Police found Van Linn injured and intoxicated near the scene of an accident, and an ambulance took him to the hospital for treatment. At the hospital Van Linn refused an officer’s request that consent to a blood draw; the officer, claiming exigency, ordered blood taken anyway. Van Linn moved to suppress and the court held there was no exigency, and accordingly suppressed the BAC results. Shortly thereafter, the district attorney asked the court to approve a subpoena of Van Linn’s treatment records from the hospital; the court issued the subpoena and the hospital turned over the records, which included the results of the hospital’s own blood test. Van Linn asked the court to suppress those as well, but it declined. He was convicted and appealed.
On appeal Van Linn posited the subpoena to the hospital–which by statute cannot issue unless the court finds probable cause, Wis. Stat. § 968.135–should be treated the same as a warrant. He argued that the state’s decision to seek the subpoena was the fruit of its earlier, illegal blood draw, for two reasons. First, the state’s action was immediately prompted by the court’s suppression of that illegality. Second, the information the illegal search revealed–an unlawful BAC–motivated the state’s decision to seek other sources of that same information; obviously if the first search had revealed a BAC of .00, the state would have no reason to pursue that same result elsewhere.
The state first asks the court to decline to address Van Linn’s arguments because they differ from what he advanced below. The court of appeals does not accept the invitation:
We decline to apply the forfeiture doctrine under the circumstances of this case. The forfeiture rule is a rule of judicial administration, not a mandate, and it need not be applied in every case. Coffee, 389 Wis. 2d 627, ¶21. Here, although Van Linn arguably did not outline the specific argument he makes on appeal, his suppression motion clearly raised a Fourth Amendment challenge to the diagnostic blood test evidence. As such, addressing Van Linn’s argument here would not blindside the circuit court with a reversal that did not originate in that forum. See State v. Rogers, 196 Wis. 2d 817, 827, 539 N.W.2d 897 (Ct. App. 1995). Moreover, there are no disputed facts requiring resolution. And although the State contends Van Linn should not be allowed to make an argument “which the prosecutor was never given notice of or the opportunity to respond,” it has not identified any prejudice to it that would arise from our consideration of the issue on appeal. We therefore proceed to the merits of Van Linn’s appeal.
The court does not, however, agree with Van Linn’s arguments that the subpoena was not an independent source of the BAC information:
Van Linn’s argument is that the suppression of the law enforcement blood sample prompted the prosecutor to seek the diagnostic blood test evidence. But we fail to see why the sequencing of the State’s subpoena request should matter, especially under the facts here. When prior case law speaks of an unlawful search “prompting” a subsequent, lawful search, it is referring to the notion that the knowledge police gained from an illegal search cannot form the basis for a later, lawful request for that evidence. See Murray, 487 U.S. at 542; Silverthorne Lumber Co., 251 U.S. at 392. Such prompting does not occur when the police seek different, lawfully obtained evidence that is otherwise known to be available to them. Indeed, the relevant case law validates untainted attempts to obtain even the same evidence that was the subject of an earlier, unlawful search. See Murray, 487 U.S. at 535-36 (involving evidence observed by police during an unlawful search of a warehouse but later lawfully seized); Carroll, 322 Wis. 2d 299, ¶¶6-11 (involving incriminating pictures on a cell phone that were unlawfully viewed by police prior to obtaining a warrant).