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

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.