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State v. Childs3/7/2003
body so that the officers were unable to enter until Childs moved aside in response to Agent Eells' threat to arrest him for refusing entry. In the circumstances of Dailey, there was no issue of refusing entry. In the present case, the key issue centers on Childs' yielding entry to the officers after initially refusing it.
K.S.A. 41-2613 identifies license revocation as the consequence for refusing to permit officers to enter and inspect. Similarly, the statute at issue in Colonnade Corp. v. United States, 397 U.S. 72, 74, 25 L. Ed. 2d 60, 90 S. Ct. 774 (1970), which applied to retail dealers in liquors, identified a $500 fine as the consequence for refusing to permit Treasury Department agents to enter and examine taxable articles. The question before the Supreme Court was "whether the imposition of a fine for refusal to permit entrywith the attendant consequences that violation of inspection laws may have in this closely regulated industryis under this statutory scheme the exclusive sanction, absent a warrant to break and enter." 397 U.S. at 74. The Supreme Court concluded that imposition of the fine was the exclusive sanction. The court stated:
"We deal here with the liquor industry long subject to close supervision and inspection. As respects that industry, and its various branches including retailers, Congress has broad authority to fashion standards of reasonableness for searches and seizures. Under the existing statutes, Congress selected a standard that does not include forcible entries without a warrant. It resolved the issue, not by authorizing forcible, warrantless entries, but by making it an offense for a licensee to refuse admission to the inspector." 397 U.S. at 77.
In formulating the statute at issue in the present case, the legislature resolved the issue of refusal by making refusal of entry grounds for revocation of the license for a club or drinking establishment. K.S.A. 41-2613. By so doing the legislature acknowledged the licensee's right to refuse to submit to entry and inspection by the law enforcement officers. However, such refusal triggers State action for license revocation. In Dailey, this court believed the legislature contemplated consent to immediate entry to encompass acquiescence with or submission to the entry by the licensees. We further stated that " onsent to enter, by the terms of 41-2613, is to be measured against a refusal." 209 Kan. at 718. We also noted that confronted with a refusal, the officers cannot use force to gain entry.
We, therefore, conclude that Childs' action constituted a refusal as contemplated by K.S.A. 41-2613. We interpret K.S.A. 41-2613 to provide the sanction of license revocation as the exclusive sanction for refusing entry to duly authorized officers. Agent Eells did not have authority to arrest Childs for obstruction of official duty and Eell's overcoming Childs' resistance by threatening to arrest him amounted to gaining entry on false pretenses. Thus, the officers' entry and inspection was not authorized under K.S.A. 41-2613 and constituted an unlawful entry and search. Under these circumstances, law enforcement officers may not compel entry by force except through the warrant process. The district court erred in failing to grant Childs' motion to suppress. In view of our ruling on this issue, we do not consider the constitutionality of K.S.A. 41-2613 or Childs' challenge to the instructions given by the trial court.
Reversed.
ABBOTT, J., not participating.
DAVID S. KNUDSON, J., assigned.
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