concurring in part and dissenting in part. I must respectfully dissent from the majority’s disposition of the search and seizure issue presented in the case sub judice because the majority ignores basic constitutional imperatives and the applicable decisional law enunciated by this court and the federal judiciary.
The majority correctly acknowledges that searches conducted without the authorization of a valid search warrant are not favored in the law. See G.M. Leasing Corp. v. United States (1977), 429 U.S. 338, 352-353; Camara v. Municipal Court (1967), 387 U.S. 523, 528-529; Stoner v. California (1964), 376 U.S. 483, 486; United *430States v. Jeffers (1951), 342 U.S. 48, 51-52; McDonald v. United States (1948), 335 U.S. 451, 454-455; and Agnello v. United States (1925), 269 U.S. 20, 32-33.
Nevertheless, the majority concludes that the “consent” to search in the present case obviated the necessity of a warrant. A review of the facts of this case in the context of prior state and federal decisions reveals that the majority is grossly mistaken.
While actual consent to search is a recognized exception to the warrant requirement, the government bears the burden of demonstrating that the consent was “freely and voluntarily given.” Bumper v. North Carolina (1968), 391 U.S. 543, 548. See, also, Gatlin v. United States (C.A.D.C. 1963), 326 F. 2d 666, 673; and Judd v. United States (C.A.D.C. 1951), 190 F. 2d 649, 650-651. Such burden is not met where consent is predicated upon mere acquiescence in a search. Bumper v. North Carolina, supra, at 548-549; Johnson v. United States (1948), 333 U.S. 10, 13; United States v. Rothman (C.A. 9, 1973), 492 F. 2d 1260, 1265; and United States v. Davis (C.A. 9, 1973), 482 F. 2d 893. Similarly, consent may not be implied merely because governmental entry was occasioned by the absence of physical obstructions. Thus, in Keiningham v. United States (C.A.D.C. 1960), 287 F. 2d 126,130, the federal appellate court observed: “We think that a person’s right to privacy in his home (and the limitation of authority to a searching police officer) is governed by something more than the fortuitous circumstance of an unlocked door * * See, also, State v. Akron Airport Post No. 8975 (1985), 19 Ohio St. 3d 49, 51, 19 OBR 42, 43, 482 N.E. 2d 606, 608; Smith v. United States (C.A.D.C. 1965), 353 F. 2d 877, 881 (Edgerton, J., concurring); Nueslein v. Dist. of Columbia (C.A.D.C. 1940), 115 F. 2d 690.
Similarly, where actual consent is expressed but elicited through artifice, it cannot be deemed to be unequivocal, specific and freely and intelligently given. Such is the clear holding of this court in State v. Pi Kappa Alpha Fraternity (1986), 23 Ohio St. 3d 141, 23 OBR 295, 491 N.E. 2d 1129. The syllabus thereto provides as follows:
“Pursuant to Section 14, Article I of the Ohio Constitution, and in the absence of any judicially recognized exception to the warrant requirement, government officers are not privileged to deceptively gain entry into the private home or office of another without a warrant, where such home or office is not a commercial center of criminal activity, and where the invitation to enter the private home or office was not extended by the occupant for the purpose of conducting illegal activities.”
Pi Kappa Alpha is wholly consistent with the view of the Fourth Amendment expressed by the United States Supreme Court that a warrant-less search may not be predicated upon consent procured by stealth or deception. Gouled v. United States (1921), 255 U.S. 298, 306. Moreover, federal decisions have invalidated such searches whether founded upon active deception, Gatewood v. United States (C.A.D.C. 1953), 209 F. 2d 789, or the “silent misrepresentation” of governmental officers, United States v. Tweel (C.A. 5, 1977), 550 F. 2d 297, 299.
In Fraternal Order of Eagles, No. 778 v. United States (C.A. 3, 1932), 57 F. 2d 93, revenue agents gained access to the premises of a fraternal organization through the use of fraudulent membership cards. The Third Circuit Court of Appeals, finding the subsequent search and seizure illegal, remarked:
“A search made as the result of an entry by physical force is not necessary in order to violate the Fourth Amend*431ment. That amendment was designed to protect the individual against the abuse of official authority. A search and seizure following an entry into the house or office of a person suspected of crime by means of fraud, stealth, social acquaintance, or under the guise of a business call are unreasonable and violate the Fourth Amendment.” Id. at 94.
The facts of Fraternal Order of Eagles, No. 778 are virtually identical to those presented at bar. In the case sub judice, the deputy sheriff and his companion entered the premises unimpeded and observed devices which they perceived to be gambling paraphernalia. The record is inconclusive as to the motivating factors behind the decision to permit entry to the lodge. Whether entry was procured through the presentation of membership credentials or obtained irrespective thereof is of no legal significance. Assuming arguendo that entry was accompanied by mere acquiescence on the part of the club members or that the deputy simply availed himself of an “open door,” such circumstances do not constitute a valid consent to search. It is therefore immaterial whether membership credentials would have been requested had they not been immediately presented to the person from whom entry was secured.
The majority has sought to distinguish the facts of this case from those presented in Pi Kappa Alpha. To do so, the majority has indulged in the assumption that the law enforcement officer was actively solicited to enter the club “for the purpose of observing and engaging in the club’s activities, including its gambling activities.” There is nothing in the record to support this assertion.8 If any reasonable assumption is to be drawn from the interchange between the officer and his companion and the doorkeeper, it is that admittance was granted as a result of the membership credentials presented at that time. Thus, the deception employed by the officer in the case sub judice is factually indistinguishable from that practiced by the liquor agent in Pi Kappa Alpha. The most puzzling aspect of the majority opinion is its reliance upon the language of Pi Kappa Alpha that the invitation to enter in that case was extended “for the purpose of exhibiting the fraternity house with the probable goal of recruiting a potential member.” Id. at 144, 23 OBR at 297, 491 N.E. 2d at 1132. In contrast, the present case involves an effort to accommodate a purported member in the enjoyment of benefits conferred by an existing membership — the ability to patronize a particular liquor establishment presumably possessing a D-4 permit. (See R.C. 4303.17.) This, indeed, is a most important distinction! In reality, the majority’s tortured logic produces nothing more than a distinction without a difference.
Apparently, the majority places great reliance upon the fact that the credentials were not presented by the officer but by his companion. Thus, it is the conclusion of the majority that the officer “entered the post as a guest of a member as could any member of the general public.” The crucial distinction, however, is that the officer was not a member of the general public but deceived the post into thinking that he was. This active deception to gain entry is what distinguishes this case from those in which an officer is solicited to *432engage in criminal activities — a distinction clearly recognized in Pi Kappa Alpha. Applying the logic of the majority, there is nothing preventing a law enforcement officer from applying for and receiving membership in any number of fraternal organizations since so can “any member of the general public.” Accordingly, admittance predicated upon presentation of such credentials would, in the majority’s view, be deemed consensual despite the clear holding of Fraternal Order of Eagles, No. 778, supra. It is less than comforting to know that, through such a process, the constitutional protections afforded by Section 14, Article I of the Ohio Constitution and the Fourth Amendment to the United States Constitution may be purchased clandestinely by the authorities.
One final aspect of this case is also worth noting. The majority correctly acknowledges that “ ‘a search conducted without a warrant issued upon probable cause is “per se” unreasonable. * * *’ ” The majority further concedes that the informant accompanying Detective Cook had been a reliable source of information in the past. Nevertheless, the state failed to seek a search warrant based upon the information provided. In support of the decision to forego any attempt to secure a search warrant, appellees indicate that a warrant under the circumstances at bar could not have been obtained. Appellees apparently are suggesting that the information regarding gambling activities on the subject premises provided by the informant was insufficient for a judicial officer to conclude that probable cause of criminal activity existed and that issuance of a search warrant was justified. In my view, this argument is not persuasive. If probable cause to search was lacking, the employment of subterfuge to obviate the need for a warrant should not remedy the deficiency. As succinctly stated by the federal appellate court in Nueslein v. Dist. of Columbia, supra, at 693: “The absence of a search warrant could scarcely make good an entry for which no warrant could have been obtained.”
Nevertheless, the majority has countenanced a search unauthorized by a warrant and totally unsupported by probable cause, but instead justified by a misplaced reliance upon “consent” procured by deception. In so doing, the decision reduces constitutional protections to a game of bluff which would rival any of the activities to which R.C. Chapter 2915 is directed. Unfortunately, the stakes in this case are much higher. I would reverse the denial of the motions to suppress.
Holmes and Douglas, JJ., concur in the foregoing opinion.There is likewise no support in the record for the bald statement by the majority that “no credentials were checked at the door.” While no credentials were requested, they were presented and presumably the doorkeeper took notice of this fact.