Oman v. State

Attorney for Appellant

Donald W. Pagos
Sweeney, Dabagia, Donoghue, Thorne, Janes &
Pagos, LLP
Michigan City, IN

Attorneys for Appellee

Jeffrey A. Modisett
Attorney General of Indiana

Priscilla J. Fossum
Stephen K. Tesmer
Deputy Attorney General
Indianapolis, IN

IN THE
INDIANA SUPREME COURT

RONALD OMAN,
Appellant (Defendant below),

v.

STATE OF INDIANA,
Appellee (Plaintiff below).

)
) Supreme Court No.
) 46S03-9909-CR-00495
)
)
) Court of Appeals No.
) 46A03-9808-CR-00365
)
)

APPEAL FROM THE LAPORTE SUPERIOR COURT
The Honorable William J. Boklund, Judge
Cause No. 46D04-9805-CM-679

ON PETITION TO TRANSFER

September 26, 2000

SULLIVAN, Justice.

Defendant Ronald Oman was the driver of one of two fire trucks that
collided en route to a fire call. Oman submitted to a urinalysis as a
condition of his employment in a safety-sensitive job. Acting on a tip
that Oman had tested positive for marijuana, a deputy prosecutor subpoenaed
the lab for the test result and then charged Oman with driving while
intoxicated. Finding that the subpoena was reasonable, that Michigan
City’s drug testing programs is constitutionally sound, and that no
authority shields the results of constitutionally sound testing programs
from valid legal compulsory process, we hold that the trial court was
correct in not suppressing Oman’s post-accident toxicological test results.

Background

Defendant, Ronald Oman, is a firefighter employed by the city of
Michigan City, Indiana. Michigan City has in place a Drug and Alcohol Free
Workplace Ordinance (“Ordinance”). The Ordinance provides that upon
certain events, employees must submit to a urine test and a breath test to
screen for illegal substances and alcohol. Refusal to submit to the tests
results in an automatic thirty-day suspension without pay and risk of
termination. The Ordinance includes a confidentiality provision which
states, inter alia, that test results will be maintained only in the
employee’s confidential file, that test results will not be disclosed
without the employee’s written consent, but that disclosure will take place
when “compelled by law or by judicial and administrative process.”

On April 28, 1998, Oman was the driver of one of two fire trucks that
collided en route to a fire call. As per the Ordinance, both drivers were
directed by their supervisor to submit to post-accident toxicological
testing and thus were driven from the scene to NIMLS, a city-approved lab
for drug testing.[1]

That evening, the Assistant Chief of Police called and told Officer
Kunkle[2] that an unidentified source had informed him that Oman’s drug
tests were positive. Based on this information, Officer Kunkle asked the
deputy prosecutor to subpoena Oman’s test results. Without seeking leave
of court, the deputy prosecutor issued a subpoena duces tecum directing the
testing lab to produce Oman’s test results. The lab complied, and the
results revealed that Oman had tested positive for marijuana. He was
charged with operating a vehicle with a controlled substance in his blood,
a Class C misdemeanor.[3] Oman moved to suppress his test results. The
trial court denied his motion and certified the issue for interlocutory
appeal.

The Court of Appeals reversed, finding that the prosecutor did not
have probable cause to issue the subpoena duces tecum in that it was based
on “unreliable” information; that the improperly issued subpoena thus
represented an “unreasonable” demand on the lab; and that the use of Oman’s
drug test results in a criminal prosecution against him violated his Fourth
Amendment rights. Oman v. State, 707 N.E.2d 325 (Ind. Ct. App. 1999).

This appeal presents several interesting and important questions,
which we order for discussion as follows: (1) Must a prosecutor acting
without a grand jury seek leave of a court before issuing an investigative
“prosecutor’s” subpoena duces tecum to a third party? (2) If so, what are
the appropriate criteria for evaluating the application and issuance of a
prosecutor’s investigative subpoena duces tecum? (3) Are government drug
testing programs such as Michigan City’s constitutionally sound? (4) Are
toxicological results from these drug testing programs admissible in a
criminal proceeding against the employee? And (5) did the trial court err
in denying Oman’s motion to suppress the results of his post-accident drug
test?

Discussion

We first address the State’s claim that Oman does not have
standing to challenge the validity of a subpoena issued to the NIMLS lab, a
non-party. A party generally lacks standing to challenge the validity of a
subpoena issued to a third party. See, e.g, Leonard v. State, 249 Ind.
361, 365, 392 N.E.2d 882, 885 (1968); Cox v. State, 181 Ind. App. 476, 478
N.E.2d 496 (1979). However, a party may establish standing if he or she
demonstrates a personal stake in the outcome of the lawsuit and if he or
she has sustained or is in immediate danger of sustaining some direct
injury as a result of the conduct at issue. See Hammes v. Brumley, 659
N.E.2d 1021, 1029 (Ind. 1995); Cody v. State, 702 N.E.2d 364, 367 (Ind. Ct.
App. 1998).

Here, Oman challenges the validity of a subpoena issued to a third
party lab that produced evidence forming, in part, the State’s charge
against him for driving while intoxicated. We have little difficulty in
finding that Oman had a legitimate interest in challenging the validity of
this evidence. Cf. United States v Raineri, 670 F.2d 702, 712 (7th Cir.),
cert. denied, 459 U.S. 1035 (1982) (“A party has standing to move to quash
a subpoena addressed to another if the subpoena infringes upon the movant’s
legitimate interests.”); United States v. Miller, 425 U.S. 435 (1976)
(analyzing a defendant’s claim that subpoenas duces tecum were defective in
that they violated his reasonable expectation of privacy in bank records
despite the fact that the prosecuting attorney obtained the records from a
third party bank). Accordingly, we turn our attention to the merits of
this appeal.

I

While engaged in the “competitive enterprise of ferreting out crime,”
Johnson v. United States, 333 U.S. 10, 14 (1948), Indiana prosecutors must
occasionally invoke their statutory power to gather evidence while
conducting pre-charge investigations.[4] Indiana Code § 33-14-1-3 outlines
the legal process for prosecutors to follow and exists today in the same
form as it was originally enacted in 1852:[5]
Whenever any prosecuting or district attorney shall receive
information of the commission of any felony or such district attorney
of the commission of any misdemeanor he shall cause process to issue
from a court having jurisdiction to issue the same, (except the
circuit court,) to the proper officer, directing him to subpoena the
persons therein named likely to be acquainted with the commission of
such felony or misdemeanor, and shall examine any person so subpoenaed
before such court touching such offense . . . .
Id. (emphasis added). The State contends that this statute authorizes a
prosecutor – acting without a grand jury – to issue an investigative
subpoena duces tecum to a third party for the production of documentary
evidence without processing the request through an appropriate court. Oman
disagrees with this contention.

A

We note initially that the plain language of the statute – our first
line of inquiry – evinces a legislative intent for “court” involvement
during the pre-charge, investigative stage. However, it is not altogether
clear to us, and neither party has contended, that the statute literally
requires a prosecutor to seek leave of court before issuing an
investigative subpoena.

Our research has identified two older Indiana decisions that appear
to approve prosecutor subpoenas ad testificandum, issued without court
review, to compel answers to investigative questions. See, e.g., Ellison
v. State, 125 Ind. 492, 496, 24 N.E. 739, 741 (1890); West v. State, 32
Ind. App. 161, 69 N.E. 465 (1904). These cases differ from the case before
us in that they involve subpoenas ad testificandum (issued to compel a
witness to give a pre-charge, out-of-court statement or to eventually
testify in court) as opposed to subpoenas duces tecum (issued for the
production of tangible evidence).

We also observe that our recent decisions concerning the propriety of
subpoenas duces tecum are not particularly instructive in that they address
subpoenas issued after criminal charges have been filed. See In re WTHR-
TV, 693 N.E.2d 1 (Ind. 1998) (holding that the rules of trial procedure
generally apply to criminal proceedings absent a conflicting criminal
rule); Rita v. State, 674 N.E.2d 968 (Ind. 1996) (construing Ind. Code § 33-
14-1-3 to only apply to pre-charge inquiries so that a prosecutor may not
issue investigatory subpoenas to take ex parte statements of witnesses
after charges were filed but before trial). As such, we look to another
decision from this Court, which both parties cite for their respective
positions.

In In re Order for Indiana Bell Telephone to Disclose Records, 274
Ind. 131, 409 N.E.2d 1089 (1980), the police received information that two
escapees from the Monroe County Jail were making long distance collect
telephone calls to their parents. The police provided this information to
the prosecutor who in turn filed an order to produce in the Monroe Superior
Court, directing “Indiana Bell to reveal to the prosecutor the long
distance telephone records of two specific customers who were the parents
of the two escapees.” Id. at 132, 409 N.E.2d at 1090.[6]
After first determining that Indiana Bell’s compliance with the
subpoena duces tecum would not infringe upon the escapees’ constitutional
rights under either the First or Fourth Amendments, id. at 132-33, 409
N.E.2d at 1090-91, this Court then addressed the scope of the prosecutor’s
subpoena power.

As a matter of first impression, this Court decided “whether a
prosecutor acting without a grand jury can subpoena a witness to reveal
information concerning the activities of a suspected felon.” Id. at 134,
409 N.E.2d at 1091 (emphasis added). After reviewing the relevant statutes
– including that which empowered a prosecutor to charge an individual
without first submitting the evidence to a grand jury – this Court held
that a prosecutor “ha[d] the same ability to accumulate evidence as the
grand jury,” so that he or she could act without a grand jury in
subpoenaing a witness to reveal information. Id. at 135, 409 N.E.2d at
1091.

In further support of this holding, this Court considered the same
statute at issue in this case, Ind. Code § 33-14-1-3, and stated that a
prosecutor “is not limited to issuing a grand jury subpoena to acquire
evidence in a criminal case, but can, through an appropriate court,
subpoena witnesses” for the production of documentary evidence maintained
by a third party. Id. (emphasis added).
Oman finds ample support in this statement for his position and not
surprisingly claims, “It is clear ftom this language that when a prosecutor
issues subpoenas under Ind. Code § 33-14-1-3[,] the prosecutor must first
seek leave of court.” Appellant’s Br. at 10. On the other hand, the State
posits that Indiana Bell “does not stand for the proposition that a
prosecutor must seek leave of court to obtain a subpoena duces tecum.
Rather, it stands for the proposition that if the prosecutor seeks to
obtain a subpoena through a court, that court has jurisdiction to determine
whether the subpoena should be quashed.” Appellee’s Br. at 6.

B

We acknowledge that both parties present cogent arguments for their
respective positions.[7] However, we side with Oman. We find the
rationale for our statement in Indiana Bell that a prosecutor must act
“through an appropriate court” to be persuasive here given the factual
similarities of the two cases. In Indiana Bell, the prosecutor issued an
investigative subpoena duces tecum to a third party telephone company for
the production of otherwise confidential telephone records. In this case,
the prosecutor issued a similar investigative subpoena duces tecum to a
third party laboratory for the production of otherwise confidential drug
test results. And this interpretation is consistent with the language of
Ind. Code § 33-14-1-3, which requires a prosecutor to “cause process to
issue from a court” during the pre-charge, investigative subpoena stage.[8]

Given that this statutory provision has existed for almost 150 years
without definitive interpretation on this point – and what interpretation
there has been appears to approve prosecutor subpoenas without court
review[9] – we decline to apply our conclusion to this case. Rather, in
the exercise of our supervisory responsibility, see Williams v.State, 669
N.E.2d 1372, 1381-82 (Ind. 1996), reh’g denied, we enunciate the following
new rule of criminal procedure that will apply to investigative subpoenas
issued after the date of this decision:[10] A prosecutor acting without a
grand jury must first seek leave of court before issuing a subpoena duces
tecum to a third party for the production of documentary evidence.

C

One final issue in this regard requires our attention. The State
claims that any decision we make concerning the prosecutor’s “ability to
investigate crime and collect evidence via an investigatory subpoena” will
presumably impact a grand jury’s ability to do the same. We disagree.

A grand jury derives its investigative power from a different statute,
the language of which does not evince a legislative intent for direct court
involvement during the pre-charge, investigative stage: “A subpoena duces
tecum or subpoena ad testificandum summoning a witness to appear before the
grand jury shall be issued by the clerk upon the request of the grand jury
or prosecuting attorney. The subpoena must contain a statement of the
general nature of the grand jury inquiry.” Ind. Code § 35-34-2-5(a)
(1993).[11]

Furthermore, indirect judicial oversight is an inherent part of all
grand jury proceedings, which by their nature are secretive: this
arrangement militates against the possible prejudicial impact of
testimonial or physical evidence improperly gathered by a prosecutor during
his or her pre-charge investigation. See Ind. Code § 35-34-2-4(i) (grand
jury secrecy); State ex rel. Meloy v. Barger, 227 Ind. 678, 685, 88 N.E.2d
392, 395 (1949) (“A grand jury is an appendage of the court under whose
supervision it is impaneled . . . .”); see also United States v. R.
Enters., Inc., 498 U.S. 292, 298-301 (1991) (A grand jury subpoena is
“presumed to be reasonable,” in that an “application of [a pre-charge
‘reasonableness’] test ignores that grand jury proceedings are subject to
strict secrecy requirements,” and “[r]equiring the Government to explain in
too much detail the particular reasons underlying a subpoena threatens to
compromise the indispensable secrecy of grand jury proceedings.”) (internal
quotations omitted).

We now proceed to identify the appropriate standard for the trial
court to apply to the application and issuance of an investigative subpoena
duces tecum for the production of documentary evidence maintained by a
third party.

II

A

We begin our analysis of the criteria for concluding that an
investigative subpoena has been properly issued by reviewing the decision
cited by the Court of Appeals as its basis for finding that the subpoena
was unreasonable. In State ex rel. Pollard v. Criminal Court of Marion
County, 263 Ind. 236, 329 N.E.2d 573 (1975), this Court considered whether
the statutory power of an Indiana grand jury was “limited to the issuance
of subpoenas ad testificandum,” or whether it also included the power to
issue subpoenas duces tecum for the production of “certain financial
records.” Id. at 238, 329 N.E.2d at 577. After an exhaustive historical
analysis, the Court concluded, “[T]he grand jury may require witnesses to
produce papers and documents relevant to the grand jury investigation.” Id.
at 248, 329 N.E.2d at 583.

Next, the Court considered the “constitutional safeguards” which
delimited or controlled the “realm of permissible grand jury inquiry.” Id.
at 251-55, 329 N.E.2d at 584-86.
The fourth amendment requirement of “probable cause, supported
by oath or affirmation” is literally applicable only to warrants. See
Oklahoma Press Publishing Co. v. Walling (1945), 327 U.S. 186, 209, 66
S. Ct. 494, 90 L.Ed. 614, 630. Nevertheless, fourth amendment
requirements of probable cause have been interpreted as applicable to
subpoenas duces tecum to the extent that the grand jury or the
prosecutor in issuing such subpoenas may not act arbitrarily or in
excess of their statutory authority.

Id. at 253, 329 N.E.2d at 586 (emphases added). After identifying that a
standard other than probable cause should logically apply to evaluate
investigative subpoenas,[12] the Pollard Court then adopted the three-
factor standard for reasonableness established by the United States Supreme
Court in See v. City of Seattle, 387 U.S. 541, 544 (1967):
The greatest protection which the fourth amendment affords a
witness subject to a grand jury subpoena duces tecum is the
requirement of reasonableness. . . . And as summarized in See v.
City of Seattle (1967), 387 U.S. 541, 544, 87 S. Ct. 1737, 1740, 18
L.Ed.2d 943, 947, the requirement is “that the subpoena be [(1)]
sufficiently limited in scope, [(2)] relevant in purpose, and [(3)]
specific in directive so that compliance will not be unreasonably
burdensome.”

Pollard, 263 Ind. at 254, 329 N.E.2d at 586 (emphases added).

We reaffirm this standard as it applies to the issue under
consideration in Pollard: a party requesting a trial court to enforce,
modify or quash a subpoena duces tecum already issued. See also Sweeney v.
State, 704 N.E.2d 86, 108 (Ind. 1998) (applying a reasonableness standard
to the county coroner’s request to quash a subpoena duces tecum issued by
the defendant).

We pause, however, to note important differences in the federal
subpoena system – not fully developed when Pollard was decided – before
adopting the three-factor City of Seattle test for reviewing the
application and issuance of a prosecutor’s investigative subpoena. See
supra note 1 (noting that a federal prosecutor does not possess
investigative subpoena power independent from the grand jury process).

B

The standard of “reasonableness” is unquestionably the touchstone of
a properly issued federal subpoena; however, the United States Supreme
Court has looked to the various contexts in which federal subpoenas are
issued to determine the appropriate test. See R. Enters., Inc., 498 U.S. at
299 (“[W]hat is reasonable” in evaluating investigative subpoenas duces
tecum “depends on the context.”) (internal quotations omitted).

The highest standard is applied to federal prosecutors who
issue post-charge “trial subpoenas” in anticipation of trial because they
must “clear three hurdles: (1) relevancy; (2) admissibilily; [and] (3)
specificity.” United States v. Nixon, 418 U.S. 683, 700 (1974) (emphasis
added). Conversely, the lowest standard is reserved for federal grand jury
subpoenas (by their nature, investigative and issued pre-charge), which are
“presumed to be reasonable, [with] the burden of showing unreasonableness .
. . on the recipient who seeks to avoid compliance.” R. Enters., Inc., 498
U.S. at 301.[13] Finally, pre-charge investigative subpoenas issued by
administrative agencies – entities with both “investigative” duties akin to
a grand jury and “accusatory duties” akin to a prosecutor, United States v.
Morton Salt Co., 338 U.S. 632, 643 (1950) – need only be “‘sufficiently
limited in scope, relevant in purpose, and specific in directive,’” Donovan
v. Lone Steer, Inc., 464 U.S. 408, 415 (1984) (quoting City of Seattle, 387
U.S. at 544, and citing Morton Salt, 338 U.S. at 652-53).[14]

We view Indiana prosecutors – acting without a grand jury in
gathering information to decide whether to bring criminal charges – as
assuming a role similar to that of federal governmental agencies empowered
with both “investigative and accusatory duties.” Morton Salt, 338 U.S. at
643 (“When investigative and accusatory duties are delegated by statute to
an administrative body, it, too, may take steps to inform itself as to
whether there is probable violation of the law.”).[15] As such, we view
the three-factor reasonableness standard announced in City of Seattle as
particularly appropriate for evaluating the application and issuance of a
prosecutor’s investigative subpoena in Indiana.[16]

This standard of reasonableness incorporates appropriate
constitutional safeguards designed to limit overzealous prosecutors and at
the same time minimize judicial second-guessing that could unnecessarily
bog down pre-charge investigations.[17] Cf. R. Enters., Inc., 498 U.S. at
298-301 (holding that the more demanding three-factor test for a “trial
subpoena” announced in Nixon did not apply in grand jury proceedings, so as
not to “saddle [the investigative entity] with minitrials and preliminary
showings [that] would assuredly impede its investigation and frustrate the
public’s interest in the fair and expeditious administration of the
criminal laws”) (internal quotation marks omitted).

To reiterate, a properly issued investigative subpoena – one that is
reasonable under the Fourth Amendment – must only be: (1) relevant in
purpose; (2) sufficiently limited in scope, and (3) specific in directive
so that compliance will not be unreasonably burdensome. Pollard, 263 Ind.
at 254, 329 N.E.2d at 586; see also Johnson v. State, 925 S.W.2d 834, 835-
36 (Mo. 1996) (upholding the constitutionality of Missouri's prosecutor
subpoena statute, which is similar to Indiana Code § 33-14-1-3) (“The
United States Supreme Court has specifically required only that ‘the
subpoena be sufficiently limited in scope, relevant in purpose, and
specific in directive so that compliance will not be unreasonably
burdensome.’”) (emphasis added) (quoting Donovan, 464 U.S. at 415).[18]

III

Before we consider whether the trial court erred in denying Oman’s
motion to suppress the results of his post-accident test, we address the
constitutionality of Michigan City’s Ordinance and whether the results of
Oman’s administrative drug test can be used in a criminal prosecution
against him. The Court of Appeals found that the use of such “government-
compelled drug tests in criminal prosecutions” violated Oman’s
constitutional rights under the Fourth Amendment. Oman, 707 N.E.2d at 329.
We disagree.

A

As a matter of federal constitutional law, we find this case
governed by principles enunciated by the United States Supreme Court in
Skinner v. Railway Labor Executives’
Ass’n, 489 U.S. 602 (1989), and the companion case of National Treasury
Employees Union v. Von Raab, 489 U.S. 656 (1989).[19]

In both Skinner and Von Raab, the Supreme Court upheld the
constitutionality of government testing programs – similar to Michigan
City’s Ordinance[20] – by recognizing that the effected employees were
engaged in safety-sensitive tasks, so that “special needs” existed beyond
normal law enforcement to justify a departure from the usual warrant and
probable cause requirements of the Fourth Amendment.[21] Von Raab, 489
U.S. at 665-66 (discussing Skinner). The Supreme Court, however, was
careful to note the “administrative purpose” of both testing programs,
neither of which “was designed as ‘a “pretext” to enable law enforcement to
gather evidence of penal law violations.’” Skinner, 489 U.S. at 621 n.5
(quoting New York v. Burger, 482 U.S. 691, 716-17 n.27 (1987)); see also
Von Raab, 489 U.S. at 666 (“It is clear that the Customs Service’s drug-
testing program is not designed to serve the ordinary needs of law
enforcement.”).

Here, Oman does not directly challenge the constitutionality of the
Ordinance, nor does he claim that Michigan City has implemented it as a
pretext for unearthing criminal behavior for use against city employees in
future criminal trials.[22] Instead, Oman claims – and the Court of
Appeals agreed – that as a matter of general Fourth Amendment law, the
results of employer administrative drug tests can never be used as the
basis of criminal investigations and trials, regardless of the
circumstances or who is seeking the test results (law enforcement or the
non-law-enforcement employer). However, neither the Supreme Court’s
decision in Skinner nor Von Raab prohibit such use. See, e.g., Skinner,
489 U.S. at 621 n.5 (“We leave for another day the question whether routine
use in criminal prosecutions of evidence obtained pursuant to the
administrative scheme would give rise to an inference of pretext, or
otherwise impugn the administrative nature of the FRA’s program.”).[23]

And while we acknowledge that the Supreme Court has left open
the question of governmental employers using their administrative testing
programs to pursue criminal drug use convictions against employees, see
id., the record does not establish that occurred in this case. Here, the
prosecutor was pursuing a criminal investigation based upon: (1) the
knowledge that two fire trucks, with lights and sirens on, had collided
during a fire run, and (2) a tip that one of the drivers had tested
positive on his post-accident drug test.

In light of the substantial authority establishing the
constitutionality of administrative testing programs such as the
Ordinance,[24] and in the absence of any authority which per se shields the
results of constitutionally sound testing programs from valid compulsory
legal process, we proceed to determine whether, on the facts of this case,
the trial court was correct in not suppressing Oman’s post-accident
toxicological test results.

B

In addition to the aforementioned general propositions, the
trial judge also considered Oman’s claims (1) that he “was compelled to
undertake the drug and alcohol test in question as a condition of his
continued employment,” and (2) that the results of his drug and alcohol
test were received by law enforcement authorities “in violation of the
confidentiality provisions of the ordinance under which the test was
compelled.” (R. at 36-37; Order on Defendant’s Motion to Suppress).

B-1

Oman’s contention that he was “compelled to submit” to post-accident
toxicological testing is simply without merit. Both in his brief, see
Appellant’s Br. at 12 (citing Garrity v. New Jersey, 385 U.S. 493 (1967)
(Fifth Amendment case)), and at oral argument, Oman claimed he was
“compelled” to choose between toxicological testing or maintaining his
employment in violation of his constitutional right against self-
incrimination. Toxicological samples, however, are simply not evidence of
a testimonial or communicative nature protected by the Fifth Amendment.
And it makes no difference whether law enforcement compelled the test
results while pursuing a criminal investigation, see Schmerber v.
California, 384 U.S. 757, 761 (1966), or whether the governmental employer
(i.e., non-law enforcement) compelled the test results as part of an
administrative testing program, see Skinner, 489 U.S. at 625 (analyzing
Schmerber).

Furthermore, Oman had agreed to submit to post-accident drug testing
as a condition of his employment with Michigan City in a safety-sensitive
job. If Oman had objected to this or any other provision prior to the
accident, he could have sought employment elsewhere. If Oman had objected
to the testing provision at the time of the accident, he could have refused
his union president’s directive to take the test and been subject to – as
he readily acknowledged during the suppression hearing – an “[a]utomatic
thirty day suspension with possible termination,” (R. at 84), in lieu of
the criminal prosecution he now faces. While these alternatives may have
been unpleasant, they were alternatives; Oman was not compelled.

B-2

We also disagree with Oman’s second contention that the results of his
toxicological testing were received by law enforcement authorities in
violation of the confidentiality provisions contained in the Ordinance.
Oman’s claim that he has a reasonable expectation of privacy arising from
the confidentiality provisions is refuted by the plain language of the
Ordinance, which clearly states: “Disclosure of test results . . . without
the written authorization of the employee . . . shall not be made except
when[] the information is compelled by law or by judicial and
administrative process.” (R. at 77) (emphasis added).[25] Compare
Skinner, 489 U.S. at 621 n.5 (acknowledging that the test results obtained
under the FRA regulations could “‘be made available to . . . a party in
litigation upon service of appropriate compulsory process on the
custodian’”) (quoting 49 CFR § 219.2101(d) (1987)).[26]

B-3

The plain language of the Ordinance aside, the disclosure
provision is not inconsistent with Oman’s reasonable expectation of privacy
under either federal or state law.[27]

B-3-a

As a matter of federal law, an individual does have a privacy interest
in his or her bodily fluids. See Whalen v. Roe, 429 U.S. 589, 599-600
(1977) (A person has an “individual interest in avoiding disclosure of
personal matters.”). Nevertheless, the right to keep employer-mandated
test results private is not absolute. See, e.g., Carrelli v. Ginsburg, 956
F.2d 598, 607 (6th Cir. 1992) (upholding the constitutionality of a (Ohio)
state horse racing commission drug testing program and reversing the
district court’s ruling that the commission violated an individual’s
privacy interest by repeatedly publicizing his positive test result for
illegal drug use) (“Though the contours of constitutional confidentiality
are murky, the positive test result, information contained in the urine, is
not “private” in a constitutional sense.”) (citing Scheetz v. The Morning
Call, Inc., 946 F.2d 202, 207 n.5 (3d Cir. 1991)).[28]
Furthermore, there is a large body of decisional law in similar
contexts documenting lawful disclosure of otherwise confidential
information in third party records in the face of valid compulsory legal
process. For example, with regard to an individual’s reasonable
expectation of privacy in his or her medical records, federal courts follow
the Supreme Court’s lead in Whalen v. Roe, 429 U.S. 589 (1977), and apply a
balancing test, considering the potential conflict between the patient’s
right to privacy and the asserted right of access to the records.[29] With
respect to confidential information contained in bank records, an
individual’s reasonable expectation of privacy is also diminished when
those records are compelled by “normal legal process.” California Bankers
Ass’n v. Shultz, 416 U.S. 21, 54 & n.24 (1974) (“[I]t is difficult to see
how the summoning of a third party, and the records of a third party, can
violate the rights of [a] taxpayer, even if a criminal prosecution is
contemplated or in progress.”) (internal quotations omitted), aff’g in part
and rev’g in part Stark v. Connally, 347 F. Supp. 1242 (N.D. Cal.
1972)).[30]

B-3-b

As a matter of state law, we have not previously considered an
individual’s privacy interest in toxicological test results under the
Indiana Constitution, and we decline to do so today. We do note, however,
that a person who operates a vehicle in Indiana impliedly consents to
submit to toxicological testing as a condition of operating that vehicle.
See Ind. Code § 9-30-6-1 (1993). While the facts of this case do not
directly implicate Indiana’s Implied Consent Law, the disclosure
requirements contained therein are instructive in that, as a Hoosier
driver, Oman should have little or no expectation of privacy in a post-
accident test result that indicates the presence of marijuana. Cf. Burp v.
State, 612 N.E.2d 169, 173 (Ind. Ct. App. 1993) (The disclosure provision
of Indiana’s Implied Consent Law, Ind. Code § 9-30-6-6, “does not create
any rights in a criminal defendant but rather limits his right to invoke a
privilege.”); Hurt v. State, 553 N.E.2d 1243, 1246 (Ind. Ct. App. 1990)
(For purposes of Ind. Code § 9-30-6-6, “the legislature has abolished the
physician-patient privilege.”).

Furthermore, Hoosiers enjoy only a limited expectation of privacy in
similar contexts, such as banking records, when law enforcement seeks
information contained therein as part of a valid criminal investigation.
See Indiana Nat’l Bank v. Chapman, 482 N.E.2d 474, 478-79 (Ind. Ct. App.
1985) (holding that where a bank provided answers to an investigating
officer’s questions about the defendant’s automobile loan, the “[b]ank’s
communication . . . was not a ‘publicizing of one’s private affairs with
which the public has no legitimate concern,’” so as not to “give rise to a
private right of action for invasion of privacy”) (quoting Continental
Optical Co. v. Reed, 119 Ind. App. 643, 86 N.E.2d 306, 308 (1949)), reh’g
denied.

C

In summary, we find that: (1) absent evidence to the contrary,
Michigan City’s Ordinance is constitutionally sound and typical of those
government drug testing programs approved by the U.S. Supreme Court under
its “special needs” exception to its Fourth Amendment doctrine; (2) the
Ordinance disclosure provision implicated in this case is not inconsistent
with Oman's reasonable expectation of privacy under either federal or state
law; and (3) the results of Oman’s administrative drug test can be used in
a criminal prosecution against him, but only if obtained by valid legal
process externally initiated from the employment setting. As such, we
proceed to determine whether the Michigan City prosecutor obtained Oman’s
test results by valid legal process.

IV

A

Indiana prosecutors are statutorily empowered to investigate criminal
activity without the aid of a grand jury and may issue subpoenas to gather
both testimonial and documentary evidence. See Ind. Code § 34-14-1-3
(1993). This investigative authority includes the ability to gather
documentary evidence maintained by a third party, provided that a trial
judge or magistrate first determines the subpoena is reasonable under the
Fourth Amendment. A reasonable investigative subpoena duces tecum is one
that is (1) sufficiently limited in scope, (2) relevant in purpose, and (3)
specific in directive so that compliance will not be unreasonably
burdensome. See Pollard, 263 Ind. at 254, 329 N.E.2d at 586 (quoting City
of Seattle, 387 U.S. at 544). Applying this standard, we find the
investigative subpoena duces tecurn issued in this case was reasonable
under the Fourth Amendment.[31]

B

Acting on the knowledge that two fire trucks had collided during a
fire run and a tip that one of the drivers had tested positive for
marijuana use during his employer-mandated post-accident drug test, the
deputy prosecutor in this case issued an investigative subpoena duces
tecum, directing the Records Keeper of the NIMLS laboratory to produce the
following: “Blood and/or urine test results of Firefighter Ron Oman, Sr.,
taken on or about April 28, 1998, taken to determine content of alcohol or
controlled substances.” (R. at 61; Defendant’s Ex. B.)

First, the subpoena was sufficiently limited in scope in that the
deputy prosecutor only requested Oman’s test results and not those of the
other driver tested about which the prosecutor had received no additional
information. Second, it is specific in directive so as not to be unduly
burdensome in that the prosecutor only sought production of the April 28th
test results and not other results possibly maintained by the lab.

Finally, the subpoena was relevant in purpose to a valid criminal
investigation. We acknowledge Oman’s concern that, absent proper
safeguards, a prosecutor could conceivably “subpoena any employee’s drug
testing records if he heard that an employee had tested positive.”
Appellant’s Br. at 13. But there is a fundamental difference between
Oman’s hypothetical and the actual case before us today.

In the hypothetical, an employee’s positive test result forms the
initial evidentiary basis for charging an individual for illegal drug use.
In such a situation, the prosecutor’s subpoena would not relate to a valid
criminal investigation. This is because the employer’s testing program
would produce the sole relevant initial evidence of criminal conduct. Such
a use of a drug test would serve “the ordinary needs of law enforcement” in
a manner disapproved of in Skinner and Von Raab.[32]

But Oman’s positive test result did not form the initial
evidentiary basis for charging him: Oman was, first and foremost, the
driver of one of two fire trucks involved in an accident. This accident
was documented in two different reports – a police report and an Indiana
crash report – that formed the requisite initial evidentiary basis for the
prosecutor’s legitimate inquiry into a possible DUI offense.[33]

To reiterate: A prosecutor’s subpoena duces tecum issued to a third
party for the production of an employer-mandated drug test result is not
relevant in purpose to a valid criminal investigation if the employee’s
positive test result forms the initial evidentiary basis for charging an
individual with the commission of a crime. Applying this rule in this
case, we find the subpoena was relevant in purpose to a valid criminal
investigation.

Notwithstanding that a judge or magistrate did not review the subpoena
prior to its issuance as per the rule we enunciate today,[34] we find the
investigative subpoena duces tecum was reasonable under the Fourth
Amendment, and that the trial court did not err in denying Oman’s motion to
suppress his drug test results.

Conclusion

In summary, we conclude that: (1) a prosecutor acting without a grand
jury must seek leave of court before issuing a subpoena duces tecum for the
production of documentary evidence maintained by a third party; (2) the
trial judge or magistrate will review this subpoena for reasonableness
using the three-factor City of Seattle test; (3) government drug testing
programs such as Michigan City’s Ordinance are constitutionally justified
under the U.S. Supreme Court’s “special needs” exception to its Fourth
Amendment doctrine; (4) Oman was not compelled to submit to toxicological
testing in violation of his Fifth Amendment rights; (5) the Ordinance
disclosure provision implicated in this case is not inconsistent with
Oman’s reasonable expectation of privacy under federal or state
constitutional law; (6) toxicological test results from an employer
administrative drug test are admissible in a criminal proceeding but only
if obtained by valid legal process externally initiated from the employment
setting; and (7) the deputy prosecutor in this case reasonably obtained
Oman’s test results by valid legal process in that the subpoena duces tecum
was sufficiently limited in scope, specific in directive, and relevant in
purpose to a valid criminal investigation, where the employee’s positive
test result did not form the initial evidentiary basis for charging the
individual for the offense of driving while intoxicated.

We therefore grant transfer, vacate the opinion of the Court of
Appeals, and remand to the trial court for further proceedings consistent
with this opinion.

SHEPARD, C.J., and RUCKER, J., concur.
BOEHM, J., concurs in result with separate opinion in which DICKSON,
J., concurs.

ATTORNEY FOR APPELLANT

Donald W. Pagos
Michigan City, Indiana

ATTORNEYS FOR APPELLEE

Jeffrey A. Modisett
Attorney General of Indiana

Priscilla J. Fossum
Stephen K. Tesmer
Deputy Attorney General
Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA
__________________________________________________________________

RONALD OMAN, )
)
Appellant (Defendant Below), ) Indiana Supreme Court
) Cause No. 46S03-9909-CR-495
v. )
) Indiana Court of Appeals
STATE OF INDIANA, ) Cause No. 46A03-9808-CR-365
)
Appellee (Plaintiff Below). )
__________________________________________________________________

APPEAL FROM THE LAPORTE SUPERIOR COURT
The Honorable William J. Boklund, Judge
Cause No. 46D04-9805-CM-679
__________________________________________________________________

ON PETITION TO TRANSFER

__________________________________________________________________
September 26, 2000

BOEHM, Justice, concurring in result.
I agree with the majority’s result, but not with all of its
reasoning. First, the majority notes that older cases seem rather clearly
to assume, if not to hold, that an investigatory subpoena may be issued
without court approval. The majority distinguishes these cases on the
ground that they deal with subpoenas to testify, not with subpoenas
requiring the production of physical evidence. I see no material
difference between the two for purposes of determining whether a court’s
approval is required before a citizen can be haled before the grand jury.
It seems to me that the new rule this Court announces today in the exercise
of its supervisory powers is inconsistent with these precedents, and that
we should acknowledge that conflict and recognize that these older cases
are disapproved.
Second, I do not believe it is fair to say that there is no evidence
to suggest a breach of the confidentiality policy by whoever alerted the
assistant chief of police to the positive result of Oman’s test. Several
factors suggest that the tipster was someone who administered the test,
received the report pursuant to the confidentiality policy, or got the
information from someone who did. The evidence here is not that some
anonymous caller told the police to look into Oman’s test. Nor is it that
someone claimed that at or near the time of the accident Oman looked
suspiciously like someone who had used a controlled substance. Either
could easily have come from someone who observed Oman. Instead, the
evidence is that the day after the accident, the assistant chief of police
“heard” that Oman had tested positive, not just that there was a
probability he might test positive. The fact that the information was
passed on to the police so soon after the test, perhaps before Oman himself
was informed of the results, strongly suggests that a person bound by the
confidentiality policy was the unnamed tipster.
There is apparently no constitutional requirement that confidentiality
be a component of a drug testing program to validate it against Fourth and
Fourteenth Amendment challenges. See Skinner v. Railway Labor Executives’
Ass’n, 489 U.S. 602 (1989). Nonetheless, simple notions of fairness
suggest that where an employer guarantees confidentiality and then breaks
that promise, there is something wrong with using positive results to
prosecute an employee. The issue here, however, is whether a breach of the
confidentiality policy warrants suppression of the evidence in a criminal
proceeding. In my view, other remedies, including disciplinary action
against the source of the breach, should be sufficient to validate the
policy. The exclusionary rule proposed by Oman is simply more than is
required by the Constitution or by policy considerations to accomplish that
goal. Accordingly, I concur in the result reached by the majority.

DICKSON, J., concurs.

-----------------------
[1] Oman testified at the suppression hearing that he was not tested
for sobriety at the accident scene. However, the police report specifically
noted that both drivers had “.00% BAC.” (R. at 11; Indiana Officer's
Standard Crash Report.) For purposes of this appeal, we assume that the
Michigan City Police Department did not possess the capability (i.e., the
equipment) to field assess the presence of THC (the active ingredient in
marijuana) in a driver’s bodily fluids.

[2] As best as we can tell, Officer Kunkle was not the investigating
officer at the accident scene.

[3] Ind. Code § 9-30-5-1 (1993).

[4] Because the Fourteenth Amendment Due Process Clause does not
incorporate the Fifth Amendment right to be charged by a grand jury
indictment, see Clanton v. Cooper, 129 F. 3d 1147, 1155 (10th Cir. 1997),
state legislatures are free to authorize their prosecutors to perform
investigative (and charging) functions historically reserved for grand
juries. Indiana and a handful of other states have authorized their
prosecutors to issue pre-charge investigative subpoenas. See Ark. Code Ann.
§ 16-43-212 (Michie 1994); Del. Code Ann. tit. 29, § 2508(a) (1991); Fla.
Stat. Ann. § 27.04 (West Supp. 1997); Haw. Rev. Stat. § 28-2.5 (1993); Iowa
Code Ann. § 813.2, rule 5, subd. 6 (West Supp. 1996); Ind. Code § 33-14-1-3
(1996); Kan. Stat. Ann. § 22- 3101 (1999); La. Code Crim. Proc. Ann. art.
66 (West Supp. 1997); Mich. Comp. Laws Ann. § 767.3 (West Supp. 1997); Mo.
Rev. Stat. § 56.085 (1994); Mont. Code Ann. § 46-4-301 (1997); Or. Rev.
Stat. § 180.073 (1996); Utah Code Ann. § 77-22-2 (1995). See generally H.
Morley Swingle, Criminal Investigative Subpoenas: How To Get Them, How To
Fight Them, 54 J. Mo. B. 15 (1998).
For reasons that will become apparent later, we note there is no
federal counterpart to a state prosecutor’s investigative subpoena power.
As such, while federal prosecutors “‘engaged in grand jury investigations
properly may have subpoenas issued without the grand jury’s authorization
or awareness to compel attendance of witnesses before the grand jury, . . .
they may not use the grand jury subpoena power to gather information
without the intended participation of the grand jury.’” United States v.
Santucci, 674 F.2d 624, 627, 632 (7th Cir. 1982) (emphasis added) (quoting
Holderman, Preindictment Prosecutorial Conduct in the Federal System, 71 J.
Crim. L & C 1 (1980)) (affirming the issuance of grand jury subpoenas duces
tecum for the production of handwriting exemplars, photographs, etc., that
were neither sought nor obtained from any grand jury, nor had the case been
opened before a grand jury, however, “[n]othing in the record suggest[ed]
any intent to exclude the grand jury from all exposure to the collected
evidence”), cert. denied, 459 U.S. 1109 (1983).

[5] In fact, as best as we can tell, Indiana’s prosecutor subpoena
statute was the very first of its kind: Indiana (1852); Florida (1877);
Michigan (1927); Louisiana (1928); Arkansas (1937); Delaware (1953); Utah
(1953); Kansas (1970); Hawaii (1972); Iowa (1976); Montana (1977); Oregon
(1993); Missouri (1994). See statutes cited supra note 4.

[6] The trial court stayed the order, and after hearing argument on
the matter, it granted the State’s motion to produce and issued a subpoena
duces tecum. The trial judge then certified the court’s judgment to the
Court of Appeals. In re Indiana Bell, 274 Ind. at 132, 409 N.E.2d at 1090.
This Court accepted transfer under Appellate Rule 4(A)(10), which provided
for petitioning the Supreme Court to transfer an appeal from the Court of
Appeals to the Supreme Court upon a showing that the appeal involved a
substantial question of law of great public importance and that an
emergency existed. Id. (current version at App. R. 4(A)(9)).

[7] We also acknowledge the concern noted in the concurring opinion of
Judge Brook. See Oman, 707 N.E.2d at 329-31 (Brook, J., concurring) (“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.”).
[8] This interpretation also preserves the prosecutor’s “discretionary
judicial power to investigate and determine who shall be prosecuted and who
shall not be prosecuted.” State ex rel. Spencer v. Criminal Court of Marion
County, 214 Ind. 551, 556, 15 N.E.2d 1020, 1022 (1938).

[9] See, e.g., Ellison v. State, 125 Ind. 492, 492, 24 N.E. 739, 741
(1890); West v. State, 32 Ind. App. 161, 69 N.E. 465 (1904).

[10] Notwithstanding that a judge or magistrate did not review the
prosecutor’s application for the subpoena duces tecum in this case, we find
no reversible error in light of our forthcoming analysis that the
requirements of the Fourth Amendment have been satisfied.
[11] It should be noted that the statute requires that a grand jury
subpoena contain a written advisement of the general nature of the grand
jury inquiry. See also State ex rel. Pollard v. Criminal Court of Marion
County, 263 Ind. 236, 248, 329 N.E.2d 573, 582-83 (1975) (“If the personal
records of public officials bear the indelible marks of illegal conduct,
those records should, with proper safeguards, be made available for the
grand jury's inspection. We, therefore, conclude that the grand jury may
require witnesses to produce papers and documents relevant to the grand
jury investigation.”) (emphasis added).

[12] See also United States v. R. Enters., Inc., 498 U.S. 292, 297
(1991) (“In short, the Government cannot be required to justify the
issuance of a grand jury subpoena by presenting evidence sufficient to
establish probable cause because the very purpose of requesting the
information is to ascertain whether probable cause exists.”); accord Auto-
Owners Ins. Co. v. State, 692 N.E.2d 935, 939 (Ind. Ct. App. 1998)
(“Interpreting [a statute empowering the Attorney General to investigate
violations of various business and trade laws] as requiring reasonable
cause to believe that a statutory violation occurred before an
investigation is even initiated would produce an absurdity. The very
purpose of an investigation under the statute is to determine if in fact a
violation has occurred. If the State had reasonable cause to believe that a
violation already existed, there would be no need for investigation in the
first place.”). See generally In re Thompson, 479 N.E.2d 1344, 1346 (Ind.
Ct. App. 1985) (“As the Indiana Supreme Court noted, the prohibitions of
the Fourth Amendment are inapplicable to subpoenas duces tecum ‘for the
reason that subpoenas are incapable of accomplishing the constitutionally
proscribed conduct.’”) (quoting Pollard, 263 Ind. at 252, 329 N.E.2d at
585)).

[13] Indiana grand jury subpoenas are also issued with a presumption
of reasonableness, see supra Part I-C (analyzing Ind. Code § 35-34-2-5(a)),
placing a similar burden (and standard) of showing unreasonableness on the
recipient who seeks avoidance, see supra Part II-A (discussing the
procedural posture in which the Pollard court applied the City of Seattle
test).
[14] In Donovan v. Lone Steer, Inc., the Court upheld the authority of
the Secretary of Labor, investigating possible violations of the Fair Labor
Standards Act, to issue an administrative subpoena duces tecum to a
restaurant employee for the production of certain payroll and sales
records. See Donovan, 464 U.S. at 409-11. The District Court had ruled,
“[E]nforcement of the subpoena would violate the Fourth Amendment of the
United States Constitution because the Secretary had not previously
obtained a judicial warrant.” Id. at 411. The Supreme Court reversed,
citing the three-step test in City of Seattle, and noting, “[A]Ithough our
cases make it clear that the Secretary of Labor may issue an administrative
subpoena without a warrant, they nonetheless provide protection for a
subpoenaed employer by allowing him to question the reasonableness of the
subpoena . . . in district court.” Id. at 415. The Court went on to hold,
“[T]he defenses available to an employer do not include the right to insist
upon a judicial warrant as a condition precedent to a valid administrative
subpoena [duces tecum].” Id.
We acknowledge that the three-factor City of Seattle reasonableness
test dealt with federal agencies issuing administrative, investigative
subpoenas duces tecum to “corporations[, which] can claim no equality with
individuals in the enjoyment of the right to privacy.” Morton Salt, 338
U.S. at 652. However, we also note that federal prosecutors – working
through grand juries – issue investigative subpoenas duces tecum to
individual citizens suspected of criminal activity, which are “presumed
reasonable.” R. Enters., Inc., 498 U.S. at 301.
[15] Consistent with our holding in Part I-B, supra, that a prosecutor
must seek leave of court before issuing a pre-charge investigative subpoena
duces tecum to a third party, we note that the United States Supreme Court
also considered the propriety of authoritative oversight in the context of
administrative subpoenas. See City of Seattle, 387 U.S. at 544-45 (“[W]hile
the demand to inspect may be issued by the agency, in the form of an
administrative subpoena, it may not be made and enforced by the inspector
in the field . . . .”).

[16] We are aware of the decision in United States v. LaSalle Nat’l
Bank, 437 U.S. 298 (1978), where the Supreme Court recognized that the use
of an administrative subpoena by the Internal Revenue Service (“IRS”) for
the sole purpose of gathering evidence in a criminal prosecution would not
be valid. See id. at 318. The Court’s limitation of the IRS, however, was
not based on Fourth Amendment considerations, but rather on the IRS’s lack
of statutory authority, which is not at issue in this case.

[17] This is also consistent with Indiana Code § 4-6-3-5 (1993), which
provides in relevant part that a civil “investigative demand” by the state
Attorney General “may not . . . contain a requirement that would be
unreasonable if contained in a subpoena or subpoena duces tecum issued by a
court in a grand jury investigation.” Id. (emphasis added). See Auto-
Owners Ins. Co., 692 N.E.2d at 939 (identifying the reasonableness standard
identified in Ind. Code § 4-6-3-5 and then applying the reasonableness test
adopted in Pollard).

[18] We do recognize that anonymous information in the form of a
telephone tip lacks sufficient indicia of reliability to justify, for
example, a Terry stop and frisk. See Florida v. J.L.,120 S. Ct. 1375
(2000) (holding that an anonymous telephone tip, without more, will not
form the reasonable basis for justifying a Terry stop, which itself permits
protective police searches under a lesser standard – reasonable suspicion –
than probable cause). However, to the extent that the Court of Appeals in
this case engaged in weighing the sufficiency, reliability, or veracity of
the “information” justifying the issuance of a subpoena, it was wrong to do
so. See Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 207-08
(1946) (subpoena duces tecum issued by the Commissioner of the U.S.
Department of Labor pursuing a pre-charge investigation pursuant to the
Fair Labor Standards Act) (“The Fourth [Amendment], if applicable, at the
most guards against abuse only by way of too much indefiniteness or breadth
in the things required to be ‘particularly described,’ if also the inquiry
is one the demanding agency is authorized by law to make and the materials
specified are relevant. The gist of the protection is in the requirement .
. . that the disclosure sought shall not be unreasonable.”) (emphases
added); Hale v. Henkel, 201 U.S. 43, 73 (1906) (subpoena duces tecum issued
by a grand jury investigating an alleged violation of the Anti-Trust Act)
(“[T]he search and seizure clause of the Fourth Amendment was not intended
to interfere with the power of courts to compel, through a subpoena duces
tecum, the production, upon a trial in court, of documentary evidence.”),
overruled in part on other grounds, Murphy v. Waterfront Comm’n of New York
Harbor, 378 U.S. 52 (1964).

[19] In Skinner, the Court considered the constitutionality of Federal
Railroad Administration regulations that required mandatory blood and urine
tests for train crews involved in certain railway accidents. In Von Raab,
the Court considered the constitutionality of a U.S. Customs Service drug
screening program that required mandatory urinalysis for agents seeking
transfer or promotion to drug interdiction positions or positions requiring
the handling of firearms.

[20] The Ordinance requires employees to undergo suspicionless, pre-
employment testing, in addition to the type of suspicion-based, “reasonable
cause” testing implicated in this case. Oman does not dispute that
reasonable cause existed for Michigan City’s request that he submit to a
drug test after he was involved in “an accident” as the driver of one of
two fire trucks that collided en route to a fire call.

[21] Justice Kennedy explained in Von Raab:
As we note[d] in [Skinner], our cases establish that where a Fourth
Amendment intrusion serves special governmental needs, beyond the
normal need for law enforcement, it is necessary to balance the
individual’s privacy expectations against the Government’s interests
to determine whether it is impractical to require a warrant or some
level of individualized suspicion in the particular context. [Skinner
489 U.S. at 619-20].
It is clear that the Customs Service’s drug-testing program is
not designed to serve the ordinary needs of law enforcement. Test
results may not be used in a criminal prosecution of the employee
without the employee’s consent. The purposes of the program are to
deter drug use among those eligible for promotion to sensitive
positions within the Service and to prevent the promotion of drug
users to those positions. These substantial interests, no less than
the Government's concern for safe rail transportation at issue in
[Skinner] present a special need that may justify departure from the
ordinary warrant and probable-cause requirements.
Von Raab, 489 U.S. at 665-66.

[22] Our review of the Ordinance satisfies us that it not designed to
serve the “ordinary needs of law enforcement,” which has other available
means, including field sobriety tests, to gather evidence to prosecute
individuals who choose to drive while impaired. See, e.g., Ind. Code § 9-30-
6-1 et.seq. (Indiana’s Implied Consent Law).
More to the point, the primary fear associated with administrative
testing programs being used to serve “the ordinary needs of law
enforcement” has little to do with accident-triggered toxicological
testing. Instead, this fear is focused on the potential for law enforcement
to obtain drug test results from pre-employment and random drug screening
tests to prosecute individuals for illegal drug use. See, e.g., Appellant’s
Br. at 13 (“Drug testing is now common in the work place, including the
private sector[, so that] . . . a prosecutor could subpoena any employee’s
drug testing records if he heard that an employee had tested positive.”).
As we explain, infra in Part IV-B (discussing relevancy to valid criminal
investigations), use of an investigative subpoena in this way would be
improper.

[23] We observe that the Federal Railroad Administration testing
regulations at issue in Skinner were suspicionless and very broad. They
required entire train crews to submit to urinalysis and blood testing after
a “major train accident” or “impact incident.” Skinner, 489 U.S. at 608-09
& n.2; see also id. at 635 (Marshall, J., dissenting) (“[E]ntire railroad
crews [must] submit to invasive blood and urine tests . . . .”); id. at 654
(“Some corroborative evidence is needed: witness or co-worker accounts of a
worker’s misfeasance, or at least indications that the cause of the
accident was within a worker’s area of responsibility.”).
By way of comparison, the particular Ordinance provision implicated in
this case is suspicion-based and much narrower in scope, requiring
toxicological testing only when the City has “reasonable cause” to suspect
an employee because he or she was involved in “an accident which [was]
caused by the apparent action or interaction of the employee under
circumstances which indicated that the accident may [have been] the result
of the use of drugs or alcohol.” (R. at 70; Ordinance No. 3375). We note
that both Oman and the driver of the other fire truck were tested as per
this Ordinance.

[24] In addition to the Skinner and Von Raab decisions, see Miller v.
Vanderburgh County, 610 N.E.2d 858 (Ind. Ct. App. 1993), transfer denied,
where the Court of Appeals upheld, in dicta, the constitutionality of an
administrative testing programs similar to Michigan City’s Ordinance.

[25] Just as we find no violation of the ordinance’s confidentiality
provisions in the laboratory’s disclosure of the test results to the
prosecutor, we also find no violation of those provisions in the mere fact
that the police had received an anonymous tip that Oman had tested
positively for marijuana. No evidence was presented that anyone bound by
the ordinance’s confidentiality provisions was the source of the tip. In
the absence of such evidence, we decline to rule on whether disclosure of
the test results in violation of the ordinance’s confidentiality provisions
would entitle the person tested either to have the test results suppressed
in a criminal proceeding or to some civil remedy the against the tipster.

[26] Pursuant to the Ordinance, “[n]o record of a negative [test
result] or unconfirmed positive test result shall be maintained by the City
or by the testing laboratory and a record of a confirmed positive test
result shall be maintained only in the employee’s confidential file.” (R.
at 77) (emphases added). In asking us to consider his reasonable
expectation of privacy, Oman notes that “[t]he testing laboratory was not
even supposed to keep the results.” Appellant’s Br. at 10. However, a
third party (i.e., Michigan City) and not the employee maintains control
over a file containing “a record of a confirmed positive test result.” As
such, we see no reason to differentiate between the lab’s disclosure when
“compelled by law” with that of the employer’s disclosure when “compelled
by law.”
[27] Due to the unique facts of this case and our resolution thereof,
we need not directly decide whether an individual has a reasonable
expectation of privacy in administrative drug test results. However, we
note the diminished expectation of privacy in analogous forms of otherwise
confidential information to satisfy our concern that Oman’s Fourth
Amendment rights have not been violated.

[28] While most federal decisions analyze disclosure of test results
to the public at large, there is at least one case currently pending before
the U.S. Supreme Court involving a drug testing program where a hospital
directly forwarded the toxicological test results to law enforcement
officials. See Ferguson v. City of Charleston, S.C., 186 F.3d 469, 483
(4th Cir. 1999) (finding the testing policy constitutional in light of the
state’s “compelling interest in the identification of law breakers and in
deterring future misconduct”), cert. granted, 120 S. Ct. 1239 (Feb 28,
2000) (No. 99-936).
In Ferguson, the Fourth Circuit upheld a hospital’s administrative
testing program, specifically targeting pregnant mothers suspected of using
cocaine. The suspicion-based policy tested the urine of pregnant woman and
then affirmatively released the positive test result and medical records to
the local prosecutor, who in turn presented the offending woman with a
“choice between being arrested [or] receiving drug treatment.” Id. The
hospital’s policy “was not to arrest patients but to facilitate their
treatment and protect both mother and unborn child.” Id. 186 F.3d at 475
n.3 (internal quotations omitted). In dissent, Judge Blake noted that the
“consent forms signed by the plaintiffs did not advise them that their drug
test results would be disclosed to the police,” and the testing program
“resulted in the arrest of nine of the 10 plaintiffs.” Id. at 484, 486
(Blake, District Judge, dissenting in part).

[29] See, e.g., United States v. Jenkins, 895 F. Supp. 1389, 1393 (D.
Hawai’i 1995) (“While the right to keep medical records is not absolute, it
is an important consideration to be weighed in reviewing such subpoenas.”)
(emphasis added) (citation omitted); Mann v. University of Cincinnati, 824
F. Supp. 1190, 1197 (S.D. Ohio 1993) (“[T]he University, through its
counsel, should have been aware that it was not free to disclose medical
records, even to other University departments or to their attorneys, in the
absence of a release by the patient or a valid court order.”) (emphasis
added).
[30] See generally Michael Kurt Guest, Note, Stark v. Connally:
Defining the Bank Customer’s Right of Privacy, 48 Ind. L.J. 649, 653 n.32
(1973) (reviewing various decisional and statutory pronouncements
concerning federal banking law, which highlight the U.S. Supreme Court’s
general requirement that “some limitation[s be placed] on congressional
power to require records” but that a proper limitation satisfying the
“reasonableness” standard is the valid legal process necessarily
surrounding the issuance of a subpoena).
[31] Consistent with the rule of law we enunciate today, see supra
Part I-B, a trial judge or magistrate must review the subpoena duces tecum
to ensure that it is reasonable.
[32] We should note the subtle, but important, distinction between our
discussion here, addressing a valid criminal investigation, and our
discussion set forth in Part III-A, supra, discussing a valid or reasonable
employer administrative drug testing program as one not used as a pretext
for unearthing criminal behavior for use against employees by the employer.

[33] The police report conspicuously identified only one driver, Oman,
as “appear[ing] tired [] as if he had just woke up from sleep[].” (R. at
10.) Viewing matters favorably to the non-movant, we have no reason to
believe that the deputy prosecutor did not consider both of these reports
during his investigation.

[34] See supra Part I-B and note 10.