probable cause

Probable cause is a set of conditions that an agent must feel are satisfied before an arrest will be made. The agent must ask himself if the evidence present in the video tapes, witness statements and other physical evidence (slot machines, cards, dice, etc.) is sufficient to convince a reasonable and prudent person that a crime has been, is being or is about to be committed and the suspect(s) is the person(s) who committed it.

Probable cause must be more than suspicion. You cannot expect an agent to arrest someone just because they are known to have been arrested for cheating on a previous occasion.

An arrest must also support the elements of the law in question.

Before the agent can determine if sufficient probable cause exists to arrest a suspect for violation of NRS 465 (cheating at gaming), the agent must know the definition of the term cheat (NRS 465.015) and the elements necessary to prove it.

The elements necessary to prove that the suspect violated this statute must all be present for an arrest. This means that the agent must be able to satisfy himself and subsequently the District Attorney, judge and jury that:

On such and such a date and such and such a time, the suspect:

1. Altered the selection of criteria (cards, dice, slot reels and symbols, etc.) which determine the result (win or loss) of the game, or

2. Altered the selection of criteria (cards, dice, amount of bet, slot reels and symbols, etc.) which determine the amount of payment in the game, or

3. Altered the selection of criteria (cards, dice, slot reels and symbols, etc.) which determine the frequency of payment in the game.

The decision to arrest or not lies with the investigating agent. There may be times when sufficient probable cause exists but other conditions and circumstances indicate that proving the act in court would be difficult. The agent may decide to complete the investigation and submit the finding to the District Attorney for consideration of a warrant. Sometimes sufficient probable cause exists to believe that the suspect committed the act, but not all of the elements can be supported. In this case, an arrest would not be made.

Note: The casino has the choice, after the agent has completed the investigation, to make a “Private Person’s” (citizen’s) arrest under the provisions of NRS 171.126. However, when this action is taken, the casino and its employees assume all responsibility for civil and criminal liability.

A second important factor in the successful prosecution of any criminal case is preservation of evidence. Another factor, which must be established and documented throughout the entire process, is called chain of custody.

Let’s use the pit area for this example. An attentive dealer notifies the Floor Supervisor that a player on a Twenty-one game is bending the aces and ten-value cards. The Floor Supervisor notifies the Shift Manager, who in turn calls the Surveillance Department and notifies the Enforcement Division of the Gaming Control Board. An agent arrives and determines that sufficient probable cause exists to believe that the suspect has violated the provisions of NRS 465.072(2), NRS 465.070(3), and NRS 465.088. The suspect is arrested and transported to the jail where he is booked on those charges.

During the initial investigation, the agent examines the deck of cards that was removed from the game. However, the Pit Manager decided to use the cards to train all of the Floor Supervisors while waiting for the agent. During this training, one of the Floor Supervisors decided that the “crimps” were a little too hard to read, so he bent them “just a little.” The agent was not informed of this act.

At the time of the trial, the defense attorney asks the agent if anyone handled the cards after they were removed from the game by the Pit Manager. The agent states “no,” adding that the chain of custody was preserved and documented on the evidence bag. The agent further states that the evidence is in the same condition as it was at the time it was removed from the game.

Next, the defense attorney asks the Pit Manager if anyone other than the agent or himself handled the cards. The Pit Manager states, “Well, I did let the Floor Supervisors take a look at them for training purposes.” The defense attorney asks if the cards are in the same, exact condition as they were when they were taken from the game. The Pit Manager states, “For the most part, yes.” The defense attorney questions the Pit Manager further and discovers the act of one of the Floor Supervisors.

The result? The case and charges are dismissed because the state did not show the entire chain of custody (the identification of everyone who handled the evidence) and because the evidence was altered prior to the investigation.

Now we will take this process further. A change person receives a complaint from a customer that the machine they are playing is dropping Republic of Trinidad dimes. The change person notifies the supervisor and as a result two suspects are arrested for using unlawful coins in a gambling device. During the investigation, two video tapes, three coin acceptors and $250 in dimes are seized as evidence.

The case is presented to the District Attorney by the agent. The District Attorney is convinced that sufficient probable cause exists to believe that a crime was committed and the suspects committed it. As a result, a criminal complaint is issued and a date set for a preliminary hearing. Prior to the hearing, the District Attorney sends out subpoenas to all of the witnesses. At the preliminary hearing all of the witnesses testify, but the suspects refuse to plead guilty to the charges. The District Attorney’s case satisfies the judge that sufficient probable cause exists to order the suspects bound over for trial.

A year passes from the time the crime was committed and the case is brought to trial. The Casino would like to get their coin acceptors and dimes back. The trial was held and the suspects were convicted. The judge has set a date next month for sentencing. The case is closed. . . . The Gaming Control Board refuses to return the evidence. Why?

No evidence in any investigation can be released without an order of disposition from the District Attorney’s Office. This order stipulates which items of evidence may be released, to whom they are to be released and when they may be released. Sometimes the evidence may be released immediately and on other occasions the Enforcement Division must wait 60 days following the date of sentencing. This allows for the filing of appeals.

One last area which must be considered involves the actions taken when you see something and have probable cause to believe that a crime is being committed. As long as the crime is a gaming crime and the act does not endanger anyone’s life or safety, the following steps are recommended.

1. Begin video taping the actions. The taping should attempt to obtain a clear recording of the identity of the suspect(s), the specific location (such as a table number, slot bank number or cage window location), their actions, any persons in the immediate area; the time and date should be recorded on the tape. The video will help establish probable cause and evidence of the elements of a crime.

2. Notify your immediate supervisor and tell him/her what you have seen.

3. Notify a Security Manager that you are watching the suspect(s) and provide a physical description and location. (The Security Manager should know to give the suspects plenty of “breathing room” and not approach or detain them unless they attempt to escape or leave the casino.) Security will make the decision to notify law enforcement, based on your information.

4. Continue to observe the suspect’s actions until contacted by the investigating agent.

5. When the agent arrives, the conduct of the investigation comes under his direction and control.

If detention of the suspect becomes necessary to prevent escape or is directed by the investigating agent, the casino is protected by the provisions of NRS 465.101.

Note: The provisions for freedom from liability are dependent upon two important requirements:

1. That the detention is based on probable cause and the person is being detained for committing a violation of gaming law, or to protect hotel guests and staff from harm.

2. That the taking into custody and detention are reasonable under all the circumstances.

Do not allow your emotions or pressure from anyone to influence your determination of probable cause.

Copyright © 1998, 2002 by Jim Goding. All rights reserved. Duplication in any form, electronic or otherwise, without the express written permission of the author is forbidden, is a violation of the proprietary rights of the author and is actionable under law. This article may be purchased for a nominal fee by clicking on the following link.

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