FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

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

D.C. No.

6:12-cv-01019-MC

OPINION

Appeal from the United States District Court

for the District of Oregon

Michael J. McShane, District Judge, Presiding

Argued and Submitted April 8, 2016

Eugene, Oregon

Filed June 27, 2016
2 LINGO V. CITY OF SALEM

Before: Alfred T. Goodwin, Diarmuid F. O’Scannlain,

and Edward Leavy, Circuit Judges.

Opinion by Judge O’Scannlain

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.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
LINGO V. CITY OF SALEM 3

COUNSEL

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 DefendantsAppellees.

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.
4 LINGO V. CITY OF SALEM

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
LINGO V. CITY OF SALEM 5

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
6 LINGO V. CITY OF SALEM

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 V. CITY OF SALEM 7

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,2they did not have probable

cause to arrest her on the basis of evidence they perceived

from that unlawful vantage point.

1 Lingo does not challenge the district court’s conclusion that, if the

arrest was valid, so too was the officers’ decision to relocate her children,

nor does she challenge the court’s determination that Lingo failed to

demonstrate municipal liability on behalf of the City.

2 On appeal, the officers do not challenge the district court’s conclusion

that they violated the Fourth Amendment by entering the carport and

approaching the back door of Lingo’s home.
8 LINGO V. CITY OF SALEM

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 (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. 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

(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 (2006).

The exclusionary rule is not “a personal constitutional

right of the party aggrieved.” United States v. Calandra,

3 Both the district court and the parties have focused on the issue of

whether the exclusionary rule applies in § 1983 cases. That strikes us as

a somewhat unusual question to ask here. As explained below, the

exclusionary rule is only an evidentiary remedy, which prohibits the use

of certain evidence at criminal trial. But we find no indication in the

record that Lingo ever sought to exclude evidence in this case on the basis

of such rule. Accordingly, even if we were to conclude that the

exclusionary rule does apply to this action, it is unclear whether there is

any evidentiary ruling that would be affected by that conclusion.
LINGO V. CITY OF SALEM 9

414 U.S. 338, 348 (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 (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 does not

apply to grand jury proceedings, civil tax proceedings, civil

deportation proceedings, or parole revocation proceedings. 

See id. at 363–64.

Critical here, “standing to invoke the exclusionary 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 348 (emphasis added). This

limitation makes sense: the need to deter unlawful conduct is

strongest when that conduct could result in criminal sanction

for the victim of the search. Id. Moreover, preventing the

government from using evidence in such settings takes away

an obvious incentive—the successful prosecution of

crime—that may otherwise induce the government to ignore

constitutional rights. See generally Elkins v. United States,

364 U.S. 206, 217 (1960) (purpose of exclusionary rule is to

“remov[e] the incentive to disregard” the Fourth

Amendment).

Conversely, in a § 1983 suit, the need for deterrence is

minimal. Here, application of the exclusionary rule would

not prevent the State from using illegally obtained evidence

against someone, but instead would prevent state actors

merely from defending themselves against a claim for

monetary damages. Exclusion of evidence in this context

would not remove any preexisting incentive that the

government might have to seize evidence unlawfully. It
10 LINGO V. CITY OF SALEM

would simply increase state actors’ financial exposure in tort

cases that happen to involve illegally seized evidence. In

effect, § 1983 plaintiffs would receive a windfall allowing

them to prevail on tort claims that might otherwise have been

defeated if critical evidence had not been suppressed. Even

if such application of the rule might in some way deter

violative conduct, that deterrence would impose an extreme

cost to law enforcement officers that is not generally

countenanced by the doctrine. See Black v. Wigington,

811 F.3d 1259, 1268 (11th Cir. 2016) (“The cost of applying

the exclusionary rule in [the § 1983] context is significant . . .

[a]nd the deterrence benefits are miniscule.”); Townes v. City

of New York, 176 F.3d 138, 148 (2d Cir. 1999) (observing

that the availability of exclusionary rule in § 1983 cases

“would vastly overdeter police officers and would result in a

wealth transfer that is peculiar, if not perverse” (internal

quotation marks omitted)); see also United States v. Leon,

468 U.S. 897, 907 (1984) (“The substantial social costs

exacted by the exclusionary rule for the vindication of Fourth

Amendment rights have long been a source of concern.”).

For these reasons, federal courts of appeals have widely

held that the exclusionary rule does not apply in § 1983 cases. 

See, e.g., Black, 811 F.3d at 1268; Townes, 176 F.3d at

145–46; Wren v. Towe, 130 F.3d 1154, 1158 (5th Cir. 1997)

(per curiam); Machado v. Weare Police Dep’t, 494 F. App’x

102, 106 (1st Cir. 2012) (per curiam). We agree, and we join

those courts now.4

4 Lingo mostly ignores the many cases which have rejected her

argument, and instead focuses on an inapposite doctrine: the distinction

between “intrasovereign” and “intersovereign” applications of the

exclusionary rule, highlighted by the Supreme Court in United States v.

Janis, 428 U.S. 433 (1976).
LINGO V. CITY OF SALEM 11

B

Lingo’s briefs might be read to suggest that the principles

underlying the fruit-of-the-poisonous-tree doctrine mean that

information which was obtained in violation of the Fourth

Amendment may not be used as probable cause to arrest her. 

In other words, Lingo suggests that perhaps the Fourth

In Janis, the Court held that the exclusionary rule did not require

exclusion from a federal civil tax proceeding evidence that had been

unlawfully obtained by state law enforcement agents. Id. at 459–60. 

Recognizing that some courts had applied the exclusionary rule in certain

civil enforcement actions, the Court distinguished those courts’ approval

of intrasovereign applications of the rule (in which the same sovereign

that was responsible for the underlying Fourth Amendment violation later

sought to use its own illegally obtained evidence) from intersovereign

applications (in which a sovereign sought to introduce evidence that had

been illegally obtained by a completely separate sovereign). Id. at

455–58. Without commenting on the validity of intrasovereign

application of the rule, the Court held that, at a minimum, the purposes of

the exclusionary rule are not served by imposing the rule in a civil

intersovereign case. Id.

Lingo argues that Janis suggests that the exclusionary rule should be

applied in an intrasovereign § 1983 case. But this argument turns Janis

on its head. The Court’s discussion in Janis shows that the core

application of the exclusionary rule is confined to the criminal context. 

See id. at 446–47. The Court addressed the intrasovereign / intersovereign

distinction only to identify yet another constraint on the rule: even in those

limited civil cases in which some courts might be inclined to apply the

rule, they may not do so in the intersovereign context. See id. at 455–58. 

But the fact that the exclusionary never applies in intersovereign civil

cases says nothing for when the rule ought to apply in intrasovereign

cases.

Accordingly, regardless whether this is an intrasovereign or an

intersovereign case, that fact would not alter our conclusion that the

exclusionary rule does not apply in a § 1983 case.
12 LINGO V. CITY OF SALEM

Amendment prohibits not only unlawful searches but also any

arrest that is justified solely on the basis of evidence procured

from such an unlawful search. We find no authority

supporting such an argument.

As noted above, the exclusionary rule and its fruit-of-thepoisonous-tree doctrine are “judicially created remed[ies]

designed to safeguard Fourth Amendment rights generally

through [their] deterrent effect, rather than a personal

constitutional right of the party aggrieved.” Calandra,

414 U.S. at 348. The wrong condemned by the Fourth

Amendment is the invasion of an individual’s privacy. That

wrong is already “fully accomplished by the unlawful search

or seizure itself, and the exclusionary rule is neither intended

nor able to cure” that wrong after it has occurred. Leon,

468 U.S. at 906 (internal quotation marks and citation

omitted); accord Calandra, 414 U.S. at 347. Accordingly,

“the use of fruits of a past unlawful search or seizure works

no new Fourth Amendment wrong.” Leon, 468 U.S. at 906

(internal quotation marks and alteration omitted) (emphasis

added).

For these reasons, nothing within the fruit-of-thepoisonous-tree doctrine suggests that an officer must ignore

facts that would give him probable cause to arrest a person

merely because those facts were procured through an

unlawful search. Indeed, as a general matter, probable cause

determinations depend on the substance of the information

known to the officer, not whether that information would be

admissible in court. See Crowe v. County of San Diego,

608 F.3d 406, 432 (9th Cir. 2010) (noting that evidence

establishing probable cause need not be admissible). And as

the Second Circuit explained in rejecting an argument similar

to Lingo’s, “[t]he evil of an unreasonable search or seizure is
LINGO V. CITY OF SALEM 13

that it invades privacy, not that it uncovers crime, which is no

evil at all.” Townes, 176 F.3d at 148. The exclusionary rule

already provides a person in Lingo’s position “an enormous

benefit by reason of the illegal . . . search to which [she] was

subjected: [her] freedom, achieved by the suppression of

evidence” at criminal trial. Id. But the Supreme Court has

made clear that this suppression remedy does not mean that

the government’s use of illegally obtained evidence is itself

a constitutional concern. See, e.g., Penn. Bd. of Prob.,

524 U.S. at 362 (“We have emphasized repeatedly that the

government’s use of evidence obtained in violation of the

Fourth Amendment does not itself violate the Constitution.”).

Once again, the federal courts of appeals that have

considered this issue appear to be in accord: “The lack of

probable 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]fficers can rely on [illegally obtained evidence] to prove

that the arrest warrants were supported by probable cause.”);

Hector v. Watt, 235 F.3d 154, 157 (3d Cir. 2001) (“Victims

of unreasonable searches or seizures may recover damages

directly related to the invasion of their privacy . . . but such

victims cannot be compensated for injuries that result from

the discovery of incriminating evidence and consequent

criminal prosecution.” (internal quotation marks omitted));

Vigeant v. United States, 245 F. App’x 23, 24–25 (1st Cir.

2007) (per curiam) (agents executing an invalid search

warrant had probable cause to arrest homeowner after

discovering firearms in the house). We again agree, and we

join those courts in rejectingLingo’s suggestion that probable

cause to arrest may be supported only by information that was

obtained in accordance with the Fourth Amendment.
14 LINGO V. CITY OF SALEM

III

Finally, Lingo argues that even if the officers are

permitted to justify their decision to arrest her through

evidence they obtained unlawfully, there are genuine issues

of fact regarding whether the circumstances in this case gave

the officers probable cause to arrest her. “Probable cause for

a warrantless arrest arises when the facts and circumstances

within the officer’s knowledge are sufficient to warrant a

prudent person to believe that the suspect has committed an

offense.” Crowe, 608 F.3d at 432 (internal quotation marks

and ellipsis omitted). The facts must be such that a prudent

person would conclude that there was a “fair probability” the

individual committed the crime. Id. (internal quotation marks

omitted).

Lingo was arrested and charged with violation of Or. Rev.

Stat. § 163.575, which, among other things, makes it a crime

to “[p]ermit[] a person under 18 years of age to enter or

remain in a place where unlawful activity involving

controlled substances is maintained or conducted.” Id.

§ 163.575(1)(b). Marijuana is a Schedule II controlled

substance in Oregon, Or. Admin. R. 855-080-0022 (2016)

(Schedule of Controlled Substances), and at the time of arrest,

it was unlawful for any person in Oregon “knowingly or

intentionally to possess marijuana,” Or. Rev. Stat. § 475.864,

unless the person held a valid medical marijuana card, see

Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus.,

230 P.3d 518, 519–20 (Or. 2010).

There is little question that the officers had probable

cause to arrest Lingo for this offense. Both officers at the

scene stated that they smelled a strong marijuana odor

emanating from Lingo’s house. Both officers were trained to
LINGO V. CITY OF SALEM 15

detect such odors, and Lingo herself admitted the presence of

such an odor. Prior to the arrest, Elmore ran a records check

on Lingo and confirmed that she did not have a medical

marijuana card and that the house was not a registered

medical marijuana grow site. In other words, the officers

knew it was unlawful for Lingo knowingly to possess

marijuana, and, in turn, that it was a crime for her to allow

minors to remain in a place in which she did. Once the

officers saw one of Lingo’s children—and once Lingo herself

told the officers that she had two minor children in the

house—the underlying facts needed to sustain a violation of

section 163.575 were complete. In short, the combination of

the marijuana odor, the undisputed presence of Lingo’s

children in the house, and the fact that Lingo did not have

medical marijuana privileges gave the officers probable cause

to believe that Lingo had committed a crime. See, e.g.,

United States v. Kerr, 876 F.2d 1440, 1445 (9th Cir. 1989)

(“[T]he presence of the odor of contraband may itself be

sufficient to establish probable cause.”); United States v.

Barron, 472 F.2d 1215, 1217 (9th Cir. 1973) (per curiam)

(“[T]he fact that an agent familiar with the odor of

marijuana[] smelled such an odor emanating from the

automobile . . . alone was sufficient to constitute probable

cause . . . .”); State v. Derrah, 84 P.3d 1084, 1087 (Or. Ct.

App. 2004) (“The scent of marijuana, emanating from a

residence, without more, is sufficient to support a conclusion

that marijuana will likely be found inside that residence.”).

Lingo does not dispute the well-founded conclusion

that—if the officers could smell marijuana—they had

probable cause to arrest her. Instead, she makes a passing

attempt to cast doubt on the veracity of the officers’

assertions that they actually smelled the drug, by noting how

little marijuana was later found in her home. But Lingo’s
16 LINGO V. CITY OF SALEM

skepticism flies in the face of her own admission that she told

the officers they smelled hemp incense, which she said

does—and is intended to—smell like marijuana. In other

words, it is undisputed that there was a marijuana-like odor,

even if Lingo insists that the officers could not rule out the

possibility that the odor came from something other than

marijuana itself.

It is decidedly not the officers’ burden to “rule out the

possibility of innocent behavior” in order to establish

probable cause. Ramirez v. City of Buena Park, 560 F.3d

1012, 1024 (9th Cir. 2009) (internal quotation marks

omitted). Indeed, “[r]arely will a suspect fail to proffer an

innocent explanation for his suspicious behavior.” Id. Thus,

the mere fact that Lingo suggested a potential lawful source

of the marijuana-like odor does nothing to contradict the

officers’ statements that such an odor existed. In short, Lingo

gives no reason to doubt that the officers indeed smelled what

they suspected to be marijuana; as explained above, such odor

gave the officers probable cause to arrest Lingo under Oregon

law.

IV

For the foregoing reasons, the judgment of the district

court is AFFIRMED.