Commonwealth v. Alewine

JOHNSON, Judge:

The Commonwealth of Pennsylvania appeals from an order granting Gary Thomas Alewine’s motion to suppress the introduction of various gambling devices and paraphernalia into evidence at his trial on three counts of violating 18 Pa.C.S.A. § 5513(a) dealing with gambling devices and gambling. We reverse and remand.

On September 3, 1987 Trooper Andre Stevens entered the Office Lounge, a restaurant and bar owned by Alewine, and played two different poker machines. On both machines the officer achieved a score of forty free games. The barmaid rewarded Stevens for each win by giving him ten dollars. Stevens then observed the barmaid cancel the amount of free games indicated on the machines by use of two different types of “knock off” mechanisms. Stevens then placed a sticker onto the machines to identify these particular poker machines as the machines which he played. On the basis of this information, a search warrant was obtained on September 24, 1987 authorizing the search and *286seizure of gambling devices and gambling paraphernalia at the Lounge. On the same day a search of the Office Lounge was executed and authorities confiscated two poker machines carrying Stevens’ mark, two unmarked video poker machines, three remote control switches and a cigar box containing money.

Alewine filed an Omnibus Pre-Trial Motion to suppress evidence confiscated at the lounge. On March 25, 1988 the trial court ordered that all evidence seized under the warrant be suppressed because the information upon which the search warrant was granted was stale. This appeal follows.

The Commonwealth raises the following arguments on appeal:

I. WHETHER THE COURT ERRED IN SUPPRESSING THE EVIDENCE ON THE GROUNDS THAT THE INFORMATION SET FORTH IN THE AFFIDAVIT IN SUPPORT OF THE SEARCH WARRANT WAS TOO STALE TO PROVIDE PROBABLE CAUSE?
II. WHETHER THE EXCLUSIONARY RULE SHOULD NOT APPLY BECAUSE THE POLICE IN EXECUTING THE SEARCH WARRANT WERE ACTING IN GOOD FAITH RELIANCE UPON AN ASSESSMENT OF PROBABLE CAUSE BY A NEUTRAL MAGISTRATE?

Review of a suppression order is limited to pure questions of law. Commonwealth v. Hamlin, 503 Pa. 210, 214, 469 A.2d 137, 139 (1983). When determining whether the trial court has misapplied the law, we must accept as true the findings of the trial court reasonably supported by the record, considering only that evidence presented by the defendant’s witnesses and so much of the evidence of the prosecution that is fairly read into the context of the case as a whole and is uncontradicted. Id.

The existence of probable cause is determined by a consideration of all circumstances including the reliability of the proffered information, and the probability that the *287evidence sought will be found in the place to be searched. Commonwealth v. Weidenmoyer, 518 Pa.Super. 2, 7-9, 539 A.2d 1291, 1294 (1988). In particular, the chief factors to consider when determining whether the information supporting the issuance of a warrant has grown stale are the quality and nature of the seized evidence, the ease with which the evidence may be disposed of, and the lapse of time between the information and the warrant. Commonwealth v. Klimkowicz, 331 Pa.Super. 75, 81, 479 A.2d 1086, 1089 (1984). Other considerations may be:

the character of the crime (chance encounter in the night or regenerating “conspiracy?), of the criminal (nomadic or entrenched?), of the thing to be seized (perishable and easily transferable or of enduring utility to its holder?), of the place to be searched (mere criminal forum of convenience or secure operational base?), etc.

W. LaFave, “Search and Seizure” § 3.7(a) p. 77 (2d ed. 1987) quoting Andresen v. State, 24 Md.App. 128, 331 A.2d. 78 (1975), aff'd sub nom. Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627. The continuity of the illegal scheme may be established by the inherent nature of the criminal activity itself or evidence that the activity has extended over a period of time. LaFave, supra at § 3.7(a) p. 81.

In the case before us, the trial court granted Alewine’s motion to suppress evidence confiscated at his establishment on the basis that there was no reason to believe that the gambling observed by Stevens was an on going activity. Moreover, the court concluded that “[t]here is nothing inherently illegal about playing video machines. Rather, it is receiving payment for play that converts otherwise harmless conduct into criminal activity.” Opinion, August 9, 1988 at 4. We find that the trial court has failed to perceive the importance of the fact that there was reason to believe that Alewine was in possession of a per se gambling device and not just that he was suspected of permitting gambling activity on the premises.

*28818 Pa.C.S.A. § 5513(a)(1) which makes the knowing possession of a gambling device illegal, provides:

(a) Offense defined. A person is guilty of a misdemeanor of the first degree if he:
(1) intentionally or knowingly makes, assembles, sets up, maintains, sells, lends, leases, gives away, or offers for sale, loan, lease or gift, any punch board, drawing card, slot machine or any device to be used for gambling purposes, except playing cards;

Further, our supreme court has determined that machines possessing the qualities of “consideration”, “chance”, and “reward” are so intrinsically connected to gambling as to be gambling devices per se. Commonwealth v. Two Electronic Poker Game Machines, 502 Pa. 186, 194, 465 A.2d 973, 977 (1983). Therefore, in order to establish probable cause for a warrant on September 24, 1988, it was unnecessary for the Commonwealth to show that there was reason to believe that the poker machines were continuously used for gambling, but rather, the Commonwealth only needed to show that there was reason to believe that Alewine continued to be in possession of a per se gambling device, as this, in and of itself, was illegal.

The knock off device found on two of the gambling machines in question provided sufficient information for a reasonable person to believe that the machines which Stevens played were per se gambling devices, and therefore subject to confiscation pursuant to 18 Pa.S.C.A. § 5513. Commonwealth v. Dumont, 370 Pa.Super. 155, 536 A.2d 342 (1987). Accordingly, all that was left to be shown by the Commonwealth upon request for the warrant was a reasonable belief that Alewine was still in possession of the video poker machines on September 24, 1987, some twenty-one days later. We find that sufficient information was provided to lead one to believe that the machines would be present in the Office Lounge three weeks after they were observed.

The information proffered to support probable cause must be considered using a “commonsense, nontechnical, *289ungrudging and positive” approach. Commonwealth v. Jones, 506 Pa. 262, 269, 484 A.2d 1383, 1387 (1984). First, we point out that although Stevens tested only two machines, he observed four floor model poker machines present in the establishment, presumably of substantial size and not easily moved. Second, Stevens’ affidavit suggested that the machines in question were in open view and easily accessible to patrons of the Office Lounge. Third, the barmaid appeared to routinely make “payoffs”. When officer Stevens won the video game, the barmaid wrote his name on a cash register receipt and placed it under the register. She then pushed a button on the register, causing the register display to read “poker pay-off” and causing to be released a drawer from which she drew a transmitter. The barmaid then used the transmitter to cancel the free games Stevens had accumulated on the poker machine. All of these facts suggest that the video poker machines were a fixture of the establishment, used by the owner to attract customers and entertain them while they patronized the lounge.

Given the apparent size of the poker machines at issue, and that the poker machines were an attraction of the Office Lounge itself, we find that it was reasonable to believe that the machines would continue to be present at the establishment three weeks after they were observed. As a result of our determination, we do not reach the Commonwealth’s issue II, relating to the good faith exception to the exclusionary rule. Accordingly, we reverse the order of the trial court and remand for further proceedings.

Order reversed. Case remanded. Jurisdiction relinquished.

BROSKY, J., files a dissenting opinion.