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Wisconsin Supreme Court allows end-run around lack of warrant

by | Apr 18, 2022 | Criminal Appeals

When the founders decided to require warrants before the government could search someone, what rights were they trying to protect? They wanted to free Americans from an intrusive government seeking to take their liberty without due process. They wanted to protect our privacy and autonomy even if that meant that some crimes would go unpunished.

Unfortunately, the Wisconsin Supreme Court has just undermined those protections. When a police officer drew blood from an OWI suspect without a warrant, the trial court threw that evidence out as violating the defendant’s rights. But the state found another way to get the same evidence. Once it learned it couldn’t use the suppressed blood test, it subpoenaed blood test results from the hospital where police brought the defendant.

In past cases, the courts have been careful to limit this sort of end-run around suppressed evidence. In general, evidence that was garnered through a violation of the defendant’s constitutional rights is inadmissible. So is any evidence the state only learned about by violating the defendant’s rights. The courts call such evidence “the fruit of a poisonous tree.”

Here, however, the defendant argued that the police would only have known to subpoena the blood test results from the hospital because of the original rights violation. The state could not simply go back and “rediscover” the evidence and get it admitted, could it?

Unfortunately, according to the Wisconsin Supreme Court, the state can do just that.

Fruit of the poisonous tree? Maybe not.

In this case, the state argued that when it subpoenaed the hospital’s test results, it didn’t rely at all on the suppressed blood test. You might think it was obvious that someone who subpoenaed evidence in response to prior evidence of the same type being suppressed had done that because the prior evidence had been suppressed.

The Wisconsin Supreme Court disagreed. It found no reason to believe the decision to subpoena the hospital’s blood tests was because the officer’s blood draw had been unconstitutional. Instead, it ruled that the prosecutor only needed to know that officer’s strong opinion that the defendant was drunk to justify subpoenaing the hospital’s test results.

So, if the state insists that this wasn’t a do-over, the Wisconsin Supreme Court is prepared to take the state at its word.

Unfortunately, this case involved a repeat drunk driver. When the defendant is not very sympathetic, it’s all too easy to justify limiting his rights, especially if upholding those rights would result in the case being dismissed. That could well be what happened here.

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