State v. Daniel J. Van Linn

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(2020 – unpublished)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.

II

¶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

1