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
Amended August 8, 2016
from the United States District Court No. 6:12-cv-01019-MC
for the District of Oregon Michael J. McShane, District
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
opinion filed in this case on June 27, 2016, is hereby
amended. An amended opinion is filed concurrently with this
this amendment, the panel has voted unanimously to deny
Appellants' petition for panel rehearing. Judge
O'Scannlain has voted to deny Appellants' petition
for rehearing en banc, and Judges Goodwin and Leavy have so
recommended. The full court has been advised of the petition
for rehearing en banc, and no judge has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35.
petition for panel rehearing and petition for rehearing en
banc are DENIED. No subsequent petitions for rehearing or
rehearing en banc may be filed.
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; ...