Motion to Supress Searches & Seizures – Return of Property


Defendants (“D. Defendants”), by and through their undersigned counsel, hereby move to suppress evidence obtained from any/all searches and seizures in this case, and in support thereof, state as follows:

Topic Page

A. Introduction 2
B. S. – Stricken 3
C. Master Affidavit – Analysis 4
D. M. Law Firm – Searches and Seizures 6
E. Bank Accounts, Vehicle/Vessels and Real Property – Seizures 7
F. Affiliates – Searches and Seizures 8
G. Game Promotion – Safe Harbor 20
H. Memorandum of Law 24


A. Introduction
1. On March 1, after some three years of investigation, Captain S. G., of the Seminole County Sheriff’s Office, executed his “Master Affidavit.” That Master Affidavit formed not only the basis for the arrest of 57 individuals on or about March 11, but was also incorporated by Captain G. in support of multiple searches and seizures.
2. The fundamental assertion in the Affidavit as the basis for the arrest was the allegation that the Company’s facilities were operating “gambling” facilities, and were not lawful gaming facilities. In turn, the sole basis for that allegation emanated from an opinion rendered by D. R. S., who opined the Company’s computer internet and gaming equipment constituted a slot machine. The State has now abandoned that opinion, and has stipulated that any evidence from S., and/or any evidence that can be drawn from him or inferred from his information, may not be used or relied upon in the Affidavit. In turn, that “slot machine” “gambling” theory formed the basis of every other charge asserted – including money laundering and RICO. With the elimination of the “slot machine” theory, all charges fall.
3. On July 17, this Court entered an order denying a motion to suppress evidence seized from the law offices of M. & M., P.A. That motion was based on the search having been authorized by a justice, rather than a judge.
4. Aside from the arrest of 57 defendants (which arrests are all now illegal, in light of the striking of S.), the following searches and seizures were effected, as a direct result of the S. information.
a. M. & M., P.A. law firm – See Part D. below;
b. Bank accounts, vehicles/vessels, real property – See Part E. below; and
c. Searches and seizures of the various Affiliates – See Part F. below.

B. S. – Stricken

1. After countless hours of time and effort were invested in dissecting S.’s childish methodology and opinion, on July 22, counsel filed his Motion to Disqualify (“D. Motion”). One week later, on July 29, the State filed their Notice, informing the Court and the parties that they would not rely on S. at all as an expert – even though he was their only alleged expert.
2. On Friday, August 2, the Court held the D. hearing, at which time the parties discussed with the Court the D. Motion and the State’s Notice. In that colloquy, an appropriate question was tendered to the State, through the Court, with regard to the traverses the State had previously filed responding to motions to dismiss that had been previously filed. Specifically, the concern raised was with regard to how the defense would be required to respond to any such traverses, given the fact that those traverses had incorporated the Master Affidavit of G., as an alleged factual basis to support the traverses.
3. At that time, the State informed the Court and the parties that, to the extent that any evidence from D. R. S., or any evidence that could be drawn from him or inferred from him, existed in the Master Affidavit, the State agreed they could not rely on that evidence in responding to any motions filed by the defense in this case, and thus the defense need not be concerned with any such “S.” type information in the Master Affidavit. A copy of that portion of the transcript of that hearing, confirming the State’s announcement, is attached hereto as Exhibit A.
4. Of course, this acknowledgment by the State is consistent with their acknowledgment that S. is not a qualified expert, and thus his methodology is entirely defective. Their acknowledgment that any evidence, information and/or inferences drawn from S. should be excised from the Master Affidavit has, of course, great significance with regard to the arrests that were undertaken based on that Master Affidavit, but also as to the searches that were undertaken – based on the alleged probable cause set forth in that Master Affidavit. It is the latter use of that false and defective information that is the subject matter of this motion.
5. In short, based on the State’s agreement that any information attributable to S., or inferences that might be drawn from his information, should be excised from the Master Affidavit, it follows that an analysis of the probable cause alleged in the Affidavit must now be undertaken in the absence of any such S. information. As will be discussed below, with the S. information excised from any search affidavit, there exists absolutely no probable cause whatsoever.

C. Master Affidavit – Analysis

1. The Master Affidavit is 434 pages long. However, the first 234 pages deal with the alleged probable cause, and the last 200 pages recite the counts Captain G. claims flow from his allegations.
2. The bulk of those first 234 pages are entirely irrelevant to the key issue of the establishment of probable cause, and thus this Honorable Court can have a much more narrow focus on the facts that allegedly underpin the crimes for which the searches are sought.
3. Specifically, every single offense alleged by Captain G. in his Affidavit flows from the allegation that gambling was taking place, because the video equipment in the stores constituted “slot machines.”
4. Thus, clearly, the fundamental basis for offense alleged by Captain G. starts with the premise that the facilities were operating slot machines.
5. For example, the G. money laundering theory is predicated on the assertion that “machines are illegal slot machines.” Master Affidavit at 122. “Gambling” forms the specified unlawful activity that is the predicate to money laundering. Master Affidavit at 8-9. In turn, that predicate activity of gambling forms the alleged predicate activity for the alleged RICO charges. Master Affidavit at 10. Thus, every single prosecution theory advocated by Captain G. in the Master Affidavit rests on the underlying claim that the Company’s facilities were engaged in gambling.
6. More specifically it is asserted, wholly in reliance on Mr. S. that “in his [S.] expert opinion the devices being used by … are slot machines.” Master Affidavit at 15. Thereafter, Captain G. specifically references the examination by the “expert” [S.] of the Company’s facilities in January. Master Affidavit at 14-17.
7. Captain G. has testified that he is not an expert on identifying slot machines or illegal gambling, and, as noted, the sole person upon whom Captain G. relies to render an opinion that the Company’s equipment was slot machines – was S.. Id. Hence, the relevance of the deletion of the S. information from this Affidavit cannot be overstated.
8. Although the Master Affidavit is broken down into its own topics, and thus the Court can readily discern those that actually go to the calculus of probable cause, Mr. E. has done a thorough job in dissecting the Master Affidavit, and its components, in the C. J. D. Second Motion to Suppress Evidence, which is adopted and incorporated herein. As can be seen in the D. Second Motion to Suppress, and as articulated in that Motion, none of those components of the Master Affidavit add any factual allegations – to the S. allegations – that would justify issuance of a warrant.
9. Again, and in short, the entirety of the factual probable cause for the Affidavit is based on the alleged methodology and opinion of S. With the deletion of that opinion, as stipulated to by the State, no facts exists to establish probable cause whatsoever.

D. M. Law Firm – Searches and Seizures

1. A search warrant was obtained on March 5, for the search of the premises of the law firm of M. & M., P.A., pursuant to an Affidavit and Application for Search Warrant – Law Offices of M. & M., P.A. (“M. Affidavit”), executed by Captain G. that same date.
2. An examination of the M. Affidavit, as compared with the Master Affidavit, demonstrates they are identical. As such, once again, Captain G. relies on the “expert opinion” of S. to establish that “the devices being utilized by AVOTW Affiliates … are slot machines.” Mathis Affidavit at 15.
3. Thus, and quite simply, given the fact that the Master Affidavit is without probable cause, upon properly deleting any references and/or inferences to the S. information or evidence, it follows that the Mathis Affidavit is equally without probable cause, and the search of the law offices of M. & M., P.A. must be suppressed.

E. Bank Accounts, Vehicle/Vessels and Real Property – Seizures

1. Captain G. issued his “Seizure Affidavit” on March 1, that Seizure Affidavit sought the seizure of the bank accounts (listed in attachment 1 to the Seizure Affidavit), vehicles and vessels (listed in attachment 2 to the Seizure Affidavit), and real property (listed as attachment 3 to the Seizure Affidavit).
2. The Seizure Affidavit contains a great deal of financial information, wherein Captain G. attempts to trace the proceeds of the gross receipts of the affiliates into various accounts and assets, in support of his claim that those assets should be seized. However, the factual basis for any such seizures rests solely on his Master Affidavit, which he simply incorporated into the Seizure Affidavit by reference. Specifically, paragraph 4 (page 2), in asserting the “legal basis for seizure,” specifically relies on the “probable cause” from the “Master Affidavit.” Similarly, paragraph 6 (page 3) of the Seizure Affidavit specifically relies on the Master Affidavit to support the “factual basis” of any probable cause determination. In paragraph 6, the Seizure Affidavit asserts that “the Master Affidavit fully sets for the factual basis to support a probable cause determination …”
3. Hence, it cannot be gainsaid that the Master Affidavit is the source of any factual basis for any probable cause to support the Seizure Affidavit. Again, given the fact that the Master Affidavit, upon excising the S. information and/or any inferences drawn therefrom, it also established probable cause, it follows that the Seizure Affidavit fails to establish probable cause and any/all evidence seized as a result of that Seizure Affidavit must be suppressed.

F. Affiliates – Searches and Seizures

S. Basis – Abandoned
1. This affidavit (the “M. Affidavit”) was executed by IRS Agent S. M. It too relies extensively on the S. opinion, and asserts the Company’s equipment to constitute “slot machines” – solely because S. says so. M. quotes extensively from not only the S. opinion, but from the false S. CV. M. Aff. at 18-23. For all the reasons set forth above, this S. information must be excised. It is the only factual basis for the alleged gambling theory, and thus that basis for the searches must fall.
No Minimum Percentage Required for Charity Funds
2. The M. affidavit also asserts an alleged fraud regarding the contributions to charity. However, as a matter of fact and law, no such crime exists. Capt. G. has testified there exists no minimum percentage that must be contributed by a business to a charity. GTr. at 218:23-25 – 219:1-3. Thus, that alleged fraud must fall.
Department of Agriculture Approval – Solicitation of Contributions Act
3. Before the Company opened the first internet cafe, they had the approval and guidance of both their well-respected and experienced counsel, and they had the approval of local government and the Department of Agriculture. They would never have opened the first cafe otherwise. This was a legitimate fund-raising venture approved by the Department of Agriculture and local government.
4. The Company was actually investigated by the Department of Agriculture, as to their compliance with the Solicitation of Contributions Act. After a thorough investigation, the Department wrote Mr. M. a letter, dated February 15, informing him that, after reviewing all the relevant information, the Department determined the Company “was found to be following the requirements set forth in Chapter 496, Solicitation of Contributions Act.” Exhibit D.
5. The State is estopped from seeking to advocate a theory rejected by the premier State agency responsible for such matters, after they concluded a thorough investigation. Indeed, this (“fraud”) inquiry should end there. Nevertheless, we will share with the Court many other reasons supporting the proposition that no charity fraud theory can lie.
Business Model – For Profit Internet Cafes`
6. One of the important factors that has been lost in the reckless disregard to mistakenly persecute the Company is their business model. This model involves businesses generating income, while selling a product, and a portion of those funds are then shared with the Company’s Management Company, who, in turn, shares a portion with the non-profit group, after appropriately deducting management expenses.
7. It is essential to understand that business model. The Company was not out having bake sales, or car washes, with the funds of that event going to charity. Rather, the Company acted not as a normal charity, but as a business, that would contribute some of their business profits to veterans.
8. That business model entails lots of hard work, and lots of overhead. All employees were paid a salary, and earned that salary through hard work. Mr. D. himself was required to work seven days a week, for as many hours as needed to do the job correctly and honestly. Much of his work entailed making sure that each location abided by the rules and regulations set forth by the State of Florida, the Department of Agriculture, the legal requirements of their attorneys, and the rules and regulations of AVOW. Mr. D. earned his salary, by looking after 45 or more locations, working seven days a week, 24 hours a day. He wore out three vehicles in 6 years, and often called a hotel his home. Since he was always on call, he would find many an evening meal interrupted by calls. Many of those calls came in the middle of the night. When an affiliate or Post had a problem, he was responsible for helping to resolve it.
9. In addition to this management support, Mr. D. often gave financial support – personally. He has often given his own money to help keep AVOW obligations of rent, utilities and such overhead paid, and so that charitable commitments were honored.
10. The Company has done more for the veterans in the last six years than several of the other veterans organizations will do in a lifetime.
11. Here are a few bullet points about the Company’s operations:
a. Law enforcement was aware of the Company’s operations from day one. Indeed, they were inspected countless times.
b. The Company (the 501(c)(19)) served to help the community in need.
c. The Company (the For Profits) ran a business that provided a product of value to customers. As we will discuss below, there was no misleading advertisement of any percentage or portion going to people.
d. The Company Management Group, Inc. (the For Profit Corporation) served as the business entity to manage the Affiliates.
e. The Company Affiliates and The Company Management paid federal and state taxes – just like any other corporation.
f. As we will discuss below, the percentage going to the people and those in need was actually not low (as the affiant falsely suggests). These were for-profit businesses, that had expenses. These were not charities that collected free money.
g. The customers received a substantial amount of prizes.
h. Many costs and expenses were involved in the business, as readily acknowledged by Capt. G. in his Master Affidavit. The software company (IIT) was paid for the creation and maintenance of their software. Contractors who ran the day-to-day operation of the cafes were paid for their work, as were their employees, and, of course, they had to pay rent, utilities, maintenance, equipment purchases, insurance, and the myriad other expenses of most businesses.
i. After all those expenses, the Company netted only 10% of the large number (gross receipts) was asserted in the Affidavit. From that 10%, legal and professional fees were paid, employees were paid, other expenses were paid, and taxes were paid, with the remainder being available to help the people and others in need.
No Representation Business Were Collecting Donations
12. It is equally important to note factors about the Company that did not occur, including the following:
a. The Company did not conduct its activities hidden in some back room or down some dark alley. The Company conducted their activities in clear view of law enforcement, government, and other regulatory agencies. Indeed, county officials and/or law enforcement were notified before a new location was ever opened in the respective county.
b. The Company was not a 501(c)(3) charity. Thus, the Company did not stand on the corner ringing a bell, or hold a bake sale, asking citizens to freely donate their hard earned money, pocket a portion, and then just give a small percentage to those in need. Rather, the Company sold a product – internet time – lawfully promoted by a free sweepstakes.
c. At no time did the Company ever solicit or accept a donation intended for people, and then put the money in their own pocket. Indeed, as noted, the Company did not solicit or accept any donations from June to March. Not one dime. The entire time, they sold a product.
d. The Company never held itself out to be a 501(c)(3) charity – looking for donations. This is verified in many ways, including the Official Entry Form. Exhibit E. As can be seen, the customer signs that form, acknowledging they know they are purchasing Internet time. It does not say the customer is making a donation. There is never any reference to making a donation.
501(c)(19) – Not 501(c)(3) Corporations
13. As noted, the Company (the non-profit) was not a 501(c)(3) corporation. Rather, as noted above, it is a 501(c)(19) corporation. Moreover, it was set up that way, years earlier, and for the last six years, the organizations have had top notch tax advice by competent law firms.
Signage / Contracts
14. The Company’s facilities had (1) store signs, (2) Official Entry Forms (Exhibit E), (3) stickers on the monitors (Exhibit G), and (4) disclaimers on the actual monitors – when the customer sat down to use the computer. All of that prominent and thorough signage informed the customers they were purchasing internet time – and they were not gambling. Consistent with State requirements, the stickers on the monitors stated that the “video displays are for amusement and entertainment only. The video displays do not determine the results of your sweepstakes entries.” Exhibit G. None of that signage said the customer was making a charitable donation.
15. Importantly, the Official Entry Form (Ex. E) was actually in the form of a contract, which the customer had to sign. In that binding contract, the customer had to agree to the following terms:
a. Purchasing prepaid internet time;
b. No purchase necessary;
c. Not gambling;
d. Cannot purchase sweepstakes entries;
e. At least 18 YO; and
f. Understand entries are selected from a fixed pool of total entries at the time the internet access time is purchased.
16. Captain G. acknowledged that this contract with the customer had to be signed by the customer before they could actually purchase internet time, GTr. at 498:3-6, and that the contract set forth the terms of the agreement that sold them internet time – that is, the product (and not sweepstakes entries). GTr. at 500:7-9. Captain G. acknowledged that this was, in essence, a contract between the store and the customer, as did S. Thus, the store had to keep up its end of the bargain and the customer had to abide by the terms of this agreement. GTr. at 502:11-18.
17. It cannot be gainsaid this contract was for the purchase of internet time – not a charitable donation, and the characterization to the contrary in the M. Affidavit is false and recklessly disregards the truth.
18. Specifically, and to demonstrate the false information set forth in the Affiliates affidavit, and to demonstrate its reckless disregard for the truth, the following facts are relevant:
a. No misrepresentations were being made.
b. No one was being defrauded.
c. No charitable contributions were solicited.
Actual Contribution Percentage
19. The figure bantered about is that the Company only donated 2% of their earnings to veterans. That is not correct.
20. No competent person (and certainly not trained investigators) could possibly suggest that the Company (the 501(c)(19), non-profit) could have donated 90% of the gross receipts coming into the Affiliates – and simply ignore all the business expenses of the Affiliates and the management company.
21. Moreover, even if you assume the 2% number quoted by the State to be correct, the true number would be 20% – not 2%. This is grade school arithmetic. If you take the amount contributed, and apply it to 100% of the gross receipts, and it yields 2%, then that same amount, when applied to the 10% that made its way to the management and non-profit arms of the organization, becomes 20% – a substantial figure, especially when compared to other national organizations (as discussed below). That 20% is what was left after paying the salaries of the managers of these management and non-profit organizations.
National Charities – 50 Worst
22. Those of us unfamiliar with the world of charities, and, in particular, organizations involved in collecting funds for charities, likely find the incredibly modest percentages that make it to our favorite charities somewhat shocking.
23. However, in the words of Commissioner B., “Do you and I and most people think it should have been more? Probably, but the law is the law.” Exhibit H. The Affiants are required to know this law. Their failure to do so demonstrates reckless disregard for the truth.
24. Commissioner B. explained, “… there is no requirement under state law that an organization give a specific amount to charity.” Id.
25. It would likely shock most persons to see just how poorly many of the national organizations do when it comes to actually getting the funds collected to the charities for whom they claim to be collecting.
26. Attached hereto as Exhibit J is an article from the Tampa Bay Times, entitled America’s Worst Charities, listing the 50 worst charities. As can be seen, even the Company, with their unique business model, doubles the funds going to veterans, as compared to any of these 50 charities.
27. Why are not all of these organizations being prosecuted? The answer is a simple, legal one – there is no minimum requirement – as confirmed by Commissioner B. Recently, the Florida Times Union published an article, quoting U.S. Supreme Court case law (from 1980 – some 33 years ago), that you cannot restrict a charity’s ability to solicit donations, by setting a minimum amount going to the charity. Exhibit I. If a newspaper can correctly recite the law, the failure of the Affiant to do so constitutes a reckless disregard for the truth. The Affiants had multiple sources for this law, including the newspapers, Google, and, of course, the premier agency in the State of Florida for authority on such matters – the Department of Agriculture and Consumer Services.
28. Respectfully, in light of this clear law, the Affiants could not have fairly or properly asserted a fraud theory to support the seizures requested.
Corporations – All set up by Attorneys and/or Tax Attorneys
29. As noted, the clients were simply following the legal advice of Mr. M., and other attorneys, including tax attorneys. They cannot properly be accused of fraud when they have done so.
Charity Fraud Theory – Barred as a Matter of Law
30. As noted above, United States Supreme Court law prohibits restricting a charity’s ability to solicit donations, and thus has held that no minimum contribution amount can be set.
31. As also noted above, Commissioner B., whose agency is the premier state agency regulating charities, confirmed there is no minimum requirement for contributions to charities. That is true, a fortiori, with regard to businesses that run an actual business – selling a product – as distinguished from organizations that simply seek donations. Moreover, as noted, the Department of Agriculture investigated the charity rules, as applied to the Company, and cleared them. Exhibit D. As also noted above, that should end the inquiry.
32. Of course, as discussed in Part G below, the safe harbor of the Game Promotion Statute (to which we are most certainly entitled) defeats any “charity fraud” theory. The Affiants, in reckless disregard of the truth, failed to inform the Court of the entitlement of the Company to that safe harbor from any false gambling or lottery theories.
33. In addition, Capt. Gibson’s sworn testimony pretermits any charity fraud theory.
As the Court is aware, the State has not charged such a theory, since neither the facts nor the law support any such claim. Gibson confirmed there is no minimum requirement as to the amount that must be sent to a charity, stating as follows:
23 Q And is it your belief that if a company is
24 fundraising for an organization, that every dollar
25 collected has to go to the charitable organization?

1 A No.
2 Q What percentage is required by law?
3 A I don’t believe there is a percentage.
19 Q If it turned out, and just assume for
20 argument’s sake that only two percent of the money
21 that was earned by the Company and the affiliates went to a
22 charitable purpose, is that a law violation?
23 A Not to my knowledge.

GTr. at 218:23-25 – 219:1-3; 19-24 (emphasis added).

34. This Honorable Court may be aware a class action case was filed, in Jacksonville, in federal court, adopting the affidavit filed in Oklahoma to search the IIT facilities (which, in turn, parallels the M. Affidavit). That affidavit incorporated both the gambling and charity fraud theories, and thus the adoption by the class plaintiffs of that theory made its way into the class action complaint.
35. Attached as Exhibit K is J. D.’s Motion to Dismiss that class action complaint. So compelling is that motion, the federal court has stayed all discovery, pending a ruling on our motion. Exhibit L.
36. At least two important legal conclusions are derived from our class action motion to dismiss: (1) no cause of action for fraud can arise for persons voluntarily “gambling” at our facilities, and (2) the safe harbor of the Game Promotion Statute immunizes us from any consumer fraud cause of action.
37. The safe harbor analysis can be found in Part VII (pp. 21-23) of our motion to dismiss the class action. Exhibit K. In particular, we invite the Court’s attention to the following passage:
3B TV Inc. v. State of Florida, 794 So.2d 744, 747 (Fla. 1st DCA 2001), confirms that, “By its own terms, DUTPA does not apply to an ‘act or practice required or specifically permitted by federal or state law.’ § 501.2112(1) Fla. Stat.” Since a “valid game promotion under section 849.094(2), Florida Statutes” was just such an “act or practice required or specifically permitted by federal or state law,” where “appellant’s activities were a lawful game promotion, appellant did not commit an unfair act or practice under DUTPA.” Id at 748.

Exhibit K at 23.

38. As we have pointed out, the Company has a “valid game promotion” business model – as confirmed by the very agency responsible for approving such game promotions – the Department of Agriculture and Consumer Services. No fraud allegation can lie against the Company and their game promotion business model.
39. Thus, for all these compelling factual and legal reasons, no charity fraud cause claim can lie, and any assertion of probable cause to the contrary was made with reckless disregard of the truth.
40. In short, this M. Affidavit fails to establish probable cause.

G. Game Promotion – Safe Harbor

1. The State concedes, as they must, that the game promotion statute, F.S. §849.094, provides a “safe harbor” with regard to the “sale of consumer products or services, in which the elements of chance and prize are present.” Specifically, Captain G., in his Master Affidavit at page 185, acknowledges the existence of that safe harbor, which prohibits any prosecution for “gambling” or “lottery” – if the business is engaged in such a game promotion.
2. Incredibly, Captain G. summarily dismisses what he and the State acknowledge to be that safe harbor – by embracing the now-rejected and abandoned S. theory that the Company’s equipment was a “slot machine.” Specifically, Captain G. asserts, at page 185, that the Company is not entitled to that safe harbor, and that safe harbor does not “provide a defense to conducting a game promotion or drawing by chance by way of an illegal slot machine.”
3. In other words, the only means by which Captain G. sought to reject the well-established game promotion exception to gambling (to which the Company was and is entitled to), which would have entirely defeated his probable cause, was the false and now-debunked S. claim that this statutory safe harbor did not exist because the Company was operating slot machines.
4. With the State’s stipulation that none of the S. information can properly be utilized from the Master Affidavit, it follows that G.’s unfounded effort to negate this absolute statutory exemption – which defeats every aspect of his gambling/lottery probable cause allegation – must likewise now be jettisoned. Hence, with the removal of that allegation that the safe harbor did not apply (because the equipment constituted a slot machine), it is clear that the safe harbor does apply, thereby statutorily defeating any claim of probable cause in the G. Affidavit.
5. In addition to G. acknowledging the entitlement of the Company to the safe harbor (but for his erroneous allegation that we were operating a “slot machine”), as we have briefed the Court already, it cannot be denied that the Company is entitled to the statutory safe harbor.
6. Incredibly, at no time during his three year investigation did Captain G. ever seek to ask the Department of Agriculture and Consumer Services (the sole regulating body on game promotions) if the Company’s business model was in fact operating as a lawful game promotion. GTr. 381:11-16. If he would have contacted the Department of Agriculture, he would have learned that the Company was investigated and cleared of all wrongdoing, was not operating slot machines, and had a lawful game promotion. His failure to contact the premier agency in the State of Florida over the very game promotion statute he addresses constitutes a Franks violation.
7. Multiple other examples of the bad faith of Capt. G. in investigating the entitlement of the Company to the safe harbor of the game promotion statute abound.
8. For example, not one but two Commissioners at the Department of Agriculture have approved the Company’s game promotion business model – both C. B. and A. P. during their tenure. Moreover, the Department of Agriculture and Consumer Services, created a Game Promotion Training Program, a copy of which is attached hereto as Exhibit B, which specifically documents the entitlement of the Company to game promotion treatment. Indeed, the Company’s business model is essentially the “poster boy” for this training program.
9. Also, the Florida Senate’s Interim Report No. 2009-123 PowerPoint, entitled Review of Electronic Gaming Exceptions for Adult Arcades and Game Promotions, attached hereto as Exhibit C, specifically confirms that the internet cafe’s business model is an exception to “lottery prohibition.” See slide 3. Slide 15 notes that electronic game promotions are “in connection with the sale of consumer products or services,” and slide 20 specifically referenced the purchase of internet time – as a consumer product. Slide 20 states that, after customers purchase internet time, the “customer then goes to machine to deposit money that is credited for internet time,” and then the “customer is also given entries into drawing that is revealed at computer.” Lastly, on slide 30, the Senate’s Interim Report states that the only way for law enforcement to verify that it is a lawful game promotion sweepstakes is to “hire expert to examine source code.”
10. On August 5, Florida Department of Agriculture and Consumer Services Commissioner A. P. made a public statement to the News, an independent news agency covering issues and stories affecting business in Florida. In the statement, he first confirmed that, as head of the Department of Agriculture and Consumer Services, he is responsible for the regulation of promotional sweepstakes, and that his “shop,” the Division of Consumer Services (“DCS”), is the state regulatory body responsible for overseeing the sweepstakes conducted by internet cafes. This includes the McDonalds Monopoly game, and internet cafe sweepstakes.
11. While Commissioner P. says (of the state of the law at the time) there is ambiguity – that the law concerning internet cafes is unclear, that the legislature “needs to step in,” that “clarification is needed,” and there is “[n]o question in my mind there is an ambiguity in the law itself” – he specifically confirms that the Monopoly game and the internet cafe sweepstakes are legal. He stated that what separates these two activities from illegal gambling is the existence of “predetermined winners” in those sweepstakes, unlike traditional gambling, including dice games and “slots.” He says if the “software code” is such that there are a “predetermined number of winners,” then the sweepstakes operators are “technically operating legally as the statute is currently written.” It is undisputed that the Allied business model utilized a software code which established a predetermined number of winners.
12. All of this public record information and records further demonstrates the many sources available to the Affiant and the State to confirm the invalidity of their misguided theory of prosecution, and the probable cause failures of the Affidavits. While Capt. G. was creating his Master Affidavit, using slides, pictures of internet cafes, and pictures of computer monitors with games, the experts in this field (including the Department of Agriculture and Consumer Services, who enforces these very laws, and the State Senate, who writes these very laws) – had their own PowerPoint reports – which G. could easily have accessed and read, and educated himself to his mistaken interpretation (motivated by the bias of his office) and reckless disregard for the truth.

H. Memorandum of Law

General Principles When Reviewing Affidavits for Search or Arrest Warrants
1. It is axiomatic that the magistrate must rely on the four corners of the affidavit, and thus the affidavit, in and of itself, must demonstrate probable cause, and cannot be supplemented by any oral testimony. Article I, Section 12, Florida Constitution; Orr v. State, 382 So. 2d 860 (Fla. 1st DCA 1980); Pagan v. State, 830 So. 2d 792, 806 (Fla. 2002). When reviewing the sufficiency of a warrant, neither the issuing court nor a reviewing court may look for probable cause outside the four corners of the affidavit. Id.
2. A reviewing court must examine the facts of an affidavit – not the officer’s opinion. “Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others.” United States v. Leon, 468 U.S. 897, 915 (1984), quoting Illinois v. Gates, 464 U.S. 213, 239 (1983).
Elements of Crimes – Probable Cause
3. A search warrant may not issue unless there are grounds the property sought has been used “As a means to commit any crime,” or “When any property constitutes evidence relevant to proving that a felony has been committed.” F.S. §933.02(2) and (3) (emphasis added).
4. The warrant is issued upon the establishment of “probable cause.” F.S. §933.07.
5. An affidavit for a search warrant (or arrest warrant), thus must establish “that there was a commission of the offense charged.” Dunnavant v. State, 46 So. 2d 871, 874-75 (Fla. 1950). Later, in reliance on Dunnavant, the Supreme Court noted the probable cause requirement for a search warrant affidavit necessitated proof the “person is guilty of the offense charged” and that “a crime has been committed.” Schmitt v. State, 590 So. 2d 404, 409 (Fla. 1991).
6. The Franks standard also requires the Court to excise any “facts” submitted in bad faith, or in reckless disregard of the truth, and then examine the balance of the affidavit. Here, however, although that is certainly the case, the Court’s analysis is much simpler, given the State’s acknowledgment the S. information must be excised. Thus, the Court need only identify that information, and then determine if the remaining “facts” establish probable cause.
7. Of course, it is horn book law that proof a “person is guilty of the offense charged” must be based on the elements of that offense. No other yardstick to define crimes exists.
8. So then, as conceded by Captain G., the Search Affidavits were required to establish probable cause of the existing of gambling. With the deletion of the S. information, no such probable cause exists. In addition, even if it did, the safe harbor of the game promotion statute would preclude any probable cause for gambling, as conceded by Capt. G. at page 185 of his Master Affidavit.
9. Hence, the Search Warrants must be suppressed.

WHEREFORE, it is respectfully requested that this motion be granted, the evidence suppressed, and all property and evidence returned by the State.