State v. Dailey
| Decision Date | 10 June 1972 |
| Docket Number | No. 46685,46685 |
| Citation | 498 P.2d 614,209 Kan. 707 |
| Parties | STATE of Kansas, Appellant, v. Donald E. DAILEY, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Under its inherent police power, the state, through the legislature, has power and authority to regulate all phases of the alcoholic liquor traffic.
2. The express purpose of K.S.A. 1971 Supp. 41-2601 providing for the licensing and regulations of clubs, commonly known as the Private Club Act, is to define and regulate places where alcoholic liquor might be lawfully consumed in this state under the terms and conditions imposed by the legislature.
3. In examining an act of the legislature in order to ascertain legislative intent, courts are required to consider and construe together all parts thereof in pari materia.
4. Established rules of this jurisdiction, governing judicial examination of any statute enacted by the legislature when it is challenged as unconstitutional, are stated and applied.
5. The provisions of K.S.A.1971 Supp. 41-2611 are construed to include as violations of the Private Club Act any violation on the club premises of any provision of the laws of the state or of the United States pertaining to the sale of intoxicating liquors or any crime involving a 'morals charge' which as defined in the act (K.S.A.1971 Supp. 41-2610) includes any charge involving gambling.
6. Under the provisions of the Private Club Act (K.S.A.1971 Supp. 41-2601 et seq.), in particular K.S.A.1971 Supp. 41-2613, the acceptance of a club license is conclusively deemed to be the consent of the licensee to immediate entry by any peace officer for the purpose of inspecting or searching the licensed premises for any activity which amounts to a violation of any of the provisions of the act.
7. In the regulation of licensed private clubs under the Private Club Act the power to inspect is a necessary incident of the power to regulate.
8. The term 'inspection' as used in the Private Club Act authorizes a search of the entire licensed premises for violations of the act.
9. Submission by a licensee to peace officers, exercising the right of immediate entry and inspection under the provisions of K.S.A.1971 Supp. 41-2613, of the Private Club Act, is the equivalent of voluntary consent by reason of the provision of the act that acceptance of a license shall conclusively be deemed to be the consent of the licensee to such immediate entry and inspection.
10. Evidence lawfully seized pursuant to an entry and inspection of licensed premises under the Private Club Act, if relevant and otherwise admissible, may be admitted into evidence in a prosecution under the Kansas Criminal Code.
Vern Miller, Atty. Gen., and Edward G. Collister, Jr., Asst. Atty. Gen., both argued the cause and were on brief for appellant.
Hugh D. Mauch, Great Bend, and Robert P. Keenan, of Keenan & Keenan, Great Bend, both argued the cause and were on brief for appellee.
This is an interlocutory appeal by the state pursuant to K.S.A.1971 Supp. 22-3603 from an order of the trial court suppressing certain evidence after an evidentiary hearing under the provisions of K.S.A.1971 Supp. 22-3216(2). The central issue involves the warrantless search of a private club and the seizure of gambling equipment, which is claimed by the state to have been reasonable and authorized by the provisions of K.S.A.1971 Supp. Chapter 41, Article 26 'Licensing and Regulation of Clubs'-hereafter referred to as the Private Club Act. Defendant, on the other hand, contends the act authorizes only an entry and search for liquor violations; and thus an entry and search for gambling equipment and the subsequent seizure thereof is unlawful.
The information filed in the district court by the attorney general on November 23, 1971, charged the defendant with two counts of gambling offenses. Count one alleged an offense of setting up gambling devices consisting of five slot machines in violation of K.S.A.1971 Supp. 21-4304(e), a class E felony under the provisions of the statute. Count two charged defendant with possession of the five slot machines in violation of K.S.A.1971 Supp. 21-4307, a class B misdemeanor.
The charges stem from a warrantless entry and search of the American Legion Club in Great Bend on the night of October 2, 1971. The defendant was manager of the club and on duty at the time. At his direction the door to the club was opened by a member, Willis Weigel, for the initial entrance of a party of four officers led by special agent Earl Maudlin of the Kansas Bureau of Investigation. It is undisputed that all of the officers involved fall within the category of 'peace officers' as the term is used in section 41-2613 of the Private Club Act.
In its memorandum decision the trial court described the entrance in this fashion:
'Their ringing at the locked door of entry was answered by a man authorized to see who was there. When he opened the door, the team leader did not ask permission to enter, but gave his name, said he was 'with the K.B.I. and this is a raid.' Without waiting for a response, he and his team members rushed into the club. The doorman said he was pushed aside, but this is disputed. The leader said they walked 'faster than we would walk down the street.' Witnesses to the 'walk' had varying descriptions from 'rushed on,' to 'real fast,' to 'wouldn't say running but letting no grass grow under their feet,' and to 'like a trot.'
After entering the club premises the officers proceeded rapidly through the front room, described as a cocktail lounge, and entered a second room, described as a game room. Defendant was asked to unlock several locked closet doors in the game room. Defendant had to go back to the cash register to secure keys. Defendant unlocked what he described as 'a roll-up curtain steel door' which revealed the subject slot machines which were then seized by the officers.
The provisions of the act critical to this appeal are found in K.S.A.1971 Supp. 41-2613 which reads:
(Emphasis supplied.)
Following the filing of the information the defendant filed a motion to suppress all of the evidence seized. The gist of the grounds for suppression were alleged as follows:
Defendant further alleged that the avowed purpose of the entry was to 'conduct a raid to find gambling equipment' which defendant claims is not contemplated by K.S.A.1971 Supp. 41-2613, authorizing warrantless entry of a private club. Defendant alleged that if the statute does in fact authorize peace officers to conduct such a raid and to search and seize without the benefit of a search warrant, the statute is unconstitutional being in conflict with the Fourteenth Amendment to the Constitution of the United States and Section 15 of the Bill of Rights to the Constitution of the State of Kansas.
The trial court heard the testimony of several peace officers, who were involved, and that of defendant and several club members, who were present, concerning the circumstances surrounding the entry of the peace officers and the ensuing search of the club premises.
Following the hearing, the trial court filed a comprehensive memorandum decision in which all of the evidence was reviewed and basic findings of fact relative to the search were set out and enumerated. In substance the trial court found eight officers at one time or another took part in the search of the club; that none of the officers had been instructed that the raid was a liquor violation inspection, nor were any of them knowledgeable concerning liquor violations of the Private Club Act; that all eight officers considered that they were just to conduct a gambling raid; that they expected to find gambling equipment; that no search warrant was obtained even though judicial personnel were readily available for the issuance of a search warrant; and that one could have been obtained without working any substantial inconvenience to the officers. The trial court further found that the simultaneous entry by four of the law officers constituted a show of force; that the lack of resistance by the club doorman and defendant constituted only peaceful submission to a law force and did not amount to permission to enter, and that 'The entry was coercive.'
The trial court concluded that the warrantless search was not authorized by...
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