State v. 192 COIN-OP. VIDEO GAME MACH.

• Decision Date: 07 February 2000
• Docket Number: No. 25061.,25061.
• Citation: State v. 192 COIN-OP. VIDEO GAME MACH., 338 S.C. 176, 525 S.E.2d 872 (S.C. 2000)
• Parties: The STATE of South Carolina, Respondent, v. 192 COIN-OPERATED VIDEO GAME MACHINES, Said Machines Bearing Serial Numbers and I.D. Numbers Listed on the Attachment, Being the Property of Collins Entertainment Corporation Located at 1341 Rutherford Road and the Brandon Mill Storage Facility, Appellants. South Carolina Law Enforcement Division, Respondent, v. 23 Coin-Operated Video Game Machines, Said Machines Bearing Serial Numbers and I.D. Numbers Listed on the Attachment, Being the Property of Collins Entertainment Corporation Located at 1341 Rutherford Road and the Brandon Mill Storage Facility, Appellants.
• Court: South Carolina Supreme Court

338 S.C. 176

525 S.E.2d 872

The STATE of South Carolina, Respondent, v.192 COIN-OPERATED VIDEO GAME MACHINES, Said Machines Bearing Serial Numbers and I.D. Numbers Listed on the Attachment, Being the Property of Collins Entertainment Corporation Located at 1341 Rutherford Road and the Brandon Mill Storage Facility, Appellants.

South Carolina Law Enforcement Division, Respondent, v.23 Coin-Operated Video Game Machines, Said Machines Bearing Serial Numbers and I.D. Numbers Listed on the Attachment, Being the Property of Collins Entertainment Corporation Located at 1341 Rutherford Road and the Brandon Mill Storage Facility, Appellants.

No. 25061.

Supreme Court of South Carolina.

Heard October 7, 1999.

Decided February 7, 2000.

Rehearing Denied March 9, 2000.

Russell D. Ghent, of Leatherwood, Walker, Todd & Mann, P.C., of Greenville; and O.W. Bannister, Jr., of Hill, Wyatt & Bannister, L.L.P., of Greenville, for appellants.

Solicitor Robert M. Ariail and Assistant Solicitor Mindy L. Hervey, of Greenville, for respondent.

BURNETT, Justice:

RespondentSouth Carolina Law Enforcement Division(SLED) seized 192 and 23 illegal gambling machines from warehouses belonging to Collins Entertainment Corporation.Two magistrates found the machines to be illegal contraband under S.C.Code Ann. § 12-21-2710(Supp.1998) and ordered them destroyed.The circuit court affirmed both destruction orders.We affirm.

FACTS

In November 1997, a confidential informant notified SLED that appellant¹ was storing illegal video gambling machines at its Brandon Mills Warehouse and Rutherford Road property in Greenville.In response to this tip, undercover SLED agents posed as potential buyers of a pool table and were admitted to both locations.While there, they personally observed the allegedly illegal machines.

Having corroborated the informant's tip, SLED obtained search warrants from Magistrate Diane Cagle, which were executed on December 22 and 23, 1997, and seized 192 "Cherry Master" and "8-Liner" video machines.Magistrate Cagle came to the Brandon Mills Warehouse and examined the machines pursuant to S.C.Code Ann. § 12-21-2712(Supp. 1998).On December 31, 1997, Magistrate Cagle determined the machines violated S.C.Code Ann. § 12-21-2710(Supp. 1998) and ordered them destroyed.

While on the premises pursuant to the December search warrants, SLED agents discovered an additional 23 machines they believed to be in violation of § 12-21-2710.On January 14, 1998, Magistrate Etta Reid issued an additional search warrant.The machines were seized, and Magistrate Reid examined them, found them to be in violation of § 12-21-2710, and ordered them destroyed.

On appeal to the circuit court, each destruction order was affirmed.The State agreed to stay the destruction of the machines pending this appeal, which consolidates the two destruction orders.

ISSUES

I.Was possession of the machines unlawful?

A.Does federal law pre-empt state law?

B.Must the machines be operational to violate the law?

1.Should Squires v. SLED be overruled?

2.Are the machines contraband per se?

3.Did the legislature intend to protect mere storage of the machines?

4.Did reliance on the solicitor's advice make possession lawful?

II.Were the search and seizure of the machines lawful?

A.Were the warrants supported by probable cause?

B.Was SLED's corroboration a warrantless search?

C.What is the remedy if the Fourth Amendment was violated?

III.Were appellant's due process rights violated by the issuance of destruction orders without a hearing?

A.Is the summary destruction authorized by the statute constitutional?

B.If due process requires a hearing in this case, did appellant receive one?

IV.Are the magistrates' orders valid?

V.Did the seizure violate appellant's equal protection rights?

VI.Did appellant establish selective prosecution?

STANDARD OF REVIEW

This Court cannot question findings of fact in a magistrate's court approved by a circuit judge on appeal when there is any evidence, however slight, tending to prove issues involved.Ward v. Atlantic Coast Line R. Co.,155 S.C. 54, 151 S.E. 904(1930);see alsoTownes Assocs., Ltd. v. City of Greenville,266 S.C. 81, 86, 221 S.E.2d 773, 775(1976)("In an action at law, on appeal of a case tried without a jury, the findings of fact of the judge will not be disturbed on appeal unless found to be without evidence which reasonably supports the judge's findings.").An action for forfeiture of property is a civil action at law.State v. Petty,270 S.C. 206, 241 S.E.2d 561(1978).

DISCUSSION

I.Was possession of the machines unlawful?

The seized "Cherry Master" and "8-Liner" machines are illegal gambling devices under § 12-21-2710.The statute provides:

It is unlawful for any person to keep on his premises or operate or permit to be kept on his premises or operated within this State any vending or slot machine, punch board, pull board, or other device pertaining to games of chance of whatever name or kind, including those machines, boards, or other devices that display different pictures, words, or symbols, at different plays or different numbers, whether in words or figures or, which deposit tokens or coins at regular intervals or in varying numbers to the player or in the machine, but the provisions of this section do not extend to coin-operated nonpayout pin tables, in-line pin games, and video games with free play feature which meet the technical requirements provided for in Section 12-21-2782andSection 12-21-2783, or to automatic weighing, measuring, musical, and vending machines which are constructed as to give a certain uniform and fair return in value for each coin deposited and in which there is no element of chance.

South Carolina Code Ann. § 12-21-2710(Supp.1998).This Court's recent decisions in State v. One Coin-Operated Video Game Machine,321 S.C. 176, 467 S.E.2d 443(1996)("Cherry Master" is an illegal slot machine) and State v. Four Video Slot Machines,317 S.C. 397, 453 S.E.2d 896(1995)("Lucky 8 Line" is an illegal slot machine) make clear the machines in question are prohibited by the statute.Moreover, appellant admitted in an affidavit that it knew the machines were illegal.Appellant asserts, however, that the statute should not be applied for numerous reasons addressed below.

A.Does federal law pre-empt state law?

Appellant contends possession of the machines was not unlawful because federal legislation preempts state law.We disagree.

Appellant relies on the Gambling Devices Transportation Act, 15 U.S.C. § 1172(a)(1997), which provides:

It shall be unlawful knowingly to transport any gambling device to any place in a State or a possession of the United States from any place outside of such State or possession: Provided, that this section shall not apply to transportation of any gambling device to a place in any State which has enacted a law providing for the exemption of such State from the provisions of this section, or to a place in any subdivision of a State if the State in which such subdivision is located has enacted a law providing for the exemption of such subdivision from the provisions of this section, nor shall this section apply to any gambling device used or designed for use at and transported to licensed gambling establishments where betting is legal under applicable State laws: Provided, further, that it shall not be unlawful to transport in interstate or foreign commerce any gambling device into any State in which the transported gambling device is specifically enumerated as lawful in a statute of that State.

15 U.S.C. § 1172(1962)(emphasis added).Appellant argues that in enacting this statute, Congress preempted the power of South Carolina to act when the gambling machines "have already been placed into the stream of interstate or foreign commerce with a destination `into any State in which the transported gambling device is specifically enumerated as lawful in a statute of that State.'"

This argument is without merit.First, the federal statute does not pre-empt state law.Federal law may pre-empt a state law as follows: (1)Congress may explicitly define the extent to which it intends to pre-empt state law, (2)Congress may indicate an intent to occupy an entire field of regulation, or (3) federal law may pre-empt state law to the extent the state law actually conflicts with the federal law, such that compliance with both is impossible or the state law hinders the accomplishment of the federal law's purpose.Michigan Canners & Freezers Ass'n v. Agricultural Marketing & Bargaining,467 U.S. 461, 469, 104 S.Ct. 2518, 81 L.Ed.2d 399(1984).

None of the above scenarios exist here.There is no indication in the statute, explicit or implicit, of Congress's intent to occupy the field of gambling regulation.On the contrary, the language of the federal statute makes it clear that it is designed to act in concert with state laws prohibiting gambling.SeeSmith v. McGrath,103 F.Supp. 286(D.C.Md.1952)(the main purpose of the act is to aid states in the local enforcement of antigambling laws by prohibiting the interstate transportation of gambling devices).The statute prohibits the transportation of gambling devices into any state unless the state has enacted a law exempting itself from the statute or legalizing the specific gambling machine being transported into the state.Thus, the federal statute anticipates state legislation in this area and seeks to provide additional federal protection for those states which do not legalize gambling machines.To hold the federal law nullifies state antigambling laws would be to construe the statute in a way that utterly defeats its purpose.Moreover, compliance with both the state and federal statutes is not impossible, as the federal statute prohibits interstate transportation of gambling machines, whereas the statestatute prohibits their possession or operation within the state.See generallyCasino...