dissenting.
I respectfully dissent. Because of the circumstances under which the police employed a ruse to. gain entry to search defendant’s apartment, I believe the trial court erred in concluding that defendant voluntarily consented to such entry. Accordingly, I would hold that the motion to suppress should have been granted.
Warrantless entries into the home to conduct a search are per se constitutionally unreasonable unless they satisfy an exception to the warrant requirement of the Fourth Amendment. People v. Taube, 864 P.2d 123 (Colo.1993). One such exception is entry pursuant to valid consent. However, consent is only valid where, in light of the totality of the circumstances, it has been freely and voluntarily given. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); People v. Thiret, 685 P.2d 193 (Colo.1984).
Appropriate factors for a court to consider in determining whether consent is voluntary include the age, education, and intelligence of the defendant; the duration and location of the search; the defendant’s state of mind; the presence of coercive police procedures; the extent and level of the defendant’s cooperation with police; defendant’s awareness of the right to refuse to give consent; misrepresentations about the nature or purpose of the investigation; and any other factors that might have affected his or her free and unconstrained choice. See United States v. Davis, 749 F.2d 292 (5th Cir.1985), cert denied, 479 U.S. 964, 107 S.Ct. 464, 93 L.Ed.2d 409 (1986); People v. Carlson, 677 P.2d 310 (Colo.1984).
*946While police deception is but one factor to be considered under the totality of the circumstances, that factor may nevertheless be a major or even a determinative factor in some situations. People v. Longoria, 717 P.2d 497 (Colo.1986) (in considering voluntariness of confession under totality of circumstances, extent to which a suspect has been informed of the subject matter of police interrogation may be a major or determinative' factor); see 3 W. LaFave, Search & Seizure § 8.2(n) (1987) (while some forms of deception engaged in by a known law enforcement officer in order to obtain a consent may not invalidate the consent, the “fairness” of the type of deception employed in the particular circumstance is particularly relevant).
Such reasoning is underscored by the supreme court’s holding in McCall v. People, 623 P.2d 397, 403 (Colo.1981) that: “Where, as here, entry into the home is gained by a preconceived deception as to purpose, consent in the constitutional sense is lacking.” Although I do not view McCall as establishing a per se constitutional violation when law enforcement officers employ a ruse to aid in their investigation, that ease nevertheless serves to highlight the subtly coercive and inherently problematic nature of an intentional deception designed to gain entry into a person’s home.
To that end, the court in McCall relied on Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 1379, 63 L.Ed.2d 639, 650 (1980), in which the Court noted that “physical entry into the home is the chief evil against which the wording of the Fourth Amendment is directed.” See also Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436, 440 (1947) (“The right of officers to thrust themselves into a home is ... a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance.”); People v. Taube, supra.
The burden is on the People to show by clear and convincing evidence that defendant’s consent was voluntarily given. Volun-tariness is a question of fact to be decided by the trial court, and its resolution of the issue will be upheld on appeal unless clearly erroneous. People v. Drake, 785 P.2d 1257 (Colo. 1990).
Here, in making its findings, the trial court noted that it was “uneasy” about the state of the law regarding police deception, and that it was satisfied by clear and convincing evidence that defendant would not have permitted entry into his apartment had he known of the officers’ true purpose. Nevertheless, the court concluded that, under the totality of the circumstances, there was no evidence of duress or coercion. Specifically, the court found that defendant knew he could refuse the officers access to his apartment, that the officers did not engage in any threats or overbearing conduct, and that defendant’s decision was made after reflection and was a product of free will, although based upon false information.
In my view, the trial court’s finding of voluntary consent by defendant here was clearly erroneous.
It is undisputed that the police had neither probable cause to suspect that defendant was involved in any crime nor a warrant to search his apartment. Indeed, the police testified that defendant did not fit the victim’s description of her assailant. After the police officers knocked on defendant’s door, he stepped outside and closed the door behind him. Without stating their purpose, the police asked if they could come inside and defendant refused their request to enter.
After defendant indicated that he would not consent to their entry, the officers carried out an intentional, deliberate, and material deception as to their purpose for seeking entry to the apartment. Moreover, the officers did not inform defendant that he was a suspect in any criminal activity. It was only after the officers had assured defendant that their purpose had nothing to do with him that he consented. Thus, as the trial court correctly noted, it was in reliance-on the officers’ misrepresentation of purpose that defendant allowed the officers into his apartment.
Under these circumstances, I believe that, as in McCall v. People, consent in the constitutional sense was lacking. And, unlike the majority, I do not find McCall to be factually *947distinguishable in any material sense from the present case. In both eases, the police officers executed a warrantless entry into a home based on the occupant’s consent gained after the police misrepresented their purpose.
The fact that probable cause to arrest defendant existed in McCall, but not here, does not persuade me otherwise. In my view, the lack of probable cause in this ease renders the employment of a ruse more, rather than less, egregious. The officers had no probable cause to believe defendant had committed any crime, no warrant, and defendant did not fit the victim’s description of her assailant. Under these circumstances, devising a ruse to enter and search a person’s home was a purposeful disregard of defendant’s constitutionally guaranteed right to be secure in his home from unreasonable searches and seizures.
Also, unlike the majority, I perceive all of the material facts relative to the search of defendant’s apartment, like those in McCall, to demonstrate the use of deception. Although the police truthfully stated that they wanted to see the layout of the apartment, they also affirmatively misled defendant to believe it was for a purpose that had nothing to do with him. It was not until the police employed the ruse that they were investigating an unrelated domestic dispute nearby that defendant consented to them entering the apartment.
Further, the police stated that they wanted to look only at the layout of the apartment. In fact, however, they intended to and did look at more than the layout — they actively looked for certain items, such as an empty waterbed. See People v. Thiret, supra (even when consent was given voluntarily, a war-rantless search made pursuant thereto must be limited to the scope of the consent). Thus, the deception by the police was not merely “partial” as the majority suggests, but rather, complete and material.
Finally, the fact that McCall relied on cases decided prior to Schneckloth v. Bustamonte, supra, is irrelevant. McCall is still good law and has been cited with approval recently by the supreme court. See People v. Taube, supra. Because it is not factually distinguishable in any material sense from the present case, it cannot be ignored.
In addition, my review of the ease law from other jurisdictions indicates that courts are divided on the issue of police deception. As the majority notes, several jurisdictions have held that a ruse is acceptable under certain circumstances. See State v. Johnson, 253 Kan. 356, 856 P.2d 134 (1993); State v. Watson, 416 So.2d 919 (La.1982); Commonwealth v. Morrison, 275 Pa.Super. 454, 418 A.2d 1378 (1980), cert, denied, 449 U.S. 1080, 101 S.Ct. 863, 66 L.Ed.2d 804 (1981); Dotsey v. State, 630 S.W.2d 343 (Tex.App.1982).
However, several of the cases that are cited by the majority hold that police deception or misconduct rendered the consent involuntary. See People v. Daugherty, 161 Ill. App.3d 394, 112 Ill.Dec. 762, 514 N.E.2d 228 (1987) (where law enforcement officer without a warrant falsely claims that he has legitimate police business to conduct in order to gain consent to enter the premises, such deception is so unfair that it renders the consent invalid); People v. Lee, 160 Misc.2d 711, 610 N.Y.S.2d 1013 (Orange County Court 1994) (ruse held unfair where police engaged in coercive tactics); State v. Schweich, 414 N.W.2d 227 (Minn.App.1987) (misrepresentation of the purpose of a search can rise to such a level of deception to invalidate the consent; by not informing defendant he was under investigation before obtaining his consent, the state engaged in improper deceptive conduct).
Indeed, many other post-Schneckloth cases have reached a similar conclusion. See United States v. Bosse, 898 F.2d 113 (9th Cir. 1990) (a ruse entry when the suspect is informed that the person seeking entry is a government agent but is misinformed as to the purpose for which the agent seeks entry cannot be justified by consent); United States v. Briley, 726 F.2d 1301 (8th Cir.1984) (noting as an important factor as to voluntary consent whether police tell defendant they are not seeking to arrest him or that he is not a suspect); United States v. Turpin, 707 F.2d 332 (8th Cir.1983) (misrepresentations about the nature of an investigation may be evidence of coercion and the misrepresentation may even invalidate the consent if it was given in rebanee on the officer’s deceit);
*948United States v. Tweel, 550 F.2d 297 (5th Cir.1977) (consent to search is unreasonable under the Fourth Amendment if induced by deceit, trickery, or misrepresentation).
See also Commonwealth v. Slaton, 530 Pa. 207, 608 A.2d 5 (1992) (affirmative misrepresentation by government agent constitutes consent through deception, which is implied coercion); State v. Bailey, 417 A.2d 915 (R.I. 1980) (consent to enter one’s home cannot be deemed free or voluntary unless person said to be consenting is aware of purpose for which police seek to enter); State v. McCrorey, 70 Wash.App. 103, 851 P.2d 1234 (1993) (police acting in their official capacity may not actively misrepresent their purpose to gain entry or to exceed the scope of the consent given).
Moreover, even in those jurisdictions that have held that a defendant’s consent is voluntary despite the police deception, the courts so holding have noted that ruses are not always acceptable and a determination of voluntariness should be made on a ease-by-case basis. Voluntary consent is generally found in situations that do not rise to the level of the deception present here, such as when the police fail to disclose an additional purpose for their search, State v. Watson, supra, or do not inform the defendant of the seriousness of the crime for which he is a suspect. United States v. Davis, supra.
In my view, the conduct of the police officers under the circumstances here offends the Fourth Amendment and is fundamentally unfair when compared with the need for effective police investigation. See W. LaFave, supra, at § 8.2(n). Where a police officer, without a warrant, uses his official position of authority and falsely claims that he has legitimate police business to conduct in order to gain consent to enter and search a person’s home, where the officer affirmatively and intentionally misleads the occupant into believing he or she is not involved in a criminal investigation, and where the defendant grants consent, at least in part, on the basis of those misrepresentations, I would hold that such consent cannot be considered voluntary.
Thus, notwithstanding the fact that defendant knew that he could refuse consent and was not threatened or pressured beyond the officer’s initial request, I would conclude that the trial court erred in finding, under the totality of the circumstances, that defendant’s consent was freely and voluntarily given. The Fourth Amendment requires no less.