April 15, 2022 – The Wisconsin Supreme Court has ruled that a subpoena for the results of a diagnostic blood draw did not violate a suspect’s Fourth Amendment rights, even though the subpoena came after the results of a warrantless investigative blood draw on the suspect were made known to the police.

In State v. Van Linn, 2022 WI 16 (March 24, 2022), the supreme court held (6-1) that the independent source doctrine, an exception to the exclusionary rule, applied to the subpoena for the diagnostic blood draw.

Justice Rebecca Dallet wrote the majority opinion, joined by Chief Justice Annette Ziegler, Justice Roggensack, Justice Rebecca Grassl Bradley, Justice Brian Hagedorn, and Justice Jill Karofsky. Justice Ann Walsh Bradley dissented. 

Car Crashes Into Cabin

In 2017, Daniel Van Linn crashed his car into a cabin in Oconto County.

A sheriff’s deputy who responded smelled alcohol on Van Linn. Van Linn told the deputy that he drank two beers earlier in the evening.

The deputy learned that Van Linn had been convicted four times for operating while intoxicated (OWI) and as was subject to a blood-alcohol limit (BAC) of .02.

Van Linn was taken to the hospital, where staff performed a diagnostic blood draw on him. The results showed that Van Linn’s BAC was 0.226.

The deputy arrived at the hospital and arrested Van Linn for OWI. The deputy didn’t know the results of the diagnostic blood test when he arrested Van Linn.

When the deputy asked Van Linn to consent to a blood draw, he refused. The deputy’s lieutenant directed the deputy to have Van Linn blood’s drawn without a warrant.

When hospital drew Van Linn’s blood a second time, the results were a BAC of 0.205.

Battle Over Blood Draws

The Oconto County Circuit Court suppressed the results of the second blood draw because it was done in violation of the warrant requirement of the Fourth Amendment to the U.S Constitution.

Three months later, the state asked the circuit court to issue a subpoena for the results of the first blood draw.

Van Linn moved to quash the subpoena and, having lost that motion, moved to suppress the results of the second blood draw. The circuit court ruled against Van Linn on statutory grounds and Van Linn appealed.

The Wisconsin Court of Appeals held that the independent source doctrine, an exception to the Fourth Amendment’s warrant requirement, applied.

Given what the deputy learned at the crash scene, the court of appeals held, the state had probable cause to conclude that Van Linn had operated his car while intoxicated before it knew the results of any blood test.

Independent Source Doctrine

Writing for the majority, Justice Dallet explained that the exclusionary rule applies to suppress unlawfully gathered evidence only when the exclusion’s effect on a court’s truth-seeking objective is justified by meaningfully deterring police misconduct. 

Additionally, Justice Dallet noted, the remedy is limited to preventing the state from profiting from unlawfully gathering evidence without putting the state in a worse position than it would have been without the lawful conduct.

The independent source doctrine limits the exclusionary rule, Justice Dallet explained, by admitting unlawfully gathered evidence when the state later lawfully acquires the evidence in manner untainted by the unlawful activity.

U.S. Supreme Court Precedent Controls

Van Linn argued that the state subpoenaed the diagnostic blood draw specifically because it knew the results of the later investigatory (and unlawful) blood draw.

But U.S. Supreme Court precedent, Murray v. United States, 487 U.S. 533 (1988), answered that argument, Justice Dallet noted.

In Murray, the police found marijuana during a warrantless search of a warehouse. The police then applied for a warrant, including in their application for the warrant only information they had prior to the warrantless search.

“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,” Justice Dallet wrote.

What was true of the warehouse in Murray was true of Van Linn’s blood, Justice Dallet explained.

The deputy who arrested Van Linn had good reason to believe he had committed OWI, Justice Dallet noted, because of the crash, the odor of alcohol the deputy smelled on Van Linn, Van Linn’s admission of drinking on the night of the crash, and the fact that Van Linn was subject to a .02 BAC restriction because of four prior OWIs.

“Similar to the agent’s 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,” Justice Dallet wrote.

Diagnostic Blood Draw Was Untainted

That the subpoenaed blood draw came after the warrantless blood draw did not alter the analysis, Justice Dallet wrote, because the U.S. Supreme Court “has rejected the strict but-for causality Van Linn presses here.”

Furthermore, the diagnostic blood draw was “untainted” by the warrantless blood draw because the hospital had conducted the blood draw for its own non-law enforcement purposes, Justice Dallet explained.

Additionally, suppressing the diagnostic blood draw would not deter police misconduct, Justice Dallet explained, because that blood draw involved no police misconduct.

‘Game Over’

In her dissent, Justice A.W. Bradley wrote that the majority had improperly provided the state with “an insurance policy in the event of an unconstitutional search.”

“This court should not promote a search first and warrant later approach,” Justice A.W. Bradley wrote. “And it certainly should not be condoning an approach that undermines the essence of the exclusionary rule, which is to prevent—not to repair.”

As for the independent source doctrine, Justice A.W. Bradley explained that Murray was distinguishable from Van Linn’s case because the state had included the results of the investigatory blood test in its application for the subpoena for the diagnostic blood test.

That information almost certainly influenced the circuit court, A.W. Bradley wrote, and therefore rendered the doctrine inapplicable.

“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?” Justice A.W. Bradley wrote. “The .205 test result in and of itself would generally be sufficient to establish probable cause. Once a circuit court sees that, ‘game over.’”