Oman v. State

• Decision Date: 26 September 2000
• Docket Number: No. 46S03-9909-CR-00495.,46S03-9909-CR-00495.
• Citation: 737 N.E.2d 1131
• Parties: Ronald OMAN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

737 N.E.2d 1131

Ronald OMAN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 46S03-9909-CR-00495.

Supreme Court of Indiana.

September 26, 2000.

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

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

ON PETITION TO TRANSFER

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 Kunkle² 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, 232 N.E.2d 882, 885 (1968); Cox v. State, 181 Ind.App. 476, 392 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, 103 S.Ct. 446, 74 L.Ed.2d 601 (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, 96 S.Ct. 1619, 48 L.Ed.2d 71 (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, 68 S.Ct. 367, 92 L.Ed. 436 (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...