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Lingo v. City of Salem

United States Court of Appeals, Ninth Circuit

August 8, 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

          Amended August 8, 2016

         Appeal from the United States District Court No. 6:12-cv-01019-MC for the District of Oregon 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.

         ORDER

         The opinion filed in this case on June 27, 2016, is hereby amended. An amended opinion is filed concurrently with this order.

         With 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.

         The petition for panel rehearing and petition for rehearing en banc are DENIED. No subsequent petitions for rehearing or rehearing en banc may be filed.

          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; ...


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