct. Id.

In the instant case, the State offered only circumstantial evidence of causation. Even though there was evidence that the victim was standing on the neutral ground with other people just prior to the accident, none of these witnesses were called or came forward to testify. Mr. Jones, who was across the street, testified that he did not actually witness the accident. He only witnessed the sudden appearance of a vehicle, but at all times that he observed the vehicle, it was in the lane closest to the neutral ground. He testified that he looked up when he heard what he believed to be the sound of the car hitting the victim. Testimony regarding the point of impact between Mr. Kenny’s car and the victim is scant, but at best, supports a finding that the impact between the car and the victim was on the front left corner of Mr. Kenny’s vehicle, indicating that the victim had just stepped off of the neutral ground when he was struck. There was no competent evidence that Mr. Kenny was driving erratically or speeding. And, the evidence established that the victim and his companions were attempting to cross the street in the middle of the block, not at a crosswalk or at an intersection.

Testimony from Officer Wahl established that it was very dark on the night of the accident, that he did not know whether Mr. Kenny’s car had its headlights on, and that he did not check to see if they were working. Although Officer Wahl testified that he turned Mr. Kenny over to a First District Unit for field sobriety testing, no one testified as to the results of this testing.

ImMr. Kenny presented the testimony of an accident reconstruction expert, Mr. Sunseri. Based on his analysis, Mr. Sun-seri opined that pedestrian error caused the accident. He conducted a reconstruction of the accident using two people, a state trooper and a female, and placed them on the neutral ground at the scene. In this reconstruction, Mr. Sunseri determined that it was “almost impossible to see a pedestrian until you were right up on them.” He further testified that a vehicle travelling at 35 mph would travel about 51.3 feet per second. The lag time between when a driver recognizes a pedestrian and moves his foot from the gas pedal to the brake is approximately three seconds. Thus, at 35mph, the vehicle would travel almost 154 feet before the driver could “begin to do anything.” He opined that there was not enough information to determine Mr. Kenny’s speed but there was sufficient information to conclude that he was travelling less than 50 mph. Based on his reconstruction analysis, Mr. Sunseri opined that “anybody, drinking or not, would have hit that person stepping out in front of them ... whether or not they [sic] had alcohol.”

Mr. Kenny contends that the State’s evidence does not establish, beyond a reasonable doubt, a causal relationship between his purported intoxication and the accident. We agree.

Where the State relies on circumstantial evidence as the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438; Huckabay, 809 So.2d at 1111. On the record before us, viewing the evidence in the light most favorable to the State, there is no question that Inthe victim stepped into the lane of travel on a dark night, in the middle of the block, in front of oncoming traffic. The only question is whether Mr. Kenny’s apparent intoxication prevented him from avoiding striking the victim. We find that the State failed to prove, beyond a reasonable doubt, that Mr. Kenny’s intoxication was the cause of the victim’s death. Louisiana Revised Statute 14:32.1, the statute under which Mr. Kenny was convicted, “is not aimed at persons involved in vehicular fatalities whose alcohol consumption does not cause but merely coincides with such an accident.” Taylor, 463 So.2d at 1275.

DECREE

For the foregoing reasons, we reverse Mr. Kenny’s conviction and vacate his sentence and pretermit the consideration of Mr. Kenny’s remaining assignments of error. We adjudicate him not guilty and order him discharged from custody on this charge. See, Hearold, 603 So.2d at 734.

REVERSED

      . All testimony at trial referred to the intersection of Tulane Avenue and North Gayoso Street. Tulane Avenue actually intersects with South Gayoso Street.

      . The evidence established that the posted speed limit was 35 miles per hour.

      . At the time of the offense, La. Admin. Code tit. 55, pt. I, § 555(G)(3) provided: "The blood sample taken for analysis may be maintained at room temperature and delivered to the designated collection site of each enforcement agency within 24 hours of the end of the collecting officer’s shift. It shall be transported then to the laboratory utilized for analysis at the earliest opportunity after collection, not to exceed seven days.” The statute was subsequently amended to change the time period from seven to ten days.

      . The record is devoid of any evidence which addresses whether the delay in testing compromised the results.

      . Referring to Mr. Kenny’s vehicle, Mr. Jones testified, it came "Q]ust from out of nowhere—I don’t know where the truck came from.”

      . Testimony also established that the victim was 18 years old and had a blood alcohol level of 0.024 gram percent.


author: DANIEL L. DYSART, Judge.

text:
    STATE of Louisiana v. Roland A. THOMAS.
    No. 2012-KA-0852.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 29, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Kyle Daly, Assistant District Attorney, New Orleans, LA, for Appellee/State of Louisiana.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge PAUL A. BONIN, Judge DANIEL L. DYSART).
   DANIEL L. DYSART, Judge.

11 After entering a guilty plea with a reservation of rights under State v. Crosby, defendant, Roland Thomas, appeals the trial court’s denial of his motion to suppress evidence. For the reasons that follow, we affirm the conviction and remand to the trial court for the imposition of the mandatory fine required by La. R.S. 14:95.1(B).

PROCEDURAL HISTORY

Defendant was charged by bill of information with two counts of possession of a firearm by a convicted felon, one count of possession of alprazolam (a Schedule IV controlled dangerous substance under La. R.S. 40:964(B)), and one count of illegal carrying of a firearm. At his arraignment defendant pled not guilty and, after motion hearings, the trial court found probable cause and denied the motion to suppress. Defendant then pled guilty to the possession of alprazolam and firearm charges and the State entered a nolle prosequi as to the possession illegal carrying of a firearm charge. Defendant was sentenced to ten years in |2prison for each of the felon in possession of a firearm count, and one year for the possession of alprazolam charge, the sentences to run concurrently. The trial court also imposed a $35 indigent defender fee.

Defendant now seeks review of the trial court’s denial of his motion to suppress evidence.

FACTUAL BACKGROUND

At the hearing on defendant’s motion to suppress, the State called one witness, New Orleans Police Officer James Sousa, of the Sixth District. According to Officer Sousa’s testimony, on August 26, 2011, he was on general patrol with five other officers in three marked police cars. They were on patrol “via task force” in an area which included a house located at 2723 First Street. He was “very much” familiar with that location as he had been involved in two separate narcotics investigations at that location five to six months before. In addition, less than a week before then, a firearm had been retrieved from the front porch of the house.

The officers observed four to five males standing in front of the house and they approached, intending to conduct a field interview. Officer Sousa explained that they “want to know who the people are there” because “[they] continue to get calls out there and [they] are continuing to do narcotic investigation over there.” Officer Sousa knew two people who lived at the house, but did not believe that defendant lived there or at least, did not recognize him.

|RThe officers asked the men to approach them and while several complied, defendant began walking towards the house and exhibited “furtive movements.” Because of the prior firearms investigation, “[the officers] began to get a little in fear of [their] own safety.” Officer Sousa described defendant’s movements:

[Defendant] began to put his hands directly down to his waist, motioning towards his pockets. Due to the fact that he was wearing a sweater at that time which concealed the waist, [Officer Sousa] was a little suspicious.

Another officer, Sergeant Kalka, then approached defendant, asking him to keep his hands above his waist as he came forward. Sergeant Kalka “touched [defendant’s] right side” and felt a pistol grip. He retrieved the weapon, handed it to another officer and a second weapon was found and retrieved from around defendant’s waist. Defendant was placed under arrest at that time for carrying a concealed weapon.

A search incidental to the arrest was conducted at which time two Xanax pills were discovered in a small box. Defendant’s name was run through the NCIC which informed the officers that defendant was wanted on several different attachments. After defendant was informed of his Miranda rights, he commented that he carried the weapons not because he was a member of a gang, but because he feared for his safety because of other gangs.

On cross-examination, Officer Sousa indicated that, as the officers approached the men to conduct the interviews, they were concerned about their |4 safety. Officer Sousa asked the men to place their hands above their waists so that the officers could conduct a pat-down. The men did so, with the exception of defendant, who “immediately began to go down, not just one hand but two hands.” Officer Sousa explained their concern: “[i]f it were one hand it would be an issue of was he trying to adjust his clothing, but it was both hands ... and it was pretty rapid.”

Defendant was the only man arrested at that time. Officer Sousa admitted that, when the officers approached the men, no crime had been or was being committed.

STANDARD OF REVIEW

Trial courts are vested with great discretion when ruling on a motion to suppress. Accordingly, the ruling of a trial judge on a motion to suppress will not be disturbed absent an abuse of that discretion. State v. Norals, 10-0293, p. 3 (La.App. 4 Cir. 7/30/10), 44 So.3d 907, 909, writ denied, 10-1889 (La.8/16/10), 42 So.3d 382, citing, State v. Long, 03-2592, p. 5 (La.9/9/04), 884 So.2d 1176, 1179, cert. denied, 544 U.S. 977, 125 S.Ct. 1860, 161 L.Ed.2d 728 (2005).

DISCUSSION

In his sole assignment of error, defendant maintains that the trial court’s denial of his motion to suppress evidence violated the Fourth Amendment and the Louisiana Constitution, Article 1, Section 5.

Defendant’s argument arises from the U.S. Constitution’s protection of “[t]he right of the people to be secure in their persons, houses, papers, and effects, |sagainst unreasonable searches and seizures.” U.S. Const. Amend. IV. The Louisiana Constitution provides a similar protection so that “[e]very person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy.” La. Const, art. I § 5. Thus, as in this case, when evidence is seized without a warrant as required by the federal and state constitutions, the burden is on the state to show that a search is justified by some exception to the warrant requirement. State v. Anderson, 06-103, p. 2 (La.App. 4 Cir. 1/17/07), 949 So.2d 544, 546.

One such exception to a warrant-less search and seizure is a stop based on reasonable suspicion, codified in La. C.Cr.P. art. 215.1(A), which provides that “[a] law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.” See also: State v. Brown, 09-0722, p. 8 (La.App. 4 Cir. 2/10/10), 32 So.3d 939, 945. Article 215.1 further provides that “[w]hen a law enforcement officer has stopped a person for questioning pursuant to this Article and reasonably suspects that he is in danger, he may frisk the outer clothing of such person for a dangerous weapon.” La. C.Cr. P. art. 215.1(B). “Reasonable suspicion” to stop is something less than probable cause and is determined under the facts and circumstances of each case by whether the officer had sufficient facts within his knowledge to justify an ^infringement on the individual’s right to be free from governmental interference. Id.; see also: Norals, supra, p. 4, 44 So.3d at 910, citing State v. Sanders, 97-892, p. 11 (La.App. 5 Cir. 3/25/98), 717 So.2d 234, 240.

In this matter, the trial court concluded that reasonable suspicion existed for the officers to stop defendant. It orally articulated its reasons for denying the motion to suppress:

... I believe that the police officer has established a reasonable, articulable suspicion based on the movements of [defendant].
At the time when the police pulled up in full uniform with a marked police car [defendant] is the one who started reaching for his pockets and walking away from the police officers, which raised their suspicion and gave them the right, after having established that this is a known area for narcotics activity the fact that Officer Sousa was involved in the retrieval of the weapon from under the porch of which [defendant] was standing at the time less than a week before, I do find that he has satisfied his burden, as has the State and the Court will find probable cause for the arrest of [defendant] ... and I’ll deny the motion to suppress the statement ... [and] the evidence.

After reviewing the transcript from the hearing on the motion to suppress and our jurisprudence on this issue, we come to the conclusion that there was no abuse of discretion by the trial court. In so finding, we draw guidance from the recent Supreme Court decision of State v. Lampton, 12-1547 (La.4/5/13), 110 So.3d 557.

In Lampton, the Supreme Court reiterated the well-settled principle that, while an officer must have a “particularized and objective basis for suspecting the particular person stopped of criminal activity,” the “level of suspicion ... need not [7rise to the probable cause required for a lawful arrest, The police need have only ‘some minimal level of objective justification.’” Id., p. 3, 110 So.3d at 560-61. (Citations omitted).

At issue in Lampton, was the stop (and subsequent arrest) of a man who was walking in a housing development, marked with “no trespass” signs. At a hearing on a motion to suppress, one officer testified that the area was a high crime area known for drug trafficking. The officer was familiar “with most of the ... residents” and neither he nor his partner recognized the defendant. On this basis, alone, the officers stopped the defendant “as he exited the development,” patted him down and after determining that he did not reside at the development, arrested him. A search incident to his arrest yielded an item in his sock which tested positive for crack cocaine.

In Lampton, the Supreme court noted that the officer patted defendant down, “not out of any particularized concern for his safety and that of his partner, but as a general policy of frisking anyone the officers stopped.” Id. However, the court found that “the circumstances ... gave rise to the officers’ reasonable suspicion that defendant was trespassing,” noting that the officers “were acquainted with many if not most of the development’s residents.” Id., pp. 3 — 4, 110 So.3d 557. The court concluded:

... The officer thus had the requisite “minimal objective basis” to “maintain the status quo momentarily while obtaining more information,” the hallmark of an investigatory stop.

Id., p. 4.110 So.3d 557. See also, State v. Cure, 11-2238 (La.7/2/12), 93 So.3d 1268; State v. Surtain, 09-1835 (La.3/16/10), 31 So.3d 1037.

In the instant matter, we find that the officers had, at the least, a minimal objective basis for an investigatory stop of defendant, although we recognize Officer Sousa’s admission that, when he pulled up to the house, he had not seen the occurrence of a crime, nor received a report of the commission of a crime. Likewise, while he also admitted that, at that point in time, he did not have “reasonable suspicion that any of these people were currently committing a crime,” he was aware of previous criminal activity at that address. His suspicions were further provoked when the men were asked to come forward with their hands above their waists and defendant not only disobeyed by walking towards the house, but also moved his hands towards his waist. Defendant’s reaction to Officer Sousa’s request could easily have led the officers to fear for their safety and to become suspicious, when combined with the knowledge that a gun had been found at that house within the prior week and that the house had been under investigation for narcotics in the past. We agree with the trial court’s finding that Officer Sousa “established a reasonable, articulable suspicion based on [defendant’s] movements.” After our review of the facts and the trial court’s conclusions, we find no abuse of the trial court’s discretion in denying the defendant’s motion to suppress.

|nERRORS PATENT

Our review of the record reveals an error patent; namely, that the trial court erred in defendant’s sentence. La. R.S. 14:95.1(B) requires that the sentence for one convicted of the felony of possession of a firearm by a convicted felon be sentenced to imprisonment at hard labor “without the benefit of probation, parole, or suspension of sentence.” It further requires the imposition of a fine of “not less than one thousand dollars nor more than five thousand dollars.” Id. The trial court neglected to impose either of these components of defendant’s conviction.

The trial court’s failure to sentence defendant to hard labor without the benefit of probation, parole or suspension of sentence does not require remand. When a statute mandates the denial of benefits of probation, parole, or suspension of sentence, and a trial court fails to do so, remand is not necessary. State v. Brown, 09-0884, p. 11 (La.App. 4 Cir. 3/31/10), 36 So.3d 974, 982. Under La. R.S. 15:301.1(A), the denial of these benefits is deemed to be contained in the sentence, whether or not the trial court imposes them. Id.

However, the trial court’s failure to impose a mandatory fine in sentencing requires remand in order for the trial court to impose an appropriate fine. See: State v. Harris, 11-663, p. 4 (La.App. 4 Cir. 3/28/12), 88 So.3d 1223, citing State v. Williams, 03-0302 (La.App. 4 Cir. 10/6/03), 859 So.2d 751. We therefore remand this matter to the trial court for the imposition of a fine in accordance with La. R.S. 14:95.1(B).

1 ^CONCLUSION

For the foregoing reasons, the ruling of the trial court and defendant’s conviction are affirmed. The matter is remanded to the trial court for the imposition of a fine pursuant to La. R.S. 14:95.1(B).

AFFIRMED AND REMANDED

      . 338 So.2d 584 (La.1976).

      . These charges are violations of La. R.S. 14:95.1, La. R.S. 40:969(C) and La. R.S. 14:95(A), respectively.

      . When showed a copy of his report, Officer Sousa corrected himself and agreed that defendant had been wearing a black t-shirt.

      . Both weapons were determined to have been stolen.

      .NCIC stands for “National Crime Information Center.”

      . This Article is based on the United States Supreme Court decision of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and its progeny. See, e.g. State v. Mulder, 11-0424, p. 4 (La.App. 4 Cir. 10/19/11), 76 So.3d 1241, 1245.


author: ROSEMARY LEDET, Judge.

text:
    STATE of Louisiana v. Gregory ULMER.
    No. 2012-KA-0949.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 29, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Ap-pelle/State of Louisiana.
    Holli Herrle-Castillo, Marrero, LA, for Defendant/Appellant.
    (Court composed of Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET, and Judge SANDRA C. JENKINS).
   ROSEMARY LEDET, Judge.

_JjThe sole issue in this criminal appeal is whether the district court erred in denying the defendant’s motion to suppress the evidence. Finding no error, we affirm the defendant’s conviction and sentence.

STATEMENT OF THE CASE

On May 24, 2010, the State filed a bill of information charging the defendant, Gregory Ulmer, with possession of cocaine, a violation of La. R.S. 40:967(0(2). On May 27, 2010, he pleaded not guilty. On August 17, 2010, a motions hearing was held. The district court found probable cause and denied Mr. Ulmer’s motion to suppress the evidence. Finding “no error in the ruling of the trial court,” this court denied Mr. Ulmer’s writ application. State v. Ulmer, 10-1282 (La.App. 4 Cir. 12/1/10) (unpub.). On March 15, 2011, a jury found Mr. Ulmer guilty as charged.

On October 28, 2010, the district court sentenced Mr. .Ulmer to five years imprisonment at hard labor. Pursuant to a plea agreement, Mr. Ulmer pled guilty to being a triple offender. On January 4, 2012, the district court vacated the original sentence and sentenced Mr. Ulmer to ten years imprisonment at hard labor. This appeal followed.

^STATEMENT OF THE FACTS

On April 23, 2010, at about 9:00 a.m., Officer Jimmy Peak and his partner, Jonathan Sam, were on proactive patrol in the Iberville Housing Development. The officers were dressed in full uniform and riding in a marked unit. Officer Peak, who had been a NOPD officer for two years, testified at the motion hearing that they were patrolling the Iberville Housing Development because “we know it’s a high— right now, it’s a high crime area for violent crime, and drug trafficking.” When the officers were in the 1200 block of Conti Street, they observed an unknown man, later identified as Mr. Ulmer, standing at the gate that separates the 300 block of Basin and the 1200 block of Conti Street. Mr. Ulmer was talking to another unknown man, who was standing on the other side of the gate. According to Officer Peak, Mr. Ulmer and the other man “reached out towards each other, doing some kind of hand transaction,” which the officers believed was a drug transaction. At that point, the officers elected “to do a stop.”

The officers drove up behind Mr. Ulmer and stopped about three feet from him. Officer Sam testified that Mr. Ulmer walked away from the gate with his head down and that Mr. Ulmer neither looked up nor saw the officers approaching him. Officer Sam further testified that Mr. Ul-mer’s right hand was cupped and that he was “fidgeting in his hand with his left hand.” Officer Sam explained Mr. Ul-mer’s hand movements as follows: “[h]e’s like dusting his fingers off, trying to get like all the crumbs out of his hand.” Officer Sam still further testified that as they approached, Mr. Ulmer immediately looked up, stood up straight, and dropped something on the ground, which appeared to be several pieces of a rock-like substance. Officer Sam stated that he knew the rock-like substance was crack cocaine from his police work experience.

|sMr. Ulmer was advised of his rights and arrested for possession of crack cocaine. The other man on the other side of the gate fled and never was captured. The officers had seen Mr. Ulmer around the development previously. Although Officer Sam noted in the police report that Mr. Ulmer was sober at the time of the arrest, Officer Peak, at the motions hearing, described Mr. Ulmer as “always hyped up” during the previous encounters he had with him. The substance Mr. Ul-mer dropped subsequently tested positive for crack cocaine. The parties stipulated that if the criminalist, Glen Gilyot, were called to testify, he would testify that the rock-like substance tested positive for cocaine.

At trial, both Officers Peak and Sam positively identified Mr. Ulmer. Officer Peak, on cross-examination, acknowledged that he never saw any money transfer hands between Mr. Ulmer and the other man, that he never saw the men’s hands touch, and that Mr. Ulmer submitted to the officers’ show of authority. Officer Peak, however, testified that the men reached toward each other through the gate and that Mr. Ulmer’s hand was clenched as the officers approached him. According to Officer Peak, Mr. Ulmer could not walk towards the officers because he would have hit the front fender of the police unit.

Mr. Ulmer testified at trial in his defense. He indicated that he worked with a tour business in the French Quarter, that he was an entertainer in Jackson Square, and that he was a licensed barber. He also indicated that he was respected in the Iberville community. According to Mr. Ulmer, on the morning of April 23, 2010, he ate 'with Officers Peak and Sam at the store. Mr. Ulmer stated that the officers would help him whenever someone bothered his clients. After they ate, Mr. Ul-mer encountered a man named Admone on Conti Street, across from the graveyard. Admone asked Mr. Ulmer to cut his son’s hair, and Mr. Ulmer agreed. As Mr. [ 4Ulmer and Admone stood talking in a driveway, Officers Peak and Sam drove up. Mr. Ulmer testified that he had seen the officers only eight minutes earlier. Mr. Ulmer also testified that he performed a backward flip off the officers’ police unit.

According to Mr. Ulmer, Officers Peak and Sam told Admone to leave, placed Mr. Ulmer in their car, and kept him there for at least eight hours. Mr. Ulmer testified that the officers were soliciting his help as a confidential informant, but he was afraid to help them because it would endanger his life. Mr. Ulmer testified that the officers showed him his criminal record on a computer screen and that they asked him who he thought the judge (or the jury) was going to believe, him or them. Mr. Ulmer claimed the officers’ blackmailed him and that he never possessed any cocaine that day.

ERRORS PATENT

A review of the record for errors patent reveals none.

DISCUSSION

In his sole assignment of error, Mr. Ulmer asserts that the district court erred in denying his motion to suppress the evidence. It is well-settled that a “trial court is vested with great discretion when ruling on motion to suppress.” State v. Scull, 93-2360, p. 9 (La.App. 4 Cir. 6/30/94), 639 So.2d 1239, 1245; see also State v. Long 03-2592 (La.9/9/04), 884 So.2d 1176; State v. Fournette, 08-0254 (La.App. 4 Cir. 7/2/08), 989 So.2d 199; State v. Jones, 02-1931 (La.App. 4 Cir. 11/6/02), 832 So.2d 382. Stated otherwise, a trial court’s ruling on a motion to suppress evidence is entitled to great weight and will not be set aside absent an abuse of discretion. State v. Wells, 08-2262, p. 5 (La.7/6/10), 45 So.3d 577, 581.

[¡jin order to enforce the mandates of the federal and state constitutions and to discourage police misconduct, evidence recovered pursuant to an unconstitutional search or seizure is inadmissible. State v. Hamilton, 09-2205, p. 3 (La.5/11/10), 36 So.3d 209, 211 (citation omitted). Searches and seizures conducted without warrants issued on probable cause are per se unreasonable unless justified by narrowly drawn exceptions to the warrant requirement. State v. Surtain, 09-1835, 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)). At a suppression hearing, the State has the burden of proving the admissibility of evidence seized without a warrant. La. C.Cr.P. art. 703(D).

As noted, Mr. Ulmer’s sole assignment of error is that the district court erred in denying his motion to suppress the evidence. The gist of Mr. Ulmer’s argument on appeal is that an illegal stop occurred when the officers pulled their police unit up next to him, and he submitted to their authority. He maintains that the officers lacked reasonable suspicion to justify the stop and that the district court thus erred in refusing to suppress the evidence that was discarded when he was stopped. The State counters that no stop occurred. In the alternative, the State counters that assuming a stop occurred, the officers had reasonable suspicion to justify it.

Every encounter between an officer and a citizen is a not stop. Indeed, encounters between police and citizens have been divided into the following three “tiers”:

At the first tier, mere communications between officers and citizens implicate no Fourth Amendment concerns where there is no coercion or detention. [United States v. Watson, 953 F.2d 895, 897 n. 1 (5th Cir.1992)] ...; State v. Britton, 93-1990 (La.1/27/97); 633 So.2d 1208, 1209 (noting that police have the same right as any citizen to approach an individual in public and to engage him in conversation under circumstances that do not signal official detention).
At the second tier, the investigatory stop recognized by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the police officer may briefly seize a person if the officer has an objectively reasonable suspicion, supported by specific and articulable facts, that the person is, or is about to be, engaged in criminal conduct or is wanted for past criminal acts. Watson, 953 F.2d at 897 n. 1; United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (citing Terry, 392 U.S. at 27, 88 S.Ct. 1868); State v. Moreno, 619 So.2d 62, 65 (La.1993). See also La.Code Crim. Proc. art. 215.1(A), which provides that an officer’s reasonable suspicion of crime allows a limited investigation of a person. However, reasonable suspicion is “insufficient to justify custodial interrogation even though the interrogation is investigative.” Florida v. Royer, 460 U.S. 491, 499, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).
At the third tier, a custodial “arrest,” the officer must have “probable cause” to believe that the person has committed a crime. Watson, 953 F.2d at 897 n. 1; Moreno, 619 So.2d at 65. See also La. Code Crim. Proc. art. 213, which uses the phrase “reasonable cause.” The “probable cause” or “reasonable cause” needed to make a full custodial arrest requires more than the “reasonable suspicion” needed for a brief investigatory stop. See Terry, 392 U.S. at 22, 88 S.Ct. 1868; State v. Flowers, 441 So.2d 707, 712 (La.1983) (noting that a less intrusive stop does not require the same “probable cause” needed for an arrest).

State v. Fisher, 97-1133, pp. 4-5 (La.9/9/98), 720 So.2d 1179, 1182-83.

In this case, the district court implicitly categorized the encounter between Mr. Ulmer and Officers Peak and Sam as a second tier encounter — a Terry stop. In so doing, the district court discussed whether the officers’ observations of Mr. Ulmer’s hand reaching out and touching the other man’s hand provided reasonable suspicion to justify the stop. The district court acknowledged that the hand-to-hand motions between Mr. Ulmer and the other man could have been innocent — a 17handshake or giving dap (knocking fists together as a greeting). Nonetheless, the district court denied Mr. Ulmer’s motion to suppress the evidence. Because we find, as did the district court, that the officers had reasonable suspicion to justify the stop, we find it unnecessary to address the issue of whether this was a first tier encounter. The narrow issue presented is thus whether the officers had reasonable suspicion to justify stopping Mr. Ulmer. If the stop was justified, then the contraband that Mr. Ulmer discarded was legally seized.

Pursuant to La.C.Cr.P. art. 215.1, an officer may stop a person and question him if the officer has reasonable suspicion that the person has committed or is about to commit an offense. State v. Temple, 02-1895 (La.9/9/08), 854 So.2d 856; see also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Reasonable suspicion is less than the probable cause needed to arrest a defendant; an officer “must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); Temple, 02-1895 at p. 4, 854 So.2d at 859-60 (citations omitted). Addressing the standard of review applied to a determination whether an officer had reasonable suspicion to detain a suspect, the Louisiana Supreme Court in Temple stated:

In determining whether the police possessed the requisite “ ‘minimal level of objective justification’ ” for an investigatory stop based on reasonable suspicion of criminal activity, [United States v.] Sokolow, 490 U.S. [1] at 7, 109 S.Ct. [1581] at 1585, 104 L.Ed.2d 1 [ (1989) ] (quoting INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 1763, 80 L.Ed.2d 247 (1984)), reviewing courts “must look at the ‘totality of the circumstances’ of each case,” a process which “allows officers to draw |son their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’ ” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750-51, 151 L.Ed.2d 740 (2002) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)); see also State v. Huntley, 97-0965, p. 1 (La.3/13/98), 708 So.2d 1048.

Temple, 02-1895 at p. 5, 854 So.2d at 860.

In this case, Officers Peak and Sam were patrolling a high crime area when they observed Mr. Ulmer engage in an apparent hand-to-hand transaction. The jurisprudence has held that an officer’s observation of such a hand-to-hand transaction is sufficient to provide reasonable suspicion to justify an investigatory Terry stop. State v. Fearheiley, 08-0307, pp. 1-2 (La.4/18/08), 979 So.2d 487, 488-89.

Explaining its finding that the observation of “an apparent hand-to-hand transaction” provided justification for an investigatory Terry stop, the Louisiana Supreme Court in the Fearheiley case stated:

In the present case, the police officer observed the “independent, yet complementary and simultaneous actions by two parties,” conducting an apparent hand-to-hand transaction, Black v. United States, 810 A.2d 410, 413 (D.C.2002), although the officer could not see what either person had in his or her hand. The apparent exchange lasted no more than 15 to 20 seconds inside one of two cars which had arrived separately in the parking lot of a Circle K store with no apparent purpose that evening other than facilitating the brief exchange before the parties, who appeared to the officer to have no other connection to each other, went their separate ways. That the encounter had other possible innocent explanations, including the one offered by defendant after the stop that the unidentified female involved in the transaction had paid off a debt she owed him, did not require the police officer to turn a blind eye to the circumstances and ignore what two years of experience in narcotics investigations, encompassing 15 to 20 arrests, had taught him, that in the narcotics trade, “when it’s done outside, it’s done very fast from one hand to the next.” See Arvizu, 534 U.S. at 274, 122 S.Ct. at 751 (“Although an officer’s reliance on a mere ‘hunch’ is insufficient to justify a stop, the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a ^preponderance of the evidence standard.”) (citing Terry, 392 U.S. at 27, 88 S.Ct. at 1883 and Sokolow, 490 U.S. at 7, 109 S.Ct. at 1585).

Id.

Similarly, this court in State v. Schaffer, 99-0766 (La.App. 4 Cir. 4/12/00), 767 So.2d 49, found that the observance by police officers of two individuals engaged in activity that was consistent with a drug transaction coupled with flight by the defendant provided the officers with reasonable grounds to stop the defendant. In the Schaffer case, the officers were on proactive patrol in a housing development when they observed the defendant and another individual engage in an apparent hand-to-hand exchange in the rain. When the two individuals saw the police car, they stood up abruptly and held onto the objects that they had in their hands. When the officers exited their vehicle, the defendant fled. This court reasoned that “[t]he combination of the defendant’s flight and the observance of activity consistent with a drug transaction gave the officers reasonable suspicion.” Schaffer, 99-0766 at pp. 8-10, 767 So.2d at 53-55; see also State v. Lazard, 2008-0677, p. 5 (La.App. 4 Cir. 12/10/08), 2 So.3d 492, 496 (analogizing to the Shaffer case and finding police officers had reasonable suspicion to stop when the officers “observed a hand-to-hand exchange between Mr. Lazard and an unknown male that they suspected was a drug transaction based upon their experience and the reputation of the area”).

In this case, Officers Peak and Sam reasonably believed they observed Mr. Ul-mer engage in a hand-to-hand transaction. Based on the officers’ past experience and training, they believed they had observed a drug transaction. The area in which the apparent drug transaction occurred was a high drug-trafficking area. The officers had knowledge of Mr. Ulmer through prior encounters with him |inin the Iberville Housing Development. The other man involved in the apparent hand-to-hand transaction ran when the officers approached. Taken together, these circumstances support the district court’s finding that the officers had reasonable suspicion to justify stopping Mr. Ulmer. The officers then properly retrieved the contraband Mr. Ul-mer discarded when he was stopped. Given the circumstances of this case, the trial court did not err by denying Mr. Ulmer’s motion to suppress the evidence. This assignment of error lacks merit.

DECREE

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

AFFIRMED

      . The Fourth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, prohibits unreasonable searches and seizures. Similarly, Article 1, Section 5 of the Louisiana Constitution protects “person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy.”

      . This court has previously noted that " ‘[d]ap’ is a term used to describe a street handshake.” State v. Randle, 98-1670, p. 4 (La.App. 4 Cir. 12/22/99), 750 So.2d 353, 356, n. 3. At the motion hearing, Mr. Ulmer’s counsel asserted that the officer merely saw a handshake initially. The district court noted that it agreed and that it had previously granted motions to suppress based upon the “giving dap argument,” but that this Court had reversed. Therefore, the district court denied the motion to suppress in this case.

      . An officer needs neither probable cause to arrest nor reasonable suspicion to detain a person in order to approach a person and engage them in conversation. State v. Dobard, 01-2629, p. 3 (La.6/21/02), 824 So.2d 1127, 1130 (citation omitted). As long as the person approached by an officer is free to disregard the encounter and to walk away, search and provisions are not implicated. Id.