concurring specially:
Although I concur in the result reached by the majority, I write separately to emphasize my disagreement on the issue of standing. I reject the conclusion of the majority that appellants' interest in the privacy of the fuel tank compartment is not one that society would be prepared to recognize as legitimate. While the notion that some subjective expectations of privacy are “unreasonable or otherwise illegitimate” is plausible in theory, the only recent case in which the use of this standard has led to a rejection of an asserted interest involved prisoners in a state institution. Hudson v. Palmer, — U.S. -, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). As the Supreme Court has subsequently observed, the standards used to evaluate the Fourth Amendment standing of prisoners must of necessity be different, because of “the harsh facts of criminal conviction and incarceration.” New Jersey v. T.L.O., — U.S. -,-, 105 S.Ct. 733, 742, 83 L.Ed.2d 720 (1985). The majority attempts to ignore this crucial distinction, stating that “[djrug smugglers can not assert standing solely on the basis that they hid the drugs well and hoped no one would find them.” This effort to analogize appellants to the prison population conflicts with the Supreme Court’s own understanding of its holding in Hudson, as appellants have neither been convicted nor incarcerated. But more importantly it conflicts with the presumption of innocence which must be maintained until the verdict is issued in a criminal proceeding. Claimants at a suppression hearing have not yet been tried for, let alone convicted of, the offenses with which they are charged: to describe them as “drug smugglers” or assimilate their privacy interests to those of prisoners is unacceptable. I would hold that appellants had standing to challenge the search of their vessel.