Tag Archives: reuse

The Dictionary and the Database: Thoughts on State v. Emerson

Last week, the Supreme Court of Ohio held that the state may use, in a completely unrelated case, information derived from a DNA sample acquired pursuant to a search warrant without seeking a new warrant. This result is not novel–indeed, a contrary outcome would have departed from the law elsewhere.

Nevertheless, the opinion in State v. Emerson presents a new wrinkle. After Dajuan Emerson was acquitted of the 2005 rape of a 7-year-old girl, his DNA profile somehow resided in the state’s convicted-offender database. Then, in 2007, 37-year-old Marnie Macon was stabbed 74 times in her apartment. (Ludlow 2012). Police recovered blood from a door handle. The DNA profile from this crime-scene sample (often called a “forensic sample”) was run against the state database. It matched Emerson’s profile from 2005. After the trial court denied a motion to suppress this match, the case went to trial and the jury found Emerson guilty of aggravated murder (and tampering with evidence). An Ohio District Court of Appeals affirmed, and the state supreme court affirmed that judgment.

The obvious questions are why the 2005 profile entered the convicted-offender database and whether the Fourth Amendment’s exclusionary rule for unreasonable searches or seizures applies to the resulting cold hit. The Ohio Supreme Court’s analysis of these issues is a little odd. I shall quickly run through the opinion, indicating the oddities.

What is an allele?

The first peculiarity is ultimately of no moment, but I’ll mention it anyway because it shows the continuing inability of too many judges (or the recent law school graduates who are their clerks) to consult suitable scientific references. According to the opinion, “[a] DNA profile consists of a series of numbers that represent different alleles that are present at different locations on the DNA” and “[a]n 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 [sic] that are inherited in accordance with Mendelain [sic] law.’ Webster’s New World Dictionary, Third College Edition 36 (1988).”

The alleles used in modern DNA databases are not parts of genes. (Well, some of them are meaningless variations within introns, but even those do not “convey characters” as the classical definition from Webster’s would require.) Perhaps judges should not be criticized for thinking that the word “allele” always refers to genes. To denote variations in DNA sequences that are not the allelotypes of genes, forensic scientists themselves borrowed from the terminology for genes, inviting such confusion. (Kaye 2010). But there are many reasonably accurate explanations of forensic STR “alleles” in the legal and forensic science literature. Consequently, there is little excuse using the inapt dictionary definition. Fortunately, this error does not affect anything else in the opinion.

How did Emerson’s DNA profile get into a CODIS database?

The justices evinced little concern about the statutory violation that led to the fateful match in the case. In fact, the unanimous opinion prominently denies that putting the profile of someone who was not convicted into the state and national databases (SDIS and NDIS) for future trawls departed from Ohio’s convicted-offender law.

The court reached this counter-intuitive result by relying on Black’s Law Dictionary:

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.

Again, the failure to consult relevant sources for the actual terminology in the field is a gross mistake. Ohio Revised Code � 109.573(3) defines “DNA database” as

a collection of DNA records from forensic casework or from crime scenes, specimens from anonymous and unidentified sources, and records collected pursuant to sections 2152.74 and 2901.07 of the Revised Code and a population statistics database for determining the frequency of occurrence of characteristics in DNA records.

(This is the current version. I am assuming the words are the same as they were in 2007.) The “records collected” under the enumerated sections pertained to “adjudicated delinquents” and to convicted offenders–not to mere suspects. The phrase “forensic casework or crime-scene samples” refers to DNA of unknown origin–from vaginal swabs, clothing, property, etc. As the FBI explains, “the DNA data that may be maintained at NDIS [consists of profiles from] convicted offender, arrestees, legal, detainees, forensic (casework), unidentified human remains, missing persons and relatives of missing persons.” (FBI, undated). There is no authorized category for sundry individuals whose DNA profiles have become known to the police for miscellaneous reasons. Ohio did not take DNA samples from arrestees or detainees until 2011. Under the Emerson court’s peculiar reading of the statute, police in Ohio could use the “abandoned DNA” ploy to acquire a profile from a person even without a warrant and upload it to the state and national databases.

The court’s theory that the Ohio legislature used the phrase “forensic casework” to cover every sample and profile “[u]sed in or suitable to courts of law or public debate” is astonishing. A convicted-offender database system has one set of so-called “forensic” profiles (that could link perpetrators to crimes) and another set of convicted-offender profiles (who might be found to be the perpetrators of the unsolved solves). The “forensic” profiles come from the unknown perpetrators of the crimes. They can be matched, if possible, against the convicted offenders’ profiles (and among one another to identify serial crimes). Neither they nor the convicted-offender database was intended to house profiles from specific suspects who never were found guilty of a qualifying crime. Thus, the state had no convincing legal basis for uploading Emerson’s profile to SDIS and NDIS–and the court should not have approved of such misconduct.

Nonetheless, the statutory violation does not justify excluding the cold hit under the Fourth Amendment. The U.S. Supreme Court has not been kind to the exclusionary rule in recent years. As Emerson observes, it has held that a violation of a state statute does not make a search constitutionally unreasonable.

Did Emerson lack standing to complain of a Fourth Amendment violation?

The Emerson opinion contains a third error. The court holds “that a person does not have standing to object to the retention of his or her DNA profile or to the profile’s use in a subsequent criminal investigation.” This misrepresents the meaning of “standing.” In the Fourth Amendment context, the standing requirement bars “attempts to vicariously assert violations of the Fourth Amendment rights of others.” United States v. Salvucci, 448 U.S. 83, 86 (1980). Thus, in Salvucci, police searched an apartment rented by a defendant’s mother and found checks that her son had stolen from the mails. In his prosecution for possession of stolen mail, the son lacked standing to complain the search violated the mother’s interest in the privacy of her apartment.

In Emerson, the defendant never argued that the cold hit violated someone else’s rights. He argued that it violated his right to be free from unreasonable searches because he had a legitimate expectation of privacy in his DNA profile retained by the state. He surely had standing to raise that claim, and the court references to “standing” are superfluous and confused.

Was the retention of the profile and the trawl of the database a search or seizure?

At last, we come to the dispositive issue in the case–was any Fourth Amendment interest of Emerson’s violated by the retention of his profile and the trawl of the database? The court held–correctly, I believe–that Emerson had no such interest. The state acquired the DNA sample in 2005 pursuant to a search warrant of unchallenged validity. Laboratory analysis of the sample was not a separate search, but the very reason for the search warrant. Simply keeping the identifying profile and looking to see whether it matched new profiles in the “forensic index,” as the FBI calls them, does not rise to the level of new search. Once the government legitimately acquires information pursuant to a search warrant, it need not toss out and forget about that information if it cannot secure a conviction. In later investigations and prosecutions, it can use what it finds in the fully authorized and entirely legitimate search.

Obviously, the situation would be otherwise if the original search were unreasonable. Then the evidence should be excluded to vindicate the defendant’s right to be free from unreasonable searches and seizures. But it would be worse than pointless to exclude, on constitutional grounds, legitimately acquired evidence of guilt. This is the sound core of the reasoning in Emerson. Whether the defendant was acquitted in the case that generated the search warrant, whether  he was convicted then, or whether he never was prosecuted in that case makes no difference. There is no constitutional reason to exclude evidence from a reasonable search.

In Boroian v. Mueller, a case that Emerson overlooks, the U.S. Court of Appeals for the First Circuit held that continued trawls of a database may continue even after an offender has completed his sentence. Emerson extends the reasoning of Boroian to an individual whose DNA profile should not have been in the database in the first place. But because the objection in that respect is entirely statutory, it does not change the result.

Of course, one can question the conclusion that trawling a database is not a separate search, and some commentators as well as some recent opinions on the constitutional of pre-conviction DNA sampling, analysis, and trawling have spoken of different steps in the process as if they were independent searches, each of constitutional magnitude. For reasons stated in Kaye (2011), however, I doubt that these claims are tenable. Despite the terminological and conceptual flaws in the opinion in Emerson, the Ohio Supreme Court reached the correct result.


United States v. Salvucci, 448 U.S. 83, 86 (1980)

Boroian v. Mueller, 616 F.3d 60 (1st Cir. 2010)

State v. Emerson, No. 2011-0486 (Ohio Nov. 1, 2012) (Slip Opinion No. 2012-Ohio-5047)

FBI, Frequently Asked Questions (FAQs) on the CODIS Program and the National DNA Index System, http://www.fbi.gov/about-us/lab/codis/codis-and-ndis-fact-sheet.

David H. Kaye, The Double Helix and the Law of Evidence (2010)

David H. Kaye, DNA Database Trawls and the Definition of a Search in Boroian v. Mueller, 97 Va. L. Rev. in Brief 41 (2011)

Randy Ludlow, Ohio Suspects’ DNA Can Be Saved for Later Cases, Court Rules, Columbus Dispatch, Nov. 6, 2012

Cross-posted to Forensic Science, Statistics, and the Law.

DNA Database Trawls and the Definition of a Search in Boroian v. Mueller

In August 2010, the U.S. Court of Appeals for the First Circuit disposed of an argument about the constitutionality of DNA databases that it previously had consciously and conspicuously avoided a few years earlier. In Boroian v. Mueller, 616 F.3d 60 (1st Cir. 2010), this court finally held that the government can keep a convicted offender’s DNA profile in a law enforcement database even after he has paid his metaphorical debt to society.

This outcome is hardly surprising. Long-lasting, collateral consequences of convictions have become commonplace (Pinard 2010), and continuing to trawl for matches to unsolved crimes after a convicted offender is no longer subject to confinement or supervision adds significantly to the power of DNA databases. Nevertheless, the reasoning that the court used to reach this result has come under attack in recent writing, and the court itself tried to reign in the implications of the rationale it employed.

The Case and the Prior First Circuit Law

Martin Boroian was convicted in 2004 of making a false statement to a federal official. For this crime, he spent a year on probation. During this year, he provided (under protest) a blood sample as required by a federal law mandating the inclusion of DNA profiles in the FBI’s national DNA database. In 2008, Boroian sought to have his DNA profile expunged and his DNA sample destroyed. His complaint, filed in federal district court, alleged that the retention and analysis of his DNA profile and sample–after completion of his probation term and without reasonable suspicion of any new criminal activity–violated the Fourth Amendment’s prohibition on unreasonable searches and seizures.

The district court dismissed the complaint. The court decided that even if the facts listed in the complaint all were true, the government was acting constitutionally. First, the court concluded that the government’s retention and periodic accessing of his lawfully obtained DNA profile was not a new search within the meaning of the Fourth Amendment. Second, the court held that although a new analysis of the DNA sample could constitute a separate search under the Fourth Amendment, Boroian’s complaint contained no allegations of a present or imminent analysis of the sample. In short, the district court determined that the government can hold on to the physical evidence Boroian was required to provide as long as it wanted to, and it could use the information it had extracted from the evidence–Boroian’s DNA identification profile–over and over, in checking profiles from new crime-scene DNA samples against Boroian’s (and those of the millions of convicted offenders with profiles in the national database).

The latter proposition seems difficult to deny. On appeal, Boroian did not–and realistically, could not–argue that the law requiring him to provide the sample for the database was unconstitutional. Like every other appellate court to the address this question, the First Circuit has held that the compulsory collection of DNA samples from convicted offenders for computer searchable DNA databases is a reasonable search and seizure. In United States v. Weikert, 504 F.3d 1, 14 (1st Cir. 2007), the First Circuit wrote that:

After careful consideration, we conclude that the government’s important interests in monitoring and rehabilitating supervised releasees, solving crimes, and exonerating innocent individuals outweigh Weikert’s privacy interests, given his status as a supervised releasee, the relatively minimal inconvenience occasioned by a blood draw, and the coding of genetic information that, by statute, may be used only for purposes of identification.

Because the court’s balancing relied heavily on the value of the DNA database in producing “cold hits” to solve crimes, Weikert surely upheld, as constitutionally reasonable, not merely the compelled collection of DNA from offenders while on probation or release, but also the analysis of the samples to extract the numerical DNA profiles, the recording of these profiles in the national database, and the trawls of this database of the DNA profiles extracted from these samples. These trawls, after all, are the raison d’etre of a computer-searchable database.

The only colorable argument against continuing to trawl the database with Boroian’s profile in it was that the balance of interests had shifted in his favor after he had served his sentence. Indeed, the Weikert court had left this question wide open, writing that it was

withholding judgment on whether retaining a former conditional releasee’s DNA profile in CODIS passes constitutional muster. The distinction in status between a current and a former offender clearly translates to a change in the privacy interests at stake. A former conditional releasee’s increased expectation of privacy warrants a separate balancing of that privacy interest against the government’s interest in retaining his profile in CODIS.

504 F.3d at 16.

Boroian’s Reasoning

The court in Boroian, however, refused to undertake this “separate balancing.” Rather than weigh the two sets of interests to decide whether an offender could be forced to surrender his DNA for database trawls after the completion of the sentence, the court now reasoned that the trawls coming at this later stage were not even “searches” within the meaning of the Fourth Amendment. Analogizing DNA identification profiles to “fingerprints or mugshots [that] are routinely retained by the government after . . . sentences are complete,” 616 F.3d at 67, the First Circuit wrote that “we join the other courts to have addressed the issue in holding that the government’s retention and matching of Boroian’s profile against other profiles in CODIS does not violate an expectation of privacy that society is prepared to recognize as reasonable, and thus does not constitute a separate search under the Fourth Amendment.” Id. at 67-68 (footnote omitted). In this way, Boroian repudiated Weikert‘s “dicta that the government’s retention and periodic matching of a lawfully obtained profile after the offender had completed his term of supervised release would require a rebalancing of the relevant government and privacy interests to determine the reasonableness of the search.” Id. at 68 n.6.

In general, rejecting the suggestion that every trawl of information in a database is a separate search that requires independent justification is sensible. Once the government lawfully acquires the information, the marginal invasion of privacy that comes from using it later is minimal. Consequently, the government should not be forced to use the data once, then forget it. Suppose that in executing a valid warrant permitting the seizure of a stolen personal computer with serial number C2011A from a warehouse, government agents observe and record the serial numbers C2013A and C2013C on other computers. A week later, they receive a report of a theft of the PC with serial number C2013A. The warrant did not authorize the agents to compare the numbers a week later, but one of them remembers the number (or looks up the record of the first search), thus linking the owner of the warehouse to the second crime. What meritorious privacy interest can the owner assert to stop the government from checking for a match in the serial numbers? Treating the simple trawl of the stored information as not subject to the strictures of the Fourth Amendment–because it is not a “search”–seems appropriate.

Yet, this mode of analysis creates a puzzle. By invoking a broad no-search doctrine, Boroian avoids even asking the fundamental, prior question of whether the government’s interests justify a system that trawls for DNA matches not only during the sentencing period but indefinitely thereafter. The opinion seems to say that as long as it is clear that the acquisition and use of the offender’s DNA profile for a limited time is permissible, trawls for all time also are permissible.

A recent law review article takes issue with the generally accepted view that “[l]awful collection simply ends the analysis: anything further is fair play.” (Murphy 2010, 1334). But the free reuse of legitimately acquired information is deeply entrenched in established Fourth Amendment doctrine. It follows from the nature of the interests the Fourth Amendment protects. For example, an individual whose DNA profile is in the database–a database inhabitant, so to speak–might well be concerned that later trawls will harm him by exposing him as the perpetrator of an unsolved crime. A later trawl that had this outcome certainly would harm the database inhabitant, but it would not infringe a legitimate interest, let alone an interest that the Fourth Amendment respects. Under “conventional doctrine,” id., the Fourth Amendment does not protect information. It only protects individuals against oppressive methods of acquiring that information. One can decry this “this singular attention on acquisition,” id., but trying to undo it through the Fourth Amendment would be a major task. It harkens back to the days of Boyd v. United States, 116 U.S. 616 (1886), in which the Supreme Court held that a court order for the production at trial of certain papers was a search and seizure, not because of the manner in which the government was acquiring the information, but because of the information itself.


Boroian v. Mueller, 616 F.3d 60 (1st Cir. 2010).

Boyd v. United States, 116 U.S. 616 (1886),

Erin Murphy, Relative Doubt: Familial Searches of DNA Databases, 109 Mich. L. Rev. 291, 3334 (2010).

Michael Pinard, Collateral Consequences of Criminal Convictions: Confronting Issues of Race and Dignity, 85 NYU L. Rev. 457 (2010).

United States v. Weikert, 504 F.3d 1, 14 (1st Cir. 2007).