State v. Seven Slot Machines

• Decision Date: 17 July 1969
• Docket Number: No. 45405,45405
• Citation: 203 Kan. 833,457 P.2d 97
• Parties: STATE of Kansas, Appellee, v. SEVEN SLOT MACHINES, and Fraternal Order of Eagles, Intervenor, Appellants.
• Court: Kansas Supreme Court

Page 97

457 P.2d 97

203 Kan. 833

STATE of Kansas, Appellee, v. SEVEN SLOT MACHINES, and Fraternal Order of Eagles Intervenor, Appellants.

No. 45405.

Supreme Court of Kansas.

July 17, 1969.

Rehearing Denied Sept. 8, 1969.

Syllabus by the Court

1. Under the provisions of K.S.A. 62-1830, facts upon which an issuing magistrate makes a judgment whether probable cause for the issuance of a search warrant exists may be presented in the form of an affidavit or by oral testimony given under oath and recorded before the magistrate or judge.

2. It is essential to the validity of a search warrant that the issuing magistrate be provided with sufficient facts to enable him to make an intelligent and independent judgment that probable cause for its issuance exists.

3. Where the facts presented to a magistrate under K.S.A. 62-1830 are in the form of an affidavit containing positive, affirmative information based on the affiant's personal knowledge and observations, it is held, the affidavit is sufficient to provide a basis upon which the issuing magistrate can make a judicious finding of probable cause, although the affidavit contains nothing relating to the affiant's credibility and reliability or his information.

4. A search and seizure of slot machines on the premises of an organization claiming a possessory interest, pursuant to a search warrant issued upon information secured as a result of entry into the premises by an investigator for the attorney general's office without any affirmative or unlawful means being used by him to conceal his identity, is held to be valid and reasonable under the facts related in the opinion.

5. The circumstances under which an affiant executes an affidavit before a notary public are examined, and it is held, that in the absence of clear proof that the ceremony or lack of ceremony was designed to leave the affiant unsworn, the legal effect of what occurred was the same as if the affiant was sworn according to the formalities prescribed by law.

William R. Stewart and John C. Humpage, Topeka, argued the cause, and were on the brief, for appellants.

Richard H. Seaton, Asst. Atty. Gen., argued the cause, and Kent Frizzell, Atty. Gen., was with him on the brief, for appellee.

O'CONNOR, Justice:

This appeal arose out of an in rem proceeding brought by the state of Kansas pursuant to K.S.A. 21-915, 21-925 and 21-927, requesting the confiscation and destruction of seven slot machines in possession of intervenor (appellant), the Fraternal Order of Eagles, Topeka.

The chronology of events leading up to the commencement of this action is as follows:

Harley E. Sparks, a special investigator for the county attorney's office in Olathe, had been assigned to the attorney general's office on December 1, 1967, to investigate the existence and operation of slot machines at the Eagles Lodge in Topeka. Sparks and been a member of the Eagles Lodge in Olathe in 1966 and still had in his possession his membership card to that lodge. On December 1, Sparks went to the lodge in Topeka, presented his 1966 membership card, and was admitted by the doorkeeper. Sparks signed his name to the Register of Visitors, filled in the number of his local club, his current home address, and proceeded into the lodge rooms where the slot machines were located. He saw a number of people playing the machines and observed he machines pay of in money to the players. Sparks played several of the machines, placed the money he obtained from each machine in separate envelopes on which he noted the amount received and the denomination of the machine, then marked each machine he played with fluorescent tracer paste, and later left the lodge.

On December 4, Sparks went to the attorney general's office and, with the information gained on the night of the 1st, wrote his statement in longhand. The statement was then put in typewritten form by a typist in that office, in the presence of an assistant attorney general who inquired of Sparks, before a notary public, if the contents of the statement were true. Sparks stated they were, signed the affidavit, and the notary affixed her seal.

On December 8, the assistant attorney general presented the affidavit to a judge of the district court of Shawnee county who, after reading the affidavit, issued a search warrant for the above-mentioned premises. At approximately 7:00 p. m. agents of the Kansas Bureau of Investigation, along with other assistant attorneys general, entered the lodge and seized the slot machines. Subsequently, the state initiated this action by an information filed December 12.

On December 14, a motion to suppress the seven slot machines as evidence was filed on behalf of the Eagles, and a full evidentiary hearing was held January 3, 1968, at which time the matter was taken under advisement. On January 15, the Eagles moved to intervene, setting forth their possessory interest in the machines. Upon their motion being sustained they were joined as a party defendant, and throughout the course of this opinion will be referred to as appellant.

After examining the evidence adduced at the hearing, the trial court, on January 19, overruled the motion to suppress and issued its memorandum decision on the merits of the action, wherein it concluded:

'* * * that these slot machines seized on the premises of 920 Kansas Avenue, * * * occupied by the Fraternal Order of Eagles, were being operated while in the possession of said Fraternal Order of Eagles, and therefore since the operation of said slot machines is illegal under the law as it now exists, the court is ordering that said slot machines be destroyed.'

This appeal followed.

The three points raised here, as well as in the lower court, will be discussed in the order briefed.

Appellant urges the purported affidavit of Harley Sparks upon which the search warrant was issued was insufficient to establish probable cause under the Fourth and Fourteenth Amendments to the United States Constitution. The claim is based upon the argument that Sparks was in the position of an informer, and since the affidavit was the only evidence presented to the judge and contained nothing relating to Sparks' credibility and reliability, there was an insufficient showing of probable cause. Appellant relies principally on Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, and United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684, contending that before probable cause may be found for the court or magistrate to issue a search warrant, the court must have evidence before it concerning the credibility and reliability of the informant and the informant's information; and absent this, the court is but a 'rubber stamp' for law enforcement officers.

We believe appellant misconceives the import of the decisions cited in a situation where, as here, the information contained in the affidavit is based upon the affiant's personal knowledge and observation, rather than hearsay statements or information gained from some unidentified or third-party source.

In the recent case of State v. Hart, 200 Kan. 153, 434 P.2d 999, we discussed the precedent established by the federal decisions, including those cited by appellant in its brief, and said:

'It is essential to the validity of a search warrant that the issuing magistrate be provided with sufficient facts to enable him to make an intelligent and independent judgment that probable cause for its issuance exists; bald conclusions or mere affirmations of belief or suspicion are not enough.

'While an affidavit may be based on hearsay, there must be adequate affirmative allegation of the affiant's personal knowledge of facts or of his informant's reliability, or as to the informant's personal knowledge of the information provided, to provide a rational basis upon which the issuing magistrate can make a judicious finding of probable cause.' (Syl. 10, 11.) (Emphasis added.)

(Also, see, State v. Aten (this day decided), 203 Kan. 920, 457 P.2d 89.)

Both of these cases make it abundantly clear that constitutional requirements are satisfied as long as the issuing magistrate has before him sufficient facts to enable him to make an intelligent and independent determination that probable cause exists from affirmative allegations based on the affiant's personal knowledge or observation.

In Hart, the sheriff's affidavit, which was the basis for the issuance of the search warrant, recited that the sheriff found defendant and his companions to be in possession of certain tools useful in committing burglary. This, we observed, was an averment of a positive fact which, together with other allegations based on information and belief, was held to be sufficient. Likewise, in Aten, there was considerable testimony by the county attorney which we said constituted positive averments based on his personal knowledge.

In the instant case the court found probable cause based upon the affidavit of Sparks wherein he recited in great detail the result of his firsthand observations and his actual operation of the slot machines on the appellant's premises. Affiant made no reference whatsoever to any hearsay information or factual allegations based other than on his personal observation and participation. At the hearing on appellant's motion to suppress, Sparks testified and fully supported the statements contained in his affidavit. No question is raised that the factual observations related by Sparks in his affidavit were insufficient as a matter of law for the magistrate to make a finding of probable cause.

K.S.A. 62-1830 provides in substance that a search warrant shall issue upon affidavit or upon oral testimony given under oath and recorded before the magistrate or judge. For the reasons stated, we hold the affidavit in question constituted a sufficient basis upon which the court could make a judicial finding of probable cause to issue the search warrant.

Appellant...