CONCURRING IN RESULT
Staton, J.I concur in the result. Carpenter did not have standing to object to the search of the automobile resulting in the recovery of some of the diamond rings stolen. Carpenter was not the owner of the automobile and was not in possession of it at the time it was searched. As to the confines of the automobile he had no reasonable expectation of freedom from governmental intrusion. Possession of the diamond *168rings, moreover, was not an essential element of Carpenter’s offense. The automobile’s owner, Tackett, would have had standing in the circumstances presented, but Carpenter could not base his Fourth Amendment claim on an alleged violation of Tackett’s rights. It is therefore inappropriate here for Judge Garrard to resolve whether evidence produced subsequent to an erroneous Fourth Amendment ruling can be considered on appeal to sustain the ruling.
I.
Standing
The Supreme Court of the United States determined in Jones v. United States (1960), 362 U.S. 257, that an individual’s standing to challenge a search and seizure may be predicted on one of two bases: (1) standing exists where possession is an essential element of the offense charged, or (2) where the individual has a possessory or proprietary interest in the premises. 362 U.S. at 263. Title to the premises is not a legal requisite, United States v. Jeffers (1951), 342 U.S. 48, and the Jones Court extended the bounds of “possessory interest” to “anyone legitimately on premises where a search occurs ... where its fruits are proposed to be used against him.” 362 U.S. at 267. See also Mancusi v. DeForte (1968), 392 U.S. 364; Paxton v. State (1970), 255 Ind. 264, 263 N.E.2d 636 (passenger in automobile had standing to challenge search of it, so long as “legitimately on premises”).
In Katz v. United States (1967), 389 U.S. 347, the Supreme Court indicated further that standing depended not upon a property right in the invaded place, but upon whether the area was one in which there existed a reasonable expectation of freedom from governmental intrusion. 389 U.S. at 352. The petitioner in Katz was held to have such a reasonable expectation in a public telephone booth which the Government had wiretapped. A union official in Mancusi v. DeForte (1968), 392 U.S. 364, similarly had a reasonable expectation of freedom from governmental intrusion in his union office, shared by co-workers, though the office and union records therein were subject to access by other union officials. 392 U.S. at 369. The Indiana Supreme Court adopted this “reasonable expectation” measure of standing in Mitchell v. State (1972), 259 Ind. 418, 287 U.S. 2d 860, and Mr. Justice Hunter wrote in Burton v. State (1973), 260 Ind. 94, 292 N.E.2d 790, that a “possessory interest” *169in the context of Fourth Amendment standing is one which gives rise to a reasonable expectation of freedom from governmental intrusion upon those premises in addition to legal possession or ownership of the searched premises. 260 Ind. at 106 n.l, 292 N.E.2d at 798 n.l.
In Brown v. United States (1973), 411 U.S. 223, the Supreme Court addressed the question whether petitioners had standing to challenge the search and seizure of merchandise stolen, illegally transported and stored by them on the premises of a co-conspirator. Unlike circumstances extant in Jones, the Government’s case against the petitioners in Brown did not depend upon the petitioners’ possession of the seized evidence at the time of the contested search and seizure. 411 U.S. at 228. And, unlike the defendants in Jones, Katz and Mancusi, the petitioners in Brown were not present at the time of the governmental intrusion; they were in police custody in an adjacent state. The Court affirmed their convictions for transporting and conspiring to transport stolen goods in commerce and ruled that they had no standing to contest the search. 411 U.S. at 229. The Court held:
“[TJhere is no standing to contest a search and seizure where, as here, the defendants: (a) were not on the premises at the time of the contested search and seizure; (b) alleged no proprietary or possessory interest in the premises; and (c) were not charged with an offense that includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure.” Id.
Carpenter argues that he had standing to challenge the search because the automobile’s owner, Tackett, gave him the use of the automobile for the day. He maintains that although he was not the owner of the automobile, and although he was in custody at the Auburn police station at the time of the search, he nevertheless had a “right to possess” or “right to control” the automobile. The success of such an argument would depend upon whether a court is compelled to consider different degrees of or the nature of legal interest in determining if a defendant has standing. For example, should a court afford standing to a lessee of a vehicle, yet deny standing to a bailee? In Jones the Court responded to this argument:
“The necessary quantum of interest [for conferral of standing] has been distinguished as being, variously, ‘ownership in or right to *170possession of the premises’... the interest of a ‘lessee or licensee’ ... or of one with dominion____We do not lightly depart from this course of decisions by the lower courts. We are persuaded, however, that it is unnecessary and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than any other branch of law, has been shaped by distinctions whose validity is largely historical.... Distinctions such as those between ‘lessee,’ ‘licensee,’ ‘invitee’ and ‘guest,’ often only of gossamer strength, ought not to be determinative in fashioning procedures ultimately referable to constitutional safeguards.” 362 U.S. at 266.
This conclusion was affirmed in Katz, wherein the Court held that it was the reasonable expectation of freedom from governmental intrusion, and not a property interest in the premises, which conferred standing. 389 U.S. at 352. Conferral of standing upon Carpenter in the instant case must be based on his reasonable expectation of freedom from governmental intrusion, or his legitimately being in the automobile at the time of the search, and not because of an alleged, “right to possess” property interest in the automobile.
Fourth Amendment rights are personal ones which, like some other constitutional rights, may not be vicariously asserted. Simmons v. United States (1967), 390 U.S. 337; Jones v. United States, supra. The search of a third party’s property or home, even if without probable cause, cannot be the basis of a claim by a defendant for the exclusion of evidence obtained thereby. Kirkland v. State (1968), 249 Ind. 305, 232 N.E.2d 365 (defendant, passenger in codefendant’s automobile, held to have no standing to challenge search of automobile); Kendrick v. State (1975), 163 Ind.App. 555, 325 N.E.2d 464 (defendant, in passenger seat of codefendant’s automobile, held to have no standing to object to search of it); Butler v. State (1972), 154 Ind.App. 361, 289 N.E.2d 772 (defendant, standing next to automobile he neither owned nor “was in control of;” had no standing to contest search of it). See also Payne v. State (1976), 168 Ind.App. 394, 343 N.E.2d 325.
I conclude that Carpenter had no standing to challenge the search of Tackett’s automobile. The record reveals that Carpenter was not the *171owner. He was not in possession of the automobile at the time of the search, or even at a reasonable time prior to the search. Rather, Carpenter was in custody at the Auburn police station at the time of the search. In his motion to suppress Carpenter alleged no proprietary or possessory interest in the automobile; his motion contains only the bearest of allegations.1 While in police custody he alleged no possessory interest in the automobile, and at hearing on his motion to suppress Carpenter made no attempt to show the extent of his use of the automobile.2 In these circumstances the belief does not obtain that Carpenter enjoyed an interest in Tackett’s automobile sufficient to afford him a reasonable expectation of freedom from governmental intrusion. In addition, his claim to standing fails under that standard announced in Brown v. United States, supra. Possession of the diamond rings was not an essential element of Carpenter’s offense. I would thus uphold the search and seizure in the instant case on the basis that Carpenter lacked standing to challenge it, and not upon the basis that an erroneous Fourth Amendment ruling at a suppression hearing can be validated by facts surfacing at trial.
NOTE — Reported at 378 N.E.2d 908.
. The substance of Carpenter’s motion read:
“In support of this motion, defendant would state:
1. That the State of Indiana searched a car on East 7th Street, between Main and Cedar Streets, in the City of Auburn, County of DeKalb, State of Indiana, without a search warrant and obtained property therefrom as a consequence of an unlawful search and seizure.”
The State of Indiana, in its response to Carpenter’s motion and at the hearing on Carpenter’s suppression motion, alleged that Carpenter lacked standing to challenge the search and seizure. See Combs v. United, States (1972), 408 U.S. 224.
. Cf. United States v. Burke (9th Cir. 1974), 506 F.2d 1165. Burke was arrested by FBI agents in connection with two bank robberies as he was driving a Chevrolet van. Burke’s brother was the record owner of the van, and he gave FBI agents permission to search it. A search revealed guns related to the bank robberies. Burke objected to the search. The Government contended Burke lacked standing to object. The district court concluded that “regardless of who owned the van, the defendant used it extensively.” 506 F.2d at 1171. The Ninth Circuit agreed and concluded: “As a result of his repeated use of the van, the appellant had a reasonable expectation of privacy and freedom from search in the use of the van.” Id.