F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

L I A M A R

I E L I N G O ; V

. R. S., a minor child (ag e 13), throug h Guardian Ad L item, L ia Marie L ing o; J

. P. L ., a minor child (ag e 9), throug h Guardian Ad L item, L ia Marie L ing o,

Plaintiffs-Appellants

,

v.

C I T Y O F S A L E M , a municipality ; S T E V E N E L M O R

E , Salem Police Officer in his individual capacity and as a police official for Salem; J U S T I N C A R N E Y , Salem Police Corporal in his individual capacity and as a police official for Salem, Defendants-Appellees. No. 14-35344

D.C. No. 6:12-cv-01019-MC

OPI NI ON

A ppeal from the United States District Court for the District of Oreg on Michael J . McShane, District J udg e, Presiding

Arg ued and Submitted April 8, 2016

E ug ene, Oreg on

F iled J une 27, 2016L I N G O V

. C I T Y O F S A L E M 2

B efore: Alfred T. Goodwin, Diarmuid F . O’Scannlain,

and Edward L eavy , Circuit J udg es.

Opinion by J udg e O’Scannlain

SUMMARY *

Civil Rights

The panel affirmed the d istrict court’s summary judg ment in favor o f police officers in an action broug h t u n d e r 42 U.S.C. § 1 9 83 alleg ing that the officers falsely a r r e sted plaintiff without probable cause a fter unlawfully entering the curtilag e of her home to approach the back door.

T h e panel held that the ex clusionary rule does not ap p l y i n § 1983 cases, and therefore p olice officers may rel y o n unlawfully obtained evidence to defend themselves ag ainst a constitutional tort action for f alse a rrest. According ly

, the panel rejected plaintiff’s arg ument that the officers’ unlawful entry into her home’s curtilag e necessaril y tainted the arrest that f ollowed. The panel held that the officers had probable

cause to arrest p laintiff for endang e ring the we l f a r e o f a minor, in violation o f Or. Rev. Stat. § 163.575, after smelling marijuana emanating

from her house.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.L I N G O V

. C I T Y O F S A L E M 3

COUNSEL

Marianne Dug an (arg

ued), Eug ene, Oreg on; B rian Michaels, Eug ene, Oreg on; for Plaintiffs-Appellants.

Thomas V. Cupani (arg

ued), Assistant City Attorney
, City o f Salem L eg al Depar tment, Salem, Oreg on, for DefendantsAppellees.

OP INION

O’SCANNL AI

N, Circuit J udg e:

W e must decide whether police offi c e r s may rely on unlawfully obtained evidence to defend themselves ag ainst a constitutional tort action for false arrest.

I

A

On the aft e r n o o n of J u ne 13, 2 010, L ia L ing o was eng age d in a

n ong o ing dispute with her neig hbor, Suz anne Teg r oen, reg arding Teg roen’s pe t d o g

. I n the course of the day

, L ing o a n d T e g roen each contacted the Salem, Oreg on, Police Department, and that n ig ht Officer Steven Elmore was dispatched to Teg roen’s residence to i n v e stig ate. Teg roen told Elmore that she felt verbally abused by L ing o and felt the

n eed to tread lig h tly around her; Elmore responde d t h at L ing o’s conduct did not sound criminal, but that he would try to speak with L ing o to ease tensions.L I N G O V

. C I T Y O F S A L E M 4

Elmore walked to L ing o’s house and noticed that its rear outside lig ht was on. Rather than g o to the home’s front door, Elmore w alked throug h L ing o’s carport and knock ed o n the

rear door located within. Stephanie Moore, a visi t o r, answered the door a

n d went to retrieve L ing o to speak with Elmore. Elmore stated that as s o o n as Moore opened the door, he smelled marijuana.

L ing o c ame outsid e t o speak with Elmore, and he asked her about the marijuana odor. L ing o ex p lained that she was burning hemp-scented incense—which she admitt ed smells like marijuana—but insisted that she had no actual marijuana inside. Skeptical, Elmore a sked f or permission to search L ing o’s house; L ing o refused

. L ater, another officer, J u stin Carney
, arrived at L ing o’s h o u s e to join E lmore. Carney stated that he also smelled marijuana coming from the house, and ag ain the officers asked for per mission to search the home. L ing o ag ain refused.

At some p oint d

uring the c ourse o f Elmore’s discussion with L ing o, L ing o’s seven-y ear-old child opened the back door and peere d o u t. Elmore asked L ing o if there were children in her home, and she c o n f irmed that she lived with her two minor children. Ev e ntually

, after L ing o’s repeated refusals to allow the officers to search her home, they placed her under arrest for e n d a n ge r ing the welfare of a minor, in violation of Or. Rev. Stat. § 163.575.

After L ing o w as a

rrested, Elmore went into the home a nd collected the tw o c hildren so that they could be moved somewhere safer. W h ile L ing o sat in Elmore’s police car, the children sat in the carport and e ventually in the b a ck o f Carney ’s police car. At L ing o’s direction, the children were b r oug ht to h er g reat a

unt’s house under Oreg on Depart m e n tL I N G O V

. C I T Y O F S A L E M 5

of Human Services supervision

, w h ere they remained for eig ht day s.

F ollowing L ing o ’s arrest, the police obtained a warrant to search L ing o’s home for controlled substances, based upon an affidavit f

r o m Elmore d escribing the marijuana odor he smelled at her house. Pursuant to the warrant, Salem police search e d L ing o’s h ome and found several g lass bong s, 1.8
g rams of marijuana (including packag ing ), small b ag g ies commonly used as drug packag ing materi a l s, and a small

am o unt of Klonopin, which is a schedule I V prescription drug

.

B

L ing o w as charg ed by the Mar i o n C ounty District Attorney with two counts o f child e n d an g erment under Or. Rev. Stat. § 163.575. B efore trial, L ing o moved to suppress evidence the police o btained in their s e a rch of her h ome, arg uing that Officers Elmore and Carney violated the F ourth Amendment by enteri n g her carport and approaching her home’s back door. L ing o arg ued that a ny evidence collected by the police thereafter s h o u l d be suppressed as the f ruit o f that initial unlawful search. The trial co u r t ag reed a nd
gr a nted L ing o’s motion to suppress. The charg es ag ainst L ing o were later dropped.

C

L ing o then filed suit under 4 2 U

. S .C. § 1983 ag ainst Elmore, Carney
, and t h e C ity of Salem, alleg ing that the officers violated the F irst, F ourth, an d F ourteenth Amendments of the federal Constitution by falsely arresting her without p robable cause and by interfering with her ( andL I N G O V

. C I T Y O F S A L E M 6

her children’s) r i gh t to familial association by causing her children to be removed from her home. She soug h t both compensatory and punitive damag es.

The officers and the City moved f or summary judg ment, and L ing o moved for partial summary judg men t

. I n her motion, L ing o arg ued that the officers violated her Fo u r th Amendment rig h ts by e n terin g t h e curtilag e of her home to approach the b ack door. L ing o’s motion did not specify h ow that violation related to her claims for false a rrest or wrong f

ul separation from h er children. Perhaps anticipating that, if she prevailed on her motion, L ing o would then attempt to prevent the officers from i n t roducing evidence obtained in violation of the F o urth Amendment to defend themselves and to justify their decision to arrest her, the d istrict c o u r t requested briefing on the issue of whether the ex clusionary rule had any application in this § 1983 case.

After receiving the supplemental briefing

, t h e district
court ag reed with L ing o that the officers had indeed v iolated the F ourth Amendment by entering h er home’s curtilag e , but concluded that the ex clusionary rule does not a pply to § 1983 claims. The court thus hel d t h a t the o fficer’s initial F ourth Amendment violation did not taint t h e i r ultimate arrest o f L ing o a nd found that, based o n the marijuana they smelled at the house, the officers indeed had p robable cause to arrest her. The c ourt further held that the officers permissibly relocated L ing o’s children to her aunt’s home, w h e re they would be away

from the suspected marijuana use and where they w ould not b e left home a lone. F inally

, the court concluded that L ing o h ad not adequately d e m onstrated municipal liability

. The court g ranted summary judg ment for all defendants.L I N G O V

. C I T Y O F S A L E M 7

L ing o timely

appealed.

D

On appeal, L ing o challeng e s only t h e d i strict court’s

r u l i n g that her arrest was valid. 1 Specifically

, she contends that the district court erred in concluding that the officers h ad probable cause to a

r rest her. She arg ues that such conclusion

was flawed because: (1) the off i c ers may not establish probable cause throug h evidence they g athered as a result of their illeg al entry into her carport ; and (2) in any event, the undisputed facts at the scene did not support a f i n d ing o f probable cause.

W e address each arg

u ment in turn.

I I

L ing o’s primary arg ument on appeal is t hat the officers’ unlawful entry into her home’s curtilag e n e c essarily tainted the arrest that followed. Drawing from the e x c lusionary rule’s fruit-of-the-poisonous-tree doctrine, she arg u es that, because the officers were not c o n s titutionally permitted to stand at her house’ s b a c k door, 2 they did not have probable

cause to arrest her on t h e b a s i s of evidence they p erceived from that unlawful vantag e point.

1 L in g o d o es n o t ch allen g e th e d i strict c o u r t ’s co n clu sio n th at, if th e arrest w as v alid

, so to o w as th e o f f i cers’ decisio n to relo cate h er ch ild ren , n o r d o es s h e ch allen g e th e co u rt’ s d eterm in atio n th at L in g o f ailed to d em on strate m

u n icip al liab ility

o n b eh alf o f th e City

.

2 On ap p eal, th e o f

f icers d o n o t ch allen g e th e d istrict co u rt’ s co n clu sio n th at th ey v io lated th e Fo u rth Am e n d m en t b y en terin g th e carp o rt an d
ap p ro ach in g th e b ack

d o o r o f L in g o ’ s h om e.L I N G O V

. C I T Y O F S A L E M 8

A

W e f irst consider L ing o’s contention that the ex clusion a r y rule itself should apply

in a § 1983 case. 3

Of course, the g overnment may not use evide n c e seiz ed dur ing an unlawful search as proof ag ainst the v ictim at criminal trial. See W

ong Sun v. United S

tates , 371 U.S. 471, 484 (1963). The “fruit of the poisonous tree” d o c t r i ne

ex tends the e x clusionary rule to require suppression o f other evidence that i s derived from—and is thus tainted by —the illeg al search or seiz ure

. S ee id. at 487–88. These rules a re not constitutionally required, b ut instead ar e “judicially created means of d eterring illeg al searches and seiz ures.” Penn. Bd. of Prob. & P a r o l e v

. Scott
, 524 U.S. 357, 363 (1998). And “because the [ e x clusionary ] rule is pr u d e n tial rather than constitutionally mandated,” courts apply it “ only

w here its deterrence b enefits outweig h its substantial social costs.” Id. (internal q

uotation marks omitted). Supp ression of evidence throug h the rule “has alway s been our last resort, not our first impulse.” Hudson v. Mi chigan

, 547 U .S. 586, 591 (2006).

The ex clusionary r

ule is not “ a personal constitutional rig ht of the party a g g rieved.” U n i t e d States v. Calandra

,

3 B oth th e d i strict co u

rt an d th e parties h av e f

o cu sed o n th e i ssu e of

w h eth er th e ex clu sio n ary

ru le ap p lies in

§ 1 9 83 cases. T h at strik es u s as

a so m ew h at u n u su al q u esti o n t o a s k h ere. A s ex p lain ed b elo w , th e

ex clu sio n ary ru le is o n ly an evid en tia ry rem ed y , w

h ich p ro h ib its t

h e u s e

o f certain ev id en ce a t crim in al trial. B u t w e f in d n o i n d icatio n i n th e

reco rd th at L i n g o ev er so u g h t t o ex clu d e ev id en ce in th is case o n th e b asis

o f su ch ru l e. A cco rd in g ly

, e v e n if w e w ere to co n clu d e t h at th e

ex clu sio n ary ru le d o es ap p ly t o th is a c t i o n , it is u n clear w h eth er th ere is

an y ev i d en tiary

ru lin g th at w o u ld b e af

f ected b y th at co n clu s io n

.L I N G O V

. C I T Y O F S A L E M 9

4 1 4 U. S. 338, 348 (1974). Corresponding ly

, the r ule “doe s not proscribe the introduction of illeg a lly seiz ed evidence in all proceeding s or ag ainst a ll persons.” Pe n n

. B d. of Prob.

, 524 U .S. at 363 (internal quotation marks omitted). I ndeed,
t h e Supreme Court has “repeatedly declined to ex tend t h e

ex c lusionary rule to pr o c eeding s other than criminal trials.” Id. F o r e x ample, t he Court has held that the r ule does not apply to gr a nd jury proceeding s, civil tax proceeding s, civil deportation proceeding s, or parole revocation proceeding s. See id. at 363–64.

Critical here, “st a n d i n g to invoke the ex clusionary rule has been confined to situations where the Government seeks
to use such evidence to incriminate the victim of the unlawful search.” Calandra

, 414 U .S. at 3 48 (emphasis added). This limitation makes sense: the need to d eter unlawful conduct is strong est when that conduct c ould result in criminal sanction for the victim of the search. Id. Moreover, preven t i n g t he
g overnment from using evidence in such setting s takes away

an obvious incentive—the successful prosecution o f crime—that may

otherwise induce the g overnment to ig nore constitutional rig hts. S

ee g enerall

y Elkins v. United States
, 364 U.S. 206, 217 (1960) ( purpose of ex clusionary rule is to “remov[ e] the incentiv e t o d i s re ga r d ” t h e F ourth Amendment).

Convers e l y , in a § 1983 suit, the need for deterrence is minimal. Here, application of t h e ex clusionary rule would
not prevent the State from using illeg ally obtained evide n c e against someone, but instead would prevent state actors merely from defending themselves ag ains t a claim for monetary damag es. Ex c lusion of evidence in this c ontex t

w o u ld not r emove any preex isting incentive that the
g overnm e n t mig ht h ave to seiz e evidence unlawfully

. I tL I N G O V

. C I T Y O F S A L E M 10

would simply increase state a ctors’ f inancial ex posure in tort

cases that happen to involve illega l l y s eiz ed evidence. I n effect, § 1983 plaintiffs would r eceive a windfall allowing them to prevail on tort claims that mig ht otherwise have been defeated if critical evidence had not been suppressed. Even if such application o f the rule m i g h t i n some way deter violative conduct, that deterrence would impose a n e x treme cost to law enforcement o f fi ce rs that is n ot g enerally countenanced by the doctrine. S ee B l ack v. W

igington
, 811 F .3d 1259, 1268 (11th Cir. 2016) (“The cost of a pply ing the e x clusionary rule in [ the § 1983] contex t is sig nificant

. . . [ a] nd the d eterrence benefits are miniscule.”); Townes v. City of New Y ork

, 176 F .3d 1 3 8
, 1 4 8 (2d Cir. 1999) (observing that the availability of e x clusionary rule i n § 1983 cases “would vastly overdeter police officers a nd would result in a

we a l t h t r ansfer that is peculiar, if n o t perverse” (internal quotation marks omitted)); see also Unite d S t a t e s v. Leon
, 468 U.S. 897, 907 (1984) (“The substa n t i al social costs

ex a c ted by the ex clusionary r ule f or the vindication o f F ourth Amendment rig hts have long been a source of concern.”).

F or these reasons, f

ederal courts o f appeals have widely held that the ex clusionary rule does not apply in § 1983 cases. See, e.g. , B l a c k

, 811 F .3d at 1 268; Townes
, 176 F .3d at 145–46; W

ren v. Towe , 130 F

. 3d 1154, 1158 ( 5th Cir. 1 997) (per curiam); Machado v. W eare Police Dep’t
, 4 9 4 F

. App’x 102, 106 ( 1st Cir. 2012) (per curiam). W e ag ree, and we join those courts now. 4

4 L in g o m o stly ig n ores t h e m a n y cases w

h ich h av e rej ected h er arg u m en t, an d in stead f

o cu s es on an in ap p osi t e d o c t rin e: th e d i stin ctio n b etw een “ i n traso v e r eig n ” an d “ in terso v ereig n ” ap p licatio n s o f th e

ex clu sio n ary ru le

, h i g h l ig h ted b y th e Su p rem e C o u rt in Un ited S ta tes v. Ja n is , 4 2 8 U.S. 4 3 3 (1 97 6 ).L I N G O V

. C I T Y O F S A L E M 11

B

L ing o’s briefs mig ht b e r ead to sug g est that the principles underly ing the fruit-of-the-poisonous-tree doctrine mean that information which was o btained in violation of the F ourth Amendment may not be used as probable cause to arrest her. I n other words, L ing o sug g ests that perhaps the F ourth

In Ja n is
, th e Co u rt h eld th at th e e xc l us i o n ary ru le d id n o t req u ire

ex clu sio n f

ro m a f ed eral civ i l tax p ro ceed in g ev id en ce th at h ad b een

u n law f u lly o b tain ed b y state law en f o rcem en t ag en ts. Id

. a t 4 5 9

– 6 0

. Reco g n izin g th at so m e co u rts h ad ap plied th e ex clu sio n ary ru le in certain civ i l en f o rcem en t actio n s, th e Co u rt d istin g u ish ed th o se co u rts’ ap p ro v al

o f i n tra s o v ereig n ap p l i catio n s o f th e ru le (in w h ich t h e sam e s o v ereig n th at w as resp o n sib le f

o r th e u n d erly in g Fo u rth A m en d m en t v io latio n l ater

so u g h t to u se i ts o w

n illeg ally ob tain ed e v i d e nce) f ro m in ter s o v ereig n ap p licatio n s (in w

h ich a so v ereig n

so u g h t to i n tro d u ce ev id en ce th at h ad b een illeg ally o b tain ed b y a co m p letely s ep ar a t e so v ereig n ). Id

. at 4 5 5

– 5 8

. W ith o u t co m m en tin g o n th e v alid ity o f in traso v ereig n ap p licatio n o f th e ru le, th e Co u rt h eld th at, at a m in im

u m , th e pu rp o ses of th e ex clu sio n ary ru le are n o t serv ed b y im p o sin g th e ru le in a civ i l in terso v ereig n

case. Id

.

L in g o arg u es th at Ja n is su g g ests th at th e ex clu sio n ary ru le sh o u l d b e ap p lied in an i n traso v ere i g n § 1 9 83 case. Bu t th is arg u m en t tu rn s Ja nis

o n its h ead

. T h e Co u rt’ s d iscu ssio n i n J a n i s sh o w s th at th e co re ap p licatio n of t

h e e x c l u s io n ary ru le is co n f in ed to th e crim in al co n t ex t. S ee id

. at 4 46

– 4 7

. T h e Co u rt ad d ressed th e in traso v ereig n / in terso v ereig n d istin ctio n o n l y to id en tif

y y et an o th er co n strain t o n th e ru le: ev en in th ose lim ited civ il cases i n w

h ich so m e co u rts m ig h t b e in clin ed t o ap p ly th e

ru le, th ey m ay n ot d o so i n th e in terso v ereig n co n tex t. S ee i d. at 4 5 5

– 5 8

. B u t th e f act th at th e ex clu sio n ary n ever ap p l i e s in in terso v ereig n civ i l

cases say s n o th in g f

o r w h en th e ru le o u g h t to ap p ly in in traso v ereig n

cases.

A cco rd i n g ly

, reg ard less w h eth er th is is a n i n traso v ereig n o r an in terso v ereig n ca s e , t h a t f act w o u ld n o t alter o u r co n clu sio n th at th e

ex clu sio n ary

ru le d o es n o t ap p l y

in a § 1 9 8 3 case.L I N G O V

. C I T Y O F S A L E M 12

Amendment prohibits not only unlawful searches but also any arrest that is justified solely on the basis o f evidence procured from such a

n unlawf u l s e arch. We find no authority supporting such an arg

ument.

As noted above, the ex c lusionary rule and its fruit-of-thepoisonous-tree d octrine are “judicially created remed[ ies] desig ned to safeg

uard F ourth Amendment r ig hts g enerally throug h [ their] deterrent e ffect, rather than a personal constitution a l r i g ht of the party a g g rieved.” Calandra

, 414 U.S. at 348. The wrong condemned by the F ourth Amendment is the invasion of an individual’s privacy

. That
wrong is a lready “fully accomplished by the u nlawful search

or seiz ure itself, and the e x clusionary rule is neither intended

nor able to cure” that wrong after it has o c c u r r ed. Leon
, 468 U.S. at 906 (internal q u o t ation marks and citation omitted); accord Calandra

, 414 U .S. a t 347. A c cording ly

,

“ t he u se of fruits of a p ast unlawful search or seiz ure works

no new F ourth Amendment wrong .” Leon
, 468 U.S. a t 9 06 (internal q

uotation marks and alteratio n omitted) (emphasis added).

F or these reasons, n othi n g within the fruit-of-thepoisonous-tree doctrin e sug g ests that an officer must ig nore facts that would g ive hi m p ro bable cause to arrest a person merely b ecau s e t h ose facts were procured throug h an unlawful search. I n deed, as a g eneral matter, probable cause determinations depend on the substance of the information known to the officer, not whether that information would be admissible in court. S

ee Crowe v. County o

f San Diego
, 608 F .3d 4 0 6, 4 32 (9th Cir. 2010) (noting that evidence establishing probable cause need not be admissible). And a s the Second Circuit ex plained in rejecting an arg ument similar
to L ing o’s, “ [ t] he e v il of an unreasonable search or seiz ure isL I N G O V

. C I T Y O F S A L E M 13

that it invades privacy

, n ot that it uncovers crime, which is no evil at all.” Townes
, 176 F .3d at 148. The ex clusionary rule

a l r e ady p rovides a person in L ing o’s position “an e norm o u s benefit by reason of the illeg al

. . . search to which [ she] was subjected: [ her] freedom, achieved by the suppression o f evidence” at criminal trial. Id. B ut the Supreme C o urt has

m ade clear that this suppression remedy does not me a n t h at the g over nment’s u se of illeg ally o btained evidence is itself

a constitutional concern. S e e , e.g. , P enn. Bd. of Prob.

, 524 U .S. at 3 62 (“W e have emphasiz ed repeatedly that the
g overnment’s use of evidence o b t ained in violation of the F ourth Amendment does not itself v iolate the Constitution.”).

Once a g ai n , t h e federal courts of appeals that have considered this issue appear to be in accord: “The la c k o f
pr o b a b l e cause to

. . . search does not vitiate the probable

cause to arrest” on the basis of evidence found in that search. Townes
, 176 F .3d at 149; see also Black

, 811 F .3d at 1268 (“[ O] f ficers c an rely on [ illeg ally obtained evidence] to prove that the arrest warrants were supported b y probable cause.”); Hector v

. W

att , 235 F .3d 154, 157 ( 3d C i r. 2001) (“Victims of unreasonable searches or seiz ures may r ecover d a mag e s directly related to the invasion o f t h eir p rivacy

. . . but such victims cannot be compensat e d for injuries that result from the d iscovery of incriminating e vid ence and consequent criminal p rosecution. ” (internal quotation marks omitted)); Vigeant v. United States
, 2 45 F

. App’x 23, 24–25 (1st Cir. 20 0 7 ) (per curiam) (ag ents ex ecuting an invalid search
warrant had p roba b l e c a use to arrest homeowner a fter discovering firearms in the house). W e ag ain ag ree, and we join those c ourts in rejecting L ing o’s sug g estion that probable

cause to arrest may b e supported only by information that was obtained in accordance with the F ourth Amendment.L I N G O V

. C I T Y O F S A L E M 14

I I I

F inally

, L ing o arg ues that even if the officers a re permitted to justify th e ir decision to arrest her throug h evidence they obtained un lawfully

, there are g enuine issues of fact reg arding whether the c ircumstances in this case g ave the officers p robable cause to a rrest her. “Probable c ause for

a warrantless arrest arises when the facts a nd circumstances within the officer’s knowledg e are sufficient to w a r rant a prudent pe r s o n t o believe that the suspect h as committed an offense.” Crowe
, 608 F .3d a t 432 (internal quotation marks and e llipsis omitted). T h e facts must be s u c h t h at a prudent
person would conclude that there was a “fair probability ” the individual committed the crime. Id. ( internal quotation marks omitted).

L ing o was arrested and charg ed with violation of Or. Rev. Stat. § 163.575, which, among other thing s, makes it a crime
to “[ p] ermit[ ] a person under 18 y ears o f a g e to enter o r remain in a place w here unlawful act i vity involving controlled substances is maintained or conducted.” I d. § 1 6 3

. 5 7 5(1)(b). Marijuana is a Schedule I I controlled substance in Oreg on, O r

. A dmin. R. 855-080-0022 (2016) (Schedule o f Controlled Substances), and at the time o f arrest, it w a s unlawful for any person in O r e go n “knowing ly o r intentionally to possess marijuana,” Or. Rev. Stat. § 475.864, unless the person held a valid m edical marijuana card, see Emerald Steel Fabricators, Inc. v. B u reau of Labor & Indus.

, 230 P.3d 518, 519–20 (Or. 2010).

There is little q

uestion that the o fficers had p r o b a b le

cause to arrest L ing o fo r t h i s o f fense. B oth officers at the

scene stated that they smelled a stro ng marijuana odor emanating from L ing o’s house. B oth o fficers were trained toL I N G O V

. C I T Y O F S A L E M 15

detect such odors, and L ing o herself admitted the presence o f such an odor. Prior to the a r rest, E lmore ran a records check

on L ing o a

nd confirmed that she did not hav e a medical marijuana card and that the house was not a reg ist e r ed medical marijuana g row site. I n other words, the off i c ers knew it was unlawful for L ing o k nowing ly to possess marijuana, a

nd, i n t u r n , that it was a crime for her to allow minors to remain in a place in which she d i d

. O nce the officers saw one of L ing o ’ s children—and once L ing o h erself told the o ff

i c er s that she had two minor children in the house—the underly ing facts needed to sustain a violation o f section 163.575 w ere complete. I n short, the combination o f the marijuana odor, the undisputed presence o f L ing o’s

c h i l d ren in the house, and the fact that L ing o did not ha v e medical marijuana privileg es g ave the o fficers probable cause to believe that L ing o had comm i t t e d a crime. See, e.g. , United States v. Kerr
, 876 F .2d 1440, 1 44 5 ( 9th Cir. 1 989) (“[ T] he presence of the odor of c o nt r a b a n d may itself be sufficient to e stablish p r obable c ause.”); U nited States v

. Barron
, 472 F .2d 1215, 1217 (9th Cir. 1973 ) ( p e r curiam) (“[ T] he f act that an ag ent famili a r w i t h the odor o f marijuana[ ] s m elled such an odor emanating from the automobile

. . . alone was s u f f icient to constitute probable

cause

. . . .”); St a t e v

. Derrah

, 84 P.3d 1084, 1087 (Or. Ct. Ap p

. 2 0 04) (“The scent of marijuana, emanating f rom a residence, without more, is sufficient to support a conclusion that marijuana will likely be found inside that residence.”).

L ing o does not dispute the well-found ed conclusion that—if the o f

f i cers could smell marijuana—they h ad probab l e c a u se to arrest her. I n stead, she makes a passing attempt to cast doubt on the v e r a c i t y of the officers’ assertions that they actually smelled the drug

, by noting h ow little marijuana was lat e r f o u n d in her home. B u t L ing o’sL I N G O V

. C I T Y O F S A L E M 16

skepticism f

lies in the face of her own admission that she told the officers they smelled hemp incen s e, which she said does—and is inten d e d to—smell like marijuana. I n other words, it is undisputed that there w as a marijuana-like odor,

eve n if L ing o insists that the officers could not rule out the
p o s s ibility that the o dor came from something other than marijuana itself.

I t is decidedly not the offi c er s ’ b urden to “rule o ut the possibility of innocent b ehavior” in order to establ ish probable cause. R a mirez v. City of Buena Park

, 560 F .3d 1012, 1 024 ( 9th Cir. 2009) (internal q u o t a t ion marks omitted). I ndeed, “[ r] arely will a suspect fail to pro f f e r an innocent ex planation for his suspicious behavior.” Id. Thus, the mere fact that L ing o sug g ested a potential lawful source of the marijuana-like odor does not h i n g t o contradict the officers’ statements that such an o dor e x isted. I n short, L ing o g ives no r eason to doubt that the o fficers indeed smelled what they suspected to be marijuana; as e x plained above, such odor
g ave the officers probable cause to a r rest L ing o under O reg on law.

I V

F or the foreg oing reasons, the judg ment o f the district court is AF F IRMED

.