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 heard oral argument in the case of State v. Emerson, 2011-0486. The issues in the case are whether the state violated the defendant’s privacy rights by retaining his DNA profile in a state database after he was acquitted, and whether the defendant had standing to challenge that improper retention and subsequent use of that profile.
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 the police investigated a stabbing death in Cleveland which was unsolved for two years. Then, a random search of the state database showed a match between Emerson’s DNA and blood taken from the crime scene. There was no other evidence linking Emerson to the crime. Emerson was ultimately convicted of aggravated murder and tampering with evidence. He tried, unsuccessfully, to suppress the evidence of his DNA profile. The Eighth District Court of Appeals affirmed his conviction and sentence, largely on the grounds of absence of standing. Read the oral argument preview of this case here.
At oral argument defense counsel argued that because the defendant had been acquitted of the earlier rape charge, under then-existing law, his DNA should not have been retained in the state database. The burden of seeking removal of any such improperly retained DNA should not be on the defendant. Unlike other states, Ohio treats DNA samples, records, and profiles as the same. The court of appeals incorrectly tried to distinguish between a DNA sample and the profile in the database. And an individual defendant absolutely retains standing to challenge the improper use of his DNA profile.
The prosecutor argued that Emerson lacked standing in this case. The DNA was originally lawfully collected pursuant to a search warrant. After it was collected, a profile was obtained. That profile—a series of numbers on paper, a kind of genetic fingerprint–is the property of the state crime lab. Emerson had no subjective or objectively reasonable expectation of privacy in that profile, and thus no standing to challenge its retention and use at trial. If he did, he was required to take affirmative steps to seek removal of his DNA from the database. Furthermore, the DNA was used only for identification purposes, nothing more. Limited solely to that purpose, privacy interests are not implicated.
The Official Record of the Crime Scene
Justice Stratton immediately asked If a person was acquitted, weren’t their fingerprints retained? Or clothes taken from the scene? Wasn’t all of this just part of the official record?
Chief Justice O’Connor noted that a person who was acquitted was entitled to the return of their personal property—was this the same concept?
What can be inferred from a silent statute?
Chief Justice O’Connor noted that the statute in effect at the time was silent on what to do with DNA lawfully collected and used at trial, once there was an acquittal. The statute neither precluded its retention nor mandated its destruction. Since it was silent on that point, what should happen? (the parties sharply disagreed on this question. Defense counsel said the burden should not be on the accused to get it expunged; the state argued the defendant was obliged to take affirmative steps to seek expungement)
Continuing with this line of questioning, the Chief asked, since the statute was silent, where was the impermissible conduct by the state?
Justice Pfeifer also weighed in on the difficulty of understanding silent statutes. Since the statute is silent, should the Court find that by implication there is no right to retain or re-use that DNA?
Is There any Procedure for Expungement or Sealing the Record?
Justice Stratton also asked if there were any procedure for expungement or sealing the record in this circumstance.
Justice O’Donnell asked whether the statute provided for any motion to return the DNA to the defendant (defense answer—it did not)? So we can’t know what would have happened if the defendant had made this request?
Justice Lanzinger asked what happens to the DNA profile if a record is sealed. If it goes into a nonsearchable data base, shouldn’t removal mean that it cannot be used later for use in the investigation of another crime? (state’s answer-yes, but defendant failed to request removal.)
Justice O’Donnell wanted to know whether the use of the DNA profile at trial made it a public record.
Justice Pfeifer expressed his privacy concerns in a series of quasi-statement questions. He appeared at times to be lobbing a softball to defense counsel that counsel refused to swing at. Specifically, Pfeifer asked whether there was any authority for the proposition that once the need for DNA that was legitimately obtained in the first place is over, whether an expectation of privacy unfolded to protect any further use of that person’s DNA? (as he always does, he asked under both the state and federal constitutions) Was defense counsel asking for an extension of that area of the law—to find a constitutional protection that unfolds once the use of the legitimately obtained DNA is over? Is this some kind of private property covered by some inherent right of privacy? (defense answer: not asking for an extension of privacy law, but for a recognition that Ohio treats DNA samples, records and profiles the same).
Justice Pfeifer also asked the prosecutor to address the overarching theory of the expectation of privacy, musing that this was a hard position to advocate—was DNA falling into the same category as fingerprints? Was it reasonable or unreasonable to say we have an expectation of privacy here? He came back to the issue, commenting that maybe to the extent DNA is just used for identification, there should be no expectation of privacy, but use beyond that would be improper.
Justice Cupp challenged the prosecutor for making such a broad statement in saying a person doesn’t own his personal DNA sample. He seemed satisfied when the prosecutor made a distinction between using a buccal swab in an investigation and entering a profile into the data base.
What’s Going On Elsewhere?
As he often does, Justice O’Donnell asked if other states had found a privacy interest or a lack of privacy interest in DNA following an acquittal. Tagging on to this question. Justice Lanzinger asked if any state has held that once an individual is acquitted his or her DNA must be removed.
How it Looks from the Bleachers
This case will be of limited application because the law in effect at the time has been changed, and allows for the retention of DNA for anyone accusedof a crime. Emerson would have been covered under the new statute, but was not under the old one. Still, the standing and privacy issues are significant. A majority of the justices appeared ready to agree with the appeals court that a defendant has no expectation of privacy in the retention of his DNA profile in the state data base, thus no standing to challenge its retention and re-use. They also seemed likely to find that even though the then-existing statute was silent on what should happened to retained DNA, the defendant failed to take steps to seek its removal. Justice Pfeifer was the most concerned about the privacy aspect of the issue, but seems likely to take the position posited in his last question– to the extent DNA is just used for identification, there should be no expectation of privacy, but use beyond that would be improper. And he’d probably like to find that protection in the state constitution when the time comes.