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Lingo v. City of Salem

United States Court of Appeals, Ninth Circuit

June 27, 2016

Lia Marie Lingo; V.R. S., a minor child (age 13), through Guardian Ad Litem, Lia Marie Lingo; J. P. L., a minor child (age 9), through Guardian Ad Litem, Lia Marie Lingo, Plaintiffs-Appellants
v.
City of Salem, a municipality; Steven Elmore, Salem Police Officer in his individual capacity and as a police official for Salem; Justin Carney, Salem Police Corporal in his individual capacity and as a police official for Salem, Defendants-Appellees.

          Argued and Submitted April 8, 2016 Eugene, Oregon

         Appeal from the United States District Court for the District of Oregon, D.C. No. 6:12-cv-01019-MC Michael J. McShane, District Judge, Presiding

          Marianne Dugan (argued), Eugene, Oregon; Brian Michaels, Eugene, Oregon; for Plaintiffs-Appellants.

          Thomas V. Cupani (argued), Assistant City Attorney, City of Salem Legal Department, Salem, Oregon, for Defendants-Appellees.

          Before: Alfred T. Goodwin, Diarmuid F. O'Scannlain, and Edward Leavy, Circuit Judges.

         SUMMARY[*]

         Civil Rights

         The panel affirmed the district court's summary judgment in favor of police officers in an action brought under 42 U.S.C. § 1983 alleging that the officers falsely arrested plaintiff without probable cause after unlawfully entering the curtilage of her home to approach the back door.

         The panel held that the exclusionary rule does not apply in § 1983 cases, and therefore police officers may rely on unlawfully obtained evidence to defend themselves against a constitutional tort action for false arrest. Accordingly, the panel rejected plaintiff's argument that the officers' unlawful entry into her home's curtilage necessarily tainted the arrest that followed. The panel held that the officers had probable cause to arrest plaintiff for endangering the welfare of a minor, in violation of Or. Rev. Stat. § 163.575, after smelling marijuana emanating from her house.

          OPINION

          O'SCANNLAIN, Circuit Judge:

         We must decide whether police officers may rely on unlawfully obtained evidence to defend themselves against a constitutional tort action for false arrest.

         I

         A

         On the afternoon of June 13, 2010, Lia Lingo was engaged in an ongoing dispute with her neighbor, Suzanne Tegroen, regarding Tegroen's pet dog. In the course of the day, Lingo and Tegroen each contacted the Salem, Oregon, Police Department, and that night Officer Steven Elmore was dispatched to Tegroen's residence to investigate. Tegroen told Elmore that she felt verbally abused by Lingo and felt the need to tread lightly around her; Elmore responded that Lingo's conduct did not sound criminal, but that he would try to speak with Lingo to ease tensions.

         Elmore walked to Lingo's house and noticed that its rear outside light was on. Rather than go to the home's front door, Elmore walked through Lingo's carport and knocked on the rear door located within. Stephanie Moore, a visitor, answered the door and went to retrieve Lingo to speak with Elmore. Elmore stated that as soon as Moore opened the door, he smelled marijuana.

         Lingo came outside to speak with Elmore, and he asked her about the marijuana odor. Lingo explained that she was burning hemp-scented incense-which she admitted smells like marijuana-but insisted that she had no actual marijuana inside. Skeptical, Elmore asked for permission to search Lingo's house; Lingo refused. Later, another officer, Justin Carney, arrived at Lingo's house to join Elmore. Carney stated that he also smelled marijuana coming from the house, and again the officers asked for permission to search the home. Lingo again refused.

         At some point during the course of Elmore's discussion with Lingo, Lingo's seven-year-old child opened the back door and peered out. Elmore asked Lingo if there were children in her home, and she confirmed that she lived with her two minor children. Eventually, after Lingo's repeated refusals to allow the officers to search her home, they placed her under arrest for endangering the welfare of a minor, in violation of Or. Rev. Stat. § 163.575.

         After Lingo was arrested, Elmore went into the home and collected the two children so that they could be moved somewhere safer. While Lingo sat in Elmore's police car, the children sat in the carport and eventually in the back of Carney's police car. At Lingo's direction, the children were brought to her great aunt's ...


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