State v. Vannieuwenhoven

412 Wis. 2d 33

State of Wisconsin, Plaintiff-Respondent,

v.Raymand L. Vannieuwenhoven, Defendant-Appellant.^†

Court of Appeals

No. 2022AP882. Submitted on briefs March 22, 2023.—Decided April 30, 2024.

2024 WI App 27

(Also reported in — N.W.3d —.)

APPEAL from a judgment of the circuit court for Marinette County: JAMES A. MORRISON, Judge. Affirmed.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Ana L. Babcock of Babcock Law, LLC, Green Bay.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Joshua L. Kaul, attorney general, and Lisa E.F. Kumfer, assistant attorney general.

Before Stark, P.J., Hruz and Gill, JJ.

¶ 1. GILL, J. Raymand Vannieuwenhoven appeals from a judgment convicting him, following a jury trial, of two counts of first-degree murder.¹ See Wis. Stat. § 940.01 (1975–76). Raymand contends that the circuit court erred by denying his motion to suppress the results of a DNA analysis used to match his DNA profile to a DNA profile developed from a 1976 crime scene ("crime scene"). The DNA analysis was con- ducted after law enforcement had collected Raymand's DNA from an envelope that he licked and voluntarily gave to law enforcement as part of a "ruse." According to Raymand, he had a reasonable expectation of privacy in his "DNA and the information contained therein," and law enforcement's warrantless searches of his DNA violated his Fourth Amendment rights, regardless of his voluntarily licking the envelope and giving it to identified law enforcement personnel.²

¶ 2. We conclude that law enforcement lawfully seized both the envelope and its contents because Raymand voluntarily consented to giving both of them, which included the DNA sample contained therein, to law enforcement. Our case law supports this conclusion despite the fact that Raymand consented to giving the envelope to law enforcement under false pretenses. Once the State lawfully possessed the envelope and its contents, it was free to develop a DNA profile using the saliva from the envelope and compare that profile to the DNA from the crime scene. Under the facts of this case, once Raymand gave control of the envelope and its contents, including his saliva, to law enforcement, he surrendered any reasonable expectation of privacy in the minimally invasive DNA profile developed from that saliva sample, which the State used solely to determine whether his DNA profile matched that from the crime scene.

¶ 3. Because Raymand did not have a reasonable expectation of privacy in his provided DNA profile under these facts, law enforcement did not conduct an unlawful search in violation of the Fourth Amendment when it extracted and analyzed his DNA. Accordingly, we affirm Raymand's judgment of conviction.

BACKGROUND

¶ 4. The State charged Raymand in 2019 with two counts of first-degree murder after collecting, analyzing, and matching his DNA with DNA collected at the scene of an unsolved 1976 double homicide and sexual assault occurring in Marinette County.³ Raymand filed a motion to suppress the DNA analysis results, arguing that his DNA was unconstitutionally seized and searched.

¶ 5. At the suppression hearing, the State established that law enforcement was unable to identify any concrete suspects immediately following the double homicide and sexual assault, and the case went unsolved for several decades. Marinette County Sheriff's Department Detective Todd Baldwin testified that during the initial investigation, law enforcement collected semen found at the crime scene ("1976 sample"). In the early 2000s, with technological advances in DNA analysis, the Wisconsin State Crime Laboratory ("SCL") developed a DNA profile from the 1976 sample. Specifically, a former SCL microbiologist testified at Raymand's jury trial⁴ that she developed the DNA profile using "autosomal" STR typing analysis.⁵

¶ 6. The microbiologist testified that she established an autosomal DNA profile consisting of "core loci"—that is, the locations of particular genetic markers on a chromosome—which, according to the microbiologist, contain "non[]coding DNA," meaning the loci cannot identify phenotypes such as an individual's hair color, eye color, and race. The 1976 sample was retested in 2015 using advanced technology to create two additional loci. A Y chromosome DNA profile was also established. Using a national FBI database, law enforcement unsuccessfully attempted to match the DNA profile with any known individual.

¶ 7. In 2018, Parabon Nanolab, a company in Virginia that specializes in genetic testing and genealogical research, analyzed the 1976 sample at law enforcement's request and ascertained the suspect's phenotypes (e.g., his skin color, hair color, and an image of what he may look like). Later, a genealogist with Parabon also determined that the DNA likely came from someone within a specific family in the Green Bay area—the family of Gladys and Edward Vannieuwenhoven. Detective Baldwin testified that the genealogist informed him that she believed the suspect was one of the Vannieuwenhovens' four sons or one of the Vannieuwenhovens' four grandsons.

¶ 8. Detective Baldwin testified that law enforcement attempted to covertly collect DNA from each possible family member so that none of the suspects would alert the other suspected family members.⁶ Baldwin collected saliva from two of the Vannieuwenhovens’ sons and forwarded the evidence to the SCL. An SCL analyst created DNA profiles from the collected saliva and excluded both sons as the source of the 1976 sample.

¶ 9. After learning that the Vannieuwenhovens' third son had passed away, Detective Baldwin turned his attention to Raymand, the fourth son, who lived in Oconto County. Baldwin unsuccessfully attempted to collect Raymand's saliva for several weeks. Eventually, Baldwin contacted Oconto County Sheriff's Office Chief Deputy Darren Laskowski, and together they devised a plan to obtain Raymand's saliva using a ruse.

¶ 10. As part of the ruse, Chief Deputy Laskowski went to Raymand's residence with a fake survey. Laskowski knocked on the door, identified himself as law enforcement, and asked Raymand whether he was interested in completing a survey about law enforcement in Oconto County.⁷ Raymand answered in the affirmative and permitted Laskowski to enter his residence. Laskowski informed Raymand that after they completed the survey, "[W]hat I'm going to do is I'm going to ask you to seal the envelope here and then I give it to the sheriff and he reviews them privately, okay?"

¶ 11. Chief Deputy Laskowski then read questions from the survey, which was four questions long and consisted of inquiries into Raymand's general satisfaction with the Oconto County Sheriff's Office, and filled in Raymand's answers. Upon completing the survey, Laskowski stated to Raymand:

It's up to you if you want to sign this thing, but the sheriff asked that, you know, these are—this—this survey is important. So what we'll do here is I'll put it in the envelope so these answers can't get changed. Okay? And you seal it. And then we'll sign it.

Laskowski then handed the envelope with the survey inside to Raymand, who took the envelope, sealed it using his saliva, and handed it back to Laskowski.⁸

¶ 12. Chief Deputy Laskowski returned the sealed envelope to Detective Baldwin, who then sent it to the SCL. A DNA analyst with the SCL testified at the jury trial that she swabbed the envelope for saliva and developed an autosomal DNA profile.⁹ The analyst then matched the DNA profile from the 1976 sample with the DNA profile obtained from the saliva on the envelope. Specifically, the loci from the saliva sample matched the loci from the 1976 sample.

¶ 13. After briefing by the parties and the suppression hearing, the circuit court denied Raymand's motion to suppress. The court found that while the survey was a "complete fabrication" and law enforcement had engaged in a "ruse" "designed to obtain" Raymand's DNA, Raymand voluntarily provided the envelope, including his saliva, to Chief Deputy Laskowski, whom Raymand knew was a law enforcement officer. According to the court, because Raymand consented to giving the envelope and his saliva to Laskowski, law enforcement did not need to obtain a search warrant to analyze the saliva and obtain a DNA profile.

¶ 14. Raymand was found guilty by a jury of both counts of first-degree murder. Raymand now appeals.¹⁰

DISCUSSION

[1]

¶ 15. Whether evidence should be suppressed due to a violation of the Fourth Amendment to the United States Constitution is a question of constitutional fact subject to a two-step inquiry.¹¹ State v. Wilson, 2022 WI 77, ¶ 17, 404 Wis. 2d 623, 982 N.W.2d 67. First, we will uphold a circuit court's findings of historical fact unless they are clearly erroneous. Id., ¶ 18. "A finding of fact is clearly erroneous if it is against the great weight and clear preponderance of the evidence." Id. Then, we independently apply those factual findings to constitutional principles. Id.

[2]

¶ 16. The Fourth Amendment provides:

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 person or things to be seized.

U.S. Const. amend. IV. "An individual's rights under the Fourth Amendment apply where he or she has 'a reasonable expectation of privacy in the property or location.'" State v. Bowers, 2023 WI App 4, ¶ 18, 405 Wis. 2d 716, 985 N.W.2d 123 (2022) (citations omitted).

¶ 17. Raymand does not argue that law enforcement unlawfully seized the envelope or its contents, including his saliva. Nor does he contend that he had a reasonable expectation of privacy in the DNA profile developed from the 1976 sample or in the envelope that he handed to law enforcement. Instead, he argues that he had a reasonable...