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10/26/94 PEOPLE EX REL. MICHAEL J. WALLER v.

October 26, 1994

THE PEOPLE EX REL. MICHAEL J. WALLER, PLAINTIFF-APPELLEE,
v.
SEEBURG SLOT MACHINES AND PETER VOLE, JR., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Lake County. No. 92-MR-437. Honorable Charles F. Scott, Judge, Presiding.

Rehearing Denied November 21, 1994. Petition for Leave to Appeal Denied February 1, 1995.

Quetsch, Colwell, PECCARELLI

The opinion of the court was delivered by: Quetsch

JUSTICE QUETSCH delivered the opinion of the court:

The State filed a complaint pursuant to section 28-5 of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1991, ch. 38, par. 28-5 (now 720 ILCS 5/28-5 (West 1992))) for the forfeiture of 94 slot machines owned by the defendant, Peter Vole, Jr., which were found after a police search of his office building. The defendant filed a motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1992)), arguing that the complaint was not timely filed and that his slot machines were exempt from forfeiture. He also filed a motion to suppress all physical evidence discovered as a result of the search of his building. The court denied the motions, and it subsequently ordered the forfeiture of the slot machines. On appeal, the defendant contends that the trial court erred by: (1) denying his motions to dismiss the complaint and suppress evidence; and (2) ordering the forfeiture of the slot machines. We affirm.

The Waukegan police department seized the defendant's slot machines on March 2, 1991, and the State filed its forfeiture complaint pursuant to section 28-5 of the Code on September 18, 1992. Section 28-5 provides in relevant part:

"Every device used for gambling which is incapable of lawful use or every device used unlawfully for gambling shall be considered a 'gambling device', and shall be subject to seizure, confiscation and destruction by the Department of State Police or by any municipal, or other authority, within whose jurisdiction the same may be found. As used in this Section, a 'gambling device' includes any slot machine * * *." Ill. Rev. Stat. 1991, ch. 38, par. 28-5 (now 720 ILCS 5/28-5 (West 1992).

The defendant moved to dismiss the complaint, arguing that the slot machines were exempt from forfeiture because: (1) he did not know of any unlawful use of the machines (see Ill. Rev. Stat. 1991, ch. 38, par. 28-5(a) (now 720 ILCS 5/28-5(a) (West 1992)) ("With the exception of any device designed for gambling which is incapable of lawful use, no gambling device shall be forfeited or destroyed unless an individual with a property interest in said device knows of the unlawful use of the device")); and (2) he remanufactured the machines for transport in interstate or foreign commerce (see Ill. Rev. Stat. 1991, ch. 38, par. 28-1(b)(4) (now 720 ILCS 5/28-1(b)(4) (West 1992)) ("Participants in any of the following activities shall not be convicted of gambling therefor: Manufacture of gambling devices, including the acquisition of essential parts therefor and the assembly thereof, for transportation in interstate or foreign commerce to any place outside this State when such transportation is not prohibited by any applicable Federal law")). The defendant also argued that the State's complaint was untimely.

At the hearing on his motion to dismiss the complaint, the defendant testified that the slot machines were manufactured in 1978 by Gaming Devices, Inc., a division of the Seeburg Corporation. The defendant became the owner of the machines when a company he had invested in, Destron, bought Gaming Devices, Inc. The slot machines the defendant acquired were missing various parts, and the defendant testified that his intent was to "remanufacture them and find a new customer in either one of the states that they are legally sold in * * * or overseas." To that end, the defendant changed the machines' fuses, bulbs, glasses, coin mechanisms and switches and he then personally tried out the machines to make sure they worked. However, the defendant testified that even with these changes the slot machines are outmoded because they are electromechanical and not computer-chip operated. Therefore, there are no States where the machines can be used. Although the defendant stated that there were potential markets for the machines "on private, individual deals" or in third world countries, he did not identify any buyers that he had lined up.

The defendant sought to introduce letters purportedly from the department of Justice which stated that he had registered the slot machines for transportation in interstate and foreign commerce pursuant to 15 U.S.C. § 1173 (19 ). That section states in relevant part:

"It shall be unlawful for any person engaged in the business of manufacturing gambling devices, if the activities of such business in any way affect interstate or foreign commerce, to manufacture any gambling device during any calendar year, unless, after November 30 of the preceding calendar year, and before the date on which such device is manufactured, such person has registered with the Attorney General under this subsection, regardless of whether such device ever enters interstate or foreign commerce." (15 U.S.C. § 1173 (19 ).)

However, the trial court refused to admit the letters into evidence because: (1) there were no dates on the letters indicating when they had been sent; and (2) the letters did not refer to any particular machines.

Following the defendant's testimony, the trial court inquired whether the parties were going to put on any testimony regarding the statute-of-limitations issue. The parties then stipulated that after the Waukegan police department seized the slot machines on March 2, 1991, the Federal government instituted forfeiture proceedings in the United States District Court for the Northern District of Illinois on May 21, 1991. The cause was transferred to State court on September 3, 1992. The State filed its complaint on September 18, 1992, and the defendant was served with the complaint on September 22, 1992.

The trial court denied the motion to dismiss, ruling that: (1) the complaint was timely filed; (2) the defendant knew the machines were unlawful; and (3) the defendant had not remanufactured the slot machines for transportation in interstate or foreign commerce.

The trial court subsequently held a hearing on the defendant's motion to suppress all physical evidence discovered as a result of the search of his office building. At that hearing, the testimony established that at approximately 8 a.m. on March 2, 1991, Officer Ralph Henriquez of the Waukegan police department observed that an entry level 8 by 8 plate glass window in a vacant office building at Washington and Genesee Streets had been broken. The break was large enough to allow entry into the building. Henriquez contacted the dispatcher at the police department, and he then waited in his squad car for several minutes until Officer Louis Rodriguez arrived.

Since there had been a rash of burglaries in other vacant buildings in the area, Officers Henriquez and Rodriguez decided to secure the building at Washington and Genesee even though they did not have a search warrant. They entered the building through the broken window and saw no one on the first floor. They subsequently walked up a staircase to the second floor, where they observed the slot machines in two rooms.

At approximately 8:45 a.m., the officers heard a noise on the first floor and they went downstairs to investigate. There they met Tom Crause, the caretaker of the building, who told them that the defendant was the owner of the building. Henriquez then went to the police station to inform Lieutenant James Sroka of what they had ...


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