Attorneys for Appellee

Jeffrey A. Modisett
Attorney General of Indiana

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

Appellant (Defendant below),

                       v.
                        

                       STATE OF INDIANA,
         Appellee (Plaintiff below  ).

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

That evening, the Assistant Chief of Police called and told Officer Kunkle See footnote 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. See footnote 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?

Here, Oman challenges the validity of a subpoena issued to a third party lab that pr oduced 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.

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. See footnote
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.

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). See footnote

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.

    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” 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, See footnote 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).

        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. See footnote 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). See footnote

    We view Indiana prosecutors – acting without a grand jury in gathering inform ation 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.”). See footnote 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. See footnote

    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 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 u nder 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). See footnote

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. See footnote 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.”). See footnote

        And while we acknowledge that the Supreme Court has left open the question of go 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 Ordinance, See footnote 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.

Furthermore, Oman had agreed to submit to post-accident drug testing as a cond ition 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.

Furthermore, Hoosiers enjoy only a limited expectation of privacy in similar co ntexts, 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, 47879 (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.

    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. See footnote

        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. See footnote

To reiterate: A prosecutor’s 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 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, See footnote 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.

    We therefore grant transfer, vacate the opinion of the Court of Appeals, and r 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.

--> ATTORNEYS FOR APPELLEE

Jeffrey A. Modisett
Attorney General of Indiana
    
Priscilla J. Fossum
Stephen K. Tesmer
Deputy Attorney General
Indianapolis, Indiana