State v. Vance D. Reed ( 2019 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 16, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2018AP1051-CR Cir. Ct. No. 2016CF889
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
VANCE D. REED,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Outagamie
County: MARK J. McGINNIS, Judge. Affirmed.
Before Stark, P.J., Hruz and Seidl, JJ.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
¶1 PER CURIAM. Vance Reed appeals a judgment, entered upon his
no-contest pleas, convicting him of two counts of first-degree intentional
No. 2018AP1051-CR
homicide. Reed contends the circuit court erred by denying his pretrial motion to
suppress DNA evidence and statements he made to law enforcement. Specifically,
Reed asserts he was unlawfully stopped and seized before consenting to provide a
DNA sample, thus requiring suppression of the DNA evidence and his statements
to law enforcement as fruit of the poisonous tree.1 We reject Reed’s arguments
and affirm the judgment.
BACKGROUND
¶2 On September 14, 2016, Harry and Lorraine Brown Bear were found
murdered in their home, each having suffered multiple stab wounds. After testing
multiple blood samples from the home, the Wisconsin State Crime Laboratory
ascertained that DNA recovered from a knife found next to Harry and from blood
stains found on the couple’s bed next to an empty gun holster came from the same
source: a male other than Harry. Given the amount of blood evidence found in
the home, law enforcement determined they would ask for consent to provide a
DNA sample when speaking with anyone who had been inside the home or who
had other connections to the Brown Bears.
¶3 During the course of their investigation, officers sought to interview
then nineteen-year-old Reed and his brother, Desmond Hill, as they lived “less
than 150 yards” from the Brown Bear residence. After failing to make contact
with the brothers at their home, their mother informed the officers that the brothers
were together at Merlin Metoxen’s home, which was located “less than a minute”
1
“[I]n its broadest sense, the [fruit of the poisonous tree doctrine] can be regarded ... as a
device to prohibit the use of any secondary evidence which is the product of or which owes its
discovery to illegal government activity.” State v. Schlise, 86 Wis. 2d 26, 45, 271 N.W.2d 619(1978).
2
No. 2018AP1051-CR
away. At Metoxen’s house, officers encountered and spoke to Jonathan Melchert
and Metoxen in the driveway.2 The officers learned that Reed, Hill and Peter
Penaass were in the house and, at the officer’s request, Metoxen asked the three
men to come outside.
¶4 Outagamie County Sheriff’s Sergeant Travis Linskens spoke to Reed
in the driveway for approximately fifteen minutes, while Hill was interviewed in
the passenger seat of the unlocked patrol vehicle. When Linskens asked if Reed
knew the Brown Bears, Reed responded that although he did not know Lorraine as
much, Harry “was his guy,” and he would go to the Brown Bears’ home “from
time to time, drink beer with [Harry], [and] ask him for cigarettes.” At the end of
their discussion, Linskens asked if Reed would consent to giving a DNA sample,
explaining that they were asking anyone who had been in the Brown Bear
residence to submit their DNA. Reed verbally agreed and also signed a “Consent
to Obtain DNA Sample” form.
¶5 The State Crime Laboratory later confirmed that Reed’s DNA
matched the blood stain DNA found on the Brown Bears’ bed which, as noted
above, matched the DNA found on the knife next to Harry’s body. Reed was
arrested at his home, transported to the sheriff’s department, and was informed of
his Miranda3 rights. After waiving those rights, Reed confessed to killing the
Brown Bears and to taking a gun he found in the bedroom.
2
The officers had earlier questioned both Metoxen and Melchert in relation to the
murders.
3
See Miranda v. Arizona, 384 U.S. 436 (1966).
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No. 2018AP1051-CR
¶6 The State charged Reed with two counts of first-degree intentional
homicide. Reed moved to suppress his DNA sample and subsequent statements
following what he claimed was a “stop and search” without “probable cause.”4
The circuit court denied the suppression motion after a hearing, and Reed
subsequently pleaded no contest to the crimes charged. In exchange for Reed’s
no-contest pleas, the State agreed to recommend concurrent sentences, and cap its
sentence recommendation at thirty-five years of initial confinement. The court
imposed concurrent life sentences and made Reed eligible for release after forty-
five years. This appeal follows.
DISCUSSION
¶7 On appeal, Reed argues he was unlawfully stopped and seized before
consenting to provide a DNA sample, thus requiring suppression of the DNA
evidence and subsequent statements to law enforcement as fruit of the poisonous
tree. The Fourth Amendment to the United States Constitution protects against
unreasonable seizures. State v. Young, 2004 WI App 227, ¶13, 277 Wis. 2d 715,
690 N.W.2d 866, affirmed, 2006 WI 98, 294 Wis. 2d 1, 717 N.W.2d 729. This
constitutional provision is not implicated “until a government agent ‘seizes’ a
person.” County of Grant v. Vogt, 2014 WI 76, ¶19, 356 Wis. 2d 343, 850
N.W.2d 253. And when a seizure has occurred, Fourth Amendment jurisprudence
focuses on the reasonableness of the police/citizen interaction that constituted the
seizure. Id., ¶26.
4
Reed also filed a motion to suppress his confession on grounds the officers attempted to
elicit “consciousness of guilt” responses prior to reading him Miranda warnings. Reed, however,
subsequently withdrew his claim of a Miranda violation.
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No. 2018AP1051-CR
¶8 There are two kinds of permissible seizures: Terry5 stops and
arrests. Id., ¶¶27-28. “A Terry stop is an investigatory stop for which a law
enforcement officer must have reasonable suspicion ‘in light of his experience that
[wrongful] activity may be afoot.’” Id., ¶27 (citation omitted). An arrest
“normally involves a trip to the station house and prosecution for crime.” Id., ¶28.
Reed argues the former is implicated here.
¶9 As a threshold matter, the State argues that Reed forfeited his claim
that law enforcement lacked reasonable suspicion to stop him by failing to
adequately raise the argument until his post-suppression hearing briefing.
However, the State does concede that defense counsel suggested during the
suppression hearing that part of Reed’s challenge might include a challenge to the
legality of the seizure. In any event, it is within this court’s discretion to
“disregard alleged forfeiture or waiver and consider the merits of any issue
because the rules of forfeiture and waiver are rules of ‘administration and not of
power.’” State v. Beamon, 2013 WI 47, ¶49, 347 Wis. 2d 559, 830 N.W.2d 681(citation omitted). Therefore, even were we to assume that Reed forfeited his
Terry-stop argument, we can disregard the alleged forfeiture. We choose to do so
here and address the merits of the issue. We conclude that Reed has failed to
establish that he was seized before consenting to give a DNA sample.
¶10 Whether someone has been seized presents a question of
constitutional fact that we review using a two-part standard of review. State v.
Williams, 2002 WI 94, ¶17, 255 Wis. 2d 1, 646 N.W.2d 834. This court will
uphold the circuit court’s findings of fact unless they are clearly erroneous, but the
5
See Terry v. Ohio, 392 U.S. 1 (1968).
5
No. 2018AP1051-CR
application of constitutional principles to those facts presents a question of law
subject to de novo review. Id. The same standard of review applies to a ruling on
a motion to suppress. See State v. Hess, 2010 WI 82, ¶19, 327 Wis. 2d 524, 785
N.W.2d 568.
¶11 The test for whether a seizure has occurred is an objective one,
looking at the totality of the circumstances, and considering “whether an innocent
reasonable person, rather than the specific defendant, would feel free to leave
under the circumstances.” Vogt, 356 Wis. 2d 343, ¶¶30, 38. There is no seizure
“[u]nless the circumstances of the encounter are so intimidating as to demonstrate
that a reasonable person would have believed he [or she] was not free to leave.”
Immigration & Naturalization Serv. v. Delgado, 466 U.S. 210, 216 (1984).
When examining the totality of the circumstances, some considerations that may
be relevant include whether more than one officer was present, whether the
officers displayed their weapons, whether an officer made physical contact with
the person, and whether an officer’s language or tone suggested that compliance
with the officer’s request might have been required. See United States v.
Mendenhall, 446 U.S. 544, 554 (1980). Generally, “police-citizen contact
becomes a seizure within the meaning of the Fourth Amendment when an officer
by means of physical force or show of authority, has in some way restrained the
liberty of a citizen.” Young, 294 Wis. 2d 1, ¶18.
¶12 Here, upon the officers’ request to Metoxen, Reed voluntarily exited
Metoxen’s house. After identifying themselves as law enforcement, the officers
asked to have a conversation with the men, and Reed agreed to speak to Sergeant
Linskens in the open driveway. Linskens testified at the suppression motion
hearing that during their conversation he never told Reed he had to stay and talk
and Reed neither expressed a desire to leave, nor did he attempt to walk away.
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No. 2018AP1051-CR
Linskens recounted that Reed never seemed confused by any of his questions and,
in seeking consent to obtain a DNA sample, Linskens did not make any threats or
promises to Reed, nor did he tell Reed he was required to give a sample. Based on
the record before us, we agree with the circuit court’s conclusion that this was a
consensual encounter between law enforcement and Reed that did not amount to a
seizure. As the court recounted: “[L]aw enforcement officers were outside
[Metoxen’s] home, weapons were not drawn. There were no threats. There was
no coercion. There were no tricks. There was nothing misleading, nothing
coercive.” Thus, as the court determined, a reasonable person in Reed’s position
would have felt free to leave.
¶13 Reed asserts that his “freedom of movement” was nevertheless
“restrained by the questioning about the homicides.” We disagree. First, as noted
above, we look to whether an innocent reasonable person, rather than the specific
defendant, would feel free to leave under the circumstances. See Vogt, 356
Wis. 2d 343, ¶¶30, 38. We are not persuaded that an innocent reasonable person
would have felt forced to remain simply because an officer asked questions about
serious crimes. See id., ¶24. Even if an innocent person would feel intimidated to
stay, that does not necessarily transform the questioning into a seizure. That
“most citizens will respond to a police request” does not make a consensual
encounter a seizure. Delgado, 466 U.S. at 216.
¶14 Reed also claims he was seized because law enforcement did not
explicitly inform him he was at liberty to refuse to provide a DNA sample.
However, the fact that most people will affirmatively respond to a police request
“without being told they are free not to respond, hardly eliminates the consensual
nature of the response.” Delgado, 466 U.S. at 216. Further, Reed’s speculation
that he might have faced arrest for obstructing an officer had he walked away is
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No. 2018AP1051-CR
not supported by the record and adds nothing to his argument. See Vogt, 356
Wis. 2d 343, ¶49 (rejecting consideration of speculation as to what might have
occurred if defendant had tried to leave).
¶15 Although Reed mentions he was only nineteen years old at the time
of the encounter, he does not develop an argument that his age somehow rendered
him more susceptible to questioning. See id., ¶31 (“a person’s consent is no less
valid simply because an individual is particularly susceptible to social or ethical
pressures”). Reed also contends the officers’ visible badges and service revolvers
constituted a “show of authority” contributing to his seizure. Nothing in the
record suggests that the weapons were referenced or used. We are not convinced
that their presence and visibility alone rendered the officers’ interaction with Reed
a Fourth Amendment seizure.
¶16 Reed additionally suggests the officers were limited to questioning
him about his identity or identification. We are not persuaded, as the United
States Supreme Court has held that “police questioning, by itself, is unlikely to
result in a Fourth Amendment violation.” Delgado, 466 U.S. at 216. Further, if
Reed were correct, such a limitation “would impose wholly unrealistic restrictions
upon a wide variety of legitimate law enforcement practices, such as the important
tool of police questioning.” Mendenhall, 446 U.S. at 554. Reed was not seized
when he consented to provide a DNA sample. Therefore, the circuit court
properly denied his motion to suppress the DNA evidence and subsequent
statements to law enforcement as fruit of the poisonous tree.
By the Court.—Judgment affirmed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.
8