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(2020 – unpublished)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,

 v.

Daniel J. Van Linn,

 Defendant-Appellant-Petitioner.

FILED

MAR 24, 2022

Sheila T. Reiff

Clerk of Supreme Court

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

2

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 
No. 2019AP1317-CR

3

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.
No. 2019AP1317-CR

4

¶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.
No. 2019AP1317-CR

5

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

 

5 The circuit court eventually held a hearing, concluding that 

the motion was moot since the hospital had already released the 

records.

6 Van 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.
No. 2019AP1317-CR

6

¶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 
No. 2019AP1317-CR

7

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 
No. 2019AP1317-CR

8

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 
No. 2019AP1317-CR

9

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 independentsource 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 
No. 2019AP1317-CR

10

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 
No. 2019AP1317-CR

11

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 

 

7 This 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).
No. 2019AP1317-CR

12

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 
No. 2019AP1317-CR

13

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.
No. 2019AP1317-CR

14

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.
No. 2019AP1317-CR.awb

1

¶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 
No. 2019AP1317-CR.awb

2

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").
No. 2019AP1317-CR.awb

3

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 
No. 2019AP1317-CR.awb

4

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 
No. 2019AP1317-CR.awb

5

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).
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¶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 
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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 sneakpeek 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 
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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). 
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¶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 drunkdriving 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. 
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¶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 GalleriesHawaii, 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 
No. 2019AP1317-CR.awb

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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.
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