(dissenting) .
When this Court considers the sufficiency of evidence to support a particular finding of fact, differences within the Court in a particular case need not occasion dissents. When the difference arises repeatedly, however, it becomes appropriate to question whether the prescribed standard of review is being properly applied. If it is not, dissent may serve some useful purpose, though it would be fruitless if there was no more than an isolated difference in judgment as to the reasonableness of a particular inference to be drawn from the record of one case.
In several recent cases, I have recorded my disagreement with reversals upon factual questions when the findings below seemed to me to rest upon substantial evidence.1 I do so again.
The District Judge found that Hall consented to the search of his room. In his opinion, he clearly stated the legality of the search was dependent upon Hall’s consent. After considering evidentiary matters, he concluded that Hall had not shown the search to have been unlawful. He placed the burden of showing an absence of consent upon Hall because Hall, at the trial, had not objected to admission of the evidence seized in the course of the search. He thought, I think correctly, that Maryland’s procedural rule that would foreclose subsequent consideration, when no objection was made at the time of trial to the receipt of the evidence, required Hall to show that the search was more than arguably unlawful. We would adopt a similar approach if a. District Judge refused to consider an untimely objection. See Rule 41(e) of the-Federal Rules of Criminal Procedure.
If, however, the Court were of the-opinion that the burden of persuasion rested upon Maryland to show that Hall: consented to the search, a remand for reconsideration of the factual question! would be in order, but disregard of the-finding would be unwarranted.
The District Court’s finding that Hall consented to the search is an ultimate-finding which rests upon substantial evidence.
Hall sought out the police. He invited' their attention to him and encouraged, their suspicion of him. Not under arrest, he went willingly to the police station to talk to them about the events of the night before. He volunteered to take them to. his hotel, which he had misidentified.. He did so at a time and under such circumstances that he must have known that the officers intended to search the *498room as soon as they located it, and that they would carry through with their intention when he disclosed the location of the room to them. At least, a reasonable fact-finder might infer from all of the facts and circumstances that Hall from the beginning wanted to bare his breast, wished the incriminating evidence in his room discovered, and willingly took the officers to his room in furtherance of that purpose.
There is no need here to marshal all of the evidence which appears to support the finding. It is sufficiently revealed in the opinion of the District Judge 2 and in the opinion of the majority. It is sufficient in my opinion to warrant the finding that consent was implicit in Hall’s conduct. If the District Judge might have found the facts the other way, it is not for us to intrude upon the fact-finder’s prerogative to determine which of two permissible, but conflicting, inferences is the more reasonable.
For the reasons stated by Judge Thomsen in his opinion, I would affirm.
. Mason v. Matkiascn Tanker Industries, Inc., 4 Oir., 298 F.2d 28; Davis v. State of North Carolina, 4 Cir., 310 F.2d 904; Gardner, as Adm’x, v. National Bulk Carriers, Inc., etc. et al., 4 Cir., 810 F.2d; 284.
. Hall v. Warden, 201 F.Supp. 639.