Lingo v. City of Salem

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: O'SCANNLAIN, Circuit Judge
• Citation: Lingo v. City of Salem, 832 F.3d 953 (9th Cir. 2016)
• Decision Date: 27 June 2016
• Docket Number: No. 14-35344,14-35344
• Parties: 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.

832 F.3d 953

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.

No. 14-35344

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 8, 2016 Eugene, Oregon

Filed June 27, 2016

Amended August 8, 2016

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.

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; 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 house under Oregon Department of Human Services supervision, where they remained for eight days.

Following Lingo's arrest, the police obtained a warrant to search Lingo's home for controlled substances, based upon an affidavit from Elmore describing the marijuana odor he smelled at her house. Pursuant to the warrant, Salem police searched Lingo's home and found several glass bongs, 1.8 grams of marijuana (including packaging), small baggies commonly used as drug packaging materials, and a small amount of Klonopin, which is a schedule IV prescription drug.

B

Lingo was charged by the Marion County District Attorney with two counts of child endangerment under Or. Rev. Stat. § 163.575. Before trial, Lingo moved to suppress evidence the police obtained in their search of her home, arguing that Officers Elmore and Carney violated the Fourth Amendment by entering her carport and approaching her home's back door. Lingo argued that any evidence collected by the police thereafter should be suppressed as the fruit of that initial unlawful search. The trial court agreed and granted Lingo's motion to suppress. The charges against Lingo were later dropped.

C

Lingo then filed suit under 42 U.S.C. § 1983 against Elmore, Carney, and the City of Salem, alleging that the officers violated the First, Fourth, and Fourteenth Amendments of the federal Constitution by falsely arresting her without probable cause and by interfering with her (and her children's) right to familial association by causing her children to be removed from her home. She sought both compensatory and punitive damages.

The officers and the City moved for summary judgment, and Lingo moved for partial summary judgment. In her motion, Lingo argued that the officers violated her Fourth Amendment rights by entering the curtilage of her home to approach the back door. Lingo's motion did not specify how that violation related to her claims for false arrest or wrongful separation from her children. Perhaps anticipating that, if she prevailed on her motion, Lingo would then attempt to prevent the officers from introducing evidence obtained in violation of the Fourth Amendment to defend themselves and to justify their decision to arrest her, the district court requested briefing on the issue of whether the exclusionary rule had any application in this § 1983 case.

After receiving the supplemental briefing, the district court agreed with Lingo that the officers had indeed violated the Fourth Amendment by entering her home's curtilage, but concluded that the exclusionary rule does not apply to § 1983 claims. The court thus held that the officer's initial Fourth Amendment violation did not taint their ultimate arrest of Lingo and found that, based on the marijuana they smelled at the house, the officers indeed had probable cause to arrest her. The court further held that the officers permissibly relocated Lingo's children to her aunt's home, where they would be away from the suspected marijuana use and where they would not be left home alone. Finally, the court concluded that Lingo had not adequately demonstrated municipal liability. The court granted summary judgment for all defendants.

Lingo timely appealed.

D

On appeal, Lingo challenges only the district court's ruling that her arrest was valid.¹ Specifically, she contends that the district court erred in concluding that the officers had probable cause to arrest her. She argues that such conclusion was flawed because: (1) the officers may not establish probable cause through evidence they gathered as a result of their illegal entry into her carport; and (2) in any event, the undisputed facts at the scene did not support a finding of probable cause.

We address each argument in turn.

II

Lingo's primary argument on appeal is that the officers' unlawful entry into her home's curtilage necessarily tainted the arrest that followed. Drawing from the exclusionary rule's fruit-of-the-poisonous-tree doctrine, she argues that, because the officers were not constitutionally permitted to stand at her house's back door,² they did not have probable cause to arrest her on the basis of evidence they perceived from that unlawful vantage point.

A

We first consider Lingo's contention that the exclusionary rule itself should apply in a § 1983 case.³

Of course, the government may not use evidence seized during an unlawful search as proof against the victim at criminal trial. See Wong Sun v. United States , 371 U.S. 471, 484, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The “fruit of the poisonous tree” doctrine extends the exclusionary rule to require suppression of other evidence that is derived from—and is thus tainted by—the illegal search or seizure.

See id. at 487–88, 83 S.Ct. 407. These rules are not constitutionally required, but instead are “judicially created means of deterring illegal searches and seizures.” Penn. Bd. of Prob. & Parole v. Scott , 524 U.S. 357, 363, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998). And “because the [exclusionary] rule is prudential rather than constitutionally mandated,” courts apply it “only where its deterrence benefits outweigh its substantial social costs.” Id. (internal quotation marks omitted). Suppression of evidence through the rule “has always been our last resort, not our first impulse.” Hudson v. Michigan , 547 U.S. 586, 591, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006).

The exclusionary rule is not “a personal constitutional right of the party aggrieved.” United States v. Calandra , 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). Correspondingly, the rule “does not proscribe the introduction of illegally seized evidence in all proceedings or against all persons.” Penn. Bd. of Prob. , 524 U.S. at 363, 118 S.Ct. 2014 (internal quotation marks omitted). Indeed, the Supreme Court has “repeatedly declined to extend the exclusionary rule to proceedings other than criminal trials.” Id. For example, the Court has held that the rule generally does not...