Criminal DNA profiles may be retained indefinitely

The Ohio Supreme Court yesterday ruled 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 that profile, and the state is authorized to retain and use it in a subsequent criminal investigation even when the subject is subsequently acquitted on charges that were the basis for obtaining the DNA sample. (State v. Emerson, Slip Opinion No. 2012-Ohio-5047)

The Court news reporter stated that the case involved a criminal defendant accused of rape in 2005, in the course which investigation a search warrant was executed to obtain a DNA sample, which was processed, a profile there obtained, and 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. The suspect was subsequently acquitted of the rape charge, though after his acquittal his profile remained in the CODIS database and he had not sought to have it expunged.

In July 2007, Cleveland police investigating a murder found blood that was not the victim’s on a door handle at the crime scene, submitting the sample to the Cuyahoga County Coroner's Office which in turn did a DNA analysis of the blood sample, entering that resulting DNA profile into the CODIS database at the local level as a forensic unknown, and subsequently 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 on file with that that had been obtained in connection with the 2005 rape prosecution and retained in CODIS after the suspect’s acquittal in that case.

Obtaining a search warrant and new DNA sample from the suspect that matched the current crime scene material and investigation, the suspect was indicted on one count each of aggravated murder, aggravated burglary, and tampering with evidence.

A motion to suppress was filed, but an evidentiary hearing led the trial court to deny that motion. The matter proceeded to trial, and a jury found the suspect guilty of aggravated murder and tampering with evidence. On appeal, the Eighth District Court of Appeals affirmed the judgment of the trial court. (Here )

The state's supreme court here upheld the Eighth District,the Court's news service relaying Justice Robert Cupp's writing, "Appellant (Emerson) argues that he has a reasonable expectation of privacy in the DNA profile obtained from his sample. ... Specifically, 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."