dissenting:
I dissent from the judgment reversing the order of dismissal. In my view, the record supports the conclusion of the district court, sitting as a juvenile court, that the conduct of Deputy Sheriff Dabdoub in inducing M.N. to engage in a series of criminal acts was so outrageous as to violate due process of law under article II, section 25 of the Colorado Constitution. Because I would affirm the judgment of dismissal on state constitutional grounds, I see no reason to consider the validity of the dismissal under federal due process standards.1
I.
Before addressing the propriety of the dismissal order, there is a preliminary matter which merits discussion. The majority states that the juvenile court’s order of dismissal was erroneous “to the extent that it relied on its conclusion that Dabdoub’s conduct constituted a criminal offense under section 19-3-119(3),” 8B C.R.S. (1986), at 1131-1132. That statute, as pertinent here, prohibits an adult from inducing, aiding, or encouraging a child to violate any state law. Although I fully agree with the principle that it is the prerogative of the district attorney, and not the court, to determine “whether justice requires that a particular individual should be charged with violating a criminal statute,” id. at 1131,1 cannot make the quantum leap.from that proposition to conclude that the juvenile court’s ruling somehow violated this principle.
The juvenile court neither charged the deputy sheriff with a criminal violation nor initiated a criminal prosecution against him. Rather, the court in its ruling simply noted that the evidence presented at the dismissal hearing established to the court’s satisfaction that Deputy Sheriff Dabdoub had induced M.N. to engage in criminal *1134conduct and had thereby violated section 19-3-119(3). A police officer’s conduct in inducing a juvenile to engage in violations of state law is certainly an appropriate factor for a court to consider when determining whether the governmental conduct was so outrageous as to amount to a violation of due process of law. See Part II, infra. With this preliminary matter aside, I turn to the propriety of the dismissal order.
II.
In United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 1642-43, 36 L.Ed.2d 366 (1973), the United States Supreme Court noted that there might be certain situations in which the conduct of a law enforcement officer is so outrageous that due process principles would bar the government from invoking the judicial process to obtain a conviction. See also Hampton v. United States, 425 U.S. 484, 491, 96 S.Ct. 1646, 1650, 48 L.Ed.2d 113 (1976) (plurality opinion) (Powell, J., concurring). The Supreme Court, however, has never articulated the factors which might establish a due process violation. Similarly, while this court on at least one occasion has recognized that outrageous conduct by a police officer might constitute a due process bar to a pending criminal prosecution, Bailey v. People, 630 P.2d 1062, 1068 (Colo.1981), we found no such violation under the facts of that case and did not discuss the particular factors that a court might properly consider in evaluating such a claim. The instant case, in my view, points up the need to delineate those factors if for no other reason than to prevent improper and unwarranted governmental solicitation of crime in the future.
In contrast to entrapment, which in Colorado is a statutory affirmative defense, § 18-1-709, 8B C.R.S. (1986), the defense of outrageous governmental conduct is constitutional in scope and originates in the principle that the constitutional guarantee of due process of law places limits on the exercise of governmental power in investigating possible criminal activity. If the governmental misconduct reaches a level of outrageousness, then due process of law serves to bar the prosecution of the accused independently of whether the affirmative defense of entrapment might also be applicable if the case were to proceed to trial. This distinction between outrageous governmental conduct and entrapment has been widely recognized by both federal and state courts, see, e.g., United States v. Russell, 411 U.S. at 431-32, 93 S.Ct. at 1642-43; United States v. Cantwell, 806 F.2d 1463, 1469 (10th Cir.1986); United States v. Brown, 635 F.2d 1207, 1212 (6th Cir.1980); United States v. Batres-Santolino, 521 F.Supp. 744, 750 (N.D.Cal.1981); People v. Isaacson, 44 N.Y.2d 511, 520, 378 N.E.2d 78, 82-83, 406 N.Y.S.2d 714, 719 (1978). State v. Hohensee, 650 S.W.2d 268, 270-72 (Mo.App.1982), and was expressly noted by this court in its prior opinion in Bailey v. People, 630 P.2d at 1068. Thus, while some of the factors appropriate to the entrapment defense might well be relevant in resolving a claim of outrageous governmental conduct, the two defenses are legally distinct.
Because due process is a flexible standard, there is obviously no per se rule that will provide an answer to all due process claims of outrageous governmental conduct. While the total circumstances of the case must be considered, there are certain factors on which courts have focused in resolving such claims. Although these cases were decided in the context of a criminal prosecution against an adult offender, there is no reason why a different analysis should be employed in the case of a delinquency proceeding involving an act which would constitute a criminal offense if committed by an adult.
One factor, of particular significance here, is the legal status of the person against whom the governmental activity is directed. The Colorado Children’s Code defines a “child” as “a person under eighteen years of age.” § 19-1-103(4), 8B C.R.S. (1987 Supp.). Because children often lack the knowledge, experience, judgment, and control attributable to adults, the Colorado Children’s Code generally vests exclusive jurisdiction in the juvenile court over a child who has committed an act which if *1135committed by an adult would be a felony. Id. § 19-2-102(1).2 While many of the basic protections associated with a criminal proceeding are applicable to a delinquency proceeding in order to ensure fairness to the child, a delinquency proceeding is classified as civil in character “precisely ‘to protect the young from the stigma frequently associated with criminal proceedings.’ ” S.G.W. v. People, 752 P.2d 86, 88 (Colo.1988) (quoting S.A.S. v. District Court, 623 P.2d 58, 60 (Colo.1981)). Because the welfare of the child assumes such a high priority in the eyes of the law, the General Assembly has provided that any adult who induces, aids, or encourages a child to violate a federal or state law, or municipal or county ordinance, or court order, commits the crime of contributing to the delinquency of a minor, a class 4 felony. § 18-6-701, 8B C.R.S. (1987 Supp.) (formerly codified at § 19-3-119(3), 8B C.R.S. (1981)). Police conduct that passes constitutional muster when directed against an adult, therefore, might well be constitutionally impermissible when employed against a juvenile.
The type of criminal conduct under inves-. tigation and the various investigative techniques employed to uncover suspected criminal activity certainly are appropriate matters to consider when determining the permissible scope of governmental investigative activity. See United States v. Cantwell, 806 F.2d at 1468-69; United States v. Brown, 635 F.2d at 1213; United States v. Batres-Santolino, 521 F.Supp. at 751. Many crimes, especially the so-called victimless offenses, could not otherwise be detected unless the government is permitted to engage in undercover activity and some degree of necessary deception in affording a person ready and willing to commit a crime the opportunity to do so. When, however, the government’s involvement in criminal activities goes beyond the mere offering of such an opportunity, and when the governmental conduct is calculated to induce or instigate the commission of a criminal act by one not already engaged in criminal activity or ready or willing to become so engaged, the government in effect is engaging in the manufacture of crime and the permissible line of lawful activity has been crossed. See Russell, 411 U.S. at 445, 93 S.Ct. at 1649 (Stewart, J., dissenting). In considering whether alleged governmental misconduct reached to the level of a due process violation, the New York Court of Appeals in People v. Isaacson, 44 N.Y.2d 511, 378 N.E.2d 78, 406 N.Y.S.2d 714, listed the following factors as relevant to its determination that defendant’s prosecution was barred under state due process standards: whether the law enforcement officer initiated criminal behavior which would not otherwise likely have occurred, or merely became involved in ongoing criminal activity which preexisted the officer’s involvement; whether the accused’s reluctance to engage in criminal conduct was overcome by the officer’s appeal to friendship or sympathy, the officer’s promise or representation of exorbitant gain, or the officer’s persistent solicitation in an effort to overcome the accused’s unwillingness to engage in criminal activity; whether the record demonstrates that the officer’s conduct was motivated by nothing more than a desire to obtain a conviction without regard to any consideration of preventing further crime or protecting the public; and whether the officer engaged in criminal or other improper conduct antithetical to the legitimate objectives of law enforcement. 44 N.Y.2d at 521, 378 N.E.2d at 83, 406 N.Y.S.2d at 719; see also State v. Hohensee, 650 S.W.2d 268 (governmental action in sponsoring burglary was outrageous conduct in violation of due process and burglary prosecution was accordingly barred).
The existence of a predisposition on the part of the accused to commit the crime, while fatal to a claim of entrapment under United States v. Russell, 411 U.S. at 432-36, 93 S.Ct. at 1643-45, does not serve to eradicate a due process claim predicated on *1136outrageous governmental conduct. There is both federal and state authority recognizing the proposition that “governmental over involvement, if ‘outrageous,’ will bar prosecution of a defendant on the ground of deprivation of due process even if he is ‘predisposed.’ ” State v. Hohensee, 650 S.W.2d at 271; see also United States v. Bagnariol, 665 F.2d 877 (9th Cir.1981), cert. denied, 456 U.S. 962, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982); United States v. Fekri, 650 F.2d 1044 (9th Cir.1981); United States v. Twigg, 588 F.2d 373 (3d Cir.1978); Batres-Santolino, 521 F.Supp. 744; Isaacson, 44 N.Y.2d 511, 378 N.E.2d 78, 406 N.Y.S.2d 714.
It bears emphasis that no single factor is determinative of the validity of a due process claim based on outrageous governmental conduct. Each factor must be viewed in combination with others and in light of the total circumstances of the case. As long as the evidence shows that the government’s conduct reached a demonstrable level of outrageousness, and as long as the trial court fairly considered the totality of circumstances in so concluding, the sanction of dismissal should not be overturned on appeal merely because an appellate court might have decided the historical facts of the case differently. See, e.g., Maine v. Taylor, 477 U.S. 131, 145, 106 S.Ct. 2440, 2451, 91 L.Ed.2d 110 (1986).
III.
In light of the above considerations, I conclude that the record provides adequate support for the juvenile court’s ruling that the governmental misconduct in this case reached a demonstrable level of out-rageousness sufficient to support an order of dismissal pursuant to the Due Process Clause of the Colorado Constitution.
On September 17, 1986, when Deputy Sheriff Dabdoub first contacted M.N. about purchasing marijuana, M.N. was 16 years old and enrolled as a sophomore in high school. Because of difficulties with reading and spelling, M.N. had been enrolled in special education classes since the fifth grade. Deputy Sheriff Dabdoub was 22 years old, was posing as a senior student at the high school under an assumed name, and made contact with M.N. in one of M.N.’s classes. Although M.N. testified that he had purchased and used marijuana on several prior occasions, Dabdoub had never discussed marijuana or other illegal activities with M.N. before September 17, 1986. Nothing in the record indicates that the officer had any reason to suspect that M.N. was presently involved in the trafficking of drugs or any other illegal activity.
Deputy Sheriff Dabdoub undoubtedly had the right to assume a false identity as a high school student in order to investigate illegal drug activity in the high school community. In the course of that investigation, Dabdoub was also justified in asking M.N. about possible sources of marijuana. Indeed, if the People had made some showing that the particular circumstances of the investigation warranted Dabdoub in giving $30 to M.N. to make a drug purchase on September 17, I would have little difficulty in finding such conduct constitutionally permissible as necessary to the officer’s mission of ferreting out illegal drug activity. The People, however, made no such showing. So far as the record shows, the officer might well have effectively carried out his investigation by asking M.N. about sources of marijuana and then purchasing the marijuana himself, rather than inducing M.N. to do so and giving M.N. some of the marijuana for M.N.’s own use. Moreover, the record leaves no dispute that the officer’s conduct in inducing M.N. to commit criminal acts did not stop at the September 17 purchase of marijuana.
Following the September 17 incident, Dabdoub engaged in a continuous course of conduct designed to induce, encourage, and actually assist M.N. in committing various criminal acts. On or about September 24, for example, Dabdoub telephoned M.N. at home and asked him to steal tires and rims from automobiles. Dabdoub then drove M.N. and another juvenile to a location preselected by Dabdoub to carry out the theft. During this episode, after M.N. and the other juvenile were unable to remove the tires and rims and expressed a desire to discontinue their efforts, the officer en*1137couraged them to try again and the juveniles did so and completed the theft.
Two days later, on September 26, Dab-doub once again approached M.N. and asked him for further help in purchasing marijuana. Although M.N. initially refused because he wanted to go home, the officer persisted in convincing M.N. to help him find some marijuana for purchase. The officer then drove M.N. to an apartment house, directed him to follow a man walking up to one of the apartments, gave M.N. $30 to make the purchase, and then gave M.N. some of the marijuana for his own use after the transaction was completed.
In summary, the record demonstrates that Deputy Sheriff Dabdoub initiated all contact with M.N. with respect to criminal activity, actively encouraged M.N. to engage in a series of illegal acts, assisted the juvenile in committing various criminal acts, gave M.N. illegal drugs for M.N.’s consumption, and on at least two occasions persuaded M.N. to engage in criminal conduct notwithstanding M.N.’s reluctance and unwillingness to do so. This degree of governmental overreaching tainted the deputy sheriff’s investigative activity with respect to M.N. from its inception.
One of the primary purposes of the Children’s Code is to divert children from criminal activity, not to encourage and aid them in lawlessness. Permitting a law enforcement officer to induce, encourage, and assist a sixteen year old high school student to engage in the continuous course of criminal conduct demonstrated by this record is hardly conducive to the attainment of this purpose. “It is the Government’s duty to prevent crime, not to promote it.” United States v. Russell, 411 U.S. at 449, 93 S.Ct. at 1651 (Stewart, J., dissenting). In my view, the record in this case adequately supports the juvenile court’s conclusion that Deputy Sheriff Dabdoub’s conduct was sufficiently outrageous to bar the state under the Due Process Clause of the Colorado Constitution from invoking the judicial process for the purpose of obtaining an adjudication in delinquency against M.N., who was subjected to the governmental misconduct.
I would accordingly affirm the judgment of dismissal.
I am authorized to say that Justice LOHR joins me in this dissent.
. In Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646,48 L.Ed.2d 113 (1976) (plurality opinion), a plurality of the United States Supreme Court referred to United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), as having ruled out the possibility that the defense of entrapment could ever be based upon governmental misconduct in which the predisposition of the defendant to commit the crime was established. Two justices concurred in Hampton, and three justices dissented. Justice Powell, joined by Justice Blackmun, concurred in the judgment but noted that he was “unwilling to join the plurality in concluding that, no matter what the circumstances, neither due process principles nor our supervisory power could support a bar to conviction in any case where the Government is able to prove predisposition.” Id. 425 U.S. at 495, 96 S.Ct. at 1653. Justice Brennan, joined by Justices Stewart and Marshall, dissented on the basis that the police conduct exceeded constitutionally permissible limits and also constituted entrapment as a matter of law. In light of the concurrence of two justices and the dissent of three justices to the plurality opinion in Hampton, a dismissal on federal due process grounds in the context of outrageous police conduct, notwithstanding the defendant’s predisposition to commit the offense, has not been rejected by the Supreme Court.
. In cases involving repeat juvenile offenders and class 1 felonies allegedly committed by juveniles fourteen years of age and older, the juvenile may be prosecuted as an adult in the district court. § 19-2-805, 8B C.R.S. (1987 Supp.). These exceptions to the juvenile court’s jurisdiction are not applicable here.