May 21, 2024  – A DNA profile developed from saliva on an envelope that a suspect willingly gave to a police officer was lawfully obtained, the Wisconsin Court of Appeals (District III) has ruled in State v. Vannieuwenhoven, 2022AP882 (April 30, 2024).   

Barring an appeal to the Wisconsin Supreme Court, the decision marks the last chapter in a double-murder case that went unsolved for 42 years.

On July 9, 1976, Ellen Mathys, age 24, and David Schuldes, age 25, were shot to death in McClintock County Park in Marinette County.

The couple, who planned to marry later that summer, had pitched a tent in the park and set out for a walk when they were gunned down.

A county employee found Schuldes’ body on July 10. Mathys’ body was found on July 11.

The police took semen samples from Mathys’ body. But it was a time before the advent of DNA analysis, and the case soon went cold.

Family Ties

In 2018, a genetic testing company in Virginia analyzed the semen sample.

From the sample, the company was able to determine the hair color, eye color, and race of the person who’d deposited the semen on Mathys’ body.

A genealogist at the company later determined that the DNA in the sample likely came from the family of Gladys and Edward Vannieuwenhoven – either one of the couple’s four sons or one of their four grandsons.

The police collected DNA samples from two of the sons. After analyzing the samples, the Wisconsin State Crime Laboratory (SCL) ruled out the two men.

The Vannieuwenhovens’ third son was deceased, so the police began scheming to collect a sample from Raymand Vannieuwenhoven, the fourth son.

A Ruse

Chief Deputy Darren Laskowski, with the Oconto County Sheriff’s Office, went to Vannieuwenhoven’s house. Laskowski identified himself as a police officer and asked Vannieuwenhoven to fill out a survey about the police in Oconto County.

Laskowski told Vannieuwenhoven that the survey was important to the sheriff.

Vannieuwenhoven filled out the survey, then sealed the survey in an envelope by licking the envelope and handing it to Laskowski.

An analyst at the SCL developed an autosomal DNA profile by swabbing the envelope for saliva. The analyst then matched the DNA profile from the 1976 semen sample to the DNA profile developed from the saliva on the envelope.

The police arrested Vannieuwenhoven. In 2021, a Marinette County jury found Vannieuwenhoven guilty of two counts of first-degree murder (Vannieuwenhoven died in prison in 2022).

Vannieuwenhoven’s attorney appealed, arguing that Vannieuwenhoven had a reasonable expectation of privacy in the DNA profile that the SCL developed after swabbing the envelope.

Trickery Was Constitutional

Judge Gregory Gill began his opinion for a three-judge panel by explaining that the fact that the police obtained a DNA sample from Vannieuwenhoven by a ruse was not unconstitutional.

“Nothing in this case suggests that law enforcement’s trickery caused Raymand to non-consensually give the envelope and its contents away,” Gill wrote.

“Raymand permitted an identified law enforcement officer to enter his home, and Raymand voluntarily licked the envelope and then knowingly provided it directly to law enforcement without any expectation of getting it back.”

Judge Gill pointed out that Laskowski didn’t demand that Vannieuwenhoven fill out the survey.

Handed Over Willfully

Gill also noted that, under Wisconsin Court of Appeals caselaw, the police weren’t required to obtain a warrant before developing a DNA profile from the lawfully obtained envelope.

“Raymand voluntarily handed the envelope to law enforcement with his saliva on it … and law enforcement used the sample solely to compare it with the DNA profile from the 1976 sample,” Judge Gill wrote.

Gill concluded that Vannieuwenhoven had no reasonable expectation of privacy in his DNA profile after he gave over the envelope, because Vannieuwenhoven failed to directly argue on appeal that he had an actual, subjective expectation of privacy in the profile.

But even if Vannieuwenhoven had shown that he had a subjective expectation of privacy in the profile, Judge Gill concluded, he would have failed to show this expectation was objectively reasonable.

Gill analogized Vannieuwenhoven’s case to a case in which the Court of Appeals held that a criminal defendant had no objectively reasonable expectation in cell phone text messages sent to another person’s cell phone.

“Raymand … lost any expectation of privacy in the profile once law enforcement lawfully obtained the envelope including the saliva,” Judge Gill wrote.

“Raymand had no property interest in the DNA sample because he voluntarily gave the envelope and its contents to law enforcement; he had no control over what law enforcement did with the DNA sample; and he did not take any steps to enhance his privacy in the DNA sample,” Gill wrote.

Limited Use of DNA

Vannieuwenhoven argued that the Court of Appeals should apply Riley v. California, 573 U.S. 373 (2014), a U.S. Supreme Court precedent holding that the police were required to obtain a warrant prior to searching a cell phone seized in a lawful search incident to arrest.

But Gill pointed out that in that decision, the Supreme Court had noted that other Fourth Amendment exceptions could apply to the cell phone situation.

Judge Gill acknowledged that DNA testing potentially reveals a large amount of personal information, including a person’s medical condition and family relations.

“However, like blood testing for alcohol concentration, the State in this case did not conduct an extensive analysis of Raymand’s DNA sample, and the privacy concerns espoused in Riley are not at issue under these facts,” Gill wrote.

“The only purpose for analyzing Raymand’s DNA was to compare the loci with those of the DNA profile from the 1976 sample.”

The Court of Appeals affirmed the judgment of the Marinette County Circuit Court.