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.