a fact intensive case that spans several years several into t's and agencies and several individuals but at the heart of this case is whether the state of ohio conspired to seize my client's gaming machines assets records in order to carry out the governor and the attorney general's attempt at that point to quote crack down on gambling and to put my client out of business and the core question here is whether the state deliberately attempted to do an end run around the multiple court orders that were clear that clearly prohibited the state from seizing any of these machines well i mean i don't know if that's an accurate characterization because the courts  of the cases that were that the the injunction that had been in place had been put in place an initially begin in two thousand and six with judge holbrook in joining the department of public safety the state the state or at the stipulated order you're talking about i mean there was one of these orders was just stipulated right that was the initial that was the next part yes that that's when you're talking about now in november two thousand and six how could they enjoin the state if some you know local villages stipulates some more that isn't even reasoned or anything well if that and that in fact that goes to the the the argument is that the judge holbrook at that point  t to maintain the status quo not to seize the machines until it was determined whether or not the machines were illegal gambling devices that was the initial order and that water did apply that was it was that order in the record goes to the department of public safety it's a it's a common pleas court there are that order there was there is nothing in the record that says that temporary restraining order was vacated it was dismissed was modified and it was put in place until further notice did this search occur within the geographic jurisdiction of this court a power claims that particular or did not have any i'm sorry that particular  however it's more complicated than that because that is that is exactly at the bat what the the core of this case is about whether or not these this was a state involved agency task force or whether these were local law enforcement entities that were carrying out the the efforts of this particular task force and that is a critical i mean quarter comic claims somewhere can't enjoying the state from doing things outside of that  that true it we can enjoy in the united states are doing some california right that's that's very true on about but i think that that's a a misunderstanding of the record because what was happening was this state involved task force and that's where  the lower court came i believe that's the error of the lower court as well is this was a state agency i mean this was a state task force that had brought together several local agencies so in that particular that that first enjoy that honor that initial t r o prevented the state from our law enforcement officers from seizing the machines in that village subsequent to that order however there were two additional orders that didn't joint the department of public safety and that is the and those were those orders were in place and again none of those orders were ever vacated or modified now in the state is going to argue that it was based strictly on the emergency rule that the attorney general put in place at the time but judge priest modified it and his august two thousand and seven order modified his word and says the plaintiff and the state and the ohio department of public safety are currently involved in an action before another branch of this court concerning the same tic tac  machines and whether they are in fact skill based or chance based amusement chain amusement machines and the and that action and this action should be considered together on their merits prior to further acts by the state of ohio over here didn't say anything about the merits of this but you ought to know about it excellent question are the reason that's important is because the old c i c task force basically purported to be  a state task force but they went before judge taylor as individual law enforcement agents because of the fact that they knew they were subject to the very t r roles that we're discussing now the state was aware that they were enjoined from from taking these machines it's in the record jerry moon says physical seizure of these machines would have to be led by local law enforcement due to what happened in court and what happened is that what happened i mean did local folks take the machines yesterday so then problem solved as a no you aren't because you can't because because they they did it on the auspices of the state they were not local law enforcement agent they weren't acting his local law enforcement agents they were acting under the guise of the state task force something that a jury should make the determination about whether or not that judge deserve to know that there were other injunctions in place that that a jury questionnaire is out of the question as to whether they should have  whether or not probable cause was was there but whether or not the information the judge had to make that decision is a juror that's that's where bits while we're here because the question comes back well if this is a state agent if this is a state task force in this state task force is operating under the guise of the state of ohio and the state of ohio has been enjoined from seizing these machine that's what you're saying the question in fact is is a state issue a state task force or whether these individuals were operating as local law enforcement because what they did was went before the judge as local law enforcement agents and never mention the fact that they were part of this larger state task force they didn't mention they were part of the larger state task force because they knew if they told the judge that there was a likelihood that the judge would want to know there are other injunctions out there barring the state from doing exactly what they were asking this just to give them or you are you know it's exclusive you're either part of the if the information had been presented to her she didn't has the option at that point to say yes this is a state task force using local law enforcement agents but i believe this is this this either these local law enforcement agents are the driving force that would be her information that another court had enjoying the very machines in the very client i mean very individuals that were before that court from doing exactly what they were asking that court to do or you may think that there was probable cause to asia that wa your saying that they should or step in and absolutely not admitting that there was probable cause not in it under any circumstance because we believe it probable cause that is is there is no probable cause if there is an injunction barring the seizure of the machines probable cause goes away but without having the knowledge that there are injunctions in place that would bar that bar the seizure of the machines the just can't make that determination and so and in fact that's why we're here because because the judge was not given that information she did then did issue the warrant and then after the fact when she learned that there were these injunctions in place and there's no way she would have issued the she would have disturb  the ruling of another of another judge at that time that sounds like subjective criteria instead of objective that what you're saying the idea being however your honor if any any any objective judge would want before them the information all the information necessary to make a decision on whether or not there was probable cause for the issuance of the warrant and that's and that's the the  terminal and drafted warrant you definitely said to those who were drafting the warrants not to include the information about these injunctions because we are aware that they are the state and since we're the state we can't let the judge know that we are are barred from  honors i just want to start actually by raising a threshold issue namely the plaintiffs in this case never argued to this court that failure to disclose being part of the organized crime commission being part of the state to the judge was one of the material admissions they did raise that in the trial court but that is nowhere to be found in their briefs there's a reason your honour's why the local law enforcement agencies the franklin county sheriff's department columbus police department could not tell judge taylor in franklin county muni court the judge in the delaware county muni court or the judge in the stark county court why whether they were part of the organized crime commission because under ohio law that is actually confidential the commission members the commission's work is not allowed to be broadcast publicly they cannot go into court and say we're part of an organized crime task force we're investigating this and that's the hat we're wearing here or so i mean take things under seal all the time they do but in this case and the testimony in the record is clear that lisa smith from the columbus gone from the franklin county sheriff's department understood that when they were going into court they were going into court as members of their local jurisdictions they were not going into court as members of the state of ohio they were going into court as columbus police and the franklin county sheriff's department it seems like a premise of the plaintiff's argument here is that the actions of the state officials here were in fact in violation of these prior orders  other courts do you agree with that i disagree with that your honor and the district court disagreed with that there were several orders that are at play and i'd like to kind of just briefly run through all of them the first one was judge crow down in  down in the village of pomeroy case which was the agreed order that somebody filed a lawsuit against a small village down on the ohio river said give us a declaration that this case that these machines are a legal case was never contested the plaintiff's attorney prepared the order the judge signed it that order was later vacated we get to the franklin county courthouse at our applied it applied in the county and specifically actually the challenge was against the village of pomeroy which is a tiny village on the ohio river against their mobile police it was it was a brought against your honor it was brought against the village itself so yes i would maintain that only that local police department would be subject to it the next case was brought in franklin county common pleas court against the department of public safety and so your honour's are aware public safety has a branch and one of the branches of public safety is the the investigative unit and basically what they do is they regulate alcohol sales in the state of ohio they investigate potential crimes that occur in bars such as gambling and a a declaratory judgment was brought against them asking that the court find that these tick tick through machines were illegal under ohio law that was the injunction that the franklin county come please court said it did not get into the question of whether or not the machines were legal what it said was that the department of public safety should not seize those machines that judge later said that that order also applies to the ohio attorney general's office we then get into other cases for example the summit county case which was a criminal case where the judge actually ended up going ahead and examining the statute and wrote a rather long and detailed opinion finding that the defendants were not only not guilty but finding that those machines in that case were illegal under the ohio laws at the time nothing was done in that county as it relates to this case with seizure machines we moved forward we have a franklin county judge examining the question finding that the machines were illegal under ohio law that decision was vacated by an appeals court in the state of ohio under stiction grounds we then moved forward an administrative rule that the attorney general issued under his authority under the state's consumer sales practices act and the attorney general on the permission of the governor who has to give permission to any state official to issue an emergency rule went ahead and said defined what the machines were limited to cash payout and said that any violation of this is a violation of the state consumer sales practices act the franklin county common pleas court in joined the attorney general's emergency rule on statutory bases saying that the attorney general under ohio law did not have the authority to legislatively determine these issues so they enjoin the order the attorney general when he issued the order sent his consumer sales practices act order to local law enforcement with advice that they are allowed to take the machines because the court found that the attorney general had no legal authority under ohio law to issue that rule the court also ordered the attorney general to advise those police forces that he said could seize the machines under  is civil rule not to proceed he did that what the courts in these cases though consistently have said is that they are not making a determination with the exception of two cases the summit county case finding that the machines were legal under ohio law and the one franklin county case finding that the machines were illegal under ohio law and those courts never really address the issue are these games of skill or are these games of chance if they're games of skill they're legal if the games of chance that they're illegal in fact the judge in franklin county that issued a status quo order said specifically that he was reserving ruling on the question of the legality of those machines for another day so when we look at all of that the question is is it reasonable when a police officer is going in front of a magistrate one of three different counties the only judge the only magistrate that's testified in this case is saying i'm franklin county municipal court the delaware county municipal court which delaware was the home of two of the plaintiffs and then the stark county municipal court which was the home of the third plaintiff the business locations in the bank records were kept in franklin county i don't recall from the bruce whatever happened with all this just set of curiosity i mean this almost sounds like we're here to you know this is like the case the prosecution itself of this stuff i mean what what happened to your honor is charges actually were never filed in this underlying of these games still going on and tavern or wherever it is your honor i don't know if the buckeye room is still open they're not but being a member of the ohio attorney general's office for the seventeen years i've been there i can tell you that electronic gaming machines are always a priority of the attorney general you don't know if these games are still operating there are some games i believe that may still be operating the general assembly just recently passed yet another law attempting to make these types of games illegal there is currently an action pending in the franklin county come please court because charitable organizations like the veterans of foreign wars have certain types of machines in their locations and there are limits on payouts and everything else but in the franklin county case that is currently pending the judge did allow the games that are in those charitable lodges to continue to be played until a potential i believe june trial but i was curious yeah we we've been we've been dealing with these games  for years and years and you know as as lisa smith supervisor testified and it's in the record that's part of the problem is that once you find a certain software version to be illegal the manufacturer simply tweak the software and you start back at ground zero which is why the general assembly had tried to do things like put limits on the amount of prize money that one can win when playing the machines but when we focus on the issuing magistrate in franklin county you know it is our position and we believe that the district court got this right that one has to look at an objectively and not a subjective standard as i've mentioned search warrants were issued in three counties franklin county which was the location where the business was located and the location of where the bank records were located delaware county where two of the plaintiffs resided and stark county were third plaintiff resided if the constitutional test issue is a subjective standard not an object of standard it would cause tremendous problems for law enforcement personnel for courts going forward it's not subjective and i think everyone agrees that it's not a judge taylor test and your honor with that said we would we would submit that the district court properly found that an object of judge in the position of judge taylor or the other judges in this case would not need the material that was claimed to be omitted in order to reach a probable cause determination the district court laid out why all of the material at issue is irrelevant to a probable cause determination it doesn't matter those injunctions don't matter they were not a political in this case they were not a political to the law enforcement agencies and even if they were there is nothing that would prohibit an independent criminal investigation from moving forward as we mentioned in our brief that would be similar to somebody having currency graving plates and simply saying to to the department of treasury secret service you can't seize those plates because we're going forward trying to determine whether or not i can use these things the the affidavit issue in this case plainly and simply laid out and we are not conceding that there was a material mission and we are not conceding that there were false statements made in those affidavits but as the district court said even if you take all of the information that the plaintiff's claim needs to be included in the affidavit and even if you strike out all of the information that they claim should be struck from the affidavit there's still exist probable cause of gambling and money laundering and as long as that exists there is no fourth amendment violation your adversary suggests that a jury questioning you to court you agree with that we would disagree with that your honor the question of whether probable cause exists as a legal standard is there is there reason to believe that a crime may have occurred or evidence of a crime may be found at this location that's a legal question it's not a jury question if there were a dispute for example between the issuing magistrate and the affiant as far as what was said in a conference and there's no transcript that might be a jury question did you know officer jones say a b c or not officer jones says she did magistrate doe says she didn't that would be a jury question but the the the actual question of does probable cause exist is purely a legal question that's based in this case on affidavit with the court yes yes and just to conclude very briefly your honor we would offer your honors we would also ask that this court affirm the separate determination that the assistant attorney general who is legal counsel to the organized crime commission did not commit a fourth amendment violation military operation or part of the way an organized crime task force works your honor is for example they need office space they need equipment they need those types of things the assistant attorney general assigned to the task force provides the act provides making sure that basically bills are paid if experts are retained that they are done all of those things so that's what the evidence in this case shows mr moon's involvement was he did not review any of the affidavits before they were submitted i see did lisa smith and david hunt go before judge taylor as local law enforcement when they were clearly members of the task force and if in fact it was the the the state is correct  saying that it is against the law to publicize these but there is this is going to the court there is nothing that prevented the state from presenting this information to the judge  this the the what is missing from this particular argument is the fact that both lisa smith and they would hunt were familiar to judge taylor in their local capacities and they made a point not to inform her until sure the problem though comes in again back to the injunctions that were preventing the state from seasoning seizing these machines these were they weren't seeing them as local law enforcement officers they were seizing them as a part of the state task force and that's the reason that the question is it begs the question of if there was no reason to separate themselves from local law enforcement from these task force then why go through all of the effort to separate themselves before the court and the simple answer to that is this this task force and the members of the task force were fully aware that if they went before a judge and asked for a search warrant as the state that that would not then they would not be allowed to have that the search warrant because the state had been enjoined from taking seizing those machines your honor as mentioned a moment ago the i mean statements from home to go that there was additional money laundering in gambling this the machines there had been the determination that machines were gambling therefore there could not be money laundering if they were not gamp if they were if there was no illegal gambling and that determination to this date still hasn't been made so to say that the af these were gambling machines but this that mention that there yes your honor there it well that that actually is one of the issues because the affidavits mentioned there are experts that say that the machines were they class by the mass lot machines even though the we have testimony from that particular expert is that he did not call them a slot machine because when you hear slot machine that gives the connotation of one of these one armband is which that was not the case and in fact this particular experts i didn't did not classify them that as right around it and if i could rappler quickly with the one statement when you ask what happened the three prosecutors in each of these counties not only the reason nothing happened they declined to prosecute the cases because of the lack of them as they did not feel there was enough evidence to bring a case so the these individuals were put out of business but they were never arrested there were never there were they were never charged there was nothing that came out of this other than the fact that they lost a lot thank you thank you for your argument case