author: TERRI F. LOVE, Judge.

text:
    STATE of Louisiana v. Kiyon JEFFERSON. State of Louisiana v. Kiyon Jefferson. State of Louisiana v. Kiyon Jefferson. State of Louisiana v. Kiyon Jefferson. State of Louisiana v. Kiyon Jefferson.
    Nos. 2013-KA-0703, 2013-KA-0704, 2013-KA-0705, 2013-KA-0706, 2013-KA-0707.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 16, 2014.

      John F. Rowley, District Attorney, Walker H. Drake, Jr., Assistant District Attorney, Chalmette, LA, for Appel-lee/State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge ROLAND L. BELSOME, Judge SANDRA CABRINA JENKINS).
   TERRI F. LOVE, Judge.

hKiyon Jefferson (“Mr. Jefferson”) appeals his conviction for possession of two hundred or more grams but less than four hundred grams of crack cocaine. He alleges that the trial court erred in denying his motion to suppress the evidence as the investigating agents did not have probable cause to arrest him when they arrived at his residence; and thus, the agents were not justified in conducting a protective sweep. Because the sweep was unjustified, Mr. Jefferson contends the evidence found in plain view which prompted the agents to obtain a search warrant and the evidence subsequently seized pursuant to the warrant violated his Fourth Amendment rights. We find that given the totality of the circumstances, the agents were authorized to conduct a protective sweep as the threat to officer safety created an exigent circumstance. We also find that because the sweep was justified, the agents had probable cause to obtain a search warrant when they found incriminating evidence in plain view in the master bathroom. Therefore, we find the trial court did not err in denying Mr. Jefferson’s motion to suppress.

IsPROCEDURAL HISTORY

In June 2011, the State filed a bill of information charging Kiyon Jefferson (“Mr. Jefferson”) in case number 368-907(B) with possession of two hundred or more grams but less than four hundred grams of crack cocaine, a violation of La. R.S. 40:967(F)(Z )(b). In November 2011, a hearing on the motions was held, and the trial court found probable cause and denied Mr. Jefferson’s motion to suppress the evidence. Mr. Jefferson sought supervisory review and this Court denied the writ. Prior to trial, Mr. Jefferson indicated his desire to represent himself, against the advice of his defense counsel. The trial court questioned Mr. Jefferson and concluded that Mr. Jefferson could represent himself with the condition that he allow his appointed counsel to assist him. In January 2013, a bench trial was held on all the charges. The trial court found Mr. Jefferson guilty in the present case of La. R.S. 40:967(F)tf)(b). In February 2013, the trial court denied Mr. Jefferson’s motions for new trial and for post-verdict judgment of acquittal. The trial court then sentenced Mr. Jefferson to twenty-two years at hard labor and ordered him to pay a fine of $100,000. Through counsel, Mr. Jefferson files this appeal as it relates to his conviction in case number 368-907(B).

FACTUAL BACKGROUND

At the motion to suppress, Agent Jason Saltalmachia (“Agent Saltalmachia”) of the St. Bernard Sheriffs Office, Narcotics Unit, testified that in April 2011, he received information from a confidential source that there was possible drug activity at the residence of a black male living at 104 Livingston Avenue in Arabi. The agent testified that he had never used the confidential source before, but the source approached him with the information. Agent Saltalmachia stated that he |3and Agent Tommy Duplessis (“Agent Duples-sis”) drove by the residence at that address. The agents observed a white GMC Jimmy parked in the driveway. They ran the license plate number and learned the vehicle was registered to Kiyon Jefferson at the same address on Livingston Avenue. The agents also ran a criminal history check on Mr. Jefferson. In addition to obtaining a photograph of him, the agents learned that he had a criminal history including several drug offenses.

After meeting with several officers in the Street Crimes Unit, the agents elected to conduct a “knock and talk” investigation. Accompanying Agents Saltalmae-hia and Duplessis were Lieutenant Chris Cousins, Corporal Leandor Morgan, and Agent Scott Maitrejean, and Agent Chris Encartes. In the early afternoon, Agents Saltalmaehia and Duplessis along with accompanying agents, approached Mr. Jefferson’s door and knocked. Agent Saltalmaehia testified that he immediately recognized Mr. Jefferson from his photograph when he answered the door. The agent identified himself and informed him that they were investigating a report of possible drug trafficking at the residence. He asked Mr. Jefferson if they could come inside and speak with him, and Mr. Jefferson agreed.

Entering the residence, the agents immediately detected a strong aroma of burnt marijuana. While speaking with Mr. Jefferson, the agents heard a commotion from the back of the residence and dogs barking. At the suppression hearing, Agent Saltalmaehia testified that while standing in the living room, they heard “some dogs barking in the back,” and “other subjects moving around, some knocking stuff.” At trial, Agent Duplessis corroborated Agent Saltalmachia’s testimony, stating there was a noise in the back of the residence, as if people were moving around.

|4Agent Saltalmaehia testified that he and Agent Duplessis remained in the living room with Mr. Jefferson, and the other agents cleared the residence for their safety. While performing the protective sweep, two agents found “kids in the bedroom.” Agent Saltalmaehia stated at some point, Mr. Jefferson’s fiance, LaShaun Robinson (“Ms. Robinson”) was called to inform her she was needed at the residence to take care of the children. Also, during the sweep Lieutenant Chris Cousins (“Lieutenant Cousins”) asked Agent Saltalmaehia to come to the master bedroom. On the counter in the master bathroom, Agent Saltalmaehia observed in plain view a large off-white rock-like substance and several smaller rock-like substances that were individually packaged in clear plastic. Agent Saltalmaehia returned to the living room and advised Mr. Jefferson of his Miranda rights. Agents Saltal-maehia and Duplessis then left the residence in order to secure a search warrant for the residence while the other agents remained at the scene.

After obtaining a search warrant, Agents Saltalmaehia and Duplessis returned to 104 Livingston Avenue, presented Mr. Jefferson with the search warrant and again advised him of his rights. Agent Saltalmaehia then asked Mr. Jefferson if there was any other contraband in the residence that the agents would find during the execution of the warrant.

Mr. Jefferson told Agent Saltalmaehia that the agents would find a “quarter bird,” street slang for approximately nine ounces of crack cocaine, in the master bedroom closet. The agents began searching the closet and found a black garbage can with a black garbage bag inside. Inside the garbage bag was a brown paper bag containing eight separate bags of an off-white substance. The substance later field-tested positive for crack cocaine.

I .¡Inside the same closet Agent Encartes found a tan dress shirt. In each of the front pockets he located cash in mostly small bills and additional cash in the pocket of a pair of pants inside the room, totaling about $1500. In the master bedroom, the agents found in an ashtray hand-rolled cigarettes containing vegetable matter that tested positive for marijuana. Inside the kitchen cabinet, the agents found glass jars that contained a white paste-like substance. Additionally, the agents seized a digital scale with white powder residue. In their search, the agents found documents which they believed connected Mr. Jefferson to the residence, including a Cox communication cable bill and an auto insurance bill, both in Mr. Jefferson’s name for that address.

Agent Saltalmaehia testified that Mr. Jefferson was then transported to the agents’ office and interviewed. At the office, Agent Saltalmaehia, in the presence of Agent Duplessis, advised Mr. Jefferson of his rights and had Mr. Jefferson sign a “Rights of Arrestee” form. Mr. Jefferson expressed his wish to waive his rights. He informed Agent Saltalmaehia that all the items found in the house belonged to him, and that Ms. Robinson was not aware he was involved in narcotics activity. Mr. Jefferson explained that he paid $4,000 for the cocaine and that he planned to process the powder cocaine into crack cocaine and package it into $25 rocks to sell for a net profit of about $16,000. Agent Saltalmae-hia testified that Mr. Jefferson explained to him that he used the glass jars found in the kitchen cabinet to turn the powder cocaine into crack cocaine.

At trial, Agent Saltalmaehia stated that later Mr. Jefferson gave a different account and claimed that the drugs were planted in his house by New Orleans police department narcotics officer, Jason Gagli-ano (“Agent Gagliano”). Agent | fiGagliano testified that he had never seen Mr. Jefferson before nor had he been to Mr. Jefferson’s house.

Agent Saltalmaehia further testified that in April 2011, Mr. Jefferson changed his version of the facts again. Mr. Jefferson claimed that he was unaware that the contraband was in the residence and that he came across it while cleaning and assumed it belonged to Ms. Robinson’s uncle.

Additionally, Agent Saltalmaehia testified that the substance suspected of being crack cocaine was analyzed, and the crime lab reported that it tested positive for cocaine, the total weight being 248.16 grams.

Mr. Jefferson called no witnesses to testify. After consulting with his appointed counsel, Mr. Jefferson advised the court that he did not wish to testify on his own behalf.

ERROR PATENT

A review of the record reveals no errors patent.

STANDARD OF REVIEW

An appellate court reviews a trial court’s ruling on a motion to suppress under the abuse of discretion standard. See La.C.Cr.P. art. 703; State v. Wells, 08-2262, p. 5 (La.7/6/10), 45 So.3d 577, 581. Although it is well-settled that an appellate court should review a trial court’s ruling under a deferential standard with regard to factual determinations, its legal findings are subject to de novo standard of review. State v. Caliste, 12-1548, p. 2 (La.App. 4 Cir. 6/14/13), 131 So.3d 902; State v. Hunt, 09-1589, p. 6 (La.12/1/09), 25 So.3d 746, 751 (citation omitted). Likewise, an appellate court may review the testimony adduced at trial, in addition to the testimony adduced at a suppression hearing, in determining the correctness of the trial court’s pre-trial ruling on a motion to suppress. State v. Leger, 05-0011, p. 10 (La.7/10/06), 936 So.2d 108, 122. State v. Sherman, 04-1019, p. 1 (La.10/29/04), 886 So.2d 1116; State v. Green, 94-0887, p. 11 (La.5/22/95), 655 So.2d 272, 280.

FOURTH AMENDMENT

The Fourth Amendment protects “the right of the people to be secure in their ... houses ... against unreasonable searches and seizures.” U.S. Const, amend. IV. See also La. Const. Art. I, § 5. “Warrantless searches are per se unreasonable under the Fourth Amendment, ‘subject only to a few specifically established and well-delineated exceptions.’” State v. Bell, 09-0574, p. 4 (La.App. 4 Cir. 12/9/09), 28 So.3d 502, 506 (citing Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). Evidence in this case was seized from within Mr. Jefferson’s home pursuant to a search warrant; however, Mr. Jefferson objects to the manner in which the search warrant was obtained. He claims the agents lacked the requisite probable cause to obtain the search warrant because the protective sweep that led to the discovery of the cocaine in plain view was unjustified. For these reasons, Mr. Jefferson urges this Court to find that the trial court erred in denying his motion to suppress.

After receiving information that Mr. Jefferson was allegedly involved in narcotics activity, Agents Saltalmachia and Duplessis decided to conduct a “knock and talk” investigation. In State v. Warren, 05-2248, p. 5 (La.2/22/07), 949 So.2d 1215, 1221, the Louisiana Supreme Court noted,

“police officer[s], who possess some information that they believe warrants further investigation, but that is insufficient to constitute probable cause for a search warrant, approach the person suspected of engaging in illegal activity at the person’s residence (even knock on the front door), identity themselves as police officers, and request consent to search for the suspected illegality or illicit items.”

IsThe Court went on to state, “[t]he prevailing rule is that absent a clear expression by the owner to the contrary, police officers, in the course of their official business, are permitted to approach one’s dwelling and seek permission to question an occupant.” Id., 05-2248, p. 6, 949 So.2d 1215, 1222. See also State v. Seiler, 12-0389, p. 1-3 (La.5/25/12), 89 So.3d 1159, 1161.

In this case, there were two warrantless entries into Mr. Jefferson’s home: the initial entry through Mr. Jefferson’s front door and a subsequent entry into his master bedroom and bathroom. We first address the agents’ initial entry through the front door.

The investigating agents knocked on the front door of 104 Livingston Avenue and after Mr. Jefferson answered the door, the agents identified themselves and explained the purpose of their visit. The agents explained that they received a tip that the residence might be a place of drug activity and that they wanted to ask him some questions. At the agents’ request, Mr. Jefferson then allowed the narcotics agents to enter the residence. Because Mr. Jefferson willingly consented to the agents’ request to enter his home, the initial entrance through the front door and into Mr. Jefferson’s living room was lawful.

Once inside, the agents noticed the strong aroma of burnt marijuana and heard dogs barking and a commotion as if people were moving around in the back of the residence. Agent Saltalmachia testified that at that point, the accompanying officers conducted a protective sweep of the residence. The question before this Court is whether the subsequent entry and protective sweep into the rest of Mr. Jefferson’s residence was justified.

The United States Supreme Court in Maryland v. Buie, 494 U.S. 325, 334, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), established that police may conduct a “protective sweep of |flthe premises as part of permissible ‘reasonable steps to ensure their safety after, and while making, the arrest.’ ” In Buie, the defendant and another individual were suspected of an armed robbery. Id., 494 U.S. at 328, 110 S.Ct. 1093. The police obtained arrest warrants for both suspects and executed the arrest for Buie at his residence. Id. Upon arresting Buie after he emerged from the basement, a fellow officer entered the basement to conduct a protective sweep to ensure no one else was inside the basement. Id. The officer seized a red running suit, matching the description of one worn during the robbery. Id. Buie sought to suppress the running suit; however, the trial court denied the motion to suppress, and the running suit was introduced into evidence. Id. The United States Supreme Court held, that “the Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Id., 494 U.S. at 325, 110 S.Ct. at 1093.

Mr. Jefferson suggests to this Court that the Buie Court’s reasoning relied heavily on the fact that the protective sweep in that case was incident to an arrest. Thus, he alleges that the protective sweep in this case was unjustified as the agents were not at his residence to make an arrest but to conduct an investigation. We disagree.

The Supreme Court’s ruling in Buie focused on the reasonableness analysis of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Specifically, the Supreme Court found that the law enforcement’s objectives, avoiding threats to officer safety, paralleled those in Terry. The Court in Buie noted, “unlike an encounter on the street or along a highway, an in-home arrest puts the officer at the disadvantage |inof being on his adversary’s ‘turf.’ An ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings.” Buie, 494 U.S. at 333, 110 S.Ct. at 1098. Thus, the Supreme Court held:

... that as an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.

Buie, 494 U.S. at 334, 110 S.Ct. at 1098. Notably, the Supreme Court’s ruling in Buie left unanswered, and the issue presently before this Court, whether a protective sweep is valid in non-arrest situations.

In United States v. Taylor, 248 F.3d 506, 510 (6th Cir.2001), investigating officers were given consent to enter a home, and once lawfully inside they observed in plain view a marijuana stem on a coffee table. The court in Taylor held that investigating officers lawfully inside a home based on consent must first observe incriminating evidence in plain view that rises to the level of probable cause before reasonable suspicion justifies a protective sweep. Id. at 514.

Likewise, courts have previously recognized that the presence of the odor of marijuana where law enforcement is lawfully positioned provides sufficient grounds to search. State v. Risin, 02-0100, p. 2 (La.App. 4 Cir. 1/22/02), 807 So.2d 1042, 1043. (“the presence of the odor of marijuana emanating from a stolen vehicle lawfully stopped is sufficient grounds to search the vehicle because one has no expectation of privacy in such circumstances.”) Thus, “there is no reasonable expectation of privacy from lawfully positioned officers with inquisitive nostrils.” Id.

| n Moreover, a warrantless search is permitted when “police have a reasonable belief that exigent circumstances require immediate action and there is no time to secure a warrant.” State v. Warren, 05-2248, p. 9 (La.2/22/07), 949 So.2d 1215, 1224 (citing United States v. Lenoir, 318 F.3d 725, 730 (7th Cir.2003)). Police reasonably fearing for the safety of those present is one such circumstance where a warrantless search is permitted. Id., See also Figg v. Schroeder, 312 F.3d 625, 639 (4th Cir.2002). (“The exigent circumstances exception to the warrant requirement ‘basically encompasses officer safety and the destruction of easily-disposed evidence.’ ”); United States v. Richardson, 208 F.3d 626, 629 (7th Cir.2000). Thus, as the Louisiana Supreme Court pointed out in Warren, 05-2248, p. 11, 949 So.2d at 1224-25, “[i]n these limited situations, the need for effective law enforcement trumps the right of privacy and the requirement of a search warrant, thereby excusing an otherwise unconstitutional intrusion.” In order for the exigent circumstance rule to apply, however, law enforcement must not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment. See Kentucky v. King, — U.S. —, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011).

The Louisiana Supreme Court in Warren stated:

The relevant focus is whether the facts, as they appeared at the moment of entry, would lead a reasonable, experienced agent to believe that evidence might be destroyed or removed before a warrant could be secured. Marshall, 157 F.3d at 482.
Exigent circumstances justify a warrant-less entry, search, or seizure when “police officers, acting on probable cause and in good faith, reasonably believe from the totality of the circumstances that (a) evidence or contraband will imminently be destroyed or (b) the nature of the crime or character of the suspect(s) pose a risk of danger to the arresting officers or third persons.” United States v. Kunkler, 679 F.2d 187, 191-192 (9th Cir.1982) (footnote omitted). The government bears the burden of showing specific and articulable facts to justify the finding of exigent circumstances. LaLonde v. County of Riverside, 204 F.3d 947, 957 (9th Cir.2000) (citing United States v. Shephard, 21 F.3d 933, 938 (9th Cir.1994)) (quoting United States v. Driver, 776 F.2d 807, 810 (9th Cir.1985)).

Warren, 05-2248, p. 11-12 (La.2/22/07), 949 So.2d 1215, 1225 (emphasis added).

Here, the agents received confidential information that there was possible drug trafficking at 104 Livingston Avenue. After running a criminal background check, the agents learned that Mr. Jefferson had several criminal drug arrests. The agents decided to conduct a “knock and talk” investigation in order to obtain more information. Because Mr. Jefferson willingly invited the agents inside, they were lawfully positioned inside his home. Upon entering Mr. Jefferson’s home, the agents immediately detected the strong odor of marijuana. Consequently, the agents had reasonable belief that Mr. Jefferson or someone in the residence had been in possession of marijuana, a chargeable offense; and thus, the agents had probable cause to search. See Seiler, supra (detective had probable cause to search home after he smelled a strong odor of marijuana in defendant’s home and saw marijuana in plain view); State v. Allen, 10-1016 (La.5/7/10); 55 So.3d 756 (the detection of the odor of marijuana gave the officer probable cause to search the interior of defendant’s vehicle for contraband). Agents Saltalmachia and Du-plessis testified that shortly after entering the residence and detecting the odor of marijuana, they heard a commotion in the back of the house, as if people and things were moving around, and dogs barking. Agent Saltalmachia testified that the agents went through the residence to “clear the house for officer safety, [to] make sure nobody in the back [sic] trying to ambush us.”

In this case, the agents were aware of the possible criminal nature of the activities taking place at the residence and the suspect’s criminal background when they approached Mr. Jefferson’s home. Further, the immediate detection of | ^marijuana smoke coupled with the sounds of people moving around and dogs barking in the back of the house, gave rise to the agents’ reasonable fear that others may be in the house posing a threat to officer safety, prompting the protective sweep of the house. Given that reasonableness is the cornerstone of the Fourth Amendment and the totality of the circumstances, we find that the trial court did not err in finding that the agents were justified in their belief that the threat to officer safety created an exigency warranting a protective sweep.

PLAIN VIEW EXCEPTION

Finding the protective sweep justified, we address the evidence observed in plain view and subsequently seized pursuant to the search warrant. In the process of clearing the residence for officer safety, Lieutenant Cousins went into the master bedroom, just off the living room, and noticed something on the vanity bathroom and asked Agent Saltalmachia to inspect it. Agent Saltalmachia testified that on the vanity counter in plain view was “a large rock-like off-white substance half way out of a clear plastic bag with several other small rocks individually packaged.” Agent Saltalmachia testified that he believed the rock was crack cocaine and that he also saw one or two small clear plastic bags of vegetable matter. The agent returned to the living room and advised Mr. Jefferson of his Miranda rights. Thereafter, he and Agent Duplessis left to secure a search warrant of the residence.

The agents returned with the search warrant and asked Mr. Jefferson if there was any other contraband in the residence that they might find during the search warrant’s execution. Mr. Jefferson then advised the agents that in the master bedroom closet, they would find a “quarter bird.” Pursuant to the search warrant, the agents found evidence including: a couple of boxes of plastic bags and a half-Jempty14 box of baking soda used to process cocaine under the vanity; eight large pieces of crack cocaine inside Mr. Jefferson’s closet; hand-rolled cigarettes containing marijuana in the bedroom; a large sum of cash in small bills inside the pockets of a shirt found in Mr. Jefferson’s closet; glass jars containing a white paste that Mr. Jefferson admitted he used to process powder cocaine into crack cocaine; a digital scale with white powder residue; and mail in Mr. Jefferson’s name at that address.

Because the agents were justified in conducting a protective sweep and the evidence discovered in the master bathroom during the sweep was in plain view, the agents had probable cause to obtain and execute a search warrant of the residence. Accordingly, the evidence was lawfully seized and did not violate Mr. Jefferson’s Fourth Amendment rights.

INDEPENDENT SOURCE DOCTRINE

Mr. Jefferson also claims that the independent source doctrine does not apply in the present case because the warrant does not contain sufficient facts to constitute probable cause absent the discovery of the crack cocaine in the master bathroom, and the evidence found as a result of the sweep influenced the agents’ decision to procure a warrant. Pursuant to the independent source doctrine, “ ‘information which is received through an illegal source is considered to be cleanly obtained when it arrives through an independent source.’ ” Murray v. U.S., 487 U.S. 533, 538-39, 108 S.Ct. 2529, 2534, 101 L.Ed.2d 472 (1988) (citing U.S. v. Silvestri, 787 F.2d 736, 739 (1st Cir.1986)). In light of our finding that the subsequent intrusion into the master bathroom pursuant to the protective sweep was lawful, we need not make a determination of whether the independent source doctrine applies.

\vfiECREE

For the foregoing reasons, we find the trial court did not err in denying Mr. Jefferson’s motion to suppress. Accordingly, we affirm Mr. Jefferson’s conviction and sentence.

AFFIRMED.

      . State v. Jefferson, 12-1227 (La.App. 4 Cir. 9/13/12), unpub.


source: Caselaw Access Project

author: MAX N. TOBIAS, JR., Judge. BELSOME, J.,

license: Public Domain

text:
    STATE of Louisiana v. Trolynn A. GREATHOUSE.
    No. 2013-KA-1295.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 16, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, New Orleans, LA, for Appellant.
    Keith M. Pyburn, Jr., Lawrence Joseph Sorohan, II, Fisher and Phillips, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET).
   MAX N. TOBIAS, JR., Judge.

hThe issue before the court is whether the state may commence trial against the accused, Trolynn A. Greathouse, who was charged on 23 May 2011 by bill of information with one count of armed robbery. The trial court quashed the bill of information. Finding that the appellate record on appeal is incomplete, we vacate the trial court judgment and remand the matter for further proceedings consistent with this opinion.

Following institution of the prosecution, Ms. Greathouse appeared on 7 June 2011 for her arraignment. She waived a reading of the bill of information and entered a plea of not guilty. On 10 June 2011, she filed omnibus motions for discovery, suppression of statements, evidence, and identification, and for preliminary exam. After the preliminary hearing on 15 July 2011, the trial court found probable cause and denied Ms. Greathouse’s motion to suppress thej^identification. We believe the other motions were also disposed of on that day. Trial was set for 22 August 2011.

From 22 August 2011 through March 2012, counsel for Ms. Greathouse appeared in court on several occasions, sometimes with Ms. Greathouse and sometimes without her. The state and the court itself filed writs of (a) habeas corpus ad prose-quendam and (b) habeas corpus ad testifi-candum (hereinafter referred to, regardless of which writ was issued, as “WRIT”) for Ms. Greathouse for her next trial date for which her presence was required. The record before us, however, is incomplete and does not reflect whether a WRIT was issued for some of the dates. Nevertheless, Ms. Greathouse’s name was placed on the jail list for transport to court for those days set for trial and for other dates her presence was required. Ms. Greathouse requested one continuance early in the proceedings; the record, however, reveals that the state moved for several.

When Ms. Greathouse did not appear for trial on 7 November 7, 2011, the state requested a continuance, promising to issue a WRIT for her appearance in | .-¡court for her next trial date of 23 January 2012. Once again her name was placed on the jail list for transport to court.

Sometime between 23 January 2012 and 23 March 2012, Ms. Greathouse became unrepresented by counsel; the record is unclear as to when her former counsel ceased representing her. However, as of 23 March 2012, she was represented by Keith M. Pyburn, Esq., who remains her attorney through this appeal. She appeared in court on 23 March 2012 for hearing and Mr. Pyburn enrolled; on 26 March 2012, Mr. Pyburn filed another omnibus motion for discovery similar to that filed on her behalf in 2011. A pretrial hearing was set for 4 April 2012 and the trial was reset for 25 June 2012. The court issued a WRIT for both 4 April 2012 and 25 June 2012 and her name was placed on the jail list for both dates.

Ms. Greathouse’s counsel appeared on 4 April 2012 for a pretrial hearing, and trial was reset for 23 May 2012, changing it from 25 June 2012. The minute entry of 4 April 2012 does not indicate any consideration and/or ruling on the second omnibus motion. Her name was again placed on the jail list for 23 May 2012.

On 15 May 2012, the clerk’s office received the state’s motion and order for a continuance. Counsel for Ms. Greathouse appeared on 23 May 2012 without the accused. The matter was continued on the state’s motion. The state promised to issue a WRIT for Ms. Greathouse. Trial was again continued, this time to 4 September 2012, and her name was placed on the jail list for that date.

On 4 September 2012, Ms. Greathouse appeared in court with her counsel. The trial court issued an order that she remain in the custody of the Orleans Parish |4Sheriff with a pretrial set for 7 September 2012. Once again her name was placed on the jail list. She appeared in court for the pretrial hearing as scheduled and trial was reset for 25 October 2012. Her name was placed on the jail list, and she was remanded to DOC’s Louisiana Correctional Institute for Women at St. Gabriel, Louisiana (“LCIW”).

On 25 October 2012, defense counsel appeared in court without the accused. Another pretrial hearing was set for 31 October 2012, and Ms. Greathouse’s name was placed on the jail list. However, on that date, defense counsel appeared in court without the defendant. The matter was set for another pretrial hearing, and the state promised to issue a WRIT for Ms. Greathouse. Trial was reset for 9 January 2013. Her name was placed on the jail list once again.

On 9 January 2013, defense counsel appeared for trial without the defendant. The matter was continued on the state’s motion until 13 March 2013 and Ms. Great-house’s name was placed on the jail list. The state filed a motion and order for a WRIT with the clerk on 8 February 2013 and requested that a status hearing be set for 6 March 2013.

On 6 March 2013, Ms. Greathouse and her attorney appeared in court for the status hearing and trial was reconfirmed as set for 13 March 2013. On 13 March 2013, defense counsel appeared in court for trial. A new pretrial hearing was set for 9 April 2013. Once again Ms. Greathouse’s name was placed on the jail list.

On 9 April 2013, defense counsel appeared in court without Ms. Greathouse for the pretrial hearing. Trial was reset for 20 June 2013. The defendant’s name was placed on the jail list for that date.

On 28 May 2013, Ms. Greathouse filed a pro se motion for a speedy trial from LCIW, evidenced by a 22 May 2013 postmark on the envelope of transmittal. |Jn the motion, she asserted that she had been in state custody since her arrest on 23 March 2011 on a probation revocation and had, therefore, been available to the court at all times since that date. She alleged that the postponements were the result of the state’s failure to be prepared to proceed to trial, and invoked her right to a speedy trial under La. Const. Art. I, § 16. On 19 June 2013, the state filed with the clerk’s office for a WRIT.

On 20 June 2013, Ms. Greathouse appeared in court for trial with her counsel. A pretrial hearing was set for 1 July 2013 and trial for 23 July 2013. However, the court was closed on 1 July 2013. A pretrial hearing was set for 11 July 2013. Her name was placed on the jail list once again.

Ms. Greathouse and her counsel were in court on 11 July 2013 for her pretrial. The matter was reset to July 23, 2013.

On 23 July 2013, the defendant and her counsel were present in court for trial. That day she filed a motion to quash; the court set a hearing date on the motion for 30 July 2013. On this latter date, defense counsel, without the accused, appeared in court for the hearing of the motion to quash on 30 July 2013. The court was not in session. The matter was reset for 31 July 2013. Ms. Greathouse’s presence at the hearing was not required by the court.

On 31 July 2013, the trial court granted Ms. Greathouse’s motion to quash the state’s bill of information. The state noticed its intent to appeal; this timely appeal followed.

|fiOn appeal, the state assigns but one error: the trial court abused its discretion in granting the defendant’s motion to quash the bill of information.

The state argues that the time period by which the state must commence trial had not elapsed at the point that Ms. Great-house filed her motion to quash the bill of information. Acknowledging that its obligation is to exercise due diligence to secure the presence of the accused for trial under State v. Bobo, 03-2362, pp. 4-5 (La.4/30/04), 872 So.2d 1052, 1055-56, and being aware that the defendant was at all relevant times in its custody, the state cites La. C.C.P. art. 578 A(2), and agrees that it had two years under the statute to obtain the accused’s presence by legal process and bring the matter to trial.

The state asserts that it exercised “more than reasonable due diligence” in trying to get Ms. Greathouse to court when, on 23 January 2012, both the state and the trial court filed a WRIT to secure her presence for trial on 14 March 2012. It argues that Ms. Greathouse was not brought to court for trial on 14 March 2012 and such was attributable to the state’s inability to obtain her presence by legal process and represents a cause beyond the control of the state. Thus, the state asserts that the running of the time limitation for commencing trial was interrupted (as opposed to suspended) on 14 March 2012, and resumed when the appellee actually appeared in court on 23 March 2012. Under La.C.Cr.P. art. 579, the state argues that it had two additional years, or until 23 March 2014, in which to bring the matter to trial.

17As noted above, the defense agrees that the state was required to try this matter within two years pursuant to La. C. Cr. P. art. 578 A(2), arguing first that the state waived any argument under La. C.Cr.P. art. 579, because it failed to raise this issue before the trial court. Under Uniform Rules-Louisiana Courts of Appeal, Rule 1-3, and La.C.Cr.P. art. 920(1), issues not presented before the trial court are beyond the scope of appellate review, citing State v. Buckley, 02-1288, p. 3 (La.App. 3 Cir. 3/5/03), 839 So.2d 1193, 1197.

The defense points out that the state did not file a brief opposing the motion to quash in the trial court, and that the state’s only oral argument at the hearing was that Ms. Greathouse’s jury waiver constituted a suspending event under La. C.Cr.P. art. 580. During the 31 July 2013 hearing on the motion to quash, the state argued that Ms. Greathouse’s waiver of a jury trial on 4 September 2012 | ¡¡constituted a preliminary pleading under La.C.Cr.P. art. 580 that served to suspend the proceedings, thereby giving the state until September of 2014 to bring the matter to trial. Furthermore, Ms. Greathouse argues that the waiver of the jury, that occurred in chambers, had no delaying effect upon the trial date, which had already been set.

While not mentioned in the state’s appellate brief, the defense asserts that the only filing by the defendant that meets the La.C.Cr.P. art. 580 “other preliminary plea” criteria was the 10 June 2011 omnibus discovery/suppression motion, and it submits that these motions were disposed of by the trial court on 15 July 2011, thirty-five days later. Given the above, any suspension period ended on 15 July 2012. When her motion to quash was filed on 23 July 2013, more than a year had passed since any suspension period ended.

The defense also suggests that the “sole argument” found in the state’s brief asserts that under La.C.Cr.P. art. 579 A(2), the defendant’s trial limitation period was interrupted when, on 14 March 2012, she failed to appear for trial on that date, even though she was in state custody at the time. Claiming “due diligence,” the state concludes its brief by suggesting that the defendant’s absence on 24 March 2012, despite a WRIT having been issued by both the state and the trial court, gave the state until 24 March 2014 to commence trial (more than two years).

Ms. Greathouse responds by urging that we find as “nonsensical” the state’s assertion that it could not obtain by legal process the defendant it held in its own custody, as envisioned in La.C.Cr.P. art. 579 A(2), because it allegedly made an attempt to secure her presence but failed. In any event, the defendant repeats her 1 ^assertion that argument by the state based upon any provision of La.C.Cr.P. art. 579 may not be considered by this court under La.C.Cr.P. art. 920.

Finally, Ms. Greathouse argued in her memorandum in support of her 30 July 2013 motion to quash that nothing in the record reflects that the alleged victim ever made an appearance in court on any of the previously set trial dates. Thus, all delays were as the result of the state’s actions and not her absence from court.

First, we note that the record before us reflects that all WRITs were served upon the DOC by facsimile transmission. Such does not comport with La.C.Cr.P. art. 356. Thus, neither the court nor the state ever properly served the DOC with a WRIT. Second, since Ms. Greathouse was in the custody of the DOC, the failure of the DOC to transport her to the trial court (or to the sheriff for his transport to the courtroom) is not her fault, but rather the fault of the state because the DOC is a department of the state. The failure of the state to honor and follow through on a WRIT must be attributed to the state, not the defendant.

The law is well-settled with regard to the state’s burden in demonstrating that a suspension or an interruption of the time limitation for trial is warranted. The Court in State v. Chadbourne, 98-1998 (La.1/8/99), 728 So.2d 832, 833, opined:

110This Court has repeatedly held that the state “bears the heavy burden of showing that it is excused from trying the accused on a charge later than the period mandated by Article 578.” State v. Groth, 483 So.2d 596, 599 (La.1986); State v. Amarena, 426 So.2d 613, 617 (La.1983); State v. Devito, 391 So.2d 813, 816 (La.1980); State v. Driever, 347 So.2d 1132, 1134 (La.1977). That burden requires the state to exercise due diligence in discovering the whereabouts of the defendant as well as in taking appropriate steps to secure his presence for trial once it has found him. See State v. Taylor, 439 So.2d 410 (La.1983); State v. Nations, 420 So.2d 967 (La.1982); State v. Williams, 414 So.2d 767 (La.1982). [Emphasis supplied.]

The state’s burden with regard to establishing that an interruption or suspension of time has occurred in responding to a quashal motion by the accused was further developed by this court in State v. Brent, 00-0072, pp. 6-7 (La.App. 4 Cir. 11/29/00), 775 So.2d 565, 569. We said:

As noted in State v. Rome, 93-1221 p. 4 (La.1/14/94), 630 So.2d 1284, 1287: “An interruption of prescription occurs when the state is unable, through no fault of its own, to try a defendant within the period specified by statute.” When a defendant seeks to quash the charges against him due to a violation of the Art. 578 time limitation, the State bears the burden of showing that an interruption as envisioned by Art. 579 occurred. The State is held to a “heavy burden” of showing just and legal cause for the interruption. See Rome; State v. Taylor, 439 So.2d 410 (La.1983); State v. Mattox, 96-1406 and 96-2370 (La.App. 4 Cir. 12/10/97), 704 So.2d 380, Writ denied 98-1701 (La.8/28/98), 723 So.2d 419, and 98-2395 (La.9/25/98), 725 So.2d 493.
Motions for hearings or for a continuance by the defendant suspend the running of the periods of limitation until the ruling of the court. State v. Fabacher, 362 So.2d 555, 557 (La.1978); State v. Campbell, 97-0358 (La.App. 4 Cir. 5/20/98), 715 So.2d 488, 495, Writ denied 98-2485 (La.2/12/99), 738 So.2d 564. A motion for a joint continuance also suspends the period of limitation under La.C.Cr.P. art. 580. State v. Rome, supra. [Emphasis supplied.]

In Bobo, 03-2362, pp. 4-5, 872 So.2d at 1055-56, the Louisiana Supreme Court stated:

The rule, repeatedly upheld by this court, is that once a defendant in a felony case in Louisiana shows that his trial was not commenced within two years after the date of the institution of the prosecution, the State “bears the heavy burden of showing that it is excused from trying the accused on a charge later than the period mandated by [La. C. Cr. P. art.] 578.” State v. Groth, 483 So.2d 596, 599 (La.1986); State v. Amarena, 426 So.2d 613, 617 (La.1983); State v. Devito, 391 So.2d 813, 816 (La.1980) (on reh’g). This heavy burden “requires the State to exercise due diligence in discovering the whereabouts of the defendant as well as taking appropriate steps to secure his presence for trial once it has found him.” State v. Chadbourne, 98-1998, p. 1 (La.1/8/99), 728 So.2d 832. The State may discharge this burden by demonstrating that a ground for interruption exists under La. C. Cr. P. art. 579, which provides, in pertinent part:
A. The period of limitation established by Article 578 shall be interrupted if:
(1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or
(2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state;
B. The periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists.
Under Article 579, then, because the Ouachita Parish grand jury indicted Bobo on December 2, 1998, the State had two years from that date to bring Bobo to trial, unless prescription was interrupted under Subsection (A)(1) or (2). [Emphasis supplied; footnote omitted].

[ laWith regard to the issue of suspension of the time limitations for trial caused by preliminary pleas, the Second Circuit in State v. Jones, 41,449, pp. 21-22 (La.App. 2 Cir. 9/20/06), 940 So.2d 61, 73-74, set forth those preliminary pleas governed by La. C.Cr.P. art. 580, and develops the concept of the “heavy burden” that the state must bear in demonstrating that a suspension of time for bringing a matter to trial is warranted. The court opined:

For purposes of Art. 580, a preliminary plea is any pleading or motion filed by the defense which has the effect of delaying trial. State v. Brooks, 2002-0792 (La.2/14/03), 838 So.2d 778. These pleadings include properly filed motions to quash, motions to suppress, or motions for a continuance, as well as applications for discovery and bills of particulars. Id. Joint motions for a continuance fall under the same rule. Id. The delays occasioned by a defendant’s efforts to secure counsel do not invariably constitute grounds for suspension of the time limits for trial specified by Art. 578 when they have not “affected the state’s efforts to prosecute in any respect.” Brooks, supra, citing State v. Carr, 271 So.2d 871, 872 (La.1973).
Once the accused shows that the state has failed to bring him to trial within the time periods specified by Art. 578, the state bears a heavy burden of demonstrating that either an interruption or a suspension of the time limit tolled prescription. State v. Morris, 99-3235 (La.2/18/00), 755 So.2d 205. [Emphasis supplied.]

We agree with Ms. Greathouse that the state’s arguments both in the trial court and in its appeal are inaccurate and disingenuous. However, pursuant to La. C.Cr.P. art. 920(2), the scope of appellate review extends to any “error that is discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence.” Our inspection of the docket master reveals two issues not addressed in the trial court or by the parties on appeal.

Ms. Greathouse’s current counsel filed a second omnibus motion for discovery, etc., on 26 March 2012. A pretrial hearing was held on 4 April 2012, at 1 iswhich time a trial date was set; nothing in the record before us mentions anything about this second omnibus motion. The filing of this motion suspended the time within which the state had to try Ms. Greathouse. See Jones, supra. However, the record contains nothing to show that (1) the court knew the motion had been filed, (2) the motion was discussed, and/or (3) a ruling was made thereon. Therefore, we must set aside the trial court’s judgment and remand the matter to the trial court to determine what, if anything, was done with the 26 March 2012 motion. While we can assume that the motion was disposed of on or before 4 April 2012 because a trial date was selected, neither party addressed this issue.

Second, Ms. Greathouse and her co-defendant, Ms. Richard, were jointly charged in the bill of information and their charges were never severed. That which is not addressed is whether Ms. Richard’s filing of preliminary pleas suspended the article 580 time limits as applicable to Ms. Greathouse. Louisiana jurisprudence is unclear on the point and federal jurisprudence recognizes that preliminary plea of one co-defendant may suspend the time against all codefendants. See U.S. v. Jones, 56 F.3d 581, 583 n. 4 (5th Cir.1995) Unless or until the co-defendant’s case is severed from the defendant’s, “the excludable delay of one codefendant may be attributed to all defendants.” United States v. Bermea, 30 F.3d 1539, 1567 (5th Cir.1994), cert. denied, 513 U.S. 1156, 115 S.Ct. 1113, 130 L.Ed.2d 1077 (1995) [emphasis by the court]; see also State v. Thomas, 10-0528, 10-0529, 10-0303 (La.App. 4 Cir. 7/15/10), 54 So.3d 1.

| uThe judgment of the trial court is vacated and this ease is remanded to the trial court with instructions to determine the issues raised above and determine the number of days that the two-year prescriptive period (in this case, 731 days because 2012 was a leap year) was suspended under La.C.Cr.P. art. 580.

VACATED; REMANDED.

BELSOME, J., dissents with reasons.

BELSOME, J.,

dissents with reasons.

hi dissent from the majority opinion.

As acknowledged by the majority, the state bears the burden of proving that it is excused from trying the accused within the time period mandated in La.C.Cr.P. art. 578. The majority further recognized that the state failed to meet its burden in the trial court and on appeal. However, the majority cites to what is not in the record or raised on appeal to determine that the matter must be vacated and remanded. More specifically, the majority finds an entry on the docket master suggests a second omnibus motion was filed which would serve to suspend the time within the state had to try the defendant. Yet, other than the docket master entry the record is void of any mention of the second omnibus motion by the trial court or either party. The majority also suggests that there is the possibility that a codefendant may have filed pleadings that may have suspended time limits under article 580, but are not evident in this record. Again, the issue was not presented to the trial court or raised on appeal.

It is well established that this Court is only allowed to reverse a trial court judgment on a motion to quash if the ruling represents an abuse of the trial court’s discretion. State v. Love, 2000-3347, pp. 9-10 (La.5/23/03), 847 So.2d 1198, 1206-07. The majority’s opinion relies on pure conjecture and fails to establish an abuse of discretion on the part of the trial court. Accordingly, I would affirm the trial court’s judgment granting the motion to quash.

      . Ms. Greathouse’s given name is spelled in the record in the following ways: Troylynn, Trolynn, Troilynn, and Trolyn.

      . The co-defendant, Keiare E. Richard, was also charged in the same bill, and the case of Ms. Richard has not been severed. This opinion only addresses the issues relating to Ms. Greathouse.

      . La.C.Cr.P. art. 382.

      . The two-year prescriptive period for commencement of trial of La.C.Cr.P. art. 578 A(2) is suspended when an accused files a motion to quash or other preliminary plea as discussed infra. Thus, the two-year period was suspended from 10 June 2011 through 15 July 2011, a period of thirty-five days.

      . The record before us mentions only the motion for suppression of identity. Because it is not argued by the state, we presume that the court dealt with the other motions as well, as the defendant contends in her brief.

      . At various times, a writ of habeas corpus ad testificandum was issued in lieu of a writ of habeas corpus ad prosequendam, both of which were intended to bring Ms. Greathouse to court for a hearing or the trial in her case. The writ of habeas corpus ad prosequendam is the correct writ because the proceeding was against her. However, we find no material difference between the two writs insofar as the issues in this case. Accordingly, we refer to them as a "WRIT.”

      . The jail list is a listing issued by the trial court directed to the sheriff to transport all persons named on the list and in the sheriff's custody from parish prison to the court on a particular day. A WRIT is directed to either a sheriff or the Department of Corrections (“DOC”) to transport a person in their custody to the court. Sometimes, the DOC will transport a person in its custody to the sheriff for transfer by the sheriff to the court; such explains why a WRIT and a jail list are necessary to hopefully assure that a person be transported to court on a specific day.

      . This second omnibus motion is never noted on the docket master or in any minute entry.

      . If the 26 March 2012 omnibus motion for discovery was not ruled upon, we interpret the accused's motion of 28 May 2013 as waiving the omnibus motion because inherent in a motion for speedy trial is the accused’s assertion that he/she is ready for the trial to com-menee without delay. Accordingly, because the record does not reflect a ruling on the omnibus motion, the two-year prescriptive period of La.C.Cr.P. art. 578 A(2) was presumptively suspended between the two dates per La.C.Cr.P. art. 580.

      . La.C.Cr.P. art. 578 A(2) provides:
      A. Except as otherwise provided in this Chapter, no trial shall be commenced nor any bail obligation be enforceable:

      (2) In other felony cases after two years from the date of institution of the prosecution.

      . La.C.Cr.P. art. 579 states in pertinent part:
      A. The period of limitation established by Article 578 shall be interrupted if:
      (1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or
      (2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state; or
      (3) The defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record.

      . La.C.Cr.P. art. 920 provides:
      The following matters and no others shall be considered on appeal:
      (1) An error designated in the assignment of errors; and
      (2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.

      . The actions by which a defendant may suspend the running of that time limit are set forth in La.C.Cr.P. art. 580, which states:
      A. When a defendant files a motion to quash or other preliminary plea, the running of the periods of limitation established by Article 578 shall be suspended until the ruling of the court thereon; but in no case shall the state have less than one year after the ruling to commence the trial.
      B. The periods of limitation established by Article 578 shall also be suspended if the court grants a continuance in accordance with the provisions of Paragraph B of Article 709.

      . The docket master for 4 September 2012, the only court date set for that month, makes no mention of a waiver by the accused.

      . La.C.Cr.P. art. 356 states:
      Service of the writ may be made on any day by
      (1) Delivering it to the person to whom it is addressed;
      (2) Informing him of its contents if he refuses to receive it; or
      (3)Attaching the writ to an entrance door of the residence of the person to be served or of the place of custody if such person conceals himself or cannot be found or refuses admittance to the person attempting service.
      A writ of habeas corpus, although addressed to a particular person, may be served in the manner provided by this article upon any person who has custody of the person whose release is sought.

      . We recognize from our experience that, in Orleans Parish Criminal District Court, motions are sometimes filed with the section of court to which the case is allotted and other times with the Clerk of Criminal District Court. We do not know where the defendant's motion was filed. From our experience, we also know that motions filed in the Clerk’s office are sometimes not transmitted to the appropriate section of court for action, especially in sections where the custom of that section is for motions to filed and delivered by counsel only to that section.


author: SANDRA CABRINA JENKINS, Judge.

text:
    Elena MAZZINI v. Karen STRATHMAN.
    No. 2013-CA-0555.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 16, 2014.

      Irl R. Silverstein, David A. Silverstein, The Silverstein Law Firm, APLC, Gretna, LA, for PlaintiffAppellee.
    Chad B. Ham, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge Dennis R. Bagneris, Sr., Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins).
   SANDRA CABRINA JENKINS, Judge.

J^This appeal arises from a judgment of eviction resulting from a breach of a written lease agreement between the parties. The terms of the lease provided that no pets would be allowed in the leased premises without the prior written approval of the landlord. The trial court rejected the tenant’s argument that an eviction would violate federal anti-discrimination and housing laws allegedly allowing her to maintain a pet as an emotional support animal. For the reasons discussed herein, the judgment of the trial court is affirmed.

BACKGROUND

Elena Mazzini is the owner of property located on St. Charles Avenue and leased to the Appellant, Karen Strathman, who resided at the property "with her dog. On February 4, 2013, Ms. Mazzini initiated eviction proceedings in the First City Court for the Parish of New Orleans alleging that Ms. Strathman violated the terms of her lease agreement which prohibit a tenant from having a dog on the property.

|2Under a section entitled, “PETS,” the lease agreement dated April 16, 2009, states:

No pets shall be allowed on the premises at any time. However, this provision shall not preclude Lessor from modifying any lease to allow pets by mutual written agreement between Lessor and Lessee.

The lease further provides:

Should the Lessee at any time violate any of the conditions of this lease ... and should such a violation continue for a period of five days after written notice has been given Lessee (such notice may be posted on Lessee’s door) or should such violation again occur after written notice to cease and desist from such activity or disturbance, then, Lessee shall be in default and Lessor shall have the right to demand the rent for the whole unexpired term of this lease which at once becomes due and payable or to immediately cancel this lease and obtain possession of the premises in accordance with the provisions of Article 4701 et. seq. of Louisiana Code of Civil Procedure, or to exercise any further rights granted by this lease or available by law.

In her answer to the petition for eviction filed on February 13, 2013, Ms. Strathman argued that the owner was not entitled to possession of the premises because the terms of the lease had not expired; because she had not been given a thirty-day notice prior to the termination of the lease; and because she had a prescription that allowed her to have a dog as an “Emotional Support Animal” pursuant to the Fair Housing Amendments Act of 1988 (FHA) and the Americans with Disabilities Act (ADA).

Attached as an exhibit to Ms. Strath-man’s answer was a letter from a licensed social worker stating that Ms. Strathman was a patient under her care who, “[d]ue to emotional issues/illness ... has certain limitations coping with stress/anxiety, etc.” The letter further stated that “[i]n order to help alleviate these ^difficulties, and to enhance her ability to live independently and to fully use and enjoy the dwelling,” she was prescribing an emotional support animal to assist Ms. Strathman in coping with her disability. The letter dated January 15, 2013, was directed to the owner or administrator of property and sworn to and prescribed before Ms. Strathman’s attorney. In her pleadings, Ms. Strathman refers to the letter as a “Prescription Affidavit.”

During the eviction hearing held on February 13, 2013, Ms. Mazzini objected to the entry of the “Prescription Affidavit” on the grounds that it was not credible evidence, that it was hearsay, and that the first time she saw the affidavit was the morning of the hearing. The trial court reviewed the affidavit, noting that the social worker who created it was not present to testify regarding the information contained therein; consequently, the trial court excluded the affidavit on the grounds that it was inadmissible hearsay.

After hearing testimony from Ms. Strathman and argument of counsel, the trial court rendered judgment in favor of the owner, Ms. Mazzini. In doing so, the trial court explicitly rejected Ms. Strath-man’s claim that she had a disability for which her landlord was required to make special accommodations under the law. This appeal followed.

|4LAW and analysis

Standard of Review

We review factual findings of the lower court under the manifest error standard of review. Applying that standard, we must first find from the record that there is a reasonable factual basis for the lower court’s findings of fact; second, the record must establish that the lower court’s findings are not manifestly erroneous or clearly wrong. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Factual findings should not be reversed on appeal absent manifest error. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). As long as the trier of fact’s findings are reasonable in light of the record as a whole, we will affirm. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990).

Affidavit of Social Worker

By her first assignment of error, Ms. Strathman claims that the trial court erred by excluding from evidence the alleged “Prescription Affidavit” of Nancy Timm, LCSW. Our review of the record reveals that the trial court examined the document at the eviction hearing, over the objection of the owner, and then excluded the document as inadmissible on the basis that it was hearsay. Thereafter, Ms. Strathman failed to proffer the document at trial as allowed by La. C.C.P. art. 1636.

In Ritter v. Exxon Mobile Corporation, 2008-1404 (La.App. 4 Cir. 9/9/09), 20 So.3d 540, 546, we explained the implications of failing to proffer evidenced deemed inadmissible, stating:

| sIt is well settled that “evidence not properly and officially offered and introduced cannot be considered, even if physically placed in the record. Documents attached to memoranda do not constitute evidence and cannot be considered as such on appeal.” Denoux v. Vessel Management Services, Inc., 2007-2143 (La.5/21/08), 983 So.2d 84. When the trial judge rules the evidence is inadmissible, a proffer (offer of proof) can be made. La. C.C.P. art. 1636. It is incumbent upon the party who contends his evidence was improperly .excluded to make a proffer, and if he fails to do so, he cannot contend such exclusion is error. Grusich v. Grusich, 447 So.2d 93 (La.App. 4 Cir.1984).

See also, McLean v. Hunter, 495 So.2d 1298 (La.1986) (Explaining that purpose of a proffer is to preserve evidence excluded by the trial court so that the evidence is available for appellate review).

Because Ms. Strathman failed to proffer the “Prescription Affidavit” after the trial court excluded it as inadmissible hearsay, she is precluded from raising the issue of its admissibility before this Court on appeal.

Disability Status of Lessee

In Ms. Strathman’s second assignment of error, she claims that the trial court erred in finding that she was not disabled and therefore not qualified to keep her dog under the federal FHA and ADA.

Ms. Strathman testified on her own behalf at the hearing. The dog, described by the court as a “tiny little dog,” was allowed to enter the court with her. According to Ms. Strathman, she is disabled because she suffers from severe anxiety and severe allergies, which cause nausea and anaphy-laxis. She claimed that she was unable to work and supports herself from savings. Ms. Strathman advised the court that the dog helps her because it gets her outdoors and detracts attention away from her. While evidence revealed that Ms. Strath-man had obtained |fipermission to keep two cats in her unit, she advised the court that her eats could not serve as emotional support animals because they were inside pets that did not require her to go outside. Ms. Strathman was of the opinion that she did not need to be medically diagnosed with a disability because the dog is an emotional support dog, which is distinguishable from an ADA service dog.

The FHA prohibits discrimination “against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap.” 42 U.S.C. § 3604(f)(2). A landlord engages in unlawful discrimination under if FHA if he or she refuses “to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(F)(3)(B).

In order to establish a prima facie ease against Ms. Mazzini for failure to accommodate her disability under the Section 3604(F)(3)(B) of the FHA, Ms. Strathman must have been able to show, at minimum, the following:

(1) That she suffers from a disability within the meaning of 42 U.S.C. § 3602(h);
(2) That the owner knew of her disability or reasonably should be expected to know of it;
(3) That an accommodation may be necessary to give the resident an equal opportunity to use and enjoy the dwelling;
(4) That the requested accommodation is reasonable; and
(5) The owner refused to make the accommodation.

Overlook Mut. Homes, Inc. v. Spencer, 666 F.Supp.2d 850, 855 (S.D.Ohio 2009), aff'd, 415 Fed.Appx. 617 (6th Cir.2011) (quoting DuBois v. Assoc. of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175, 1179 (9th Cir.2006)).

The lower court found that Ms. Strathman failed to satisfy the first prong of this test by showing that she suffered from a disability. Pursuant to 42 U.S.C. 3602(h), a person is considered handicapped or disabled under the FHA when the person has “(1) a physical or mental impairment which substantially limits one or more of such person’s major life activities, (2) a record of having such an impairment, or (3) being regarded as having such an impairment.”

The FHA defines a “handicapped” person as one who has: (1) a physical or mental impairment which substantially limits one or more of such person’s major life activities; (2) a record of such impairment; or (3) is regarded as having such impairment. 42 U.S.C. 3602(h)(1) — (3). The term, “disability” has the same definition under the ADA. 42 U.S.C. § 12102(1).

In the present case, Ms. Strath-man alleged that she had an actual disability. However, “merely having a disability does not make one disabled” under disability discrimination laws. Beaumont v. Exxon Corp., 02-2322, p. 12 (La.App. 4 Cir. 3/10/04), 868 So.2d 976, 983 (quoting Toyota Motor Mfg., Kentucky, Inc., v. Williams, 534 U.S. 184, 195, 122 S.Ct. 681, 690, 151 L.Ed.2d 615 (2002)). Rather, establishing the existence of an actual disability under the FHA and ADA involves a three step process. First, the court must determine whether the claimant’s alleged condition constitutes a mental or physical impairment. Bragdon, 524 U.S. at 632, 118 S.Ct. at 2201. Second, the court must determine whether this impairment “affects a major life activity.” Id., 524 U.S. at 637, 118 S.Ct. at 2205. Third, the court must find that the impairment placed “a substantial limit on the major life activity” asserted. Id., 524 U.S. at 639, 118 S.Ct. at 2205. The term, “major life activity” is generally defined to include “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working,” but is not limited to these tasks. 42 U.S.C.A. 12102(2)(A).

Based on the record before us, there is insufficient evidence to disturb the trial court’s finding that Ms. Strathman failed to satisfy her burden of proving that she had a disability which her landlord failed to accommodate for. Although Ms. Strathman testified that she suffered from allergies and depression, she did not introduce any medical evidence at trial to substantiate these allegations. In addition, there was no evidence to corroborate Ms. Strathman’s subjective testimony that her alleged ailments substantially limited any of her major life activities. Depression is not per se a disability and in order for depression to constitute a disability under the ADA, it must substantially limit a major life activity. Pritchard v. The Southern Company Services, et al., 92 F.3d 1130, 1132 (11th Cir.1996). The same holds true for Ms. Strathman’s claim that she suffers from severe allergies.

Further, we note that there is nothing in the record to indicate that the owner knew of Ms. Strathman’s alleged disabilities or was reasonably expected to know about— them as required by the second prong of the test. Overlook, supra, 666 F.Supp.2d at 855. At the eviction hearing, Ms. Strathman testified that she had resided in the apartment for approximately four years, but that she had only had the dog for a few months. In addition, Ms. Strath-man did not dispute her landlord’s allegation that she was first made aware of Ms. Strathman’s alleged disability and her purported need for an emotional support animal on the morning of the hearing. Instead, Ms. Strathman’s counsel explained that the information was not provided beforehand because it had not been requested.

Under the facts of this case, we cannot say that the trial court erred in concluding that the landlord, Ms. Mazzini, was under no obligation to deviate from the terms of their lease agreement and allow Ms. Strathman to keep dog on the premises. “Contracts have the effect of law for the parties and may be dissolved only through consent of the parties or on grounds provided by law.” La. C.C. art. 1983. Absent law to the contrary, the contract must be enforced as written.

The trial court’s judgment is affirmed.

|1(>Attorney Fees

Counsel for Ms. Mazzini filed an answer to the appeal, seeking an award for attorney fees incurred in responding to the appeal. The lease executed by the parties clearly provided that in the event an attorney is employed to protect the rights of the Lessor, Lessee would be responsible for the fees of the attorney.

According to the its plain language, “[a]t the expiration of [the] lease, or its termination for other causes, Lessee is obligated to immediately surrender possession, and should he fail to do so, he consents to pay ... attorney’s fees.” In the section entitled, “ATTORNEY FEES,” the lease more specifically states:

Lessee further agrees that if an Attorney is employed to protect the rights of the Lessor hereunder, Lessee will pay the fee of such attorney. Such fee is hereby fixed at twenty-five (25%) of the amount claimed or a minimum of $300.00 whichever is greater.

In the interpretation of contracts, the specific controls the general. Corbello v. Iowa Production, 02-0826, p. 24 (La.2/25/03), 850 So.2d 686, 704, clarified on rehearing on other grounds, 02-0826 (La.6/20/03), 850 So.2d 686 (per curiam). Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract. La. C.C. art. 2050; Lee v. First National Bank of Commerce, 04-659 (La.App. 5 Cir. 2/15/05), 893 So.2d 1030, 1034, writ denied, 05-0907 (La.5/20/05), 902 So.2d 1054. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art. 2046.

Inin support of the claim for attorney fees, Ms. Mazzini’s attorney has submitted an affidavit setting forth the time involved in the appeal of this matter and requesting a reimbursement for resultant legal fees. While we find that the time spent and reimbursement requested would otherwise be reasonable based on the complexities of the issues involved in this case, Ms. Mazzini’s recovery for attorney fees is clearly limited to 25% of the amount claimed or $300.00, whichever is greater. Nevertheless, because this appeal stems from eviction proceedings wherein no monetary claim for damages have been sought by the landlord, based on the language of the contract, we award Ms. Mazzini attorney fees in the amount of three hundred dollars ($300.00).

MOTION TO WITHDRAW

After instituting this appeal and submitting the appellant’s brief, Ms. Strathman’s attorney filed a motion to withdraw alleging the development of a conflict of interest. Due to the alleged conflict, and considering the lack of any opposition to the motion, counsel’s motion to withdraw is granted. See generally, Louisiana Rules of Professional Conduct, Rule 1.7 (conflict of interest) and Rule 1.16 (declining or terminating representation).

| ^DECREE

■ For the reasons discussed herein, we affirm the judgment of the trial court granting the Rule to Evict and assessing court costs against the appellant, Ms. Karen Strathman. In addition, three hundred dollars ($300.00) in attorney fees and all costs of this appeal are assessed to Ms. Strathman.

Appellate counsel’s motion to withdraw as attorney of record for appellant, Karen Strathman, is granted.

AFFIRMED; MOTION TO WITHDRAW GRANTED.

BELSOME, J., concurs in the result.

      .According to two separate addendums to the lease dated and signed April 16, 2009, and March 30, 2012, it was agreed that Ms. Strathman would be allowed to have two cats after posting the requisite deposit; all other terms and conditions of the residential lease were to remain the same.

      . 42 U.S.C. § 3601 et seq., as amended by the Fair Housing Amendments of 1988.

      . See, 42 U.S.C. § 12101 et seq.

      . Notice of the judgment was mailed to the parties on February 13, 2013, and Ms. Strath-man filed a Motion for Suspensive Appeal on February 14, 2013, requesting that the court set timely rented payments as security for the appeal. In response to the Order of Suspen-sive Appeal, Ms. Mazzini filed a Rule to Test the Sufficiency of Bond, which was set for hearing on the return date, March 11, 2013. The record is incomplete regarding the judgment and/or what transpired and the parties have not raised the sufficiency of bond as an issue on appeal.

      . La. C.C.P. art. 1636(A) states: "When the court rules against the admissibility of any evidence, it shall either permit the party offering such evidence to make a complete record thereof, or permit the party to make a statement setting forth the nature of the evidence.”

      . See also, Stevens v. Hollywood Towers and Condominium Assoc., 836 F.Supp.2d 800, 808 (N.D.Ill.2011).

      . For purposes of discussing the FHA, "handicap” and "handicapped” can be used interchangeably with "disability” and "disabled.” See e.g., Giebeler v. M & B Associates, 343 F.3d 1143, 1146 n. 2 (9th Cir.2003).

      . See, e.g., Bragdon v. Abbott, 524 U.S. 624, 631, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998) (Explaining that "[t]he ADA’s definition of disability is drawn almost verbatim” from the definitions in the Rehabilitation Act and the Fair Housing Amendments Act of 1988 and explaining that "Congress’ repetition of a well-established term carries the implication that Congress intended the term to be construed in accordance with pre-existing regulatory interpretations.” (Internal citations omitted)).

      . The Supreme Court defines the term, “substantially limits” to mean that a life activity must be limited considerably or to a large degree. Toyota Motor, supra, 534 U.S. at 196, 122 S.Ct. at 681.

      . Ms. Mazzini requests a total One Thousand, Two Hundred Twenty-Five Dollars ($1,225.00), in legal fees.

      . In awarding attorney fees, we are also mindful that the FHA authorizes the award of attorney fees and costs to the prevailing party in an FHA discrimination case. 42 U.S.C. 3613(c)(2). In such instances, the Supreme Court has held that a fee award to a prevailing defendant is appropriate only when an action is " ‘unreasonable, frivolous, meritless or vexatious. ” Christiansburg Garment Co., 434 U.S. at 421, 98 S.Ct. 694 (quoting Carrion v. Yeshiva Univ., 535 F.2d 722, 727 (2d Cir.1976)). It also explained that the purpose of the award is to "protect defendants from burdensome litigation having no legal or factual basis.” Id. at 420, 98 S.Ct. 694. Because attorney fees in this case are awarded based on contract, we do not reach a determination of whether they are otherwise recoverable in appeal of eviction proceedings.