Ohio Supreme Court considers DNA evidence

By Paul Pfeifer

The advent of DNA identification is probably the biggest leap forward for crime solving since fingerprinting. To make use of this advancement, law enforcement officials now have something called CODIS – the Combined DNA Index System – which provides a computerized program on three levels – local, state and national – that is designed to house DNA profiles from convicted offenders and forensic samples in various searchable databases.

The CODIS database was at the center of a constitutional challenge that came before us – the Supreme Court of Ohio – involving a man named Dajuan Emerson.

In 2005, Emerson was accused of rape. In the course of the rape investigation, a search warrant was executed to obtain a DNA sample from Emerson. That sample was processed to yield a DNA profile. Emerson’s profile was then placed into CODIS at the local level – in the Cuyahoga County Coroner’s Office – and, eventually, it was entered in a “suspect” database at the state level.

Emerson was ultimately acquitted of the rape charge. After his acquittal, the DNA profile remained in CODIS. Emerson did not seek to have the profile expunged.

Two years later, in July 2007, a woman named Marnie Mason was murdered in Cleveland. Blood was found on a door handle at the crime scene, and that blood sample eventually made its way to the state level. In August 2008, the state reported that Emerson’s DNA profile from the 2005 rape case matched the DNA profile obtained from the blood at the murder scene.

In March 2009, Emerson was indicted on one count each of aggravated murder, aggravated burglary and tampering with evidence. He filed a motion to suppress any DNA evidence, but the trial court denied the motion and the trial proceeded.

The jury found Emerson guilty of aggravated murder and tampering with evidence. After the court of appeals affirmed the verdict, Emerson filed an appeal with us to review two questions of law.

The first question was this: Does a person have standing to object under the Fourth Amendment to the retention of a DNA profile by the state and its use in a subsequent criminal investigation, when the profile was lawfully created during a criminal investigation, but the person was acquitted of the crime?

The Fourth Amendment prohibits unreasonable searches and seizures. Emerson argued that he had a reasonable expectation of privacy in the DNA profile obtained from his sample. He contended that the state was able to use the DNA profile only for its lawfully obtained purpose – the rape investigation.

Accordingly, he asserted that the continued retention of the DNA profile and its subsequent use in the murder trial, was an impermissible search and seizure to which he has standing to object.

Emerson’s expectation of privacy does, indeed, extend to the DNA sample obtained during the rape investigation. But that sample was obtained with a search warrant. In making his argument, Emerson was now challenging the search warrant, but didn’t present any evidence that he challenged it when it was issued. Thus, there was no Fourth Amendment violation with respect to that sample and the resulting DNA profile.

Emerson maintained that the state was permitted to use the DNA profile only for the rape investigation, and its retention and subsequent use subjected him to a new Fourth Amendment search and seizure. But a DNA sample and a DNA profile are not one in the same – a sample is processed by a specialist to obtain the DNA profile. Once the sample is processed, a record is made of the profile. Accordingly, this scientific process results in a record that is separate and distinct from the DNA sample.

The DNA profile obtained from Emerson’s DNA sample was the work product of the government. Therefore, he had no possessory or ownership interest in the DNA profile.

Retention by the state of a DNA profile for possible future comparison with profiles obtained from unknown samples taken from a victim or a crime scene is no different that when the state retains fingerprints for use in subsequent investigations.

Emerson was not subjected to a new Fourth Amendment search and seizure when the DNA profile was used during the second criminal investigation. The state did not violate any reasonable expectation of privacy held by Emerson by using the DNA profile, which was the state’s own record and which Emerson took no action to have removed from CODIS after his acquittal.

Because Emerson did not have a reasonable expectation of privacy in the DNA profile, we concluded that he lacked standing to challenge its use by the state in a subsequent criminal investigation.

Emerson also argued that the state did not have the authority to retain the DNA profile after he was acquitted of the rape charge. But the superintendent of the Bureau of Criminal Investigation is empowered to “establish and maintain a DNA database.”

In this case, the police lawfully obtained the DNA sample in the course of the rape investigation. Therefore, the profile obtained from the sample is a record from forensic casework and is properly maintained in CODIS. Plus, the law does not require that the state, on its own initiative, remove the DNA profile of a person who was acquitted at trial.

There is no legislative requirement that DNA profiles from lawfully obtained DNA samples be removed from CODIS on the state’s initiative when the subject of the profile is acquitted at trial, and we did not create such a requirement with our opinion in this case.

We concluded that a person has no reasonable expectation of privacy in his DNA profile extracted from a lawfully obtained DNA sample, and a defendant lacks standing to object to its use in a subsequent criminal investigation. Under these circumstances, the state is not prohibited from retaining the DNA profile of a person, in CODIS acquitted of a crime and using the DNA profile in a subsequent criminal investigation.

By a seven-to-zero vote, we affirmed the court of appeals’ judgment which upheld the jury’s guilty verdict.

Paul Pfeifer is an Ohio Supreme Court Justice.