OH SCT: Person Does Not Have Expectation of Privacy in DNA Profile Kept by Law Enforcement

In a significant opinion for law enforcement, the Ohio Supreme Court has held that a person has no reasonable expectation of privacy in his or her DNA profile extracted from a lawfully obtained DNA sample, and may not object to its use by the state in a subsequent criminal investigation.

The case is State v. Emerson, Slip Opinion No. 2012-Ohio-5047.

The case involves that The Combined DNA Index System (“CODIS”).  This is a database of DNA profiles obtained from convicted offenders, forensic samples, suspects, missing persons, unidentified remains and relatives of missing persons.

In 2005 the defendant was accused of rape.  Law enforcement officers obtained his DNA pursuant to a search warrant.  The DNA profile was placed into CODIS and remained there even after he was acquitted of the charges.

In 2007, the Defendant’s DNA matched a DNA sample found at a murder scene.  He was, as a result, charged with aggravated murder and other offenses.

The defendant argued that the use of the DNA sample in the database violated the Fourth Amendment because he has a reasonable expectation of privacy in the DNA profile obtained from his sample.  The Fourth Amendment applies, and a person has standing to object to the warrantless use of evidence, when the person has a reasonable expectation of privacy in the evidence seized.

To determine whether a person has a reasonable expectation of privacy, the court applies a two part test.  First, the person must subjectively expect of privacy.  Second, society must be willing to recognize that expectation as reasonable.

The court noted that a “person has a legitimate expectation of privacy in his or her bodily fluids.”  However, the sample in this case obtained lawfully pursuant to a warrant.  The question is whether that expectation of privacy extends to a DNA profile.  The court noted that a “DNA sample and a DNA profile  are not one and the same.”  The court explained:

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.  

As a result, a defendant has no “possessory or ownership interest in the DNA profile.”  Significantly, the state permits a person to request expungement of the profile from CODIS.  The defendant did not do so.  As a result, the court concluded that the defendant “did not manifest a subjective expectation of privacy in the profile, at least to the extent that it remained in the possession of the state for criminal investigatory purposes.”

The court also concluded that, even if the person had a legitimate subjective expectation of privacy in the DNA profile, society would not recognize this expectation as reasonable.  Citing Maryland and New York cases, the court concluded that “Although, human blood, with its unique genetic properties, may initially be quantitatively different from such evidence, once constitutional concerns have been satisfied, a blood sample is not unlike other tangible property which can be subject to a battery of scientific tests.”  The court reasoned that “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.”

The state was free to use the DNA sample in later cases because the defendant “was not subjected to  a new Fourth Amendment search and seizure when the DNA profile was used during the second criminal investigation.”  Moreover:  “The state did not violate any reasonable expectation of privacy held by appellant by using the DNA profile,  which was the state’s own record and which [the defendant] took no action to have removed from CODIS after his acquittal.”

The court also noted that the state was not required, on its own initiative, to remove DNA profiles from CODIS after an acquittal.  In addition, even if the state had violated the state statutory scheme by maintaining the DNA profile, this would not lead to suppression of the evidence because the Fourth amendment exclusionary rule would not be implicated for this type of violation of state law.


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