Attorney for Appellant
Donald W. Pagos
Sweeney, Dabagia, Donoghue, Thorne, Janes &
Michigan City, IN
Attorneys for Appellee
Jeffrey A. Modisett
Attorney General of Indiana
Priscilla J. Fossum
Stephen K. Tesmer
Deputy Attorney General
INDIANA SUPREME COURT
Appellant (Defendant below),
STATE OF INDIANA,
Appellee (Plaintiff below ).
) Supreme Court No.
) Court of Appeals No.
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
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 safetysensitive 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 Citys 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 Omans post-accident toxicological test results.
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 employees confidential file, that test results will not be disclosed without
the employees 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.
That evening, the Assistant Chief of Police called and told Officer Kunkle
an unidentified source had informed him that Omans drug tests were positive.
Based on this information, Officer Kunkle asked the deputy prosecutor to subpoena Omans
test results. Without seeking leave of court, the deputy prosecutor issued a
subpoena duces tecum directing the testing lab to produce Omans 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.
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 Omans 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 prosecutors subpoena duces tecum to a
third party? (2) If so, what are the appropriate criteria for evaluating
the application and issuance of a prosecutors investigative subpoena duces tecum? (3)
Are government drug testing programs such as Michigan Citys 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
Omans motion to suppress the results of his post-accident drug test?
We first address the States 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 pr
oduced evidence forming, in part, the States 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 movants legitimate interests.); United States v.
Miller, 425 U.S. 435 (1976) (analyzing a defendants 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
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.
Indiana Code § 331413
outlines the legal process for prosecutors to follow and exists today in the
same form as it was originally enacted in 1852:
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.
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
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
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.
After first determining that Indiana Bells 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 prosecutors subpoena power.
As a matter of first impression, this Court decided whether a prosecutor
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.
Appellants 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. Appellees Br. at 6.
We acknowledge that both parties present cogent arguments for their respective positions.
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.
Given that this statutory provision has existed for almost 150 years without defin
interpretation on this point and what interpretation there has been appears to
approve prosecutor subpoenas without court review
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), rehg denied, we enunciate the
following new rule of criminal procedure that will apply to investigative subpoenas issued
after the date of this decision:
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.
One final issue in this regard requires our attention. The State claims
that any decision we make concerning the prosecutors ability to investigate crime and
collect evidence via an investigatory subpoena will presumably impact a grand jurys 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).
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
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.
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 co
ntrolled 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
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,
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,
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
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 coroners 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 prosecutors investigative
subpoena. See supra note 1 (noting that a federal prosecutor does not possess
investigative subpoena power independent from the grand jury process).
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.
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
We view Indiana prosecutors acting without a grand jury in gathering inform
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.).
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 prosecutors investigative
subpoena in Indiana.
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.See footnote 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 publics 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 u
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
Before we consider whether the trial court erred in denying Omans motion to
suppress the results of his post-accident test, we address the constitutionality of Michigan
Citys Ordinance and whether the results of Omans 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
Omans constitutional rights under the Fourth Amendment. Oman, 707 N.E.2d at 329.
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
, 489 U.S. 602 (1989), and the companion case of National Treasury Employees
Union v. Von Raab, 489 U.S. 656 (1989).
Skinner and Von Raab, the Supreme Court upheld the constitutionality of
government testing programs similar to Michigan Citys Ordinance
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.
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 Services 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.
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 Courts 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 FRAs
And while we acknowledge that the Supreme Court has left open the question
vernmental 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 administr
ative testing programs such as the
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 Omans post-accident toxicological test results.
In addition to
the aforementioned general propositions, the trial judge also considered Omans 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 Defendants Motion to Suppress).
Omans contention that he was compelled to submit to post-accident toxicological testing is
simply without merit. Both in his brief, see Appellants 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 cond
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
presidents 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.
We also disagree with Omans 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. Omans 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).
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)
The plain language of the Ordinance aside, the disclosure provision is not inconsistent
with Omans reasonable expectation of privacy under either federal or state law.
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, 599600 (1977) (A person has an individual interest in avoiding disclosure of
personal matters.). Nevertheless, the right to keep employermandated 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 courts ruling that the commission violated an
individuals 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.
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 individuals
reasonable expectation of privacy in his or her medical records, federal courts follow
the Supreme Courts lead in Whalen v. Roe, 429 U.S. 589 (1977), and
apply a balancing test, considering the potential conflict between the patients right to
privacy and the asserted right of access to the records.
to confidential information contained in bank records, an individuals reasonable expectation of privacy
is also diminished when those records are compelled by normal legal process. California
Bankers Assn 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), affg in
part and revg in part Stark v. Connally, 347 F. Supp. 1242 (N.D.
As a matter of state law, we have not previously considered an individuals
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 § 93061 (1993).
While the facts of this case do not directly implicate Indianas 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
postaccident 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
Indianas Implied Consent Law, Ind. Code § 93066, 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 physicianpatient privilege.).
Furthermore, Hoosiers enjoy only a limited expectation of privacy in similar co
as banking records, when law enforcement seeks information contained therein as part of
a valid criminal investigation. See Indiana Natl Bank v. Chapman, 482 N.E.2d
474, 47879 (Ind. Ct. App. 1985) (holding that where a bank provided answers
to an investigating officers questions about the defendants automobile loan, the [b]anks communication
. . . was not a publicizing of ones 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)), rehg denied.
In summary, we find that: (1) absent evidence to the contrary, Michigan Citys
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 Omans 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 Omans test results by valid legal process.
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 § 341413 (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.
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 postaccident 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; Defendants Ex. B.)
First, the subpoena was
sufficiently limited in scope in that the deputy prosecutor
only requested Omans 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 Omans concern that, absent proper safeguards, a prosecutor could conceivably subpoena
any employees drug testing records if he heard that an employee had tested
positive. Appellants Br. at 13. But there is a fundamental difference
between Omans hypothetical and the actual case before us today.
In the hypothetical, an employees positive test result forms the
initial evidentiary basis
for charging an individual for illegal drug use. In such a situation,
the prosecutors subpoena would not relate to a valid criminal investigation. This
is because the employers 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.
But Omans 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 prosecutors legitimate inquiry into a
possible DUI offense.
To reiterate: A prosecutors subpoena
duces tecum issued to a third party for
the production of an employermandated drug test result is not relevant in purpose
to a valid criminal investigation if the employees 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
issuance as per the rule we enunciate today,
we find the investigative
subpoena duces tecum was reasonable under the Fourth Amendment, and that the trial
court did not err in denying Omans motion to suppress his drug test
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 threefactor City of
Seattle test; (3) government drug testing programs such as Michigan Citys Ordinance are
constitutionally justified under the U.S. Supreme Courts 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 Omans 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 Omans 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 employees 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
emand 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
SUPREME COURT OF INDIANA
RONALD OMAN, )
Appellant (Defendant Below), ) Indiana Supreme Court
) Cause No. 46S03-9909-CR-495
) 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 majoritys 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 courts 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 Omans 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 Omans 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
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 Assn, 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
DICKSON, J., concurs.
Oman testified at the suppression hearing that he was not tested for
sobriety at the acc
ident 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 drivers bodily fluids.
As best as we can tell, Officer Kunkle was not the investigating
officer at the accident scene.
Ind. Code § 9-30-5-1 (1993).
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 prosecutors investigative subpoena power. As such, while federal
prosecutors engaged in grand jury investigations properly may have subpoenas issued without the
grand jurys authoriz
ation 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
In fact, as best as we can tell, Indianas 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.
The trial court stayed the order, and after hearing argument on the
matter, it granted the States motion to produce and issued a subpoena
tecum. The trial judge then certified the courts 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)).
We also acknowledge the concern noted in the concurring opinion of Judge
See Oman, 707 N.E.2d at 32931 (Brook, J., concurring) (I again
suggest that Ind. Code § 3414 13 be interpreted to require judges or
magistrates to review applications for subpoenas duces tecum in precharge criminal investigations.).
This interpretation also preserves the prosecutors discretionary judicial power to invest
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).
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).
Notwithstanding that a judge or magistrate did not review the prosecutors 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.
It should be noted that the statute requires that a grand jury
subpoena contain a written a
dvisement 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).
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)).
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).
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
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.
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 . .
We are aware of the decision in
United States v. LaSalle Natl
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 Courts limitation of the IRS, however, was not
based on Fourth Amendment considerations, but rather on the IRSs lack of statutory
authority, which is not at issue in this case.
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 r
equirement 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).
We do recognize that anonymous information in the form of a telephone
tip lacks suff
icient 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
Commn of New York Harbor, 378 U.S. 52 (1964).
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.
The Ordinance requires employees to undergo suspicionless, pre-employment testing, in a
the type of suspicion-based, reasonable cause testing implicated in this case. Oman
does not dispute that reasonable cause existed for Michigan Citys 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.
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 individuals privacy expectations against the Governments 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.
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 employees 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.
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. (Indianas 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 accidenttriggered toxicological testing. Instead, this fear is focused on the potential for
law enforcement to obtain drug test results from preemployment and random drug screening
tests to prosecute individuals for illegal drug use. See, e.g., Appellants Br. at
13 (Drug testing is now common in the work place, including the private
sector[, so that] . . . a prosecutor could subpoena any employees 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.
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 60809 & 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 workers misfeasance, or at least indications
that the cause of the accident was within a workers area of responsibility.).
By way of comparison, the particular Ordinance provision implicated in this case is
suspicionbased 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.
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 Citys Ordinance.
Just as we find no violation of the ordinances confidentiality provisions in
the laboratorys 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 ordinances 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
ordinances 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
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 employees 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. Appellants
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 labs disclosure when compelled by law with that of the employers disclosure
when compelled by law.
Due to the unique facts of this case and our resolution thereof,
we need not directly d
ecide 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 Omans Fourth Amendment rights have not been violated.
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 states compelling interest in the identification of law
breakers and in deterring future misconduct), cert. granted, 120 S. Ct. 1239 (Feb
28, 2000) (No. 99936).
In Ferguson, the Fourth Circuit upheld a hospitals administrative testing program, specifically targeting
pregnant mothers suspected of using cocaine. The suspicionbased 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
hospitals 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).
See, e.g., United States v. Jenkins, 895 F. Supp. 1389, 1393 (D.
Hawaii 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).
See generally Michael Kurt Guest, Note, Stark v. Connally: Defining the Bank
Customers 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
Courts 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).
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.
We should note the subtle, but important, distinction between our discussion here,
sing a valid criminal investigation, and our discussion set forth in Part IIIA,
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.
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 nonmovant, we have no reason to
believe that the deputy prosecutor did not consider both of these reports during
See supra Part IB and note 10.