concurring specially:
Although I concur in the result reached by the majority in this case, I cannot agree that appellees lacked standing. The doctrine of Fourth Amendment standing, as developed on land and at sea, clearly demonstrates that appellees had standing to challenge the search in this case.
The courts have rejected the notion that every defendant enjoys “automatic” standing to challenge the legality of a search or seizure, or that Fourth Amendment rights may be “vicariously” asserted by defendants who are not themselves the victims of an invasion of privacy. Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). A defendant who challenges a search and seizure on Fourth Amendment grounds must establish that he had an expectation of privacy in the area searched and the items seized. This expectation must be based either upon concepts of real or personal property law or upon understandings which are recognized and permitted by society. Rakas v. Illinois, 439 U.S. 128, 143-44 n. 12, 99 S.Ct. 421, 430-31 n. 12, 58 L.Ed.2d 387 (1978); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
A defendant, as noted above, need not establish a property interest in order to *639lawful possession or control with the right to exclude, United States v. Glasgow, 658 F.2d 1036, 1044 (5th Cir. Unit B 1981); the legitimacy of one’s presence on the premises, a subjective expectation of freedom from governmental intrusion, the taking of normal precautions to maintain privacy, United States v. Haydel, 649 F.2d 1152, 1155 (5th Cir. Unit A 1981); or an expectation of privacy related to the nature of the place in which the item was secreted, United States v. Brown, 731 F.2d 1491, 1495-96 (11th Cir.1984). It is not sufficient to demonstrate an ownership or possessory interest in the contraband discovered. Rawlings v. Kentucky, 448 U.S. 98, 105-06, 100 S.Ct. 2556, 2561-62, 65 L.Ed.2d 633 (1980).
As the opinion for the Court points out, captain and crew do not have a legitimate expectation of privacy in areas subject to the common access of those legitimately aboard the vessel but they do have a legitimate expectation of privacy in areas such as living and sleeping quarters, dufflebags, and footlockers.
The district court did not discuss the issue, but appears to have assumed that appellees had standing to challenge the search; on appeal the government argues that no legitimate expectation of privacy existed. The government contends that though Lopez was the captain of the vessel, he had no legitimate right of occupation or control, as he could not even provide the phone number of the man who allegedly lent him the boat. The government also claims that Lopez and Gomez had no reasonable expectation of privacy arising from the nature of the location, and no legitimate interest, which would give rise to an expectation of privacy, in the contraband.
Appellees argue that, despite their lack of personal familiarity with the owner, they had his permission to take the boat, which conferred both a right of possession and a right to exclude others during the time that they were on board. They argue that their interest is distinguishable from those rejected in Freeman, Williams and DeWeese, as the secret compartment in which their contraband was stored was not an area to which all those on board would normally have access. They argue further that the presence of those factors relied upon to confer standing in Haydel — right to exclude others, subjective expectation of freedom from governmental intrusion, taking of normal precautions to maintain privacy, legitimacy of presence on premises — suggests that they had a legitimate expectation of privacy in the compartment searched.
On the basis of the precedent described above, appellees have a legitimate expectation of privacy in the area searched. Ap-pellees’ claim of permission from the owner was.not refuted by the government; although the government demonstrates that appellees had no personal relationship with the owner, this by no means disproves their allegations that he lent them the boat, thus conferring the possessory interest and the right to exclude held determinative in Glasgow. Moreover, appellees correctly note that the Haydel factors militate in favor of their standing. Not only their legitimate presence and right to exclude, but their subjective expectation that a secret compartment beneath the deck of a boat would be free from governmental intrusion and the painting and construction efforts associated with protecting their privacy suggest that a legitimate expectation existed. Although such land-based standards are not always sufficient to identify privacy interests at sea, the area at issue does not fall into any of the categories in which additional restrictions have been recognized. A secret compartment is not an area which the Coast Guard is statutorily authorized to search on a safety and document inspection, United States v. Herrera, supra. It is not an area to which all those aboard characteristically enjoy access, United States v. Freeman, supra. Indeed it is similar to a dufflebag or footlocker in terms of the uses to which it may *640be put, and the expectations of exclusive control to which it gives rise.1 In light of these factors, I would hold that appellees have standing to challenge the validity of the search and seizure.
. I must also take issue with the majority's conclusion that the privacy interests of appellees in this case bear closer resemblance to those of the prisoners in Hudson v. Palmer, — U.S. -, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) than to those of the high school students in New Jersey v. T.L.O., — U.S. -, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). As the Court observed in T.L.O., the diminished privacy interest of the prisoners in their personal belongings was attributable primarily to "the harsh facts of criminal conviction and incarceration,” 105 S.Ct. at 742 (quoting Ingraham v. Wright, 430 U.S. 651, 669, 97 S.Ct. 1401, 1411, 51 L.Ed.2d 711 (1977)). As individuals who had been neither convicted of nor sentenced for the commission of any crime, appellees enjoyed an expectation of privacy in the private compartments of the boat which society should have been willing to recognize as legitimate.