author: CLARK, Justice.

text:
    PROPERTY INSURANCE ASSOCIATION OF LOUISIANA v. Steve THERIOT, In his Official Capacity as the Legislative Auditor for the State of Louisiana.
    No. 2009-CC-1152.
    Supreme Court of Louisiana.
    March 16, 2010.

      Middleberg, Riddle & Gianna, Elliot Ross Buckley, Jr., New Orleans, Jennifer Rebekah Wardern, Sonia Mallett, New Orleans, Alvin John Herbert, III, for Applicant.
    James D. Caldwell, Attorney General, Angelique Duhon Freel, Uma Maheswari Subramanian, Assistant Attorneys General, Jenifer Schaye, for Respondent.
    James D. Caldwell, Attorney, Angelique Duhon Freel, Uma Maheswari Subramani-an, Assistant Attorneys General, Jenifer Schaye, Baton Rouge, for Respondent.
   CLARK, Justice.

_JjWe granted this writ application in order to determine whether the courts below erred, first, in denying the motion for summary judgment filed by Property Insurance Association of Louisiana, and, then, in granting the motion for summary judgment filed by the Legislative Auditor for the State of Louisiana and finding that Property Insurance Association of Louisiana is a public entity. For the reasons which follow, we reverse the ruling of the court of appeal, render summary judgment in favor of Property Insurance Association of Louisiana, and find that Property Insurance Association of Louisiana is a private association.

FACTS and PROCEDURAL HISTORY

Property Insurance Association of Louisiana (“PIAL”) is an industry trade group and the primary rating organization for fire insurance in the state. In 2001, PIAL entered into a contract to manage and conduct the business of the Louisiana Auto Insurance Plan (“LAIP”), the state’s auto insurer of last resort. Likewise, in 2003, PIAL contracted with Louisiana Citizens Property Insurance Corporation (“Citizens”), the state’s property insurer of last resort, for Citizens’ operation and administration.

|2In 2007, Steve Theriot, then the Legislative Auditor for the State of Louisiana (“LLA”), began a compliance audit of Citizens, LAIP, and PIAL for calendar years 2004, 2005, and 2006. In connection with its audit, LLA issued an Information Report dated September 12, 2007. In the Report, LLA delivered its opinion that PIAL was a public entity which was subject to the Ethics Code, Civil Service Laws, Open Meetings Laws, Audit Laws, Public Bid Law, Professional Services Procurement Law, and Procurement Code.

On September 28, 2007, PIAL filed a petition for declaratory judgment in the Nineteenth Judicial District Court, naming LLA as defendant. In its petition, PIAL prayed for a judgment declaring that PIAL is a private association and not a public agency. LLA answered the suit, denying that PIAL was a private association and asking for a judgment declaring PIAL a public entity under the laws of the state. Shortly thereafter, LLA filed a motion for summary judgment, again asking the court to render a judgment declaring that PIAL is a public entity under Louisiana law. PIAL responded with its own motion for summary judgment, praying that the court declare PIAL a private association.

After hearing the competing motions for summary judgment, the trial court denied both motions. Both parties appealed. After denying PIAL’s writ, the court of appeal granted LLA’s writ, reversed the trial court’s denial of LLA’s motion for summary judgment, rendered judgment granting LLA’s motion for summary judgment, and declared that PIAL is a public entity for all purposes.

This Court granted writs in order to examine the propriety of that |sdecision.

DISCUSSION

We apply a de novo standard of review in considering the lower courts’ rulings on the parties’ summary judgment motions. Suire v. Lafayette City-Parish Consolidated Government, 2004-1459, p. 11 (La.4/12/05), 907 So.2d 37, 48. Summary judgment should be granted when

the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. Code Civ. P. art. 966(B). A genuine issue exists where reasonable persons, after considering the evidence, could disagree. In determining whether an issue is genuine, a court should not consider the merits, make credibility determinations, evaluate testimony or weigh evidence. A fact is “material” if it is one that would matter at trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of trial on the merits.

Suire, 907 So.2d at 48.

The question raised in both motions for summary judgment is whether PIAL is a public or private entity. As argued by the parties and as discussed by the court of appeal, this Court has specified four factors which determine an entity’s public or private character. These factors are (1) whether the entity was created by the legislature, (2) whether its powers were specifically defined by the legislature, (3) whether the property of the entity belongs to the public, and (4) whether the entity’s functions are exclusively of a public character and performed solely for the public benefit. State v. Smith, 357 So.2d 505 (La.1978). In Smith, while not stating explicitly that all four factors must be met in order to find that an entity was public, |4we did so by implication. Today, we hold that all four factors must be present in order for a court to determine that an entity is public. Accordingly, we address each factor.

Was PIAL created by the legislature ?

PIAL contends that the organization’s predecessor was chartered in 1888 by private fire insurance companies as a private association, and that the legislature on several occasions has only authorized its existence. LLA, however, argues that the legislature created PIAL’s predecessor in Act 302 of 1926, which mandated that the fire insurance companies organize a fire prevention bureau, and, in the same act, dissolved any previously organized bureaus.

A review of the history of Louisiana’s fire prevention bureaus shows that in 1888, fire insurance companies in the state formed by charter the Property Holders Mutual Aid Fire Indemnity Society, which PIAL claims as its predecessor. The legislature, in Act 110 of 1900, implicitly recognized the association’s existence, and made it unlawful for fire insurance companies, associations, or partnerships to organize for the purpose of governing, controlling, or influencing insurance rates. In 1902, Act 183 made it lawful for fire insurance companies to organize a Fire Prevention Bureau to make inspections as to physical care and condition of risks, to define the safest methods of construction, and to supervise the installation of devices involving fire hazards, all in order to reduce the chance of fire.

Act 189 of 1904 again authorized fire insurance companies to organize a Fire Prevention Bureau to make inspections as to physical care and condition of risks, to |fidefine the safest methods of construction, to supervise the installation of devices involving fire hazards, and to collect statistical information in order to reduce the chance of fire. In 1912, the legislature, through Act 224, again declared that it was unlawful for fire insurance companies, associations, or partnerships to organize for the purpose of governing, controlling, or influencing insurance rates.

The legislature “created” the Insurance Commission by means of Act 302 of 1926. The act also ordered fire insurance companies to “organize” the Louisiana Rating and Fire Prevention Bureau under the supervision of the Insurance Commission. As contemplated by the Act, the Rating and Fire Prevention Bureau was to be organized by the fire insurance companies, to make rates with the approval of the Insurance Commission, to make inspections as to physical care and condition of risks, to define the safest methods of construction, and to supervise the installation of devices involving fire hazards, all in order to reduce the chance of fire. Act 302 also dissolved the fire prevention bureau organized under Act 189 of 1904 and authorized the Insurance Commission to audit the new Bureau’s books.

In Act 125 of 1958, the legislature amended and re-enacted the first and second chapters of the Insurance Code. The Act continued the Louisiana Rating and Fire Prevention Bureau, which was to inspect every risk specifically rated by schedule and make written surveys of such risks, to define the safest methods of construction, to supervise the installation of devices involving fire hazards in order to reduce the chance of fire, and to make rates with approval of the Insurance Commission. The Act also allowed for corporations, unincorporated associations, partnerships and individuals to apply to the Insurance Commission for licensing as “other rating organizations.” The Act continued to authorize the audit of the Louisiana Rating and Fire Prevention Bureau by the Insurance Commission.

Act 311 of 1975 changed the name of the Louisiana Rating and Fire Prevention | fiBureau to the Property Insurance Association of Louisiana. In 1999, Act 885 transferred the Board of Directors of PIAL to the Department of Insurance. Finally, in 2007, Act 420 authorized LLA to audit PIAL, and Act 459 changed the makeup of PIAL’s Board of Directors.

That the legislature has concerned itself with fire prevention, fire safety, and fee insurance rate making is clear — what is less clear is whether the legislature itself created the fire prevention bureau or, instead, arranged for its creation by another body. Assuming that LLA is correct that PIAL’s predecessor was formed in 1926 rather than in 1888, we look to the wording of Act 302 of 1926.

Act 302 reads, in pertinent part:

AN ACT
To establish uniform rates for fire, windstorm and hail, and automobile fire and theft insurance in Louisiana, and to prohibit discrimination in insurance rates; to provide for the organization of a “Rating and Fire Prevention Bureau”; to create an Insurance Commission, fix its powers and prescribe its duties; to provide penalties for the violation of this Act; to repeal Act 189 of 1904, and all laws in conflict.
Qualifications, Number, Powers and Salary of Commissioners.
Section 1. Be it enacted by the Legislature of Louisiana, That there is hereby created a Board to be known as the Insurance Commission ...
Louisiana Rating and Fire Prevention Bureau.
Section 2. Under the supervision of the Insurance Commission the Stock fire insurance companies licensed to do business in this State shall organize a Bureau to be styled “The Louisiana Rating and Fire Prevention Bureau” ...

1926 La. Acts, No. 302, p. 571, 571-72.

The rules of statutory interpretation mandate that this Court consider the legislature’s choice of language as deliberate. Miller v. LAMMICO, 2007-1352, p. 15 (La.1/16/08), 973 So.2d 693, 703-4, citing Hall v. Brookshire Brothers, Ltd., 2002-2404, p. 19 (La.6/27/2003), 848 So.2d 559, 571. In the Act, the legislature | /‘created” the Insurance Commission in Section 1, but then in the following section, ordered the “fire insurance companies” to “organize” the Louisiana Rating and Fire Prevention Bureau. Had the legislature intended to “create” the Louisiana Rating and Fire Prevention Bureau, it could have done so, just as it “created” the Insurance Commission in the same act.

An example of the legislative creation of an entity may be found in La. R.S. 22:2056, by which the legislature created the Louisiana Insurance Guaranty Association. The statute reads in pertinent part:

§ 2056. Creation of the association
A. There is created a private nonprofit unincorporated legal entity to be known as the “Insurance Guaranty Association”, [sic] whose domicile for purpose of suit shall be East Baton Rouge Parish, Louisiana. All insurers defined as member insurers in R.S. 22:2055 shall be and remain members of the association as a condition of their authority to transact insurance in this state. The association shall perform its functions under a plan of operation established and approved under R.S. 22:2059 and shall exercise its powers through a board of directors established under R.S. 22:2057.

La. R.S. 22:2056(A).

We hold that the legislature did not create the Property Insurance Association of Louisiana.

Are PIAL’s powers specifically defined by the legislature?

LLA argues that PIAL’s powers were specifically defined by the legislature in Act 302 of 1926, and that PIAL’s powers are now defined in La. R.S. 22:1460. PIAL contends that these specified powers are not exclusive, and that it possesses other powers derived from its corporate governance documents or through its board of directors, such as providing services to insurance companies, hiring and firing employees, and entering into contracts.

| sLa, R.S. 22:1460 reads in pertinent part:

* * *
D. The powers and duties of the association shall be:
(1) To inspect or cause to be inspected every risk specifically rated by schedule for property damage insurance and to make a written survey of such risk, which shall be filed as a permanent record in the main office of the association. Present inspections and surveys may be used in lieu of new inspections and surveys. Such survey or schedule shall give in detail the defects either of construction or of occupancy, or both, existing in the risk which effect the property damage rate. The rate at which the risk must be written by the members of the association shall be stated in the survey together with the relative measure which each defect bears to the fire hazard as a whole and to the basic cost of the same and the consequent proportionate value of each improvement suggested to minimize the chances of fire so that each assured may be informed as to the manner in which his rate was determined and the measures which should be taken to effect a reduction in the rate and the sum of each reduction. The records of the association shall be exempt from the application of R.S. 44:1 et seq., except that a copy of such survey shall be furnished, upon request, to the owner of every risk, or to any member company or resident agent, provided said company has a policy in effect on the risk, without expense to said owner.
(2) To make rates on fire and extended coverage insurance as defined in Paragraphs (10) and (lib) of R.S. 22:47 and on such other coverages as are usually written by fire insurers on property other than motor vehicle insurance located in this state, in accordance with the provisions of this Subpart. Provided, however, that by and with the approval of the commissioner of insurance, other rating organizations created for the purpose of making and promulgating rates for special or particular kinds or classes of business written by fire insurance companies may be licensed under the terms or conditions of this Subpart.
(3) To audit, on special call by the association, policies written by member companies in compliance with filings as approved or made in accordance with the provisions of this Subpart.
(4) To survey municipal areas for publication of public fire protection grading.
(5) To file fire insurance rating schedules with the commissioner of insurance.
(6) To review building plans and specifications and fire suppression system plans and specifications when submitted to it for review, and to offer nonbinding recommendations for upgrading the fire insurance rating.
(7) To review fire suppression system plans, when submitted to it, and |nto offer nonbinding recommendations to upgrade fire protection gradings of municipal areas.
(8) To promulgate average rates.
(9) To design and file policy forms with the department.
(10) To perform such functions, to engage in such activities, to employ personnel, consultants, and counsel, and to acquire equipment and facilities adequate to exercise the powers and duties authorized by law in order to encourage and promote programs, legislation, and regulations calculated to produce and maintain a healthy and competitive property insurance market in Louisiana for the benefit of the insuring public.
(11)To consider the addendum and other recommendations of the advisory committee of the board of directors of the Property Insurance Association of Louisiana in accordance with Subsection M of this Section and to make public the current addendum as approved by the board of directors of the Property Insurance Association of Louisiana.

The gist of PIAL’s argument is that while the legislature did, indeed, specifically define PIAL’s powers, it did not specify all of PIAL’s powers, and, thus, this factor would weigh in PIAL’s favor. The legislature, though, is not required to specify all, or even most, of an entity’s powers in order for that entity to be found a public body. To find otherwise would be to accord an entity the power to establish its private nature by granting itself just one power which the legislature did not address. We hold, therefore, that the legislature did specifically define PIAL’s powers.

Does PIAL’s property belong to the public?

La. R.S. 22:1460(E) mandates that all fire insurance companies licensed to operate in Louisiana must belong to PIAL and pay levies to PIAL “equitably in proportion to the services rendered by the association to the individual member.” Further, for a period of time ending in 2008, PIAL contractually provided administrative services to Citizens, which receives public funding, on a cost-reimbursement basis. LLA argues that because PIAL’s source of revenue is guaranteed by state law through mandatory assessments on its members, and because |10PIAL received public money through its contractual relationships with Citizens and LAIP, PIAL’s property belongs to the public.

PIAL disagrees, contending that it does not receive any public funding. PIAL asserts that the member assessments are private money paid by private companies to a private association, and that this private money does not become public money simply because the assessments are guaranteed by state law. PIAL further argues that being paid for services by contract with public funds does not make a contracting party public. We agree.

By statute, PIAL’s “expenses ... shall be paid by its members and subscribers through assessments levied upon them by the association ... [and] [t]he association shall have the right to charge subscribers for services rendered, and to charge members and subscribers reasonable entrance and annual membership and subscription fees.” R.S. 22:1460(E)(1). These assessments, charges, and fees are paid by private parties directly to PIAL. The funds are not paid to or from the state general fund, and any excess funds would be returned to the members/subscribers and not paid into the general fund.

In addition, PIAL was reimbursed by Citizens for expenses incurred by PIAL in its contractual administration of Citizens. According to LLA, 58% of PIAL’s revenue flowed through this contract. R. at 49. In Smith, this Court stated that the presence of public funds flowing through a private nonprofit corporation by contract was not enough to transform the corporation into a public entity. Smith, 357 So.2d at 508. This concept was reiterated in Bankston, 715 So.2d at 1185, where we, again, used the four factors to determine that a corporation was a private entity.

LLA argues that several cases have held that property is public under less compelling circumstances: Louisiana Public Fac. Auth. v. Foster, 2001-0009 (La.9/18/01), 795 So.2d 288; Spain v. Louisiana High School Athl. Assn., 398 So.2d 1386 (La.1981); and Louisiana Ins. Guaranty Assn. v. Comm. on Ethics for Public Employees, 95-0021 (La.App. 1 Cir. 5/5/95), 656 So.2d 670.

In Louisiana Public Fac. Auth. (LPFA), this Court held that the Public Facilities Authority (“PFA”), a non-profit public trust and public corporation, was a public entity rather than a private citizen, and, therefore, was not protected by the state constitution and laws respecting impairment of obligations of contract. The Court did not explicitly examine the Smith factors (or even mention their existence), but did discuss the issues contained in the factors in a general way. In our discussion regarding property and funding, we said explicitly that the state did not provide funding, as PFA’s funding was primarily derived from application and closing fees from the issuance of bonds and from investments. LPFA, 795 So.2d at 294. In addition, we stated that PFA issued special obligation bonds for eligible public and private projects throughout the state, that in most instances the bonds were exempt from income taxes, and that, generally, the bonds were not debts of the state. LPFA 795 So.2d at 294, n. 9. Further, the beneficial interest in the trust was owned by the state and the other public bodies designated as beneficiaries and the original funding of the trust came from wills or written trust documents naming the state and/or other public bodies as beneficiaries. LPFA, 795 So.2d at 294. Despite the fact that we stated that the PFA received no public funding, we ruled that because the legislature had created the PFA and subjected it to state laws regarding public records, open meetings, public bids, bond validation procedures, ethics, and legislative audit, the legislature intended to regulate its own creation. Here, though, the legislature did not create PIAL, and the legislature has exempted PIAL from the public records law.

In Spain, a news director sought an injunction to keep the Louisiana High School Athletic Association (“LHSAA”) from holding closed meetings. We found | [2that the LHSAA was a public body under the definition contained in the Open Meetings Law:

‘Public body’ means village, town, and city governing authorities; parish governing authorities; school boards, and boards of levee and port commissioners; boards of publicly operated utilities; planning, zoning, and airport commissions; and any other state, parish, municipal, or special district boards, commissions, or authorities, and those of any political subdivision thereof, where such body possesses policy making, advisory, or administrative functions, including any committee or subcommittee of any of these bodies enumerated in this Paragraph. ‘Public body’ shall not include the legislature. R.S. 42:4.2(A)(2).

Spain, 398 So.2d at 1387. In noting that the LHSAA had cited “a plethora of cases” in which it had been held to be a private, voluntary association, we stated:

It is important to note, however, that this body of law did not deal with a positive legislative pronouncement which defined the conditions under which an entity must be deemed ‘public’ for a limited purpose.

Spain, 398 So.2d at 1390-1. There is no such positive legislative announcement in this matter today.

In Spain, again, as in LPFA, we did not mention Smith or the factors it established, as we were solely concerned with whether the LHSAA was a public body as defined by statute. We did, however, discuss the LHSAA’s financing, although, again, funding was not a basis for our decision. The money for financing the LHSAA was derived from membership dues (80% of the membership was public schools and 20% private schools), a percentage of gate receipts from sporting events, and entry fees for participation in sports for championship honors. Spain, 398 So.2d at 1388. By rule, fees were required to be paid with school check (but the commissioner testified that they would “take any check that was good”). Spam, 398 So.2d at 1388-89. Furthermore, the staff of the LHSAA were defined as teachers and were included in the Teachers’ Retirement System of Louisiana. Spain, 398 So.2d at 1389.

Because the LHSAA performed a major policymaking, advisory and administrative function in an area within the primary control of public bodies listed |13in the Open Meetings Law, we held that the LHSAA, and its committees and subcommittees, constituted collective committees or subcommittees of the parish school boards or State Board of Elementary and Secondary Education, and was thus a ‘public body’ for the purposes of the Open Meetings Law. Spain, 398 So.2d at 1390.

Finally, in Louisiana Ins. Guaranty Assn. (LIGA), the court of appeal held that the Louisiana Insurance Guaranty Association was a public entity under the Code of Governmental Ethics. The court of appeal did discuss and apply the four Smith factors. With regard to the categorizing of LIGA’s property, the court of appeal said:

LIGA obtains its funds from member insurers pursuant to assessments under [statute]. However, these assessments, which are evidenced by a certificate of contribution, are offset against the member insurer’s premium tax liability, not to exceed a total offset of 100%. Moreover, any sums acquired by refund under [the statute] from the association, which were written off by the insurer and offset against premium taxes, but which are not needed to effectuate the purposes of the Louisiana Insurance Guaranty Act, are required to be paid by LIGA to the Commissioner of Insurance and deposited with the state treasury for credit to the general fund of the state.

LIGA, 656 So.2d at 675. By use of the word “however” at the beginning of the second sentence of the quote, the court of appeal recognized the difference between obtaining funds from member insurers which are not subject to tax offsets or returnable to the state general fund, as does PIAL, and those which are so subject.

Because assessments levied on private insurance companies do not become public money simply because the assessments are guaranteed by state law, and because the receipt of public funds in payment of contractual fees for services does not make a contracting party public, we hold that PIAL’s property does not belong to the public.

Are PIAL’s functions exclusively of a public character and performed solely for public benefit?

LLA argues that PIAL’s functions are not only public, but also regulatory, in LAhat PIAL serves as a rate-making body and promulgates rules and regulations. LLA also points out that R.S. 22:1452 emphasizes the public interest in “promoting] the public welfare by regulating, insurance rates to the end that they shall not be excessive, inadequate, or unfairly discriminatory ...,” and that R.S. 22:1460(D)(10) states that the purpose of PIAL’s duties is “to encourage and promote programs, legislation, and regulations calculated to produce and maintain a healthy and competitive property insurance market in Louisiana for the benefit of the insuring public.” LLA argues that because PIAL carries out its duties solely for the benefit of the insuring public, PIAL satisfies the fourth Smith criterion.

PIAL, conversely, argues that it performs its functions for the exclusive benefit of its members, rather than the public, but acknowledges that the public does receive a derivative benefit from its performance of those functions.

La. R.S. 22:1452(A), the section partially quoted by LLA as support for its argument, reads in its entirety:

The purpose of this Subpart is to promote the public welfare by regulating insurance rates to the end that they shall not be excessive, inadequate, or unfairly discriminatory and to authorize and regulate cooperative action among insurers in ratemaking and in other matters within the scope of this Subpart. (Emphasis added).

The means by which “cooperative action” is taken by insurers in ratemaking is through PIAL. PIAL represents the best interests of its members in recommending proposed rate increases to the Insurance Commission.

PIAL, in arguing that it performs its functions for the exclusive benefit of its members, overstates its case. Although many of its functions only offer a derivative benefit, some of its mandated functions do directly benefit the public, such as reviewing fire suppression system plans. Because at least some of PIAL’s functions are performed for the benefit of its member insurance companies, and thus their | |5private stockholders, PIAL’s functions are not exclusively of a public character and performed solely for public benefit.

Because Property Insurance Association of Louisiana does not meet all four of the criteria which define a public entity, as established in State v. Smith, we find that Property Insurance Association of Louisiana is not a public entity for all purposes.

DECREE

For the foregoing reasons, we reverse the rulings of the courts below to the extent that the motion for summary judgment of Steve J. Theriot, in his capacity as the Legislative Auditor for the State of Louisiana, was granted and the motion for summary judgment of Property Insurance Association of Louisiana was denied, and render judgment granting summary judgment in favor of Property Insurance Association of Louisiana.

REVERSED AND RENDERED.

      . Kimball, C.J., did not participate in the deliberation of this opinion.

      . Property Ins. Ass. of Louisiana v. Theriot, 2009-0112 (La.App. 1 Cir. 4/3/2009) (unpublished).

      . Property Ins. Ass. of Louisiana v. Theriot, 2009-1152 (La.10/16/09), 19 So.3d 465.

      . The Court, after first laying out the factors to be considered, analyzed only one-whether the entity had been created by the legislature. After determining that it had not been so created, the court found that the entity was not a public agency. This implication is bolstered by the fact that all post-Smtih opinions which have examined the Smith factors either found the entity to be private after examining only one factor or required all four to be present in finding that the entity was public. See Bankston v. Board of Ethics for Elected Officials, 98-0189 (La.6/22/98), 715 So.2d 1181 (community action program not public entity because not created by legislature); State v. Duque, 42,074 (La.App. 2 Cir. 1/18/07), 946 So.2d 760 (community action agency not public entity because not created by legislature); Louisiana Ins. Guaranty Assn, v. Comm. on Ethics for Public Employees, 95-0021 (La.App. 1 Cir. 5/5/95), 656 So.2d 670 (public entity because all four factors present).

      . La. R.S 22:2056 was renumbered from La. R.S. 22:1380 by Acts 2008, No. 415, § 1, eff. Jan. 1, 2009.

      . La. R.S. 22:1460 was renumbered from La. R.S. 22:1405 by Acts 2008, No. 415, § 1, eff. Jan. 1, 2009.

      . Whether or not Citizens is a public entity is an issue that is not before the Court, but for the purpose of this opinion only, we assume that it is.

      . La. R.S. 22:1452 was renumbered from La. R.S. 22:1402 by Acts 2008, No. 415, § 1, eff. Jan. 1, 2009.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Mike ALVAREZ.
    No. 2009-K-0328.
    Supreme Court of Louisiana.
    March 16, 2010.
    James D. Caldwell, Attorney General, Paul D. Connick, Jr., District Attorney, Juliet Lee Clark, Terry Michael Bou-dreaux, Assistant District Attorneys, for Applicant.
    Margaret Smith Sollars, for respondent.
   PER CURIAM.

11 Granted. The decision in State v. Alvarez, 08-0558 (La.App. 5th Cir.1/13/09), 8 So.3d 50, vacating defendant’s conviction and sentence for possession of cocaine in violation of La. R.S. 40:967(C) on grounds the trial court erred in denying defendant’s motion to suppress the evidence, is reversed, and this case is remanded to the court of appeal for consideration of the remaining assignments of error pretermit-ted on original appeal.

Evidence presented at both the suppression hearing and at trial established that during the course of a traffic stop conducted at night in the Woodmere Subdivision in Jefferson Parish, described as a “high crime area,” police officers found them attention drawn to defendant as he observed the scene while standing between two apartment buildings and behaved in what appeared to the officers a nervous and erratic manner. When two officers approached defendant to ask him some questions |2after he balked at their initial requests that he come over to them, defendant turned and ran through the alleyway between the two apartment buildings. The officers gave chase. During the pursuit, defendant removed a gun from his waistband and discarded in the weapon in some bushes. He then ran into an apartment building and slammed the door shut. The pursuing officers kicked in the door, placed defendant under arrest, and in a search incident to that arrest removed a small bag containing rock cocaine from his pants pocket. Thereafter, defendant consented to a search of the apartment leading to the recovery of additional amounts of crack cocaine and gun magazines filled with nine millimeter bullets.

The court of appeal freely conceded the officers did not need probable cause for an arrest or reasonable suspicion for an investigatory stop when they first approached defendant to ask him some questions. Alvarez, 08-0558 at 7-8, 8 So.3d at 55; cf. Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 2388, 115 L.Ed.2d 389 (1991) (“[T]he proposition that police officers can approach individuals as to whom they have no reasonable suspicion and ask them potentially incriminating questions .... is by no means novel; it has been endorsed by the Court any number of times.”); State v. Lewis, 00-3136 p. 3-4 (La.4/26/02), 815 So.2d 818, 820 (citing Bostick). Nevertheless, the court of appeal found while the police had not actually seized defendant at the time he discarded the gun concealed in his waistband during the chase, the officers had come at him “ ‘with such force that, regardless of [his] attempts to flee or elude the encounter, an actual stop of [him][was] virtually certain.’ ” Alvarez, 08-0558 at 8, 8 So.3d at 55 (quoting State v. Tucker, 626 So.2d 707, 712 (La.1993)). On that premise, the Fifth Circuit panel concluded because defendant had merely asserted his right to walk away from the officers when he turned and ran as they approached to ask him some questions, the police lacked the |srequisite reasonable suspicion to conduct an actual or imminent stop. Cf. Bostick, 501 U.S. at 437, 111 S.Ct. at 2387 (“We have consistently held that a refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.”) (citations omitted). Thus, the illegal conduct by the officers tainted recovery of the firearm defendant removed from his waistband and discarded and his subsequent arrest and incident seizure of the cocaine from his pocket as well as the other rocks of cocaine found in the apartment during the subsequent consent search. Alvarez, 08-0558 at 9-10, 8 So.3d at 55-56.

The court of appeal erred. Even assuming, arguendo, that an “imminent stop” took place in the present case before defendant discarded the firearm concealed in his waistband, defendant did not simply assert his right to walk away from the police officers when he turned and ran for sanctuary in the apartment building. Headlong, “unprovoked flight is simply not a mere refusal to cooperate.” Illinois v. Wardlow, 528 U.S. 119, 124-125, 120 S.Ct. 673, 676, 145 L.Ed.2d 570 (2000). Thus, “[a)llowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual’s right to go about his business or to stay put and remain silent in the face of police questioning.” Id. The totality of the circumstances with which the officers were presented — the lateness of the hour, the “high crime” nature of the area, the furtive behavior of the defendant at an unrelated traffic stop during which he was attempting to evade the officers’ sight and watch their actions — aroused the officers’ suspicions and caused them concern for their safety. Adding to those factors defendant’s unprovoked flight, the officers had the requisite minimal level of objective justification, i.e., reasonable suspicion, to investigate further and to initiate an investigatory stop, whether that stop was actual or “imminent.” La.C.Cr.P. art. 215.1; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

|4The officers therefore lawfully recovered the gun abandoned by defendant 'during the chase and had probable cause to arrest him for at least the offense of carrying a concealed weapon in violation of La. R.S. 14:95. See State v. Johnson, 94-1170, p. 4 (La.App. 4th Cir.8/23/95), 660 So.2d 942, 946. Although the crime of carrying a concealed weapon is a misdemeanor and not a felony, it is a jailable offense and one involving risk to public safety. The officers warrantless entry of the apartment in hot pursuit to effectuate defendant’s arrest was therefore reasonable at its inception, and, as it turned out, possession of the firearm was chargeable as a felony offense although jurors ultimately acquitted defendant on that count. R.S. 14:95(E)(posses-sion of a firearm while in possession of a controlled dangerous substance); cf. United States v. Santana, 427 U.S. 38, 43, 96 S.Ct. 2406, 2410, 49 L.Ed.2d 300 (1976)(“[A] suspect may not defeat an arrest which has been set in motion in a public place, and is therefore proper under [United States v.] Watson, [423 U.S. 411, 96 S.Ct. 820 46 L.Ed.2d 598 (1976)], by the expedient of escaping to a private place.”); see also State v. Walker, 06-1045 p. 5-6 (La.4/11/07), 953 So.2d 786, 790; compare Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984)(Fourth Amendment does not permit warrantless entry of home to arrest for a nonjailable traffic offense). The subsequent recovery of cocaine from defendant’s pants pocket and from elsewhere in the apartment was therefore not tainted by any prior illegal conduct of the police.

Accordingly, the trial court properly denied defendant’s motion to suppress and the court of appeal erred in setting aside that ruling. The judgment of the trial court on the motion to suppress is therefore reinstated and this case is remanded to the court of appeal for further consideration.

      . Kimball, C.J., did not participate in the deliberation of this opinion. Retired Judge Phillip Ciaccio sitting ad hoc for Guidry, J., re-cused.


author:
KNOLL, J.
     JOHNSON,

text:
    STATE of Louisiana v. Aaron BERNARD.
    No. 2009-KK-1178.
    Supreme Court of Louisiana.
    March 16, 2010.

      James D. Caldwell, Attorney General, Hillar Clement Moore, III, District Attorney, Dylan Christopher Alge, Assistant District Attorney, for Applicant.
    Mark David Plaisance, Baker, Smith & Chatagnier, Jason L. Chatagnier, for Respondent.
   KNOLL, J.

|! This criminal writ concerns the issue of whether a child protection officer should have given “Miranda” warnings to the arrested and incarcerated defendant, Aaron Bernard, before she interviewed him. This problematic issue was raised by defendant in his pretrial motion to suppress certain incriminatory statements he made to Rosemarice Collins, a child protection officer with the Louisiana Office of Community Services (“OCS”), based on her failure to advise him of his Constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We are called upon to weigh the delicate balance between the Constitutional rights of a defendant who has been taken into custody and the interest of both the State and the OCS in interrogating suspected child abusers.

While defendant was in prison awaiting trial, Collins interviewed him as part of an investigation of child abuse or neglect directed at his live-in girlfriend, Claudia. During the interview, which lasted approximately ten minutes, defendant admitted to | gCollins he had used cocaine. Defendant moved to suppress this inculpatory statement based on Collins’ failure to advise him of his Miranda rights. The trial court granted the motion to suppress and the Court of Appeal affirmed. We granted the State’s application for supervisory writ and now reverse. For the reasons detailed below, we find there is no bright line rule for this determination, which must be made on a case-by-case basis. Under the circumstances of this case, the record evidence shows Collins was not acting as an “agent of law enforcement,” and was not required to advise defendant of his Miranda rights prior to the interview.

FACTS AND PROCEDURAL HISTORY

Defendant shares a house in East Baton Rouge Parish with his girlfriend Claudia, her eleven year old daughter F.H., and defendant and Claudia’s young son. The state alleges on September 5, 2006, defendant took Claudia and F.H. hostage after ingesting a large amount of cocaine. Defendant was arrested later that day after a lengthy standoff with the police.

At the end of the standoff, defendant injured himself in an apparent suicide attempt. He was taken to Earl K. Long Hospital and treated for his injuries, then brought to a nearby police station. The police read the Miranda rights and began an interrogation. Defendant gave a videotaped statement confessing to giving F.H. cocaine and engaging in oral and anal sex with her. Bond was set at $400,000, and he was brought to East Baton Rouge Parish Prison to await trial.

On September 22, 2006, Rosemarice Collins, an investigator for the child | ^protection office of the Louisiana Office of Community Services (OCS), visited defendant in prison. Collins’ office had received an anonymous call to its hotline regarding possible child abuse at defendant’s household. Collins first interviewed defendant’s girlfriend Claudia and her children, who informed her that defendant was also a member of the household. It is OCS policy to interview each member of the household in cases of alleged child abuse or neglect.

Collins testified the purpose of her interview with defendant was solely to determine whether action should be taken against Claudia, including possible termination of her parental rights. Collins’ investigation was not directed at the criminal charges levied against defendant. Prior to the interview, Collins had not discussed defendant’s case with the investigating officers or anyone at the District Attorney’s office, nor did she read the police report regarding the September 5, 2006 incident. Significantly, Collins did not have any personal contact with police or prosecutors prior to the date of the interview.

Collins introduced herself and said she was conducting an investigation as to Claudia’s fitness as a parent. Collins did not give defendant Miranda warnings prior to speaking with him, as it was not her department’s practice to do so. Collins had never received any instruction regarding the Miranda rights. She did say the interview was voluntary and she would leave if he did not wish to speak to her. Defendant chose to answer her questions. During the interview he defended Claudia’s fitness as a parent and said the alleged incidence of abuse (i.e., the events of September 5th) resulted solely from his own cocaine abuse.

hCollins drafted a report, the primary purpose of which was to give a recommendation regarding whether Claudia’s children were “children in need of care” and whether Claudia’s parental rights should be terminated. The report included defendant’s admission he had used cocaine. Collins was required by law to submit a copy of her report to the juvenile division of the East Baton Rouge Parish District Attorney’s office. The juvenile division apparently passed it on to the criminal division and the attorneys prosecuting defendant. Collins never forwarded her report to the police, and she was not contacted by either the police or the District Attorney’s office to conduct a follow-up investigation.

PROCEDURAL HISTORY

Defendant moved to suppress the contents of Collins’ report. Collins was the sole witness to testify at the hearing. The trial court granted the motion, finding that because Collins was an “agent of the Sate of Louisiana” and defendant was “in custody,” the Miranda rights should have been read prior to questioning.

The State applied for a supervisory writ, which was denied by the First Circuit Court of Appeals. This Court granted the State’s writ in State v. Bernard, 2008-2569 (La.12/12/08), 997 So.2d 552, and remanded to the First Circuit for briefing and argument.

15The First Circuit affirmed, holding “defendant’s incarceration in the East Baton Rouge Parish Prison clearly qualified him as being ‘in custody’ ” and that the “trial court did not abuse its discretion in determining Collins was a ‘state actor.’ ” State v. Bernard, 2008-1372 (La.App. 1 Cir. 5/8/09) 13 So.3d 611.

DISCUSSION

The sole issue in dispute is whether defendant’s Constitutional right against compelled self-incrimination was violated when Collins did not read him his Miranda rights prior to their meeting. This issue hinges on two deceptively simple-sounding questions: who is required to give Miranda warnings, and in what circumstances are they required to give them?

This discussion necessarily starts with the central holding of Miranda itself:

Our holding will be spelled out with some specificity in the pages which follow, but, briefly stated, it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by laiv enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.

Miranda, 384 U.S. at 444, 86 S.Ct. 1602(emphasis added).

As this passage makes clear, Miranda only applies if three conditions are met: (1) the defendant is in “custody” or significantly deprived of freedom, (2) there is an “interrogation,” and (3) the interrogation is conducted by a “law enforcement officer” or someone acting as their agent. After our careful review of the record, we And Collins was not acting as a law enforcement officer or as an agent of law enforcement, thus defendant’s Constitutional rights under Miranda were not triggered prior to Collins’ interview.

|f;A- Miranda vis-d-vis State Employees

Defendant argues that, pursuant to State v. Maise, 2000-1141 (La.1/15/02) 805 So.2d 1141, all “state actors” who interview or interrogate a suspect must give Miranda warnings. Defendant further argues state employment is.“generally sufficient to render the party a state actor.” Maise, 805 So.2d at 1149.

In Maise, the defendant called a probation officer on the phone and confessed to raping a child. Id. at 1148. The defendant moved to suppress his confession based on the probation officer’s failure to advise him of his rights. Defendant relies on this passage from Maise: “Miranda only applies where the party performing the ‘interrogation’ is a ‘state actor.’ ” Id. at 1149, citing State v. Martin, 94-252 (La.App. 5 Cir. 10/12/94) 645 So.2d 752. The court went on to say “[SJtate employment is generally sufficient to render a party a state actor.” Id. at 1149, quoting West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). We find that Maise is not controlling for two reasons.

First, the passage in Maise regarding “state actors” is obiter dicta and therefore not binding. This Court resolved Maise by holding that a conversation over the telephone does not constitute a “custodial interrogation,” as there is no restraint on the defendant’s freedom of movement. Id. at 1149-50. Because this finding was dis-positive of defendant’s Miranda claim, it was not necessary to determine whether the probation officer was a “state actor” or “law enforcement agent,” and that discussion was mere surplusage.

Second, Maise's reliance on West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) was imprecise at best, as that case is entirely unrelated to Miranda, and the Fifth Amendment. In West v. Atkins, a prisoner brought a claim under 42 U.S.C. § 1983 against a prison doctor who allegedly gave him inadequate medical care. 42 U.S.C. § 1983 permits an aggrieved party to bring a claim against |7any person acting “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia.” The U.S. Supreme Court held that, under section 1983, “[S]tate employment is generally sufficient to render the defendant a state actor.” Id. at 49, 108 S.Ct. 2250, quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 931-932 n. 18, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). While this is an accurate statement of law for the purposes of 42 U.S.C. § 1983, there is a significant distinction between the broad definition of “state actor” under section 1983 and the significantly narrower group of “law enforcement officers” referenced in Miranda. Therefore, to the extent that our decision in Maise conflicts with our holding in the case before us, Maise is overruled.

The defendant’s reliance on Mathis v. U.S., 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968) is likewise misplaced. In Mathis, the defendant challenged inculpatory statements regarding his tax returns he made to an IRS employee while in prison for a separate offense. Id. at 4, 88 S.Ct. 1503. The prosecution forwarded two arguments why Miranda should not apply: “(1) that these questions were asked as a part of a routine tax investigation, where no criminal proceedings might even be brought, and (2) that the petitioner had not been put in jail by the officers questioning him, but was there for an entirely separate offense.” Id. at 4, 88 S.Ct. 1503. The central question in Mathis was whether the defendant was “in custody” — the Supreme Court was not called upon to decide whether the IRS employee was a “law enforcement agent,” as the government apparently ceded that point. Mathis is simply not controlling on this issue.

Defendant also cites to State v. Martin, 94-252 (La.App. 5 Cir. 10/12/94) 645 So.2d 752, which held “if a state actor is involved, defendant must be advised of his Miranda rights prior to making a statement.” Id. at 754, citing State v. Perry, 502 So.2d 543 (La.1986). In Martin, defendant confessed to a private security guard hired |sby the convenience store where she worked. Id. at 753. Miranda does not apply to private citizens such as the hired security guard, who have no connection to the state and are not acting as agents of law enforcement officials. To that extent, Martin remains good law. However, Martin does not stand for the proposition that state employment, standing alone, brings Miranda into play. As the State accurately notes, there are many state employees whose jobs have nothing to do with criminal law enforcement. Miranda does not require every state employee, from the governor to the groundskeeper, to be well-versed in Fifth and Sixth Amendment law. This interpretation would be an absurd expansion of the well-intended Constitutional benefits protecting a defendant from coercive interrogation by law enforcement. Clearly, this is not what Miranda stands for.

Finally, the application of Miranda to all government employees is simply overly broad and inconsistent with the type of wrongs it was intended to prevent. Miranda is meant “to vest a suspect in custody with an added measure of protection against coercive police practices.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1690, 64 L.Ed.2d 297 (1980)(emphasis added). This rationale simply does not apply where the “interrogation” is conducted without coercion and with no involvement from the police.

B. Miranda vis-a-vis Laiv Enforcement

Although no prior decision of this Court has explicitly set forth who is required to give Miranda warnings, we have consistently declined to apply Miranda in cases where the interrogator is neither a law enforcement official nor acting as an agent of law enforcement. This policy is reflected in a trio of decisions from the 1980s: State v. Hathorn, 395 So.2d 783 (La.1981), State v. Phillips, 444 So.2d 1196 (La.1984), and State v. Perry, 502 So.2d 543 (La.1986)

la State v. Hathorn, 395 So.2d 783 (La.1981) is perhaps more closely factually on point than any other reported Louisiana decision. In Hathom, the defendant poisoned her children and herself. While in the emergency room, a caseworker with the Child Protection Center interviewed the defendant, who admitted to poisoning her children. Id. at 784. Defendant later moved to suppress these statements based on the caseworker’s failure to give Miranda warnings. The trial court denied the motion to suppress, and this Court affirmed:

In the instant case, defendant had not been placed under arrest at the time of her interview with LeBlanc. Nor was LeBlanc a law enforcement officer with powers of arrest. Clearly, no Miranda warnings were required, as defendant’s statements were made in a noncustodial situation and defendant was not being subjected to interrogation by a police officer. Moreover, the record affirmatively shows that the noncustodial incul-patory statements were freely and voluntarily made. Hence, the trial judge did not err in admitting the statements in evidence.

Id. at 785.

Although Hathorn focused on whether the interrogator is a “law enforcement officer” with the “power to arrest,” later decisions have made clear Miranda is not necessarily limited solely to active law enforcement officers.

In State v. Phillips, 444 So.2d 1196 (La.1984), the defendant, after being arrested and advised of his Miranda rights, exercised his right to remain silent and the interrogation ceased. Phillip’s employers, Faucheaux and Brooks, later came to visit him in jail. Because they believed Phillips was innocent, they recommended he waive his right to remain silent and tell the police everything he knew. Id. at 1198. To Faucheaux and Brooks’ surprise, Phillips confessed to armed robbery. Fau-cheaux worked part-time as an unpaid reserve police officer, and his duties included helping with crowd control at events and directing traffic. Id. at 1199 n. 6. Defendant argued | inFaucheaux was an agent of law enforcement under Miranda. This Court rejected that argument, and held:

Although Simmons places great emphasis on Faucheaux’s status as a volunteer reserve police officer, that fact is not of controlling significance. When Faucheaux and Brooks (who had no connection, volunteer or otherwise, with the police) encouraged Simmons to cooperate, they did so not as agents of the investigating officers, but rather as business associates who were acting in what they believed to be Simmons’ best interest. Thus, this case does not involve a “team effort” to break Simmons’ will to resist his interrogators’ entreaties to make a statement.

Id. at 1199.

Phillips contains a somewhat broader test than Hathom, as the Phillips court did not merely consider whether Fau-cheaux and Brooks were actual law enforcement officers with powers of arrest. Significantly, Phillips focused on whether they were acting as “agents” of the investigating officers and working as part of a “team effort” to interrogate the defendant.

This test is set out even more clearly in State v. Penny, 502 So.2d 543 (La.1986). Perry’s aunt Zula Lyon visited him several times while he was incarcerated. During those visits, he confessed to five murders and gave his aunt a sheet of paper with the victims’ names written on it. Id. at 553. Lyon turned this information over to the police. Defendant contended “Mrs. Lyon served as an agent of the sheriffs office” during her visits and was therefore required to give Miranda warnings. Id. The trial court ruled the testimony admissible, and this Court affirmed.

The focus of the court’s analysis was whether Lyon was working as an “agent” of the police officers — whether the police had sent her to talk with the defendant in order to interrogate him in their stead:

It is evident from Mrs. Lyon’s testimony she had motives in visiting defendant other than to solicit |ninformation for the sheriff. While she admitted she had asked defendant questions about the murders on some of her visits, she specifically stated she had not questioned him on September 16, 1983. The purpose of her visit on that date was to bring winter clothing to defendant in preparation for his transfer to the Feli-ciana Forensic Facility. She also expressly stated, she had never been asked to question defendant.
Similarly, the reason for her visit on September 30, 1983 was to visit him one more time before defendant left for Feli-ciana Forensic Facility, to see what his state of mind was and to see if he was in need of anything. It is clear Mrs. Lyon did not question him on that date. According to her testimony, the statement on that date was volunteered by defendant as Mrs. Lyon was getting ready to leave.
Defendant alleges Mrs. Lyon received special treatment from the sheriffs office, implying this would not have been the case had she not been eliciting information with the intention of relaying it to the sheriff. While it is true on some of her visits to defendant Mrs. Lyon talked with him in the sheriffs office, her testimony also makes it clear she did on some occasions see him in his jail cell in solitary confinement. Also, although she admitted she talked with the deputies a number of times about the case, she maintained they never asked her what defendant had said to her.
From Mrs. Lyon’s testimony, it does not appear she was acting on behalf of the sheriff’s office when she visited defendant and, talked with him about the envies. In particular, it should be noted neither statement was the result of questioning by her and both statements were instead unsolicited, spontaneous confessions of guilt.

Id. at 553 (emphasis added).

Hathorn, Perry and Phillips, when read together, clearly establish Miranda applies not to all “state actors” but only to persons who are either law enforcement officers or acting as an agent of law enforcement.

We recognize this area of the law is potentially problematic. We further recognize this Court has not given the lower courts clear guidance as to an applied standard. We now do so. After studying the cases concerning this issue, we clearly |12and quickly see the proper resolution of this issue is a fact-driven determination. Simply stated, one size does not fit all; there is no bright line rule to be applied. Each case must be decided under its own set of facts. Trial courts will have to consider the unique circumstances of each case and balance the defendant’s Miranda rights against both the necessity for a child protection officer to obtain a complete and clear record of the alleged child abuse or neglect and the Constitutional rights of a defendant who has been taken into custody.

C. Miranda vis-á-vis Child Protection Officers

Defendant argues the case of State v. Saltzman, 2002-1350 (La.App. 3 Cir.2003), 843 So.2d 1206, rev’d on other grounds, 871 So.2d 1087 (per curiam), establishes a rule that, as a matter of law, OCS agents conducting investigations are agents of law enforcement for the purposes of Miranda, This is a misreading of Saltzman. The appellate court in Saltzman did not establish a per se rule, but applied a totality of the circumstances test in finding, as a matter of fact, the OCS agent was acting as an agent of law enforcement.

Saltzman, like defendant in the case sub judice, was charged with aggravated rape of his minor stepdaughters. Martin Caeser, a child protection investigator, interviewed the defendant without giving Miranda warnings and elicited incriminating statements. Id. at 1208. Also present at the interview was Detective Michael Pri-meaux. As soon as Caeser finished his interview, Detective Primeaux read defendant the Miranda rights and conducted his own interrogation. The appellate court held under these facts, Caeser was acting as an agent of law enforcement:

| iSMr. Ceasar filed a report at the police station, reviewed the interviews of the children with Detective Primeaux and told Detective Primeaux that he would be interviewing the Defendant the next day. Detective Primeaux was present for the interview and took notes. Certainly, Mr. Ceasar knew that the statements he was eliciting from the defendant could be used by Detective Pri-meaux to arrest the defendant.

Id. at 1211.

The court's findings were essentially factual in nature. The OCS agent filed a report directly with the police, talked with the police about the case prior to interviewing the defendant, told police when and where he would be interviewing the defendant, and interviewed the defendant in the presence of the detective in charge of the investigation. It can be discerned he was acting as a law enforcement agent. The precise factual circumstances in Saltz-man are not involved in the case presently before us, nor do we pass judgment on whether that court’s factual findings were correct. We discuss it here merely to emphasize whether someone is acting as an agent of law enforcement is dependent upon the unique circumstances of each case. As we now state, this determination is fact-driven and can vary widely on a case by case basis.

To further illustrate our discussion, we find it appropriate to mention an interesting Texas case concerning similar facts as here and that court’s treatment of the central issue before us. Wilkerson v. State, 173 S.W.3d 521 (Tex.Crim.App.2005), concerned the subject of both a criminal investigation and a separate investigation by the Texas Department of Child Protective Services (“CPS”). The Texas CPS investigator, like Collins, was a state employee who questioned family members in cases of suspected child abuse. She was bound by law to forward her reports to the police. Id. at 525 n. 5.

114The defendant argued, as a matter of law, CPS investigators are law enforcement agents under Miranda. The court rejected this contention, as a CPS worker’s primary job is not to gather evidence for the prosecution of criminal cases: “Their mission is to protect the welfare and safety of children in the community. Although this duty may at times entail the investigation of child abuse claims, that alone does not transform CPS workers into law enforcement officers or their agents.” Id. at 528. Instead, courts must make a case-by-case finding and review the “entire record” to determine whether a CPS worker is acting as a law enforcement agent in each particular case. Id. at 530. The Wilkerson court set forth a lengthy series of factors for lower courts to consider:

First, courts should look for information about the relationship between the police and the potential police agent. Did the police know the interviewer was going to speak with the defendant? Did the police arrange the meeting? Were the police present during the interview? Did they provide the interviewer with the questions to ask? Did they give the interviewer implicit or explicit instructions to get certain information from the defendant? Was there a “calculated practice” between the police and the interviewer that was likely to evoke an incriminating response from defendant during the interview? And finally, does the record show that the police were using the agent’s interview to accomplish what they could not lawfully accomplish themselves? In sum, was law enforcement attempting to use the interviewer as its anointed agent?
Second, courts should examine the record concerning the interviewer’s actions and perceptions: What was the interviewer’s primary reason for questioning the person? Were the questions aimed at gaining information and evidence for a criminal prosecution, or were they related to some other goal? How did the interviewer become involved in the case? Did the interviewer help “build a case” that led to the person’s arrest, or was the interviewer pursuing some other goal or performing some other duty? At whose request did the interviewer question the arrestee? In sum, did the interviewer believe that he was acting as an agent of law enforcement?
11fiFinaIly, courts should examine the record for evidence of the defendant’s perceptions of the encounter. When the defendant was interviewed, did he believe that he was speaking with a law-enforcement agent, someone cloaked with the actual or apparent authority of the police? What gave him this impression? Alternatively, would a reasonable person in defendant’s position believe that the interviewer was an agent of law enforcement?
At bottom, the inquiry is: Was this custodial interview conducted (explicitly or implicitly) on behalf of the police for the primary purpose of gathering evidence or statements to be used in a later criminal proceeding against the interviewee? Put another way, is the interviewer acting as an “instrumentality” or “conduit” for the police or prosecution? Most simply: is the interviewer “in cahoots” with the police?

Id. at 530-531 (footnotes omitted).

We find the list of factors in this Texas case worthy of mentioning. We note not all of these factors will be probative in every case, and the presence or absence of any one factor should not be considered dispositive. Instead, courts must consider the totality of circumstances in each case. The most important factors are those discussed in State v. Perry, 502 So.2d 548 (La.1986): whether the investigator discussed the case with police prior to the interview, whether the interview was conducted at the police’s request, and whether the primary purpose of the investigator’s visit was to elicit a confession while in cahoots with law enforcement. In short, police may not circumvent Miranda by using OCS investigators (or anyone else) as stand-ins to conduct interrogations in their stead.

Applying a case-by-case standard, we now turn to the record evidence before us in determining whether Collins was an agent of law enforcement when she interviewed defendant.

D. Miranda vis-a-vis Collins

| if;As a general rule, it is left to the trial court to determine whether a person conducting an interrogation is acting as an agent of law enforcement. The trial court’s conclusions on credibility and weight of the testimony are to be “accorded great weight and will not be overturned unless they are not supported by the evidence.” State v. Anderson, 06-2978, p. 25 (La.2008) 996 So.2d 973, 994. The only witness to testify at the hearing on defendant’s motion to suppress was Collins, thus the relevant facts are undisputed. On a motion to suppress 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.” State v. Pham, 2001-2199, p. 4 (La.App. 1 Cir. 1/22/03), 839 So.2d 214, 218.

Apparently the trial court applied an incorrect legal standard, i.e., because Collins was an “agent of the State of Louisiana” and defendant was “in custody,” it applied a bright line rule and found Miranda rights were triggered before Collins interviewed the defendant. Because this was error and the trial court did not make a fact-driven determination, we will review the record de novo to determine whether Collins was acting as an agent of law enforcement when she interviewed defendant.

It is undisputed Collins did not work for the police department and had no authority to make an arrest. The police did not ask her to interview defendant. Significantly, she had not spoken with police or prosecutors at any time prior to interviewing him. The purpose of her visit and report was to determine whether Claudia, defendant’s live-in girlfriend, was a fit parent. She did not interview defendant in order to investigate the criminal allegations against him, nor were the charges brought against defendant increased as a result of Collins’ report. Moreover, Collins specifically told defendant she was not there to interrogate him regarding his alleged crimes and, further, she would leave if he did not want to talk to her. Most 117importantly, there is no evidence the police purposefully used, manipulated, or were in cahoots with Collins for purposes of conducting the interview on their behalf. As we held in State v. Phillips, 444 So.2d 1196, 1199 (La.1984), there is absolutely no evidence of a “team effort” between Collins and the police to break down defendant’s defenses via cooperative interrogation. Under these circumstances, we find Collins was not required to give defendant his Miranda rights before she interviewed him. Accordingly, the motion to suppress should have been denied.

DECREE

For the foregoing reasons, the judgment of the lower courts are reversed, vacated, and set aside; the motion to suppress is denied. This matter is remanded to the district court for further proceedings consistent with the views expressed herein.

REVERSED AND REMANDED.

JOHNSON, J., concurs and assigns reasons.

GUIDRY, J., concurs with reasons.

JOHNSON,

|,I agree with the majority that the child protection officer, in this case, was not required to give the defendant his Miranda warnings. This adult defendant had already been arrested, charged with several felony offenses, and was in prison awaiting trial when this interview took place.

Unfortunately, we have other cases in our jurisprudence where Louisiana Office of Community Services (OCS) workers have acted in concert with law enforcement officers to extract a confession from a juvenile defendant without regard to the dictates of Miranda v. Arizona. See, State v. Neher, 07-2076, 969 So.2d 1252, (La.12/14/07), where the OCS agent volunteered to stand in as the juvenile defendant’s representative during his interrogation at the police station. When the juvenile requested an attorney, the OCS worker encouraged him to waive his right to an attorney, cooperate with law enforcement, and give a statement because she felt “that was the best thing for him to do.”

GUIDRY, J, concurring with reasons.

|,I respectfully concur in the majority opinion finding no reason to suppress the defendant’s statements which were made freely and voluntarily during an interview he was able to terminate at any time. A person in jail is not always “in custody” for purposes of Miranda. Whether a person is in custody depends on the totality of the circumstances and whether a reasonable person would have felt he was not at liberty to terminate the interrogation and leave. Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 465, 133 L.Ed.2d 383 (1995). See Maryland v. Shatzer, No. 08-680, — U.S. -, 130 S.Ct. 1213, — L.Ed. 2d - (2010). Thompson counsels that this Court must first set the scene according to the undisputed circumstances surrounding the interview.

In this case, Ms. Collins, the child protection officer, testified that she received information that the defendant’s girlfriend, Claudia, was possibly abusing her children. Collins then went to the parish prison to interview the defendant who is the father of the youngest child. Her job as a child protection worker required her to interview every member of the family. Collins made it clear to the defendant that she was not a law enforcement officer, and had no arrest powers. She had no training in administering Miranda warnings to criminal suspects. She also stated that, although she was aware that the defendant had been arrested for sexual abuse, she did not 12speak with any of the investigating police officers, did not review their reports, and did not advise them that she intended to interview the defendant.

Collins identified herself to the defendant and advised him that her agency had received a report of possible abuse or neglect of the children by their mother. Collins made it clear that her investigation focused on Claudia’s fitness as a mother, although she conceded that the defendant was also involved as a member of the household. Collins informed him that he had a right not to speak to her and that, if he chose not to answer questions, she would leave. The defendant readily agreed to speak to her. Collins stated that he then informed her that Claudia “was a good mother, and that if he hadn’t been under the influence of cocaine that the incident with Felicia wouldn’t have happened.”

Under these facts, particularly the advice Collins gave to the defendant concerning his right not to speak to her, I conclude that a reasonable person in the defendant’s position would have understood that he was free to refuse to answer the questions and to terminate the interview at any time. Accordingly, I concur in the decision of the majority, finding error in the trial court ruling suppressing the defendant’s statements because of Collins’ failure to advise the defendant of his Miranda rights. The statements were freely and voluntarily made to Collins during an interview the defendant understood he could terminate at will.

       Kimball, C.J., did not participate in the deliberation of this opinion.

      . Defendant was charged with two counts of aggravated rape of a juvenile, La. Rev.Stat. § 14:41; one count of distribution of cocaine to a juvenile, La. Rev.Stat. §§ 40:967 and 981; and one count of false imprisonment with a dangerous weapon, La. Rev.Stat. § 14:46.1.

      . 2009-1178 (La. 11/18/09), 25 So.3d 779.

      . Defendant, arguing pro se before the trial court, urged the videotape of his confession had been somehow altered or edited and scenes of police brutality were excised. When presented with a signed waiver of rights form, he claimed his signature was forged. The trial court denied the motion to suppress the September 5, 2006 confession. At oral argument defense counsel conceded defendant was read his Miranda rights prior to the September 5, 2006 interrogation.

      .The contents of this anonymous call are kept confidential and neither the contents of the call nor its date are in the record. Collins testified the subject matter of the call concerned the events of September 5, 2006.

      . Children's Code art. 606(a) defines a “child in need of care” as, among other things, a child who “is the victim of abuse perpetrated, aided, or tolerated by the parent or caretaker, by a person who maintains an interpersonal dating or engagement relationship with the parent or caretaker, or by a person living in the same residence with the parent or caretaker as a spouse whether married or not."
      Children’s Code art. 615(B) provides that, if the child protection officer determines that the subject of the investigation is a "child in need of care," the "local child protection unit ... shall notify the district attorney as soon as possible.” Presumably, this is the statute Collins is referring to when she states she is required “by law” to submit her report to the juvenile division of the district attorney's office.
      A proceeding to terminate parental rights under the Children’s Code is a civil proceeding.

      . The Saltzman court was unsure whether the relevant legal standard was the broad "state actor” test referenced in Maise or the narrower “law enforcement official” test set forth in Hathorn and in Miranda itself. The court found it unnecessary to resolve the issue, as under the facts of the case either standard was met.

      . Because we find Collins was not acting as an agent of law enforcement, we need not address whether Collins’ questioning was an "interrogation” under Miranda or whether defendant was in "custody” pursuant to the recent U.S. Supreme Court decision of Maryland v. Shatzer, 559 U.S. -, 130 S.Ct. 1213, — L.Ed.2d - (2010).

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).