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    J.O. KUEBEL, Joseph O. Kuebel, Jr., Jane Lee K. Bosworth, Robert G. Kuebel, Elizabeth K. Lorber, Executrix for the Estate of Conrad M. Kuebel, Jo Ann K. Williams, Kenneth A. Kuebel and Eileen K. Weber v. CHARVET’S GARDEN CENTER, INC., Carol Charvet and Winston Charvet.
    No. 09-CA-635.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 29, 2009.

      William M. Davis, Attorney at Law, Atlanta, GA, for plaintiffs/appellants.
    Roy M. D’Aquila, Ronald J. Vega, Attorneys at Law, Kenner, LA, for defendants/appellees.
    Panel composed of Judges CLARENCE E. McMANUS, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   JUDE G. GRAVOIS, Judge.

|2The plaintiffs have appealed the trial court judgment in favor of the defendants involving the termination of a lease. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

Plaintiffs, Robert and Kenneth Kuebel (“the Kuebels”), leased property located at 123 Metairie Road to Charvet’s Garden Center, Inc. (“Charvet’s”), one of the defendants, for operation of a retail nursery. The initial lease, which commenced on March 1, 1996, was for a term of sixty months with monthly rental payments of $4,200 per month. Pursuant to an option contained in the lease, on March 1, 2001, the lease was renewed by Charvet’s for another sixty months with monthly rental payments of $5,200 per month. The lease, as renewed, called for an expiration date of February 28, 2006. The leased property contained two ^buildings, a large building which housed Charvet’s retail business, and a smaller building used for storage.

According to testimony elicited at trial, Charvet’s was owned by Marilyn Charvet (“Marilyn”) and her husband, Carol Char-vet (“Carol”), with them children, Winston Charvet (‘Winston”) and Michele Charvet (“Michele”), being minor stockholders in the corporation. Charvet’s also owned and operated a garden center located on Clear-view Parkway in Metairie, which was run by Michele. The second garden center located on Metairie Road in Metairie, referred to as “Charvet’s Garden Center number 2,” which is the subject of this suit, was run by Winston. Although each location maintained separate bank accounts, Marilyn did the bookkeeping, payroll and accounting for both locations.

Charvet’s Garden Center number 2 located at 123 Metairie Road operated continuously under the lease, originally and as renewed, until it closed on August 28, 2005 prior to the arrival of Hurricane Katrina (“Katrina”). On October 15, 2005, Winston gave notice to the Kuebels that he was canceling the lease due to damages resulting from Katrina.

On November 3, 2005, the Kuebels filed a petition naming Charvet’s, Winston and Carol as defendants, alleging that the premises were not unfit for occupancy and operation of Charvet’s business. The Kue-bels sought to recover the remaining payments under the lease as well as insurance payments made for damages to the property resulting from Katrina. In them petition, the Kuebels also sought a writ of sequestration on Charvet’s movables to enforce their lessor’s lien. In their pretrial order, the Kuebels alleged that damages to the property caused by Katrina was negligible in contrast to the damages that cu-mulated during Charvet’s [,,occupancy of the property. Specifically, the Kuebels alleged that Charvet’s failed to maintain the roof, allowing water to leak into the structure, failed to treat termites, and abandoned the building in a condition that left it exposed and subject to rapid decay. The Kuebels sought recovery of the damages to the property due to Charvet’s neglect, lost rental revenue from the lost opportunity to obtain rental income, as well as attorney’s fees and interest.

Prior to trial, the defendants moved for summary judgment arguing that there were no genuine issues of material fact because its termination of the lease was proper under paragraph 23 of the lease. The defendants also requested that Winston and Carol be dismissed personally from this action because they did not execute or guarantee the lease personally. The trial court denied summary judgment on the issue of whether the lease was properly terminated and granted summary judgment dismissing Winston and Carol individually from the suit. The Kuebels moved for a new trial on the issue of personal liability and the trial judge stated that he would rule on the motion following a trial on the merits.

At trial, the Kuebels presented the testimony of Paul Rester, an independent insurance adjuster. Mr. Rester testified that he inspected the subject property on July 7, 2006 and again on September 7, 2006. He took numerous pictures of the property and authored a report, all of which were admitted into evidence. On the outside of the building, Mr. Rester noted evidence of vine growth on the building and the roof, deterioration of the overhang, gutters that were rusting and hanging down, as well as rotten shutters lying on the ground. On the interior of the property, Mr. Rester noted water stains on the ceiling with a portion of the ceiling collapsed, torn drywall on one wall, heavy mold and mildew, and water on the floor. The pictures taken by Mr. Rester indicated a vine was also growing on the interior of the building through a window unit air conditioner. He also noted | r,vermin damage that he thought was caused by rats. On cross-examination, Mr. Rester admitted that he did not visit the premises prior to July 7, 2006. Also, he could not identify the vine vegetation, nor did he know its rate of growth. He admitted that the mold could have manifested itself after Katrina and that some of the damage could be due to vandalism. He testified that there had been “no upkeep” on the property.

Kenneth Kuebel testified that when his father passed away in 1969, the property was passed to his mother and he and his six siblings. He explained that the larger building, referred to as building one, was built in 1945 or 1946, and that the smaller building, referred to as building two, was built in 1972 or 1973. The property was restored in the early 1970s. Prior to being leased to Charvet’s, the property was occupied by other tenants, including Kenneth and his brother Robert. When Charvet’s leased the property, one tenant, a doctor, remained and the other tenants moved. Kenneth testified that he drafted the lease to Charvet’s, which was admitted into evidence, and met with Carol three or four times to negotiate the lease. The lease provided that Charvet’s had permission to tear down the smaller building on the property. Kenneth explained that he would not have leased the premises without Carol’s signature and his intent was to bind Carol financially in the event of a default on the lease. The lease required the tenant to maintain the property. On cross-examination, Kenneth testified that the large building had a flat roof. He explained that flat roofs are not desirable in our climate because they expand and contract due to changes in the temperature which causes the roof to become brittle. Kenneth testified that about ten years after the roof was placed, the Kuebels had to do some minor maintenance which included re-tarring one area of the roof. Kenneth also testified that the Kuebels performed maintenance on the | (iproperty when the lease with the prior tenants was in effect, and that the property was in good condition when it was leased to Char-vet’s.

Robert Kuebel testified that the larger building, referred to as building number one, was constructed of brick with an interior wood frame and sheetrock walls. The smaller building, referred to as building number two, was a steel building. Winston previously operated a business across the street from the Kuebel property and when the property that Winston was occupying was sold, Winston inquired about leasing the Kuebel property. Carol and Winston inspected the Kuebel property prior to signing the lease. Building number one was in very good condition prior to the Charvet’s lease and to Robert’s knowledge, there were no rotting boards, holes in the wall, holes in the ceiling, or roof leaks, and the central air-conditioning in the building was operable. Robert further stated that prior to the Charvet’s lease, there were no leaks in building number two, nor were there any holes, missing roof, or broken windows. Also, there were no termites in the buildings, and prior to leasing the property to Charvet’s, the roof was kept in good repair. Robert admitted, however, that he did not have any records to document any maintenance or repairs. Robert stated that he passed the premises frequently during Charvet’s occupation of the property and he never expressed any displeasure as to any lack of maintenance on the property. Robert denied knowledge of Charvet’s right to tear down building two if it desired, but testified that under the lease Charvet’s had to maintain that building because they used it.

Robert further testified that he went to the premises after Katrina and “saw the disaster.” He took pictures that were admitted into evidence. These pictures depict water damage and missing sheetrock on the ceiling, mildew, broken windows, trash, torn sheetrock on the wall, roof rot, termite damage, fallen gutters, and vines growing on the building. The pictures showed window air-conditioning 17units that Robert states were not present prior to renting to Charvet’s. The central air-conditioner system was not maintained. Everything including mechanical, electrical and walls of the building were destroyed. He admitted that the electricity was never turned on after Charvet’s vacated the property so he did not know if the central air-conditioning system worked. Robert testified that he took these pictures because he saw the disaster and “total destruction” and wanted to prove this was not there when he left the building. In March 2007, the buildings subject to the Charvet’s lease were demolished because they could not be rebuilt. There were two rental houses on the property that were destroyed by Katrina. These houses were also demolished at the same time as the buildings leased to Charvet’s.

In October 2005, when Winston told him he was packing up and moving from the premises, Robert told Winston that he had to pay for the remainder of the lease. On October 18, 2005, Robert presented a letter to Carol, which Carol signed, stating that “you are now in default of your lease.” At that time, Carol told Robert that Char-vet’s would pay the rent. When Robert later met with Carol to collect the rent, however, Carol told him Charvet’s did not have to pay the rent. Also, Robert testified that he talked to Federal Emergency Management Authority (FEMA) about leasing the premises and that the Kuebels held the property for FEMA for four months. Robert estimated that after Charvet’s vacated the property, it could have been rented for $20,000 per month if the property had been in the same condition as it was at the inception of Charvet’s lease.

Winston was called as a witness by the Kuebels as the corporate representative of Charvet’s. Winston was questioned regarding his prior deposition testimony in which he testified that Charvet’s Garden Center number 2 was a partnership between he and his parents. Winston testified that he received all of the profits from Charvet’s Garden Center number 2, explaining that |sCharvet’s owned Charvet’s Garden Center number 2. Prior to leasing the Kuebel property, Winston operated the business across the street from the Kue-bel’s property and he had signed the lease for that prior location. Winston testified that he was aware that Robert wanted his father, Carol, to sign the lease from the Kuebels. Winston stated that he maintained the property and patched leaks on the roof as they occurred. He kept roofing material in a storage room and performed the repairs himself. In 2001, the roof of building one was damaged by a hailstorm. An insurance claim was made and these funds were used to repair the roof. Winston further testified that building one needed a new roof before the inception of the lease.

Winston also testified that he routinely sprayed for subterranean termites. In 2001, however, the building was found to be infested with Formosan termites. Although he could not produce any documents to evidence payment, Winston testified that he hired someone to treat this infestation.

James Morgan, who was accepted as an expert in general construction and contracting, testified that he inspected the subject property on three occasions in early 2006. He found the property in poor condition, noting that the ceiling had drooped on the floor, the sheetrock was wet and molded, there was water around the air-conditioning system, and there was rotten wood and termites. Mr. Morgan opined that the leaks in the roof had been ongoing for four to five years based on the extent of the rotten wood. In his opinion, the ceiling damage and termite damage predated Katrina. He opined that if the building had been maintained, it would have had another ten to fifteen years of useful life at the conclusion of the Char-vet’s lease. The damage to the building was too costly to repair. On cross-examination, Mr. Morgan admitted that he did not know if the central air-conditioning system was operable. He stated that the majority of the damage to the |flbuilding was from water, and that some of the moisture damage could have been from Katrina because the building leaked “real bad.” He did not think that the termite damage pre-dated the Charvet’s lease. Mr. Morgan admitted that there had been materials poured on the flat roof, but he could not tell how long it had been since the roof had been repaired. According to Mr. Morgan, most flat roofs last 12 to 15 years then have to be repaired.

Kevin Vanderbrook, a civil engineer, testified that although he did not inspect the property, he examined pictures taken of the premises taken by Mr. Rester. Mr. Vanderbrook testified that the cracking on the roofs surface was the result of long term exposure. He explained that the photographs showed the fiberglass layer was visible which indicated a deterioration of the asphalt coating and felt paper that occurred over a period of five to ten years. He noted foliage on the roof which impedes drainage and resulted in leakage. He felt that the patches to the roof were ineffective. He did not see any holes in the roof that were related to hurricane damage that would have resulted in ceiling damage. In Mr. Vanderbrook’s opinion, the rotted wood and termite damage occurred over a period of years. He concluded that it was more probable than not that the damage to the building was due to neglect rather than to Katrina. On cross-examination, Mr. Vanderbrook stated that one would expect to see some cracking on a roof of this type within five to ten years of installation. He admitted that he did not know if there were roof leaks and stains on the ceiling prior to Katrina based on the photographs. He acknowledged that there were photographs that indicated a piece of metal flashing was damaged by wind which would have allowed water into the building.

The Kuebels admitted the deposition of Paul Coffey into evidence. Mr. Coffey, an insurance adjuster, testified that he inspected the property in October |in2005 for the insurer of the premises. According to Mr. Coffey, there was a lot of debris on the roof that came from an oak tree next to the building. He stated that there was wear and tear on the roof that was unrelated to Katrina. Mr. Coffey admitted, however, that he wrote the insurance report to repair the roof because there was water coming in through the roof. He also noted water damage to the interior of the building, damage to gutters, and an exteri- or door, as well as termite damage. He did not think the building was a total lost; rather, he testified that the damages from Katrina were not significant. Mr. Coffey testified that the building could have been repaired.

The defendants presented the testimony of Maureen Krail, Winston’s ex-wife’s sister. Ms. Krail testified that she worked at the Charvet’s Garden Center on Metairie Road in 1996. She testified that the property was dilapidated at that time and there were water stains on the ceiling. She testified that the ceiling was sagging which gave her the impression that it had been wet.

The defendants also called Robert Ca-gle, an air-conditioning mechanic, as a witness. Mr. Cagle testified that he made numerous repairs to the air-conditioning system at the Charvet’s Garden Center on Metairie Road. Mr. Cagle’s invoices dating from May 1996 to May 2005 were admitted into evidence. Mr. Cagle explained that when he went onto the roof to work on the air-conditioning condensers, he did not notice anything unusual about the roof, nor did he notice any lack of maintenance on the building.

G. Duane Crump testified that he was hired by Charvet’s to do renovation drawings for the property in 1996 because the building was in need of renovation at that time in order to meet the current building codes. Mr. Crump never inspected the roof, as his work did not include the roof. Mr. Crump stated that he|nvisited the site in question at various times and did not notice any deterioration in the property.

Richard Regan, an attorney, testified that he spoke to Carol regarding termination of the lease. He drafted a letter that was sent via certified mail to Robert Kuebel that served as notification to the Kuebels that Charvet’s desired to cancel the lease based on the fact that the premises were then unusable for the purpose for which it was leased. The letter cited paragraph 23 of the lease which allowed either party to cancel the lease if there was a casualty during the last twelve months of the lease. Since the term of the lease expired on February 28, 2006, Mr. Regan concluded that Charvet’s had the right to terminate the lease.

Carol Charvet testified that he signed the lease with the Keubels and that wrote his title as president of Charvet’s next to his name because he signed the lease on behalf of the corporation. He stated that he never intended to bind himself personally to the lease. He testified that Winston ran the Metairie Road Garden Center and is a 1% stockholder of Charvet’s. His daughter, Michele, also owns 1% of Char-vet’s stock and ran the Clearview location. Carol’s wife, Marilyn, owns 51% of the stock. Carol was then confronted with his prior deposition testimony that the Metair-ie Road store was an individual business with Winston as the owner. Carol explained that his deposition testimony meant that at the end of the year, Winston would get a bonus based on the profits of the Metairie Road store. At trial, Carol testified that Charvet’s owned both stores and taxes were paid on the two stores as one entity.

Carol further testified that the Kuebel property was in “terrible shape” at the inception of the lease. After Katrina, Robert came by to collect the rent and Carol told him he had to speak to Winston. Carol stated that he then spoke to an attorney, who stated Charvet’s could get out of the lease. When Robert later met 112with Carol, Carol told Robert that they were going to close their Metairie Road location and terminate the lease.

Avery Charvet testified that she started working at the Metairie Road Garden Center in January 1997 and married Winston in June 2000. She explained that during the time she worked at that location, Winston sprayed the premises for termites, but someone else came in to treat the premises for the Formosan termites. According to Avery, Winston repaired the roof when it leaked, and that after a hailstorm, considerable repairs were done to the roof. Avery explained that there was an aggressive vine that was growing on the property at the inception of the lease. This vine grew between the building and the concrete. She stated that they would cut the vine back and spray it with herbicides, but in would always grow back.

Avery further testified that the interior of the Metairie Road store had to look attractive because it was a viable business. She stated that several times during the lease, they had to make repairs to the ceiling sheetrock. She explained that the central air-conditioning system never worked very well, so they placed window units in the building during the summer before Katrina. She testified that Robert came to the premises about four times a year and that she never heard any complaints from him about the condition of the property. After Katrina the building was a disaster. There was a big piece of sheet-rock that had fallen from the ceiling. It took weeks for them to clean the property. When they vacated the premises, they left the building “broom clean” as required by the lease. Avery reviewed pictures of the property taken by Mr. Rester, noting that the pictures were taken in September 2006, almost a year after they vacated the premises. She took note of the aggressive vines growing up the side of the building.

113Winston Charvet returned to the stand and again explained that he was a shareholder and officer of Charvet’s. He testified that Robert wanted Carol to sign the lease rather than Winston because, in Winston’s opinion, Robert wanted to be sure they had the capital to perform the needed repairs in order to operate their business on the subject premises. Winston explained that at the inception of the lease, there were numerous renovations that had to be done to bring the building up to code and these renovations took about two and one-half months to complete. He testified that at the inception of the lease there were obvious problems with the roof and stains on the ceiling. During the duration of the lease, maintenance of the roof was a constant issue. He kept the materials to patch the roof on hand and performed the repairs himself when the roof leaked. In 2001, after a hailstorm, there was a major repair done to the roof. Winston explained that he did not have all of the cancelled checks and documents to show what was spent to repair the roof because he purchased some of the materials himself and some of his laborers assisted him with the roofing repairs. He also hired a roofing contractor, Lionel Bell, to put asphalt on the roof.

Winston also testified that he treated the premises for subterranean termites but he hired someone to treat the Formosan termites when they were discovered. Winston stated that he “spruced up” the interior of the building on numerous occasions and painted the outside of the building twice during their occupancy of the premises. He stated that Robert had told him that the building would be torn down after his mother passed away. Winston testified that had the property not been damaged by Katrina, he would have renewed the lease when it expired in February 2006 because he ran a profitable business at this location.

Winston further testified that after Katrina, there were tree branches on the roof of the building, broken water pipes, and debris all over. Sheetrock had fallen | l4down and there was water coming into the building. There was damage to doors and file cabinets. He testified that he could not have operated a business on these premises if the building had been in the condition depicted by the pictures. He explained that the damages depicted in the pictures were due to the hurricane. After Katrina, he sought advice from his ex-wife, who was an attorney. She advised him to send a letter to the Kuebels terminating the lease. Winston testified that he told Robert that they were going to move and terminate the lease and Robert stated that he wanted to rent the property to FEMA. Winston testified that he even spoke to FEMA about renting the property.

At the conclusion of the trial, the trial judge took the matter under advisement. He then rendered judgment finding that Charvet’s had fully complied with the terms of the lease and had the right to terminate the lease under paragraph 23 of the lease. The trial judge further stated that the Kuebels failed to prove that Char-vet’s neglected to maintain the property in question pursuant to the terms of the lease. The trial court also denied the Kue-bels motion for a new trial regarding the personal liability of Winston and Carol. This timely appeal followed.

ASSIGNMENTS OF ERROR ONE AND TWO — BURDEN OF PROOF

In their first assignment of error, the Kuebels contend the trial court improperly placed the burden of proof on the them, as lessor, instead of allocating it between the parties. The Kuebels argue that once a loss is demonstrated, there is a presumption that the lessee’s negligence caused the damages and the burden of proof is shifted to the lessee, not the lessor. The Kuebels further argue that the trial court committed an error of law by improperly applying the burden of proof and contends this court must perform a de novo review and render judgment on the record. The Kuebels additionally argue that they offered uncontroverted testimony |iBand evidence proving that the Char-vets allowed termites to infest the building, failed to properly maintain the roof, and failed to undertake any meaningful maintenance of the premises as required under the lease. They contend that Char-vet’s offered little documentary evidence proving that the damages were caused by either Katrina or by neglect following their abandonment of the premises.

Charvet’s responds that the Kuebels’ argument ignores the trial court’s factual Ending that “the Court received no credible evidence of the condition of the Property at the inception of the Lease.” Char-vet’s points out that building number one, which was built in the 1940s, was approximately 50 years old at the inception of the lease. This building contained a flat roof which needed periodic maintenance throughout the life of the building. Building number two was built in the 1970s. Charvet’s contends that there was substantial testimony that the condition of the premises was not very good at the inception of the lease.

In support of its position, Charvet’s relies on Perroncel v. Judge Roy Bean’s Saloon, Inc., 405 So.2d 626 (La.App. 3 Cir.1981) and American Machinery Movers, Inc. v. Continental Container Service, Inc., 436 So.2d 1289 (La.App. 4 Cir.1983). We find these cases distinguishable from that of the case at bar. In Perroncel, the plaintiff sought to recover damages to specific items that were listed as inventory of the leased premises at the inception of the lease. American Machinery Movers, Inc. dealt only with damage to movable property, i.e. a forklift. More importantly, in both of those cases, the condition of the leased property at the inception of the lease was clearly established.

Conversely, in the instant case, the evidence was clear that the leased premises consisted of two older buildings. Building number one was some fifty years old with a flat roof. While building number two was only about 25 years old, | lfiit apparently was in a state of disrepair since the inception of the lease, as Charvet’s was given the option of tearing it down. Additionally, while Kenneth and Robert testified that building number one was in good condition at the inception of the lease, the architect, Mr. Crumb testified that the building needed extensive renovation. Also, Ms. Krail and Carol testified that the property was in poor shape at the inception of the lease. Winston explained that significant capital was needed to renovate the property in order to operate the business at this location and that was the reason Robert required that Carol sign the lease. Moreover, Kenneth, who ran a construction business, testified that flat roofs are not desirable in our climate because they expand and contract with changes in the weather which caused cracks. Robert testified that this roof was replaced in the early 1970s and repaired about ten years later. Robert testified that prior to the lease to Charvet’s, the roof was kept in good repair but he did not have any records to document said repair. Furthermore, Mr. Morgan testified that a flat roof only lasts 15 to 18 years at the most. Thus, the evidence presented shows that at the inception of the lease, building number one had a flat roof that had reached its life expectancy. Additionally, Winston and Avery testified that substantial repairs were performed on the flat roof in 2001.

As noted above, the reasons for judgment state that the “Court received no credible evidence of the condition of the property at the inception of the lease.” Clearly the trial court rejected the Kue-bels testimony that the building was in good condition at the inception of the lease and found that extensive renovations had to be done by the Charvets in order to establish its business on the property to be more credible. Accordingly, because the Kuebels did not establish the condition of the property at the inception of the lease, the burden of proof never shifted to the defendants to prove that damages to the building was not caused by their 117negligence. Hence, the trial court did not err in finding that the Kuebels failed to prove that Charvet’s neglected to maintain the property pursuant to the terms of the lease.

In their second assignment of error, the Kuebels argue the trial court erred in finding they failed to prove that Charvet’s failed to maintain the property pursuant to the terms of the lease. The Kuebels contend that the trial court ignored the overwhelming evidence that the damages were caused by years of neglect at the hands of Charvet’s and that the premises were damaged beyond repair due to Charvet’s neglect. In support of this position, the Kuebels cite the testimony of their experts, Mr. Morgan and Mr. Van-derbrook, that the majority of the damage to the property was due to Charvet’s neglect. They also cite the testimony of the insurance adjuster, Mr. Coffey, that the damage from Katrina was not significant.

A trial court’s findings of fact will not be disturbed on appeal unless the reviewing court finds that they are clearly wrong or manifestly erroneous. Stobart v. State, Through Dept. of Transp, and Dev., 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). This standard of review does not allow the appellate court to reweigh the evidence or substitute its own factual findings. Salvant v. State, OS-2126 (La.7/6/06), 935 So.2d 646, 650. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or plainly wrong. Id.

In order to reverse a trial court’s factual determinations, the appellate court must find that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. When findings are based on determinations regarding the credibility of a witness, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings. Schexnayder v. Exxon Pipeline Co., 01-1236, p. 6 (La.App. 5 Cir. 3/13/02), 815 So.2d 156, 160. A trial court’s factual findings that are based on credibility determinations can virtually never be manifestly erroneous or plainly wrong. Sal-vant, supra; StobaH v. State, stqrra. As explained in Rosell, supra the reason for this standard is because only the trier of fact can be aware of the variations in character and tone of voice that bear so deeply on the listener’s understanding and belief in what is said.

Additionally, the trial court is not bound by the testimony of an expert; rather expert testimony is to be weighed the same as any other evidence. Fountain v. Fountain, 93-2176, p. 5 (La.App. 1 Cir. 10/7/94), 644 So.2d 733, 738. A trial court may accept or reject in whole or in part the opinion expressed by an expert. Id. The effect and weight' to be given to expert testimony is within the broad discretion of the trial judge. Williams v. Rubicon, 2001-0074 (La.App. 1 Cir. 2/15/02), 808 So.2d 852, 858.

Winston and Avery testified that periodic maintenance and repairs were performed on the building during their occupancy. They explained that as a retail store, in an affluent area, the interior had to look presentable for customers. The evidence and testimony clearly established that the retail business was in operation until it closed for Katrina. Additionally, Robert admitted going into and driving by the building at various times throughout Charvet’s occupancy and testified that there was no reason for him to go to the Charvets and express displeasure as to how they were maintaining the property. Furthermore, all of the pictures presented by the Kuebels depict the premises after Katrina, with some of the photographs being taken over a year later after the building was left with no measures taken to prevent water from entering the building through the damaged roof. Clearly the trial court used its discretion and rejected the testimony presented by the Kuebels’ experts that the damage depicted in the photographs was the result of neglect rather | ]9than the hurricane. Having found no abuse of that discretion, we find no error in the trial court’s determination that the Kuebels failed to prove that Charvet’s neglected to maintain the property pursuant to the terms of the lease.

ASSIGNMENT OF ERROR NUMBER THREE — RIGHT TO TERMINATE THE LEASE

In this assignment of error, the Kuebels argue that Charvet’s used Katrina as a ploy to terminate the lease and hide years of damage from neglect to the leased premises. The Kuebels contend it was the damage caused by Charvet’s’ neglect that rendered the premises unfit for occupancy rather than Katrina. They contend that paragraph 23 of the lease absolving the lessee from repairing damages caused by a casualty during the last 12 months of the lease must be read together with paragraph 19 of the lease that provides the damage must not be caused by the fault or neglect of the lessee. The Kuebels reason that taking these two paragraphs together results in a two-part test to cancel the lease — there must be damages caused through no fault of the lessee and the property must be damaged to such an extent as to render it unfit for occupancy.

Charvet’s responds that the language in paragraph 23 stating “with regard to Paragraph 19 of this Lease and notwithstanding anything contained therein” means that paragraph 19 is not applicable to paragraph 23. Charvet’s contends that under paragraph 23 since there was damage to the property from a casualty that occurred within the last 12 months of the lease, Charvet’s had a right to terminate the lease. Charvet’s contends that proper notification of termination was given pursuant to paragraph 23.

Pai-agraph 19 of the lease states:

If through no fault, neglect, or design of Lessee, the premises are destroyed by fire or other casualty or damages to such an extent as to | ^render them wholly unfit for occupancy, then this lease shall be canceled. The premises shall be deemed “wholly unfit for occupancy” if the premises cannot be repaired within 120 days from the date of casualty or fire. If the premises can be repaired within 120 days from the date of fire or casualty and such fire or casualty is covered by Lessee’s insurance, then this lease shall not be canceled and Lessee shall notify Lessor, or its agent within 30 days from date of fire or casualty that Lessee will repair the damage and Lessee shall not be entitled to a reduction or remission of rent during the period of reconstruction.

Paragraph 23 of the lease states:

With regard to Paragraph 19 of this lease, and notwithstanding anything contained therein, Lessee shall not be responsible to so repair, and either part[y] may cancel and terminate this lease upon giving the other party 30 days prior -written notice of its desire to so cancel and terminate, if such fire or other casualty occurs during the last 12 months of the terms of this lease.

The trial court found:

The destruction caused by Hurricane Katrina was the reason for Charvet’s desire to cancel the lease. The Court finds that the defendant fully complied with the terms and conditions of the lease and that under Paragraph 23 of the lease the defendant had a right to terminate said lease. Hurricane Katrina is considered a casualty, it occurred during the last 12 months of the lease term, and it rendered the lease property “wholly unfit of occupancy”.

Having previously determined that the condition of the premises following Katrina was not due to the fault or neglect of the defendants, we must determine whether the evidence supports the trial court’s finding that Katrina rendered the property “wholly unfit for occupancy.” Winston and Avery testified as to the condition of the premises when they returned to the business after Katrina. Avery described the premises as a “disaster” with sheetrock falling down and water entering the building. Winston testified that there were branches on the roof, broken pipes, broken doors, and debris everywhere. Robert testified that he went to the premises and “saw the disaster.” Robert also testified that two rental houses that were located on the property were destroyed by Katrina. Thus, we find no |⅛1 error in the trial court’s finding that the damage caused by Katrina rendered the premises wholly unfit for occupancy.

Under Paragraph 23 of the lease, if a casualty occurs during the last 12 months of the lease that renders the property wholly unfit for occupancy, either party can terminate the lease by giving the other party 30 days notice. There is no dispute that Charvet’s gave the Kuebels proper notice of their intent to terminate the lease and vacated the premises. Accordingly, we find that Charvet’s properly exercised its right to terminate the lease by giving 30 days notice to the Kuebels pursuant to the terms of paragraph 23 of the lease.

ASSIGNMENT OF ERROR NUMBER FOUR — PERSONAL LIABILITY

Having found no error in the trial court’s determination that damage to the leased premises was due to Katrina rather than the neglect of defendants, the plaintiffs’ assignment of error claiming the trial court erred in holding Winston and Carol were not personally liable for the condition of the premises is moot.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to appellants.

AFFIRMED.

      . The petition was filed by J.O. Kuebel, Joseph O. Kuebel, Jr., Jane lee K. Bosworth, Robert G. Kuebel, Elizabeth K. Lorber, executrix of the state of Conrad M. Kuebel, Jo Ann K Williams, Kenneth A. Kuebel and Eileen K. Weber. The appellants’ brief, however, refers to plaintiffs only as Robert G. Kuebel and Kenneth A. Kuebel.

      . The record and testimony indicate that the insurance payment was made to Charvet's Garden Center, Inc. and the money for damages to the building located at 123 Metairie Road was later paid to the plaintiffs by the Charvet's.


source: Caselaw Access Project

author: WALTER J. ROTHSCHILD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Allen R. WOLFF.
    No. 09-KA-508.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 29, 2009.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Thomas J. Butler, Margaret E. Hay, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Katherine M. Franks, Attorney at Law, Louisiana Appellate Project, Abita Springs, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

| .¿Defendant, Allen Wolff, was charged with possession of cocaine in violation of LSA-R.S. 40:967(C). He pled not guilty and filed several pre-trial motions, including a motion to suppress the evidence, which was denied after a hearing. Defendant proceeded to trial on June 18, 2008, and a six-person jury found him guilty as charged. The trial court subsequently sentenced defendant to four years at hard labor.

Defendant timely appeals.

^Testimony and evidence presented at trial reveals the following:

At approximately 10:00 a.m. on September 13, 2006, Jefferson Parish Sheriffs Deputy Kevin Balser was on routine patrol in a marked unit when he noticed a white Dodge van parked in front of a house on South Cumberland Street in Metairie. Deputy Balser explained that the house was the target of numerous citizen complaints of drug activity. As Deputy Balser passed, he saw a man approach the driver’s side of the van and reach into his pocket. Deputy Balser believed a drug transaction was about to occur but kept driving. He drove one to two blocks over, parked and then saw the white van driving on Milan. Deputy Balser followed the van for approximately three blocks and, by pacing the van, determined it was driving 30 mph in a 20 mph residential area. He then stopped the van for speeding.

Deputy Balser approached the driver’s side of the van and observed defendant leaning to the left side. He could not see defendant’s left hand and, thus, asked defendant to place his hands in view because he was concerned defendant may have had a weapon. When defendant brought his hand into view, Deputy Balser saw defendant discard a white tissue paper. He asked defendant for his driver’s license, registration and proof of insurance and asked him to exit the vehicle.

When defendant exited the van, Deputy Balser saw three off-white rock-like objects consistent with crack cocaine and a glass cylinder crack pipe on the floorboard between the driver’s side seat and passenger’s seat. Deputy Balser handcuffed defendant and advised him of his Miranda rights. Defendant first indicated he was in the area picking up a friend for construction work, but then |4later stated he was in the area under the direction of a friend to purchase illegal narcotics.

Deputy Balser conducted a field test of the rocks, which tested positive for cocaine. Subsequent laboratory tests confirmed the rocks were positive for cocaine.

By this appeal, defendant first argues the trial court erred in denying his motion to suppress on the basis the traffic stop was pretextual. He challenges the credibility of Deputy Balser’s testimony regarding the circumstances surrounding the stop and seizure of evidence. He claims the officer gave inconsistent testimony at the suppression hearing and the trial thereby damaging his credibility. As such, defendant questions the credibility of the officer’s testimony regarding whether he was speeding because the officer stated his intention was to create an encounter with defendant. Defendant maintains the stop was illegal and, therefore, the evidence should have been suppressed. He also claims the statements he made after his arrest should have been suppressed as fruit of the poisonous tree.

The State responds defendant was properly stopped for a traffic violation. The State contends that even if the traffic stop was a pretext for a narcotics search, the pretext is inconsequential because the stop was justified by the traffic violation. The State maintains the officer saw the cocaine and crack pipe in plain view on the floorboard of the vehicle when defendant exited.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. If evidence is derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial. State v. Leonard, 06-361, p. 4 (La.App. 5 Cir. 10/31/06), 945 So.2d 764, 765. Warrantless searches and seizures are per se [.^unreasonable unless justified by one of the exceptions to the warrant requirement. Id.

In a hearing on a motion to suppress, the State bears the burden of proof in establishing the admissibility of evidence seized without a warrant. LSA-C.Cr.P. art. 703(D). The trial court’s decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Leonard, supra. To determine whether the trial court’s denial of the motion to suppress is correct, the appellate court may consider the evidence adduced at the suppression hearing as well as the evidence presented at trial. State v. Young, 05-702, p. 8 (La.App. 5 Cir. 2/14/06), 938 So.2d 90, 96-97.

The right of law enforcement officers to stop and interrogate those reasonably suspected of engaging in criminal activity is recognized by LSA-C.Cr.P. art. 215.1, as well as by State and federal jurisprudence. See, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). Generally, “the decision to stop a vehicle is reasonable when the police have probable cause to believe a traffic violation has occurred.” State v. Waters, 00-356, p. 4 (La.3/12/01), 780 So.2d 1053, 1056, quoting Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996). The standard is purely objective and does not take into consideration the subjective beliefs or expectations of the detaining officer. Id.

In Whren v. United States, 517 U.S. 806, 812-13, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89 (1996), the United States Supreme Court clearly stated that a traffic-violation arrest is not rendered invalid by the mere fact it was a pretext for a narcotics search. The Supreme Court explained that “the fact that the officer does |finot have the state of mind which is hypothe-cated by the reasons which provide the legal justification for the officer’s action does not invalidate the action as long as the circumstances, viewed objectively, justify that action.” Whren v. United States, supra, quoting Scott v. United States, 436 U.S. 128, 136, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978). The Louisiana Supreme Court has stated that “[although they may serve, and may often appear intended to serve, as the prelude to the investigation of much more serious offenses, even relatively minor traffic violations provide an objective basis for lawfully detaining the vehicle and its occupants.” State v. Waters, 00-356 at 4, 780 So.2d at 1056.

At both the motion to suppress hearing and at trial, Officer Balser testified that he pulled defendant over because he was speeding. He explained that although he did not have a radar gun, he paced defendant by following behind him in his marked unit. He stated he wrote defendant a citation for traveling 30 mph in a 20 mph residential zone. Thus, without regard to Officer Balser’s subjective intent, defendant’s speeding above the posted limit gave the officer an objective probable cause basis to pull over the vehicle for a traffic violation. See State v. Lopez, 00-562, p. 3 (La.10/30/00), 772 So.2d 90, 92, and State v. Schnyder, 08-1199, pp. 8-9 (La.App. 5 Cir. 3/24/09), 10 So.3d 303, 309.

Defendant contends that Officer Bal-ser’s testimony should not have been believed by the trial court. He first asserts Officer Balser testified differently at the suppression hearing than he did at trial. However, defendant fails to point to any inconsistencies between Officer Balser’s suppression hearing testimony and his |7trial testimony. A review of the record shows Officer Balser’s testimony at the adduced at trial than at the suppression hearing. However, there is nothing to support defendant’s contention that the motion to suppress hearing was based on “intentionally incomplete facts.”

Defendant also asserts Officer Balser’s version of the facts was unbelievable. He maintains it is inconceivable that he would speed with a marked police unit behind him. He also points out that the traffic citation was not issued until 12 hours after defendant was stopped thereby demonstrating an attempt by Officer Balser to justify the initial stop. During the motion to suppress hearing, Officer Balser was shown the traffic citation he issued to defendant. He noted that the citation indicated it was issued at 10:32 p.m. However, his testimony shows the traffic stop occurred at 10:13 a.m. The traffic citation was never introduced into evidence either during the suppression hearing or at trial.

The credibility of witnesses is best determined by the trial judge and is not to be disturbed on appeal unless the trial judge abuses his discretion. State v. Neuman, 01-1066, p. 7 (La.App. 5 Cir. 4/10/02), 817 So.2d 180, 184. There is nothing in the record that indicates the trial judge abused his discretion in crediting the testimony of Officer Balser. While it is not unreasonable to believe the traffic citation contained an error regarding a.m. and p.m., it is unreasonable to conclude, on the basis of the written citation alone, that Officer Balser wrote the traffic Isrítation 12 hours after the initial stop simply to justify stopping defendant as suggested by defendant.

The record indicates that the trial judge accepted Officer Balser’s testimony that defendant committed a traffic violation by speeding, which gave the officer lawful cause to stop defendant. Even assuming Officer Balser used the traffic stop as a pretext to stop defendant, the stop for a traffic violation was still lawful, as the constitutional reasonableness of a traffic stop does not depend on an individual officer’s subjective motivation. See Whren v. United States, 517 U.S. at 813,116 S.Ct. at 1774.

Following the lawful stop of defendant’s vehicle for the traffic violation, the officer was authorized to order defendant to exit his vehicle. State v. Smith, 07-815, p. 5 (La.App. 5 Cir. 3/11/08), 982 So.2d 821, 825, writ denied, 08-927 (La.11/14/08), 996 So.2d 1088. When defendant exited his vehicle, Officer Balser observed the rocks of crack cocaine in plain view on the floorboard. Under the plain view exception to the warrant requirement, if the police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant. Horton v. Cali-fomia, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); State v. Walker, OS-188, p. 5 (La.App. 5 Cir. 7/29/03), 853 So.2d 61, 64, tvrit denied, 03-2343 (La.2/6/04), 865 So.2d 738. Because the crack cocaine was in plain view, Officer Balser lawfully seized it. See State v. Walker, supra. Once Officer Balser discovered the rocks of crack cocaine in plain view on the floorboard of the vehicle defendant was driving, he had probable cause to arrest defendant.

|c)Based on the foregoing, the trial court properly denied the motion to suppress the evidence and defendant’s statements given after his lawful arrest did not constitute fruit of the poisonous tree.

Defendant next argues his near maximum sentence of four years at hard labor is excessive for simple possession of three rocks of cocaine. He points out that he was not armed when he was arrested and his one prior conviction, 18 years before the current offense, was not a violent one. He further maintains the trial court considered improper community factors in imposing sentence and, thus, failed to individualize his sentence. The State responds defendant’s four-year sentence is within the statutory guidelines and is not disproportionate to the harm caused by drug offenders.

Defendant acknowledges that his counsel did not file a motion to reconsider sentence in the trial court below and failed to object to the sentence at the time of sentencing as required by LSA-C.Cr.P. art. 881.1. The failure to file a motion to reconsider sentence, or to state the specific grounds upon which the motion is based, limits a defendant to a bare review of the sentence for constitutional excessiveness. State v. Ragas, 07-3, p. 10 (La.App. 5 Cir. 5/15/07), 960 So.2d 266, 272, writ denied, 07-1440 (La.1/7/08), 973 So.2d 732, cert. denied, — U.S. -, 129 S.Ct. 55, 172 L.Ed.2d 56 (2008).

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Smith, 01-2574, p. 6 (La.1/14/03), 839 So.2d 1, 4. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Id. A sentence is grossly | ipdisproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lawson, 04-334, p. 6 (La.App. 5 Cir. 9/28/04), 885 So.2d 618, 622.

A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Dorsey, 07-67, p. 5 (La.App. 5 Cir. 5/29/07), 960 So.2d 1127, 1130. Three factors are considered in reviewing a trial court’s sentencing discretion: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Stewart, 03-920, p. 16 (La.App. 5 Cir. 1/27/04), 866 So.2d 1016, 1027-28, writ denied, 04-0449 (La.6/25/04), 876 So.2d 832.

The crime of possession of cocaine has a penalty range of imprisonment with or without hard labor for not more than five years. LSA-R.S. 40:967(C). Additionally, the defendant can also be ordered to pay a fine not to exceed $5,000. Defendant received a four-year sentence at hard labor.

In imposing sentence, the trial court noted defendant had five prior felony convictions, all for possession of cocaine, and one prior misdemeanor conviction. It also noted defendant had a family to support. The trial court commented that defendant perhaps has a substance abuse problem but stated that defendant had not sought substance abuse treatment in the past. The trial court explained that despite defendant’s motion for a suspended sentence, it was convinced that a suspended sentence was not appropriate in this case and it believed defendant was in need of institutional care. The trial court further noted that defendant had not expressed any remorse regarding his past behavior and that “his attitude of resistance and _[]jrebellion” suggested to the court that defendant “is an angry individual who will only go back to where he was before.” The trial court stated it was “not impressed by [defendant’s] demeanor nor his criminal history, that he has repented of his ways and his heart has changed such that we can trust him among the citizens of this community.”

Based on the jurisprudence, we fail to find that defendant’s four-year sentence is excessive. In State v. Thornton, 44,077, p. 2 (La.App. 2 Cir. 4/8/09), 8 So.3d 830, 832-33, the Second Circuit upheld the defendant’s four-year sentence for possession of cocaine after noting the defendant had two prior distribution of cocaine convictions. The court also noted the defendant failed to attend substance abuse meetings, which were ordered as a condition of his post-conviction bond. The court did not find the defendant’s sentence to be grossly disproportionate to the severity of the offense or shocking to its sense of justice. Also, in State v. Whitfield, 08-641, pp. 2-3 (La.App. 3 Cir. 12/10/08), 998 So.2d 935, 937-38, the Third Circuit upheld the defendant’s four-year sentence and $1,500 fíne for possession of cocaine. The court noted the defendant had three prior felony convictions and benefited by pleading guilty because the State dismissed one charge and agreed not to file a multiple offender bill of information. And, in State v. Watkins, 33,644, pp. 5-7 (La.App. 2 Cir. 9/27/00), 768 So.2d 665, 669, the court found the defendant’s four-year sentence for possession of cocaine was not unconstitutionally excessive. The court noted the defendant’s extensive criminal record and his personal history, which included questionable employment and revocation of his probation on four occasions in the past.

1 t2In the present case, defendant had five prior felony drug convictions. Similarly situated defendants have received the same four-year sentence. Therefore, we fail to find that the four-year sentence imposed by the trial court is unconstitutionally excessive. The sentence is not grossly disproportionate to the severity of the offense or shock the sense of justice.

Finally, defendant contends he received ineffective assistance of counsel because his trial counsel failed to file a motion for reconsideration of sentence. He claims his trial counsel failed to object to the trial court’s reliance on impermissible sentencing factors. He also claims his counsel failed to present information, such as his employment history, to the trial court to aid in its sentencing. The State contends defendant has failed to show he was prejudiced by his trial counsel’s failure to file a motion to reconsider sentence because he failed to show there was a reasonable probability that but for his counsel’s error, his sentence would have been different.

A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution of 1974. In assessing a claim of ineffectiveness, a two-pronged test is employed. The defendant must show that (1) his attorney’s performance was deficient, and (2) the deficiency prejudiced him. To demonstrate prejudice under this test, the defendant must show that the outcome of the trial would have been different, but for counsel’s unprofessional conduct. Strickland v. Washington, 466 U.S. 668, 687,104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); State v. Nguyen, 06-969, p. 8 (La.App. 5 Cir. 4/24/07), 958 So.2d 61, 65, writ denied, 07-1161 (La.12/7/07), 969 So.2d 628.

| isThis Court has recognized that a defense counsel’s failure to file a motion to reconsider sentence cannot automatically be considered deficient performance. This Court has also held that the failure to file a motion to reconsider sentence does not prejudice a defendant when the court reviews the sentence for constitutional exces-siveness. Id. However, in the present case, defendant complains of a statutory violation. He contends his counsel’s failure to file a motion to reconsider sentence precludes him from raising the claim that the trial judge considered improper sentencing factors.

During the sentencing, the trial court stated that it had taken notice of LSA-C.Cr.P. art. 894.1, which lists aggravating and mitigating circumstances for the sentencing judge to consider when imposing sentence. After noting defendant had six felony convictions, including the present conviction, the trial judge stated:

I am quit [sic] aware that illegal substances are obtained from drug dealers. Drug dealers have resulted in the deaths of young children in our community. They have engaged in warfare between themselves and their bullets have missed their targets and little babies have died.
I’m always concerned that persons who keep drug dealers in business carry with them the blood of the little babies on their hands.
Because it is true that if we don’t shop with certain businesses, those businesses go out of business. And it is people such as the defendant before us whose habit and whose poor choices result in drug dealers continuing in business within this community, to the detriment of our little ones. While we mention little ones, we are equally concerned about the old ones, as well, who are subjected to death and addiction because of the ongoing activities of people who feed into and support drug dealers in our community.

Defendant contends his counsel was ineffective for failing to object to the trial court’s reliance on community issues, as stated above, in sentencing him. In State v. Bourgeois, 406 So.2d 550, 554 (La.1981), the Louisiana Supreme Court determined the trial court improperly considered the “rampant distribution of narcotics in the community” when imposing the defendant’s sentence. In]^Bourgeois, the defendant pled guilty to possession with intent to distribute cocaine. During sentencing, the trial judge stated, “[i]t is difficult for children to escape the association of people who are attempting to pass drugs to these children and get even their lunch money, in grammer (sic) schools, elementary schools, high school, college campuses, in fact, even in this very Court.” Id. at 554. The supreme court concluded the trial judge’s “characterization of all children who may eventually receive drugs as victims of defendant’s crime” was an inappropriate factor to consider during sentencing. The supreme court explained that the trial judge concentrated on the pervasiveness of drugs in society and, thus, failed to impose an individualized sentence. The supreme court vacated the defendant’s sentence.

In State v. Jones, 473 So.2d 66, 70 (La.App. 3 Cir.1985), the Third Circuit noted the trial court improperly considered community attitudes towards drugs as a sentencing factor. The defendant pled guilty to various drug offenses. When imposing sentence, the trial court stated:

you are a drug dealer, and you were actively selling quantities of contraband in this community, and there’s no way that this Court can know how many sales you actually made. We only know of the ones which were brought before the Court. One can only guess how many persons have been affected by the drugs you sold.

Id. at 70. The trial judge further stated, “the people of this State, and particularly the people of this community, are strongly opposed to drug sale and traffic.” Id.

The court determined the trial judge inappropriately considered community attitude as a sentencing factor. The court explained:

[w]e would certainly not fault the trial court in its concern for society as it is affected by the drug traffic, but the point of the matter, as we see it, is that sentences must be individualized. Unfortunately, reference to community attitudes suggests, whether it be true or not, that a sentencing was not in fact individualized as required by law.

Id. at 70. The court ultimately vacated defendant’s sentence, but seemingly based its decision on the trial judge’s imposition of a large fine after the trial judge 11.^commented that the defendant’s father was in a position to pay the fine as opposed to the improper consideration of community attitude.

In State v. Page, 575 So.2d 892, 894 (La.App. 2 Cir.1991), the defendant complained his sentence was not individualized to him because of the trial court’s “perception of the pervasiveness and the damage being done by drugs and major drug dealers in the community.” Id. at 894. The Second Circuit noted that the trial court had specifically listed each of the LSA-C.Cr.P. art. 894.1 factors and articulated its findings as to each factor. The court also noted the trial judge considered a number of other factors including the seriousness of drug offenses and the question of whether the defendant was a major drug dealer. The court stated that it was “not improper for the trial court to take into account public concerns in imposing a sentence as well as the threat of harm to society of controlled dangerous substances as long as the sentence is particularized to the defendant.” Id. at 894. The court determined that the trial court sufficiently imposed an individualized sentence after considering the facts of the case and circumstances of the defendant.

In the present case, the record indicates that the trial judge may have improperly considered the pervasiveness of drugs in and the ill-effects of drugs on our society when sentencing defendant. However, similar to Page, the record shows the trial court considered the factors of Article 894.1. The trial court noted defendant’s extensive criminal history and took into consideration he supported his family. The trial court also noted defendant had made no attempts to receive treatment for his substance abuse problem. Despite consideration of community issues, we find that the trial court imposed an adequately individualized sentence on defendant. As such, we fail to find that defendant can show he was prejudiced |ir,by his counsel’s failure to object to the sentence or to file a motion for reconsideration of sentence.

Furthermore, as discussed in the previous assignment of error, defendant’s sentence is not constitutionally excessive. Defendant has failed to show a reasonable probability that but for his trial counsel’s failure to object to the sentence or to file a motion for reconsideration of sentence, his sentence would have been different and, thus, has failed to carry his burden of proof to support a claim of ineffective assistance of counsel.

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals no errors patent in this case.

Accordingly, the conviction and sentence of defendant Allen Wolff are affirmed.

AFFIRMED.

      . Defendant was also charged in a separate bill of information with possession of drug paraphernalia, a misdemeanor offense. The parties agreed to consolidate the two charges into one trial with the jury deciding the felony possession of cocaine charge and the trial judge deciding the misdemeanor possession of drug paraphernalia charge. At the end of trial, the trial judge found defendant guilty of the misdemeanor, possession of drug paraphernalia, and sentenced him to six months in parish prison. Two separate motions for appeal were filed seeking appeal from both the felony and misdemeanor convictions.
      Recognizing that a misdemeanor conviction cannot be appealed, appointed appellate counsel filed a motion to convert the appeal in the misdemeanor case to a writ application and to withdraw as counsel in the misdemeanor matter. This Court granted the motion on July 20, 2009, and allowed appointed counsel to withdraw from representation in the misdemeanor matter. This Court ordered die record be mailed to defendant and instructed defendant that he had until August 30, 2009 to file a brief to support the writ application. Defendant failed to file a brief. As such, on October 22, 2009, this Court dismissed defendant’s writ, 09-KH-507, relating to his misdemeanor conviction.

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

      .In his appellant brief, defendant cites State v. Hathaway, 411 So.2d 1074, 1079 (La.1982), for the proposition that the police cannot create street encounters without knowledge of suspicious facts and circumstances sufficient to allow them to infringe on a defendant’s right to be free from government interference. Defendant relies on Hathaway to support his position that Officer Balser intentionally created a "street encounter” for the sole purpose of searching defendant's vehicle. Hathaway is inapplicable to the present case. Unlike the present case, Hathaway did not involve a stop for a traffic violation, but rather involved an informant's tip about illegal drug activity and the right of an officer to pursue a fleeing defendant into an apartment after attempting to conduct an investigatory stop. As stated above, a traffic violation gives an officer probable cause to stop the vehicle.

      . A writ, 09-KO-1025, was filed with the Louisiana Supreme Court in Stale v. Schnyder, supra, on May 8, 2009, but no ruling has been issued as of the date of this opinion.

      . Issues of credibility are to be determined by the trier of fact. At a motion to suppress hearing, the trier of fact is the trial court. See State v. Thomas, 99-2219, p. 14 (La.App. 4 Cir. 5/17/00), 764 So.2d 1104, 1112, writ denied, 00-1734 (La.6/22/01), 794 So.2d 780.

      . In his rendition of facts in his appellate brief, defendant seems to attack the credibility
        oí Officer Balser on the basis he was a former member of the JPSO Street Crimes Unit. During trial, defendant attempted to elicit information regarding the disbandment of the Street Crimes Unit, suggesting it was disbanded for "dubious practices." The trial court sustained the State’s objections to the line of questioning pertaining to the disbandment of the Street Crimes Unit. Defendant's inference and characterization of the Street Crimes Unit as a "disgraced” unit by citing a news website is beyond the evidence contained in the record and, thus, is seemingly improper. An appellate court is precluded from considering evidence which is not part of the record. See Stale v. Toussaint, 07-353, p. 7 (La.App. 5 Cir. 12/11/07), 974 So.2d 698, 701, n. 4.

      . LSA-C.Cr.P. art. 881.1(B) provides that a motion for reconsideration of sentence "shall be oral at the time of sentence or shall be in writing thereafter and shall set forth the specific grounds on which the motion is based.”

      . It is noted that appellate counsel argues in her brief that defendant had only one prior conviction from 18 years ago. However, there is nothing in the record to substantiate counsel's claim. To the contrary, the trial court noted defendant had five prior felony convictions; a fact that was never refuted.


author: JUDE G. GRAVOIS, Judge.

text:
    STATE of Louisiana v. Scott J. BROWN.
    No. 09-KA-209.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 29, 2009.

      Harry J. Morel, Jr., District Attorney, Juan Byrd, Assistant District Attorney, Hahnville, LA, for Plaintiff/Appellee.
    Gwendolyn K. Brown, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

|2Pefendant, Scott Brown, was charged with possession of cocaine in violation of LSA-R.S. 40:967 C. Following the denial of his motion to suppress, defendant pled guilty to this charge, reserving his right to appeal the denial of his motion to suppress under State v. Crosby, 338 So.2d 584 (La.1976). For the reasons that follow, we vacate the trial court’s ruling and remand for further proceedings.

FACTS

Given that defendant pled guilty in this case prior to trial, the following facts are taken from the August 7, 2008 preliminary hearing conducted in this case and the October 23, 2008 hearing on defendant’s motion to suppress evidence.

| ^Sergeant Joseph Hasselback, a trooper with the Louisiana State Police, testified that on May 7, 2008, he and his partner, Trooper Trent Cuccia, stopped a vehicle for a traffic violation on Interstate 10 in St. Charles Parish. Sergeant Hasselback testified that he observed “a lot of activity inside the vehicle, as far as movements” immediately upon stopping the vehicle. Based on his years of law enforcement experience, he found this behavior to be peculiar.

Pursuant to his department’s standard procedure, Sergeant Hasselback had the driver exit the vehicle, a 2003 Buick automobile. A criminal history check showed that the driver had a recent arrest and conviction for narcotics. Trooper Cuccia received conflicting information from the car’s occupants regarding where they had been and where they were going. He noted that all of the occupants exhibited nervous behavior. Based on the driver’s criminal background and the occupants’ nervous behavior, Sergeant Hasselback asked the car’s owner, who was a passenger, if she would consent to a vehicle search. The owner duly consented and written consent to search the vehicle was obtained.

Sergeant Hasselback followed his department’s protocol for vehicle searches and ordered all of the passengers to exit the car. Sergeant Hasselback explained that the protocol requires the officers to perform a pat-down search of each individual for weapons for the safety of the officers. Upon searching defendant, who was one of the car’s passengers, Sergeant Has-selback felt a bulge in defendant’s front pants pocket. The officer retrieved the item, which he found to be a cigarette package. Sergeant Hasselback testified that he opened the package because “a cigarette package is large enough to hold a weapon.” Upon looking inside the package, he saw a crack pipe. Crack cocaine was also found inside the package.

|4Because Trooper Cuccia was not available to testify at the suppression hearing, the district court took judicial notice of his testimony given at the preliminary hearing conducted on August 7, 2008. Trooper Cuccia testified that he participated in the traffic stop that led to defendant’s arrest. After he obtained consent to search the car, Trooper Cuccia ordered all of the occupants to exit the vehicle, with the exception of a three-year-old girl who was in the back seat. Trooper Cuccia then conducted a pat-down search of the driver while Sergeant Hasselback conducted a pat-down search of defendant. Trooper Cuccia testified that Sergeant Hasselback found a cigarette pack containing a crack pipe and three rocks of crack cocaine on defendant’s person. Upon searching the car, Trooper Cuccia recovered cocaine and Valium tablets from another passenger’s purse. Defendant and the other passenger were then arrested.

Defendant testified at the suppression hearing, describing the pat-down search of his person. He explained that Sergeant Hasselback removed a cigarette box from his right front pocket. The officer looked inside the box and dumped its contents onto the hood of the car. Defendant testified that although Sergeant Hasselback did not tell him he was under arrest, he assumed at some point that he was.

LAW, DISCUSSION AND ANALYSIS

Defendant does not challenge the initial stop of the vehicle in which he was a passenger, conceding that the officers made a valid traffic stop based on a moving violation. Nor does defendant challenge the validity of the consent to the search of the vehicle. Instead, defendant argues that the officer’s seizure of the cigarette box containing crack cocaine from his pocket was illegal in that it | r,exceeded the permissible scope of a Terry pat-down frisk for weapons. The State responds that the officer was justified in conducting a pat-down of defendant for safety purposes, and that the officer’s actions in seizing and opening the cigarette package were within the permissible scope of a pat-down search.

In a hearing on a defense motion to suppress the evidence, the State has the burden of establishing the admissibility of evidence seized without a warrant. LSA-C.Cr.P. art. 703 D, State v. Manson, 01-159, p. 5 (La.App. 5 Cir. 6/27/01), 791 So.2d 749, 755, writ denied, 01-2269 (La.9/20/02), 825 So.2d 1156. The exclusionary rule bars evidence obtained either during or as a direct result of an unlawful invasion. Wong Sun v. U.S., 371 U.S. 471, 484-85, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963). Evidence recovered as a result of an unconstitutional search and seizure may not be used in a resulting prosecution. State v. Hams, 00-1930, p. 3 (La.App. 5 Cir. 4/11/01), 786 So.2d 798, 801-802.

Once an officer has lawfully stopped a vehicle for a routine traffic violation, he is authorized to order both the driver and passengers out of the vehicle pending completion of the stop. State v. Gomez, 06-417, p. 7, (La.App. 5 Cir. 11/28/06), 947 So.2d 81, 85 citing Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997). Additionally, an officer conducting a traffic stop may perform a pat-down search of a driver and passengers upon reasonable suspicion that they may be armed and dangerous. Knowles v. Iowa, 525 U.S. 113,118,119 S.Ct. 484, 488, 142 L.Ed.2d 492 (1998); LSA-C.Cr.P. art. 215.1. Such a search “must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.” Terry v. Ohio, 392 U.S. at 26, 88 S.Ct. at 1882. This limited protective search is justified under circumstances where a reasonably prudent person in those circumstances would be warranted in the belief |fithat his safety or the safety of others was in danger. Terry, 392 U.S. at 27, 88 S.Ct. at 1883; State v. Boyer, 07-0476, p. 20 (La.10/16/07), 967 So.2d 458, 471. “[I]n determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” Terry, 392 U.S. at 27, 88 S.Ct. at 1883. See also, State v. Boyer, 07-0476 at 20, 967 So.2d at 471.

Our jurisprudence has recognized that there is potential danger for an officer even during a routine traffic stop. State v. Landry, 588 So.2d 345, 347 (La.1991).

Sergeant Hasselback testified he removed the occupants from the car prior to searching it in order to comply with his department’s protocol, which arises out of a concern for officer safety. In this instance, the vehicle search would require that the officers turn their backs on the subjects they had removed from the car. This was of particular concern in this instance because the car’s occupants outnumbered the officers, and they had acted in a suspicious manner from the time the officers initiated the stop.

Sergeant Hasselback further testified that when he stopped the vehicle, he immediately noted the occupants were moving around a great deal. Trooper Cuccia testified that when he spoke with the car’s occupants, they all behaved nervously and gave conflicting information. Sergeant Hasselback testified that he has been with the State Police since 1995, and based on his experience, he found the subjects’ behavior to be peculiar. The officers also learned that the driver of the vehicle had a prior narcotics conviction.

Applying the foregoing law to the facts as testified to by the officers, we find that Sergeant Hasselback in the instant case had a reasonable, objective and particularized basis for conducting a pat-down weapons search of defendant. 17Accordingly, we find that Sergeant Has-selback was justified in conducting a pat-down frisk of defendant for weapons.

Having found the pat-down search for weapons was lawful, the question now becomes whether Sergeant Has-selback exceeded the permissible scope of the search by seizing the cigarette package and the narcotics it contained. The “plain feel” exception to the warrant requirement for the seizure of evidence allows an officer conducting a legally valid pat-down search to seize contraband when the incriminating character of the object is immediately apparent to the officer without an additional form of search or examination to identify it as contraband. Minnesota v. Dickerson, 508 U.S. 366, 375-76, 113 S.Ct. 2130, 2137, 124 L.Ed.2d 334 (1993); State v. Boyer, 07-0476 at 22, 967 So.2d at 472.

Sergeant Hasselback testified that while patting down defendant’s clothing, he felt a bulge in defendant’s front pants pocket. The officer reached into the pocket and retrieved the item, which proved to be a cigarette package. He could not remember whether the package had a lid, or if it did, what kind of lid it had. He explained that based on his law enforcement experience, the package was large enough to hold a weapon such as a knife or razor blade, so he looked inside of it. Upon looking inside of the package, he discovered it held a crack pipe, which he immediately recognized as contraband. Sergeant Hasselback also found crack cocaine inside the cigarette package.

Sergeant Hasselback was questioned on cross examination about the bulge that he felt in defendant’s pocket as follows:

Q. Isn’t it time officer that when you frisked Scott Brown for officer safety, you didn’t feel anything that was immediately apparent as contraband or a weapon upon touching?
A., I felt a bulge in his front pocket.
Q. What did you believe the bulge was when you felt it?
|SA. I don’t know.
Q. You didn’t know it was a weapon when you felt it?
A. No, I didn’t.
Q. You didn’t know it was contraband when you felt it?
A. No. I didn’t.
Q. So if you didn’t believe it was a weapon or contraband when you felt it, why did you go into his pocket?
A. I didn’t believe, I didn’t know.
Q. So if you didn’t know, why did you go into his pocket?
A. I had to find out if he had a weapon.

In State v. Sheehan, 97-2386 (La.App. 4 Cir. 12/9/98), 740 So.2d 127, another case involving a cigarette package, a police officer noticed a partially open cigarette package in the defendant’s shirt pocket during a pat-down search. The officer testified that he searched the cigarette package for a razor blade, and found crack cocaine. The Fourth Circuit upheld the search, finding that based on the officer’s “past experience of knowing that razor blades are often concealed in cigarette packs, removing and looking at the cigarette pack was a reasonable intrusion designed to discover a weapon.” Id. at 8, 740 So.2d at 131.

The Louisiana Supreme Court reversed, however, stating:

... [T]he seizure and search of the cigarette pack from relator’s shirt pocket, which led to the unfolding of crumpled cellophane at the bottom of the pack and to the discovery of a single rock of cocaine concealed within the cellophane, exceeded the permissible scope of the pat-down frisk sanctioned by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and “amounted to the sort of evidentiary search that Te'rry expressly refused to authorize....” Minnesota v. Dickerson, 508 U.S. 366, 378, 113 S.Ct. 2130, 2139, 124 L.Ed.2d 334 (1993).

State v. Sheehan, 99-0725 (La.7/2/99), 767 So.2d 1 (per curiam).

Sergeant Hasselback, like the officer in Sheehan, testified that he knew razor blades and other weapons are often carried in cigarette packages. However, given|flthe express prohibition against this type of search in Sheehan, that knowledge did not give Hasselback sufficient justification for the search and seizure of defendant’s cigarette pack.

In State v. Morton, 08-164 (La.App. 5 Cir. 7/29/08), 993 So.2d 651, this Court held that the seizure of narcotics from the defendant’s pocket in the course of a Terry pat-down did not fall under the “plain feel” exception to the warrant requirement. In that case, police officers patrolling a high crime area in the early morning hours saw several individuals standing in the street and in a yard adjacent to a residence. The defendant, who was initially sitting on the porch steps, knelt down next to the steps. Morton, 08-164 at 3, 993 So.2d at 654. Viewing this as suspicious activity, one of the officers instructed the defendant to step away from the porch. The defendant complied with the officer’s order only after the officer drew his gun and issued several warnings. Id. The defendant also discarded a chrome object. Id.

For safety purposes, the officer conducted a pat-down search of the defendant’s clothing to check for weapons. The defendant refused to identify the bulge felt by the officer in defendant’s pocket, so the officer reached into the pocket and retrieved a film canister and a plastic bag containing several rocks of crack cocaine. Id. The defendant was then placed under arrest. The officer searched the ai'ea and found a chrome handgun. Morton, 08-164 at 3-4, 993 So.2d at 654. The defendant was later convicted of possession of a firearm while in possession of cocaine. Id. at 2, 993 So.2d at 654.

The defendant appealed the district court’s denial of his motion to suppress the evidence, arguing that the officer illegally seized the cocaine from his pocket when he knew it was not a weapon. This Court determined that the officers had reasonable suspicion to stop the defendant, and that the pat-down search was valid, since it was conducted for safety reasons. Mar-tan, 08-164 at 8-9, 993 So.2d at 657. This Court further found the officer exceeded the permissible scope of the pat-down when he reached into the defendant’s pocket and retrieved the film canister and plastic bag of narcotics. Morton, 08-164 at 9, 993 So.2d at 657.

This Court noted that the officer testified he checked the bulge in the defendant’s pocket for safety reasons, and that he wanted to make sure the defendant didn’t have a weapon of any sort. Morion, 08-164 at 9, 993 So.2d at 658. But the officer failed to describe the bulge; and on cross-examination he stated he could not identify the bulge, although it made him suspicious. He then admitted the bulge did not feel like a gun because it was not large enough. Id. This Court held that since the officer “could not immediately identify the bulge as a weapon or contraband by ‘plain feel,’ the subsequent seizure of the narcotics exceeded the lawful scope of a Terry pat down.” Id.

Sergeant Hasselback, like the officer in Morton, could not identify the bulge in defendant’s pocket by plain feel, and yet he removed the object. In Mar-ton, this Court held that the unlawfully seized evidence was nevertheless admissible under the inevitable discovery doctrine. Morion, 08-164 at 9-10, 993 So.2d at 658. That doctrine provides that illegally seized evidence is admissible if it inevitably would have been discovered through an independent source. State v. Lee, 05-2098, p. 23 (La.1/16/08), 976 So.2d 109, 127, cert. denied, — U.S. —, 129 S.Ct. 143, 172 L.Ed.2d 39 (2008).

The case before us is distinguishable from Morton in that there is nothing in the record to show that the cocaine evidence seized from defendant’s pocket would inevitably have been discovered in a legal manner. According to the testimony, there was nothing the officer could have arrested defendant for at the time of the traffic stop aside from the discovery of the cocaine. The record contains no evidence that defendant had outstanding warrants. Nor could the drugs found |n inside the other passenger’s purse be attributed to defendant. Therefore, there would have been no search incident to arrest that would have led the officer to find defendant’s cocaine legally.

Likewise, in State v. Duckett, 99-314 (La.App. 5 Cir. 7/27/99), 740 So.2d 227, this Court held that the seizure of contraband following a lawful pat-down was not authorized by the “plain feel” exception. In that case, the officer did not feel any weapons on the defendant during the pat-down. However, the officer felt a plastic bag, but did not know it contained drugs. In Duck-ett, this Court held the seizure of a plastic bag containing white powder and four plastic bags containing marijuana was not justified under the “plain feel” exception, concluding that the police exceeded the lawful bounds of a Terry frisk because the officer had to “further manipulate” the bag in order to determine it contained drugs. Duckett, 99-814 at 10, 740 So.2d at 232. Similarly, in the instant case, it was not immediately apparent to Sergeant Hassel-back that the bulge contained a weapon or contraband.

State v. Barney, 97-777 (La.App. 5th Cir.2/25/98), 708 So.2d 1205, is also pertinent. There the defendant was stopped after he fled when he saw two marked police cars. An officer conducted a pat-down search and felt what he thought was a matchbox in the pocket of defendant’s jeans. The officer removed the matchbox, opened it, and found cocaine. This Court held that opening the matchbox to view its contents exceeded the permissible bounds of the frisk under Terry, explaining that “[Ojnce the matchbox left Barney’s possession, it and any hypothetical weapon contained inside it ceased to be a threat to the officers’ safety. The officer’s opening of the matchbox to view its contents exceeded the permissible bounds of the frisk under Terry and Dickerson, because the matchbox itself was not contraband, and any threat of harm to the officers ceased upon [Officer] Farrell’s removal of it from Barney’s pocket. This police behavior is exactly the |12sort of further invasion of privacy prohibited by Dickerson.” State v. Barney, 708 So.2d at 1211.

The following testimony of Officer Has-selback illustrates the similarity between the facts of the instant case and that of Barney concerning Officer Hasselback’s opening and looking inside of defendant’s cigarette box:

Q. Now, you testified that the reason you opened the cigarette box was because, in your experiences as an officer sometimes a cigarette box has a weapon. That’s your testimony, right?
A. Yes, ma’am.
Q. So, even if there was a weapon inside, Scott Brown wouldn’t have had access to it, correct?
A. That’s correct.

We find the facts regarding the search in the case before us analogous to those in Sheehan, Morton, Duckett, and Barney. In the instant case, the officer testified that he felt a bulge, not a weapon or contraband, during the pat-down. As in Morton and Duckett, because the officer could not identify the bulge as a weapon or contraband by plain feel, the subsequent seizure of the bulge exceeded the lawful scope of a Terry pat-down. Furthermore, even if the officer was justified in removing the bulge from defendant’s pocket in order to determine if defendant had a weapon and although the officer testified that he was concerned that the cigarette package contained a weapon, as in Barney, once the package was no longer in the possession of defendant, its contents were no longer a threat to the officers’ safety. Thus we find although the initial pat-down was legal, the seizure and search of the cigarette package and its contents taken from defendant’s pocket exceeded the permissible limits of a Terry search. Consequently, the evidence seized from the cigarette package was not admissible since it was the product of an illegal search. Based on the foregoing, we find that the district court erred in denying defendant’s motion to suppress evidence.

{^CONCLUSION

For the foregoing reasons, the district court’s ruling on defendant’s motion to suppress as well as defendant’s conditional guilty plea under Crosby are hereby vacated. This matter is remanded to the district court for further proceedings consistent with this opinion.

CONVICTION VACATED; MATTER REMANDED.

      . Defendant also pleaded guilty on the same date to illegal use of controlled dangerous substances in the presence of a minor, a violation of LSA-R.S. 14:91.13, which offense is a misdemeanor. Since defendant only appealed his felony conviction, defendant's misdemeanor conviction is not part of this appeal.

      . The officer's name is alternately spelled "Hasselback” and "Hasselbach” in the record.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).