Wisconsin Supreme Court Sees Nothing Wrong With Cops Acquiring Evidence A Court Had Already Suppressed

from the apparently-the-Constitution-is-more-of-a-guideline dept

I guess we can’t have nice things. You know, little things… like adherence to the Fourth Amendment. In Wisconsin, the state’s top court says [PDF] cops don’t need to worry too much about suppressed evidence if there’s another way to acquire it. (via Courthouse News Service)

Daniel Van Linn was convicted of driving under the influence, his fifth offense under this law. Officers found his vehicle crashed and abandoned and found Van Linn himself lying in a nearby yard, bleeding from his hands and head. He was transported to a nearby hospital for medical treatment. While there, an officer decided to perform a warrantless blood draw, justifying the warrantless aspect by claiming the delay caused by transporting Van Linn to the hospital created “exigent circumstances.”

This blood draw showed Van Linn’s blood alcohol level was well above the .02 percent restriction he was limited to as a multiple offender. Van Linn challenged this warrantless search of his blood in court and won. The county court said the blood draw was not justified by exigent circumstances and suppressed the evidence.

Then this happened. At the same court.

Thereafter, the State requested circuit court approval of a subpoena directed to ThedaCare Medical Center—Shawano seeking Van Linn’s medical records created in connection with his treatment on March 26, 2017. After the court signed the subpoena, Van Linn objected and filed a motion to quash. ThedaCare provided the records before the motion to quash could be heard, and the court deemed the motion moot. The records revealed that hospital personnel, acting independently of law enforcement, had taken one or more blood samples from Van Linn and performed a blood panel for diagnostic purposes, which included his blood alcohol concentration.

Van Linn appealed the circuit court’s refusal to suppress this evidence, arguing logically that allowing cops to just get the same evidence another way (despite any “independent” origin) made a mockery of the deterrence that evidence suppression is supposed to create. The lower court did not address this particular argument, relying instead on it determination that the blood alcohol level observed in the “independent” search by the hospital was not privileged information that could not be obtained this way or submitted as evidence.

The Wisconsin Supreme Court does address this issue. But it doesn’t work out any better for Van Linn, or any other Wisconsin resident who might assume suppressed evidence will remain suppressed, rather than acquired by other means and used against them during criminal prosecutions.

Van Linn and the State appear to agree that the principles articulated in Silverthorne and Murray apply equally to subpoenas and warrants, and we assume that to be the case. We do not agree with Van Linn, however, that the State is attempting to take an impermissible “back door” to avoid the circuit court’s earlier suppression ruling. Nor do we agree with him that merely by disclosing the impermissibly derived blood alcohol content in the subpoena application, the State automatically rendered the diagnostic blood test evidence the “fruit” of the earlier unlawful law enforcement blood sample.

We reach these conclusions because, most importantly, the diagnostic blood test evidence sought by the State was created completely independently of the impermissible law enforcement blood sample. The medical provider drew its own sample of blood for treatment purposes and conducted its own analysis. The purpose of the draw was not to obtain evidence of a crime but, rather, to diagnose and treat any injuries from which Van Linn may have been suffering. By declaring this evidence unavailable to the State merely because it was of the same nature as separate, unlawfully obtained evidence, we would be placing the police in a worse position than they would otherwise occupy. Thus, the purpose of the exclusionary rule would not be effectuated by suppressing the evidence.

But denying cops the opportunity to utilize virtually the same evidence that had already been suppressed would not have put them in a “worse position.” It would have put them in an identical position — one where they did not have enough lawfully obtained evidence to support a conviction. The purpose of evidence suppression is to encourage officers to behave more lawfully in future situations. Allowing them to seek alternate routes for previously suppressed evidence makes evidence suppression almost meaningless.

But the state Supreme Court insists this is fine and presumably feels it will never be abused. While officers may have been more than reasonably suspicious Van Linn had been driving drunk, this wasn’t confirmed until officers performed an illegal blood draw. That the hospital performed its own blood work during its treatment of Van Linn’s injuries should be nothing more than a not-all-that-surprising turn of events, rather than a new “independent” source of evidence.

The court says this isn’t like other suppression efforts. It says there’s no “fruit of the poisonous tree” at work here, which would turn any further evidence obtained subsequent to illegally obtained evidence useless. But that ignores a key fact about this chain of events: without the previous, illegally obtained blood draw that showed intoxication, officers would have had no articulable reason to approach the hospital with a subpoena seeking Van Linn’s medical records.

That the same court would allow this is extremely concerning. While it’s safe to assume circuit court judges don’t while their evenings away reading each others’ issued orders, the mere invocation of the criminal case number would have given the judge handling the subpoena some idea of what had already transpired in this case. The judge should have known officers were seeking evidence that had been suppressed and treated the request accordingly. This didn’t happen and the state’s top court’s decision says it’s ok for cops to try, try again if, at first, they fail to respect the Constitution.

The dissent does better. It points out law enforcement waited three months before approaching the hospital with a subpoena. This alone indicates law enforcement was hoping to find some way to neuter the effectiveness of the court’s suppression order. The officer attempted to justify the illegal blood draw by claiming time was of the essence (“exigent circumstances”). The extended delay between the first blood draw and the very eventual acquisition of this information from the hospital show law enforcement had plenty of options. Officers just decided to use the illegal option first.

A half-decade after the initial constitutional violation, Wisconsin law enforcement has finally been given some guidance on how to handle situations like these. And that answer is: if you can find a way to salvage unconstitutional searches, the courts of Wisconsin won’t stop you. Here’s how the dissent puts it:

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.”


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.

That’s the end result of this decision: suppression means nothing. The exclusionary rule doesn’t actually exclude… not if cops can find another lawful source for the same evidence and even if they wait until their original evidence is suppressed (which may take months) before they choose to go this route. This decision isn’t “lawful, but awful.” It’s just fucking awful.

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Comments on “Wisconsin Supreme Court Sees Nothing Wrong With Cops Acquiring Evidence A Court Had Already Suppressed”

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That One Guy (profile) says:

The constitution: Not so much rules as optional guidelines

Delightful, evidence laundering is now fully legal in an entire state because the supreme court there didn’t dare hold police to any standards that might impede their ability to do whatever they want to.

So long as they can find some way to access a bit of information it doesn’t matter in the slightest if their first attempt was blatantly out of legal/constitutional bounds it’s still good, why I can’t see how that could be abused at all!

Bruce C. says:


Where’s the “laundering” here? If they tried to post-facto obtain a warrant for the illegal blood test, I’d agree with you.
For me the problem isn’t the fact that the diagnostic tests happened to provide the same data as the quashed sample, but the fact that the hospital and the court didn’t stand up for patient privacy on medical records as a general principle. But those privacy rights have been eroding for decades.

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Hyman Rosen says:

4th Is Not A Game

Court is not a video game where failing to do one thing correctly leads to game over for an entire case. Here, even if the court denied exigent circumstances existed and suppressed the evidence obtained that way, the fact that a four-time convicted drunk driver was found alone near his crashed car is more than sufficient for the police to believe that he was driving drunk again. So if there happens to be another blood sample available obtained legally and available for subpoena, it’s completely reasonable for the court to allow that as evidence.

Techdirt seems to be going off the deep end more and more, with constant Chicken Little caterwauling about how everything is awful and the world is ending.

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LittleCupcakes says:


Agree that this evidence was properly introduced. There’s other ways around exclusion, including “inevitable discovery”. It’s not the evidence itself but the method of collection that leads to exclusion.

A most interesting one is: some random person commits a crime and in doing so finds evidence of some other crime; the cops can absolutely use that found evidence. I hate that one, but no Fourth problems there.

As to your second point, well-said and seconded. Techdirt used to be almost always interesting and illuminating but is now too often also shrill yet heavy-handed. Still the best place for news of its particular interest, but much less enjoyable to read and more difficult from which to learn.

The usual commenters haven’t “+1, me too”’d the shit out of this particular piece, which is unexpectedly neat. Bravo, cool kids, from the kid sitting alone in the corner.

Anonymous Coward says:

Re: Re:

Agreed, Techdirt’s got this one wrong. If they knew they were dealing with a serial drunk driver it’s not outrageous to get a warrant for this. Was is it simply too late at night to get one or something? And if alcohol leaves the bloodstream quickly enough that they were afraid of the evidence of his intoxication being harmed, is there not a process in place to take an immediate sample by the hospital which can be preserved prior to treating the patient while the official warrant request is filed, at which point it can be handed to the police?

From the ruling: 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

Being merely a layman with no knowledge of how long it takes for blood alcohol levels to drop, but knowing they do drop (and the hospital also has to treat him for potential alcohol poisoning), taking evidence of a potential offense from four-time previous offender as early as possible hardly seems unreasonable. Did they screw up by not getting the warrant first? Yes, but not on the order of magnitude that other police cases have screwed up their evidence gathering.

The problem here is honestly procedural one that can be addressed with better police training, i.e. wait for the warrant. But it hardly rises to the level where a four-time convicted drunk driver deserves to evade his fifth conviction on a technicality. This molehill isn’t the mountain Techdirt is trying to make it out to be.

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DannyB (profile) says:

Re: Re:

Your statement is correct.

I don’t see this as a shortcut. The hospital had lawfully done its own blood test and created medical records which could later be properly the subject of a subpoena.

Suppose the first improper blood draw had not happened. Do you think it would then be proper to subpoena the hospital records for blood alcohol level?

The improper blood draw was a separate event. And it was properly thrown out. That should not cause the second legitimate subpoena for lawfully created records to also be thrown out.

I think the court did the right thing both times.

Anonymous Coward says:

3rd party doctrine is just another way

Given the crash, his injuries, and attempt to flee from the scene, there is probable cause for the police to seek a warrant for potential records the hospital made. 3rd party doctrine sucks.

It would have been another if the only blood test records had been from the faulty original warrant.

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That Anonymous Coward (profile) says:

Parallel Construction lives on!

They will only do this to bad people so us good people shouldn’t worry about this.

Those poor poor officers, who can’t know all of our rights without 15 cases explaining that you can’t shove a baton into a suspect anus, should always get another chance to salvage their cases. Bad people don’t deserve rights & the officers would feel bad if their stupidity cost them a case so lets give them all a ribbon.

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Anonymous Coward says:

I can’t see the problem here.
The police did not use the unlawful and suppressed evidence to justify the warrant – they used the fact that someone who has several previous DUI convictions crashed a car and potentially tried to leave the scene.

Even without the blood test, they had more than enough probable cause to request the records. If they had not stupidly violated the 4th, this would not be a story, just business as usual.

Normally, I agree with the indignation about Law Enforcement overreach but in this case, the guy largely did this to himself. Evidence may have been suppressed due to the illegal search but that is entirely separate to evidence received due to a legal warrant with real justification.

GeneD (profile) says:

Honestly, though. In their zeal to create and exploit more and more exceptions to the 4th Amendment, the cops missed the forest for the trees. There were more than enough evidence to support getting a warrant for a blood draw. It would’ve killed the case for the cops on the scene to get a warrant? Dude drove drunk, and now has to take his lumps like a man. That being said, be advised that court after court has ruled medical records are subpoena-able without a warrant. Plan your medical care-and impaired operation and other illegal activities-accordingly.

Ben (profile) says:

Man objects to DUI charge after driving under the influence.. court finds him DUI... news at 11

I have no sympathy for Van Linn. Perhaps he shouldn’t be driving his truck when intoxicated. Ever.

That the police had to ask the medical folks for a little help when they screwed up is just sensible cooperation.

DUI is contemptible. Repeated DUI needs real consequences.

Anonymous Coward says:


That the police had to ask the medical folks for a little help when they screwed up is just sensible cooperation.

Maybe if they didn’t ignore constitution rights like they do, they would not be subject to criticism when they make a mistake and correct it. American cops have shown repeatedly that they will totally ignore the constitutions, and peoples rights unless someone can hold a gun to their heads.

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Anonymous Coward says:


i have zero sympathy for Van Linn, but then, this isn’t about him.

the blood alcohol level observed in the “independent” search by the hospital was not privileged information

How is it not?

How is a subpoena good enough, 3 months later? Why not a proper warrant? Why allow the evidence laundering after the cops
s̶c̶r̶e̶w̶e̶d̶ ̶u̶p̶ knowingly played their usual games knowing they’d get away with it, and waited even on the subpoena, hoping to set some other awful precedent? How many bites at the apple do they get?

Mike Masnick (profile) says:


Criminals belong in prison. The Constitution exists to protect people from governmental overreach and abuse, but it is not a triumph for the people when the government makes a procedural error that allows a criminal to go free

Hyman Rosen apparently has no problem flipping Blackstone’s Ratio. That’s the famous line that “It is better that ten guilty persons escape than that one innocent suffer.” Instead, Rosen apparently has no problem with civil liberties shortcuts.

And what even does “criminals belong in prison” mean? Forever? Should someone who stole $10 never be let free? What nonsense.

I pointed out on a previous post that you seem to have a child’s understanding of the world (or a troll’s) and this is just confirming it.

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Hyman Rosen says:

Re: Re:

I’m sorry, who is the innocent person who is suffering here?

“Criminals belong in prison” is shorthand for “an accused person, having been given due process and found guilty of a criminal offense, should be imprisoned for such term as the law specifies”. (It would be good if the law specified thay term as life for repeat offenders, since they have demonstrated an inability to live in civil society without preying on their fellow citizens, but that’s a separate issue.)

You seen to be assuming bad faith on the various parts of the justice system. Whether or not that’s true in practice, it’s not true in theory. Generally speaking, when evidence is excluded or other procedural issues affect a case, the assumption is that people have acted in error, not with malice. A system whose components are assumed to be acting in malice isn’t one in which constitutional processes will help. Judges are not at war with with police or lawyers from either side. The assumption is that everyone is cooperating to achieve justice.

Anonymous Coward says:

But that ignores a key fact about this chain of events: without the previous, illegally obtained blood draw that showed intoxication, officers would have had no articulable reason to approach the hospital with a subpoena seeking Van Linn’s medical records.

So the facts that 1) he was in a serious wreck, 2) he had a long history of drunk driving, and 3) if he’d had that much to drink they could almost certainly smell it on his breath when they found him… none of those mean anything?

Ian Williams says:

“But that ignores a key fact about this chain of events: without the previous, illegally obtained blood draw that showed intoxication, officers would have had no articulable reason to approach the hospital with a subpoena seeking Van Linn’s medical records.”

No articulable reason, other than the crashed and abandoned car and it’s driver who has a past history of drunk driving found passed out in a nearby yard, which would have been enough to get a warrant in the first case had they attempted to do so, in fact it rather begs the question as why they even bothered to try to obtain the blood test in the first place when it’s almost certain that one would be taken as part of his treatment.

Anonymous Coward says:

“But that ignores a key fact about this chain of events: without the previous, illegally obtained blood draw that showed intoxication, officers would have had no articulable reason to approach the hospital with a subpoena seeking Van Linn’s medical records.”

While it’s unusual that they didn’t simply issue a warrant for the medical records (were they afraid no blood test had been done?) and thus committed what is a procedural error, their actions seem at least within the bounds of reason and are not a blatant attempt to inflict an injustice upon someone. Tim Cushing appears to believe this is a grave, egregious error that merits letting a serial drunk driver off the hook for a fifth driving offense for someone who has miraculously not killed anyone yet (so I hope) with their drunk driving.

I am making an educated guess when I say that Tim Cushing has apparently never lost a loved one to drunk driving.

Lostinlodos (profile) says:

More a moral stance?

Mr Tim appears to be pushing a narrative despite the facts here.
Let’s ignore the bad action for a second.

The cops happen upon a crashed vehicle owned by a drunkard with restrictions on driving privileges.
They find the driver, and transport him to the hospital.
The hospital takes a blood sample.

Generally the police have two options here. Assuming the restrictions didn’t include random testing.
They could request the blood results from the hospital as part of the investigation into what is a serious public danger. And the hospital staff decides to turn it over or not.
If not, they get a warrant and force the turn over.

Either one is completely legal here.

That the police opted to do their own test is the sole issue here.
Someone else’s test is a separate occurrence as it was done without police involvement or interference!

That said:
Any officers involved in the police testing should be disciplined. That can not and must not be tolerated.
However, we also can’t simply disregard legal processes for illegal processing that happens to happen prior or in parallel.

Separate tests. Separate evidence. Unrelated causation.

Lostinlodos (profile) says:

Re: Re:

Since that is the entire point of the article, you muppet.

The point of the article is that an action independent of of other actions should some how have some effect on each other.
The materials would have been available with or without the police police draw.

Two independent bodies running separate tests and receiving the same or similar results do not make them the same test, nor the same result. They are independent of each other.

You inanimate hunk of stitch cloth.

Lostinlodos (profile) says:

Re: Re: Re: Inconvenience?

There’s nothing inconvenient here. Except for those completely and absolutely against enforcing law and order.

By temporarily ignoring the the police test you can see that there was clearly another test done. Without police involvement.

You’re Claiming an independent test done without police involvement should be barred simply because the police conducted a similar test in violation of constitutional protections.

The judge here is absolutely correct!
Police/prosecution, should not be barred from independent evidence gathered within the rights and limits of the law. Regardless of their own violation.
Their test is rightfully excluded.
The hospital’s test is rightfully includable.

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