ORDER ON REHEARING
On consideration of the petition for rehearing en banc and the response, the court concludes as follows:
The dispositive question of this appeal is whether the defendant-appellant had an expectation of privacy in the luggage he was carrying which society would recognize as objectively reasonable. The evidence at the suppression hearing and the trial judge’s findings are thoroughly detailed in our opinion. The judge did not reject the credibility of the defendant's testimony on the circumstances underlying the seizure of the contraband from the luggage in defendant’s care. In fact, his findings conceded that “the defendant possibly had a subjective expectation of privacy in the bag.” I R. Doc. 21, at 2. Instead the rejection of defendant’s Fourth Amendment claim was based on one point: “the court finds that society would not recognize such an expectation as objectively reasonable under the circumstances of this case.” Id. at 2. We were unable to agree with this legal conclusion and accordingly reversed.1
As our opinion pointed out, the trial judge found that there was a valid Terry stop, which we accepted. He found, however, that the search of the second bag was not consensual; there was no clear and unequivocal consent given and there was an obvious language barrier that was acknowledged several times by officer Larsen.
The petition relies heavily on Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), and United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), arguing that our decision is contrary to the rationale of those opinions. We are not persuaded. In fact, we carefully noted, maj. op. at 827, the reasoning of Rakas that “arcane distinctions developed in property and tort law between guests, licensees, and the like, ought not to control.” 439 U.S. at 143, 99 S.Ct. at 430. And we likewise were respectful of the Court’s teaching in Salvucci that “[w]hile property ownership is clearly a factor to be considered in determining whether an individual’s Fourth Amendment rights have been violated, ... property rights are neither the beginning nor the end of this Court’s inquiry.” 448 U.S. at 91, 100 S.Ct. at 2553.
*831We accordingly considered all the underlying circumstances which were not in dispute. The defendant’s testimony, not rejected by the trial judge, was that an acquaintance asked him to deliver the bag to a woman in Salt Lake City. The defendant was told that the bag belonged to the woman and that it contained children’s clothing. Ill R. 21, 23. Arriving at the Salt Lake City train station, he sat down and placed the bag right beneath him after a phone call. II R. 38. The defendant testified that he took care of the bag as if it were his. Ill R. at 24-25. The defendant said he did not want the officers to search the bags because he was in charge of them. Id. at 25. And the trial judge found that the defendant did not give valid consent for the bag to be searched.
We remain convinced that the factual situation here shows an expectation of privacy that society would recognize as reasonable. This conclusion comfortably fits within the Supreme Court’s reasoning in Rakas that distinctions in property and tort law between guests, licensees, and the like, ought not control. We have instead considered all the circumstances, as noted above and in our opinion, and we are satisfied that the defendant at the time of the seizure did have a legitimate expectation of privacy as one in charge of the bag, and that it was one which society would recognize as objectively reasonable. The bag was “a common repository for one’s personal effects and therefore [was] inevitably associated with the expectation of privacy.” Arkansas v. Sanders, 442 U.S. 753, 762 & n. 9, 99 S.Ct. 2586, 2592 & n. 9, 61 L.Ed.2d 235 (1979). Federal and state cases decided under the Fourth Amendment have held that such an expectation of privacy is one that society would recognize. See United States v. Reeves, 798 F.Supp. 1459 (E.D.Wash.1992) (holding bailee had expectation of privacy in briefcase which was objectively reasonable); Robles v. State, 510 N.E.2d 660, 663 (Ind.1987) (holding bailee had standing to challenge search of luggage), cert. denied, 487 U.S. 1218, 108 S.Ct. 2872, 101 L.Ed.2d 907 (1988); State v. Casey, 59 N.C.App. 99, 296 S.E.2d 473, 482 (1982) (holding bailee had standing to challenge search of luggage); State v. Grundy, 25 Wash.App. 411, 607 P.2d 1235, 1237-38 (1980) (holding bailees had standing to challenge search of stolen footlocker). See generally United States v. Oswald, 783 F.2d 663, 666 (6th Cir.1986) (explaining that “[a] suitcase or briefcase is property of a kind in which the owner or bailee normally has a strong expectation of privacy ... but ... such an expectation can be given up”).2
The reasonableness of such an expectation of privacy is supported by the bailee’s right of exclusion. “One of the main rights attaching to property is the right to exclude others, see W. Blackstone, Commentaries, Book 2, ch. 1, and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by. virtue of this right to exclude. ” Rakas, 439 U.S. at 144 n. 12, 99 S.Ct. at 431 n. 12 (emphasis added). A bailment may give “the bailee the sole custody and control of the article bailed, or the right to exclusive possession of the property, even against the bailor.” 8 C.J.S. Bailments § 29, at 254-55 (1988) (footnotes omitted). This general rule is followed in both states, California and Utah, which had a relationship to the bailment here. See McPherson v. Belnap, 830 P.2d 302, 304 (Utah Ct.App.1992); Porter v. Los Angeles Turf Club, Inc., 40 Cal.App.2d Supp. 840, 105 P.2d 956 (1940). The defendant’s acts here respecting the bag were consistent with the bailee usually having a legal duty to care for the property. 8 C.J.S. Bailments § 46, at 276-77; see, e.g., Staheli v. Farmers’ Coop. of S. Utah, 655 P.2d 680, 682 (Utah 1982); Barlow Upholstery & Furniture Co. v. Emmel, 533 P.2d 900, 901 (Utah 1975); Baugh v. Rogers, 24 Cal.2d 200, 148 P.2d *832633, 641 (1944).3
We are not persuaded by the government's argument premised on United States v. McBean, 861 F.2d 1570 (11th Cir.1988). There the court’s rejection of a privacy claim was based on the fact that the defendant affirmatively disavowed any privacy expectation in the luggage. Id. at 1573-74. Here, on the contrary, the circumstances we have outlined show the protective action that the defendant took respecting the bag and the court found as a fact that there was not valid consent for search of the bag. And importantly, only the first question of whether the individual manifested a subjective expectation of privacy was involved, id. at 1573, and not the dispositive issue here as to whether society would accept as reasonable the defendant’s expectation of privacy.
For these reasons, the petition for rehearing is DENIED. Judge Conway voted to grant rehearing by the panel.
In accordance with Rule 35(b) Fed.R.App. P., the suggestion for rehearing en banc was transmitted to all of the Judges of the Court who are in regular active service and to the members of the hearing panel. A poll was requested on the suggestion for rehearing en banc. There not being a majority of the Judges of the Court in regular active service voting for rehearing en banc, the suggestion for rehearing en banc is DENIED. Judge Baldock and Judge Kelly voted to grant rehearing en banc.
. Our opinion noted that this controlling ultimate objective determination is one we must review de novo. United States v. Jefferson, 925 F.2d 1242, 1248-49 (10th Cir.1991).
. Of course, "a warrantless search could not be characterized as reasonable simply because, after the official invasion of privacy occurred, contraband is discovered.” United States v. Ja-cobsen, 466 U.S. 109, 114 & n. 9, 104 S.Ct. 1652, 1657 & n. 9, 80 L.Ed.2d 85 (1984) (citing cases).
. On this point, the government relies upon the holding in United States v. Monie, 907 F.2d 793 (8th Cir.1990), that a man hired to drive a car across country did not have a legitimate expectation of privacy in two suitcases in the trunk. We find Monie clearly distinguishable. The defendant there denied ownership of the locked suitcases of another in a car trunk, disclaimed any interest in their contents, and told the troopers he did not have keys to them. On these facts, the court held that the first factual test of a subjective expectation of privacy was not met. The court did not reach the second issue, which is the only and controlling question here — whether the privacy expectation was one that society would recognize as reasonable. See id. at 794.