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The Missing Link

Dajuan gets charged with burglary, and police take a DNA sample from him under RC 2901.07, which provides that the State is allowed to take a DNA sample from everyone arrested for a felony.  He's convicted of the burglary and sent off to prison.  Meanwhile, his DNA sample is plugged into CODIS, the national DNA database, and voila!  Turns out Dajuan's DNA was also found on the scene of an unsolved rape two years before that.  Well, it's not unsolved any more.

Would it make any difference if Dajuan had been acquitted of the burglary?

Back in February, the 8th District, in State v. Emerson, said no.  Emerson had been charged with rape back in 2005, but acquitted after a bench trial.  In 2009, though, DNA taken in that case linked him to a rape/murder that had occurred two years before.  Emerson contended that the DNA should have been suppressed, claiming the statute didn't allow retention of the records of acquitted individuals.  The State argued that there was a distinction between a DNA sample and a DNA profile:  the former is, of course, the sample taken from the individual, while the latter is developed in the laboratory based upon the sample.  Basically, the profile is what actually tells who the sample belonged to.  The State argued that the defendant had no ownership interest in the profile, because that was developed by the lab, and the appellate panel agreed, holding that since Emerson had no ownership interest in the profile, he had no standing to contest its use against him.

I think that's a harder way to go.  The trial court had analogized the situation to fingerprints:  if Emerson had been matched up to the murder by fingerprints taken when he was booked on the old rape charge, nobody would think of suppressing that.  In fact, I talked to the trial judge yesterday, and he told me he'd run the situation past a con law professor at a seminar.  "The guy looked at me like I had two heads," the judge told me.  "He said it's a no-brainer."

So if it's so clear cut, why did the Supreme Court agree to take in the case two weeks ago, on the following propositions of law:

When DNA is obtained by the state in an investigation which results in the acquittal of the individual, that individual maintains standing to challenge the improper retention and subsequent use of his/her DNA in a subsequent proceeding.

The State of Ohio does not have the authority to retain and/or subsequently use the DNA taken from an individual during a criminal investigation when that individual is acquitted of that crime.

Let's take it step by step.  First, I don't see any basis for the "sample/profile" distinction.  There's no question that taking the sample is a search.  Say, for example, that the police had a tip that a black man in a certain neighborhood had committed a rape, so they brought in every black man in the neighborhood and took a sample of his DNA.  That would be blatantly unconstitutional; can a serious argument be made that the constitutional defect can be removed by the simple artifice of generating a profile from the sample?  Let's go back to the fingerprint analysis.  (And keep in mind that in Davis v. Mississippi, the Court held that the precise scenario I outlined above, applied to fingerprints -- people detained solely for purposes of allowing the police to take their fingerprints -- was a 4th Amendment violation.)  After they're taken, fingerprints are classified, the most common system being the Henry System of Classification.  Again, would anyone contend that the mere placement of the fingerprints in a classification system deprived their owner of the right to contest their seizure?

Of course, the above analysis assumes the DNA sample (or fingerprints) was seized illegally.  Emerson's wasn't.  His argument isn't that the State wasn't allowed to seize it, because in his case they got a court order to do so.  But even if it was seized pursuant to the statute, an argument that this is impermissible goes nowhere; the contention that requiring arrestees to provide a DNA sample violates the 4th Amendment has been rejected by virtually every court which has considered it.

That leaves Emerson with the precise argument he made:  that the acquittal means the State no longer has a right to retain his DNA sample/profile, and use of it violates...

Well, that's where it gets tricky.  Asserting a 4th Amendment violation presents a problem:  you're arguing that while the seizure of the evidence was legal at the outset, it becomes illegal because of some subsequent event, in this case, Emerson's acquittal.  I can't remember a case where a seizure was "retroactively" invalidated.  What's more, use of the 4th Amendment to require suppression of the evidence requires application of the exclusionary rule, and this case is eerily similar to Herring v. US (discussed here), the 2008 case where the police arrested a defendant based upon a warrant which should have been removed from the database.  Although the gun found on the defendant as a result of the invalid arrest would normally have been tossed, the Court determined that the officer's good faith in the validity of the arrest warrant made it unreasonable to apply the exclusionary rule in that instance.  It's not hard to see a court applying the same reasoning to this situation.

You might get some traction with a right-to-privacy argument.  A fingerprint can't tell you the person's sex, hair color, eye color, whether he has ADHD, whether he likes to go to bed early or is a night owl, whether he's obese, whether he's likely to develop Huntington's or a number of other diseases.  A DNA profile can tell you all of that.  There've been proposals floated for a "universal national database," and they've generally run into a firestorm of criticism from civil liberties groups.  If the government doesn't have any business taking your DNA sample if you haven't been arrested for a crime, does it have any business keeping that sample (or a profile from it) if it's later determined that you didn't commit the crime?

It's a tricky argument, and you still have the problem of what to do if that happens; a right to privacy claim would still be traced back to the 4th Amendment -- the purpose of the Amendment, after all, is to protect our reasonable expectation of privacy -- and that gets you back to the exclusionary rule.  There is a distinction between this situation and Herring, though.  In Herring, everyone agreed that the retention of the warrant had been inadvertent, and that the result might have been different if Herring could have shown a systemic pattern of the police department not discarding invalid warrants.  Here, you could argue that no effort was made to discard DNA profiles after the defendant had been acquitted.

Still, I didn't delve into the facts of Emerson's case, but unless there's some clearly exculpatory evidence, he's going to have a tough road with the claim that he should walk away from an aggravated murder because the police kept his DNA sample on file after he'd been acquitted.

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