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
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.
and Submitted April 8, 2016 Eugene, Oregon
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.
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.
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.
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
O'SCANNLAIN, Circuit Judge:
decide whether police officers may rely on unlawfully
obtained evidence to defend themselves against a
constitutional tort action for false arrest.
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.
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.
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.
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.
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 ...