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COMMONWEALTH PENNSYLVANIA v. 9 MILLS MECHANICAL SLOT MACHINES (11/16/81)

decided: November 16, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
9 MILLS MECHANICAL SLOT MACHINES, ETC. MILES ANGELO, APPELLANT



Appeal from the Order of the Court of Common Pleas of Westmoreland County in case of Commonwealth of Pennsylvania v. 9 Mills Mechanical Slot Machines, 1 Bally Electronic Gambling Device and 1 Draw Poker Gambling Device; alleged owner, Miles Angelo, No. 3719 of 1979, In Rem.

COUNSEL

Thomas R. Ceraso, with him Donald P. Tarosky, for appellant.

Albert M. Nichols, District Attorney, with him John F. Dent, Assistant District Attorney, for appellee.

President Judge Crumlish and Judges Rogers and Craig, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 62 Pa. Commw. Page 398]

Miles Angelo has appealed from an order of the Court of Common Pleas of Westmoreland County ordering the confiscation and destruction of eleven gambling devices owned by Angelo and the forfeiture to Westmoreland County of monies contained therein, pursuant to Section 1 of the Crimes Code, 18 Pa. C.S. § 5513(b) (Section 5513(b)). We affirm.

[ 62 Pa. Commw. Page 399]

On January 13, 1979, the B.P.O.E. Elks Club of Mount Pleasant (Club) held a "Las Vegas Night." The event was open to any member of the public who paid a $1.00 admission charge. At approximately 11:15 p.m., members of the Pennsylvania State Police, in plain clothes, paid the admission fee and entered the Club. The officers remained in the Club for approximately one half hour, during which time they observed nine (9) slot machines, all of which were being played by patrons, one (1) Bally Deluxe Gold Cup machine (Gold Cup) and one (1) Electronic Draw Poker machine (Draw Poker). The officers, deeming these machines to be gambling devices, then confiscated them, along with $420.40 contained in the machines.

On April 23, 1979, the district attorney of Westmoreland County filed a petition to destroy the confiscated machines and to forfeit the monies contained therein. The petition was subsequently amended in minor detail and, on March 7, 1980, Angelo filed an answer to the petition. A trial was held after which the lower court issued an opinion and order holding that all of the machines were unlawful gambling devices per se and directing that the machines be destroyed and the monies contained therein forfeited pursuant to Section 5513(b). This appeal followed.

Angelo first contends that the Commonwealth failed to prove that its search of the Club was based upon probable cause, as required by the fourth amendment of the United States Constitution.*fn1 This argument is without merit. In Commonwealth v. Weimer, 262 Pa. Superior Ct. 69, 396 A.2d 649 (1978), two plain clothes state troopers, without either search or

[ 62 Pa. Commw. Page 400]

    arrest warrants, entered a private club on two occasions. The club's entrance was a locked door activated by a buzzer system. The door contained a one-way mirror. The officers merely pressed the doorbell and, although they were not members of the club, they were admitted without question. While in the club, the officers observed various gambling paraphernalia and subsequently confiscated the gambling equipment and arrested the club's president and his son for possession of gambling devices. The defendants moved to suppress the confiscated gambling equipment on the ground that the police officers' unannounced entry into a private club, without a warrant, constituted an unconstitutional infringement of the defendants' right of privacy. The lower court granted the defendants' motion to suppress. On appeal, the Superior Court stated that the essential issue of the case was

     whether the interior of the [defendants'] club was a constitutionally protected area and whether the officers had a legal right to be inside the premises when they observed the gambling paraphernalia and affected the arrests. If they had such a right, then their observation of the gambling ...


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