¶1concurring: The majority opinion begins by repeating the long-held standard of review by Kansas appellate courts that the existence and voluntariness of a consent to search and seizure is a question of fact to be decided in light of the totality of the circumstances and will not be overturned on appeal unless clearly erroneous. State v. Rexroat, 266 Kan. 50, 54-55, 966 P.2d 666 (1998); State v. Johnson, 253 Kan. 356, 364, 856 P.2d 134 (1993); State v. Ruden, 245 Kan. 95, 105, 774 P.2d 972 (1989); State v. Pearson, 234 Kan. 906, 920, 678 P.2d 605 (1984); State v. Buckner, 223 Kan. 138, 144, 574 P.2d 918 (1977); State v. Jakeway, 221 Kan. 142, 146, 558 P.2d 113 (1976); State v. Wilson, 30 Kan. App. 2d 100, 108, 39 P.3d 668 (2002); State v. Kriegh, 23 Kan. App. 2d 935, 938, 937 P.2d 453 (1997). I write this separate opinion to express my view that this standard of review is misleading. When the factual underpinnings concerning the voluntariness of a consent to search are disputed, the appellate court should give deference to tire trial court’s determination of the facts. However, the ultimate determination of the voluntariness of a consent to search is a legal conclusion which should be subject to de novo review.
¶2Generally, when reviewing a motion to suppress evidence, the appellate court determines whether the factual underpinnings of the trial court’s decision are supported by a substantial competent evidence standard. However, the ultimate legal conclusion drawn from those facts is a legal question requiring the appellate court to apply a de novo standard of review. State v. Vandervort, 276 Kan. 164, 169, 72 P.3d 925 (2003). Kansas appellate courts recognize that when the facts material to a trial court’s decision on a motion to suppress evidence are not in dispute, the question of whether *583to suppress is a question of law over which the appellate court has unlimited review. State v. Boyd, 275 Kan. 271, 273, 64 P.3d 419 (2003).
¶3Although this general standard of review on a motion to suppress evidence is clear, Kansas appellate courts seem to have created an exception for the issue of voluntariness of a consent to search. Kansas appellate courts consider this determination to always be a question of fact which will not be overturned on appeal unless clearly erroneous. However, as with any motion to suppress evidence, if the underlying facts are undisputed, the determination of the voluntariness of a consent to search is a legal conclusion to be drawn from the facts. To the extent that Kansas appellate courts consistently fail to draw this distinction, I believe the applied standard of review on consent to search cases is inaccurate.
¶4I agree that the State has the burden of proving the voluntariness of a consent to search. Also, the determination of the voluntariness of a consent to search must be made in light of the totality of the circumstances. Nevertheless, if the evidence is undisputed, the appellate court can consider the totality of the circumstances as well as the trial court.
¶5Kansas appellate courts consistently hold the determination of the voluntariness of a confession is a legal question requiring independent appellate review. In reviewing a trial court’s ruling on a motion to suppress a confession, the appellate court reviews the factual underpinnings of the decision under a substantial competent evidence standard; the appellate court reviews the ultimate legal decision drawn from those facts de novo. To determine whether a defendant’s confession is voluntary, a court looks at the totality of the circumstances. State v. Makthepharak, 276 Kan. 563, 566-67, 78 P.3d 412 (2003); State v. White, 275 Kan. 580, 597, 67 P.3d 138 (2003). If the issue of the voluntariness of a confession is a legal question subject to de novo review, why is the voluntariness of a consent to search a question of fact subject to a clearly erroneous standard? Both determinations are made based upon the totality of the circumstances.
¶6I submit that Kansas appellate courts apply the correct standard of review on the issue of the voluntariness of a confession. The *584same standard of review should be applied on the issue of the voluntariness of a consent to search. The appellate court should review the trial court’s determination of tire facts under a substantial competent evidence standard without reweighing the evidence. However, the ultimate determination of the voluntariness of a consent to search is a legal conclusion to be drawn from tire facts and should be subject to de novo appellate review.
¶7In this case, however, I agree with the majority opinion that the trial court’s judgment suppressing the evidence should be affirmed. This case involved disputed facts. The evidence was disputed among tire officers themselves as to whether they pushed open the door while waiting on the front porch. More importantly, the evidence was disputed as to whether the officers entered the residence without permission. Judging from the trial court’s comments, it appears that the trial court did not believe the officers’ version of the facts. Giving appropriate deference to the trial court’s determination of disputed facts, the ultimate conclusion that the State failed to prove the voluntariness of the consent to search the residence should be affirmed.