concurring
I agree with the majority that the deputy prosecutor exceeded his authority in issuing a subpoena duces tecum for Oman’s drug test results and that the trial court erred in denying Oman’s motion to suppress the results. I write separately, however, to express my profound concern about the possible erosion of Fourth Amendment protections that may result from prosecutors issuing subpoenas duces tecum without leave of court as mandated by IND. CODE § 33-14-1-3. On a related note, I believe that this Court should offer some practical guidelines for determining the “indicia of reliability” for the information on which a subpoena is based.
IND. CODE § 33-14-1-3 provides that upon receiving information of the commission *330of a felony or misdemeanor, a prosecutor “shall cause process to issue from a court having jurisdiction to issue the same” (emphasis supplied). In Rita v. State, our supreme court held that IND. CODE § 33-14-1-3 applies only to pre-charge investigations:
All the statute says is that if a prosecutor learns that a crime may have been committed, the prosecutor may, first, subpoena anyone in the jurisdiction who may know about the crime and, second, seek “process” leading to an arrest if the facts uncovered support that action. Thus, by its express terms the statute is not available at the post-indictment or post-information stage.
674 N.E.2d 968, 970 (Ind.1996).
Ind. Trial Rule 45(A)(2), which also applies to “criminal proceedings” to the extent permitted by Ind.Crim. Rule 21, provides in relevant part that a “clerk shall issue a subpoena, or a subpoena for the production of documentary evidence [duces tecum], signed and sealed but otherwise in blank, to a party requesting it or his or her attorney, who shall fill it in before service.” 1 See id. at 970, n. 3. In the instant case, the prosecutor’s office issued the subpoena duces tecum without seeking leave of court or even obtaining the signature of the clerk. Although the majority correctly finds the subpoena improper on other grounds, I find it troubling that the prosecutor was able to “cause process to issue” without following either the spirit or the letter of the law.
As the majority observes, this Court held in Thompson that “[t]he Fourth Amendment requirement of probable cause is applicable to subpoenas duces tecum only to the extent that the prosecutor in issuing the subpoena duces tecum may not act arbitrarily or in excess of his statutory authority.” 479 N.E.2d at 1346. As a means of preventing prosecutors from acting arbitrarily or outside the scope of their authority in issuing subpoenas duces tecum, which was so vividly illustrated in the present case, I must indicate my strong preference for interpreting IND. CODE § 34-14-1-3 to require judges or magistrates to review subpoenas for the mandatory “indicia of reliability” before they can be issued during criminal investigations. This interpretation would necessarily restrict the application of T.R. 45(A)(2) to civil cases.
After reviewing our holdings in Thompson and Pollard, it is apparent that a prosecutor need not have information sufficient to satisfy the requirements of “probable cause” when seeking to issue a subpoena duces te-cum. See id.; Pollard, 329 N.E.2d at 586, 263 Ind. at 254 (Fourth Amendment probable cause requirement “is literally applicable only to warrants”). The majority concludes that we need not “invoke the Rules of Evidence as the standard by which subpoenas should be measured,” but declines to offer criteria to which prosecutors and trial courts may refer in weighing the reliability (and inherently the sufficiency) of information used as the bases for subpoenas. Although heightened evidentiary standards are required for issuing search warrants, these standards may provide useful guidance to court officers in determining the reliability of information upon which subpoenas may be based.
In Bigler v. State, this Court confirmed its approval of the “totality of the circumstances” approach for magistrates when issuing search warrants:
in determining whether an application for a search warrant is supported by probable cause, the task of the issuing magistrate is to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that evidence of a crime will be found in a particular place.
602 N.E.2d 509, 514 (Ind.Ct.App.1992), trans. denied (1993), citing Illinois v. Gates, 462 U.S. 213, 239, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). The magistrate must consider the affidavit “in its entirety, giving significance to each relative piece of information and balancing the relative weights of all *331the various indicia of reliability and unreliability attending the information.” Bigler, 602 N.E.2d at 514. As a final consideration, “[t]he circumstances alleged in the affidavit need only lead a person of reasonable caution to believe that a crime had been committed.” Taylor v. State, 615 N.E.2d 907, 910 (Ind.Ct.App.1993).
Here, the prosecutor’s office issued a subpoena to the testing lab sua sponte, based upon indefensibly attenuated hearsay evidence. To prevent similar abuses of authority and to protect those who receive such subpoenas from unreasonable searches and seizures, whether of a direct or an indirect nature as in Oman’s case, I again suggest that IND. CODE § 34-14-1-3 be interpreted to require judges or magistrates to review applications for subpoenas duces tecum in pre-charge criminal investigations.
. It should be noted that Ind. Trial Rule 45(B) applies specifically to subpoenas for production of documentary evidence, but the relevant substantive and procedural requirements are found in T.R. 45(A).