Merit Decision. CSI Kind of Stuff. State v. Emerson.

On November 1, 2012 the Supreme Court of Ohio handed down a merit decision in State v. Emerson, 2012-Ohio-5047.  The case was argued January 18, 2012. In a unanimous opinion written by Justice Cupp, the Court held that “a person has no reasonable expectation of privacy in his or her DNA profile extracted from a lawfully obtained DNA sample, and a defendant has not standing to object to its use by the state in a subsequent criminal investigation.”

Background Information

In 2005, Dajuan Emerson was tried for rape and was acquitted. During the investigation of this rape, the prosecution obtained a search warrant to obtain a DNA sample from Emerson. The DNA sample was processed and a DNA profile was obtained and entered into database known as “CODIS” (Combined DNA Index System). Even though Emerson was acquitted, his profile remained in CODIS.

In 2007 the police investigated a stabbing death in Cleveland. Blood was found on a door handle at the crime scene.  The blood sample was processed, and the resulting DNA profile was entered randomly into CODIS. Just like on the TV crime lab shows, a match turned up.  Emerson’s DNA profile, obtained from the rape case,  matched the blood at the murder scene.

Emerson was charged with aggravated murder, aggravated burglary, and tampering with evidence.  He moved to suppress any DNA evidence on the ground that once he had been acquitted of the rape charge, his DNA should no longer have been retained in CODIS.  The trial court denied the motion and Emerson was convicted of the murder and tampering charges.  The Eighth District Court of Appeals affirmed his conviction.

The CSI Kind of Stuff

If you are a CSI fan, you’ll want to read paragraphs 4-10 of the opinion. There have been some interesting commentaries about how jurors expect this kind of stuff in all criminal cases nowadays.

Significant factoids—a DNA sample is not the same thing as a DNA profile. In fact, it was Justice Cupp who had asked the prosecutor about this at oral argument. “A DNA profile consists of a series of numbers that represent different alleles that are present at different locations on the DNA. Thus, those numbers constitute the DNA profile used by the laboratories in making comparisons. ” And if you even read opinion footnotes, you’ll learn what an “allele” is.

Legal Issues in the Case

There are two, as set forth in the opinion:

1.) 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 previous criminal investigation, but the person was acquitted of the crime?

Short answer: No

2.) Does the state have the authority to retain a DNA profile that was created during a criminal investigation and use that profile in a subsequent investigation, when the person was acquitted of any crime following the first investigation.

Short Answer: Yes.


It’s been an interesting week for this most basic of subjects.  Earlier in the week, the Court held that Freddie Mac did not have standing to bring a foreclosure action when it didn’t own the pertinent paper at the time it filed the suit.  And now this.

Emerson’s Argument on Standing

Emerson argued that he had a reasonable expectation of privacy in the DNA profile obtained from his sample, and that the state should only have been allowed to use his DNA profile in the rape case. The continued retention of his DNA profile in CODIS and its use in the murder trial was an impermissible search and seizure—independent of taking the DNA sample– to which he had standing to object.

The Court rejected Emerson’s argument, and found he had no standing.

Expectation of Privacy

It is well settled law that in order to have standing to challenge a search or a seizure, a defendant must have a reasonable expectation of privacy in the evidence that is seized.  This is a two part test.

  1. Did the individual manifest a subjective expectation of privacy in the evidence seized?
  2.  Was that expectation objectively reasonable?

Keep Your Eye on the Difference Between a DNA Sample and a DNA Profile

The Court was quick to point out here that the DNA sample in this case was obtained with a warrant, so there was no Fourth Amendment violation with respect to getting that sample. And the Court agreed that a person clearly has a legitimate expectation of privacy in his own DNA sample. But the DNA profile is something separate and distinct from the sample.  To obtain a profile from a sample, a scientific process must be performed by a government agent, so a DNA profile is the government’s work product in which a criminal defendant has no possessory or ownership interest.

No Subjective Expectation of Privacy

The Court found Emerson didn’t manifest any subjective expectation of privacy in the DNA profile because he never tried to expunge the profile from CODIS after he was acquitted of the rape charge.  A number of the justices asked about this at oral argument.  The pertinent statue 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.  Defense counsel had argued that the burden should not be on the defendant to seek its expungement.  In its opinion, the Court disagreed.

Any Expectation of Privacy is Objectively Unreasonable

The Court also found that even if Emerson had shown a subjective expectation of privacy in the DNA profile, society does not recognize that as objectively reasonable.  Stuff collected at a crime scene can be kept for further investigation.  Justice Stratton had asked right off the bat at oral argument if a person was acquitted of a crime, weren’t their fingerprints retained anyway? That question pretty much made it into this statement in the opinion:

“Further, 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 does not differ from the retention by the state of fingerprints for use in subsequent investigations.”

What’s The Take on this Around the Country?

Justice O’Donnell almost always asks this, and he did in this case.  And the Court does a tidy little analysis in ¶24, citing a number of cases from around the country holding just what the Ohio Supreme Court did in this case.

Statutory Confidentiality for DNA Samples and Profiles

The Court noted that pursuant to R.C. 109.573(E), DNA records, and specimens are not public records.  Justice O’Donnell had specifically asked about this at oral argument.

State’s Right to Retain a DNA Profile

Emerson had argued 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 was not permitted. While the Court conceded that R.C.2901.07 does not provide for the retention of DNA for acquitted individuals, R.C. 109.573 empowers the Superintendent of the Bureau of Criminal Investigation to establish and maintain a DNA database, including DNA records from forensic casework.  The Court held that the profile obtained from the sample in this case is a record from forensic casework and as such was properly maintained in CODIS. The Court also noted that the CODIS Methods Manual has no provision for removal of a DNA profile of an acquitted individual, and although there is a section dealing with expungement in other circumstances, it is not self-executing. The burden of seeking expungement remains on the person seeking it, which as the Court earlier noted, Emerson failed to do.

“There is no legislative requirement that DNA profiles obtained 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 will not create such a requirement, “ Cupp wrote. As I have often noted, this Court is not one that is wont to add things to statutes.

Regardless, Exclusion of the Evidence is not Warranted Here.

The Court ended with a point wholly unnecessary to the case holding, namely, even if the DNA profile was retained in violation of state law, suppression was not warranted because violation of a state statute is not automatically a Fourth Amendment violation, and would not have been in this case. The Ohio Attorney General’s office filed an amicus brief in this case in support of the state, and this was one of its principle arguments. So I see this last point as being for the AG. It is a very serious point, though, and likely to be used by the state in future cases.

Case Syllabus

A person has no reasonable expectation of privacy in his or her DNA profile extracted from a lawfully obtained DNA sample, and a defendant lacks standing to object to its use by the state in a subsequent criminal investigation.

Concluding Observations

This unanimous opinion really incorporated many of the positions of the justices at oral argument, and is really representative of their collective thinking.

Here’s what I wrote after the argument: 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.


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