State v. Michael R. Tullberg

2014 WI 134
SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP1593-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Michael R. Tullberg,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 349 Wis. 2d 526, 835 N.W.2d 291)
(Ct. App. 2013 – Unpublished)
OPINION FILED: December 26, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 9, 2014
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Shawano
JUDGE: James R. Habeck
JUSTICES:
CONCURRED: ABRAHAMSON, C.J., concurs. (Opinion filed.)
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
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.
2014 WI 134
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP1593-CR
(L.C. No. 2009CF202)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v. DEC 26, 2014
Michael R. Tullberg, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 ANNETTE KINGSLAND ZIEGLER, J. 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unpublished decision of the court of appeals1 which affirmed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.
1
State v. Tullberg, No. 2012AP1593-CR, unpublished slip op.
(Wis. Ct. App. June 25, 2013) (per curiam).
2
The Honorable James R. Habeck presided.
No. 2012AP1593-CR
He seeks our review in light of Missouri v. McNeely, 569 U.S.
___, 133 S. Ct. 1552 (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 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 warrantless draw of Tullberg's blood was
3
We applied the good faith doctrine in a similar case. See
State v. Kennedy, 2014 WI 132, ___ Wis. 2d ___, ___ N.W.2d ___.
2
No. 2012AP1593-CR
supported by probable cause and exigent circumstances. Because
we conclude that the blood draw was constitutional, we need not
address the good faith exception.
I. FACTUAL BACKGROUND
¶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 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
4
Also known as a box, a truck bed is the large cargo area
in the back of the truck, located behind the cabin area intended
for passengers.
3
No. 2012AP1593-CR
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 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
4
No. 2012AP1593-CR
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.
¶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 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.
5
No. 2012AP1593-CR
¶13 Tullberg admitted to Deputy Hoffman that he consumed
alcohol that night, specifically, a mixed drink and a "Jӓger
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 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
5
A Jӓger bomb is made by dropping a shot glass of
Jägermeister (a 70-proof liqueur) into a glass of an energy
drink, such as Red Bull® or Monster Energy®.
6
No. 2012AP1593-CR
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
estimated was between 240 and 250 pounds, could not have fit
through the window opening. M.A. could not have been the driver
and then pinned under the driver's side of the vehicle without
being ejected from the vehicle. There was no indication that he
could have been ejected. Also, Deputy Hoffman did not detect
any airbag residue on M.A.
¶17 Simply stated, as a result of the information Deputy
Hoffman learned from his observations and interview of Tullberg,
coupled with the evidence at the scene of the accident, Deputy
Hoffman determined that Tullberg had operated the motor vehicle
while intoxicated.
¶18 Because of the facts and circumstances of this
investigation, Deputy Hoffman did not follow standard protocol
for an operating under the influence arrest. He did not
administer field sobriety tests, issue a citation, arrest
7
No. 2012AP1593-CR
Tullberg, or read the Informing the Accused form to Tullberg.6
Deputy Hoffman testified that he did not follow the standard
procedure because, among other things, Tullberg's medical
condition was unknown, Tullberg was hospitalized after a serious
car accident, and medical personnel needed to perform a
Computerized Tomography scan ("CT scan") on Tullberg with some
immediacy.
¶19 More than two and a half hours after the accident,
Deputy Hoffman instructed medical staff to draw two vials of
Tullberg's blood for testing. He did not have a warrant.
Deputy Hoffman believed that Tullberg's blood needed to be drawn
urgently because, based on his training, he believed the alcohol
in Tullberg's bloodstream was rapidly dissipating and time was
of the essence. Based on his training, Deputy Hoffman knew that
a suspected drunken driver's blood should be drawn within three
hours of an automobile accident in which the driver was
involved.7 At 3:05 a.m. hospital staff drew Tullberg's blood.
The blood test results indicated that Tullberg's blood alcohol
concentration ("BAC") was 0.141, above the legal limit.
6
Tullberg did not object to the blood draw. However, the
State does not argue that Tullberg consented to it.
7
If a blood sample is taken more than three hours after an
automobile accident, the blood draw evidence is admissible only
if an expert testifies to its accuracy. See Wis. Stat.
§§ 885.235(1g), 885.235(3) (2009-10). All subsequent references
to the Wisconsin Statutes are to the 2009-10 version unless
otherwise indicated. See also State v. Bohling, 173
Wis. 2d 529, 546, 494 N.W.2d 399 (1993), abrogated on other
grounds by Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552
(2013).
8
No. 2012AP1593-CR
II. PROCEDURAL POSTURE
¶20 On August 7, 2009, a warrant for Tullberg's arrest was
issued. On the next day, Tullberg turned himself in.
¶21 On August 10, 2009, Tullberg made an initial
appearance and was charged in a criminal complaint with six
offenses: homicide by intoxicated use of a motor vehicle,8
second-degree reckless homicide,9 two counts of operating while
intoxicated causing injury,10 failure to aid a victim or report a
crime,11 and obstructing an officer.12 On August 19, 2009, a
preliminary hearing was conducted and Tullberg was bound over
for trial. An information was filed on August 21, 2009. The
information differed from the complaint only in that it replaced
the second-degree reckless homicide charge with a charge of
homicide by use of a vehicle with a prohibited alcohol
concentration,13 included a new charge of hit and run resulting
in death,14 and omitted the complaint's charge of failure to aid
a victim or report a crime. On August 24, 2009, the State filed
8
Contrary to Wis. Stat. § 940.09(1)(a).
9
Contrary to Wis. Stat. § 940.06(1).
10
Contrary to Wis. Stat. § 346.63(2)(a)1. One count was
for injuring A.M. and the other count was for injuring C.M.
11
Contrary to Wis. Stat. § 940.34(2)(a). This count was
for failing to aid M.A.
12
Contrary to Wis. Stat. § 946.41(1).
13
Contrary to Wis. Stat. § 940.09(1)(b).
14
Contrary to Wis. Stat. § 346.67(1).
9
No. 2012AP1593-CR
an amended information that included the six charges in the
information and added two counts of operating with prohibited
alcohol concentration causing injury15 and one count of failure
to aid a victim or report a crime. On August 24, 2009, Tullberg
was arraigned and entered pleas of not guilty.
¶22 On January 19, 2010, before McNeely was decided,
Tullberg filed a motion to suppress the blood test results. He
argued, inter alia, that the blood draw was unconstitutional
because it was not performed in compliance with legally
recognized protocols, not done pursuant to implied consent laws
or pursuant to a warrant, not done with his express consent, and
not justified by exigent circumstances. On May 25, 2010, the
circuit court held a hearing on Tullberg's suppression motion.
After hearing the evidence presented and considering the
arguments of counsel, the circuit court concluded that exigent
circumstances justified the warrantless blood draw. The circuit
court denied the suppression motion.
¶23 On March 28 through April 1, 2011, Tullberg was tried
before a jury. The jury found Tullberg guilty of six counts.
On May 31, 2011, the circuit court sentenced Tullberg.
¶24 On February 3, 2012, Tullberg filed a motion for post-
conviction relief, seeking a new trial. He argued, inter alia,
that the circuit court erred in denying Tullberg's motion to
suppress the blood draw evidence because the blood draw was
15
Contrary to Wis. Stat. § 346.63(2)(a). The victims of
these counts were A.M. and C.M.
10
No. 2012AP1593-CR
unconstitutional. On June 27, 2012, the circuit court denied
the motion for post-conviction relief. These proceedings also
occurred before McNeely was decided.
¶25 Tullberg appealed his conviction. On June 25, 2013,
the court of appeals upheld the circuit court's judgment of
conviction and order denying his motion for post-conviction
relief. The court of appeals reasoned that both probable cause
and exigent circumstances supported the blood draw.16 McNeely
was decided before the court of appeals issued its decision.
¶26 On July 17, 2013, Tullberg petitioned this court for
review. On February 19, 2014, we granted review. The petition
requests review to clarify the law relating to exigent
circumstances under McNeely.
III. STANDARD OF REVIEW
¶27 "Our review of an order granting or denying a motion
to suppress evidence presents a question of constitutional
fact." State v. Robinson, 2010 WI 80, ¶22, 327 Wis. 2d 302, 786
N.W.2d 463 (citing State v. Hughes, 2000 WI 24, ¶15, 233
Wis. 2d 280, 607 N.W.2d 621). "When presented with a question
of constitutional fact, this court engages in a two-step
inquiry." Id. (citing State v. Pallone, 2000 WI 77, ¶27, 236
Wis. 2d 162, 613 N.W.2d 568; Hughes, 233 Wis. 2d 280, ¶15).
"First, we review the circuit court's findings of historical
fact under a deferential standard, upholding them unless they
16
The court of appeals also resolved other issues not
petitioned to this court.
11
No. 2012AP1593-CR
are clearly erroneous." Id. (citations omitted). "Second, we
independently apply constitutional principles to those facts."
Id. (citations omitted).
¶28 We apply this two-step inquiry when determining
whether exigent circumstances justified a warrantless search,
State v. Richter, 2000 WI 58, ¶26, 235 Wis. 2d 524, 612
N.W.2d 29, and whether a law enforcement officer had probable
cause, State v. Popke, 2009 WI 37, ¶10, 317 Wis. 2d 118, 765
N.W.2d 569.
IV. ANALYSIS
¶29 "The Fourth Amendment to the United States
Constitution and Article I, Section 11 of the Wisconsin
Constitution protect '[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable
searches and seizures.'" Robinson, 327 Wis. 2d 302, ¶24
(citations omitted).17 "The touchstone of the Fourth Amendment
17
The Fourth Amendment to the United States Constitution
provides in full:
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and
the persons or things to be seized.
Article I, Section 11 of the Wisconsin Constitution states:
The right of the people to be secure in their
persons, houses, papers, and effects against
unreasonable searches and seizures shall not be
violated; and no warrant shall issue but upon probable
(continued)
12
No. 2012AP1593-CR
is reasonableness." Florida v. Jimeno, 500 U.S. 248, 250 (1991)
(citing Katz v. United States, 389 U.S. 347, 360 (1967)). "The
Fourth Amendment does not proscribe all state-initiated searches
and seizures; it merely proscribes those which are
unreasonable." Id. (citing Illinois v. Rodriguez, 497 U.S. 177
(1990)).
¶30 A warrantless search is presumptively unreasonable,
State v. Henderson, 2001 WI 97, ¶19, 245 Wis. 2d 345, 629 N.W.2d
613, and is constitutional only if it falls under an exception
to the warrant requirement, State v. Krajewski, 2002 WI 97, ¶24,
255 Wis. 2d 98, 648 N.W.2d 385. One exception to the warrant
requirement is the exigent circumstances doctrine, which holds
that a warrantless search complies with the Fourth Amendment if
the need for a search is urgent and insufficient time to obtain
a warrant exists. Robinson, 327 Wis. 2d 302, ¶24.
¶31 A blood draw to uncover evidence of a crime is a
search within the meaning of the Fourth Amendment. State v.
Bentley, 92 Wis. 2d 860, 863-64, 286 N.W.2d 153 (Ct. App. 1979).
A warrantless, nonconsensual blood draw of a suspected drunken
driver complies with the Fourth Amendment if: (1) there was
cause, supported by oath or affirmation, and
particularly describing the place to be searched and
the persons or things to be seized.
We generally interpret the search and seizure provision of our
state constitution consistent with the United States Supreme
Court's interpretation of the Fourth Amendment. State v.
Robinson, 2010 WI 80, ¶24 n.11, 327 Wis. 2d 302, 786 N.W.2d 463
(citations omitted).
13
No. 2012AP1593-CR
probable cause to believe the blood would furnish evidence of a
crime; (2) the blood was drawn under exigent circumstances; (3)
the blood was drawn in a reasonable manner; and (4) the suspect
did not reasonably object to the blood draw. State v. Erickson,
2003 WI App 43, ¶9, 260 Wis. 2d 279, 659 N.W.2d 407; Schmerber
v. California, 384 U.S. 757, 769-71 (1966).
¶32 We first examine whether Deputy Hoffman had probable
cause to instruct hospital staff to draw Tullberg's blood. Next
we consider whether exigent circumstances justified the
warrantless blood draw. Tullberg has conceded that his blood
was drawn in a reasonable manner and that he did not reasonably
object to the blood draw. Finally, we analyze Tullberg's
argument that a suspected drunken driver must be arrested before
his or her blood may be drawn without a search warrant. We
conclude that probable cause and exigent circumstances justified
the warrantless blood draw. Tullberg did not need to be under
arrest before his blood could be drawn.
A. Probable Cause to Search
¶33 "In the search context, probable cause requires a
'fair probability' that contraband or evidence of a crime will
be found in a particular place." Robinson, 327 Wis. 2d 302, ¶26
(quoting Hughes, 233 Wis. 2d 280, ¶21) (quotation marks
omitted). To have probable cause to search a suspect, a law
enforcement officer must be aware of and reasonably believe
evidence that shows the suspect's guilt of a crime is more than
a possibility, although the evidence need not show the suspect's
guilt is more likely than not. State v. Richardson, 156
14
No. 2012AP1593-CR
Wis. 2d 128, 148-49, 456 N.W.2d 830 (1990) (citing State v.
Nordness, 128 Wis. 2d 15, 35, 381 N.W.2d 300 (1986); State v.
Paszek, 50 Wis. 2d 619, 625, 184 N.W.2d 836 (1971)). To
determine whether probable cause to search existed, a court
determines whether law enforcement acted reasonably. Robinson,
327 Wis. 2d 302, ¶26 (citing Rodriguez, 497 U.S. at 185;
Illinois v. Gates, 462 U.S. 213, 231 (1983); Hughes, 233 Wis. 2d
280, ¶23). A reviewing court considers the totality of the
circumstances to determine whether probable cause to search
existed. State v. Ward, 2000 WI 3, ¶26, 231 Wis. 2d 723, 604
N.W.2d 517 (citing State v. DeSmidt, 155 Wis. 2d 119, 131, 454
N.W.2d 780 (1990)).
¶34 We conclude that, under the totality of the
circumstances, Deputy Hoffman had probable cause to believe that
a test of Tullberg's blood would produce evidence that Tullberg
had operated a motor vehicle while intoxicated. Deputy Hoffman
relied on several factors to conclude that Tullberg was under
the influence of an intoxicant. While interviewing Tullberg in
the hospital, Deputy Hoffman noticed that Tullberg's speech was
slurred, his eyes were glassy and bloodshot, and his breath
smelled of intoxicants. Tullberg admitted to Deputy Hoffman
that he had multiple alcoholic drinks that night. These facts
establish that Deputy Hoffman reasonably believed that Tullberg
was intoxicated. See State v. Kasian, 207 Wis. 2d 611, 622, 558
N.W.2d 687 (Ct. App. 1996) (holding that an officer had probable
cause to arrest defendant for operating while intoxicated
because defendant smelled of intoxicants, his speech was
15
No. 2012AP1593-CR
slurred, he was injured, and he was lying next to his van which
had struck a telephone pole); Erickson, 260 Wis. 2d 279, ¶¶15-16
(holding that an officer had probable cause to have defendant's
blood drawn because defendant smelled strongly of intoxicants,
crashed her truck into another vehicle, admitted to drinking one
to three beers, and had recently left an all-night party).
¶35 Tullberg argues that bloodshot and glassy eyes are not
a sign of intoxication, relying on a National Highway Traffic
and Safety Administration study regarding the accuracy of clues
that law enforcement officers use to determine whether someone
is intoxicated.18 The study argues that law enforcement officers
should not consider bloodshot and glassy eyes to be an indicator
of intoxication because such eye conditions may be caused by
allergies or shift work. However, the study does not conclude
that intoxication does not cause eyes to become bloodshot and
glassy. We reaffirm that a law enforcement officer may consider
bloodshot and glassy eyes to be one of several indicators of
intoxication, even though such eye descriptors may have an
innocent explanation. See Robinson, 327 Wis. 2d 302, ¶29
("'[I]nnocent' behavior frequently will provide the basis for a
showing of probable cause.'") (quoting Gates, 462 U.S. at 243
n.13).
18
Jack Stuster, U.S. Department of Transportation, NHTSA
Final Report, The Detection of DWI at BACS below 0.10, DOT HS-
808-654 (Sept. 1997) at 14 and E-10.
16
No. 2012AP1593-CR
¶36 Deputy Hoffman also reasonably believed that Tullberg
was the operator of the truck when it crashed. Again, the
deputy did not rely on one fact alone. First, Tullberg owned
the truck, which supports Deputy Hoffman's view that he was the
driver. Second, an airbag deployed only on the driver's side of
the truck, and Tullberg appeared as if an airbag struck him.
Specifically, he looked like an airbag struck him because the
hair on his right forearm was singed consistent with friction
from a deploying airbag. He smelled like airbag residue, which
also suggests that the airbag struck him. Deputy Hoffman made
these observations about Tullberg's appearance while
interviewing him, and Deputy Hoffman subsequently confirmed with
Sergeant Wizner over the telephone that an airbag deployed only
on the driver's side of the truck. Thus, Deputy Hoffman
reasonably concluded that the driver's side airbag struck
Tullberg. Third, Deputy Hoffman determined that A.M. was not
the driver of the truck because she did not have singed hair on
either arm or smell like airbag residue. Finally, Deputy
Hoffman reasonably believed that Tullberg lied when he said that
he was the passenger and M.A. was the driver of the truck when
it crashed. Specifically, not only did the airbag evidence
indicate that Tullberg was the driver, but Deputy Hoffman knew
that M.A.'s body was pinned underneath the truck and that the
driver's side window of the truck was intact and partially
rolled down. Deputy Hoffman estimated M.A.'s weight to be
between 240 and 250 pounds and determined that M.A. could not
have been ejected from the truck through the window opening.
17
No. 2012AP1593-CR
Further, Tullberg's father told Deputy Hoffman that Tullberg
said that a person who was riding in the truck bed when the
truck crashed was missing, and Deputy Hoffman discovered that
M.A. was the missing person. Deputy Hoffman did not smell
airbag residue on M.A. Based on all of this evidence, Deputy
Hoffman reasonably believed that Tullberg was the driver of the
truck when it crashed.
¶37 Because Deputy Hoffman reasonably believed that
Tullberg was intoxicated and that Tullberg was the driver of the
truck when it crashed, he had probable cause to believe that
Tullberg had operated a motor vehicle while intoxicated.19
¶38 Relying on State v. Seibel, 163 Wis. 2d 164, 471
N.W.2d 226 (1991), and State v. Swanson, 164 Wis. 2d 437, 475
N.W.2d 148 (1991), Tullberg argues that the facts in the present
case do not establish probable cause that he was operating while
intoxicated. First, he argues that Seibel is factually similar
to this case, and in Seibel this court held that an officer had
reasonable suspicion that the defendant was operating while
intoxicated. Tullberg argues that, because reasonable suspicion
is a lesser burden of proof than probable cause, there was no
19
Tullberg argues that Deputy Hoffman should have
investigated Tullberg's claim that a fourth person might have
been in the truck when it crashed. However, Tullberg does not
argue that he told Deputy Hoffman that this fourth person was
driving the truck when it crashed or even that he said this
fourth person was definitely in the truck. Even if Tullberg had
claimed this fourth person was driving the truck when it
crashed, Deputy Hoffman still had probable cause to believe that
Tullberg was the driver.
18
No. 2012AP1593-CR
probable cause in Seibel. However, this court in Seibel never
determined whether the facts in that case established probable
cause that the defendant was operating while intoxicated. See
Seibel, 163 Wis. 2d at 172-79.20 Instead, Seibel analyzed
whether a law enforcement officer had reasonable suspicion to
perform a warrantless blood draw subsequent to a lawful arrest.
Id. at 180-83.
¶39 Tullberg next argues that this court in Swanson held
that erratic driving and a subsequent automobile accident around
the time that bars close did not constitute probable cause of
operating while intoxicated. By analogy, he argues that
probable cause was lacking in the present case. Tullberg
misinterprets Swanson. The court in Swanson expressly declined
to determine whether probable cause existed. Swanson, 164
20
In a footnote in Swanson, this court stated in passing
that the Seibel court held that probable cause did not exist in
that case. State v. Swanson, 164 Wis. 2d 437, 453 n.6, 475
N.W.2d 148 (1991). This statement in Swanson is incorrect. The
court in Seibel did not even consider whether probable cause
existed. See State v. Seibel, 163 Wis. 2d 164, 172-83, 471
N.W.2d 226 (1991).
19
No. 2012AP1593-CR
Wis. 2d at 453 & n.6.21 Instead, the issue in Swanson was
whether the search-incident-to-arrest exception to the warrant
requirement justified a search that preceded an arrest. Id. at
441-42.
¶40 Tullberg also argues that Deputy Hoffman lacked
probable cause to determine that Tullberg was operating while
intoxicated because Tullberg did not perform a field sobriety
test. Tullberg notes that field sobriety tests preceded
determinations of probable cause in State v. Colstad, 2003 WI
App 25, 260 Wis. 2d 406, 659 N.W.2d 394, and State v. Begicevic,
2004 WI App 57, 270 Wis. 2d 675, 678 N.W.2d 293. However, in
his reply brief, Tullberg correctly acknowledges that a law
enforcement officer need not administer a field sobriety test in
order to have probable cause that a suspect operated while
21
In any event, the present case has more evidence of
intoxication than Seibel or Swanson did. In Seibel this court
held that an officer had reasonable suspicion that Seibel was
operating while intoxicated because Seibel was driving
erratically, he caused a car accident, police officers smelled
intoxicants emanating from Seibel's traveling companions, a
police officer thought he smelled intoxicants on Seibel, and
Seibel was belligerent. Seibel, 163 Wis. 2d at 180-83. In
Swanson this court stated that officers had reasonable suspicion
that Swanson was operating while intoxicated because his driving
was erratic near the time bars close and because his breath
smelled of intoxicants. Swanson, 164 Wis. 2d at 453 n.6. In
contrast, in the present case, Tullberg smelled of intoxicants,
admitted to consuming alcohol, had slurred speech, and had
bloodshot and glassy eyes.
20
No. 2012AP1593-CR
intoxicated.22 E.g., Kasian, 207 Wis. 2d at 622. Tullberg
nevertheless argues that probable cause is lacking under the
facts of the present case because Tullberg did not perform a
field sobriety test. We disagree because field sobriety tests
are not always possible, let alone required, and because
probable cause existed in this case without a field sobriety
test.
B. Exigent Circumstances
¶41 "Like our analysis of probable cause, the test for
determining the existence of exigent circumstances is an
objective one." Robinson, 327 Wis. 2d 302, ¶30 (citing Brigham
22
However, in his opening brief, Tullberg seems to argue
that this court in Swanson held that a field sobriety test is
required in order to establish probable cause of operating while
intoxicated. In a footnote in Swanson, this court stated:
"Unexplained erratic driving, the odor of alcohol, and the
coincidental time of the incident form the basis for a
reasonable suspicion but should not, in the absence of a field
sobriety test, constitute probable cause to arrest someone for
driving while under the influence of intoxicants." Swanson, 164
Wis. 2d at 453 n.6. However, we later clarified that "Swanson
did not announce a general rule requiring field sobriety tests
in all cases as a prerequisite for establishing probable cause
to arrest a driver for operating a motor vehicle while under the
influence of an intoxicant." Washburn Cnty. v. Smith, 2008 WI
23, ¶33, 308 Wis. 2d 65, 746 N.W.2d 243; see also State v.
Kasian, 207 Wis. 2d 611, 622, 558 N.W.2d 687 (Ct. App. 1996)
(stating that Swanson did not require an officer to administer a
sobriety test before determining probable cause exists to arrest
a suspect for operating while intoxicated). Instead, probable
cause is based on the totality of the circumstances on a case-
by-case basis. Smith, 308 Wis. 2d 65, ¶¶34-35; State v. Ward,
2000 WI 3, ¶26, 231 Wis. 2d 723, 604 N.W.2d 517; State v. Lange,
2009 WI 49, ¶¶42-43, 317 Wis. 2d 383, 766 N.W.2d 551 (Ziegler,
J., concurring); State v. Kennedy, 2014 WI 132, ¶21, ___
Wis. 2d ___, ___ N.W.2d ___.
21
No. 2012AP1593-CR
City, Utah v. Stuart, 547 U.S. 398, 403-04 (2006); State v.
Smith, 131 Wis. 2d 220, 230, 388 N.W.2d 601 (1986)). To
determine if exigent circumstances justified a search, a
reviewing court determines "whether the police officers under
the circumstances known to them at the time reasonably believed
that a delay in procuring a warrant would . . . risk the
destruction of evidence." Id. (citing Smith, 131 Wis. 2d at
230).
¶42 Evidence of a crime is destroyed as alcohol is
eliminated from the bloodstream of a drunken driver. McNeely,
133 S. Ct. at 1556. "[W]hile the natural dissipation of alcohol
in the blood may support a finding of exigency in a specific
case, . . . it does not do so categorically. Whether a
warrantless blood test of a drunk-driving suspect is reasonable
must be determined case by case based on the totality of the
circumstances."23 Id. at 1563. Ultimately, "[i]n those drunk-
driving investigations where police officers can reasonably
obtain a warrant before a blood sample can be drawn without
significantly undermining the efficacy of the search, the Fourth
Amendment mandates that they do so." Id. at 1561. Stated
differently, although the dissipation of alcohol in the
bloodstream of a suspected drunken driver alone does not
constitute an exigency justifying a warrantless draw of the
23
Because we consider the totality of the circumstances, no
single fact is dispositive. See State v. Hughes, 2000 WI 24,
¶41, 233 Wis. 2d 280, 607 N.W.2d 621.
22
No. 2012AP1593-CR
suspect's blood, the totality of the circumstances may justify a
warrantless blood draw. See id. ("[S]ome circumstances will
make obtaining a warrant impractical such that the dissipation
of alcohol from the bloodstream will support an exigency
justifying a properly conducted warrantless blood test.").
While McNeely changed the landscape of warrantless blood draws
in Wisconsin, we note that the United States Supreme Court left
room for warrantless blood draws if exigencies exist. In fact,
the Court in McNeely used the term "exigent" or "exigency" no
fewer than ten times in the majority opinion. Thus, today we
determine whether, under the totality of the circumstances,
exigent circumstances justified the warrantless blood draw.
¶43 We conclude that, under the totality of the
circumstances, the draw of Tullberg's blood was justified by
exigent circumstances. A reasonable law enforcement officer,
confronted with this accident scene and these circumstances,
would reasonably conclude that the totality of the circumstances
rendered a warrantless blood draw necessary.
¶44 At the outset, we note that Deputy Hoffman did not
improperly delay in obtaining a warrant. He did not have
probable cause to believe that Tullberg operated the motor
vehicle while under the influence of an intoxicant until nearly
three hours after the accident. If anything, Tullberg's
actions, rather than the deputy's, necessitated the warrantless
blood draw.
¶45 Deputy Hoffman was dispatched in the early morning
hours to a horrific accident which involved a fatality. The
23
No. 2012AP1593-CR
accident scene's terrain was rocky, wooded, steep, and trying.
No witnesses were available to be interviewed. After he
investigated the scene for five to ten minutes, firefighters and
emergency medical services persons arrived, followed shortly
thereafter by the arrival of Tullberg's frantic father, Melvin.
Deputy Hoffman reasonably called for backup, secured the scene,
talked with Melvin, spoke with Tullberg's brother over the
phone, and determined that he needed to go to the hospital to
investigate further.
¶46 We observe that Tullberg went from the accident scene
to his mother's house and then to a hospital in another county.
Tullberg's hospitalization required Deputy Hoffman to spend 30
minutes driving from the accident scene to the hospital, further
delaying his ability to interview Tullberg. See Schmerber, 384
U.S. at 770-71 (holding that exigent circumstances justified
warrantless draw of suspected drunken driver's blood partly
because the defendant went to a hospital after a car accident).
¶47 At the hospital, Tullberg and A.M. tried to mislead
the deputy into believing that the deceased, M.A., was the
driver of the truck when it crashed. Tullberg falsely stated
that M.A. was the driver.24 This deception required the deputy
to conduct additional investigation in order to determine who
the driver of the vehicle was at the time of the accident.
Specifically, this deception required Deputy Hoffman to question
24
Tullberg was convicted of obstructing an officer for
lying to Deputy Hoffman.
24
No. 2012AP1593-CR
A.M. about who was driving the truck and to call Sergeant Wizner
to learn more information about the accident to determine who
was driving the truck. Ultimately, Deputy Hoffman had probable
cause to believe that Tullberg had operated a motor vehicle
while intoxicated, but only more than two and a half hours after
the accident. See id. at 769, 771 (holding that exigency
justified warrantless draw of suspected drunken driver's blood
that was performed more than two hours after car accident).
Deputy Hoffman, confronted with such an accident scene and
obstruction of his investigation, conducted himself reasonably.
¶48 Furthermore, at the time of the blood draw, Deputy
Hoffman knew that hospital staff was about to perform a CT scan
on Tullberg. The procedure could very well have taken a
considerable amount of time, and the CT scan could have revealed
that Tullberg needed immediate subsequent medical treatment.
The blood draw occurred more than two and a half hours after the
accident. Thus, if the blood draw had occurred after the CT
scan, the blood draw could have occurred long after the
accident, if ever. Based on his training, Deputy Hoffman knew
that a motorist's blood sample should be taken within three
hours of an automobile accident to ensure its accuracy and
admissibility as evidence. Deputy Hoffman therefore determined
that Tullberg's blood needed to be drawn before the CT scan to
ensure the blood was drawn within three hours of the accident.
Moreover, because Deputy Hoffman did not know whether the CT
scan would lead to subsequent medical treatment, he determined
that delaying the blood draw until after the CT scan could
25
No. 2012AP1593-CR
result in the blood draw occurring much later than three hours
after the accident, if ever. Under these circumstances, Deputy
Hoffman could not have "reasonably obtain[ed] a
warrant . . . without significantly undermining the efficacy of
the search . . . ."25 See McNeely, 133 S. Ct. at 1561.
¶49 A law enforcement officer, such as Deputy Hoffman, who
is confronted with an accident scene, should first attend to the
emergency circumstances at hand. Deputy Hoffman properly spent
30 minutes investigating the accident scene. See Schmerber, 384
U.S. at 769, 770-71 (holding that exigent circumstances
justified warrantless draw of suspected drunken driver's blood
partly because officer needed to investigate the scene of a car
accident); McNeely, 133 S. Ct. at 1568 ("the need for the police
to attend to a car accident" is one factor that the exigency
analysis may consider). Deputy Hoffman did not spend an
unreasonable amount of time at the accident scene. He was the
25
To get a warrant to draw Tullberg's blood, Deputy Hoffman
would have needed to contact dispatch, who in turn would have
contacted a prosecutor for him. The prosecutor would have
contacted a staff member from the district attorney's office,
and together they would have prepared a warrant application.
The prosecutor then would have contacted a judge. In light of
this process, Deputy Hoffman could not have obtained a warrant
to draw Tullberg's blood before the CT scan, which Tullberg
urgently needed. Performing a blood draw on Tullberg after the
CT scan would have significantly undermined the efficacy of the
blood draw. We note that Deputy Hoffman could not have had
other officers assist him in obtaining a warrant while he
investigated the accident because he did not have probable cause
to have Tullberg's blood drawn until immediately before it was
drawn.
26
No. 2012AP1593-CR
first person to respond to the accident, he discovered a body
under the truck, and he had to interact with Tullberg's frantic
father, Melvin, and other emergency personnel. He did not know
that Tullberg owned the vehicle until Melvin arrived at the
scene, and he did not know where Tullberg was until he spoke
with Tullberg's brother. Deputy Hoffman headed directly to the
hospital once other law enforcement officers arrived at the
accident scene to relieve him. An accident scene, such as the
one at issue, can create exigent circumstances which would
justify a warrantless blood draw.
¶50 Viewing the totality of these facts and circumstances,
Deputy Hoffman reasonably responded to the accident, secured the
scene, investigated the matter, and ultimately was left with a
very narrow time frame in which Tullberg's blood could be drawn
so as to produce reliable evidence of intoxication. This sort
of "now or never" moment is the epitome of an exigent
circumstance. See McNeely, 133 S. Ct. at 1561 ("The context of
blood testing is different in critical respects from other
destruction-of-evidence cases in which the police are truly
confronted with a 'now or never' situation.") (quoting Roaden v.
Kentucky, 413 U.S. 496, 505 (1973)) (quotation marks omitted).
However, we do not mean to suggest that a warrantless blood draw
would always require a "now or never" situation in order to be
justified by exigent circumstances. Rather, exigent
circumstances justify a warrantless blood draw if delaying the
blood draw would "significantly undermin[e] [its] efficacy."
27
No. 2012AP1593-CR
See id. The "now or never" moment in the present case quite
clearly meets that test.26
¶51 Based on the foregoing discussion, we conclude that
exigent circumstances justified the warrantless draw of
Tullberg's blood. Deputy Hoffman acted reasonably and the
touchstone of the Fourth Amendment is reasonableness. See
Robinson, 327 Wis. 2d 302, ¶26; McNeely, 133 S. Ct. at 1558-60.
C. Arrest Not Necessary
¶52 Tullberg argues that the warrantless draw of his blood
was unconstitutional because he was not arrested before the
blood draw. We disagree.
¶53 Specifically, Tullberg argues that Schmerber and State
v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993), required an
officer to arrest a suspect before having a sample of his or her
blood taken. Although the defendant in Schmerber was arrested
before his blood sample was taken, the Supreme Court in
Schmerber never suggested that a warrantless blood draw would be
26
In particular, although a blood sample taken more than
three hours after an accident can be admissible as evidence,
Deputy Hoffman reasonably concluded that allowing Tullberg to
undergo a CT scan before undergoing a blood draw would have
"significantly undermin[ed] the efficacy" of the blood draw.
See McNeely, 133 S. Ct. at 1561; see also id. at 1560-61
("[B]ecause an individual's alcohol level gradually declines
soon after he stops drinking, a significant delay in testing
will negatively affect the probative value of the results.");
id. at 1563 ("While experts can work backwards from the BAC at
the time the sample was taken to determine the BAC at the time
of the alleged offense, longer intervals may raise questions
about the accuracy of the calculation.").
28
No. 2012AP1593-CR
unconstitutional unless performed subsequent to an arrest. In
fact, the Supreme Court in McNeely stated that "'absent an
emergency, [a search warrant is] required where intrusions into
the human body are concerned,' even when the search was
conducted following a lawful arrest." McNeely, 133 S. Ct. at
1558 (quoting Schmerber, 384 U.S. at 770). This quote suggests
that an exigency renders a warrantless blood draw
constitutional, regardless of whether the blood draw is
performed subsequent to a lawful arrest.
¶54 Tullberg's reliance on Bohling is also misplaced. In
Bohling, this court held that
a warrantless blood sample taken at the direction of a
law enforcement officer is permissible under the
following circumstances: (1) the blood draw is taken
to obtain evidence of intoxication from a person
lawfully arrested for a drunk-driving related
violation or crime,1 (2) there is a clear indication
that the blood draw will produce evidence of
intoxication, (3) the method used to take the blood
sample is a reasonable one and performed in a
reasonable manner, and (4) the arrestee presents no
reasonable objection to the blood draw.
Bohling, 173 Wis. 2d at 533-34. In footnote one, the court
explained that "[p]robable cause to arrest substitutes for the
predicate act of lawful arrest." Id. at 534 n.1 (citing
Bentley, 92 Wis. 2d at 863-64). Tullberg argues that Bentley is
inapposite because it was abrogated by McNeely. Indeed, the
McNeely Court expressly abrogated Bohling's holding that
dissipation of alcohol in the bloodstream of a suspected drunken
driver categorically constitutes an exigency. See McNeely, 133
S. Ct. at 1558 & n.2; State v. Kennedy, 2014 WI 132, ¶29, ___
29
No. 2012AP1593-CR
Wis. 2d ___, ___ N.W.2d ___. However, the McNeely Court left
intact the holding in Bentley and Bohling that an arrest need
not precede a warrantless blood draw.
¶55 In sum, the Fourth Amendment provides sufficient
protection such that an arrest need not precede a warrantless
blood draw. When there is probable cause for a blood draw, as
there is in the case at issue, there also is probable cause to
arrest for operating while intoxicated. An arrest is not a
prerequisite to a warrantless blood draw justified by probable
cause and exigent circumstances.
¶56 Accordingly, we reaffirm that an arrest of a suspected
drunken driver need not precede a warrantless draw of the
suspect's blood in order for the blood draw to be
constitutional. See Erickson, 260 Wis. 2d 279, ¶¶5-12.
V. CONCLUSION
¶57 We conclude that the motion to suppress was properly
denied because the 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.
By the Court.—The decision of the court of appeals is
affirmed.
30
No. 2012AP1593-CR.ssa
¶58 SHIRLEY S. ABRAHAMSON, C.J. (concurring). The
instant case is part of a trilogy of cases examining the
constitutionality of warrantless, nonconsensual blood draws
performed on persons suspected of driving under the influence of
an intoxicant in light of Missouri v. McNeely, 133 S. Ct. 1552
(2013). The other two cases in this trilogy are State v.
Kennedy, 2014 WI 132, ___ Wis. 2d ___, ___ N.W.2d ___, and State
v. Foster, 2014 WI 131, ___ Wis. 2d ___, ___ N.W.2d ___. For a
discussion of these three opinions, including the instant case,
and the issues arising therein, see my dissenting opinion in
State v. Foster, 2014 WI 131, ___ Wis. 2d ___, ___ N.W.2d ___.
1
No. 2012AP1593-CR.ssa
1