US v. Fay
No. 04-10401 (6-3-05). Okay, this is one of the stranger opinions as to form that has come along. The issue is pretty straight-forward: the defendant had a gun in his girlfriend's house, in a duffel bag that was son a high shelf in the laundry room. The girlfriend told the police that the defendant was a prohibited possessor, and showed the officer the bag, whereupon the officer reached up, saw the outline of the gun and ammunition peeking out from opening. He then got a warrant. The defendant argued that he had an expectation of privacy and consent. The 9th (Noonan) said "no" because the bag was there for anyone to look into and not hidden. Noonan than wrote a concurrence (!) to his own opinion, arguing that the distinctions being drawn are too fine, and that a householder who knew of illegal articles, even though they belonged to someone, should be allowed to have them seized. So, we have Noonan writing an opinion and concurring with himself.
posted by Jon Sands at 6/07/2005 09:29:00 AM
2 Comments:
The procedure is unusual, but appropriate. The panel opinion analyzed and decided the case under existing circuit authority. Noonan didn't entirely agree with that authority, but was obliged to follow it when writing for the panel.
Noonan then wrote separately to express his personal views, and to argue for revisiting circuit precedent. He properly refrained from inserting those personal views into the majority opinion.
The alternative would have been to reassign the majority opinion (which made little sense after he had already done all the work) or else label it a per curiam opinion.
The procedure is unusual, but appropriate. The panel opinion analyzed and decided the case under existing circuit authority. Noonan didn't entirely agree with that authority, but was obliged to follow it when writing for the panel.
Noonan then wrote separately to express his personal views, and to argue for revisiting circuit precedent. He properly refrained from inserting those personal views into the majority opinion.
The alternative would have been to reassign the majority opinion (which made little sense after he had already done all the work) or else label it a per curiam opinion.
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