(concurring):
My concern here has been with the following two sentences contained in the principal opinion. “At the outset it is clear that in reaching its conclusion on the legality of the search, the board of review was not exercising its fact-finding functions. Rather, it was assessing the legal sufficiency of the evidence as a question of law.”
It is obvious that if the board found against the presence of consent on the part of the accused to the challenged search as matter of fact, then its determination is not open to review in this Court. However, if its members held instead that the evidence of consent was insufficient as matter of law, the propriety of the ruling may be considered by us.
Originally I was unsure that the author of the principal opinion was justified in making the summary determination of the problem reflected in the language quoted earlier herein. I have now reached the conclusion that he was quite correct. It is to be observed the accused did not deny that he had granted free consent, nor was there other testimony which served to contradict Agent Hopkins’ account of the transaction. It appears, therefore, that there was simply no evidence before the board which could have been weighed against Agent Hopkins’ repeated and emphatic — if peripherally indistinct — assertions of consent. Moreover, its members could not possibly have engaged in that process of balancing and measuring contemplated in the making of a factual determination. It follows, I am confident, that the board did no more than hold that the circumstances of the instant case required the legal conclusion that the accused merely acquiesced in, or submitted to, the search under scrutiny in the face of superior authority, and did not consent freely thereto.
If this is true, then we may review the ruling. And if we review, then I must concur in the principal opinion’s decision as to incorrectness.