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Lingo v. City of Salem

United States District Court, D. Oregon

April 4, 2014

LIA MARIE LINGO, V.R.S., a minor Child (Age 13), and J.P.L., a minor child (Age 9), Plaintiffs,
CITY OF SALEM, a municipality, Salem Police Officer STEVEN ELMORE, and Salem Police Corporal JUSTIN CARNEY, in their individual capacity and as police officials for Salem, Defendants.


MICHAEL J. McSHANE, District Judge.

On June 13, 2010, Officer Steven Elmore (Elmore) responded to a non-criminal neighborhood dispute at approximately 10:00 p.m. After speaking with one neighbor, Elmore walked to the rear of Lia Lingo's (Lingo) adjacent residence. Elmore then entered Lingo's carport and knocked on the back door located within. After the door opened, Elmore detected marijuana emanating from the residence and spotted Lingo's minor child, J.P.L. Lingo informed Elmore that she had two minor children in the home, V.R.S. and J.P.L. Elmore and Officer Justin Carney (Carney) subsequently arrested Lingo without warrant for endangering the welfare of her two minor children. V.R.S. and J.P.L. were then placed with Lingo's great aunt Ruth under Oregon Department of Human Services (DHS) supervision for eight days.

This Court is asked to consider whether Lingo's seizure was lawful under the Fourth Amendment as selectively incorporated by the Fourteenth Amendment Due Process Clause. Because (1) the exclusionary rule and fruit of the poisonous tree doctrine do not apply under these circumstances and (2) defendants had probable cause to arrest Lingo for endangering the welfare of her two minor children, this Court finds that Lingo's arrest was lawful under the Fourth Amendment. Thus, plaintiffs' motion for partial summary judgment, ECF No. 30, is GRANTED IN PART and DENIED IN PART, and defendants' motion for summary judgment, ECF No. 35, is GRANTED.


This action arises out of an alleged violative arrest and related seizures. On June 13, 2010, plaintiff Lingo contacted the Salem Police Department and asked that an officer advise her neighbor, Suzanne Tegroen, to "keep her dog that was leaping on my kids, pooping in my yard, out of my yard, [and] to keep her child off of the trampoline that was in my backyard." Decl. of Kenneth S. Montoya 11-12, ECF No. 38. Lingo was advised that no officers would be sent to settle the dispute. Id. at 12. Later that same day, Tegroen contacted the Salem Police Department regarding the same ongoing dispute. Decl. of Steven Elmore 3, ECF No. 37. At approximately 10:00 p.m., defendant Elmore was dispatched to Tegroen's residence at 2530 Lee Street SE regarding that dispute. Id.

Upon arrival at Tegroen's residence, Tegroen advised Elmore about the escalating problems. Id. In response, Elmore explained that "none of the issues... presented that night met the criteria of a crime, but that he would speak with Ms. Lingo about the ongoing problems." Id. After Tegroen pointed out Lingo's residence, Elmore departed Tegroen's residence which faced eastward and walked south along the unnamed street to Lingo's adjacent property. Id .; see also Decl. of Steven Elmore 1, ECF No. 60 (photograph). Lingo's residence, unlike Tegroen's residence, faced westward towards 25th Street, but was accessible via a dirt driveway connecting to the unnamed street. Id.; Decl. of Dugan 1-3, ECF No. 32-2. Lingo's driveway led to an attached single-car carport enclosed on all sides except the entrance. Decl. of Dugan 1-3, ECF No. 32-2. Located within, but against the rear wall of this carport, was a door connecting to Lingo's residence. See Decl. of Lia Lingo, ECF No. 58 (compact disk).

Elmore, upon noticing that Lingo's rear outside light was on, entered Lingo's carport and knocked on the door located within. Decl. of Steven Elmore 4, ECF No. 37. Stephanie Moore, Lingo's acquaintance, answered the door and after a brief conversation, informed Elmore "that she did not live at the house and would get the owner." Decl. of Brian Michaels 4, ECF No. 33-1. Elmore immediately smelled what he recognized as marijuana emanating from the residence. Decl. of Steven Elmore 4, ECF No. 37.

Shortly thereafter, Lingo went outside and met with Elmore. See Decl. of Kenneth S. Montoya 14-15, ECF No. 38. Elmore introduced himself and informed Lingo that he was there regarding a neighbor dispute: a non-criminal matter. Id. at 15-17. Elmore then asked Lingo about the odor. Id. at 17. Lingo advised Elmore that he smelt a hemp-scented incense candle and not marijuana. Id. at 17, 21; Decl. of Brian Michaels 5, ECF No. 33-1. Lingo also informed Elmore that she did not have a medical marijuana card. Pls.' Second Am. Compl. 3, ECF No. 8; see also Decl. of Brian Michaels 5, ECF No. 33-1 (indicating that Elmore "conducted a records check through WEBLEDS and determined Lingo d[id] not have a medical marijuana card and the location [wa]s not a registered grow site."). Elmore, disbelieving that the scent emanated from a candle, repeatedly asked for consent to enter Lingo's residence. Decl. of Kenneth S. Montoya 17-18, ECF No. 38. Lingo refused to grant Elmore consent. Id. During this conversation, J.P.L., Lingo's child, opened the door and peeped out. Id. at 13, 18. Elmore, having seen J.P.L., asked Lingo about minor children in the home. Id. at 18. Lingo then identified her two minor children, V.R.S., 11-years old, and J.P.L., 7-years old. Id.; Decl. of Brian Michaels 5, ECF No. 33-1.

Approximately one hour after Elmore's initial arrival at plaintiffs' residence, defendant Carney arrived. Decl. of Kenneth S. Montoya 20, ECF No. 38. Carney, having arrived at the carport, smelt what he believed to be fresh marijuana emanating from Lingo's residence. Decl. of Brian Michaels 5, ECF No. 33-1; Decl. of Brian Michaels 2, ECF No. 45-4. Elmore, after receiving Carney's opinion, asked again for consent to enter Lingo's residence. Decl. of Kenneth S. Montoya 22, ECF No. 38. Lingo again refused to grant consent. Id. Defendants then arrested Lingo for endangering the welfare of a minor, ORS § 163.575. Pls.' Second Am. Compl. 4, ECF No. 8. Lingo spent nearly 24 hours in jail before being released. Id.

Following Lingo's arrest, Elmore entered the residence and told V.R.S. and J.P.L. to get their shoes and coats. Decl. of Kenneth S. Montoya 23, ECF No. 38. Elmore accompanied V.R.S. into her room while she collected her jacket and shoes. Id. V.R.S. and J.P.L. then spent approximately 15 minutes sitting in the carport before they were placed in the back of Carney's police car. Id. at 25. Lingo, who at that time was placed in Elmore's police car, informed Carney that the children could likely be taken to either her mother's residence or her great aunt Ruth's residence. Id. at 26. Carney initially took the children to Lingo's mother's residence, but then subsequently took them to Ruth's residence. Id. at 28-29; Pls.' Second Am. Compl. 4, ECF No. 8. The children remained with Lingo's great aunt Ruth under DHS supervision for eight days. Pls.' Second Am. Compl. 4, ECF No. 8.

Elmore, having booked Lingo, subsequently submitted an affidavit to the Marion County Circuit Court, seeking authorization to inspect the residence and to "seize and analyze any controlled substance.... such as marijuana and user paraphernalia[.]" Decl. of Brian Michaels 3-7, ECF No. 33-1. Based upon Elmore's affidavit, Marion County Circuit Court Judge Claudia Burton issued the requested search warrant. Id. at 2. At approximately 4:20 a.m. on June 14, 2010, Elmore and Carney, along with three other Salem Police officers, conducted a search of Lingo's residence. Id. at 1. Pursuant to the search, the officers seized 1.8 grams of suspected marijuana, 10 used glass bongs, 10 small, unused Ziploc-type baggies, and 11 Klonopin prescription pills. Id.


This Court must grant summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). An issue is "genuine" if a reasonable jury could return a verdict in favor of the non-moving party. Rivera v. Phillip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A fact is "material" if it could affect the outcome of the case. Id. The court reviews evidence and draws inferences in the light most favorable to the non-moving party. Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 988 (9th Cir. 2006) (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)). When the moving party has met its burden, the nonmoving party must present "specific facts showing that there is a genuine issue for trial. " Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in original).


Defendants contend that: (1) issue preclusion is inappropriate regarding the lawfulness of defendants' initial entrance into plaintiffs' carport because defendants were not in privity with a party to the prior criminal-suppression hearing; (2) the arrest of Lingo was reasonable under the Fourth Amendment because probable cause existed to believe that she had endangered the welfare of a minor, ORS § 163.575; (3) the seizure of V.R.S. and J.P.L. was reasonable and warranted under the First, Fourth, and Fourteenth Amendments because defendants had reasonable cause to believe that both children were in imminent danger of serious bodily injury; and (4) plaintiffs provided insufficient evidence to demonstrate a violative policy or inadequate training under Monell. This Court addresses each argument in sequence.

I. Issue Preclusion

Plaintiffs contend that because "[i]ssue preclusion applies" this Court should "rule as a matter of law that the defendant officers violated the Fourth Amendment in going to the rear door." Mem. in Supp. of Pls.' Mot. Partial Summ. J. 5, ECF No. 31.

This Court "begin[s] by considering the framework for analyzing when a state court decision has a preclusive effect on a federal proceeding." White v. City of Pasadena, 671 F.3d 918, 926 (9th Cir. 2012). "Under [28 U.S.C. § 1738], a federal court must give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered.'" Id. (quoting Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984)).

"Issue preclusion prevents parties from relitigating issues that were actually litigated and determined in a prior action." State ex rel. English ex rel. Sellers v. Multnomah Cnty., 348 Or. 417, 431 (2010) (citing Nelson v. Emerald People's Util. Dist., 318 Or. 99, 103-104 (1993)). In Nelson, the Oregon Supreme Court found:

If one tribunal has decided an issue, the decision on that issue may preclude relitigation of the issue in another proceeding if five requirements are met:
1. The issue in the two proceedings is identical.
2. The issue was actually litigated and was essential to a final decision on the merits in the prior proceeding.
3. The party sought to be precluded has had a full and fair opportunity to be heard on that issue.
4. The party sought to be precluded was a party or was in privity with a party to the prior proceeding.
5. The prior proceeding was the type of proceeding to which this court will give preclusive effect.

318 Or. at 104 (citations omitted). The outcome in this case turns on the second and fourth requirements.

As to the second requirement, "[i]f a claim is litigated to final judgment, the decision on a particular issue or determinative fact is conclusive in a later or different action between the same parties if the determination was essential to the judgment." N. Clackamas Sch. Dist. v. White, 305 Or. 48, 53 (1988) (citations omitted). In Lingo's criminal case, State of Oregon v. Lia Lingo, No. 10C43921 (Or. Cir. Ct. Dec. 20, 2010), Judge Ochoa orally granted Lingo's motion to suppress "[f]or the reasons stated by the defense in this matter" after discussing defendants' entrance into plaintiffs' carport. Decl. of Brian Michaels 4, ECF No. 48-1.[1] In her memorandum in support of her motion to suppress, Lingo relied in part upon federal law. In particular, Lingo argued that she "had a reasonable expectation of privacy" in the carport based in part, upon the standard articulated in Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring). See also State v. Campbell, 306 Or. 157, 164 (1988) (distinguishing Oregon Constitution Article I, § 9 analysis from Fourth Amendment analysis). Although this Court has reservations about the sufficiency of Judge Ochoa's findings, see supra note 1, this Court finds them sufficient to meet the second requirement. See, e.g., State Farm Fire & Cas. Co. v. Reuter, 299 Or. 155, 159-60 (1985) (finding that a jury's prior rejection of a criminal defendant's affirmative insanity defense was determinative in a subsequent declaratory judgment action).

As to the fourth requirement, "[a] person may be bound by a previous adjudication either by reason of being a party in the case, or by reason of participation which is substantially equivalent to having been a party, or from having a legal relationship that is derived from one who was a party." State Farm Fire & Cas. Co., 299 Or. at 160-61 (citing Gaul v. Tourtellotte, 260 Or. 14, 20 (1971)). Privity "is neither rule nor doctrine; it describes a result." Id. at 162; see also RESTATEMENT (FIRST) OF JUDGMENTS § 83 cmt. a (1942).[2] Defendants Elmore and Carney, in reliance upon Davis v. Eide, 439 F.2d 1077, 1078 (9th Cir. 1971), contend that ...

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