[Cite as State v. Emerson, 134 Ohio St.3d 191, 2012-Ohio-5047.]




            THE STATE OF OHIO, APPELLEE, v. EMERSON, APPELLANT.
        [Cite as State v. Emerson, 134 Ohio St.3d 191, 2012-Ohio-5047.]
Criminal law—DNA testing—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 by the state in a
        subsequent criminal investigation.
  (No. 2011-0486—Submitted January 18, 2012—Decided November 1, 2012.)
             APPEAL from the Court of Appeals for Cuyahoga County,
                 No. 94413, 192 Ohio App.3d 446, 2011-Ohio-593.
                                 __________________
                               SYLLABUS OF THE COURT
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 by the state in a subsequent criminal
        investigation.
                                 __________________
        CUPP, J.
        {¶ 1} There are two issues presented in this case. First, when a sample
of a person’s DNA is lawfully obtained by the state during the course of a
criminal investigation but the person is acquitted of that crime, does that person
have standing to object under the Fourth Amendment to the U.S. Constitution to
the retention by the state of the DNA profile obtained from that sample or its use
in a subsequent criminal investigation? Second, is the state authorized to retain
and subsequently use a DNA profile when the DNA sample was lawfully taken
from a person during a criminal investigation, but the person was acquitted?
                                 SUPREME COURT OF OHIO




        {¶ 2} For the reasons that follow, we conclude that a person does not
have standing to object to the retention of his or her DNA profile or the profile’s
use in a subsequent criminal investigation, and the state is authorized to retain the
DNA profile and to use it in a subsequent investigation even though the profile
was obtained from a sample taken during the investigation of a crime of which the
person was acquitted.         We accordingly affirm the judgment of the court of
appeals.
                            I. Facts and Procedural History
        A. Combined DNA Index System
        {¶ 3} The Combined DNA Index System (“CODIS”) “is a computerized
program designed to house DNA profiles from convicted offenders, forensic
samples, suspects, missing persons, unidentified remains and relatives of missing
persons in various searchable databases.” Ohio Bureau of Criminal Identification
and Investigation, CODIS Methods Manual, Section 1 (2009). There are three
levels in CODIS—local, state, and national. Id. at Section 1.1. In this case, the
local databases were the Cuyahoga County Coroner’s Office and the Ohio Bureau
of Criminal Identification and Investigation’s (“BCI”) Richfield laboratory. The
state database is maintained at BCI’s London laboratory, and the Federal Bureau
of Investigation maintains the national database.                     The Criminal Justice
Information System Wide Area Network links the three CODIS levels.
        B. DNA Profile Created from a DNA Sample
        {¶ 4} A DNA sample is processed to yield a DNA profile. A DNA
profile consists of a series of numbers that represent different alleles1 that are
present at different locations on the DNA. Thus, those numbers constitute the
DNA profile used by the laboratories in making comparisons.


1. An allele is defined as “either of a pair of genes located at the same position on both members
of a pair of chromosomes and conveying characters that are inherited in accordance with
Mendelian law.” Webster’s New World Dictionary, Third College Edition 36 (1988).




                                                2
                                January Term, 2012




       C. DNA Sample from 2005 Rape Investigation
       {¶ 5} In 2005, appellant, Dajuan Emerson, was accused of rape. In the
course of the investigation, a search warrant was executed to obtain a DNA
sample from appellant.
       {¶ 6} The sample was processed and a DNA profile was obtained. The
profile was placed into CODIS at the local level and, eventually, was entered in a
“suspect” database at the state level.
       {¶ 7} Appellant was acquitted of the rape charge. After his acquittal, the
DNA profile remained in CODIS. Appellant did not seek to have the profile
expunged.
       D. 2007 Homicide
       {¶ 8} In July 2007, Marnie Macon was murdered in Cleveland, Ohio.
Blood was found on a door handle at the crime scene, and 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.
       {¶ 9} The profile was sent electronically to the state. In August 2008, a
report generated at the state level was sent to the coroner’s office and the forensic
scientist at BCI’s Richfield laboratory, notifying each that a forensic match had
been found between the profile submitted by the coroner’s office and a known
profile in BCI’s system.      Specifically, appellant’s DNA profile, which was
obtained during the 2005 rape case, matched the DNA profile obtained from the
blood found at the homicide scene.
       {¶ 10} A search warrant was issued to obtain a DNA sample from
appellant. The sample was processed by the coroner’s office, and the resulting
DNA profile was compared with the unknown DNA profile in the homicide case.




                                         3
                             SUPREME COURT OF OHIO




       E. Aggravated Murder
       {¶ 11} In March 2009, appellant was indicted on one count each of
aggravated murder, aggravated burglary, and tampering with evidence. Appellant
filed a motion to suppress any DNA evidence. After holding a hearing, the trial
court denied the motion.
       {¶ 12} The matter proceeded to trial. The jury found appellant guilty of
aggravated murder and tampering with evidence.         The trial court, however,
granted appellant’s Crim.R. 29 motion for judgment of acquittal on the
aggravated-burglary count.     On appeal, the Eighth District Court of Appeals
affirmed. 192 Ohio App.3d 446, 2011-Ohio-593, 949 N.E.2d 538.
       {¶ 13} We    accepted    appellant’s   appeal   under    our   discretionary
jurisdiction to review two questions of law: (1) does a person have standing to
object under the Fourth Amendment to the retention of a DNA profile by the state
and its use in a subsequent criminal investigation, when the profile was lawfully
created during a previous criminal investigation, but the person was acquitted of
the crime and (2) does the state have the authority to retain a DNA profile that
was created during a criminal investigation and use that profile in a subsequent
investigation, when the person was acquitted of any crime following the first
investigation. 128 Ohio St. 3d 1556, 2011-Ohio-2905, 949 N.E.2d 43.
                                   II. Analysis
       A. Standing to Object
       {¶ 14} Appellant argues that he has a reasonable expectation of privacy in
the DNA profile obtained from his sample. He contends that the state was able to
use the DNA profile only for its lawfully obtained purpose—the rape
investigation. Accordingly, appellant asserts that the continued retention of the
DNA profile, and its subsequent use in the murder trial, was an impermissible
search and seizure to which he has standing to object.         In other words, the




                                        4
                                January Term, 2012




retention and subsequent use implicated the Fourth Amendment independently of
the taking of the sample.
       {¶ 15} The Fourth Amendment to the United States Constitution and the
Ohio Constitution, Article I, Section 14, prohibit unreasonable searches and
seizures. We have interpreted Article I, Section 14 “to protect the same interests
and in a manner consistent with the Fourth Amendment.” State v. Andrews, 57
Ohio St.3d 86, 87, 565 N.E.2d 1271 (1991), fn. 1. The guarantee of the Fourth
Amendment is protected by use of the exclusionary rule.           United States v.
Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974).
       {¶ 16} “ ‘Fourth Amendment rights are personal rights which * * * may
not be vicariously asserted.’ ” Rakas v. Illinois, 439 U.S. 128, 133-134, 99 S.Ct.
421, 58 L.Ed.2d 387 (1978), quoting Alderman v. United States, 394 U.S. 165,
174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). “In order to have standing to challenge
a search or seizure, the defendant must have a reasonable expectation of privacy
in the evidence seized.” State v. Jackson, 102 Ohio St.3d 380, 2004-Ohio-3206,
811 N.E.2d 68, ¶ 6, citing Alderman at 171-172.           To determine whether a
defendant has a reasonable expectation of privacy, it first must be determined
whether “the individual manifested a subjective expectation of privacy in the
object of the challenged search.” California v. Ciraolo, 476 U.S. 207, 211, 106
S.Ct. 1809, 90 L.Ed.2d 210 (1986), citing Smith v. Maryland, 442 U.S. 735, 740,
99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). Then, a court must decide whether society
is willing to recognize that expectation as reasonable. Id.
       {¶ 17} The defendant bears the burden of demonstrating that he possessed
a legitimate expectation of privacy in the object of the search. State v. Dennis, 79
Ohio St.3d 421, 426, 683 N.E.2d 1096 (1997), citing Rawlings v. Kentucky, 448
U.S. 98, 104, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980).
       {¶ 18} A person has a legitimate expectation of privacy in his or her
bodily fluids. See Schmerber v. California, 384 U.S. 757, 770, 86 S.Ct. 1826, 16



                                         5
                            SUPREME COURT OF OHIO




L.Ed.2d 908 (1966). The expectation of privacy extends to the DNA in the
sample obtained from appellant during the 2005 rape investigation. See Smith v.
State, 744 N.E.2d 437, 439 (Ind.2001). However, that sample was obtained
pursuant to a search warrant. Appellant is not now challenging the warrant and
does not present any evidence that he challenged the warrant when it was issued.
Thus, there was no Fourth Amendment violation with respect to that sample, see
id., and the resulting DNA profile.
       {¶ 19} However, appellant argues that the DNA profile obtained from the
sample taken during the 2005 rape investigation was used improperly.
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. First, we must
examine whether appellant manifested a subjective expectation of privacy in that
DNA profile.
       {¶ 20} 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.
See R.C. 109.573(B)(5) and (H)(2). 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. See Smith, 744 N.E.2d at 439. Therefore,
appellant had no possessory or ownership interest in the DNA profile.         Id.
Although, as discussed below, appellant may have been able to request
expungement of that DNA profile from CODIS, BCI regulates access to and the
use of the information until it is expunged. See R.C. 109.573.




                                        6
                                January Term, 2012




       {¶ 21} Additionally, appellant presented no evidence at the suppression
hearing that he sought expungement of the profile from CODIS upon his acquittal
or that he took any other action in the intervening years to seek removal of the
profile from CODIS.        Therefore, appellant 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.
       {¶ 22} Moreover, even if appellant had shown that he had manifested a
subjective expectation of privacy in the DNA profile, society does not recognize
that expectation as reasonable. “ ‘[A] defendant [can] not plausibly assert any
expectation of privacy with respect to the scientific analysis of a lawfully seized
item of tangible property, such as a gun or a controlled substance. 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.’ ” (Emphasis omitted.) Wilson v. State, 132 Md.App.
510, 545, 752 A.2d 1250 (2000), quoting People v. King, 663 N.Y.S.2d 610, 614,
232 A.D.2d 111 (1997).
       {¶ 23} Further, 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. As stated in Bickley v. State, 227 Ga.App. 413, 415,
489 S.E.2d 167 (1997), “[N]o matter how many times defendant’s blood is tested,
the DNA results would be identical. What defendant is really objecting to is the
comparison of his DNA with DNA derived from samples taken from the victims
of crimes other than the one specified in the search warrant. * * * ‘In this respect,
DNA results are like fingerprints which are maintained on file by law
enforcement authorities for use in further investigations.’ ” (Footnote omitted.)




                                         7
                            SUPREME COURT OF OHIO




       {¶ 24} 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. See Herman v. State, 122 Nev.
199, 207, 128 P.3d 469 (2006) (a DNA sample legally obtained in a criminal
investigation that had no limitation on its use may be used in a subsequent
investigation without implicating Fourth Amendment concerns because “[a]
reasonable person would have understood that the resulting DNA profile, like
fingerprints, could be available for general investigative purposes); State v.
Hauge, 103 Hawai‘i 38, 52, 79 P.3d 131 (2003) (once the authorities lawfully
obtained a blood sample to test for DNA, using the test results in subsequent
investigations is irrelevant to the question of whether a reasonable expectation of
privacy existed); Smith, 744 N.E.2d at 439 (“once DNA is used to create a profile,
the profile becomes the property of the Crime Lab. Thus, the defendant had no
possessory or ownership interest in it”); Washington v. State, 653 So.2d 362, 364
(Fla.1994), (“once [blood] samples were validly obtained, albeit in an unrelated
case, the police were not restrained from using the samples as evidence in the
murder case”); State v. Barkley, 144 N.C.App. 514, 521, 551 S.E.2d 131 (2001)
(“a reasonable person would have understood by the exchange [between the
defendant and the arresting officer] that his blood analysis could be used generally
for investigative purposes, and not exclusively for the murder investigation”);
Wilson v. State, 132 Md.App. 510, 546, 752 A.2d 1250 (2000), quoting Bickley v.
State, 227 Ga.App. 413, 415, 489 S.E.2d 167 (1997) (defendant’s objection to the
comparison of his DNA, lawfully obtained in one investigation, with sample in
another investigation was not well taken, because “ ‘DNA results are like
fingerprints which are maintained on file by law enforcement authorities for use
in further investigations’ ”); King, 663 N.Y.S.2d at 614, 232 A.D.2d 111 (“once a




                                         8
                               January Term, 2012




person’s blood sample has been obtained lawfully, he can no longer assert either
privacy claims or unreasonable search and seizure arguments with respect to the
use of that sample”).
       {¶ 25} Although appellant concedes that the DNA sample was legally
obtained, he argues that it is not a record made for public purposes. Appellant
opines that it if were, any person would be able to access individual DNA samples
obtained in a criminal investigation.       Appellant contends that the privacy
implications are demonstrated by the need to obtain a search warrant before
obtaining a person’s DNA.
       {¶ 26} Appellant’s argument misses the mark. First, he focuses on the
privacy implications associated with the 2005 DNA sample. As discussed above,
there are privacy implications with respect to appellant’s DNA.          However,
because a search warrant was executed to obtain the DNA sample, the Fourth
Amendment was satisfied. Thus, the true focus of appellant’s argument is on the
DNA profile that the sample yielded. But, as discussed above, it is the profile for
which there is not a reasonable expectation of privacy. Second, the General
Assembly has provided a level of confidentiality for the DNA profiles and
samples. R.C. 109.573(E) states, “DNA records, DNA specimens, fingerprints,
and photographs that the bureau of criminal identification and investigation
receives pursuant to this section and sections 313.08, 2152.74, and 2901.07 of the
Revised Code and personal identification information attached to a DNA record
are not public records under section 149.43 of the Revised Code.” See also R.C.
149.43(A)(1)(j) (DNA records stored in the DNA database pursuant to R.C.
109.573 are not public records).
       {¶ 27} Appellant was not subjected to a new Fourth Amendment search
and seizure when the DNA profile was used during the second criminal
investigation. 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



                                        9
                            SUPREME COURT OF OHIO




which appellant took no action to have removed from CODIS after his acquittal.
Because appellant does not have a reasonable expectation of privacy in the DNA
profile, we conclude that appellant lacks standing to challenge its use by the state
in a subsequent criminal investigation.
       B. Retention of DNA Profile
       {¶ 28} 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.
Appellant relies upon R.C. 109.573 and 2901.07 and section 17.6 of BCI’s 2009
CODIS Methods Manual in support of his argument.
       {¶ 29} Appellant is correct that R.C. 2901.07 does not support the
inclusion of his profile in CODIS. However, the same cannot be said for R.C.
109.573. The superintendent of BCI is empowered to “establish and maintain a
DNA database.” R.C. 109.573(B)(1)(b). “DNA database” is defined in part as “a
collection of DNA records from forensic casework.”            R.C. 109.573(A)(3).
“Forensic” is defined as “[u]sed in or suitable to courts of law or public debate.”
Black’s Law Dictionary 721 (9th Ed.2009). In this case, the police lawfully
obtained the DNA sample in the course of the 2005 rape investigation. Therefore,
the profile obtained from the sample is a record from forensic casework and is
properly maintained in CODIS. Moreover, we note that neither R.C. 109.573 nor
2901.07 require that the state, on its own initiative, remove the DNA profile of a
person who was acquitted at trial.
       {¶ 30} 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




                                          10
                                 January Term, 2012




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.
        {¶ 31} 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. “Exclusion of extremely valuable evidence in crimes that
often leave little other trace is a major social cost” and “the potential for abuse in
the future is not sufficiently clear to warrant adopting a rule excluding evidence
from the database on the ground that it was obtained or retained beyond the
authorized classifications.” Smith, 744 N.E.2d at 442.
        {¶ 32} Even if Ohio’s statutory scheme required the removal of
appellant’s DNA profile upon his acquittal, suppression of that evidence is not
appropriate. “[A] violation of a state statute, * * * in and of itself, [does not] give
rise to a Fourth Amendment violation and result in the suppression of evidence.”
State v. Jones, 121 Ohio St.3d 103, 2009-Ohio-316, 902 N.E.2d 464, ¶ 15, citing
Virginia v. Moore, 553 U.S. 164, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008).
“[B]ecause of the need for consistency and bright-line standards when applying
the Fourth Amendment, * * * ‘it is not the province of the Fourth Amendment to
enforce state law.’ ” Id. at ¶ 18, quoting Moore at 178. 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.” Id. at ¶ 21, citing
Moore at 178.



                                          11
                            SUPREME COURT OF OHIO




                                III. Conclusion
       {¶ 33} 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. We
accordingly affirm the judgment of the court of appeals.
                                                           Judgment affirmed.
       O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, and MCGEE BROWN, JJ., concur.
                             __________________
       William D. Mason, Cuyahoga County Prosecuting Attorney, and
Katherine Mullin and Brian McDonough, Assistant Prosecuting Attorneys, for
appellee.
       Brian Moriarty, for appellant.
       Michael DeWine, Attorney General, Alexandra T. Schimmer, Solicitor
General, and Michael J. Hendershot, Chief Deputy Solicitor, urging affirmance
for amicus curiae, Ohio Attorney General.
                           ______________________




                                        12
