Ex parte State, 1120498.

• Decision Date: 01 March 2013
• Docket Number: 1120498.
• Citation: 121 So.3d 337
• Parties: Ex parte STATE of Alabama.
• Court: Alabama Supreme Court

121 So.3d 337

Ex parte STATE of Alabama.

1120498.

Supreme Court of Alabama.

March 1, 2013.

Luther Strange, atty. gen., and John C. Neiman, Jr., deputy atty. gen., for petitioner.

Judge Thomas F. Young, Jr., as respondent.

PER CURIAM.

On January 25, 2013, the State of Alabama, through the Alabama Attorney General, filed with this Court an “Emergency Petition for Writ of Mandamus,” seeking an order directing the presiding judge of the Macon Circuit Court to issue a search warrant as to certain allegedly illegal gambling devices and related items located in a facility commonly known as Quincy's 777 Casino at VictoryLand (“the casino”) in Shorter. On February 15, 2013, this Court, by order, granted the State's petition and issued the writ, instructing the judge to issue the warrant. Given the inherently ex parte nature of a search warrant, and in order that the purpose of the warrant to be issued not be frustrated, this Court issued the writ under seal, with instructions that the order remain under seal until further order of this Court following the execution of the warrant. The execution of the warrant having been accomplished, this Court has removed the seal from this proceeding and its February 15 order and now addresses the reasons for issuing the writ.

Procedural History

At approximately 7:15 a.m. on January 16, 2013, Howard “Gene” Sisson, who has been a law-enforcement agent for 25 years and who is a special agent with the Office of the Alabama Attorney General, approached Judge Ray D. Martin of the Fifth Judicial Circuit with an application for a search warrant to be executed at the casino. Sisson was accompanied by, among others, Jesse Seroyer, Jr., who is the deputy chief of the Investigative Division in the Office of the Alabama Attorney General. According to affidavits submitted to this Court by Sisson and Seroyer, Judge Martin declined to issue the warrant on the ground that, as of midnight, approximately seven hours earlier, he was no longer the presiding judge for the Fifth Judicial Circuit of Alabama, within which Macon County is located, and that Judge Thomas F. Young, Jr., had, as of that time, assumed the position of presiding judge. According to the affidavits, Judge Martin further stated that he had been assigned responsibility for Chambers County, another county located within the Fifth Judicial Circuit, and therefore no longer had authority to issue a search warrant to be executed in Macon County.¹ Judge Martin directed Sisson to Judge Young.

Sisson approached Judge Young with the application for a search warrant later that same day. In support of the application, Sisson presented a 13–page affidavit, to be sworn to and executed by Sisson, as the affiant, and a January 7, 2013, surveillance video of alleged illegal gambling operations at the casino. Sisson's affidavit states, in pertinent part:

“I have a working understanding of the gambling laws of the State of Alabama and have obtained formal training within the past 18 months on the identification of slot machines and gambling devices. I have also read Macon County's Bingo amendment. I have witnessed the formal playing of the game commonly known as Bingo in establishments in Montgomery and have worked in an undercover capacity at Center Stage in Cottonwood, Alabama and Southern Star in White Hall, Alabama. As a private citizen, I have played and witnessed the playing of traditional slot machines in Biloxi, Mississippi; Shreveport, Louisiana; and Las Vegas, Nevada. I have participated in four search warrants executed at businesses that promoted and facilitated what was advertised as electronic bingo. Furthermore, I have successfully obtained a search warrant for Center Stage, Cottonwood, Alabama and executed the same on July 25, 2012.

“....

“On December 20, 2012, two days after the Casino announced its opening, an undercover officer entered the premises while equipped with a device to record both audio and video evidence of his visit. For the purpose of this affidavit, this officer will be referred to as Undercover 1 (UC 1)....

“....

“On December 20, 2012, UC 1 entered the Casino after he was issued U.S. currency from [the Attorney General's] office. He was required to approach a bank of cashiers after entering where he had to present identification before he could be issued a player's card. That card identified the Casino and had the UC's name embossed on it. UC 1 handed the cashier the U.S. currency to have it applied to his account which could be accessed with the player's card. Furthermore, he was required to create a PIN number that was required to be used after the card was swiped at the various slot machines.

“UC 1 first approached a machine titled ‘Super Fruit.’ On video, it was obvious he swiped his player's card but could not get the machine to play. After asking for assistance from an employee, he tried again at a machine named ‘Classic Reels.’ He was successful in entering a PIN after swiping his card on that machine.

“The main display on the video screen was predominantly covered by a large, digital representation of ‘reels' commonly seen on casino slot machines. There were five vertical reels with three positions always visible per reel. When UC 1 pressed the ‘Play’ button, the positions on the reels appeared to rotate vertically at a speed faster than my mind or eye could comprehend for approximately four seconds. In a small section in the top left portion of the screen, there was a small grid consisting of five vertical by five horizontal rows. That grid was the same approximate size as one section of one spinning reel. To the right of that grid were three horizontal lines that rapidly filled with numbered circles in two rows of 15 numbers and one row of four numbers. The total width of the small grid and accompanying rows was approximately as wide as two of the five spinning reels. The height remained constant as the approximate size of one position on the reels.

“On the player's console were numerous illuminated buttons. Most, from the left to the center, determined the amount a player could wager. There were other buttons for assistance and for a winning conversion chart for the items displayed on the reels. The largest button was a circular ‘Play’ button. Other than occasionally changing the amount of his wager, this was the only button UC 1 had to press to play a game cycle. Upon pressing it, the reels would spin, numbered circles would fill the small horizontal rows at the top and a game cycle would be played. If numbers in those horizontal rows matched any numbers in the small playing grid in the left uppermost portion of the screen, some correlation would be made among the symbols when the reels stopped. Lines traversing in numerous directions would connect various points on the reels with other points to indicate some type of winning pattern. In the event a winning pattern occurred, a representation of increasing amounts of currency would be added digitally to the player's account and the increase could be monitored on the player's screen. While UC 1 never attempted to present his player's card to a cashier to obtain the currency that remained in his account, an undercover agent (UC 3) on a later visit did, in fact, receive currency from the cashier after swiping his player's card and providing his PIN.

“In the event a game cycle was won, a predetermined amount of winnings, based upon the pattern, would be added to the player's account. It was not required for UC 1 to press any other button or tab to collect his winnings or to identify matching patterns. The machine performed that task for him. All he was required to do was simply press ‘Play’ again to begin the next game. It was possible to touch the screen in the lower right corner to initiate ‘Play’ but, again, that was the only tab necessary to touch. At one point, UC 1 ran his finger over different areas of the reels with no effect.

“During this visit, UC 1 also played a game titled ‘Wild Harvest.’ Game initiation and play was the same as described above. The format of the screen was also similar other than the graphics were different. While moving through the Casino, UC 1 identified other titles such as ‘Cherries Wild’ and ‘Fun Fruit’ but did not approach them to play.

“Finally, UC 1 approached a game that had a large ‘Gateway’ sign on the lower panel of the machine. The game was titled ‘Black Dog’ and operated in much the same way as the other non-Keno games. It, too, was mostly differentiated by graphics alone. The five by five grid normally located in the top left corner of most games played, however, was in the lower right of this game. While the camera angle was not ideal, I could not locate a section that displayed any numbered circles like those that appeared in horizontal rows in most other machines at the Casino. Furthermore, the size of this particular miniature grid was roughly equal to the size of one position on any one of the positions on a single reel.

“On January 7, 2013, your Affiant directed two additional undercover agents, hereinafter, referred to as UC 2 and UC 3 to enter the Casino with covert video and audio recorders in order to capture their visit....

“....

“After following the same procedure [as UC 1] for obtaining players' cards and placing money in their accounts, the UC's worked together and first approached a game titled ‘Crimson Seven.’ Both UC's recorded different angles of their experience while playing the slot machines. ‘Crimson Seven’ consisted of a main display that was predominantly covered by a digital representation of spinning reels. As described earlier when noting UC 1's play, it consisted of five vertical reels aligned side by side with three positions displayed on each reel. When the ‘Play’ tab or button was pushed, the reels appeared to rotate vertically at computer speed.

“When a game cycle was over and a winning pattern was predetermined and illuminated by the computer, the UC's merely...