
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-1755                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    AARON KIMBALL,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                         Torruella and Stahl, Circuit Judges.                                              ______________                                _____________________               Peter Clifford, by Appointment of the Court, for appellant.               ______________               Margaret  D. McGaughey,  Assistant  United States  Attorney,               ______________________          with whom Jay P. McCloskey, United States Attorney, and George T.                    ________________                              _________          Dilworth,  Assistant United  States Attorney,  were on  brief for          ________          appellee.                                 ____________________                                     May 23, 1994                                 ____________________                    TORRUELLA, Circuit Judge.  Aaron Kimball was charged in                               _____________          a single count indictment with  burglarizing a United States Post          Office  in  North  Waterboro,  Maine,  on  October  2,  1992,  in          violation of 18 U.S.C.    2115 and 2.   Kimball moved to suppress          1) physical evidence  seized from the car in which  he was riding          and  2)  all statements  made to  police  by his  codefendants on          October 3, 1992, the morning  of his arrest.  The  district court          denied Kimball's motion.  Kimball then entered a conditional plea          of  guilty to the indictment.   Kimball now  appeals the district          court's denial of his motion to suppress.  We affirm.                                    I.  BACKGROUND                                    I.  BACKGROUND                                        __________                    A.  Facts                    A.  Facts                    We  view the facts in  the light most  favorable to the          district  court's  ruling with  respect  to  Kimball's motion  to          suppress.  See United  States v. Maguire, 918 F.2d  254, 257 (1st                     ___ ______________    _______          Cir. 1990), cert. denied, 499 U.S. 950 (1991).                      ____________                    There were four night-time  burglaries of schools and a          church in western York County, Maine in late September 1992.  The          York County Sheriff's Department  issued a crime bulletin related          to  these  burglaries  and  distributed it  to  deputies  in  the          Sheriff's  department.   The names  "Huertas" and  "Kimball" were          handwritten on the  bottom of  the bulletin.   It was  apparently          standard  practice of  the  York County  Sheriff's Department  to          write the names of suspects on the bottom of crime bulletins.  No          evidence was presented, however, as to specifically who wrote the          names  on the bottom  of the bulletin  or why these  two men were                                         -2-          thought to be suspects.  The bulletin stated that the same  modus                                                                      _____          operandi was used in all four burglaries: using a crow bar to pry          ________          doors, latches, and file cabinets open.                    Just after  midnight on October 3,  1992, Deputy Thomas          Word saw an automobile in the Massabesic High School parking lot.          As the vehicle pulled out of the school parking  lot, Deputy Word          recognized the vehicle as  belonging to Gregory Huertas.   Deputy          Word knew that Huertas had previously been convicted of burglary,          and that Huertas was a suspect in the recent burglaries.   Deputy          Word  then pulled the vehicle  over, and advised  the York County          dispatcher that he had stopped a suspicious vehicle that had been          on  school property.  Deputy Word then approached the vehicle and          saw  Huertas in the driver's seat and  Kimball in the right front          passenger's seat.  A  man later identified as Michael  Brochu was          sitting  between Huertas and Kimball  in the front  seat.  Deputy          Word shined his flashlight into the car, at which point  he saw a          crowbar and flashlight on the floor in the back seat.                    Deputy  Word  requested  that  Huertas  show   him  his          license, Huertas complied, and Deputy Word returned to his car to          run  a license  check.   Before  receiving  a response  from  the          dispatcher,  Deputy Word went back to  Huertas' vehicle and asked          Huertas  to step  out  of  the  car.    Several  other  officers,          including  Deputy  Philip  Weymouth,  arrived at  the  scene  and          informed  Deputy  Word  that   Huertas'  license  to  operate  an          automobile had been suspended.  Huertas was arrested and taken to          the  York  County Sheriff's  office.    The  deputies then  asked                                         -3-          Kimball  and Brochu whether they  would also go  to the Sheriff's          office, and they agreed to do so.                    At the police station,  after being given their Miranda                                                                    _______          rights,  Huertas and  Brochu were  interviewed separately.   They          both admitted that they had burglarized the  North Waterboro Post          Office earlier that evening.  Kimball did not speak to any of the          officers and did not make a statement.                    At  the  scene  of  the initial  vehicle  stop,  Deputy          Weymouth arranged  to have Huertas' vehicle  towed, and conducted          an inventory search of the vehicle  before it was towed.   Deputy          Weymouth  recorded  on  the  inventory form  that  he  found  two          crowbars, a flashlight,  a hammer,  a pair of  bolt cutters,  and          assorted screwdrivers in the vehicle.                    B.  Proceedings Below                    B.  Proceedings Below                    Kimball filed a motion  to suppress the introduction of          evidence  of  the  tools  found  in   Huertas'  vehicle  and  the          statements made by Huertas and Brochu, claiming that the evidence          obtained was  the fruit of an unconstitutional stop of the car in          which  he  was riding.   The  district  court denied  the motion,          finding that the circumstances reasonably justified Deputy Word's          initial stop of Huertas' vehicle and the initial detention of the          vehicle's occupants.  The court found that  the scope of the stop          was limited and reasonably related to the  reasons that justified          it.  The court also found that the tools were seized as part of a          lawful inventory search of the car.                    Kimball now appeals the  district court's denial of his                                         -4-          motion  to suppress.   Kimball contends  that the  district court          erroneously  concluded  that 1)  Deputy  Word  had the  requisite          reasonable suspicion  necessary to stop Huertas'  vehicle; 2) the          stop  was  reasonable  in its  duration  and  scope;  and 3)  the          physical evidence  and incriminating statements  were not legally          attributable to an unlawful stop.                        II.  KIMBALL'S FOURTH AMENDMENT CLAIM                        II.  KIMBALL'S FOURTH AMENDMENT CLAIM                             ________________________________                    A.  Does Kimball Have Standing1 To Challenge the Stop?                    A.  Does Kimball Have Standing1 To Challenge the Stop?                    As  a  threshold  matter, the  Government  argues  that          Kimball lacks standing to  challenge the constitutionality of the          stop of Huertas' vehicle.2  We disagree.                    Fourth Amendment  rights are personal,  and a proponent          of   a  motion  to  suppress   must  prove  that  the  challenged          governmental  action infringed  upon  his  own  Fourth  Amendment          rights.   United States v.  Soule, 908 F.2d  1032, 1034 (1st Cir.                    _____________     _____          1990) (citing Rakas v.  Illinois, 439 U.S. 128, 131  n.1 (1978)).                        _____     ________          A  police officer's act of  stopping a vehicle  and detaining its                                        ____________________          1  We use the term "standing" as a shorthand  method of referring          to the  issue of  whether the  defendant's  own Fourth  Amendment          interests  were implicated by the challenged governmental action.          "Technically,  the concept of 'standing'  has not had  a place in          Fourth Amendment jurisprudence for more than a decade,  since the          Supreme  Court  in  Rakas  v.  Illinois,  439  U.S.  128  (1978),                              _____      ________          indicated that matters of standing in the context of searches and          seizures  actually involved  substantive  Fourth Amendment  law."          United States v. S nchez, 943 F.2d 110, 113 n.1 (1st Cir. 1991).          _____________    _______          2   The  Government challenged  Kimball's standing to  bring this          motion  to suppress in the  district court.   The district court,          however, elected to consider,  and then rejected Kimball's Fourth          Amendment claim  on the merits without  first determining whether          Kimball in fact had standing.                                         -5-          occupants constitutes a seizure within the meaning of the  Fourth          Amendment.  Delaware  v. Prouse,  440 U.S. 648,  653 (1979);  see                      ________     ______                               ___          also  Michigan Dept. of  State Police v. Sitz,  496 U.S. 444, 450          ____  _______________________________    ____          (1990);  United States v. Sharpe, 470 U.S. 675, 682 (1985).  Such                   _____________    ______          a  stop affects an  occupant's interest  in freedom  from random,          unauthorized, investigatory  seizures.  Prouse, 440 U.S. at 657.                                                   ______          An occupant's  interest in avoiding the  substantial anxiety that          such stops may create is also affected.  Id.                                                   __                    When a police officer  effects an investigatory stop of          a  vehicle,  all occupants  of that  vehicle  are subjected  to a                       ___          seizure, as defined  by the Fourth  Amendment.   The fact that  a          defendant is a passenger in a vehicle as opposed to the driver is          a distinction of no consequence in this context.  The interest in          freedom of movement and the interest in being  free from fear and          surprise are personal  to all  occupants of the  vehicle, and  an          individual's interest is  not diminished simply  because he is  a          passenger  as opposed to the driver  when the stop occurred.  See                                                                        ___          United States v. Erwin, 875 F.2d 268, 270 (10th Cir. 1989).  Both          _____________    _____          driver and passenger:                      have  their  travel  interrupted  by  the                      sight of a state patrol cruiser or police                      car  looming  large   in  the  rear  view                      mirror,  are detained on  the side of the                      road,  have  their identifying  documents                      inspected  by  the trooper  or policeman,                      and  may even  be  asked  to leave  their                      vehicles   for   the   duration  of   the                      questioning . . . .          United  States v. Powell, 929  F.2d 1190, 1195  (7th Cir.), cert.          ______________    ______                                    _____          denied, 112  S. Ct. 584 (1991).  Moreover, once a car is stopped,          ______                                         -6-          a passenger may  feel no more  free to leave  the scene than  the          driver,  without first  being  allowed to  do  so by  the  police          officer.  Erwin, 875 F.2d at 270 (citing Berkemer v. McCarty, 468                    _____                          ________    _______          U.S. 420, 436 (1984)).  Rather, the passenger is subjected to the          demands and control of the police officer, just as the driver is.          Because a passenger's own interests are affected when the vehicle          in which  he is riding is  stopped, he has  standing to challenge          the stop  of that  vehicle.   United States  v. Roberson,  6 F.3d                                        _____________     ________          1088, 1091 (5th Cir. 1993), cert. denied, 127 L.Ed.2d 574 (1994);                                      ____________          Erwin, 875 F.2d at 270; United States v. Portwood, 857 F.2d 1221,          _____                   _____________    ________          1222  (8th Cir. 1988), cert. denied, 490 U.S. 1069 (1989); United                                 ____________                        ______          States v. Durant, 730  F.2d 1180, 1182 (8th Cir.),  cert. denied,          ______    ______                                    ____________          469  U.S.  843 (1984);  see also  Powell,  929 F.2d  at 1194-95.3                                  ________  ______          Thus,  if the initial stop  of the vehicle  was illegal, evidence          seized  by  virtue  of that  stop,  such  as  the tools  in  this          instance, may be  subject to  exclusion under the  "fruit of  the          poisonous  tree" doctrine.  See, e.g., Wong Sun v. United States,                                      ___  ____  ________    _____________          371 U.S. 471, 484-85 (1963).                    B.  Was the Stop Constitutionally Valid?                    B.  Was the Stop Constitutionally Valid?                    As a  preliminary matter,  we set forth  the applicable                                        ____________________          3  The Government's  reliance on Rakas v. Illinois, 439  U.S. 128                                           _____    ________          (1978), in  the context of a  stop, is misplaced.   In Rakas, the                                                                 _____          United  States Supreme  Court held  that a  mere passenger  in an          automobile ordinarily does not have the legitimate expectation of          privacy  necessary to  challenge the  search of  that automobile.                                                ______          Id.  at  148-49.   The  Supreme  Court's decision,  however,  was          __          limited  to  the  issue  of whether  the  passenger's  legitimate          expectation  of privacy was invaded  by a search  of the vehicle,          and   not  the  stop  thereof.    Id.  at  150-51.  (Powell,  J.,                                            __          concurring).                                         -7-          standard of review.  Whether police activity is reasonable in any          particular  context depends on the facts which are unique to that          incident.  See United States v. Rodr guez-Morales, 929  F.2d 780,                     ___ _____________    _________________          783 (1st  Cir. 1991), cert. denied,  112 S. Ct. 868  (1992).  The                                ____________          trial court  has  a superior  sense of  what actually  transpired          during an incident, by virtue of  its ability to see and hear the          witnesses who  have first hand knowledge of the events.  Id.; see                                                                   __   ___          also United  States v. Karas,  950 F.2d  31, 35 (1st  Cir. 1991).          ____ ______________    _____          Appellate oversight is therefore  deferential, and we review "the          district  court's  findings  of  fact   following  a  suppression          hearing, including  mixed  fact/law findings,  under the  clearly          erroneous test."   Rodr guez-Morales, 929 F.2d  at 783 (citations                             _________________          omitted).    If  the  district  court  applies  the  wrong  legal          standard, however, no deference  attaches to such an application.          Id.          __                    Consistent with the  Fourth Amendment, law  enforcement          agents  may  stop  a   moving  automobile  to  investigate  their          reasonable suspicion  that the vehicle's occupants  were, are, or          ____________________          will  be engaged in criminal activity.  United States v. Hensley,                                                  _____________    _______          469 U.S. 221, 226 (1985); Berkemer v. McCarty, 468 U.S.  420, 439                                    ________    _______          (1984); Rodr guez-Morales, 929 F.2d at 784.                  _________________                      Although stopping a car and detaining its                      occupants constitute a seizure within the                      meaning  of  the  Fourth  Amendment,  the                      governmental interest in investigating an                      officer's reasonable  suspicion, based on                                _______________________________                      specific   and  articulable   facts,  may                      ___________________________________                      outweigh the Fourth Amendment interest of                      the  driver  and passengers  in remaining                      secure from the intrusion.                                         -8-          Hensley, 469 U.S. at 226 (emphasis supplied) (citing Prouse,  440          _______                                              ______          U.S. at 653-55).   To evaluate the overall reasonableness of this          type  of stop,  a "Terry  stop", see  Terry v.  Ohio, 392  U.S. 1                             _____         ___  _____     ____          (1968),  the  reviewing court  must perform a  two step  inquiry:          "the court must first consider  whether the officer's action  was          justified at  its inception; and second, whether the action taken          was  reasonably  related  in  scope to  the  circumstances  which          justified the interference in the first place."  United States v.                                                           _____________          Walker, 924 F.2d  1, 3 (1st  Cir. 1991) (citations omitted).   It          ______          should be kept in mind that when applying this test and assessing          the  reasonableness of  the police  officer's actions,  the court          must consider the totality  of the circumstances which confronted          the officer  at the time  of the stop.   Walker, 924 F.2d  at 3-4                                                   ______          (citing  United States  v. Trullo,  809 F.2d  108, 111  (1st Cir.                   _____________     ______          1987), cert. denied, 482 U.S. 916 (1987)).                 ____________                    To  initially  justify  a  "Terry  stop,"  "the  police                                                _____          officer must be able  to point to specific and  articulable facts          which, taken together with  rational inferences from those facts,          reasonably  warrant that  intrusion."    Terry,  392 U.S.  at 21;                                                   _____          Walker,  924  F.2d at  3; Trullo,  809 F.2d  at  110-11.   In the          ______                    ______          present case, we agree with the district court that Deputy Word's          stop of Huertas'  vehicle was  warranted at its  inception.   The          record indicates that Deputy Word was able to articulate a number          of  factors that made him  suspicious of Huertas'  vehicle in the          early  morning  hours of  October 3,  1992.   First,  Deputy Word          observed the vehicle in a school parking lot after midnight, long                                         -9-          after any school functions  had ended.  Second, Deputy  Word knew          by virtue of the crime  bulletin, that a number of schools  and a          church  in  the  area  had  been  burglarized  during  the  weeks          immediately  preceding the  stop.   Thus, as  the  district court          noted, "the  presence of a car,  in close proximity to  a school,          late  at night,  not  in  conjunction  with  any  school  related          function,  was, in light of the officer's knowledge of the recent          local  pattern of  burglaries  at public  schools, an  additional          suspicious circumstance."  United States v. Kimball, 813 F. Supp.                                     _____________    _______          95, 98  (D. Maine 1993).4    A third articulable  factor was that          Deputy Word recognized  the vehicle as belonging  to Huertas, and          he knew that Huertas had a criminal history involving burglaries.          A police  officer's knowledge  of an individual's  prior criminal          activity is  material to whether the  officer reasonably suspects          that  criminal  activity has  or may  be  occurring.   Cf. United                                                                 __  ______          States v. Taylor, 985 F.2d 3, 6 (1st Cir.), cert.  denied, 113 S.          ______    ______                            _____________          Ct.  2426 (1993) (an affiant's knowledge of the target's criminal          record is material to the probable cause determination to issue a                                        ____________________          4  The  names of Huertas and Kimball had  been handwritten on the          crime bulletin,  identifying them as suspects  in the burglaries.          Because the Government failed  to present any evidence as  to who          handwrote the names on  the bulletin, or why Huertas  and Kimball          were  considered suspects,  we do  not  believe that  this factor          provides  reasonable support for Deputy  Word's stop of  Huertas'          vehicle.  See Hensley, 469 U.S. at 233 ("Assuming the police make                    ___ _______          a  Terry stop in  objective reliance on  a flyer or  bulletin, we             _____          hold  that the  evidence uncovered in  the course of  the stop is          admissible  if the  police  who  issued  the  flyer  or  bulletin                                           ______          possessed  a reasonable  suspicion justifying  a stop  . .  . ").          Deputy Word was  justified, however,  in relying  upon the  other          information contained in the crime bulletin, and even without the          identification  of  Huertas  and  Kimball  as  suspects,  he  was          justified in stopping  Huertas' vehicle on October 3, 1992.                                         -10-          warrant).                    Kimball  contends  that  the  record  demonstrates that          Deputy  Word relied solely on the location of Huertas' vehicle to          support  his decision  to stop  Huertas' vehicle,  and  that this          factor  was legally insufficient to justify the stop.  As support          for this  argument, Kimball relies  on  Brown v.  Texas, 443 U.S.                                                  _____     _____          47,  52 (1979), where the United States Supreme Court stated that          location  alone is insufficient to justify a "Terry stop."  While                                                        _____          Kimball is correct that location in and of itself is insufficient          to justify a "Terry stop," we  have stated that location and  the                        _____          type of area where  the stop is made, is clearly  a consideration          that a police  officer may use to decide to  make a "Terry stop."                                                               _____          Walker, 924 F.2d at 4; Trullo, 809  F.2d at 111.  Deputy Word was          ______                 ______          therefore  reasonably  entitled to  consider  the  fact that  the          vehicle was located in  the school parking lot.   Moreover, as we          have  already noted,  there were  other factors  which buttressed          Deputy Word's decision to stop  Huertas' vehicle.                    Therefore,  we  believe  that  the  district court  was          correct  in   concluding that the  factors articulated  by Deputy          Word, taken together,  demonstrated that when he  decided to stop          Huertas'  vehicle,  he  could  have reasonably  believed  that  a          burglary was in process or was about to be committed.5                                        ____________________          5  Kimball makes much of the fact  that Deputy Word stated in one          portion  of his testimony that  he did not  believe that criminal          activity was occurring when he  decided to stop Huertas' vehicle,          and  based on  this testimony,  Kimball therefore  concludes that          Deputy Word  had absolutely no  basis to  stop Huertas'  vehicle.          Kimball assigns too much  weight to one portion of  Deputy Word's          testimony,  and   misconstrues  the   import  of   Deputy  Word's                                         -11-                    We now  review whether the action taken  by Deputy Word          and  the other  York County  deputies was  reasonably related  in          scope to the circumstances which justified the stop.  Walker, 924                                                                ______          F.2d  at 3.    The district  court  concluded that  the  stop was          reasonably related to the investigation and did not last too long          or   create  an   excessive  intrusion  into   Kimball's  privacy          interests.  Kimball, 813 F. Supp. at 99.  The "Terry stop" lasted                      _______                            _____          long  enough for Deputy Word  to establish the  identities of the          occupants of the vehicle, to ask the occupants why they  had been          on the school grounds, and to run a license check  on the driver,          Huertas.  Id.    Thereafter, upon learning that  Huertas' license                    __          had been  suspended, the police  properly arrested Huertas.   Id.                                                                        __          The  district court  found that  the police  officers  then asked          Kimball and  Brochu, in a nonthreatening  and noncoercive manner,          if they  would  agree  to come  to  the station  to  answer  some          questions, and that  they voluntarily  consented to do  so.   Id.                                                                        __          The "Terry stop"  therefore ended when Kimball and  Brochu agreed               _____          to go with the police officers to the station.  Id.                                                          __                    Kimball  challenges  the  district   court's  findings,          arguing that he was effectively  seized after Deputy Word stopped          Huertas'  vehicle, prior to the  officer's request that  he go to          the  station  for  further  questioning,  and  that  he  did  not                                        ____________________          testimony, on one occasion, in response to repeated questions  at          the suppression  hearing as to  why he stopped  Huertas' vehicle.          Kimball ignores substantial other  testimony by Deputy Word which          makes it clear that Deputy Word  stopped Huertas' vehicle because          he believed it was suspicious, based on the fact that the vehicle          should not have been in the school parking lot at that late hour,          and there had been a recent rash of school burglaries.                                         -12-          voluntarily consent to  go with the  officers.  Kimball  contends          that the "Terry stop"  did not end until his arrest several hours                    _____          later, and the stop was thus unreasonable in duration.                    The question  of whether  a defendant has  consented to          questioning  by the police,  and whether  that consent  was given          voluntarily, are  questions of  fact to  be  determined from  the          totality of all of the circumstances.  Schneckloth v. Bustamonte,                                                 ___________    __________          412 U.S.  218, 227  (1973);   United States  v. Miller,  589 F.2d                                        _____________     ______          1117,  1130 (1st Cir. 1978),  cert. denied, 440  U.S. 958 (1979);                                        ____________          United States v. Analla, 975 F.2d 119, 125 (4th Cir. 1992), cert.          _____________    ______                                     _____          denied,  113 S.  Ct.  1853  (1993).    The  record  supports  the          ______          conclusion that Kimball voluntarily consented to undergo  further          questioning.  The testimony  of Deputy Weymouth demonstrates that          the  deputies asked Kimball  several times whether  he would come          down to the station and talk with officers, and each time Kimball          expressly agreed  to do so.   This was not an  unusual request by          the officers; rather, it  was department policy not to  engage in          detailed interviews  on the side of the road.  See, e.g., Florida                                                         ___  ___   _______          v.  Royer, 460  U.S. 491, 504-05  (1983) ("there  are undoubtedly              _____          reasons  of  safety and  security  that  would justify  moving  a          suspect  from one  location  to another  during an  investigatory          detention  . .  . ").   There  is no  evidence that  Kimball ever          indicated that he was unwilling to accompany  the police officers          to the station.   Moreover, there is no evidence  that any of the          officers  coerced or  intimidated Kimball  into going  with them.          Although Kimball was not expressly told that he was free to leave                                         -13-          the  scene, or free to refuse to undergo further questioning, and          this  fact cuts against a finding of voluntariness in the overall          calculus,  the Government  was not  required to  demonstrate such          knowledge by Kimball as  a prerequisite to establishing voluntary          consent.  Schneckloth, 412 U.S. at 249.                    ___________                    The record  also indicates  that both the  officers and          Kimball acted in a manner  that was at all times  consistent with          Kimball  having  voluntarily consented  to  their  request.   The          officers did  not handcuff or  physically restrain Kimball.   The          officers  did not threaten to  arrest Kimball.   The officers did          not  take any  identification or  personal effects  from Kimball.          Additionally,  when Kimball  was transported  to the  station, he          rode  in  the  front  seat  of  Deputy  Word's  patrol  car,  and          apparently engaged in relaxed  conversation that was unrelated to          the  case.   Once  Kimball arrived  at  the station,  the  police          officers permitted Kimball to move freely around the station.                    As  a general matter,  we would be  cautious in finding          that  a  defendant  voluntarily  consented  to   undergo  further          questioning when, after being stopped by one police officer, five          other  officers   converge  on  the  scene   soon  thereafter  to          investigate.     Additionally,   Kimball,  like   any  reasonable          defendant,  may have been intimidated by the fact that the driver          of the vehicle,  Huertas, was  then arrested for  driving with  a          suspended license, and taken  to the police station.   We believe          that  here,  however, our  general  fears are  outweighed  by the          specifics  of the situation,  which point to  the conclusion that                                         -14-          Kimball did in fact agree to go to the station.   After examining          the  record, we  are left  with the  impression that  Kimball did          initially  consent  voluntarily  to  further questioning.    Upon          learning  that  further  questioning  at  the   station  produced          incriminating statements from his codefendants,  however, Kimball          now wants to  challenge the  voluntariness of his  consent in  an          attempt to taint  the police  officers' conduct  in stopping  and          questioning  all three occupants of  the vehicle.   The nature of          Kimball's  consent  obviously does  not  hinge  upon whether  his          strategic decision  to acquiesce to the  police officer's request          was effective.                    We  do not  believe that  the district  court's finding          that Kimball's  consent to further questioning  was voluntary, is          clearly  erroneous.   See, e.g.,  Karas, 950  F.2d at  35; United                                ___  ____   _____                    ______          States  v. Manchester, 711 F.2d 458, 462 (1st Cir. 1983); Miller,          ______     __________                                     ______          589 F.2d  at 1130.  We  therefore conclude that the  "Terry stop"                                                                _____          was reasonable at its  inception and in its duration,  given that          the stop ended when Kimball agreed to go to the station, and that          the  stop did not in  any way violate  Kimball's Fourth Amendment          rights.                    C.   Standing to Challenge the Inventory Search?                    C.   Standing to Challenge the Inventory Search?                    While we have  found that Kimball does have standing to          challenge the stop and consequently the seizure of the tools as a          fruit  of  that  stop,  Kimball could  separately  challenge  the          constitutionality  of the inventory  search itself, through which          the  police officers seized the  tools.  Standing  to challenge a                                         -15-          search  presents issues  separate and  distinct from  standing to          challenge the  stop.  Erwin, 875  F.2d at 269.   Kimball in fact,                                _____          does  additionally argue  that the  police officer's  decision to          impound Huertas' vehicle, and the ensuing inventory search, was a          mere  subterfuge  to  perform  an  unconstitutional investigatory          search.   We  believe that  Kimball lacks  standing to  object to          either  the  seizure  of  the  car or  the  subsequent  inventory          search.6                    In  order  to  embark  on a  suppression  challenge,  a          "defendant must  show that  he  had a  reasonable expectation  of          privacy in the area searched and in relation to the item seized."           United  States v.  Aguirre, 839  F.2d 854,  856 (1st  Cir. 1988)           ______________     _______          (citing United States  v. Salvucci, 448  U.S. 83, 90-92  (1980));                  _____________     ________          see  also United States  v. Mancini,  8 F.3d  104, 107  (1st Cir.          _________ _____________     _______          1993).   "[T]he defendant must show both a subjective expectation          of  privacy   and  that  society  accepts   that  expectation  as          objectively  reasonable."   Mancini,  8  F.3d  at 107  (citations                                      _______          omitted).  The burden  of proving this expectation lies  with the          defendant.  Mancini, 8 F.3d at 107.                      _______                    The   record  is   bereft  of  evidence   that  Kimball          maintained  a subjective  expectation of  privacy in  the vehicle          apparently  owned and operated by Huertas.  The record also fails          to  disclose any facts which show that Kimball had an objectively          reasonable expectation of privacy in his friend's vehicle.  Thus,                                        ____________________          6   While the district  court concluded that  the police officers          lawfully  performed the  inventory  search and  seized the  tools          found in the vehicle, we do not reach this issue.                                         -16-          Kimball  has  failed to  proffer  any  evidence establishing  any          privacy expectation in the area searched.                    Kimball instead bases his  claim for standing solely on          the  fact  that he  claimed a  possessory  interest in  the items          seized during the inventory search.  This  contention, in itself,          however, is insufficient to confer standing.                      Ownership   alone   is   not  enough   to                      establish  a  reasonable  and  legitimate                      expectation  of  privacy.   Ownership  is                      relevant  to the  inquiry .  . .  but the                      total circumstances determine whether the                      one   challenging   the   search  has   a                      reasonable and  legitimate expectation of                      privacy in the locus of the search.          United  States v. Dall, 608 F.2d  910, 914 (1st Cir. 1979), cert.          ______________    ____                                      _____          denied,  445  U.S.  918  (1980)  (citations  omitted);  see  also          ______                                                  _________          Salvucci, 448 U.S. at 92 ("we must ... 'engage in a conscientious          ________          effort  to apply  the  Fourth  Amendment'  by asking  not  merely          whether  the defendant  had a  possessory interest  in the  items          seized, but whether he had an expectation  of privacy in the area          searched.")  (quoting Rakas, 439 U.S.  at 147-49).  Certainly the                                _____          fact that Kimball  owned the  tools was a  factor working in  his          favor in  the standing determination.7  Without any evidence that          Kimball left the  tools in  a place that  could justifiably  give          rise to an  expectation of  privacy, however, he  simply has  not                                        ____________________          7  The tools were apparently  in an opened black bag in the  back          seat  of  Huertas' vehicle.    While  a "bag  may  be  used as  a          repository of personal possessions," the mere possibility of such          personal  use does  not  lead us  to  "the conclusion  that  such          contents  are  'inevitably'  associated  with  an expectation  of          privacy."  United States v. Goshorn, 628 F.2d 697, 700  (1st Cir.                     _____________    _______          1980).  Kimball failed  to introduce any evidence that  he had an          expectation of privacy in the bag.                                         -17-          sustained  his  burden  of  demonstrating  that  his  own  Fourth          Amendment rights  were affected  by the  inventory search  of the          vehicle.  See, e.g., Aguirre, 839 F.2d at 857.                    ___  ____  _______                    D.  Statements Made By Huertas and Brochu                    D.  Statements Made By Huertas and Brochu                    As   a  final   matter,   Kimball  contends   that  the          confessions  made by  Brochu  and  Huertas  were  "fruit  of  the          poisonous  tree" from  the  allegedly  unconstitutional  stop  of          Huertas'   vehicle,  and   the  statements   must  therefore   be          suppressed.  The short answer to this contention is that  we have          found nothing  unreasonable about  the stop of  Huertas' vehicle,          and therefore,  there  is nothing  constitutionally  infirm  with          admitting these statements.                    For the foregoing reasons, the decision of the district          court is affirmed.                   ________                                         -18-
