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59 Md. App. 44 (1984)

474 A.2d 545

STATE OF MARYLANDv.ONE HUNDRED AND FIFTY-EIGHT GAMING DEVICES AND A SUM OF NINE THOUSAND EIGHT HUNDRED AND NINE DOLLARS.

No. 934, September Term, 1983.

Court of Special Appeals of Maryland.

May 8, 1984.

Avery Aisenstark, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., Lynette M. Phillips, Staff Atty., Warren B. Duckett, Jr., State's Atty. for Anne Arundel County, and Gerald K. Anders, Deputy State's Atty. for Anne Arundel County, on brief, for appellant.

Thomas C. Morrow, Baltimore, with whom were William K. Meyer and Joseph C. Jacobs, Baltimore, on brief, for appellee.

Argued before GILBERT, C.J., and WILNER and GARRITY, JJ.

GILBERT, Chief Judge.

If gaming is a spice of life, the spices in the instant case have been dished up to us in one hundred and fifty-eight assorted flavors.

This appeal arises from a petition by the State for the forfeiture of gaming devices seized from Willow Enterprises, Inc., a Maryland corporation (Willow).

Prior to the trial on the petition, Willow moved for summary judgment in its favor on the ground there was neither statutory nor common law authority for the forfeiture. Willow's motion was denied.

After the matter was heard in the Circuit Court for Anne Arundel County on the merits, the judge granted the State's petition 'with respect to those gaming devices found to be `slot machines' included within the 158 Gaming Devices and with respect to the sum of $9,809.00' taken from Willow's office. The trial judge further ordered that 'gaming devices determined .. not to be `slot machines' were to be returned to the owner.

The State appealed and devices cross-appealed. Inasmuch as this is an action in rem, and it is, in law, the devices that have cross-appealed, we shall for simplicity's sake refer to the appellees and cross-appellants as 'Willow.'

The State asserts, essentially, that the trial court erred in failing to declare that all of the devices were illegal gambling devices and, consequently, subject to forfeiture. The cross-appellant Willow avers that:

1) the trial court's delegation of forfeiture power to the State was an unlawful and unconstitutional delegation of judicial authority;2) the trial court erred in applying a forfeiture penalty in the absence of explicit statutory or common law authority;3) the trial court misapplied and misconstrued Maryland statutory and case law in holding that the forfeited devices are unlawful gaming devices; and4) the trial court erred in declaring a forfeiture of the nine thousand eight hundred and nine dollars.Facts

Following an investigation, the Maryland State Police on December 30, 1980, procured and executed a search and seizure warrant upon Willow's headquarters located at 118 Roesler Road, Glen Burnie, Maryland. The police seized a variety of gaming devices, documents, and United States currency. Willow is said to be engaged in the sale, service and distribution of arcade and pinball machines, gaming devices, and vending machines. Willow's president and operator, Louis Wilner, was charged with unlawfully maintaining and possessing slot machines and lottery slips in violation of Md. Ann. Code art. 27, § 264B and § 362. On July 16, 1981, Wilner was adjudged by the district court to be guilty of those charges. Wilner did not appeal.

After Wilner's conviction, the State filed its petition for forfeiture of the currency and gaming devices that the State police had seized from Willow. The devices seized were of various makes, models, and designs. As a matter of convenience, the State introduced during trial on the petition, eleven devices that it claimed 'exemplified all of the various gambling devices seized.'

Although they varied, most of the seized devices incorporated 'free play' or 'game credit' features that rewarded the successful player with 'free' replays, which were registered on a three or four digit meter attached to the machine.[1] The player was able to use the free plays by activating a 'play' button on the machine.

Many of the alleged gaming devices were adapted with a 'knock-off switch' and a 'knock-off meter.' The switch and meter enabled the machine owner to remove game credits from the machine while maintaining a tabulation of the total free plays actually won. A number of the seized devices had not yet been fitted with the knock-off switches or meters, but unattached meters were found at Willow's premises.

Forty-eight of the devices seized were Delta 'Red, White and Blue' machines that issue stamps printed with randomly selected numbers. If the numbers on the stamps issued by the machine correspond with numbers on a chart that was placed on top of the machine, the player wins replays, coupons or merchandise.

The remaining devices were a variety of 'one-arm bandits' which are activated by a player's depositing a coin in a slot and pulling a handle. The handle rotates reels which spin and then stop, revealing a combination of symbols, numbers, words or colors. If the combination of the reels corresponds with one of the predetermined winning combinations, the machine releases the 'payoff' into a coin tray located on the lower front of the machine. With the exception of the one-arm bandit devices, none of the gaming machines had the capability of directly paying off to the player. The other devices required a third party to redeem 'free games' for something of value that was more tangible.

The trial judge found as a fact that certain devices were slot machines and thus proscribed by art. 27, § 264B.[2] Included within that finding were 'partially dismantled' machines of the same type. He further found that the antique slot machine, the Delta Red, White and Blue machine without a knock-off device, all 'similar free play devices,' and all 'inoperable' machines were not slot machines within the meaning of § 264B.

Forfeiture vel non

Before we reach the question of whether the devices seized in the matter sub judice were slot machines, we must first determine the State's right to institute forfeiture proceedings.

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Property which becomes the subject of forfeiture is characterized as either contraband per se or derivative contraband. Contraband per se, that is, property that is inherently illegal, requires no forfeiture procedure in order to perfect the State's interest in it.[3] Derivative contraband, on the other hand is property that may be legal or illegal to possess depending upon the particular circumstances.[4] A determination that property is contraband, under the derivative theory, is made by application of the statute, if there be one, or by common law standards applied to the facts.

The devices seized from Willow may or may not have a lawful, useful purpose. That being the situation, they may not be characterized as contraband per se. Whether the devices are derivative contraband requires a judicial determination. If the devices are found to be derivative contraband, they are subject to forfeiture.

The authority for forfeiture in Maryland is derived from two sources, scilicet, common law or statute.[5] An integral part of each is four basic propositions: 1) forfeiture is a civil in rem proceeding, Director of Finance, Prince George's County v. Cole, 296 Md. 607, 618, 465 A.2d 450 (1983); 2) the guilt or innocence of the owner of the seized property is of little significance, Bozman v. Office of Finance, Baltimore County, 52 Md. App. 1, 10, 445 A.2d 1073 (1982), aff'd 296 Md. 492, 463 A.2d 832 (1983); 3) forfeitures are not favored in the law and should be avoided when possible, Commercial Credit Corp. v. State, 258

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