Oral Argument Preview: Re-Using the DNA Profile of a Previously Acquitted Defendant. State v. Emerson

Update: On November 1, 2012, the Supreme Court handed down a merit decision in this case.  Read the analysis here.

On January 18, 2012, the Supreme Court of Ohio will hear oral argument in the case of State v. Emerson, 2011-0486. The issue in this case is whether the trial court erred in denying defendant’s motion to suppress evidence of a match between crime scene DNA and a DNA profile obtained from the investigation of a prior crime for which the defendant was tried and acquitted. The propositions of law accepted for review are

  1. When DNA is obtained by the state in an investigation which results in the acquittal of the individual, that individual maintains standing to challenge the improper retention and subsequent use of his/her DNA in a subsequent proceeding.
  2. The State of Ohio does not have the authority to retain and/or subsequently use the DNA taken from an individual during a criminal investigation when that individual is acquitted of that crime.

In 2005, Dajuan Emerson was tried for rape and was acquitted. During the investigation of this rape, the state obtained a DNA profile and entered it into the state DNA database (“CODIS”). Even though Emerson was acquitted, his profile remained in the DNA database.

In 2007, police investigating a stabbing death in Cleveland collected blood evidence from a doorknob inside the victim’s home. Police matched the DNA from the blood with Emerson’s 2005 DNA profile. Emerson was indicted for aggravated murder, aggravated burglary and tampering with evidence. The trial court denied Emerson’s motion to suppress the DNA identification, and Emerson was convicted and sentenced accordingly.

The Eighth District Court of Appeals upheld the conviction, finding that Emerson lacked standing to challenge the retention and re-use of his DNA profile. Distinguishing between the DNA used to create the profile and the profile in the database itself (which is the property of the crime lab),  the court found that Emerson had no possessory interest in his DNA profile generated from a lawfully obtained DNA sample. Quoting Smith v. State of Indiana (2001), 744 N.E.2d 437, the appeals court explained that “society does not recognize an expectation of privacy in records made for public purposes from legitimately obtained samples.” Furthermore, the court recognized that pursuant to R.C. 2901.07 and R.C. 109.573, the DNA specimen collection procedure and laboratory database statutes, do not specify what should happen to profiles maintained in a database after acquittal, but held that the burden is on an acquitted person to request expungement of DNA profiles after acquittal.

On the standing issue Emerson argues that there simply can be no question that a person has a privacy interest in his own DNA, even when that sample has been placed in a restrictive data base.  The fact that police must obtain a search warrant or consent from the individual before obtaining his DNA is evidence of a privacy interest in his DNA. This expectation of privacy easily gives him standing to make the challenge in this case.

Emerson disagrees with the appeals court that the CODIS database is a public record, just because it was lawfully obtained.

He argues that pursuant to R.C. 2901.07 and R.C. 109.573,  his DNA profile should never have been retained because retention of DNA profiles of acquitted persons in CODIS is not permitted. Although these statutes were amended by S.B. 77 to provide for retention of profiles from “arrested persons,” “missing persons” or “convicted felons,” the statute does not include acquitted individuals. Even if the amendments were to apply retroactively, which Emerson argues they cannot, the state cannot retain the DNA of a person who does not fit into any of the categories specified in the statute. Finally, Emerson argues the burden should not be on him to ensure the removal of an improperly retained DNA profile.

In response, the State argues that under the statutory scheme in existence at the time, Emerson clearly had the burden of requesting that his profile be expunged. Even if the retention violated Ohio statutes, mere violation of a state statute does not by itself rise to the level of a Fourth Amendment violation. The exclusionary rule does not apply to non-constitutional statutory violations. Furthermore, the state argues that because S.B. 77 amended the relevant statutes to provide for retention of profiles of “arrested persons,” Emerson’s propositions of law will not matter in future cases.

The Ohio Attorney General has filed an amicus brief for the State. The AG argues that there is no Fourth Amendment issue here because retention of a DNA profile is not a “search,” as there is no privacy interest in DNA profiles lawfully collected and created. Even if there were an unreasonable search here, the AG argues that exclusion is not an appropriate remedy because there was no culpable conduct in state officials’ retention of the DNA, and thus the burden on the justice system in excluding the evidence would be substantial. Finally, the AG argues that issues of retention, use and exclusion of DNA profiles should be decided by the General Assembly, and that the Ohio Supreme Court should avoid making constitutional pronouncements in this policy area.

Student Contributor: Greg Kendall


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