State v. Raymand L. Vannieuwenhoven, 2022AP882-CR, 4/30/24, District III (recommended for publication); case activity
In this appeal from a cold case a murder conviction, the court issues a decision recommended for publication holding that law enforcement lawfully seized Vannieuwenhoven’s saliva and thereafter lawfully analyzed the DNA sample created from the saliva. The fact that law enforcement used a “ruse” to trick Vannieuwenhoven into licking an envelope under the false pretense that he was completing a voluntary survey about his “general satisfaction with the Oconto County Sheriff’s Office” did not make the state’s subsequent use of the saliva or Vannieuwenhoven’s DNA unlawful. While the facts are unique, the court explains that “our caselaw supports this conclusion.” Op., ¶2.
In 2019, the state charged Raymand Vannieuwenhoven 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 that occurred in Marinette County. Note: the court’s decision refers to Vannieuwenhoven as “Raymand” to avoid confusion between other family members mentioned in the decision. Vannieuwenhoven moved to suppress the DNA analysis results, arguing that his DNA was “unconstitutionally seized and searched.” The following facts were established at the suppression hearing.
Law enforcement was unable to identify any concrete suspects in 1976 and the case went cold for decades. Law enforcement did, however, collect semen from the crime scene, but it wasn’t until the early 2000s that the Wisconsin State Crime Lab developed a DNA profile form the 1976 sample using “autosomal” STR typing analysis. Op., ¶5. After further testing in 2015, a “Y chromosome DNA profile was established,” but law enforcement were still “unable to match the DNA profile with any known individual.” In 2018, a private company in Virginia, Parabon Nanolab, analyzed the 1976 sample 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 determined that the DNA from the 1976 sample “likely came from someone within a specific family in the Green Bay area-the family of Gladys and Edward Vannieuwenhoven.” Op., ¶7.
Apparently, the genealogist informed the detective working the cold case that “she believed the suspect was one of the Vannieuwenhoven’s four sons or one of the Vannieuwenhoven’s four grandsons.” The detective was able to collect saliva from two of the sons, but DNA analysis excluded both. When law enforcement learned that a third son had passed away, they turned to Raymand Vannieuwenhoven. After several unspecified attempts to collect Vannieuwenhoven’s saliva, law enforcement devised a ruse to obtain Vannieuwenhoven’s saliva.
Marinette County worked with Oconto County, and a deputy knocked on Vannieuwenhoven’s door, identified himself as law enforcement, and “asked Raymand whether he was interested in completing a survey about law enforcement in Oconto County.” Vannieuwenhoven agreed to participate, completed the four-question fake survey, and complied with the deputy’s request to “seal the envelop” using his saliva. Op., ¶¶10-11.
The crime lab then used the envelope and Vannieuwenhoven’s saliva to create an autosomal DNA profile and the “loci from the saliva sample matched the loci from the 1976 sample.” The court denied Vannieuwenhoven’s suppression motion and a jury convicted him of both counts.
With those facts, the court’s legal analysis is relatively straight-forward. Vannieuwenhoven did not contest that he consensually provided the envelope, including his saliva, to law enforcement. Vannieuwenhoven argues that he had a reasonable expectation of privacy in his DNA profile procured from the envelope. While the court agrees that law enforcement may permissibly use “misrepresentations, tricks and other methods to obtain evidence,” it disagrees with Vannieuwenhoven’s arguments that even after lawfully obtaining a sample of his DNA that it was required to obtain a warrant to extract and analyze his DNA. Op., ¶¶19-20. The court sites State v. VanLaarhoven, State v. Randall, and State v. Petrone to reject the argument that once law enforcement lawfully obtains evidence, including blood, further judicial authorization is necessary to analyze or examine the evidence.
The court of appeals also rejects Vannieuwenhoven’s attempts to distinguish these cases, including his reliance on Riley v. California, in which SCOTUS held that law enforcement needed to obtain a warrant to search a defendant’s cell phone despite its lawful seizure incident to arrest. The court goes further to suggest that because the state did not “conduct an extensive analysis of Raymand’s DNA sample, [] the privacy concerns espoused in Riley are not at issue under these facts.” Op., ¶31. The court also swats away Vannieuwenhoven’s reliance on a Fourth Circuit case, United States v. Davis, and Skinner v. Railway Labor Executives Ass’n, because those cases dealt with the “manner in which the government collected blood and urine samples rather than the manner in which the government tested or analyzed a DNA sample once it was lawfully obtained.” Op., ¶¶33.
