US v. Conley, Crim. No. 91-178.

• Court: United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
• Writing for the Court: LEE
• Citation: 856 F. Supp. 1010
• Parties: UNITED STATES of America, v. John F. "Duffy" CONLEY, William C. Curtin, Sheila F. Smith, John Francis "Jack" Conley, Thomas "Bud" McGrath, Mark A. Abbott, Thomas Rossi, William Steinhart, Roberta Fleagle, Robin Spratt, Monica C. Kail, William J. Reed, Joanne T. Smith, Kenneth "Ron" Goodwin, Lawrence N. "Neudy" Demino, Sr., Christopher "Chris" Kail, Joseph A. Devita, Frank Garofalo, Thomas D. Ciocco, Michael Sukaly, Phillip M. "Mike" Ferrell, Anestos "Naz" Rodites, and William E. Rusin, Defendants.
• Docket Number: Crim. No. 91-178.
• Decision Date: 07 January 1994

856 F. Supp. 1010

UNITED STATES of America,
v.
John F. "Duffy" CONLEY, William C. Curtin, Sheila F. Smith, John Francis "Jack" Conley, Thomas "Bud" McGrath, Mark A. Abbott, Thomas Rossi, William Steinhart, Roberta Fleagle, Robin Spratt, Monica C. Kail, William J. Reed, Joanne T. Smith, Kenneth "Ron" Goodwin, Lawrence N. "Neudy" Demino, Sr., Christopher "Chris" Kail, Joseph A. Devita, Frank Garofalo, Thomas D. Ciocco, Michael Sukaly, Phillip M. "Mike" Ferrell, Anestos "Naz" Rodites, and William E. Rusin, Defendants.

Crim. No. 91-178.

United States District Court, W.D. Pennsylvania.

January 7, 1994.

856 F. Supp. 1011

COPYRIGHT MATERIAL OMITTED

856 F. Supp. 1012

COPYRIGHT MATERIAL OMITTED

856 F. Supp. 1013

Frederick W. Thieman, U.S. Atty., James R. Wilson, Asst. U.S. Atty., W.D. Pa., William D. Braun, Crim. Div., U.S. Dept. of Justice, Washington, DC, for plaintiff

James Wymard, William Difenderfer, Anthony Mariani, Ellen Viakley, Gary Gerson, Caroline M. Roberto, Joel Johnston, Stanley Greenfield, Martha Bailor, Ray Radakovich, Carmen Martucci, Lee Markovitz, Edward J. Osterman, William Acker, Foster Stewart, Joseph Kanfoush, Carl Max Janavitz, Raymond M. Maloney, John Goodrich, Gary B. Zimmerman, Vincent Baginski, John Zagari, Pittsburgh, PA, for defendants.

 INDEX
                I. "Standing" ..................................................................... 1014
                 (A) Searches and Seizures of Machines from Approximately 80 Locations 1014
                 (i) Findings of Fact .................................................. 1014
                 (ii) Discussion ........................................................ 1015
                 (a) Procedural Background ...................................... 1015
                 (b) The Applicable Legal Standard .............................. 1016
                 (c) Duffy Conley's Contentions ................................. 1019
                 (d) The Government's Contentions ............................... 1019
                 (e) The Court's Analysis ....................................... 1020
                 (iii) Conclusions of Law ................................................ 1022
                 (B) Reasonable Expectations of Privacy in 930 Saw Mill Run .................. 1022
                 (i) Findings of Fact .................................................. 1022
                 (ii) Conclusions of Law ................................................ 1022
                II. The Merits .................................................................... 1022
                 (A) The Issuance of Search Warrants on September 22, 1988 ................... 1022
                 (i) Finding of Fact ................................................... 1022
                 (ii) Discussion ........................................................ 1025
                 (iii) Conclusions of Law ................................................ 1026
                 (B) Material Omissions from the September 23, 1988 Search Warrant Application
                 for 930 Saw Mill Run ................................................... 1026
                 (i) Findings of Fact .................................................. 1026
                 (a) The Existence of 3100 Windgap Road .......................... 1026
                 (b) Date of Conduct underlying Prior Conviction ................. 1026
                 (c) Date of Applications for Permits then on Current Display 1027
                 (ii) Discussion ........................................................ 1027
                 (a) The Applicable Law .......................................... 1027
                 (b) The Existence of 3100 Windgap Road .......................... 1027
                 (c) Date of Conduct underlying Prior Conviction ................. 1027
                 (d) Date of Applications for Permits then on Current Display 1028
                 (iii) Conclusions of Law ................................................ 1028
                 (C) The Execution of the Search Warrant for 930 Saw Mill Run on September
                 23, 1988 .............................................................. 1028
                 (i) Findings of Fact ................................................. 1028
                

856 F. Supp. 1014
                 (ii) Discussion ............................................... 1030
                 (a) Choice of Law ...................................... 1030
                 (b) Reasonableness under Fourth Amendment Standards .... 1031
                 (iii) Conclusions of Law ....................................... 1032
                ORDER OF COURT ................................................................... 1032
                

MEMORANDUM OPINION

LEE, District Judge.

Before the Court are the Defendants' motions challenging various searches conducted on September 23, 1988 by state officers pursuant to state warrants.¹

I. "Standing"

(A) Searches and Seizures of Machines from Approximately 80 Locations

(i) Findings of Fact

1. On September 23, 1988, state and local police officers, pursuant to state warrants, simultaneously searched approximately 100 separate locations — bars, delicatessens, coffee shops, etc. — for evidence of illegal video poker machine gambling.

2. At approximately 80 locations, video poker machines owned by Defendant John F. "Duffy" Conley ("Duffy Conley"), the sole proprietor of Duffy's Vending Company, were seized. The police seized poker machines, removed them to a secure location, and then forced opened the compartments of the machines. No further search warrants were obtained.

856 F. Supp. 1015

3. Duffy Conley had no proprietary or possessory interest in most of the locations from which his machines were seized.

4. The seized video poker machines were visible to all patrons of the searched businesses. The video poker machines were in areas that were open to the public.

5. A typical video poker machine was encased in a cabinet approximately five feet tall, three feet wide and three feet deep. The video display monitor, where a player viewed the game, was located at the top front of the cabinet. Below the video display monitor was the control panel, which contained the buttons that enabled a player to operate the machine. Two compartments, an upper compartment and a lower compartment, were located below the control panel and made up the remainder of the machine.

6. In a typical video poker machine,² the upper compartment, with a volume of about three cubic feet, contained the electronics that made the machine a video poker machine. It contained a circuit board and meters. Duffy's Vending Company employees also stored service slips and keys to the lower compartment in the upper compartment.

7. The upper compartment was secured by a lock and key. Only Duffy Conley and certain employees whom he designated had access to the keys to the upper compartments of machines. Only those with access to the keys had access to the upper compartments.

8. The owners and operators of the locations in which the machines were placed did not have access to the keys to the upper compartment. Therefore, they did not have access to the upper compartments.

9. The lower compartment contained a detachable receptacle into which the bills and coins fed into the machine by players fell.

10. The lower compartment was also secured by a lock and key. The owners and operators of the machines had keys to the lower compartment. For each machine, the keys to the upper and lower compartments were different.

11. The seized video poker machines were equipped with electronic "knock off" switches, which removed accumulated credits when players were paid-off. They were also equipped with meters to record the total amount of credits granted for money deposited and the amount of credits "knocked off" when players were paid-off. With each credit worth twenty-five cents, the machine recorded both its own gross receipts and receipts net of money paid out as winnings to players.

12. By pressing the buttons on the control panel in a certain sequence, the information stored in the meter functions could be displayed on the video display monitor.

13. When a collector from Duffy Vending arrived to service a machine and collect money from the machine, the collector accessed the meter functions. The information then shown on the video display monitor, although unintelligible to the uninitiated, was available to be viewed by anyone present at the location who cared to look at it.

14. The capias clauses of the warrants executed at the eighty locations authorized the seizure of numerous items including remote or internal "knock-off" switches, all money wagered in the machines, money intended for pay-offs on machines, records of pay-offs, meters, keys to machines and other paraphernalia indicative of illegal gambling.

(ii) Discussion

(a) Procedural Background

The Court has been "instructed that in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the Supreme Court `abandoned a separate inquiry into a defendant's "standing" to contest an allegedly illegal search in favor of an inquiry that focused directly on the substance of the defendant's claim that he or she possessed a "legitimate

856 F. Supp. 1016

expectation of privacy" in the area searched,'" United States v. Felton, 753 F.2d 256, 259 (3d Cir.1985) (quoting Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980)). Nonetheless, the Court, in an effort to simplify and expedite the lengthy pretrial proceedings in this case, has employed the "standing" terminology as "short-hand" for expectations protected by the Fourth Amendment. The Court has attempted to adjudicate, without reference to the merits, the defendants' Fourth Amendment motions and joinders therein, where it has been clear that no federally secured right of a particular defendant has been violated. Cf. Rawlings v. Kentucky, 448 U.S. 98, 111-12, 100 S.Ct. 2556, 2564-65, 65 L.Ed.2d 633 (1980) (Blackmun, J., concurring); see, e.g., General Order of Court 13, ¶ 3, United States v. Conley, Cr. No. 91-178 (W.D.Pa. March 4, 1993) (Document No. 616). Generally, this approach has had a salutary effect.³

With reference to the eighty searches conducted on September 23, 1988, the Court held a hearing pursuant to Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), at which Defendant Duffy Conley testified.⁴ The hearing was to determine whether or not the...