concurring specially.
[¶ 26] I concur in the result reached by the majority opinion. I write separately because I am concerned that Part II C of the majority opinion, in its terse disposition of the issue of consent to search, leaves an impression with which I do not agree, i.e., that the operators of a facility of this nature are helpless to prevent a violation of the rules of the facility. After citing cases to the effect that the State must show affirmative conduct by the person alleged to have consented to the search, cases with which I agree, and observing that signs were posted at the entries to REA warning persons they are subject to search, the majority concludes this issue with the statements that the existence of conspicuously posted signs does not establish Seglen’s consent to search, there is no evidence of affirmative conduct by Seglen to consent to the search, that the State did not meet its burden of establishing Seglen’s consent and that the consent exception to the warrant requirement is therefore not applicable.
[¶ 27] In the first instance it is not clear to me that the issue of consent was raised in the trial court or, if it was raised, if it was decided. In the trial court’s memorandum decision denying the motion to suppress, the trial court stated:
It must also be noted that conspicuously posted prior to the REA entry points are written warnings that persons seeking entry into REA are subject to search. Defendant argues that despite the warnings of potential pre-entry searches, any fruits of such a search cannot be used in a criminal prosecution, but rather should simply be used to deny access to the facility.
Following those statements, the trial court framed the issue: “Whether, under the facts and circumstances of this particular case, Officer Inocencio’s stop of the Defendant was reasonable under the Fourth Amendment and the subsequent seizure of evidence permissible.” In resolving that issue the trial court held the stop was reasonable because “There were security concerns; there were posted signs advising entrants of possible searches if they sought entry into REA; and the Defendant was not singled out, but rather the subject of a pat down because of the apparel he was wearing.” It thus appears to me that the trial court concluded the signs were but one of the factors which made the stop “reasonable” rather than concluding the signs and Seglen’s apparent lack of resistance to the pat down were a consent to search and an exception to the warrant requirement.
[¶ 28] More significantly, however, I believe the conspicuously posted signs may serve to warn persons such as Seglen that they may be required to consent to the search or be denied admission to the facility. Although persons seeking entrance may complain that such a Hobson’s choice is no choice at all and is not the voluntary consent required under the exception-to-the-warrant requirement, I believe the facility, particularly a private facility, may impose such a requirement for legitimate purposes. No one has argued that the purposes which prompted the search were improper or invalid. Indeed, Seglen conceded as much at the trial court when he argued that despite the warnings of potential pre-entry searches, any fruits of the search could not be used to prosecute him but simply be used to deny him access to the facility. Thus, because of the nature *711of the bulky clothing he was wearing, I believe Seglen could have been affirmatively given the choice of consenting to a search or being refused admission to the facility and, had he chosen to consent to the search, such consent would have been voluntary.
[¶ 29] However, I agree with the majority that on this record it is not clear Seglen was, in fact, given such a choice. The most that could be gleaned is that Seglen impliedly consented to the search by not protesting or by not leaving. But, as the majority observes, that is not sufficient. Absent evidence that Seglen was told he could consent to the search or he could leave, I agree with the conclusion reached by the majority. The signs do not give the officers the right to search. They could only serve as a warning that a person may be asked to submit to a search. If facilities are going to use this method to enforce their rules I suggest the sign should include a statement that would-be entrants dressed in bulky clothing may be asked for their permission to search or may leave without entering.
[¶ 30] Gerald W. VandeWalle, C.J.