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decided: June 23, 1987.



Rehnquist, Brennan, White, Marshall, Blackmun, Powell, Stevens, O'Connor, Scalia

Author: Per Curiam

[ 483 U.S. Page 308]

 We granted the State's petition for certiorari to decide whether respondent retained an expectation of privacy in a bag that he placed in the communal trash bin of a multi-unit apartment building. After briefing and oral argument on that issue, it has now become clear that the question is not properly presented in this case.

[ 483 U.S. Page 309]


Based upon an informant's tip that respondent was accepting wagers on professional football games at a specified telephone number, police began an investigation which eventually led to an application for a search warrant for 1120 North Flores Street, Apartment No. 8, West Hollywood, California. In conjunction with the application, a police officer submitted an affidavit including at least five details in support of the warrant: (1) that the informant had named Rooney and had correctly specified when Rooney would be at the apartment; (2) that the telephone number and utilities were listed to one Peter Ryan, and that use of a pseudonym is common among bookmakers; (3) that Rooney had previously been arrested for bookmaking at the apartment; (4) that through a search of the communal trash bin in the apartment building's basement the police had retrieved a bag containing mail addressed to Rooney at Apartment No. 8, and containing evidence of gambling activity; and (5) that the police had dialed the telephone number the informant had given them and had overheard a conversation involving point spreads on professional football games. See App. 19-28. The Magistrate found probable cause for a search of Apartment No. 8, and issued a warrant. Incriminating evidence was found during the search, and respondent was arrested.

After he was charged with a number of felony offenses, respondent brought a motion to quash the search warrant and to dismiss the felony charges against him. He argued that there was no probable cause to support the warrant because the earlier warrantless search of the communal trash bin had violated his Fourth Amendment rights under a number of California Supreme Court precedents, and that, without the incriminating evidence found in the trash, there was insufficient evidence to support the warrant. A Magistrate granted respondent's motion, agreeing that the evidence obtained from the trash bin could not be used to support the

[ 483 U.S. Page 310]

     search warrant for the apartment, and ruling that the other evidence offered in support of the search warrant was insufficient to establish probable cause. The Superior Court reached the same conclusion. Pursuant to California procedural rules, the State then informed the court that it could not prosecute the case without the evidence seized in the search of the apartment, and the case was dismissed, thus allowing the State to appeal the order quashing the warrant.

The Court of Appeal reversed on the only issue before it -- to use the State's words, "the sufficiency of the affidavit in support of the search warrant."*fn1 175 Cal. App. 3d 634, 221 Cal. Rptr. 49 (1985). Although it concluded that the evidence found in the trash bin could not be used to support the search warrant, the Court of Appeal examined the other evidence offered in support of the warrant under the standards set forth in Illinois v. Gates, 462 U.S. 213 (1983), and held that there was sufficient other evidence to establish probable cause in support of the warrant. The Superior Court's order dismissing the case was therefore reversed, allowing the prosecution to proceed. The California Supreme Court denied

[ 483 U.S. Page 311]

     both petitioner's and respondent's petitions for review. The State then sought review in this Court, arguing that the California courts had erred in stating that the search of the trash was unconstitutional. We granted certiorari. 479 U.S. 881 (1986).


This Court "reviews judgments, not statements in opinions." Black v. Cutter Laboratories, 351 U.S. 292, 297 (1956); see also Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984); Williams v. Norris, 12 Wheat. 117, 120 (1827). Here, the judgment of the Court of Appeal was entirely in the State's favor -- the search warrant which was the sole focus of the litigation was deemed valid. The fact that the Court of Appeal reached its decision through analysis different than this Court might have used does not make it appropriate for this Court to rewrite the California court's decision, or for the prevailing party to request us to review it. That the Court of Appeal even addressed the trash bin issue is mere fortuity; it could as easily have held that since there was sufficient evidence to support the search even without the trash evidence, it would not discuss the constitutionality of the trash search. The Court of Appeal's use of analysis that may have been adverse to the State's long-term interests does not allow the State to claim status as a losing party for purposes of this Court's review.*fn2

[ 483 U.S. Page 312]

     But, the State argues, if the case does come to trial, and if the State does wish to introduce the evidence, it will be barred from doing so because the reasoning in the Court of Appeal's decision will constitute the law of the case. There

[ 483 U.S. Page 313]

     are two too many "ifs" in that proposition to make our review appropriate at this stage. Even if everything the prosecution fears comes to bear, the State will still have the opportunity to appeal such an order,*fn3 and this Court will have the chance to review it, with the knowledge that we are reviewing a state-court judgment on the issue, and that the State Supreme Court has passed upon or declined review in a case squarely presenting the issue. As it stands, we have no way of knowing what the California Supreme Court's position on the issue of trash searches currently is.*fn4 It is no answer to

[ 483 U.S. Page 314]

     say that the California Supreme Court already had its chance to review the matter and declined to do so when it denied the State's petition for review in this case. The denial of review may well have been based on that court's recognizing, as we now do, that the prosecution won below, and was therefore not in a position to appeal. Giving the California Supreme Court an opportunity to consider the issue in a case that properly raises it is a compelling reason for us to dismiss this petition.*fn5 Under these circumstances, our review of the trash-search issue, which has never been the subject of an actual judgment, would be most premature.

The writ of certiorari is dismissed as improvidently granted.

JUSTICE MARSHALL concurs in the ...

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