dissenting.
I must respectfully dissent from the majority opinion because it misinterprets the clear statement of the circuit judge which found that the police were given consent to search. The order denying the motion to suppress evidence entered on July 25, 2003 clearly states that the defendants gave consent for the police to search for evidence of an assault.
The fact that the police intent was to search for drugs did not render the consent constitutionally invalid. The police ruse did not coerce them into consenting to a search. The defendants could have refused consent for a search of whatever nature but chose not to.
Clearly this Court has chosen to substitute its version of the facts for that of the original trier of the facts. I believe such a substitution is impermissible.
The entry by the trooper and the subsequent search of the residence was proper because of the voluntary consent and the use of a ruse or deception was justified under all the circumstances.
The question of voluntary consent turns on the careful scrutiny of all the surrounding circumstances of any particular case. Cook v. Commonwealth, 826 S.W.2d 329 (Ky.1992). In Schneekloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), the United States Supreme Court held that the validity of a purported consent to search was to be determined by a voluntariness test similar to that which has been used by the court in coerced confession cases. It is a question of fact to be determined from all of the circumstances. See also 3 LaFave, Wayne R., Search and Seizure: A Treatise on the Fourth Amendment § 8.2 (3d Version, 1996).
Although deception by employment of a ruse is not condoned by the courts, the limited use of such a device is supported by many cases not only in Kentucky, but also through the nation. Adcock v. Commonwealth, 967 S.W.2d 6 (Ky.1998) held that a ruse used by police to gain entry for the purpose of executing a search warrant, so long as it is accomplished without the use of force, promotes the underlying purpose of the Knock and Announce Rule, and is thus constitutional and reasonable under the Fourth Amendment.
The majority opinion seeks refuge in the Schneekloth reference to “possible vulnerable subjective state of the person who consents.” Such vulnerability is clearly misplaced. Krause, then 29-years-of-age, was a person of above average intelligence who was a director at a local television station. He is a college graduate. He surely knew he had the right to allow the officer to search without a warrant. The entire incident was triggered by a tip from a subject arrested by the trooper earlier which directed the officer’s attention to the home on 19th Street.
*929Persuasive authority can be found in Commonwealth v. Morrison, 275 Pa.Super. 454, 418 A.2d 1378 (1980), in which the consent to search was voluntary even though procured by police who misrepresented both identity and purpose. State v. Hastings, 119 Wash.2d 229, 830 P.2d 658 (1992), allowed warrantless entry made after consent was given as valid despite the use of a ruse; State v. Nedergard, 51 Wash.App. 304, 753 P.2d 526 (1988), held that an undercover officer’s use of a ruse to enter the residence of a suspect by posing as an interested buyer responding to a for sale sign was permissible as a means of establishing probable cause for a search warrant. People v. Manieri, 83 Misc.2d 798, 373 N.Y.S.2d 504 (1975), stated that consent of a hospital patient in a private room for entry was not vitiated as to police acting in an undercover capacity as a porter. Other cases following the same general line of the use of deception as Reese are: Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966); United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979); United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), and United States v. Baldwin, 621 F.2d 251 (6th Cir.1980); Commonwealth v. Ginter, 289 Pa.Super. 9, 432 A.2d 1024 (1981). As noted earlier, the voluntariness test for analyzing consent was adopted from the cases involving coerced confessions. The mere use of a ruse or a strategic deception does not render a confession involuntary so long as the deception does not rise to the level of coercion. See Springer v. Commonwealth, 998 S.W.2d 439 (Ky.1999) citing Illinois v. Perkins, 496 U.S. 292, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990).
When the police deception as to the purpose of the search is used in obtaining the consent to search, each case must be analyzed with regard to the surrounding circumstances. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976).
Several jurisdictions have specifically approved the use of deception by police to gain consent to search. In State v. Johnson, 253 Kan. 356, 856 P.2d 134 (1993), the police used deception to obtain consent to search the home of the defendant. The officers misrepresented to the defendant that they were looking for a parole violator when they were actually seeking evidence regarding the murder of the victim. In People v. Zamora, 940 P.2d 939 (Colo.App.1996), the officers used a ruse stating that they just wanted a quick look at the apartment of the defendant in regard to a domestic dispute in an adjacent apartment. The officers were actually trying to investigate whether the apartment matched the sexual assault victim’s description of the apartment to which she had been taken. The Colorado court determined that consent to search may be voluntary even when the person giving consent is not aware of or is misinformed as to the purpose of the search. The consent by the defendant was a product of his own free will and intelligently made and the defendant knew he had a right to refuse entry. The Court concluded that the deception alone does not invalidate consent but is one factor to be considered in the totality of circumstances.
In People v. Avalos, 47 Cal.App.4th 1569, 55 Cal.Rptr.2d 450 (1996), police stopped the defendant and told him that he had been stopped as part of a burglary investigation. The officer stated that he wanted to search the truck of the defendant for stolen property in addition to some other contraband. Actually the investigation was in regard to narcotics. The Court determined that police properly identified themselves and permitted the search based on the total circumstances *930and concluded that the consent was voluntary.
Here, the officer told Yamada and Krause that he was looking for evidence of an assault. In attempting to gain entry to search, the officer stated that he wanted to look under the bed, bedspread and furniture around the house to see if it was consistent with the description given by the alleged assault victim. Yamada should have clearly realized that he had incriminating evidence in his room because he wanted to go back to the room and clean it up before the search. When the officer, with the consent of Yamada, accompanied him to his room, Yamada quickly tried to hide the incriminating evidence behind his back. One of the items was a spoon and Yamada told the officer that the substance on the spoon was cocaine. Upon additional questioning, Yamada handed over a bag of cocaine from his robe and stated that was all the drugs in the home.
The officer also asked if he could search Krause’s room, and the trial judge found that the evidence indicated that Krause consented to the search of his room. This was a separate and distinct consent which was found to be voluntary. Under any circumstances, the subsequent search and seizure of the contraband from the room occupied by Krause was valid.
The circumstances of this matter indicated that the officer had a tip that a person unknown to him had purchased cocaine from Yamada at the residence several hours before the search. The officer identified himself as a police officer, was in uniform and never tried to conceal his identity. His conduct was never threatening or coercive. He never feigned an emergency or exceeded the scope of the consent.
Krause testified at the suppression hearing that he answered the door and he knew that the officer needed a warrant and that he could say no when they asked to come into the house. The evidence indicates that neither resident was uncooperative in giving any consent. The trial judge found that the evidence indicated that Krause consented to the search of his room.
The surrounding circumstances were essentially that the officer had a tip that a person unknown to him had purchased cocaine from Yamada at the residence several hours before the search. The officer was in full uniform and identified himself as a police officer. His behavior was not threatening or coercive.
Krause had prior contact with law enforcement because he had been convicted of possession of marijuana and drug paraphernalia. He was in his late-20s with a college education and worked as a television producer at a local station. Clearly, he was above average intelligence and had experience in the area. Krause also stated that he was not doing drugs that evening. Several of the cases cited in support of the majority opinion’s position are based on mere conjecture or speculation. Here, the officer had probable cause to believe that the person he was attempting to arrest was in the apartment and he could legitimately enter the premises by means of a deception. Cf. United States v. Phillips, 497 F.2d 1131 (9th Cir.1974).
Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), held that a search cannot be justified when the consent has been given only after the official conducting the search has asserted that he possessed a warrant. Justice Stewart held that when a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. Where there is coercion, there cannot be consent. That is not the sitúa*931tion presented in this case. This case involved rape and two charges of felonious assault and whether a rifle was introduced into evidence as a result of improper search. The Bumper ruse was indeed a coercive technique. That individual believing that the officer had a warrant, believed that he did not have the ability to refuse. Krause was not in that position. He or his drug dealer roommate could easily have told the officer to leave. It is almost beyond belief that any drug dealer with illegal drugs in an apartment would not resist to the utmost anything other than a search warrant before letting law enforcement in the premises.
Under all the circumstances, I believe that consent was given and that this judgment of conviction should be affirmed in all respects.
ROACH, J., joins this dissent.