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State v. Childs3/7/2003
Reversed.
Mark W. Childs was convicted by a jury of one count of possession of methamphetamine and one count of misdemeanor possession of drug paraphernalia. The contraband was seized during an after-hours warrantless search of a licensed club that was conducted pursuant to K.S.A. 41-2613, a provision of the Club and Drinking Establishment Act, K.S.A. 41-2601 et seq. On appeal, Childs challenges the constitutionality of the statute, which makes the right of immediate entry and inspection a condition of licensure for premises where alcoholic liquor is sold. In the alternative, Childs contends that the officers gained entry by coercion, which invalidates the search. Childs also complains of the trial court's jury instructions. The case was transferred by the court from the Court of Appeals. See K.S.A. 20-3018(c).
On October 16, 2000, at approximately 2:30 a.m., four law enforcement officers sought entrance to a licensed private club called Snappers in McPherson, Kansas. The club was licensed to Myron Barrow, who owned the building and the equipment; Childs managed the club and owned the inventory.
Michael Eells, an enforcement agent for the Kansas Alcohol Beverage Control Division, and Officer Brian Weinbrenner of the McPherson police department went to the back door. Two other police officers went to the front door. The officers knocked and announced that they were police officers. After 45 seconds, Agent Eells shone his flashlight through the small window in the back door. After approximately another minute and a half, Childs came to the back door and opened it. Childs blocked the entrance with his body.
Officer Weinbrenner was uniformed, and Agent Eells was wearing a jacket with "Police" written across the front and back. Eells told Childs he was conducting a bar check and told Childs to move out of the way or he would arrest him for obstruction.
Childs moved aside so that Eells and Weinbrenner could enter the back door. Eells told Childs to open the front door for the other officers, and he did so.
Inside the bar, the officers found evidence of after-hours drinking and other violations of the Club and Drinking Establishment Act. Of the approximately dozen people in the bar, only one or two were members. The officers found cold, open bottles of beer and cold, foamy glasses a half hour after consumption was to have stopped.
One of the patrons testified that while she was in Snappers, Childs twice went in and out of a storeroom located at the end of the bar. When the officers came to the doors, Childs first tried to clear beer off of tables and then locked the storeroom door before going to the back door.
Eells told Childs to unlock the storeroom door, and Childs did so using a key that was in his pocket. On a file cabinet in the storeroom, Eells saw a small plastic bag of powder and a rolled $5 bill on an identification card. The identification card was lying face down. When Childs was three to four feet away from it and before it was turned over, Childs stated that the card was his. There was a powdery residue on the file cabinet, on the identification card, and on the rolled $5 bill. Testing showed that the small plastic bag contained methamphetamine.
The identification card is a hard plastic card printed on the face with the logo TVC Pro-Driver, Inc., a number, and the name of Mark W. Childs. Small print on the reverse of the card indicates that it is identification for a discount pharmacy network.
In the trial court, Childs challenged the legality of the search in a motion to suppress. After hearing evidence on the motion to suppress, the district judge denied the motion. A j
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