State v. One Hundred and Fifty-Eight Gaming Devices

• Decision Date: 01 September 1984
• Docket Number: FIFTY-EIGHT,No. 106,106
• Citation: 304 Md. 404,499 A.2d 940
• Parties: STATE of Maryland v. ONE HUNDRED ANDGAMING DEVICES. ,
• Court: Maryland Court of Appeals

Page 404

304 Md. 404

499 A.2d 940

STATE of Maryland v. ONE HUNDRED AND FIFTY-EIGHT GAMING DEVICES.

No. 106, Sept. Term, 1984.

Court of Appeals of Maryland.

Nov. 7, 1985.

Avery Aisenstark, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., Lynette M. Phillips, Asst. Atty. Gen., on brief), Baltimore, for appellant.

Thomas C. Morrow (William K. Meyer, Francis B. Burch and Joseph C. Jacobs, on brief), Baltimore, for appellee.

Before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, RODOWSKY and COUCH, JJ., and JAMES C. MORTON, Jr., Associate Judge of the Court of Special Appeals (retired), specially assigned.

MURPHY, Chief Judge.

This case involves a number of devices seized as illegal "slot machines" under the provisions of ch. 617 of the Acts of 1963, as amended by ch. 280 of the Acts of 1981, now codified as Maryland Code (1982 Repl.Vol.), Article 27, § 264B.

I

Section 264B makes it a criminal offense after a date not here relevant "to locate, possess, keep, maintain or operate any slot machine within this State." The statute defines a "slot machine" as:

"Any machine, apparatus or device ... that is adapted for use in such a way that, as a result of the insertion or deposit therein, or placing with another person of any piece of money, coin, token or other object, such machine, apparatus or device is caused to operate or may be operated, and by reason of any element of chance or of other outcome of such operation unpredictable by him, the user may receive or become entitled to receive any piece of money, coin, token or other object representative of and convertible into money, irrespective of whether the said machine, apparatus or device may, apart from any element of chance or unpredictable outcome of such operation, also sell, deliver or present some merchandise or money or other tangible thing of value."

Ch. 617 of the Acts of 1963--the original enactment prohibiting slot machines in Maryland--contained the following uncodified provision as § 2 of the Act:

"[T]he intent of the legislature in the enactment of the aforegoing act is expressed as not intending to apply to the machine, apparatus or device commonly known or colloquially referred to, as 'pinball machine,' so long as said machine, apparatus or device does not permit any compensation, remuneration, recompense, reward, repayment or winnings beyond an automatic replay of a game or games mechanically provided upon said machine."

Paragraph V of § 264B, as originally enacted by ch. 280 of the Acts of 1981, made special provision for "antique" slot machines as follows:

"It shall be a defense to any prosecution under paragraph III of this section if the defendant shows that the slot machine is an antique slot machine and was not operated for gambling purposes while in the defendant's possession. For the purposes of this paragraph, a slot machine is an antique slot machine if the defendant shows by a preponderance of the evidence that it was manufactured prior to 1941. Whenever this defense is offered, no slot machine seized from any defendant shall be destroyed or otherwise altered until after a final court determination including review upon appeal, if any, that the defense is not applicable. If the defense is applicable, the slot machine shall be returned pursuant to provisions of law providing for the return of property." ¹

II

The State seized the devices in question on December 30, 1980 from the commercial warehouse premises of Willow Enterprises, Inc. Willow's president, Louis Wilner, was convicted of unlawfully possessing slot machines in violation of § 264B. He did not appeal.

On October 13, 1981, the State initiated an in rem proceeding in the Circuit Court for Anne Arundel County for forfeiture of the seized devices. At trial, the State introduced a number of devices, which it claimed were representative of all of the devices that had been seized. The circuit court (Wray, J.) in a memorandum opinion found that certain of the devices, e.g., the Sircoma Draw 80 Poker machines equipped with a "knock-off" switch or meter, were illegal slot machines because they were "presently adapted to register rewards obtained by chance and to facilitate undetectable human payoffs of items with value." The court also found that other devices ² "with payoffs other than free plays" were illegal slot machines subject to forfeiture. Another device found by the trial court to be an illegal slot machine was a so-called Delta Red, White and Blue machine "with the knockoff switch and other devices with provisions to facilitate house payments." Moreover, the court declared a number of console machines to be illegal slot machines. ³ It found, however, that a Delta machine "without a knockoff switch," as well as all similar free-play devices, was not a slot machine under the statutory definition. The court held that an inoperable Bally slot machine (a conventional "one-arm bandit"), as well as all like inoperable devices and parts adaptable for slot machine usage, was not a slot machine within the contemplation of the statute. It also held that a number of partially dismantled devices met the definition of a slot machine and were subject to forfeiture. Finally, the court concluded that a number of other devices manufactured prior to 1941, and not operated for gambling purposes while in the owner's possession, were not subject to forfeiture because such devices were "antique" slot machines exempt under § 264B(V).

The State appealed. It claimed that the trial court erred in not finding the inoperable devices and the free-play devices without knock-off switches or meters to be illegal slot machines and in ordering the return of the "antique" slot machines. Willow cross-appealed. It contended, among other things, that the trial court misconstrued § 264B in not exempting all free-play devices from the statutory definition of a slot machine.

The Court of Special Appeals decided the cross-appeals in State v. 158 Gaming Devices, 59 Md.App. 44, 474 A.2d 545 (1984). It first noted that the seized devices were of various makes, models and designs, describing them as follows:

"[M]ost of the seized devices incorporated 'free play' or 'game credit' features that rewarded the successful player with 'free' replays, which were registered on a three or four digit meter attached to the machine. The player was able to use the free plays by activating a 'play' button on the machine.

"Many of the alleged gaming devices were adapted with a 'knock-off switch' and a 'knock-off meter.' The switch and meter enabled the machine owner to remove game credits from the machine while maintaining a tabulation of the total free plays actually won. A number of the seized devices had not yet been fitted with the knock-off switches or meters, but unattached meters were found at Willow's premises.

"Forty-eight of the devices seized were Delta 'Red, White and Blue' machines that issue stamps printed with randomly selected numbers. If the numbers on the stamps issued by the machine correspond with numbers on a chart that was placed on top of the machine, the player wins replays, coupons or merchandise.

"The remaining devices were a variety of 'one-arm bandits' which are activated by a player's depositing a coin in a slot and pulling a handle. The handle rotates reels which spin and then stop, revealing a combination of symbols, numbers, words or colors. If the combination of the reels corresponds with one of the predetermined winning combinations, the machine releases the 'payoff' into a coin tray located on the lower front of the machine. With the exception of the one-arm bandit devices, none of the gaming machines had the capability of directly paying off to the player. The other devices required a third party to redeem 'free games' for something of value that was more tangible." 59 Md.App. at 48-49, 474 A.2d 545 (footnote omitted).

In considering the State's right to institute forfeiture proceedings against the seized devices, the court concluded that property which is subject to forfeiture is characterized as either contraband per se or derivative contraband. The former, the court said, is property that is inherently illegal while derivative contraband is property that may be legal or illegal to possess, depending upon the circumstances. 59 Md.App. at 50, 474 A.2d 545. The court opined that the devices seized from Willow "may or may not have a lawful, useful purpose" and were therefore not contraband per se. Id. It determined, however, that the devices would be forfeitable as derivative contraband under common law principles if the State showed by a preponderance of the evidence "that the owner or user of the seized items intended the property to be used illegally and that the items were procured, held or used for an unlawful purpose." Id. at 53, 474 A.2d 545.

After reviewing the legislative history underlying the enactment of § 264B and our decision in Clerk v. Chesapeake Beach Park, 251 Md. 657, 248 A.2d 479 (1968), the court held "[T]he classification of a device as illegal under § 264B depends on its potential for valuation of aggregated free plays 'won' on a game of chance." 59 Md.App. at 57, 474 A.2d 545 (footnote omitted).

It said that the existence of the so-called knock-off switch was not "determinative of whether a device is classified as an illegal slot machine under § 264B." Id. Explaining, the court said:

"Knock-off switches are usable for purposes other than gambling. If, for instance, a player after accumulating a great number of 'free plays' becomes bored with the game, or for any other reason walks away from the machine, it is unreasonable to expect the merchant to allow other persons to utilize the accumulated 'free plays.' The owner should have some way of removing the 'free plays' from the machine, hence the knock-off switch. The knock-off meter, on the other hand, may be indicative that the machine is a gambling device. The knock-off meter is, in effect, an accounting...