source: Caselaw Access Project

author: PAUL A. BONIN, Judge.

license: Public Domain

text:
    CAMILLUS SPECIALTY HOSPITAL, L.L.C. and CCSH Creditor Protection Corporation v. Marie RICCIO.
    No. 2013-CA-1172.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 30, 2014.

      James M. Garner, Mary beth Akin, Ryan O. Luminais, Sher Garner Cahill Richter Klein & Hilbert, L.L.C., New Orleans, LA, for PlaintiffAppellee.
    Marie Riccio Wisner, New Orleans, LA, pro se.

      (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge PAUL A. BONIN, Judge JOY COSSICH LOBRANO).
   PAUL A. BONIN, Judge.

|/The district judge issued a writ of quo warranto directed to Marie Riccio, an attorney, which ordered her to hand over mail in her possession which belonged to Camillus Specialty Hospital, L.L.C., imposed a continuing obligation upon her to turn over similar items of mail in the future and to sign “any papers necessary to effectuate any transfer of property of Camillus Specialty Hospital, L.L.C., to Mr. Fritschen[, the purported manager of Camillus]”.

Ms. Riccio appeals the judgment, arguing first that the writ is not properly directed to her in her capacity as an attorney for a person or entity whose interests are adverse to the plaintiffs and second that the relief ordered by the court exceeds its legal authority to summarily mandate or compel those actions.

The writ of quo warranto is an extraordinary remedy. Because, as the matter finds itself here, the parties requesting the writ and Ms. Riccio now agree that as a matter of fact Ms. Riccio is neither an officer of Camillus Specialty Hospital, L.L.C. nor someone who ever claimed to be an officer of the limited liability company, we conclude on de novo review that judgment granting the writ of quo | ¡.warranto directed to Ms. Riccio was improvidently issued, and, accordingly, we reverse, recall, and vacate the writ.

The relief which was ordered mandating or compelling certain actions by Ms. Riccio is not available under the writ of quo warranto. But the plaintiffs argue that the relief was authorized pursuant to their request for a mandatory injunction. Ms. Riccio counters the district judge did not and, in the absence of a trial on the merits, could not issue a mandatory injunction. We, however, pretermit discussing or deciding the mandatory, or compulsory, aspects of the eomplained-of judgment because they are moot in light of these undisputed posi-judgment facts: 1) Ms. Riccio has complied with the judgment by delivering the mail to Mr. Frit-schen; 2) Ms. Riccio has not sought the return of the mail in these proceedings; and, 3) the plaintiffs have informed us that no further documents are needed from Ms. Riccio and that there will be no documents for Ms. Riccio to sign at any time in the future.

We now explain our ruling in more detail.

I

We begin by discussing briefly the background facts first and then this matter’s procedural history.

A

The facts underlying this matter concern numerous complex, convoluted, and hotly disputed commercial transactions concerning the ownership of Camillus, a limited liability company which owned the license to operate a failing, debt-ridden long term acute care hospital. These underlying disputes are not wholly | ¡¡germane to the issues before us today, and no part of our decision is dependent upon their resolution. We must, nevertheless, briefly recount the underlying facts for purposes of context.

The plaintiffs are Camillus and CCSH Creditor Protection Corporation. The ownership of the membership interest in Camillus is disputed. CCSH is a corporation which was apparently formed for the purpose of acquiring ownership of all the outstanding membership interest in Camil-lus. The sole defendant is Ms. Riccio who represents Charles Matthews who, Ms. Riccio reports, claims to be the sole member of Camillus or the owner of the membership interest.

The plaintiffs assert that in August 2012, Camillus’ parent limited liability company, whose manager is Dan Daigle, sold on credit all of its membership interest in Camillus to Lazarus Health Care, L.L.C., whose manager is Mr. Matthews. The note was secured by the membership interests in Camillus. In December 2012, Camillus assigned the note with security to plaintiff, CCSH Creditor Protection Corporation, which, according to Ms. Riccio, is owned by Mr. Daigle and formed specifically to reacquire Camillus. CCSH’s president is James Fritschen, a business associate of Mr. Daigle. The plaintiffs assert that Lazarus failed to timely pay the note. There was a — now disputed — creditor’s sale of Camillus in January, 2013 at the office of plaintiffs’ attorneys, where CCSH purchased the membership interest in Camillus. CCSH then removed Mr. Matthews as manager of Camillus and appointed Mr. Fritschen to be the new sole manager.

Lin the meantime, Ms. Riccio had been hired in September 2012 to represent Camillus in connection with an eviction proceeding and continued to represent Camillus until March 2013. She was hired by Mr. Matthews, with the alleged assent of Mr. Daigle, who was named in the eviction proceeding as a personal guarantor of a portion of the rent.

Ms. Riccio asserts that in December 2012 Mr. Fritschen asked her on several occasions to send her assistant to Mr. Dai-gle’s offices to collect mail which belonged to Camillus. Ms. Riccio complied and her assistant collected Camillus’ mail and took it to Ms. Riccio’s office. Beginning in January 2013, and again in March 2013, Camillus’s “new” membership interest asked Ms. Riccio to deliver the mail she was holding to Mr. Fritschen or Mr. Dai-gle. Maintaining that the January 2013 creditor’s sale was a sham and that Mr. Matthews, her client, was still the rightful owner and manager of Camillus, Ms. Ric-cio refused.

B

Plaintiffs then filed a petition for writ of quo warranto and a request for a preliminary injunction on April 18, 2013. The plaintiffs’ petition, specifically, sought an order to direct Ms. Riccio to show by what authority she claimed to hold a corporate office in Camillus and to compel Ms. Riccio by a mandatory injunction to return the Camillus mail held at her office. Ms. Ric-cio responded by filing exceptions of no right of action, no cause of action, lack of personal jurisdiction, and improper join-der. Ms. Riccio also objected to the proceedings on the grounds that Camillus’ present attorneys must be recused (or disqualified) because of a | r,conflict of interest and on the grounds that Mr. Fritschen lacks capacity to act on behalf of Camillus. The district judge conducted hearings on plaintiffs’ petition on May 24 and 31, 2013. The parties were allowed to introduce evidence and testimony. Instead of arguing that Ms. Riccio had usurped one of Camil-lus’ corporate offices, the plaintiffs asserted that the writ of quo warranto should be granted because Ms. Riccio was exercising corporate powers. Ms. Riccio denied having any pretense to corporate office with Camillus and instead asserted: “My client, Charles Matthews, alleges that he is the owner of the mail because he is the owner of Camillus, and this is Camillus’ mail.”

At the close of the May 31, 2013 hearing, the district judge ruled in favor of the plaintiffs and ordered Ms. Riccio to return the mail to Mr. Fritschen. The resulting judgment declared that Ms. Riccio “does not have any right or authority to act on behalf of Camillus Specialty Hospital, L.L.C. and does not hold any office within that company.” The judgment contains no decretal language granting specifically the plaintiffs’ request for a mandatory injunction, although it directs Ms. Riccio to return the mail to Mr. Fritschen, places a continuing obligation upon Ms. Riccio to forward to Mr. Fritschen any property of Camillus that she may acquire in the future, and compels her to “sign any papers necessary to effectuate any transfer of property of Camillus Specialty Hospital, L.L.C. to Mr. Fritschen.” Ms. Riccio returned the mail to Mr. Fritschen on June 10, 2013, and filed a petition for devolutive appeal on June 20, 2018.

_kH

In this Part we explain why we reverse the district judge’s granting of the plaintiffs’ request for a writ of quo warranto. We begin our analysis by first discussing the law applicable to writs of quo warran-to, and then analyze the district court’s judgment in light of these principles.

A

The writ of quo warranto directs “an individual to show by what authority he claims or holds public office, or office in a corporation, or directing a corporation to show by what authority it exercises certain powers.” La. C.C.P. art. 3901.

Here, of course, we are considering office in a limited liability company, but note that Article 3901 is equally applicable or available to limited liability companies. See La. R.S. 12:1303 A (“All limited liability companies ... shall have the powers, rights, and privileges provided for a corporation organized under the Business Corporation Law”).

The writ of quo warranto is narrow in scope and is to be given only a limited use, which is to prevent usurpation of office or of powers. See Menard v. City of New Orleans Enforcement and Hearings Bureau, 12-1161, p. 6 (La.App. 4 Cir. 1/18/13), 108 So.3d 340, 344. In a quo warranto action, the individual defendant has the burden of showing by what authority he or she claims to hold office. Id., p. 4,108 So.3d at 343.

The relief to be granted by a writ of quo warranto is also limited. When a court finds that a person is holding or claiming office (whether public or corporate) |7without authority, the judgment shall forbid him from doing so. See La. C.C.P. art. 3902. A court, in such a situation, may also declare who is entitled to the office and may direct that an election be held when necessary. Id. When a court finds that a corporation is exceeding its powers, the judgment shall prohibit it from doing so. Id. Given the narrow, limited nature of the writ, the provisions of Article 3902 set out the exclusive means of relief allowable on an application for a writ of quo warranto. See Plaquemines Parish Council v. Petrovich, 629 So.2d 1322, 1326 (La.App. 4 Cir.1993); Hyde v. Hyde, 590 So.2d 727, 732 (La.App. 3 Cir.1991).

B

Having reviewed the record, we conclude that the district judge improvidently granted the plaintiffs’ petition for writ of quo warranto.

As we earlier stated in the introduction, no one argued that Ms. Riccio was holding an office in Camillus. Ms. Riccio, throughout the entirety of these proceedings, has likewise disclaimed any pretense to holding any type of corporate office in Camil-lus. She has, however, maintained consistently by way of pleadings, oral statements made during the hearings to the district judge, and affidavits introduced into evidence that her actions were undertaken solely in the capacity as retained counsel to both Camillus and Mr. Matthews. Indeed, the plaintiffs do not now claim that Ms. Riccio usurped one of Camillus’ corporate offices.

IsRather, the plaintiffs’ justification for the issuance of the writ of quo warranto is their assertion that Ms. Riccio was improperly exercising corporate powers. The district judge, also noting that Ms. Riccio does not hold corporate office, nevertheless granted the writ after concluding that Ms. Riccio “does not have any right or authority to act on behalf of Camillus.”

There is, accordingly, no dispute as to whether Ms. Riccio had usurped one of Camillus’ corporate offices — it is clear that she did not. Thus, we review the complained-of quo warranto judgment de novo, as a question of law, and afford no deference to the district judge’s legal conclusions.

The controversy actually concerns Ms. Riccio’s authority to possess, as legal counsel, Camillus’ mail. The writ of quo warranto was erroneously granted in this case because a court is not authorized to issue a remedy under quo warranto relating to the individual exercise of alleged corporate authority. We first note that the clear language of Article 3901 limits a court’s review of scope of authority questions to whether a given corporation has authority to exercise certain powers. Similarly, in both Menard and Petrovich, we clarified the challenge of a writ of quo warranto contemplated by Article 3901. In Menard, the plaintiff sought a writ of quo warranto relating to the scope of several appointed city government officials to issue stop work orders. In Petrovich, a writ of quo warranto was sought relating to the scope of the parish president’s powers over the control and operation of the parish Port District.

|9We stated in Petrovich that Article 3901 contemplates a challenge to (1) the authority of one to claim or hold a public office; (2) the authority of one to claim or hold an office in a corporation; and (3) the authority of a corporation to exercise certain powers. 629 So.2d at 1326. We noted that Article 3901 makes no mention of a challenge to the exercise of powers by one lawfully holding public office. Id. Article 3902, we declared, only provides for remedies “when (1) the court finds that a person is holding or claiming a public or corporate office without authority; and (2) the court finds that a corporation is exceeding its powers.” Id. We then held that “[a] court is not authorized to issue a remedy under quo warranto relating to the exercise of powers by one lawfully holding public office.” Id. Likewise, in Menard we concluded, after citing to Petrovich, that the plaintiffs request in that case “went beyond a challenge to the authority of one who claims or holds a public office.” 12-1161, p. 7,108 So.3d at 345.

While the plaintiffs’ petition here seeks to test by what authority Ms. Riccio exercises certain corporate, as opposed to governmental, powers, we can see no reason why our conclusions in both Menard and Petrovich would not be applicable to the controversy before us today. Accordingly, we conclude that it was legal error for the district judge to issue the writ of quo warranto judgment in this case because courts cannot, within the confines of a quo warranto action, issue a remedy relating to the individual exercise of alleged corporate authority. Therefore, the judgment granting the writ of quo warranto must be reversed, recalled, and vacated.

JifiHI

Lastly, we address Ms. Riccio’s request for a reversal of the compulsory aspects of the eomplained-of judgment. Again, as we stated in the introduction, we pretermit deciding the mandatory, or compulsory, aspects of the complained-of judgment. Developments after the rendition of the judgment have rendered the'mandatory or compulsory provisions of the judgment moot and we will not decide moot issues.

Counsel for plaintiffs has notified us in writing that: 1) Ms. Riccio has complied with the judgment by delivering the mail to Mr. Fritschen; 2) no further documents are needed from Ms. Riccio; and 8) there will be no documents for Ms. Riccio to sign at any time in the future. Additionally, Ms. Riccio has not sought the return of the mail in these proceedings.

A moot case is one which seeks a judgment or decree which, when rendered, can give no practical relief. See Church Mut. Ins. Co. v. Dardar, 12-0659, pp. 6-7 (La.App. 4 Cir. 6/26/13), 119 So.3d 967, 972. It is well established that appellate courts will not render advisory opinions from which no practical results can follow. See United Teachers of New Orleans v. Orleans Parish School Board, 355 So.2d 899, 900 (La.1978). As a result, Courts have established the rule that moot questions will not be considered on appeal. See Schwegmann Family Trust No. 2 v. White III, L.L.C., 11-0611, p. 13 (La.App. 4 Cir. 9/30/11), 76 So.3d 1228, 1236. So strong is this prohibition that an appellate Court, as a matter of judicial economy, has a right to consider the possibility of mootness on its own motion and 1 nto dismiss the appeal if the matter has become moot. See, e.g., Whitney Nat. Bank of New Orleans v. Poydras Center Associates, 468 So.2d 1246, 1248 (La.App. 4 Cir.1985). Although the district court’s judgment did not specifically grant the plaintiffs’ request for injunctive relief, the remedies provided in the judgment tracked the requests made by the plaintiffs with respect to their request for injunction. In cases concerning injunctive relief, it is clear that when the activity which a plaintiff seeks to enjoin has already occurred during the pendency of the suit, the matter is moot and the propriety of the trial court’s action in denying or granting the injunction will not be considered by the reviewing court. See City Stores Co. v. Gervais F. Favrot Co., Inc., 315 So.2d 370 (La.App. 4th, Cir.1975).

This rule was succinctly stated by the Supreme Court in Verdun v. Scallon Brothers Contractors, Inc., 263 La. 1073, 270 So.2d 512 (1972). In that case an injunction was sought to prevent a contractor from trespassing on plaintiffs property to remove soil for the purpose of repairing an adjacent levee. By the time the Supreme Court considered the matter, all construction activities had ceased. The Supreme Court dismissed the appeal stating: “In such circumstances, the matter is now moot, as this court will not review a case where only injunctive relief is sought when the need for that relief has ceased to be a justiciable issue.” Id., 270 So.2d at 513. An injunction, the Court noted, may be used “to prevent but not to correct the wrong; it cannot be employed to redress an alleged consummated wrong or undo what has already been done.” Id. While we do not dismiss this matter as moot— because we reverse, recall, and vacate the judgment granting theJjjwrit of quo war-ranto — we will not address Ms. Riccio’s assignments of error with respect to the mandatory aspects of the district court’s judgment because these issues are now moot.

DECREE

The judgment granting the writ of quo warranto directed to Marie Riccio, attorney, is reversed, recalled, and vacated. All costs of these proceedings are taxed to the appellees. See La. C.C.P. art. 2164.

REVERSED AND RENDERED.


author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Nathaniel N. SIPPIO.
    No. 2013-KA-0206.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 30, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appellant, State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project New Orleans, LA, For De-fendanVAppellant.
    Court composed of Judge DENNIS R. BAGNERIS, SR., JUDGE EDWIN A. LOMBARD, Judge JOY COSSICH LOBRANO.
   EDWIN A. LOMBARD, Judge.

hThe defendant, Nathaniel Sippio, appeals his conviction for armed robbery, a violation of La.Rev.Stat. 14:64, raising two assignments of error: (1) the evidence is insufficient to support the conviction; and (2) he was denied a fair trial due to the State’s improper comments during its rebuttal argument. The State also appeals, arguing that the trial court erred in refusing to impose a greater sentence based on the use of a firearm in the armed robbery. After review of the record in light of the applicable law and arguments of the parties, we affirm the defendant’s conviction and sentence.

Relevant Facts and Procedural History

On July 25, 2011, Dwayne Russ was robbed in his apartment at 1716 South Saratoga Street in New Orleans, Louisiana. Mr. Russ, who was confined to a wheel chair at the time of the robbery, immediately called 911 and reported the robbery.

On November 2, 2011, by bill of information, the defendant was charged with one count of armed robbery using a firearm, a violation of La.Rev.Stat. 14:64.3. He was arraigned, pleaded not guilty, and at the subsequent conclusion of his two-day trial on July 24, 2012, was found guilty of the lesser offense of armed | ¡.robbery by a twelve-person jury. On August 15, 2012, the trial judge sentenced him to serve twelve years at hard labor without benefit of parole, probation, or suspension of sentence.

Defendant’s Assignment of Error 1

In challenging the sufficiency of the evidence, the defendant does not dispute that an armed robbery occurred; he argues only that the State failed to show beyond a reasonable doubt that he was one of the perpetrators.

Applicable Law

In reviewing a sufficiency of the evidence claim, we must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984); see also La.Code Crim. Proc. art. 821 (“A post verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty”).

Pursuant to La.Rev.Stat. 14:64, an “[ajrmed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another by use of force or intimidation, while armed with a dangerous weapon.” When, as in this case, the key issue is the defendant’s identity as the perpetrator, rather than whether the crime was committed, the state is required to negate any reasonable probability of misidentification. State v. Dorsey, 2010-0216, p. 43 (La.9/7/2011), 74 So.3d 603, 633 (citation omitted). Notably, a positive identification by a single witness is sufficient to support a conviction and, accordingly, the testimony of a victim or witness alone is usually sufficient to | ..¡support the verdict, as appellate courts will not second-guess the credibility determinations of the fact finder beyond the constitutional standard of sufficiency. Id., 74 So.3d at 633. Therefore, “[i]n the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the fact-finder, is sufficient support for a requisite factual conclusion.” Id., pp. 43-44, 74 So.3d at 634 (citation omitted).

Relevant Facts

The following evidence was adduced at the defendant’s trial.

Detective Jonathan Bulliung of the New Orleans Police Department (NOPD) testi-fled that he arrived at Mr. Russ’s apartment shortly after the robbery. He met with Mr. Russ (who was confined to a wheelchair), Charles Berry (Mr. Russ’s brother and neighbor), as well as the officers who initially responded to the 911 call reporting the robbery. He saw a rifle and sweatshirt on the couch in Mr. Russ’s living room that Mr. Berry stated was abandoned by the gunman in the robbery.

Mr. Russ related to Detective Billiung that three men had broken into his apartment; one of them brandished a gun, the second man demanded his property, and the third simply watched. According to Mr. Russ, the first man held a gun to his head while the second rifled through his pockets. The three men left the apartment with Mr. Russ’s cell phone, approximately $80.00, some Xanax pills, and a pack of cigarettes. Mr. Russ did not specifically identify the robbers by name but stated that he had previously seen them in his neighborhood. Mr. Russ described the robber who searched him and did all the talking (subsequently identified as the defendant in this case) as a slim African-American male, twenty to twenty-three years old, with dreadlocks. He described the gunman as a fat | ¿African-American male in the same age range with short hair. Based on these descriptions and other unspecified information, Detective Bulli-ung concluded that the defendant (Sippio) was the likely perpetrator who physically searched Mr. Russ while Davonte Thirsty was the likely gunman. Accordingly, he subsequently compiled a photographic lineup including the defendant’s photograph and showed it separately to Mr. Russ and Mr. Berry separately at the Sixth District police station. Mr. Russ did not identify anyone in the lineup (although according to Detective Billiung his “eyes widened” when he saw the defendant’s photograph), but Mr. Berry identified the defendant as one of the men he saw running from his brother’s house after the robbery.

Based on Mr. Berry’s identification, an arrest warrant was issued for the defendant. Two days later, he was arrested during an unrelated traffic stop and taken to the Sixth District police station where he was questioned by Detective Billiung. After being advised of his Miranda rights, the defendant first denied any knowledge of the robbery, insisting that he was with his girlfriend on the Westbank at the time it occurred. His girlfriend failed to confirm this alibi, denying to Detective Bulli-ung that she was with the defendant at the time of the robbery. Subsequently, the defendant admitted under further questioning by Detective Bulliung that he was in the area of the robbery during the pertinent time period but insisted he was not one of the perpetrators and had only heard of the incident when some men tried to sell him Xanax pills taken in the robbery. Detective Bulliung stated that no one had informed the defendant that Xa-nax pills had been stolen during the robbery.

|sThe defendant was then transported to Central Lockup and made a statement to the transporting officer that, when relayed to Detective Billiung, resulted in a compilation of a second photographic lineup’ that included Mr. Thirsty. Mr. Russ did not identify Mr. Thirsty but Mr. Berry identified him as “Fat Boy,” a man he knew from the neighborhood and the man he saw carrying a gun from Mr. Russ’s apartment immediately after the robbery.

On cross-examination, Detective Bulli-ung related that Mr. Berry lived nearby and spotted the three men fleeing his brother’s apartment from the distance of approximately three houses. He conceded that the defendant never admitted to participating in the robbery and that defendant’s home address was not in the area of the robbery. He also conceded that the defendant was not in possession of any of the stolen property when he was arrested and there was no indication that he had used the stolen cell phone. On redirect, Detective Bulliung confirmed that the defendant’s girlfriend told him she had last seen the defendant on the afternoon of the robbery about 4 p.m. at the corner of Terpsichore and Prytania Streets, approximately a mile from the victim’s apartment, and that the robbery occurred at approximately 5:30 p.m.

Erin Williams, a NOPD complaint officer and custodian of recordings made of 911 calls, identified the recording of Mr. Russ’s 911 call. In the call, which was played for the jury, Mr. Russ stated that ■ he was afraid and that the perpetrators could still be in the area.

Officer Jeffery Yount, one of the arresting officers, also testified. According to Officer Yount, he and his partner conducted a traffic stop on a vehicle in which the defendant was a rear-seat passenger. After the occupants of the car filled out field interview cards, Officer Yount recognized the defendant’s name as one he Rhad heard during roll call. Accordingly, Officer Yount frisked the defendant and placed him in the back of the police unit while he confirmed the arrest warrant. After issuing traffic citations to the driver of the stopped vehicle, Officer Yount returned to the defendant and advised him of his Miranda rights. The defendant indicated he understood his rights and was taken to the Sixth District police for questioning by Detective Bulliung. Officer Yount testified that he was present for most of the questioning, during which the defendant initially denied any involvement in the robbery and then admitted that he was in the area but was not involved in the robbery. However, when he later asked the defendant who was involved in the robbery, the defendant provided the name “Davonte.”

On cross-examination, Officer Yount conceded that no Xanax pills were recovered from the vehicle. Although Officer Yount could not recall how much money the defendant had when arrested or if he had a pack of cigarettes, he confirmed that his report described the defendant as 5'5" and 135 pounds with a given address of 2606 Gravier Street. Officer Yount further confirmed that the defendant mentioned the name “Davonte” only after Detective Bulliung left the room. Finally, Officer Yount agreed that the defendant never admitted that he was one of the robbers or that he had ever entered the victim’s apartment.

Mr. Berry also testified. He stated that his brother was paralyzed at the time of the robbery and had died five months before trial. According to Mr. Berry, in July 2011 he lived at 1630 S. Saratoga, about three houses and a street apart from his brother’s apartment. He admitted he had three prior convictions for burglary, as well as ones for theft and possession of stolen goods, but pointed out that he had not been incarcerated since 1997.

|7On the day of the robbery, Mr. Berry exited his house and looked toward his brother’s apartment. He saw three men leaving his brother’s front door rapidly, removing shirts that had covered their heads as they exited the apartment; one of the men had a gun. Mr. Berry yelled at the men and they fled, two of the men ran down the right side of his brother’s apartment and the man with the gun ran down the left side of the house. Accordingly, Mr. Berry ran to his brother’s apartment to check on him. Mr. Russ told Mr. Berry that he had been robbed, that the robbers put a gun to his head, and that the robbers had taken his pills, money, and cell phone. After telling his brother to call the police, Mr. Berry went outside to check around the building where he had seen the gunman running. He first found the sweatshirt discarded by the gunman on a neighbor’s trash can at the front of the gate to the backyard. Mr. Berry then checked the backyard where he found the rifle lying in the neighbor’s yard on the other side of the fence. Mr. Berry took the sweatshirt and rifle into his brother’s apartment.

Mr. Berry testified that he recognized the gunman, who was the first robber out the door, as well as the second robber out the door as men he had seen in the neighborhood. He knew the gunman as “Fat Boy” or Davonte, a man who lived at South Saratoga and Terpsichore. Mr. Berry then positively identified the defendant in the courtroom as the second robber he saw leaving the apartment. Mr. Berry stated that, although he had seen the defendant in the neighborhood, he did not think the defendant lived in the area. He did not know the third robber. He estimated that he was twenty feet from the robbers as they fled the house.

Mr. Berry reiterated on cross-examination that the only one he saw with a gun was “Thirsty.” He said that when he described the gunman to the police, he identified him by the name “Fat Boy.” Mr. Berry denied drinking on the day of |strial and, although he had been arrested for public drunkenness, denied any convictions for that offense. Mr. Berry stated that he did not give the officers a physical description of the robbers, but admitted that he told them that the robber with the dreadlocks (who he identified as the defendant) drove a gray car that was parked on the corner and that he gave the officers the car’s license plate number. On redirect, Mr. Berry explained that the description that he gave of the second robber, subsequently identified as the defendant, was that he was slim and had dreadlocks. He insisted that he had no doubt that the second robber was the defendant because the robbery occurred during daylight hours and nothing obstructed his view of the robbers leaving his brother’s apartment.

Finally, James Huey testified that part of his job with the Orleans Parish Sheriffs Office was to retrieve the recordings of all calls made by inmates at the prison. He testified that each time an inmate makes a phone call, he must give his folder number, and that folder number is only valid in the area where that inmate is being held. Accordingly, he identified the call detail report assigned to the defendant’s folder number for calls made by the defendant on July 28, 2011, reflecting that on the day he was booked into Central Lockup, the defendant made three calls. The recordings of these calls were played for the jury.

Discussion

A review of the evidence present at trial clearly establishes that three men, one with a firearm, entered the victim’s home and robbed him of Xanax pills, | ¡¡money, a cell phone, and a pack of cigarette. Most importantly, a witness (Mr. Berry) positively identified the defendant in a photographic lineup soon after the robbery and again at trial as one of the three men who exited his brother’s apartment immediately after the robbery.

The defendant argues that this eyewitness identification is not reliable because Mr. Berry only briefly saw the robbers as they fled the scene of the crime. In addition, he takes exception to Mr. Berry’s estimate that he was only twenty feet from the robbers, arguing that this is incorrect because Mr. Berry testified that he first saw the robbers exit his brother’s apartment as he was leaving his own house which is, in fact, a few houses, a vacant lot, and a street away from his brother’s apartment. Finally, he asserts that Mr. Berry testified that it took him three to five minutes to run from his house to his brother’s apartment. This last assertion is a misstatement of the facts, however, as Mr. Berry’s testimony was that he did not know how long it took him to get to his brother’s apartment, but it “wasn’t maybe about five to three minutes or something like that, you know, from across the street.” [emphasis added]. Moreover, although Mr. Berry’s estimate as to the exact distance may be erroneous, he was clearly close enough to the robbers to immediately recognize the defendant and the gunman as men he had seen in the neighborhood and, importantly, the jury clearly found Mr. Berry’s testimony and identification of the defendant credible.

The defendant also points to the fact that the victim did not give the police his name as one of the robbers or identify him in the photographic lineup. However, the testimony of one witness is sufficient to support a conviction. Moreover, in light of Mr. Russ’s statement in the 911 call that he was afraid and that the perpetrators could still be in the area, it is noteworthy that Detective |inBulIiung observed Mr. Russ’s eyes widening when he saw the defendant’s photograph in the lineup, suggesting perhaps the Mr. Russ recognized the defendant but was afraid to identify him.

Finally, the defendant points out there is no physical evidence to tie him to the robbery and that he never admitted being involved in the robbery; that the descriptions given by the victim and Mr. Berry were consistent but “somewhat vague;” and the car Mr. Berry reported to the officers as belonging to the robbers was never linked to him.

As previously noted, the identification by one witness (in this case, Mr. Berry) is sufficient to support the conviction. The lack of physical evidence does not exonerate the defendant or render Mr. Berry’s identification of him invalid. Moreover, although Mr. Berry saw the robbers for only a short time, he recognized the defendant as someone he had previously seen in the neighborhood. In addition, given that the first robber to run out the door of his brother’s apartment was carrying a gun and wearing a shirt around his head, one can reasonably conclude that Mr. Berry’s degree of attention was acute. As Mr. Berry stated, it was daylight and there was nothing to obstruct his view of the three robbers running out of his brother’s apartment removing shirts wrapped around their heads. In addition, Mr. Berry identified the defendant in a photographic lineup shortly after the robbery. Thus, under these circumstances, evidence is sufficient to support the jury’s finding that the State negated any possibility of misidentification and thereby proved beyond a reasonable doubt that the defendant was one of the men who armed robbed Mr. Russ and, therefore, viewed in the light most favorable to the prosecution, the evidence clearly supports the defendant’s conviction. This assignment of error is meritless.

| n Defendant’s Assignment of Error 2

In his second assignment of error, the defendant argues that he was deprived of a fair trial by the prosecutor’s improper comments during closing arguments. Specifically, the defendant points to the prosecutor’s references in rebuttal argument on race, defense counsel’s attempt to manipulate evidence, and evidence to which Detective Bulliung did not testify.

Applicable Law

Article 774 of the Louisiana Code of Criminal Procedure provides that the scope of closing argument “shall be confined to the evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.” Article 774 further provides that closing argument “shall not appeal to prejudice,” and the State’s rebuttal argument “shall be confined to answering the argument of the defendant.” La.Code Crim. Proc. art. 774. In addition, a prosecutor should refrain from making personal attacks on defense strategy and counsel. State v. Manning, 2008-1982 (La.10/19/04), 885 So.2d 1044 (citations omitted). Mistrial is a drastic remedy, however, and the determination of whether prejudice to the defendant has resulted from the prosecutor’s comments lies in the sound discretion of the trial judge. State v. Draughn, 2005-1825, p. 44 (La.1/17/07), 950 So.2d 583, 614; see also State v. Prestridge, 399 So.2d 564, 580 (La.1981) (a trial judge has broad discretion in controlling the scope of closing argument). On appellate review, even once it has been determined that a prosecutor’s argument has exceeded the scope of Article 774 or is deemed improper, in determining whether such error was prejudicial, the previewing court must credit the jurors who heard the evidence with good sense and fair-mindedness. State v. Williams, 96-1023 (La.1/21/98), 708 So.2d 703.

Relevant Facts

The prosecutor’s rebuttal argument is necessarily viewed in the context of defense counsel’s closing argument. In this case, defense counsel set forth in detail what he considered to be shoddy police work in his closing argument. He pointed to the victim’s inability to identify the defendant as one of the robbers and to the fact that, in his statements to the police, the defendant never admitted to being one of the robbers. Defense counsel also attempted to cast doubt on Mr. Berry’s ability to recognize the defendant, speculating that, based on his prior arrests for public drunkenness, Mr. Berry was probably under the influence of alcohol when he saw the robbers leave his brother’s apartment. Next, in speaking about the composition of the lineup containing the defendant’s photograph, defense counsel pointed out that the description given by the police included the robber’s height, weight, skin color, and hair color. Defense counsel then asked the defendant to stand next to him and stated:

I can see that he is a young black male, rather on the slim side. But to me he looks pretty average, all right. Thousands of young black males are in New Orleans that look like this kid. Thousands of them.

Defense counsel then noted that the detective used these physical characteristics, including skin color, to compile the photo lineup, stating:

Just to plug an individual’s physical characteristics into a computer system’s database and it pops up with a bunch of black males, it doesn’t work like that. Or, at least, it’s not supposed to. And that’s reasonable doubt. It’s reasonable doubt if you just base this solely off an individual’s physical characteristics. Think about that. Think about that.

h3In rebuttal to defense counsel’s argument, the prosecutor recounted Mr. Berry’s testimony as to what he saw, his recovery of the weapon, and his identification of the defendant in the photographic lineup. The following then occurred:

MS. REED [THE PROSECUTOR]:
Now, pay attention to this because it’s another way that Defense counsel is trying to manipulate testimony.
He would have you believe that all that the information — the only information that the officer was presented with was a height description, a weight description. I guess he doesn’t want you to forget a black person. And that’s about it for Mr. Sippio. The officer said time and time again, I even wrote it down, “and other information.” Other information. He wasn’t permitted to talk about that information, but other information. Mr. Shlosman [defense counsel] knows that.
MR. SHLOSMAN [DEFENSE COUNSEL]:
Objection, Judge.
MS. REED:
And, so, armed—
THE COURT:
Overruled.
MS. REED:
Armed with other information, in addition to physical characteristics, he didn’t put Mr. Sippio’s name in some system to come up with young black boys who were in the neighborhood. This was not some rogue attempt on behalf of the New Orleans Police Department, nor is it an attempt on behalf of the District Attorney’s Office because it would be us acting, I assume, to put an innocent black man, because Mr. Sip-pio — I’m sorry, Mr. Shlosman doesn’t want you to forget that this is about a black man. That’s not what this is about.
MR. SHLOSMAN:
Judge, I never said anything about a black man.
J^MS. REED:
You talked about him being a black man all day.
THE COURT:
Overruled. Again, the Jury will rely on its memory. And, again, the statements made by the attorneys are not evidence.
MS. REED:

That’s prejudice, an attempt to put that in here, put a little racial element in it for you. That’s not what this case is about. A crime was committed, a person saw him, he identified somebody, police officers get information, they show a photographic lineup, he says that’s the person who I saw leaving out of my brother’s residence. That’s what this is about. Don’t get lost in all of the other things that he’s asking you to invite into this.

Discussion

The defendant first argues that he was deprived of a fair trial because the prosecutor referred to “other evidence” not introduced at trial. He speculates that the prosecutor’s reference was to information gleaned at the pretrial suppression hearing where Detective Bulliung testified that Mr. Berry recognized the defendant because the defendant had been arrested a few weeks prior to the robbery for possession of a firearm. However, this speculation is gratuitous because Detective Bulliung mentioned “other evidence” at least three times during trial: once during direct examination, once during cross-examination, and again during redirect. Notably, defense counsel not only failed to object to the detective’s brief references to the “other evidence” in the detective’s direct and redirect examination but, in fact, elicited testimony from the detective on cross-examination that he had used other information besides the description given by Mr. Berry and Mr. Russ to compile the photographic lineup with the defendant’s photograph. Specifically, defense counsel asked Detective Bil-liung: “And, based on that description, you | iBwere able to locate a picture of Mr. Sippio, correct?” To which Detective Bul-liung responded: “Not based off that information alone. There were other things.”

In his brief before this court, the defendant speculates that the prosecutor’s reference to “other evidence” in rebuttal argument may have led the jury to believe that defense counsel kept the jury from finding out other information that would have prejudiced the defendant, possibly that he had prior convictions or that there were other witnesses whose testimony could have harmed him. This is pure supposition on appellate counsel’s part. Clearly, in light of Detective Bulliung testimony that that he had other evidence when he compiled the lineup and defense counsel’s closing argument that the lineup was the product of only the description given by the victim and his brother, the prosecutor’s comment in rebuttal argument about “other evidence” was a comment on a fact elicited at trial and was in response to defense counsel’s argument.

Next, the defendant points to the prosecutor’s statement concerning defense counsel “manipulating the evidence.” However, defense counsel failed to object to this statement during trial and, therefore, any error related to this comment is not preserved for appeal. See La.Code Crim. Proc. art. 841 (a defendant must make a contemporaneous objection in order to preserve an alleged error for review); see also State v. Taylor, 91-2496, p. 5 (La.App. 4 Cir. 3/29/94), 635 So.2d 416, 420 (contemporaneous objection rule exists so error may be corrected at the time it is made and also “serves notice in the record that the complained of conduct was so noticeable as to create prejudice in the minds of the jurors”).

Finally, the remaining comment in the prosecutor’s rebuttal argument to which the defendant objects pertains to the prosecutor’s allegation that defense counsel brought race into his closing argument. As indicated in the quoted |; fiportions of the transcript, defense counsel had the defendant stand next to him during the part of his closing argument concerning the photographic lineup and pointed out that the defendant was a black man whose description would fit thousands of other black men in the area. Thus, the prosecutor was not incorrect in her assertion that defense counsel had raised the issue of race in his argument; defense counsel’s argument was clearly aimed at showing that the description would have matched many black males in the area. This assignment of error has no merit.

State’s Assignment of Error

By its sole assignment of error, the State asserts that the trial court erred by denying its motion to sentence the defendant in accordance with La.Rev.Stat. 14:64.3, armed robbery committed with a firearm, which mandates an additional five years at hard labor for an armed robbery that involved a firearm. The State acknowledges that the defendant was originally charged with a violation of La.Rev. Stat. 14:64.3 and that the jury returned the lesser verdict of armed robbery which does not require the imposition of an additional five years to the defendant’s sentence. Nonetheless, the State argues that the trial court should have taken into consideration that the evidence showed that the defendant’s co-defendant (Mr. Thirsty) was armed when the men robbed the victim. Thus, the State argues that the defendant’s twelve-year sentence is illegally lenient because he was subject to a minimum ten years imprisonment for the armed robbery, plus an additional five years because a firearm was used in the commission of the robbery.

Applicable Law

After briefs were filed in the appeal, the United States Supreme Court rendered its decision in Alleyne v. United States, — U.S.-, 133 S.Ct. 2151, 186 L.Ed.2d 314 |17(2013), which held that factors which increase the mandatory minimum sentence must be submitted to the jury. Specifically, Alleyne held that because mandatory minimum sentences increase the penalty for a crime, it necessarily follows that “any fact that increases the mandatory minimum is an element’ that must be submitted to the jury.” - U.S. at -, 133 S.Ct. at 2155.

Discussion

In this case, the defendant was indicted for armed robbery with a firearm under the enhanced penalty provision of La.Rev. Stat. 14:64.3. The jury, however, convicted him only of armed robbery, a violation of La. 14:64, which does not include the enhanced penalty provision for use of a firearm during the armed robbery. Thus, as in Alleyne, the jury did not find that the State proved beyond a reasonable doubt the element that would increase the mandatory minimum the defendant would receive. Therefore, the trial court did not err in denying the State’s motion to increase his sentence based on the use of a firearm in the robbery. The State’s assignment of error has no merit.

Conclusion

After review of the assignments of error put forth by the parties in light of the applicable law, as well as our own independent review for errors patent, we affirm the defendant’s conviction and sentence.

AFFIRMED.

      . Mr. Thirsty was charged and, after pleading guilty to armed robbery, was sentenced to serve ten years at hard labor without benefit of parole, probation, or suspension of sentence.

      . The record before this court does not contain the CD of the recording, but references to the calls in closing arguments indicate that in the first call, the defendant told the recipient of the call that he had been arrested for an armed robbery charge, but it had been "the little dudes around the way" that had done it, and he was not going to "rat” them out. In a later call, however, the defendant spoke with a different person and described where to find the pills that he had hidden in the car in which he had been riding when he was arrested and at another location near a house.


author: JAMES F. McKAY III, Chief Judge.

text:
    STATE of Louisiana v. Brad J. CANDEBAT.
    No. 2013-KA-0780.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 30, 2014.
    John F. Rowley, District Attorney, Walker H. Drake, Jr., Assistant District Attorney, 34th Judicial District Parish of St. Bernard, Chalmette, Louisiana, for State of Louisiana.
    John Joseph Finckbeiner, Jr., Renee L. Swanson, Finckbeiner & Robin, Chal-mette, Louisiana, for Brad J. Candebat.
    (Court composed of Chief Judge JAMES F. McKAY III, Judge MAX N. TOBIAS, JR., Judge MADELEINE M. LANDRIEU).
   JAMES F. McKAY III, Chief Judge.

hThe defendant appeals the judgment of the trial court denying his motion to suppress the evidence. After a review of the record before us, we find that the trial court erred in denying Brad Candebat’s motion to suppress the evidence. Therefore, we reverse the trial court’s judgment, grant the defendant’s motion to suppress the evidence, and vacate his guilty plea and sentence.

STATEMENT OF CASE

The State filed a bill of information charging the defendant, Brad Candebat, with possession of a controlled dangerous substance, amphetamine, a violation of La. R.S. 40:967. On June 15, 2011, the defendant was arraigned and pleaded not guilty. On August 4, 2011, the defendant filed a motion for discovery, as well as a motion to suppress the evidence and motion for a preliminary hearing. On October 10, 2011, the defendant waived his right to a jury trial and elected a bench trial. On December 12, 2011, a motions hearing was continued to the trial date, April 18, 2012. On that date the motions hearing and the trial were continued to August 27, 2012. On August 23, 2012, the defendant filed a memorandum in support of the motion to suppress the evidence. On August 27, 2012, a hearing on the motions was held; the trial court denied the motion to suppress the evidence and set trial on |2F ebruary 19, 2013. The defendant sought supervisory review, and this Court denied the writ. State v. Candebat, 2012-K-1542, unpub. (La.App. 4 Cir. 2/7/13). On February 19, 2013, the defendant withdrew his not guilty plea and pleaded guilty under State v. Crosby, 338 So.2d 584 (La.1976). The defendant waived delays, and the trial court sentenced him to two years in the Department of Corrections, suspended, and two years of probation with the special condition that after the completion of one year of active probation, the second year of probation would be converted to inactive probation.

STATEMENT OF FACT

At the August 27, 2012 motion to suppress hearing, Agent Christopher En-cardes testified that on February 20, 2012, he resigned for personal reasons from being a St. Bernard Sheriffs Office Narcotics Agent after six and one-half years. He was working for the City Park Police Department at the time of the hearing. However, on March 16, 2011, he was a narcotics agent; he had been part of the narcotics street crimes unit for two years. He stated that in 2011 he participated in roughly 200 narcotics arrests; in 2010 he was involved in about 180 narcotics arrests. He was in a one-man car when he made a traffic stop, but his partner, Agent Scott Maitrejean, showed up toward the end. The agent testified: “I observed a red vehicle that Mr. Candebát was driving. Mr. Candebat wasn’t wearing a seatbelt, had a cracked windshield. Conducted [sic] a traffic stop on Mr. Candebat, in a high crime and drug activity area.” The agent explained that the number of narcotics arrests made in that area was the basis for describing it as a high drug activity area; he had been personally involved in a number of those arrests.

Agent Encardes stated:

|SI conducted a traffic stop on Mr. Candebat, at which time I instructed him to [sic] the rear of the vehicle with his driver’s license, registration and proof of insurance. Mr. Candebat complied exiting the vehicle, coming to the rear. Mr. Candebat was overly nervous. Wouldn’t [sic] make eye contact. Continued to put his hands in his pockets on several occasions after being asked not to at which time I asked Mr. Candebat to place his hands on the rear of the vehicle so Agent Encardes [the agent testifying] can conduct a pat-down for officer safety.

The agent said that the defendant was “just completely, overly nervous from [sic] someone on a regular traffic stop.” The agent said that overly nervous subjects were usually involved in narcotics arrests.

Agent Encardes testified that it was about 7:00 p.m., and he asked the defendant to put his hands on the car for officer safety because he was alone, and it was a high crime/high drug trafficking area. Agent Encardes testified that he began to conduct a pat-down of the defendant; he was looking for weapons. He said: “During the pat-down in Mr. Candebat’s coin pocket I felt what was a small hard rock-like substance.” He was “unsure” of which pocket, but thought it was the left pocket. The agent said that he was looking for weapons; he patted the defendant down for safety reasons. He explained that he felt a “small hard rocklike substance consistent with the possibility of crack cocaine.” The agent noted that he had felt such things during pat-downs, and the substance was usually crack cocaine. Noting the agent’s experience, the ADA asked: “You thought it might be contraband?” Agent Encardes replied: “Correct.” Agent Encardes said that when he removed the object, “[i]t was a small pill.” While he was attempting to identify the pill using drugs.com, the defendant stated that he did not have a prescription for the medication. Agent Encardes testified that he then advised the defendant of his Miranda rights and placed him in handcuffs. According to the Louisiana State Police Crime Lab, the pill was twenty milligrams of amphetamine, a controlled |4dangerous substance. The agent said that the defendant was charged with the illegal possession of a controlled dangerous substance, as well as the traffic violations for the cracked windshield and the failure to use the seatbelt.

On cross-examination Agent Encardes stated that he was not familiar with the defendant before the traffic stop that night. The agent said that seconds elapsed between the actual stop and the pat-down. When defense counsel asked what facts formed the basis for the agent to decide to pat-down the defendant, he replied: “From Mr. Candebat’s actions.” He conceded that he had no specific information that the defendant was armed or dangerous. The agent admitted that he observed no bulges in the defendant’s jeans. Defense counsel reiterated that the agent had testified that he felt a hard rocklike substance in the defendant’s top coin pocket. Counsel then asked the agent to read his report in which he had stated: “During the pat-down Agent Encardes immediately felt a capsule shaped pill in Candebat’s top coin pocket.” When he was asked if he felt a pill, the agent replied: “It was hard.” Counsel asked: “Capsule pill?” The agent answered: “A hard substance.” Counsel then asked: “A hard substance which could be a number of things, not necessarily a pill?” Agent Encardes replied: “Correct.” Counsel then asked: “But in your report you indicate that you immediately felt a capsule pill; is that correct?” The agent responded: ‘Tes, ma’am.” When counsel asked why the agent’s testimony was not the same as what he wrote in his report, Agent Encardes replied: “It was a hard substance.” When counsel questioned what the agent had said in the report and what he testified at the hearing, the agent said: “Well, if you put the pill in a pocket [sic] it’s still a hard substance.” He continued to say that it was a hard substance; he admitted that he did not think that it was a weapon. When he was asked if he believed it was narcotics, he answered: “Correct.”

|fiOn further cross-examination Agent Encardes testified that he decided to remove the object from the defendant’s coin pocket based on the defendant’s actions, the high crime and drug trafficking area, and his past experience making narcotics arrests. When counsel asked him to explain what actions by the defendant prompted that action, the agent stated: “The several times I’ve asked him not to place his hands in his pockets, which he continuously to do [sic]. His [sic] overly nervous, not making eye contact, being jittery when he spoke.” When questioned as to why he waited until after that last time he put his hands back into his pockets, the agent answered: “Because the very last time he made me fear for my safety. That’s why I did it the very last time.” He said he removed the object for his safety. When he was asked if it was not until he removed the pill that he determined what substance was in the defendant’s pocket, he replied: “Correct.” Counsel asked: “The hard substance, were you certain that it was narcotics?” The agent responded: “No, ma’am.” Counsel then asked: “During the pat-down, were you certain that it was narcotics?” Agent Encardes replied: “No, ma’am, I wasn’t.” Defense counsel asked: “Could it have been something else?” The agent answered: “Yes, ma’am.”

On redirect examination Agent En-cardes stated that he patted down the defendant for officer safety. He agreed that he had done so many times before, and he had felt hard objects during pat-downs.

ERRORS PATENT

The record has been reviewed, and there are no errors patent.

ASSIGNMENT OF ERROR NUMBERS 1 and 2

The defendant argues that the evidence was seized pursuant to an illegal frisk and subsequent illegal search. He claims that the agent had no reason to |fibelieve that he was armed or dangerous. He contends that a lawful detention does not automatically allow an officer to pat down a subject being detained. The defendant argues that the agent had no basis to reasonably believe that his safety or that of others was in danger in order to justify the frisk, and the agent based his decision to conduct a pat-down on the defendant’s nervous behavior. He asserts that nervousness alone cannot justify a frisk, and there was no reason to believe that he was armed and dangerous. The defendant argues that the “plain feel” exception of Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), is applicable because it was not immediately apparent to the agent that the pill was contraband.

In brief, the State argues that the traffic stop was a legal stop. While the agent was issuing the traffic citation, Agent Encardes observed the defendant’s nervous behavior; he put his hands into his pockets three or four times after he had been asked not to do so, and he made no eye contact with the agent. The State contends that the defendant’s very nervous behavior coupled with the fact that he continued to put his hands into his pockets justified the frisk after the agent had ordered the defendant to place his hands on the car. The State argues that the narcotics agent felt a small hard substance, which, based on his years of experience, felt like a small rock of cocaine, but it turned out to be a 20 mg. amphetamine pill, which the agent seized.

LAW AND ANALYSIS

In State v. Wells, 2008-2262, pp. 4-5 (La.7/6/10), 45 So.3d 577, 580-81, the Supreme Court set out the standard of review relating to a trial court’s ruling on a motion to suppress:

17This court has recently restated the general rule that appellate courts review trial court rulings under a deferential standard with regard to factual and other trial determinations, while legal findings are subject to a de novo standard of review. State v. Hunt, 09-1589, p. 6 (La.12/1/09), 25 So.3d 746, 751, citing State v. Hampton, 98-0331, p. 18 (La.4/23/99), 750 So.2d 867, 884. When a trial court makes findings of fact based on the weight of the testimony and the credibility of the witnesses, a reviewing court owes those findings great deference, and may not overturn those findings unless there is no evidence to support those findings. Id. A “trial judge’s ruling [on a fact question], based on conclusions of credibility and weight of the testimony, is entitled to great deference and will not be disturbed on appeal unless there is no evidence to support the ruling.” State v. Bourque, 622 So.2d 198, 222 (La.1993).
The State bears the burden of proving the admissibility of the evidence seized without a warrant when the legality of a search or seizure is placed at issue by a motion to suppress evidence. LSAC. Cr.P. art. 703(D). A trial court’s decision relative to the suppression of evidence is afforded great weight and will not be set aside unless there is an abuse of that discretion. Hunt, 09-1589 at 7, 25 So.3d at 752.

In State v. Anderson, 2006-1031, p. 2 (La.App. 4 Cir. 1/17/07), 949 So.2d 544, 546, this Court stated:

The district court’s findings of fact on a motion to suppress are reviewed under a clearly erroneous standard and the district court’s ultimate determination of Fourth Amendment reasonableness is reviewed de novo. State v. Pham, 2001-2199 (La.App.1/22/03), 839 So.2d 214, 218. Accordingly, “on mixed questions of law and fact, the appellate court reviews the underlying facts on an abuse of discretion standard, but reviews conclusions to be drawn from those facts de novo.” Id. (citation omitted). “Where the facts are not in dispute, the reviewing court must consider whether the trial court came to the proper legal determination under the undisputed facts.” Id. (citation omitted).

In State v. Norals, 2010-0293, pp. 4-5 (La.App. 4 Cir. 7/30/10), 44 So.3d 907, 910, this Court set out the pertinent law:

“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.
|sAn individual’s constitutional protections from unreasonable searches and seizures are triggered during an investigative traffic stop. United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605 (1985). The law provides that the stopping of a vehicle and its occupants constitute a seizure under the law. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979). When an officer observes what he objectively believes is a traffic offense, the decision to stop the vehicle is reasonable, regardless of the officer’s subjective motivation. Whren v. United States, 517 U.S. 806, 810, 813, 116 S.Ct. 1769, 1772, 1774, 135 L.Ed.2d 89 (1996); State v. Waters, 00-0356, p. 4 (La.3/12/01), 780 So.2d 1053, 1056; State v. Landry, 98-0188, p. 2 (La.01/20/99), 729 So.2d 1019, 1020....

After a legal stop, a frisk must also be justified. In State v. Marzett, 2009-1080, p. 6 (La.App. 4 Cir.6/9/10), 40 So.3d 1204,1208, this Court stated:

Once a valid stop is made “and [the stopping officer] reasonably suspects that he is in danger, he may frisk the outer clothing of such person for a dangerous weapon. If the law enforcement officer reasonably suspects the person possesses a dangerous weapon, he may search the person.” La.C.Cr.P. art. 215.1(B). To frisk a detainee, there must be some basis for a fear of safety or a fear the suspect is armed. State v. James, 2007-1104, p. 6 (La.App. 4 Cir. 3/5/08), 980 So.2d 750, 754. “The officer need not be absolutely certain that the person is armed, but the officer must be warranted in his belief that his safety or that of others is in danger.” Id., quoting State v. Smith, 94-1502, p. 5 (La.App. 4 Cir. 1/19/95), 649 So.2d 1078, 1082.

See also State v. Dumas, 2000-0862, pp. 2-3 (La.5/4/01), 786 So.2d 80, 81-82.

In State v. Simpson, 2011-0370, p. 17 (La.App. 4 Cir. 10/26/11), 77 So.3d 445, 454, writ denied, 2011-2568 (La.12/14/11), 76 So.3d 1185, quoting State v. Boyer, 2007-0476, p. 22 (La.10/16/07), 967 So.2d 458, 472, this Court set out the requirements of the “plain feel” exception:

In Minnesota v. Dickerson, 508 U.S. 366, 371, 113 S.Ct. 2130, 2134, 124 L.Ed.2d 334 (1993), the Supreme Court addressed whether nonthreatening contraband detected through the sense of touch during a Terry patdown may be admitted into evidence. Analogizing to the “plain view” doctrine, ... the Dickerson Court held if a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; its warrantless seizure 19is justified by the same practical considerations that inhere in the plain-view context. Dickerson, 508 U.S. at 375-76,113 S.Ct. at 2136-37.

In Simpson the police officer testified that he observed a square-shaped bulge at the waistband of Simpson’s pants. When the officer frisked Simpson, he felt a “hardened object” in Simpson’s waistband. The officer admitted that the object did not have the shape of a firearm. It was a Crown Royal bag of marijuana packed tightly into a square shape. This Court concluded that the officer’s decision to remove and open the bag under the “plain feel” exception was unjustified; this Court also held that there was no justification for the investigatory stop and the frisk. Simpson, 2011-0370, pp. 17-18, 77 So.3d at 454. See also State v. Banks, 2011-0903, pp. 5-7 (La.App. 4 Cir. 3/21/12), 95 So.3d 1081, 1084-85 (where the officer testified that she did not know what made the bulge in Banks’ pants, and the “plain feel” exception did not apply; however, Banks could have been legally searched incident to arrest for driving without a license; and the court properly denied the motion to suppress the evidence).

In State v. Bell, 2010-1708, (La.App. 4 Cir. 7/20/11), 70 So.3d 1052, writ denied, 2011-1798 (La.1/20/12), 78 So.3d 141, the officer conducted a pat-down or frisk and felt a plastic bag containing a hard object in Bell’s front left pocket. In the police report the officer indicated that he seized the plastic bag because he knew that narcotics are stored in plastic bags. This Court set out the pertinent law and considered the jurisprudence:

In State v. Craft, 03-1852, p. 10 (La.App. 4 Cir. 3/10/04), 870 So.2d 359, 366, we summarized the jurisprudence of the “plain feel” exception as follows:
[Ejvidence discovered during a lawful investigatory frisk may be seized under the “plain feel” exception to the warrant requirement, as explained in Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). However, just as the “plain view” doctrine requires that an object’s incriminating character be immediately obvious when seen, the “plain feel” doctrine requires the tactile discovery of “an object whose contour or mass makes its identity immediately apparent.” Dickerson at 375, 113 S.Ct. at 2137, 124 L.Ed.2d at 346. Thus, in State v. Parker, 622 So.2d 791 (La.App. 4th Cir.), writ. denied, 627 So.2d 660 (La.1993), the seizure of a matchbox containing cocaine detected during a pat-down search was found not to fall within the “plain feel” exception because there was no evidence that a matchbox’s shape was identifiable as contraband. In contrast, in State v. Stevens, 95-501 (La.App. 5th Cir.3/26/96), 672 So.2d 986, the seizure of drugs in a matchbox detected during a lawful pat-down was upheld because the officer testified that her prior experience indicated that most street-level crack dealers carried their drugs in a matchbox. Similarly, where testimony establishes that an object detected during a pat-down was immediately identifiable as a “crack pipe,” suppression of the cocaine residue contained within the pipe is not required. State v. Lavigne, 95-0204, at p. 9 [ (La.App. 4th Cir. 5/22/96) ], 675 So.2d [771] at 778; State v. Livings, 95-251, pp. 5-6 (La.App. 3d Cir. 11/15/95), 664 So.2d 729, 733, writ. [sic] denied, 95-2906 (La.2/28/96), 668 So.2d 367.
In State v. Francois, 00-1039 (La.App. 4 Cir. 1/10/01), 778 So.2d 673, the officers decided to conduct a pat-down frisk of the defendant under circumstances similar to the present matter. Specifically, the frisking officer testified: “As we approached him-as he was now at the-what would be the uptown lake corner of the intersection with another subject-he appeared real nervous, fidgety. Because of the time of night, the reputation of the area, how nervous he appeared, I decided to conduct a protective pat-down search for my own protection.” Id., p. 5, 778 So.2d at 677. Further, the investigating officer testified that he discovered the contraband during a frisk, stating: “[a]s I patted the general area of his buttocks, I felt an object, which I immediately recognized without manipulating it to be a small packet of crack cocaine.” This Court held that the seizure fell under the “plain feel” exception. Id.
In State v. Bradley, 03-1518 (La.App. 4 Cir. 1/28/04), 867 So.2d 31, the officers stopped a defendant after observing activity consistent with drug transactions. In addition to challenging the validity of the stop, the defendant argued that the officer’s search of him exceeded that of a lawful protective pat-down. Finding no merit to that argument, we relied upon the officer’s testimony that when he frisked |1Tthe defendant for weapons, he felt a bulge in the defendant’s pocket. The officer more precisely described this bulge as objects sliding around that, based on his experience, felt like the plastic bags commonly used for paekag-mg drugs. Finding the “plain feel” exception applicable, this court held that given the officer’s testimony that during the lawful frisk he felt an object that was immediately apparent to him, based on his experience and observations, to be drugs; the drugs were lawfully seized.
We find that the crack cocaine was lawfully seized from Mr. Bell pursuant to the “plain feel” exception. Officer Aranda testified that he felt what he described as a hard object inside of a plastic substance. The police report provides that Officer Aranda knew that narcotics are often stored in wrapped plastic. Thus, Officer Aranda took the plastic substance from Mr. Bell’s pocket because he suspected that it contained narcotics. It is clear from the police report that Officer Aranda’s removal of the bag was based on his knowledge that narcotics are usually stored in plastic bags. Accordingly, the trial court did not err when it denied the appellant’s motion to suppress. The assignment of error is without merit.

Bell, 2010-1708, pp. 10-12, 70 So.3d at 1060-61.

In the present case, in denying the motion to suppress the evidence in this case, the trial court stated:

I think in this case, the officer had a right to stop. Upon the actions that he observed of Mr. Candebat, he has articulated reasonable cause to believe that his safety may be in jeopardy: As recognized by the Supreme Court in numerous cases, officers conducting traffic stops are probably at a greater risk for harm to themselves than at any other time in their duties. More injury or death occurs to police officers then [sic] than in almost anything else they do at traffic stops. So, a pat-down was certainly reasonable in this case based upon the observations that Mr. Encardes testified to. After he had the ability [sic] to pat-down, he observed what he felt could be contraband, and identified [sic], I don’t find the difference between a hard rock substance and a pill because the pill that is not contraband is not normally carried in the manner in which that would be. So, I find no distinction or difference such that I would discount his testimony between now and what was reported in his police report. I believe he had a right to pat-down. Once he observed and felt what he believed to be contraband [sic] he had a right to seize.

112The trial court correctly found that the traffic stop was legal. Agent Encardes legally stopped the defendant’s vehicle for traffic violations (a cracked windshield and failure to wear a seatbelt). However, the agent’s pat-down must be justified by the agent’s fear for his safety or a fear that the subject is armed. Agent Encardes clearly testified that he did not know the defendant and no criminal activity was involved. The agent stated that he did not have reason to believe that the defendant was armed or dangerous. However, the agent testified that he was alone when he made the traffic stop in a high drug trafficking area at 7:00 p.m., and the defendant, who did not make eye contact, was overly nervous and continually putting his hands into his pockets although the agent had asked him repeatedly not to do so. Therefore, Agent Encardes had a reasonable basis for frisking the defendant for weapons under those circumstances. The trial court properly found that the pat-down or frisk for safety reasons was justified.

The application of the “plain feel” exception is more problematic. According to the agent’s testimony at the hearing, during the frisk he felt “a small hard rocklike substance.” The agent stated that a small rocklike substance can be crack cocaine; he removed the object, which turned out to be a small pill. When confronted with his police report in which he indicated that the object felt like a capsule pill, Agent Encardes responded that the object was a hard substance. Agent Encardes testified that a pill in a pocket felt like a hard substance. He admitted that he did not think that it was a weapon; the agent said that he was not certain that the object was narcotics; it could have been something else. The agent admitted that he did not know that the capsule was contraband. The agent did not testify that he felt an object whose contour or mass made its identity apparent to him. The “plain feel” exception is analogized to the plain view exception, which | lsdoes not require an officer to actually know that the object is contraband, but rather only requires that the officer have pi’obable cause to believe that the item in question is contraband. See State v. Norals, 2010-0293, p. 5, 44 So.3d at 910. From the agent’s testimony, it is not clear that the agent had probable cause to believe the object in the defendant’s pocket was contraband. In other cases where the “plain feel” exception has been utilized, police officers have testified that they felt the plastic packaging of marijuana or the hard rocks of crack cocaine in a defendant’s pocket; the contour and mass of the object made its identity immediately apparent.

Here the trial court focused on the ability of Agent Encardes, who had over six years of narcotics experience. The court noted that during the pat-down, the agent touched something in the defendant’s coin pocket in his pants that “he [the agent] felt could be contraband.” The court discounted the difference between the object being a hard rock substance or a capsule pill. The court stated that a pill that is not contraband would not be in someone’s pants pocket. The trial court abused its discretion by finding that the “plain feel” exception applied under the facts of this case and by denying the defendant’s motion to suppress the one amphetamine pill.

CONCLUSION

Therefore, we reverse the trial court’s decision denying the defendant’s motion to suppress evidence, grant the motion to suppress that evidence, and vacate the defendant’s guilty plea and his sentence.

REVERSED.

      . Clearly the agent did not "observe” the contraband inside the defendant’s pocket. This appears to be an error, which is repeated in the last sentence.