(dissenting): I respectfully dissent from the holding of the majority of the court that the search conducted in this case was a reasonable search within the meaning of the Fourth Amendment to the United States Constitution and Section 15 of the Bill of Rights of the Kansas Constitution. I have no quarrel with the general principles of law discussed by Mr. Justice Kaul in the majority opinion. I disagree with the application of those *723principles to the particular facts and circumstances presented in the record in this case.
What is a reasonable search is not to be determined by any fixed formula. Neither the United States Constitution nor the Kansas Constitution defines what are “reasonable searches.” The recurring questions of the reasonableness of searches must find resolution in the facts and circumstances of each case. (United States v. Rabinowitz, 339 U. S. 56, 94 L. Ed. 653, 70 S. Ct. 430; State v. Wood, 197 Kan. 241, 416 P. 2d 729; State v. Caldrone, 205 Kan. 828, 473 P. 2d 66.)
The decisions of the federal courts in the area of search and seizure draw thin lines of distinction which are difficult to comprehend. We are, of course, vitally concerned with the decisions of the United States Supreme Court in this area. Rut we have an equal obligation to enforce the constitutional guaranties of the Kansas Constitution in cases which arise within our own territorial borders. I recognize the great public interest in the regulation of the liquor traffic and the necessity for comprehensive inspection procedures as a part of our statutory scheme of regulation. It is also clear that the regulation of private clubs which dispense liquor justifies frequent and irregular inspections as authorized by K. S. A. 1971 Supp. 41-2613. The legislature in providing to police officers the right to inspect private clubs has recognized the obvious fact that liquor, gambling and prostitution are frequent companions. Hence it is clear to me that the constitutional protections against unreasonable searches do not prohibit the right of immediate entry and inspection at any time of premises licensed as a private club to sell liquor as provided by K. S. A. 1971 Supp. 41-2613.
The constitutional protection against unreasonable searches applies not only to the homes of our citizens but is also extended to apartments, hotel rooms, factories and business establishments. It likewise is extended to private clubs such as social, fraternal and veterans organizations where many of our citizens spend portions of their recreational hours.
The law is also clear that in determining whether or not a search is reasonable courts are obligated to consider not only the question whether or not a search was authorized at all but also the manner in which the search was conducted. A search otherwise legal except for the unreasonable way in which it is conducted, *724as for instance by the use of excessive and unnecessary force or brutality, is unreasonable and therefore a violation of both the state and federal constitutions. (State v. Collins, 150 Conn. 488, 191 A. 2d 253; 47 Am. Jur., Searches and Seizures, § 41.) Whether the conduct of the officer making the search is reasonable or unreasonable must be determined from all of the circumstances of the case. No definite line can be drawn. The general principle is that while officers should search thoroughly, they should also act in a reasonable way and not conduct the search in a manner which is drastic, intrusive, and unduly disturbing to the primary objects of the club. (Manchester Press Club v. Commission, 89 N. H. 442, 200 A. 407, 116 A. L. R. 1093.) Even in the execution of a valid search warrant only necessary and reasonable force may be used to effect an entry into a building or property. (K. S. A. 1971 Supp. 22-2508.)
In his dissenting opinion in Brinegar v. United States, 338 U. S. 160, 93 L. Ed. 1879, 69 S. Ct. 1302, Mr. Justice Jackson pointed out the dangers inherent in warrantless searches in the following language:
“We must remember that the extent of any privilege of search and seizure without warrant which we sustain, the officers interpret and apply themselves and will push to the limit. We must remember, too, that freedom from unreasonable search differs from some of the other rights of the Constitution in that there is no way in which the innocent citizen can invoke advance protection. For example, any effective interference with freedom of the press, or free speech, or religion, usually requires a course of suppressions against which the citizen can and often does go to the court and obtain an injunction. Other rights, such as that to an impartial jury or the aid of counsel, are within the supervisory power of the courts themselves. Such a right as just compensation for the taking of private property may be vindicated after the act in terms of money.
“But an illegal search and seizure usually is a single incident, perpetrated by surprise, conducted in haste, kept purposely beyond the court’s supervision and limited only by the judgment and moderation of officers whose own interests and records are often at stake in the search. There is no opportunity for injunction or appeal to disinterested intervention. The citizen’s choice is quietly to submit to whatever the officers undertake or to resist at risk of arrest or immediate violence.
“And we must remember that the authority which we concede to' conduct searches and seizures without warrant may be exercised by the most unfit and ruthless officers as well as by the fit and responsible, and resorted to in case of petty misdemeanors as well as in the case of the gravest felonies.” (p. 182.)
I would hold the search conducted in the case at bar unreasonable for the reason that the right of police officers to make a reason*725able inspection under a licensing statute does not justify police overkill.
The motion to suppress in this case was heard in a full evidentiary hearing provided by one of the able trial judges of Kansas. His findings of fact are supported in the record by substantial competent evidence and are as follows:
1. The search had probably been planned for more than one day.
2. It was one of eight Barton County clubs scheduled for and subjected to simultaneous searching.
3. Eight of the total group of thirty or more law officers at one time or another took part in searching this club.
4. It was under the specific direction and instruction of the attorney general.
5. None of the eight law officers were instructed that it was an inspection authorized by the Alcoholic Beverage Control Act.
6. None of the eight law officers believed that they were operating under the authority of that act.
7. The officers were generally not knowledgeable about inspections made under authority of that act.
8. It was not an “inspection” as that word is used in the Alcoholic Beverage Control Act.
9. All eight of the officers considered that they were just to conduct a gambling raid.
10. The officers conducted a gambling raid, nothing more or less.
11. The officers expected to find gambling equipment.
12. No search warrant was obtained.
13. No attempt was made to obtain a search warrant.
14. Judicial personnel were readily available to issue a search warrant.
15. The obtaining of a search warrant would have worked no substantial inconvenience to the officers.
16. The officers had adequate time to have obtained a search warrant.
17. Entry was made to conduct a gambling raid.
18. Entry was made in the middle of the night.
19. The simultaneous entry by four law officers constituted a show of force.
20. Entry was made with law officers bearing sidearms.
21. Entry was not consented to by either the doorman or the defendant.
22. The entry was coercive.
23. Lack of resistance by the doorman and the defendant constituted only peaceful submission to a law force with apparent power to do as it willed.
24. This club was subject to the restrictions imposed by the Alcoholic Beverage Control Act.
25. This club possessed gambling equipment which was seized.
At the time of the oral argument the attorney general admitted with commendable candor that a search warrant was not obtained for the reason that he had no probable cause or evidence sufficient to obtain the same from a magistrate.
*726I would have no complaint if a police officer had gone to the American Legion Club and exercised his right of entry to make a reasonable inspection in a dignified, firm but unobstrusive manner. I would have no objection if, while there, he had exercised his right to inspect closed storage lockers including the area where the slot machines were located. I do object to the subjection of the members of the club and the club manager to a showy, obtrusive and disruptive raid which went far beyond the bounds of a reasonable inspection as authorized by the Alcoholic Beverage Control Act. We have many statutes and city ordinances in Kansas which authorize reasonable inspections of business establishments which are subject to licensing regulations. For example, every place of business licensed to- sell cereal malt beverages is required to be open to the police during business hours. (K. S. A. 1971 Supp. 41-2704.) Every restaurant licensed to sell food may be inspected at any or all reasonable times. (K. S. A. 36-304.) Likewise every hotel and apartment house is subject to being inspected with a right of entry and access thereto at any reasonable time given to inspectors of the state hotel and restaurant board. (K. S. A. 36-108.) It should also be noted that all books and records of persons engaged in the business of selling property and subject to the retailers’ sales tax must be available for and subject to inspection at all times during the business time of the day by the Director of Revenue or his agents or employees. (K. S. A. 79-3609.)
In all cases involving a search of private premises we are faced with the problem of drawing a reasonable line between the individual’s right to privacy and the public’s interest in the prevention of crime and the apprehension of criminals. Were we to hold that in every instance in which a license may lawfully be required its granting may at the same time be conditional upon a waiver of constitutional rights against unreasonable search, what area could conceivably remain immune and beyond legislative reach, upon which the constitutional guaranty might still operate? It might be said that no legislature would go so far as to dry up the entire stream of constitutional immunity. But it is not the genius of our system that the constitutional rights of persons shall depend for their efficacy upon legislative benevolence. Rather, the courts are charged with the solemn obligation of erecting around those rights, in adjudicated cases, a barrier against legislative and executive invasion. It is the responsibility of the courts to breathe the breath *727of life into constitutional rights, mandates, guaranties and limitations in the very face of contravening legislation or executive action. (People v. Lansing Municipal Judge, 327 Mich. 410, 42 N. W. 2d 120.)
From what has been said it seems clear to me that under the particular facts and circumstances of this case the pólice power was exercised in a manner going far beyond the reasonable inspection of a private club as contemplated by the legislature in K. S. A. 1971 Supp. 41-2613.
I would hold that the police raid conducted in the manner in which it was done here constituted an unreasonable search in violation of the constitutional protections provided by the United States Constitution and the Constitution of Kansas. I would affirm the decision of the trial court.
Fromme, J., joins in the foregoing dissent.