State v. Wright

537 P.2d 130, 21 Or. App. 659, 1975 Ore. App. LEXIS 1488

Opinions

LEE, J.

Defendant-bartender paid cash for “free games” won on an electric amusement device and was convicted of promoting gambling in the second degree, ORS 167.122.

Footnotes

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① Defendant contends that the trial court erred in: (1) denying his motion for a directed verdict of acquittal; (2) overruling his motion to suppress evidence; and (3) finding that the gambling device was subject to forfeiture and destruction under ORS 167.162. We affirm.

On June 19, 1974, a Portland police officer, dressed in plain clothes, went to a tavern and operated an electric amusement device. The defendant was present at the time and gave the officer change in quarters to operate the machine. The machine has a screen with six horizontal rows of symbols in the form of animals, with four windows across, thus forming four vertical columns. By inserting a quarter and flipping a handle, the player activates the machine. Points for “free games” are achieved on the interplay of two factors: first, the number of animal pictures- that appear in the row for that animal; and second, the horizontal row in which the pictures appear. On about his third flip of the handle, the officer scored eight points and defendant told him that each point was worth 25 cents. Defendant then gave the officer $2, made a notation in a little black notebook (State’s Exhibit 1) and asked if the officer would like to play further. The officer declined.

On June 28, 1974 the same officer returned to the tavern, this time accompanied by a second officer. The first officer began playing the same machine. This time it required eight quarters to produce two points. When the officer notified defendant of the score, he paid the officer 50 cents and made a notation in the aforementioned black book.

Knowledge of Illegality

The defendant’s first assignment of error is the trial court’s denial of his motion for acquittal. In support of this assignment, defendant contends that (1) OES 167.122 requires that a defendant know that the gambling he is promoting is illegal whereas, (2) there was no evidence of this. The second of these contentions obviously has no application unless we sustain the first. This we decline to do.

To support the first allegation, defendant cites OES 161.095(2) which reads as follows: .

“Except as provided in OES 161.105, a person is not guilty of an offense unless he acts with a culpable mental state with respect to each material element of the offense that necessarily requires a culpable mental state.”

That statute does not address itself to whether conviction requires that the defendant know that what he does is illegal. On the other hand, OES 161.115(4) is dispositive of defendant’s contention. It provides:

“Knowledge that conduct constitutes an offense, or knowledge of the existence, meaning or application of the statute defining an offense, is not an element of an offense unless the statute clearly so provides.”

Accordingly, it was not necessary that defendant have actual knowledge that what he did was illegal to sustain the conviction.

Warrantless Seizure

The defendant’s second assignment of error is based on the trial court’s denial of the defendant’s motion to suppress evidence seized during the officer’s second visit because:

(a) the seizure was made without a warrant (defendant concedes there was no search);

(b) there were no exigent circumstances; and

(c) there was no preceding arrest to which the seizure might be incidental.

Defendant relies on Art I, § 9 of the Oregon Constitution which reads:

“No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.” (Emphasis supplied.)

Defendant calls attention to the disjunctive phrasing of the first part of the section (i.e., “* * * unreasonable search, or seizure * * *”) and contends that a warrant is therefore necessary for a seizure without a search. We disagree.

The defendant does not contend that all warrantless seizures are unreasonable; indeed, there are certain well-recognized exceptions authorizing a warrantless search and seizure, two of which the defendant has implicity recognized: e.g., exigent circumstances and search incident to a lawful arrest. Another such exception is the plain-view rule, which authorizes seizure of evidence of crime which is within the unimpeded view of the officer when the officer is positioned where he has a right to be. State v. Sagner, 12 Or App 459, 472, 506 P2d 510 (1973); State v. Alexander, 9 Or App 42, 46, 495 P2d 51 (1972); State v. McGee, 7 Or App 574, 578, 492 P2d 489 (1972).

The United States Supreme Court has also recognized the plain-view doctrine construing the fourth amendment. Coolidge v. New Hampshire, 403 US 443, 465, 466, 91 S Ct 2022, 29 L Ed 2d 564 (1971) ; Harris v. United States, 390 US 234, 236, 88 S Ct 992, 19 L Ed 2d 1067 (1968). In Harris, the United States Supreme Court held that:

“* * * It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence. Ker v. California, 374 US 23, 42-43 (1963); United States v. Lee, 274 US 559 (1927); Hester v. United States, 265 US 57 (1924).”

Since in this case the officers had a right to be where they were at the time of the seizure, the seizure was lawful.

Both Amendment IV to the United States Constitution and § 9 of Art I of the Oregon Constitution have as their purpose the protection of those areas where the individual has some reasonable expectation of privacy from unauthorized government intrusion— the interest protected is an interest in privacy rather than a property interest in the thing seized. In the case before us, there has been no invasion of privacy; the premises were open to the public. The officers simply seized the alleged contraband which was in open view.

Gambling Device

Defendant’s final assignment of error is that the trial court erred in finding that state’s Exhibit 2 (the machine) was a gambling device subject to forfeiture and destruction under ORS 167.162 which provides, in part, that:

“(1) A gambling device is a public nuisance. Any peace officer shall summarily seize any such device that he finds and deliver it to the custody of the sheriff, who shall hold it subject to the order of the court having jurisdiction.

“(2) Whenever it appears to the court that the gambling device has been possessed in violation of ORS 167.147, the court shall adjudge forfeiture thereof and shall order the sheriff to destroy the device and to deliver any coins taken therefrom to the county treasurer, who shall deposit them to the general fund of the county.

We find that the trial court properly applied the statute to the apparatus in question. ORS 167.117(4) states, in part that:

“ ‘Gambling device’ means any device, machine, paraphernalia or equipment that is used or usable in the playing phases of unlawful gambling, whether it consists of gambling between persons or gambling by a person involving the playing of a machine. * * * Amusement devices which do not return to the operator or player thereof anything but free additional games or plays shall not be considered to be gambling devices.”

The state relies on the first portion of ORS 167.117 (4) and the defendant relies on the latter portion. We believe that defendant’s reliance on the exclusion is misplaced. It is the use to which the machine is actually put that is determinative of its character as a gambling device. State v. Fuller, 164 Or 383, 385-86, 101 P2d 1010 (1940); Enloe v. Lawson, 146 Or 621, 628, 31 P2d 171 (1934); Smith v. One Super Wild Cat, 10 Or App 587, 590, 500 P2d 498 (1972). These cases were decided on facts arising before the enactment of the exclusion on which the defendant relies, but the proposition for which we cite the foregoing cases is equally valid today.

The exclusion, which was added to ORS 167.-117(4), was enacted in 1971 as part of the comprehensive revision of the substantive criminal law made that year.② We find no evidence in the legislative deliberations that “free-play” pinball machines which, as here, were in fact used and possessed as payoff gambling devices, are to be immune from ORS 167.162 seizure. Indeed, the contrary is affirmatively indicated.③ The legislative history of ORS 167.117(4) per suades us that the legislature meant that: (1) free-play amusement devices are not per se gambling devices subject to an ORS 167.162 seizure, but (2) those machines which are mechanically free-play “amusement devices” but used as gambling devices under ORS 167.117(4) are subject to seizure. The seizure in the instant case is also supported by the definition of “slot machines” in ORS 167.117(10).④

Affirmed.

ORS 167.122 provides:

“(1) A person commits the crime of promoting gambling in the second degree if he knowingly promotes or profits from unlawful gambling.

“(2) Promoting gambling in the second degree is a Class A misdemeanor.”

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The exclusion arose in the form of an amendment to Senate Bill 40. The exclusion was adopted by the Senate Committee on Criminal Law and Procedure on April 2, 1971. See the minutes (page 3) of the Committee’s hearing for that date. The purpose of the exclusion was to re-enforce, in affirmative form, a previous amendment adopted by the Committee March 30, 1971 to what is now ORS 167.117(12).' The March 30th amendment removed free-game machines from the definition of “something of value.” This had the effect of removing the use of such machines from the definition of “gambling” as used in the present ORS 167.117(3). See (1) the Committee minutes (page 2 and Exhibit C) and audio record of the hearing conducted March 30, 1971, (2) pages 101-103 of the printed Senate Bill 40, as introduced, and (3) the minutes (page 3) and the audio record of the Committee’s hearing of April 2, 1971.

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In his appearance before the Committee, Mr. Donald L. Paillette, Project Director of the Criminal Law Revision Commission, commented that “Our section here talking about seizure and destruction of gambling devices, would include, even under their amendments [the so-called “Steelhammer Amendment” which included in it the identical language of the exclusion which the defendant relies on in the instant case] it would include a pinball machine that paid off, a machine used for unlawful, gambling.” (Emphasis supplied.) See the audio records for the Committee’s March 30,1971 hearing.

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ORS 167.117(10) provides, in part, that:

“ ‘Slot machine’ means a gambling device that as a result of the insertion of a coin or other object operates, either completely automatically, or with the aid of some physical act by the player, in such a manner that, depending upon elements of chance, it may eject something of value or otherwise entitle the player to something of value. * * *” (Emphasis supplied.)