State ex rel. Buckson v. Sposato

Citation235 A.2d 841,43 Del.Ch. 443
PartiesThe STATE of Delaware, on the relation of David P. BUCKSON, Attorney General of the State of Delaware, Plaintiff, v. Samuel SPOSATO and Antoinetta DiMaio, Defendants.
Decision Date17 November 1967
CourtCourt of Chancery of Delaware

Stephen B. Potter and Hiram W. Warder, Asst. City Sols., for plaintiff.

Victor F. Battaglia, Wilmington, for defendant Samuel Sposato.

DUFFY, Chancellor.

The question for decision is whether an order should issue under 10 Del.C. § 7106(e) perpetually enjoining defendant Samuel Sposato from maintaining illegal gambling, contrary to 11 Del.C. § 669, anywhere within the State of Delaware. 1

A.

On October 16, 1963 the State of Delaware filed a complaint under 10 Del.C. § 7103 for an order enjoining Sposato from maintaining any gambling contrary to 11 Del.C. § 669 at 619 North Madison Street, Wilmington, and elsewhere in the State. Sposato leased part of the Madison Street premises from Antoinetta DiMaio Rodolico, who was also named as a defendant. On the basis of the verified complaint, the Court issued a temporary restraining order prohibiting removal of the contents from the premises. 10 Del.C. § 7105. After affidavits were filed and defendants answered, the Court held a hearing and on November 14, 1963 issued a preliminary injunction restraining Sposato from conducting illegal gambling (receiving and recording horse bets) at 619 Madison Street. Acting on a stipulation of the parties, the Court, on December 10, 1963, issued an injunction permanently enjoining Mrs. Rodolico from leasing the first floor of the premises to anyone for conducting any gambling activity contrary to 11 Del.C. § 669 and the State abandoned any further relief as to her.

On December 16, 1963 Sposato filed a notice of appeal to the Supreme Court, and under date of June 24, 1964 the record and a certified copy of a dismissal of the appeal (on a stipulation of the parties) were returned to this Court.

A final hearing was held under 10 Del.C. § 7106 before Chancellor Seitz on June 21, 1966. Briefs were filed thereafter, but because of the limited time available Chancellor Seitz notified counsel on July 15, 1966 that he would not decide the matter. 2 In accordance with his suggestion the parties later stipulated that the transcript, with the briefs and memoranda, should serve as the basis for decision in the case. This was approved by the Court on August 2, 1966.

On September 13, 1966 Sposato advised the Court that he was willing to consent to the entry of an order (presumably final) continuing the injunction which had already issued but he opposed the entry of a State-wide injunction. When the State applied for such an order Sposato requested an opportunity to file an additional brief. This was permitted, and thereafter both sides filed additional briefs after delays and 'invitations' from the Court. 3

The facts are discussed in relationship to Sposato's arguments.

B.

In his briefs Sposato makes several contentions which are considered Seriatim:

(1) The entry by the police to 619 Madison Street was unlawful.

(2) There is a lack of competent credible evidence to support the State's case.

(3) The provisions of 10 Del.C. § 7101 violate the Federal and State Constitutions.

(4) 10 Del.C. § 7101 does not authorize the issuance of injunctive relief prohibiting Sposato from engaging in gambling anywhere in the State.

(1) The entry by the police

The police officers testified that during the period between September 11 and October 4, 1963, Sposato's premises at 619 Madison Street were visited by them on several occasions, each time in the early afternoon. They did not have a search warrant on any visit. Their testimony is the only evidence of what took place.

Sposato contends that police entries into the premises were without color of right and that any evidence flowing therefrom must be suppressed because it was obtained in violation of his rights under the Federal and State Constitutions.

Evidence seized in violation of the constitutional prohibition against unreasonable searches and seizures, Art. 1 § 6, Del.C., is not admissible in this State at the trial of the person whose rights have been violated. Schaffer v. State, Del., 184 A.2d 689 (1962).

The evidence offered by the State did not result from a 'search' or 'seizure' as those words are ordinarily defined. It is true that on one occasion photographs were taken of the interior of the premises and at other times a pillow was lifted from a chair and a racing paper which had been under it was examined. But no objects of any kind were offered in evidence, so there are no tangible fruits of search to suppress or exclude from consideration. I therefore take Sposato's argument to be an objection to receipt of evidence as to what the police saw and observed while they were on the premises.

Assuming that the constitutional provision against unreasonable searches and seizures is applicable here for the purpose Sposato contends, I am satisfied that the undisputed testimony in the record does not establish a violation of Sposato's rights under either Article 1 § 6 of the State Constitution or of the Fourteenth Amendment of the Federal Constitution.

The officers who entered were well known to Sposato, and he to them. One or more of them had, indeed, been in other premises which he had occupied prior to the dates here in question. 4 Without repeating all of the testimony, it seems fair to say that on three of the occasions the police officers either knocked at the door or rang the bell and were admitted by Sposato, who 'grunted', left the door open and returned to his desk in the center room of the first floor. On another occasion the door was open and the police walked in. But on no occasion was any objection of any kind registered to their presence.

While Sposato's 'invitation' to enter on each occasion when he opened the door may have lacked some of the amenities which characterize more welcome reception, the test is not how warm the welcome, not how gracious the host. It is rather, did Sposato, knowing what he knew about the police officers, freely consent to their entry?

Given the 'relationship' between the officers and Sposato, including his knowledge of their identity, the inescapable conclusion is that he implicitly consented to their entry on each visit. On the one occasion when the officers walked through the open door the events which occurred thereafter followed the same pattern as when Sposato opened it. I see no reason for distinguishing the situations. Under the circumstances, I am satisfied that Sposato's consent to the entries was unequivocal, specific, and intelligently given within the requirements laid down in the State decisions and the only Federal case on which he relies. See United States v. Elmer William Enderlein, Cr.A.No. 1597 (D.Del.).

(2) The competent credible evidence

The evidence offered at the hearing is of two different types: (a) the testimony of three police officers (Kenneth L. Miles, Nicholas M. Valiante, Paul W. Coen) as to their observations at 619 Madison Street and their 'expert' testimony as to the way in which certain types of bookmaking operations are conducted; and (b) the reputation of 619 Madison Street.

619 North Madison Street is a two-story building with three rooms on the first floor which wre apparently leased to Sposato. The first room contained a sofa and lounge chair, the middle room a table or desk with a glass top, a sofa and several chairs. The rear room was equipped as a kitchen but did not appear to have been used as such.

On the glass-top table in the middle room were a telephone, a grease (white lettering) pencil and a damp sponge. Racing papers were in the room.

During each visit by the officers the telephone rang about twice, Sposato answered it, engaged in a brief conversation which ended when he said, 'Call me back' or 'I'll see you later' or something of that nature.

On one occasion, according to Officer Valiante,

'Mr. Sposato was sitting there, and he was drawing lines up and down on the glass, sort of looking disgusted. I asked him why the waxed--the white lead pencil and the damp sponge and the desk, and he said, 'Well, I like to draw pictures.' He doodled a little bit. He said, 'When I make a mistake, I wipe them off."

As to the manner in which bookmaking is conducted in certain types of establishments, Officer Valiante adopted as his testimony an affidavit which he had filed, reading as follows:

'* * * (An) explanation or method used in this city by the operators of House Betting Parlors:

The hours that these establishments open up are generally from 11:00 A.M. to 6:00 P.M. These hours coincide with the running of Race Tracks throughout the country.

The bookmaker or the operator of these establishments will allow only known and trusted horse players into their place of business. They generally employ a door man or look-out man, whose duties consist of constantly looking out for the police and admitting only known customers. Usually there are several locked doors leading into these establishments.

The equipment or paraphernalia needed and used in the bookmaking establishments consist of racing papers and other newspapers that carry the results of and prices paid by various Horse Race Tracks.

In the receiving of bets under the present conditions, the bookmaker either bet down on a small slate of marble, or a piece of glass, or some other similar object that can be easily erased or wiped off by a damp cloth or sponge (should the police arrive). When the bookmaker accumulates several bets, he telephones these bets out to a confederate or recorder, who in turn makes a record of the bets and the amounts bet and the name or initials of the bettor.

Currently, many bookmakers do not even write anything down, they operate by keeping an open phone, whereupon they immediately relay the bet received to the Recorder. The location of the recorder is...

To continue reading

Request your trial
3 cases
  • Marsland v. Pang, 9614
    • United States
    • Court of Appeals of Hawai'i
    • April 16, 1985
    ...Ala. 315, 231 So.2d 882 (1970), distinguished on other grounds, Terrell v. State, 379 So.2d 1238 (Ala.1980); State ex rel. Buckson v. Sposato, 43 Del.Ch. 443, 235 A.2d 841 (1967); Carson v. State, 221 Ga. 299, 144 S.E.2d 384 (1965); State v. Amato, 42 Del.Ch. 387, 213 A.2d 53 (1965); State ......
  • Cannizzo v. BERWYN TP. 708 COM. MENTAL HEALTH, 1-99-3558.
    • United States
    • United States Appellate Court of Illinois
    • December 22, 2000
    ......336, 342 (1944). .         The decisions of other state courts amply illustrate the rationale behind this rule. In Delaware, the ......
  • Cox v. New Castle County
    • United States
    • United States State Supreme Court of Delaware
    • March 23, 1970
    ...(5th Ed.) § 1349. And that jurisdiction is not affected by the fact that such nuisance is technically a crime. State v. Sposato, 235 A.2d 841 (Del.Ch.1967); Delaware Optometric Assn. v. Sherwood, 35 Del.Ch. 507, 122 A.2d 424 (1956). While the abatement of a public nuisance, generally speaki......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT