judgment one issue is whether there is a jury question regarding whether there was probable cause and the second is the fruit of whether the fruit of the poisonous tree doctrine applies to civil section hundred eighty three cases where the civil defendants are the same piece parties who violated the law as you also know that it's the law of the case because there's been no cross appeal that the defendants did violate the fourth amendment by going to ms lingos rear door or through the carport runners probable cause in this situation is a jury question in addition to the wall v city of orange county of orange case that we cited in the briefs and i would point you to mckenzie versus lamb which is the one thousand nine hundred four one circuit case in which this court distinguished civil cases from key criminal cases on this issue and held that generally and the court used to that word probable cause is an issue for the jury and summary judgment is appropriate only if no reasonable jury could find that the officers did not have probable cause to arrest and so in that case in the mackenzie case the court reversed summary judgment here we have abundant facts that should go to the jury as to whether there was probable cause and the foremost is the credibility of the officer who asserted that there has been quote overwhelming smell of marijuana quote seeping this case there's no question it's true that the marijuana was found ok correct your honor and you want me to move to the fruit of the poisonous tree issue then i will have just raising the question yes so we can focus on on probable cause primarily ok so there are two issues i do believe that the case law is in support of applying the fruit of the poisonous tree to civil cases because that doctrine is a judicially created doctrine intended to discourage the violations of the fourth amendment as the court said the supreme court said in  is and the deterrent effect is fully implicated here because the parties are the same in genesis it did not apply the supreme court said that the tree will not apply in a tax case because the taxing authorities obviously are not the ones who violated the fourth amendment so there's no deterrent effect and similarly in calandra the supreme court held that  the doctrine does not apply to a grand jury proceeding because the grand jury didn't violate the fourth amendment but here where the party who's being sued is the party who violated the fourth amendment clearly the deterrent effect should apply and therefore the  exclusionary rule should be applied in trust sovereign violations here we have an interest sovereign violation and it should apply but even if it does not apply we then have the question of whether there's a probable cause issue that should go to the jury the officer testified that there was a or he stated in the search warrant affidavit that there was a quote overwhelming smell of marijuana seeping out the back door but they only found when the officers came they stated that they only smelled it as they were going up the second set of stairs there were two sets of stairs they found only one point eight grams of marijuana including the weight of the package officers did not investigate they did not interview the adult witness who was still in the house they didn't interview the children they didn't do a u a they didn't do a blood test or a drug recognition expert examination and his lingo denied the marijuana was that marijuana was burning in the house she was arrested for endangering her children her children were taken away from her because of that because she was not going to be in the home this was a severe violation of the family's rights this probable cause issue should go to the jury other cases holding that that is a jury question our smitty versus varney that's a nine hundred eighty one h four sixty three two thousand and seven one three case and there's a ninth circuit model instruction on probable cause so clearly the ny circuit contemplates the probable cause goes to the jury the officers a duty to investigate and there's a jury question as to whether they investigated properly before arresting ms lingo and taking her children away in this court case mendocino environmental investigation was adequate prior to arrest that issue should go to the jury in addition there are two criminal cases from this court stirs  a two thousand five case so here where they're making an immediate arrest of a woman who is not imminently endangering her children they open the door they don't find any marijuana they don't find marijuana on the first floor they only smell it going up the second floor and then they only find it after a thorough search one point eight grams of marijuana clearly by that  discussion in the search warrant affidavit at fifty five is ms lingo explained in fence was burning it's only later that this discussion later after litigation this is caution of hemp smelling marijuana is brought up there so at the time the officer arrested her there was no probable cause but even if there had been at the moment they start searching the house it's a mediately apparent that the probable cause h dissipated because there's no evidence supporting this theory that there's marijuana being burnt and therefore under us for support he is hernandez which i cited earlier she should have been released immediately but she was held to probable cause we do not have any real factual issue when you argue that there was no probable cause you're just putting a label on the facts that are not a dispute am i right no that stuff correct your honor as in a wall if the jury believes that believes in this lingo his statement the q but not burning was not had not smoked marijuana in the  front of the children and that there was not marijuana being burned in the house but the issue is not whether or not the issue is what the police do when they are that's all they  the criminal court and the district court in this case found that it was an illegal ok now the finding is based upon what the police perceived of the evidence that they had in front of them when they w saw children and they smelled what they claimed was the odor of marijuana when they entered they did not smell marijuana when the because they were aware that the that the mother of these children was saying it was the product of incense right the mother called the officer when they were outside that she was burning incense that and that it was especially contracted if you will so that it would smell like marijuana she did not say that at the time because it was not in the search warrant affidavit that fact ok whe did that where did that come into the record that she said it was formulated to smell like marijuana is it in this case it came in the depositions that may have come up in the criminal case as well as about the right for purpose of probable cause it's entirely irrelevant because it was not stated in the search warrant affidavit and certainly he would have put that in there but for the time being we're talking about probable cause to arrest correct so he did not hear that at the time because it was certainly a material fact he would affidavit all right well so when you say there is a question of probable cause you visualize that that issue would be presented to a and here where the officer swore that he smelled that quote overwhelming smell of marijuana ok it was only one point eight grams of marijuana upstairs in a nightstand that's an issue of credibility for the cherry now in this in this case not a criminal case but in this case once you're in front of a court that is also a juvenile court then a lot of these things are cast aside the initial order to take the child out of the home but aside from the what you claim is the illegality of the entry given the it and given the subsequent search there would certainly be probable cause to believe and if sufficient case to go to the jury that this householder was guilty of the charge of abusing the make that distinction it says in the presence of children but that's not in the present in the mom's in the mom's bedroom in a night stand in a container it's not one of i mean that wasn't briefed and i'd be glad to submit a supplemental  to decide that well it's an issue of law in the criminal case and the the court this court made that clear that distinction clear in the kinsey versus land in the civil cases it's not an issue of law per se if there if a reasonable jury could find that there was no probable cause than they could because of the credibility issue of this officer all right thank you your counsel i you had asked to reserve some time o identified that there is no material issue of fact regarding probable cause in this case and that's because the horta said that probable cause can be found by virtue of the smell of marijuana sergeant elmore smell what he believed to be marijuana he was saw that there were minor children present and he took steps to ensure that this lingo was not participating in the oregon medical marijuana program and so those facts together constitute probable cause and therefore in action for false arrest would not lie  the placement of the children with a family member under the supervision of v h s was authorized by law and the district court found that that was justified the application of the exclusionary the common law roots of the one thousand nine hundred three action would not of allowed recovery for any action from incarceration resulting from an illegal search section one hundred eighty three actions are tailored to particularly to the particular familial relationship application of the exclusionary rule does nothing to vindicate the harm that was alleged by the planes the exclusionary rule should be applied as a last resort in those cases where it's the most effective deterrent to police misconduct the circuit courts in towns ran and hector and one under board case that i found out of the first circuit while i was preparing for this case machado v where court noted applying this equation a rule that have a disproportionate effect because all violations minor and major would result in the same sanctions application excluded of the exclusionary rule for fourth amendment violation in a case where the plane  is attempting to recover for illegal arrests would offer no a vision of the terms and would provide the plaintiff to profit from her illegal behavior the outcome found by the towns for that outcome found by the square would be peculiar if not perverse exclusionary rule is not a right personal to the point as a court's even in calandra so judicially created remedy designed to safeguard fourth amendment rights generally rather than a personal constitutional right the courts within the ninth circuit have refrained from applying the exclusionary rule to these one thousand a three actions and the fact there have been three cases and will submit a twenty seven j apply the exclusionary rule neal versus california city reserves of forest and reverse versus united states and all of those cases have cited the reason behind the exclusionary rule and the difficulty of applying the rule in the civil conte players are alleging false arrests excluding evidence leading up to the arrest leaves the fact finder with no understandable context to deciding the case where the egregiousness of the violation of one is found additionally the considered attenuated in the years have passed since the incident and place are now represented by counsel the parties be prevented from discovering information based on the legally obtained evidence in this case the plaintiff in her deposition  minutes at the time they will often surgeon elmore appeared at her home she was burning incense it smells like marijuana she offered the smell of incense at the scene as an explanation for the smell that officer elmore with it was smelling she went on to discuss at her deposition how she enjoyed the smell of marijuana how people can become connoisseurs of the various strains of marijuana and their smells this information certainly refrains the circumstances of the officers were confronted with and would inform a jury regarding the reasonableness of their actions the district courts of the circuit courts which of look at the application of the exclusionary rule have done so without looking at whether the evidence is gathered by the same or different sovereigns players rely on u s b janice for the proposition that defendants cannot avail themselves of the evidence in this case because they knew they were the ones who people illegally obtained the evidence if the defendant it's the defendant's position to janice's applicable for the them in a situation where the defendant is the one overturn years of jurisprudence in this area and given the context of this case such a seismic change in the laws of warrant it the context of this case must be kept in mind sergeant elmore went to the house not for the purposes of investigating a crime but rather to call an ongoing neighborhood dispute regarding children and dogs a dispute that resulted in multiple calls for the pleats surgeon elmore visited ms lingo an effort to avoid escalation of the dispute and to provide to prevent further use of emergency services additionally a surgeon elmore was directed to the back of the entrance of the home by the neighbor a person who had the opportunity to view the comings and goings from the house and had personal knowledge that he ignored evidence that he was given that that the back of the house was the appropriate entrance although the district court was particularly concerned about the time of day that sergeant elmore made the approach the neighbor did not limit her comments regarding the comings and goings to a particular day and the activities in the house persons awake children visitors present lights on children up and around the time clock made the visit no more a truce of at ten o'clock as it application of the exclusionary rule outside its tradition traditional realm of criminal law and exults rivera versus ins of twenty second and third one for fourteen forty one the court an immigration proceeding which subsequently decided cases and there's discussion about whether or not when the when the district courts were already listed in either briefs no it was not well and under our rules can't so you should before you leave give under the inclusionary well this is a case about having done something unlawfully buying in or in the back part of the house instead of the front door and that's part of the plaintiff's complaint is not that she is labeling what was done repeatedly as the legal not to exclude it but to say i want compensation for all of these even legal things that have been done to me well they're not suing for the illegal entry into moving into the carpark what they are suing for is they're alleging that there was also a morass that was interference with a familial layoff all of the product of what was illegal from ground zero so we have a whole scenario according to the playing out of the legality illegality in legality and i want compensation for now what position that the exclusionary rule should not apply that to a jury should have the opportunity to hear all of the evidence to hear the justification and just how it legal the whole thing was and as it is it goes to the plaintiff hopeless o the rest was based on probable cause that's a good argument to make to a jury but we're talking about evidentiary admissibility are we not what we're talking about whether or not support is going to allow permit when someone permits a person under eighteen years of age to remain in a place where unlawful activity involving controlled substances is maintained or conducted well in this case after the search warrant there was in fact controlled substances strengthened by the evidence it was of subsequently found in this case for all of these reasons your honour's we're asking the court to affirm the district court's decision not to allow the exclusionary rule in one thousand eight reactions and to find that there is  of the poisonous tree which is kind of related to the exclusionary rule came up against us because the judge apply that rule in the district court after finding that there had been nearly and illegal entry into the home and get to argue false arrest because the plainview doctrine they came in and they found the stuff and you know she's arrested but the court below also failed to look at the dissipation of evidence doctrine would have its desired deterrent effect here because if an officer can be sued for going to the back door illegally they're certainly going to be less likely to do that thank you counsel for the case just argued will be submitted for