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DNA: The new frontier

It would probably come as no surprise to Dajuan Emerson, at least not any more, that the United States maintains the largest DNA database in the world, containing about 5 million samples. Emerson was charged with rape back in 2005, but beat that rap. Then Marnie Macon was murdered in Cleveland two years later, and DNA from the blood on a door handle on the crime scene was matched up with a DNA profile taken from Emerson in the rape case. That got Emerson a conviction of aggravated murder and a 25-to-life sentence.

Emerson appealed, claiming that the retention of his DNA profile after his acquittal of the rape charge violated his 4th Amendment rights. The 8th District had little trouble rejecting that argument, and last week, in State v. Emerson, the Supreme Court had no more difficulty, unanimously affirming.

But it may be a bit more complicated than that.

The first issue is one of standing: in order to challenge a search or seizure, a defendant has to have a reasonable expectation of privacy in the evidence seized. Here Emerson ran into an immediate problem: while one normally has an expectation of privacy in his bodily fluids, the DNA sample in the rape case was collected pursuant to a search warrant sought and issued in that case, which satisfies the 4th Amendment.

That left Emerson with the argument that while the seizure of the sample might have been permissible, the retention of the profile after his acquittal was not. (A word of explanation here: sample and profile aren't the same thing. The profile is generated from the sample, and it's the profile that is retained.) Thus, the question became whether Emerson had an expectation of privacy -- a subjective expectation that society is willing to recognize as objectively reasonable -- in the profile. While there's a procedure for expunging a DNA profile from the database following an acquittal, under Section 17.6 of the CODIS Methods Manual, Emerson had never sought to do that, which indicated he didn't have a subjective expectation of privacy. What's more, even if he did have a subjective expecation, society didn't recognize that as reasonable. If you're arrested for an offense, the cops take your fingerprints, and those are retained; what's the diff, asked Justice Stratton pointed out in oral argument. (Okay, since she isn't 16 years old, she didn't say, "what's the diff?" but you get the point.) A lot of courts have come to the same conclusion, the opinion points out. Case closed.

But there are a couple of loose ends here. First, a DNA profile isn't like a fingerprint. A fingerprint can't tell the government anything about you, other than what your fingerprint looks like. A DNA profile can tell a lot of things about you, and in the future it could potentially tell a lot more: not just eye and hair color, but whether you're likely to get breast cancer or produce children with cystic fibrosis or have attention deficit hyperactivity disorder, even whether you're a night owl or a morning person. And the relatively new field of forensic phenotyping portends the ability to determine even more about a person, such as whether they have tendencies toward pedophilia, or are overly aggressive or impulsive.

Second, the 4th Amendment inevitably requires balancing of the governmental interest in order (crime-solving) against the individual interest in privacy. That balance comes down decisively against Emerson, primarily because the initial seizure of the evidence, via a search warrant, was unquestionably lawful. And if it had been automatically seized as the result of a conviction, as Ohio's law permitted back then, there wasn't much room for quarrel. Given that a convicted felon can get sent to prison, arguing that taking his DNA consituted an additional but impermissible invasion of privacy doesn't get you very far.

But go back to that phrase, "as Ohio's law permitted back then." Back then meant before 2011, when DNA evidence was collected for anyone convicted and sent to prison for a felony. Effective July 1, 2011, anybody who was arrested for a felony offense, or was convicted of certain misdemeanors, had his DNA sample taken. It's one thing to argue that the state' has an interest in collecting a DNA sample from a prisoner, or even from someone arrested for an offense where the DNA could prove significant, like rape. But should the state have the right to take someone's DNA sample simply because he was arrested for fleeing the police, or lifting $40 worth of stuff at Wal-Mart and then giving the security guard a shove, leading to a "robbery" charge?

The case law on this latter point isn't unanimous, as the Emerson opinion's citations might make it seem. To be sure, there are cases which have analogized this to fingerprints, and a number of courts have held that taking an arrestee's DNA sample doesn't constitute a 4th Amendment violation. But there are some exceptions, like this California court of appeals decision, or this one from the Maryland court of appeals. (This site gives an excellent summary of the cases to date on the issue.)

The split in authority makes it more likely that the US Supreme Court will eventually take up the issue; there are at least two petitions for certiorari pending before the court on it. Justice Roberts has granted a stay from the application of the Maryland case so that the Court can consider the petition there.

What's likely to happen? Given the current composition of the Court, probably the same outcome as in Emerson, though probably not unanimous. Unless the concerns about forensic phenotyping and the true dangers of government possession of this type of material become more concrete, it's going to be very hard for the privacy interest to trump the real-life example of the benefits of maintaining a DNA database that Dajuan Emerson provides: a murderer brought to justice.

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