State v. Tullberg

CourtUnited States State Supreme Court of Wisconsin
Citation857 N.W.2d 120,359 Wis.2d 421
Docket NumberNo. 2012AP1593–CR.,2012AP1593–CR.
PartiesSTATE of Wisconsin, Plaintiff–Respondent, v. Michael R. TULLBERG, Defendant–Appellant–Petitioner.
Decision Date26 December 2014

359 Wis.2d 421
857 N.W.2d 120

STATE of Wisconsin, Plaintiff–Respondent
Michael R. TULLBERG, Defendant–Appellant–Petitioner.

No. 2012AP1593–CR.

Supreme Court of Wisconsin.

Argued Sept. 9, 2014.
Decided Dec. 26, 2014.

857 N.W.2d 123

For the defendant-appellant-petitioner, the cause was argued by Sarah Schmeiser, with whom on the brief was Tracey Wood, and Tracey Wood & Associates, Madison.

For the plaintiff-respondent, the cause was argued by Christine A. Remington, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.



359 Wis.2d 427

¶ 1 This is a review of an unpublished decision of the court of appeals1 which affirmed Michael R. Tullberg's (“Tullberg”) criminal convictions in Shawano County Circuit Court.2 Tullberg appeals his judgment of conviction and the denial of his request for post-conviction relief. Specifically, he argues that the circuit court erred when it denied his motion to suppress a warrantless blood draw. He seeks our review in light of Missouri v. McNeely, 569 U.S. ––––, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013).

¶ 2 Tullberg was involved in a single-vehicle, fatal accident. There were several occupants of the vehicle, including the person who died as a result of the

359 Wis.2d 428

accident. The State alleged that Tullberg was the driver of the vehicle, was under the influence of an intoxicant, and was criminally responsible for, among other things, the fatality. Tullberg denied being the driver.

¶ 3 While Tullberg was being treated at the hospital, a sheriff's deputy instructed hospital staff to perform a warrantless blood draw. Tullberg argues that the blood draw evidence should have been suppressed because the blood draw was an unreasonable search without a warrant and thus unconstitutional. He argues that the good faith doctrine does not apply to this case.

¶ 4 The State argues that the blood draw was a constitutional search because it was supported by both probable cause and exigent circumstances. The State further asserts that, if exigent circumstances did not exist, the good faith doctrine nonetheless allowed the blood test result to be admitted into evidence.3

¶ 5 We conclude that the motion to suppress was properly denied because the

857 N.W.2d 124

warrantless draw of Tullberg's blood was supported by probable cause and exigent circumstances. Because we conclude that the blood draw was constitutional, we need not address the good faith exception.


¶ 6 On July 30, 2009, Tullberg was involved in a fatal, one-vehicle accident in Shawano County when his truck ran off the road, struck a rock, flipped one or two times, and came to rest 70 feet from the rock, on the driver's side. M.A., deceased, was pinned under the

359 Wis.2d 429

driver's side of the vehicle. The crash was so violent that the removable cap covering the truck bed behind the cabin was flattened and torn from the truck, loosening the cap's door in the process, and debris from the truck littered the accident scene.4 Based on cell phone records, the accident occurred between 12:18 a.m. and 12:26 a.m.

¶ 7 M.A., A.M., and C.M. were passengers in the truck at the time of the accident. M.A., who was riding in the truck bed, fell out when the truck flipped over. After the accident, Tullberg and A.M. spent approximately 15 minutes looking for M.A., but to no avail. C.M. looked for M.A. for a few minutes and then left the scene because he was in violation of his probation.

¶ 8 Shortly thereafter, Tullberg's brother, Joseph Hauke (“Hauke”), arrived at the accident scene and gave Tullberg and A.M. a ride to Tullberg's mother's house, which is located approximately five miles from the accident scene. Tullberg's mother gave Tullberg and A.M. a ride to the Langlade Memorial Hospital in Antigo, which is about 20 miles away. At 12:53 a.m., Tullberg's father called 9–1–1 to report the accident, and Hauke did the same shortly thereafter.

¶ 9 At approximately 12:55 a.m., Deputy Sheriff Justin Hoffman (“Deputy Hoffman”) of the Shawano County Sheriff's Department was dispatched to the accident scene. At 1:03 a.m., the deputy arrived at the scene and spent the next 30 minutes there. No readily observable occupants or witnesses were at the scene. The terrain was rocky, steep, and wooded, and he described it as hazardous. Deputy Hoffman ultimately discovered M.A.'s body pinned under the driver's side of

359 Wis.2d 430

the truck. After he investigated and took photographs of the scene for five to ten minutes, firefighters and emergency medical services persons arrived at the scene.

¶ 10 While Deputy Hoffman was investigating the accident scene, Tullberg's father, Melvin Tullberg (“Melvin”), arrived at the scene. Melvin was very shaken up and speaking frantically. He told Deputy Hoffman that Tullberg owned the truck and that Tullberg and A.M. had gone to the hospital. Melvin told Deputy Hoffman several times that, according to Tullberg, a passenger who was riding in the bed of the truck was missing. Melvin stated that Tullberg spent several minutes looking for this passenger and implored Deputy Hoffman to look for him. Melvin said that Tullberg did not say whether he was the driver of the truck when it crashed. Melvin began to walk along the roadside as if he was heading toward the crash site. Because Deputy Hoffman did not want Melvin to be near a traumatic crime scene, he physically guided Melvin to wait near his squad car. Melvin then received a phone call from Hauke and handed the phone to Deputy Hoffman. Hauke told Deputy Hoffman that Tullberg and A.M. were headed to Langlade Memorial Hospital.

857 N.W.2d 125

¶ 11 When Deputy Bradley Schultz and Sergeant Michael Wizner (“Sergeant Wizner”) arrived at the accident scene, Deputy Hoffman left to go to the Langlade Memorial Hospital. He spent approximately 30 minutes driving to the hospital.

¶ 12 Deputy Hoffman arrived at Langlade Memorial Hospital around 2:00 a.m. and interviewed Tullberg approximately ten minutes later. This interview lasted approximately ten minutes. Tullberg told Deputy Hoffman that M.A. was driving the truck when it

359 Wis.2d 431

crashed and that Tullberg did not know M.A.'s last name. Tullberg stated that he knew M.A. for only three days and never let M.A. drive his truck before that night. Tullberg said he was in the passenger seat of the truck when the accident happened and that he did not remember how he exited the truck. Tullberg said that the passenger's side airbag deployed. Tullberg stated that a fourth person may have been in the truck. Deputy Hoffman noticed that Tullberg appeared to have been struck by an airbag because hair on Tullberg's right forearm was singed consistent with friction from an airbag and because Tullberg smelled like the residue from a deployed airbag.

¶ 13 Tullberg admitted to Deputy Hoffman that he consumed alcohol that night, specifically, a mixed drink and a “Jäger bomb.”5 While interviewing Tullberg, Deputy Hoffman noticed that Tullberg had an odor of intoxicants, slurred speech, and bloodshot and glassy eyes. Based on these facts, Deputy Hoffman determined that Tullberg was intoxicated.

¶ 14 Deputy Hoffman next spent approximately five to ten minutes interviewing A.M., who was in a different room in the Langlade Memorial Hospital. A.M. said that when the accident happened, she was in the bed of the truck, M.A. was driving the truck, and Tullberg was riding in the passenger's seat.

¶ 15 After interviewing A.M. and while still at the hospital, Deputy Hoffman telephoned Sergeant Wizner to gather information about the accident scene. Sergeant Wizner told Deputy Hoffman that the airbag on the passenger's side had not deployed and that the airbag on the driver's side had deployed. Sergeant

359 Wis.2d 432

Wizner confirmed that the truck was lying on its driver's side and that its driver's side window was intact and partially rolled down.

¶ 16 Deputy Hoffman thereafter concluded that he had probable cause to believe that Tullberg was intoxicated and the driver of the truck at the time of the accident. Deputy Hoffman based this determination on the fact that the passenger's side airbag did not deploy but the driver's side airbag did deploy. Tullberg appeared as if an airbag struck him because his right forearm hair was singed and he smelled like airbag residue. Further, Deputy Hoffman determined that even though Tullberg said that M.A. was the driver, the evidence indicated that M.A. could not have been the driver. M.A. was pinned underneath the driver's side of the truck, and the evidence from the accident scene showed that M.A. could not have been ejected from the vehicle. Specifically, the driver's side window was intact and partially rolled down. M.A., whose weight Deputy Hoffman...

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    ...police investigation and created an exigency, such that there was no time to obtain a warrant for the blood draw. • State v. Tullberg , 857 N.W.2d 120 (Wisc. 2014). The court permitted a warrantless blood draw where the defendant had left a fatal accident scene and then lied to police when ......
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