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Supreme Court Rules DNA Profile of Criminal Defendant May Be Retained For Future Use Despite Acquittal on Charge for Which Sample Was Obtained

The state can hold on to DNA profiles according to a recent Supreme Court ruling.

The state can hold on to DNA profiles according to a recent Supreme Court ruling.

The state can hold on to DNA profiles according to a recent Supreme Court ruling.

The state can hold on to DNA profiles according to a recent Supreme Court ruling.

The Supreme Court of Ohio ruled today that when the state has lawfully obtained a sample of a person’s DNA in the course of a criminal investigation, and has used that sample to establish a DNA profile of the subject, that person does not have standing to object to the state’s retention of the DNA profile, and the state is authorized to retain the profile and use it in a subsequent criminal investigation despite the subject's acquittal on the charge that was the basis for obtaining the DNA sample.

The court’s 7-0 decision, authored by Justice Robert R. Cupp, affirmed a ruling by the Eighth District Court of Appeals.

The case involved a criminal defendant, Dajuan Emerson, who was accused of rape in 2005.  In the course of the investigation, a search warrant was executed to obtain a DNA sample from Emerson. 
The sample was processed and a DNA profile of Emerson was obtained.  That profile was placed into the law enforcement Combined DNA Index System (CODIS) at the local level and, eventually, was entered in a “suspect” database at the state level. Emerson was acquitted of the rape charge.  After his acquittal, the DNA profile remained in CODIS.  Emerson did not seek to have the profile expunged. 

In July 2007, Cleveland police investigating the murder of Marnie Macon found  blood  that was not the victim’s on a door handle at the crime scene. The Cleveland Police Department submitted a sample of the blood to the Cuyahoga County Coroner’s Office.  A DNA analyst with the coroner’s office processed the blood sample, and the resulting DNA profile was entered into CODIS at the local level as a forensic unknown. The profile was sent electronically to the state. 

In August 2008, a report generated at the state level determined that the DNA profile obtained from the homicide scene matched the profile of Emerson that had been obtained in connection with his 2005 rape prosecution and retained in CODIS  after his acquittal.  

After obtaining a search warrant and a new DNA sample from Emerson that matched the crime scene material, he was indicted on one count each of aggravated murder, aggravated burglary, and tampering with evidence.  Emerson filed a motion to suppress any DNA evidence.  After holding a hearing, the trial court denied the motion. The matter proceeded to trial.  The jury found Emerson guilty of aggravated murder and tampering with evidence.  On appeal, the Eighth District Court of Appeals affirmed the judgment of the trial court.

Emerson sought and was granted Supreme Court review of the case on two legal questions:
1) Does a person whose DNA profile is retained by the state and used in a  subsequent criminal investigation, despite that person’s acquittal of the crime for which he was originally required to provide a DNA sample, have standing to assert a Fourth Amendment (unreasonable search and seizure) challenge to the retention and use of that profile?
2) Does the state have the authority to retain a DNA profile that was obtained during a criminal investigation and use that profile in a subsequent investigation, when the person was acquitted of any crime following the first investigation?

In today’s unanimous decision upholding the court of appeals’ ruling, Justice Cupp wrote: “Appellant (Emerson) argues that he has a reasonable expectation of privacy in the DNA profile obtained from his sample. ... Specifically, appellant contends that the state was permitted to use the DNA profile only for the 2005 rape investigation and its retention and subsequent use subjected him to a new Fourth Amendment search and seizure.”

“A DNA sample and a DNA profile are not one and the same.  Instead, a DNA 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 separate and distinct from the DNA sample.  Because a scientific process must be performed on a DNA sample by an agent of the government to obtain the  DNA profile, and the DNA profile is separate and distinct from the DNA sample, we conclude that the DNA profile obtained from appellant’s DNA sample was the work product of the government. Therefore, appellant had no possessory or ownership interest in the DNA profile.”

“(R)etention 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. ... We note that numerous courts around the country have examined this issue and have reached the same conclusion that we do here—a person has no reasonable expectation of privacy in his or her DNA profile extracted from a lawfully obtained DNA sample.  A defendant lacks standing to object to its use by the state in a subsequent criminal investigation.” 

“Appellant also argues that the DNA profile should not have been retained by the state after he was acquitted of the rape charge.  He contends that the state lacked the authority to retain the DNA profile and subsequently use it in the homicide investigation because he was acquitted of the 2005 rape charge. ... There is no support in the CODIS Methods Manual for appellant’s position.  The manual has no provision for the removal of a DNA profile of an individual acquitted at trial.  Section 17.6 sets forth the basis for expunging a DNA profile – a conviction being overturned on appeal or a sample taken in error – and the procedures that need to be followed.  However, section 17.6 is not self-executing.  There is no mechanism set forth in the manual by which the state is automatically notified that a person’s conviction has been overturned, requiring the profile of the acquitted person to be removed.  Instead, the requirement of going forward is on the exonerated individual to notify CODIS that the conviction has been overturned and to seek expungement of the DNA profile.  Appellant failed to do this.”

“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. ... Even if Ohio’s statutory scheme required the removal of appellant’s DNA profile upon his acquittal, suppression of that evidence is not appropriate. ... Since the General Assembly opted not to provide a remedy to a party wronged by a violation of either R.C. 109.573 or 2901.07, ‘we are not in the position to rectify this possible legislative oversight by elevating a violation of [these statutes] to a Fourth Amendment violation and imposing the exclusionary rule.’”

“Accordingly, we conclude 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 lacks standing to object to its use in a subsequent criminal investigation.  Under these circumstances, the state is not prohibited from retaining in CODIS the DNA profile of a person acquitted of a crime and using the DNA profile in a subsequent criminal investigation.”

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.

2011-0486. State v. Emerson, Slip Opinion No. 2012-Ohio-5047.
Cuyahoga App. No. 94413, 192 Ohio App.3d 446, 2011-Ohio-593.  Judgment affirmed.
O’Connor, C.J., and Pfeifer, Lundberg Stratton, O’Donnell, Lanzinger, Cupp, and McGee Brown, JJ., concur.

Video clip View oral argument video of this case.

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