2022 WI 16
SUPREME COURT OF WISCONSIN CASE NO.: 2019AP1317-CR
COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent, v. Daniel J. Van Linn, Defendant-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 395 Wis. 2d 294,953 N.W.2d 116 (2020 – unpublished)
OPINION FILED: March 24, 2022 SUBMITTED ON BRIEFS: ORAL ARGUMENT: October 27, 2021
SOURCE OF APPEAL: COURT: Circuit COUNTY: Oconto JUDGE: Michael T. Judge
JUSTICES: DALLET, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J., ROGGENSACK, REBECCA GRASSL BRADLEY, HAGEDORN, and KAROFSKY, JJ., joined. ANN WALSH BRADLEY, J., filed a dissenting opinion. NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs filed by Andrew R. Hinkel, assistant state public defender. There was an oral argument by Andrew R. Hinkel.
For the plaintiff-respondent, there was a brief filed by John W. Kellis, assistant attorney general; with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by John W. Kellis. 2022 WI 16 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2019AP1317-CR (L.C. No. 2017CF44)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent, FILED v. MAR 24, 2022
Daniel J. Van Linn, Sheila T. Reiff Clerk of Supreme Court
Defendant-Appellant-Petitioner.
DALLET, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J., ROGGENSACK, REBECCA GRASSL BRADLEY, HAGEDORN, and KAROFSKY, JJ., joined. ANN WALSH BRADLEY, J., filed a dissenting opinion.
REVIEW of a court of appeals' decision. Affirmed.
¶1 REBECCA FRANK DALLET, J. After crashing his car,
Daniel Van Linn was taken to the hospital, where two blood tests
were performed: the first one by the hospital for diagnostic and
treatment purposes; a later one at the direction of a sheriff's
deputy for investigative purposes. Both blood tests revealed that
Van Linn's blood-alcohol concentration (BAC) was over the legal
limit. The circuit court suppressed the results of the deputy's blood test, concluding that the deputy's blood draw violated the No. 2019AP1317-CR
Fourth Amendment because the deputy did not have a warrant. The
State then subpoenaed the hospital for Van Linn's medical records,
which included the hospital's diagnostic blood-test results. Van
Linn argues that those results should be suppressed under the
Fourth Amendment's exclusionary rule because the State subpoenaed
the hospital only after it learned from the deputy's unlawful blood
draw that Van Linn's BAC was over the legal limit. The issue is
whether hospital's blood-test results are nevertheless admissible
under the independent-source doctrine, an exception to the
exclusionary rule. We hold that they are, and therefore affirm
the court of appeals.
I
¶2 Around 2:00 a.m. one Sunday morning, the Oconto County
Sheriff's Office responded to a call about a car accident on a
rural road in the Town of Mountain. When a deputy arrived, he
found Van Linn's car crashed into the back of a cabin. The
subsequent investigation revealed that Van Linn was driving to his cabin when he thought he saw an oncoming car in his lane and
swerved to avoid it. He veered off the road and into a ditch,
where he hit a tree. He then drove back onto the road, crossing
both lanes of traffic before continuing into a ditch on the other
side of the road, over a hill, and through a field, eventually
crashing into the back of someone's cabin.
¶3 Ambulance personnel found Van Linn lying on the ground
across the street. He had a bump and some blood on his forehead and his hands were bleeding. Van Linn claimed to know nothing
2 No. 2019AP1317-CR
about the accident and denied that he was driving. The deputy
noted a "moderate odor of alcohol" coming from Van Linn, and Van
Linn told the deputy that he had drank "two beers" earlier that
evening. The deputy learned that because Van Linn had four prior
OWI (operating while intoxicated) convictions, he was subject to
a BAC limit of 0.02 and his driving privileges were revoked.1
¶4 Van Linn was taken to the hospital. At 3:55 a.m.,
hospital personnel performed a "diagnostic workup," which included
drawing Van Linn's blood. The results of that blood test revealed
that Van Linn's BAC was 0.226. Not long after, the deputy arrived
at the hospital and, based on his investigation at the accident
scene, arrested Van Linn for his fifth OWI. At the time of Van
Linn's arrest, the deputy was unaware of the hospital's blood draw
and its results.
¶5 Following his arrest, Van Linn admitted that he had in
fact been driving and that he was the one who called the police to
report the crash. The deputy asked Van Linn to consent to a blood
draw, which Van Linn refused. Nevertheless, at his lieutenant's direction and without a warrant, the deputy had Van Linn's blood
drawn at approximately 4:15 a.m., about twenty minutes after the
hospital had taken Van Linn's blood. A test of this second sample
showed that Van Linn's BAC was 0.205.
1 The legal BAC limit in Wisconsin is typically 0.08. Wis. Stat. § 340.01(46m)(a) (2019–20). Persons with at least three OWI convictions are subject to a BAC restriction of 0.02. See § 340.01(46m)(c). The conditions under which a person's driving privileges can be revoked are laid out in § 343.31. All statutory references are to the 2019–20 version.
3 No. 2019AP1317-CR
¶6 In the circuit court,2 Van Linn moved to suppress the
results of the deputy's blood draw because the deputy did not have
a warrant and no exceptions to the warrant requirement applied.
The State argued that the deputy did not need a warrant because
the natural dissipation of alcohol in Van Linn's bloodstream was
an exigent circumstance. The circuit court granted Van Linn's
motion, suppressing the results of the deputy's warrantless blood
draw on the grounds that no exigent circumstances justified the
deputy's failure to get a warrant.3
¶7 Three months later, the State asked the circuit court to
issue a subpoena to the hospital for Van Linn's medical records,
which included the results of the hospital's diagnostic blood
test.4 The State submitted an accompanying affidavit asserting
there was probable cause for the subpoena because the deputy
smelled alcohol on Van Linn at the scene, Van Linn had a reduced
BAC restriction, and Van Linn admitted he had been drinking before
the accident. The affidavit referenced the deputy's blood draw
and noted that testing of the sample showed that Van Linn's BAC was over the legal limit. Van Linn moved to quash the subpoena,
arguing that the State's subpoena request violated the circuit
2 The Honorable Michael T. Judge of the Oconto County Circuit Court presided. 3 The State does not contest the circuit court's conclusion that the deputy's warrantless blood draw violated the Fourth Amendment. 4 Wisconsin Stat. § 968.135 authorizes the circuit court to issue a subpoena at the State's request and upon a showing of probable cause.
4 No. 2019AP1317-CR
court's suppression decision because it sought evidence that was
"necessarily related to the previously suppressed blood draw."
But the subpoena was issued and executed before the court held a
hearing on Van Linn's motion to quash. The hospital turned over
Van Linn's treatment records, including the results of the
hospital's diagnostic blood test.5
¶8 Van Linn then filed a motion to suppress the hospital's
blood-test results. He argued that the State was attempting to
circumvent the circuit court's prior suppression decision by
obtaining the "same information"——his BAC——that it learned from
the deputy's unlawful blood draw. Van Linn urged that suppressing
the hospital's blood test was necessary to "give[] proper purpose
and effect" to the court's prior decision. The circuit court
denied Van Linn's motion on statutory grounds without addressing
whether its prior suppression of the deputy's unlawful blood draw
precluded the State from acquiring the results of the hospital's
blood test.6
5The circuit court eventually held a hearing, concluding that the motion was moot since the hospital had already released the records. 6Van Linn also argued that he had an absolute privilege under Wis. Stat. §§ 146.82 and 905.04(2) to keep his medical records confidential. The circuit court determined, however, that the exceptions to that privilege in §§ 148.82(2)(a)4. and 905.05(4)(f) applied. The former allows for the release of privileged medical records "under a lawful order of a court," and the latter states that "[t]here is no privilege concerning the results of or circumstances surrounding any chemical tests for intoxication or alcohol concentration." Van Linn has not challenged this part of the circuit court's decision.
5 No. 2019AP1317-CR
¶9 On appeal, Van Linn argued that the United States Supreme
Court's precedent——namely, Silverthorne Lumber Co. v. United
States, 251 U.S. 385 (1920), and Murray v. United States, 487
U.S. 533 (1988)——required the circuit court to suppress the
hospital's blood-test results because the State was "prompted" by
the suppression of the deputy's unlawful blood draw to subpoena
the hospital for his medical records. He further claimed that the
State subpoenaed the hospital only because it knew from the
deputy's unlawful blood draw that his BAC was over the legal limit.
Van Linn explained that Silverthorne Lumber and Murray prevented
the State from using that knowledge as the reason for its
subsequent subpoena request. The court of appeals rejected those
arguments, holding that the independent-source doctrine, as
described in Silverthorne Lumber and Murray, applied. State v.
Van Linn, No. 2019AP1317-CR, unpublished op. (Wis. Ct. App.
Nov. 17, 2020). It reasoned that, based on the deputy's
investigation at the accident scene, the State had probable cause
to believe that Van Linn was operating his car while intoxicated before it had "any inkling of what a blood test would reveal."
Id., ¶24. Although the State obtained the hospital's blood-test
results only after it knew the results of the deputy's blood test,
the hospital's blood test was an independent source of Van Linn's
BAC because it was "created completely independently" of the
deputy's unlawful blood draw. Id., ¶20. The court of appeals
held that "the purpose of the exclusionary rule would not be
effectuated" by suppressing the hospital's blood test "merely because it was of the same nature" as the unlawfully obtained 6 No. 2019AP1317-CR
evidence, because suppressing it would put the State in a worse
position than it was in absent the deputy's unlawful conduct. Id.
II
¶10 Whether the exclusionary rule applies to the hospital's
blood test is a question of "constitutional fact," which we review
under a mixed standard of review. See State v. Jackson, 2016
WI 56, ¶45, 369 Wis. 2d 673, 882 N.W.2d 422. We accept the circuit
court's factual findings unless they are clearly erroneous. State
v. Carroll, 2010 WI 8, ¶17, 322 Wis. 2d 299, 778 N.W.2d 1.
Determining whether those facts amount to a Fourth Amendment
violation is a question of law that we review de novo. Id. (adding
that we nevertheless benefit from the lower courts' constitutional
analyses).
III
¶11 The Fourth Amendment protects against "unreasonable
searches and seizures." U.S. Const. amend. IV. When the State obtains evidence in violation of the Fourth Amendment, that
evidence typically must be suppressed under the exclusionary rule.
See State v. Prado, 2021 WI 64, ¶56, 397 Wis. 2d 719, 960
N.W.2d 869. The exclusionary rule can apply to both evidence
discovered during an unlawful search or seizure and evidence
discovered only because of what the police learned from the
unlawful activity, also referred to as "fruit of the poisonous
tree." State v. Knapp, 2005 WI 127, ¶24, 285 Wis. 2d 86, 700 N.W.2d 899. Not all Fourth Amendment violations, however, justify
7 No. 2019AP1317-CR
applying the exclusionary rule. Rather, the rule applies when
excluding the unlawfully obtained evidence will "meaningfully
deter" police misconduct such that interfering with the criminal
justice system's truth-seeking objective is justified. Prado, 397
Wis. 2d 719, ¶¶57–58 (quoting Herring v. United States, 555
U.S. 135, 144 (2009)). Whenever the exclusionary rule applies,
the scope of the remedy is limited to preventing the State from
"profit[ing] from its illegal activity" without placing the State
"in a worse position than it would otherwise have occupied" absent
its illegal conduct. Murray, 487 U.S. at 542; Carroll, 322
Wis. 2d 299, ¶44. It follows that excluding illegally obtained
evidence "does not mean that the facts thus obtained become sacred
and inaccessible," provided the State's knowledge of them is gained
from a source unrelated to the State's illegal conduct.
Silverthorne Lumber, 251 U.S. at 392.
¶12 That idea is the foundation of the independent-source
doctrine. E.g., Murray, 487 U.S. at 537. The doctrine is an
exception to the exclusionary rule in that it allows for the admissibility of evidence or information tainted by an illegal
evidence-gathering activity when the State otherwise acquires the
same information——or "rediscover[s]" it——by lawful means "in a
fashion untainted" by that illegal activity. See id. at 537–38,
541–42; Silverthorne Lumber, 251 U.S. at 392. Subsequent lawful
means, such as a subpoena, are "untainted" when the State can show
that the illegal conduct neither "affected" the circuit court's
decision to approve its subpoena request nor "prompted" the State's decision to seek a subpoena in the first place. See, e.g., United 8 No. 2019AP1317-CR
States v. Markling, 7 F.3d 1309, 1315–16 (7th Cir. 1993). The
former question turns on "whether the [subpoena's supporting
affidavit] contain[s] sufficient evidence of probable cause
without the references to the tainted evidence." See United States
v. Huskisson, 926 F.3d 369, 375–76 (7th Cir. 2019); Carroll, 322
Wis. 2d 299, ¶44. Van Linn concedes that although the supporting
affidavit referenced his BAC as discovered by the deputy's unlawful
blood draw, the affidavit establishes probable cause for the
subpoena without that reference. Our analysis therefore focuses
on the latter question of whether the State's decision to seek the
subpoena was prompted by what it learned from the deputy's unlawful
blood draw. See United States v. Johnson, 994 F.2d 980, 987 (2d
Cir. 1993) ("What is key is that [law enforcement's unlawful
conduct] did not result in the government obtaining evidence it
would not have otherwise obtained.").
¶13 Van Linn argues that the State's decision to subpoena
his medical records was "motivated specifically" by the knowledge
it gained from the deputy's unlawful blood draw——that his BAC was over the legal limit. According to Van Linn, if the deputy had
not unlawfully drawn Van Linn's blood, the State would not have
known that the hospital's blood test would show he had a prohibited
BAC and, therefore, "would have had no reason to seek a subpoena"
for his medical records.
¶14 Murray, however, demonstrates that the independent-
source doctrine can apply even though the State knew the hospital's
blood test would show an unlawful BAC. In Murray, federal agents found marijuana during a warrantless search of a warehouse that 9 No. 2019AP1317-CR
they suspected housed a drug-trafficking operation. The agents
then applied for a search warrant, but included in the warrant
application only information they knew prior to their warrantless
entry. A magistrate approved the warrant, and when the agents
executed it, they "rediscovered" the marijuana. 487 U.S. at 535–
36. The Court held that the marijuana evidence was admissible
because, although the agents first discovered the marijuana during
an unlawful search, they rediscovered it while executing a valid
warrant. And the agents had probable cause for the warrant based
on what they knew prior to the unlawful search. Id. at 541–42.
In other words, neither the agents' decision to seek the warrant
nor the magistrate's issuance of the warrant was "prompted by what
[the agents] had seen during the [unlawful] entry"——even though
the unlawful entry gave the agents a preview of what they would
find when executing the warrant. Id. (adding that, under such
circumstances, "there [was] no reason why the independent source
doctrine should not apply"). Thus, Murray teaches that the
independent-source doctrine applies when the State has a separate reason to seek the challenged evidence apart from the knowledge it
gains from an unlawful search. See id.
¶15 Here, the State had ample reasons to subpoena Van Linn's
medical records for evidence of OWI, apart from what it learned
from the deputy's unlawful blood draw. At the accident scene, the
deputy found Van Linn's car crashed into the back of a cabin. His
investigation revealed that Van Linn had veered off the road and
into a ditch, where he hit a tree. The deputy smelled an "intoxicant" on Van Linn, and Van Linn admitted to having had "a 10 No. 2019AP1317-CR
couple of beers." While Van Linn was en route to the hospital,
the deputy also learned that Van Linn had a reduced BAC restriction
of 0.02. Moreover, the deputy arrested Van Linn for OWI prior to
conducting the unlawful blood draw. Similar to the agents'
unlawful entry in Murray, the testing results of the deputy's
unlawful blood draw "only served to confirm [the State's] prior
suspicions": that Van Linn's BAC was over the legal limit. See
United State v. Pike, 523 F.2d 734, 736 (5th Cir. 1975) (declining
to exclude evidence the FBI lawfully rediscovered because, prior
to an earlier, illegal search that revealed identical information,
the FBI's investigation had "already focused" on the defendant for
the same crime); Murray, 487 U.S. at 535–36, 541. Stated
differently, the State's decision to subpoena Van Linn's medical
records was not prompted by what it learned from the deputy's
unlawful blood draw. See Murray, 487 U.S. at 541.7
¶16 Granted, the State did not subpoena Van Linn's medical
records until after the circuit court suppressed the deputy's
unlawful blood draw. Van Linn argues that the State's subpoena is therefore the "direct result" of the deputy's unlawful conduct
7This conclusion is consistent with how other courts have applied Murray. See, e.g., United States v. Moody, 664 F.3d 164, 167—68 (7th Cir. 2011) ("no indication" that illegal search in 2007 of defendant's cell phone records had "any bearing" on 2009 subpoena for the same records); Johnson, 994 F.2d at 987 (agents' decision to get warrant was prompted by the "obvious relevance" of what might be on audiotape recordings, not by the agents' unlawfully listening to the recordings before getting a warrant); United States v. Herrold, 962 F.2d 1131, 1140–41 (3d Cir. 1992) (police had evidence, prior to the unlawful search, that made it "inconceivable" they would not have lawfully discovered the same evidence).
11 No. 2019AP1317-CR
because, but for that conduct, there would have been nothing for
the circuit court to suppress. And but for the circuit court's
suppression decision, the State would not have subpoenaed the
hospital. We hold that, despite the timing of the State's subpoena
request, suppression is not justified for two reasons.
¶17 First, in the exclusionary-rule context, the U.S.
Supreme Court has rejected the strict but-for causality Van Linn
presses here. See Wong Sun, 371 U.S. at 487–88 (evidence should
not be excluded "simply because it would not have come to light
but for the illegal actions of the police"); United States v.
Carter, 573 F.3d 418, 423 (7th Cir. 2009). The "more apt question"
for whether the exclusionary rule applies is: did the State
"exploit[]" the deputy's unlawful conduct? See Wong Sun, 371 U.S.
at 487–88. In this case, the State did not exploit the deputy's
illegal conduct because, as explained above, the State had
reasonable grounds to suspect Van Linn of OWI prior to anyone
drawing his blood. See also State v. Dasen, 155 P.3d 1282, 1286
(Mont. 2007) (explaining that although "the invalidity of the first search necessitated a second [search], the State nevertheless
possessed sufficient independent information to 'purge the taint'
of the first search"). Additionally, the blood-test evidence
contained in Van Linn's medical records is "untainted" by the
deputy's unlawful conduct because the hospital drew Van Linn's
blood for its own diagnostic and treatment purposes, not at the
direction of law enforcement. See Segura v. United States, 468
U.S. 796, 813–14 (1984); cf. State v. Ravotto, 777 A.2d 301, 311 (N.J. 2001) (rejecting the State's independent-source argument 12 No. 2019AP1317-CR
because the hospital drew the defendant's blood only at a police
officer's request).
¶18 Second, suppressing the hospital's blood-test results
would not further the purpose of the exclusionary rule, which is
to deter police misconduct. The circuit court's suppression of
the deputy's warrantless blood draw remedied the police misconduct
in this case. Suppressing the hospital's diagnostic blood test,
however, would have no further deterrent effect because it involved
no police conduct at all, let alone misconduct. See Prado, 397
Wis. 2d 719, ¶57; Davis v. United States, 564 U.S. 229, 237 (2011)
("Real deterrent value is a 'necessary condition for
exclusion' . . . .") (quoted source omitted). Moreover,
suppressing the hospital's blood test runs counter to the
exclusionary rule because it would put the State in a worse
position than it occupied absent the deputy's unlawful conduct.8
See Murray, 487 U.S. at 537–38.
¶19 Accordingly, we conclude that the results of the
hospital's blood test are admissible under the independent-source doctrine. The State's decision to subpoena the hospital for Van
Linn's medical records was not prompted by the deputy's unlawful
8 The dissent oversimplifies the issue in asserting that the independent-source doctrine allows law enforcement to "circumvent a suppression decision by simply looking for the same information in a different place." See dissent, ¶33. The doctrine requires law enforcement to have had a reason to look elsewhere for the same information independent of the unlawful conduct that led to the suppression decision. That requirement ensures the police do not get a "do-over" simply because "evidence gained through an unconstitutional search is suppressed." See id., ¶7.
13 No. 2019AP1317-CR
conduct, because the State had reasonable grounds to suspect Van
Linn of OWI prior to the deputy's warrantless blood draw. The
fact that the State subpoenaed those records only after the circuit
court suppressed the deputy's unlawful blood draw does not change
the independent nature of the State's suspicions that Van Linn's
BAC was over the legal limit. Furthermore, the evidence discovered
through the State's subpoena——the hospital's diagnostic blood
test——is untainted by the deputy's unlawful conduct, thus
suppressing it would not serve the exclusionary rule's purpose.
By the Court.—The court of appeals' decision is affirmed.
14 No. 2019AP1317-CR.awb
¶20 ANN WALSH BRADLEY, J. (dissenting). Law enforcement
drew Daniel Van Linn's blood without a warrant. He refused to
give consent for the blood draw, but an officer nevertheless
proceeded to extract his blood.
¶21 No exception to the warrant requirement permitted such
a search. After the circuit court suppressed the fruits of the
State's unconstitutional foray, the State waited three months to
try an end run around the Fourth Amendment and the circuit court's
suppression ruling. It subpoenaed hospital records containing the
information that the circuit court had earlier suppressed——Van
Linn's blood alcohol content.
¶22 Providing the State with an insurance policy in the event
of an unconstitutional search, the majority tells law enforcement
not to worry. The majority's message is: "If you violate a
person's Fourth Amendment rights and the resulting evidence is
suppressed, there will be no consequences because you can still
gain the information through other means."
¶23 In contrast, my message is: "Get a warrant." This entire appeal would not exist if law enforcement had simply sought
a warrant in the first place.
¶24 This court should not promote a search first and warrant
later approach. And it certainly should not be condoning an
approach that undermines the essence of the exclusionary rule,
which is to prevent——not to repair.
¶25 In giving its imprimatur to the State's tactic, the
majority justifies its determination by invoking the independent source doctrine. Its rationale rests on two assertions: (1) that 1 No. 2019AP1317-CR.awb
the State did not "exploit" the illegal search because it had
"reasonable grounds" to suspect Van Linn of OWI before either law
enforcement or medical personnel drew his blood; and (2) that
disallowing the subpoena would have no effect on police misconduct.
¶26 The first of these rationales answers the wrong
question, obscuring the true inquiry of whether the
unconstitutional search "prompted" the subpoena. And the second
insulates law enforcement from the consequences of its
unconstitutional actions. In doing so, the majority ignores that
the consequence of its decision is to give a do-over to law
enforcement in the event evidence gained through an
unconstitutional search is suppressed.
¶27 Because the majority obscures the constitutional
inquiry, erroneously concludes that suppression of the hospital
sample would have no effect on police misconduct, and turns the
exclusionary rule on its head by creating a perverse incentive for
law enforcement to conduct warrantless searches, I respectfully
dissent. I
¶28 Van Linn was suspected of OWI and taken to a hospital.
Majority op., ¶¶3-4. While at the hospital, he refused a
warrantless blood draw.1 Id., ¶5. Law enforcement directed a
1 As is his right. State v. Prado, 2021 WI 64, ¶47, 397 Wis. 2d 719, 960 N.W.2d 869 (explaining that "a person has a constitutional right to refuse a search absent a warrant or an applicable exception to the warrant requirement").
2 No. 2019AP1317-CR.awb
blood draw anyway, believing that exigent circumstances justified
the warrantless search. Id.
¶29 The circuit court later determined that exigent
circumstances were not present and suppressed the results of the
blood draw. Id., ¶6. After this setback, and almost ten months
after the arrest and three months after the State's first attempt
to admit the blood evidence was rebuffed, the State pursued a
different strategy. It subpoenaed the results of a separate blood
test the hospital took for purposes of Van Linn's medical
treatment. Id., ¶7.
¶30 In support of its application for the subpoena, the State
articulated grounds for its issuance, including the results of the
unconstitutionally obtained blood draw indicating that Van Linn's
blood alcohol content was above the legal limit——.205. The State's
second try was met with success. The subpoena for the hospital
records issued and the circuit court ultimately denied Van Linn's
motion to suppress the results of the hospital sample. Id., ¶8.
¶31 Van Linn appealed, and the court of appeals affirmed the circuit court's denial of this second suppression motion. State
v. Van Linn, No. 2019AP1317-CR, unpublished slip op. (Wis. Ct.
App. Nov. 17, 2020). The majority now affirms the court of
appeals, concluding that the hospital sample is admissible under
the independent source doctrine. In the majority's view, "the
State did not exploit the deputy's illegal conduct
because . . . the State had reasonable grounds to suspect Van Linn
of OWI prior to anyone drawing his blood." Majority op., ¶17. Further, the majority concludes that "suppressing the hospital's 3 No. 2019AP1317-CR.awb
blood-test results would not further the purpose of the
exclusionary rule, which is to deter police misconduct." Id.,
¶18.
¶32 The majority rests its conclusions on its application of
the independent source doctrine. This doctrine "derives from the
principle that when the challenged evidence has an independent
source, exclusion of such evidence would put the police in a worse
position than they would have been in absent any error or
violation." State v. Carroll, 2010 WI 8, ¶44, 322 Wis. 2d 299,
778 N.W.2d 1 (internal quotation and quoted source omitted). The
"ultimate question" is whether the search conducted pursuant to
the subpoena was "in fact a genuinely independent source of the
information and tangible evidence at issue." Murray v. United
States, 487 U.S. 533, 542 (1988).
¶33 In determining whether the independent source doctrine
applies, we utilize a two-pronged analysis. First, we must
determine whether, absent the illegal search, the officer would have sought the search warrant or subpoena. Carroll, 322
Wis. 2d 299, ¶45. Second, we ask if information illegally acquired
influenced the magistrate's decision to authorize the warrant or
subpoena. Id. (citing State v. Lange, 158 Wis. 2d 609, 626, 463
N.W.2d 390 (Ct. App. 1990)). The burden is on the State to
convince the court on each of these prongs. Id. (citing Murray,
487 U.S. at 540).
¶34 Van Linn focuses his argument on the first prong of the analysis, but I pause at the preface of the discussion to briefly 4 No. 2019AP1317-CR.awb
observe that a concession by the defense to the existence of
probable cause may not be tantamount to answering the question
posed in the second prong.2 Indeed, the State included in the
subpoena application the results of the suppressed blood test.
Why would the State include the fruits of the unconstitutional
search other than in an attempt to influence the circuit court to
grant the subpoena? The .205 test result in and of itself would
generally be sufficient to establish probable cause. Once a
circuit court sees that, "game over."
2 I acknowledge the Carroll court's statement that "[a]s applied to circumstances where an application for a warrant contains both tainted and untainted evidence, the issued warrant is valid if the untainted evidence is sufficient to support a finding of probable cause to issue the warrant." State v. Carroll, 2010 WI 8, ¶44, 322 Wis. 2d 299, 778 N.W.2d 1. However, Carroll cites to Murray in support of that premise, but Murray represents a very different circumstance. Although in Murray, law enforcement had both tainted and untainted evidence sufficient to support probable cause, only the untainted evidence was presented in the application for the search warrant. See Murray v. United States, 487 U.S. 533, 535-36 (1988). Additionally, the Supreme Court voiced concern about the effect that the illegally obtained information might have on the magistrate IF it had been presented in the search warrant application. See id. at 542.
Moreover, the Carroll court's proclamation tells us nothing about the influence the tainted evidence had on a magistrate's decision to issue a subpoena. The circuit court here made no explicit factual findings that law enforcement would have applied for the subpoena absent the tainted evidence. "Murray simply does not contemplate that, in the absence of any relevant fact-finding by a trial court, an appellate court can reach its own 'inference' about whether the law enforcement officers sought the [subpoena] on the basis of evidence that is genuinely independent of the unlawfully obtained evidence." Carroll, 322 Wis. 2d 299, ¶75 (Abrahamson, C.J., dissenting).
5 No. 2019AP1317-CR.awb
¶35 The State's mention of the results of the suppressed
test stands in stark contrast to the warrant application the United
States Supreme Court upheld in Murray. There, "In applying for
the warrant, the agents did not mention the prior entry, and did
not rely on any observations made during that entry." Murray, 487
U.S. at 535-36. Thus, in addressing the question posed by the
second prong——whether information illegally acquired influenced
the magistrate's decision to authorize the warrant——the only
tenable answer is: Who knows? The record does not reveal the
answer. As a result, I think it unlikely that the State met its
burden.
A
¶36 With this background in hand, I move next to address the
majority opinion's errors. First, the majority rests its holding
on the assertion that "the State had reasonable grounds to suspect
Van Linn of OWI prior to anyone drawing his blood." Majority op.,
¶17. Herein lies the majority's first error.
¶37 At the outset of its analysis, the majority correctly frames the question, focusing on "whether the State's decision to
seek the subpoena was prompted by what it learned from the deputy's
unlawful blood draw." Id., ¶12. Such a framing stems from the
United States Supreme Court's decision in Murray, where, as
indicated above, the Court wrote: "The ultimate question,
therefore, is whether the search pursuant to warrant was in fact
a genuinely independent source of the information and tangible
evidence at issue here." Murray, 487 U.S. at 542. Further refining the test, the Murray court explained that evidence does 6 No. 2019AP1317-CR.awb
not derive from a genuinely independent source "if the agents'
decision to seek the warrant was prompted by what they had seen
during the initial entry, or if information obtained during that
entry was presented to the Magistrate and affected his decision to
issue the warrant." Id. (emphasis added).
¶38 But the majority's analysis quickly strays from this
inquiry. It focuses not on whether any information gleaned from
the illegal search prompted the subpoena application, but on
whether law enforcement "exploited" the fruits of the illegal
search. In answering this question, the majority highlights its
conclusion that there was enough information to seek a subpoena of
the hospital sample before either blood draw was conducted. See
majority op., ¶17. This is not the question that Murray poses.
¶39 With our focus properly on the decision to seek a
subpoena, we must ask whether the information learned from the
first unconstitutional search "prompted" the second. Common sense
says yes. After all, the illegal search gave the State a sneak-
peek of what it was going to find in the "lawful" search: that Van Linn's blood alcohol level was above the legal limit. In other
words, when law enforcement filed for the subpoena of the
hospital's test results, they already knew what they were going to
find due to the illegal search. Would officers really have sought
the subpoena if the illegally obtained sample had shown that Van
Linn's BAC was below the legal limit?
¶40 Undoubtedly, the subpoena here was also prompted by the
suppression of the law enforcement sample. Without that suppression, there would have been no need to subpoena the hospital 7 No. 2019AP1317-CR.awb
sample. Accordingly, the independent source doctrine should not
apply here to give the State a do-over after it collected evidence
in an unconstitutional manner.
B
¶41 Second, the majority concludes that "suppressing the
hospital's blood-test results would not further the purpose of the
exclusionary rule, which is to deter police misconduct." Majority
op., ¶18. The majority says that "[s]uppressing the hospital's
diagnostic blood test . . . would have no further deterrent effect
because it involved no police conduct at all, let alone
misconduct." Id. Herein lies the majority's second error.
¶42 Far from having "no further deterrent effect," allowing
law enforcement a second chance to "discover" the same information
after it violates a person's rights in conducting a search
encourages police misconduct. Instead of taking the time to apply
for a warrant, why wouldn't law enforcement give a warrantless
search a try if it knew that it could get the same information
admitted from another source in the event the fruits of the first search are suppressed?
¶43 Justice Thurgood Marshall observed just this concern in
his dissent in Murray: "Under the circumstances of these cases,
the admission of the evidence 'reseized' during the second search
severely undermines the deterrence function of the exclusionary
rule. Indeed, admission in these cases affirmatively encourages
illegal searches." Murray, 487 U.S. at 546 (Marshall, J.,
dissenting).
8 No. 2019AP1317-CR.awb
¶44 If the majority really wanted to discourage police
misconduct, it would create a strong incentive for police to do
things right the first time. Instead, it provides law enforcement
with an insurance policy.
¶45 Under the majority's rule, an officer would feel free to
seek evidence through unconstitutional means if the officer knew
the evidence would later be available from a different source. In
contrast, if the State were not given the workaround the majority
sanctions in this case, an officer would be encouraged to either
get a warrant for the first search or forgo the first search and
subpoena the hospital record later——both options that are
consistent with the Fourth Amendment's protections.
C
¶46 Finally, I am concerned about the perverse incentive
created by the majority opinion vis-à-vis a law enforcement
officer's initial determination whether to get a warrant.
¶47 This is an OWI case, and in the OWI context, the United
States Supreme Court has determined that the dissipation of alcohol in the bloodstream does not create a per se exigency that excuses
the need for a warrant. Missouri v. McNeely, 569 U.S. 141, 144
(2013). Rather, "[w]hether a warrantless blood test of a drunk-
driving suspect is reasonable must be determined case by case based
on the totality of the circumstances." Id. at 156.
¶48 Warrantless searches are generally disfavored. Indeed,
they are deemed presumptively unreasonable unless an exception
applies. State v. Dalton, 2018 WI 85, ¶38, 383 Wis. 2d 147, 914 N.W.2d 120. 9 No. 2019AP1317-CR.awb
¶49 Yet the majority here rewards a warrantless search.
Imagine, if you will, the future officers who find themselves in
an emergency room with an OWI suspect. To get a warrant or not to
get a warrant?
¶50 Under the majority opinion, there is a perverse
incentive to forgo a warrant application. Just take the blood
sample, and if it is thrown out, simply subpoena the hospital
records. No harm, no foul. But this flips the exclusionary rule
on its head and turns a subpoena into "an after the fact 'insurance
policy' to 'validate' an unlawful search." United States v. Eng,
971 F.2d 854, 861 (2d Cir. 1992) (citing Center Art Galleries-
Hawaii, Inc. v. United States, 875 F.2d 747, 755 (9th Cir. 1989)).
¶51 The above dilemma facing an officer will recur not only
in the OWI context, but also throughout modern policing. And the
incentives provided by the majority will be the same, giving rise
to concerning implications. Take, for example, a hypothetical
raised in Van Linn's reply brief: "Consider the illegal search of
a person's phone in Riley v. California, 573 U.S. 373, 379 (2014), which turned up incriminating photographs. After suppression of
a search like that, could the government simply subpoena Google or
Apple for those companies' copies of the same files as an
'independent source'?"
¶52 Law enforcement should not be able to circumvent a
suppression decision by simply looking for the same information in
another place. Instead, it should do things right the first time.
The exclusionary rule "is calculated to prevent, not to repair. Its purpose is to deter——to compel respect for the constitutional 10 No. 2019AP1317-CR.awb
guaranty in the only effectively available way——by removing the
incentive to disregard it." Elkins v. United States, 364 U.S.
206, 217 (1960).
¶53 Despite the perverse incentive created by the majority
opinion, the next officer to confront this situation should still
just get a warrant. Indeed, the entire argument before this court
would have been avoided from the get-go if law enforcement would
have simply sought a warrant for the first draw of Van Linn's
blood. Judicial efficiency appreciates it and the constitution
demands it.
¶54 For the foregoing reasons, I respectfully dissent.
11 No. 2019AP1317-CR.awb