Oman v. State

argument instructions hear additional regarding whether Novicki’s action timely The trial

was filed. court any following ques- determine or all of the tions: ten-year

1. does Section 5’s statute When begin repose to run in asbestos-related cases, delivery date of initial user or consumer or on the last date of

exposure? Assuming of repose

2. the statute begins exposure, run on the last date of exposed when last was Julius to asbestos sold by Rapid-American? Assuming

3. that Novicki’s claim is not repose, barred the statute of is it barred 5’s Section statute of limitation? More specifically, wrongful death does ac-

tion accrue under Section 5? state or Whether federal constitu- rights

tional are violated claim. Section 5 Novicki’s express opinion regard- no this time ing foregoing questions. the answers to the parties

It remains make their respective arguments trial and for light argu- its decision in of those render

ments.

Reversed and remanded.

FRIEDLANDER, J., MATTINGLY, J., concur. OMAN, Appellant-Defendant,

Ronald Indiana, Appellee-Plaintiff. STATE No. 46A03-9808-CR-365. Appeals Court of of Indiana. March pursuant prosecutor-issued to a

tained poena duces tecum.

We reverse.

ISSUES regarding the

Oman raises several issues admissibility results. of his We' restate and review two of those issues: required probable cause is Whether prosecutor may issue a before tecum, and, so, hearsay if whether requirement. satisfies tecum 2. Whether the in this case was reasonable. sponte: wheth- also raise one issue sua compulsory employee of a

er the results test, pursuant government-em- obtained to a testing policy, ployer’s workplace drug prosecution in the criminal of an be used employee.

FACTS AND PROCEDURAL HISTORY city firefighter employed is a Oman City Michigan City, Michigan Indiana. place Drug has in and Alcohol Free Work- (“Ordinance”), place Ordinance the text of compliance it exists in with the which states Act, Drug-Free Workplace 41 USC federal provides cer- 701. The Ordinance events, employees submit to a tain must urine test and a breath test to screen illegal Refusal to substances and alcohol. thirty day results in an automatic submit suspension pay without and risk of termi- a confiden- nation. The Ordinance includes tiality provision which that test results states Sweeney, Dabagia, Pagos, Donald W. Do- employee’s Thorne, will be maintained in the noghue, Pagos, Michigan Janes & file; not testing confidential lab will Indiana, City, Attorney Appellant. addition, maintain results. the Ordinance Modisett, Jeffrey Attorney General A of provides that test results cannot be disclosed Garrard, Indiana, Deputy Attorney James A hierar- department to individuals outside the Indiana, General, Indianapolis, Attorneys for consent chy without the written Appellee. circumstances, except certain one of under which includes disclosure OPINION judicial pro- law or and administrative cess. RILEY, Judge 28, 1998, April was the driver On Oman THE CASE STATEMENT OF two fire trucks that collided en route one of Ordinance, per both Defendant-Appellant Ronald Oman to a fire call. As (“Oman”) the scene to the appeals the trial court’s denial of drivers were driven from drug testing. Police not testing evidence ob- lab for did his motion to certain scene, not perform poenas may did arbitrarily interview Oman act or in excess sobriety tests, request any field did statutory authority. of their any drug of the drivers. 263 Ind. evening, Police Officer Kunkle heard

That This court applicability reaffirmed the from the Assistant Chief of Police that the to subpoenas duces tecum had from an Assistant Chief heard unidenti- (Ind. In re Thompson, 479 N.E.2d posi- fied source that Oman’s tests were Ct.App.1985). information, tive. this Officer Based on Kun- Applying this standard to Ind.Code deputy prosecutor kle asked the to a issue 33-14-1-3, § we note that grants the statute subpoena to test obtain Oman’s results. The prosecutor to issue subpoe prosecutor deputy issued a duces nas “receiving] information” a directing produce tecum to lab crime has been present committed. In the complied, Oman’s test results. The lab and case, prosecutor issued a the' results revealed that Oman had tested tecum on representa Officer Kunkle’s marijuana. positive charged He was tions that Kunkle had heard from his assis operating a vehicle with a controlled sub- chief, tant who had heard from somewhere blood, stance in his a C Class misdemeanor. else, that Oman’s positive. test was § sup- Oman Ind.Code 9-30-5-1. moved to press his test results. The trial court denied statute, interpreting When a we are his motion and certified the issue for interloc- compelled legislative to ascertain and execute utory appeal. interpret intent and to the statute in a such prevent absurdity manner as to hardship and AND

DISCUSSION DECISION and to favor convenience. Duneland I. Probable Cause Corp. Bailey, School (Ind.Ct.App.1998). We do not believe that sought Oman to his test legislature through intended by Ind.Code challenging legality results give prosecutors 33-14-1-3 to unlimited prosecutor-issued subpoena duces tecum. fishing expeditions license to conduct an begin We therefore our discussion there. attempt chargeable to discover part: Ind.Code 33-14-1-3 states in crimes. Rather, find requires we that the statute any Sec. 3. prosecuting Whenever or dis- the information on a subpoena which is based attorney shall trict receive information of reliability. have some indicia of While dowe any felony or the commission of such dis- not mean to invoke the Rules of Evidence as attorney trict of the commission of by standard should misdemeanor he shall cause is- measured, do we find this case that hear jurisdiction having sue from a court same, say hearsay, court,) originating within un an (except issue the the circuit indeed, officer, named unverified and proper directing him to sub- source — any way, source that is unidentified much persons likely therein named tending support veracity one acquainted less its and with the commission of such reliability misdemeanor, margin even felony constitute or and shall examine —does information, ally reliable any person deputy and so subpoenaed before such prosecutor statutory authority touching exceeded his such offense.... by using that information as a basis for issu In State ex rel. Pollard v. Criminal Court ing subpoena. County, supreme Marion our court stated: The fourth amendment II. Reasonableness cause, ‘probable supported oath or affir- literally only applicable mation’ is to requiring probable war- In addition Nevertheless, cause, rants. subject fourth tecum amendment to a Pollard, requirements probable .analysis. cause have been reasonableness interpreted N.E.2d at 586. The standard of reasonable necessarily grand duces tecum the extent that the in ness connotes fact-sensitive case, jury quiry. such In the the Id. were involved in certain train accidents produce test lab Oman’s the test directed however, provides, authorized railroads to administer breath Ordinance results. The employees are confiden- urine who violated certain employee drug results tests safety organizations maintained labor to be rules. Railroad tial are regulations file. Disclosure challenged confidential as unconstitution- department al, outside the held that individuals but em- hierarchy be made without the government’s regulating cannot the con- interest in except consent under certain safety written ployee’s employees to duct of railroad ensure circumstances, including when disclosure is special beyond normal law presents needs judicial and adminis- law may justify departures enforcement relies process. The State trative from the usual warrant and support acquisition its provision requirements. Id. S.Ct. at Oman’s found, however, Having that added). test results. (emphasis repeatedly Court The the disclosure the emphasized of non-prosecutorial the function improper, we find the was itself of they permitting. the “The tests were legal process valid that it does not constitute tests, toxicological to prescribed FRA has not be released to the such that the results could prosecution employees, but assist in the of written consent. The State without Oman’s in prevent rather to and casualties accidents represented an unreason- subpoena therefore operations impair- railroad that result from the because the lab test lab able demand employees by drugs.” ment alcohol of legal comply. to the did have 620-621, (emphasis Id. at 109 at 1415 S.Ct. added). opinion, And later in the same di- note that had the been Oman, procedure proper rected to the would drugs The possession of is a crim- unlawful the quash subpoena. to move to been may pun- inal that offense the Government opportunity, denied this the Because he was ish, separate is a and far more but followed, procedure, which he has is correct wrong dangerous perform to certain sensi- gathered move to tive the of tasks while under influence subpoena. improper substances.... The those Government reg- necessary take all and reasonable Compulsory Drug III. Tests Use steps ulatory prevent or deter that haz- Employees in of Government necessity Prosecutions ardous conduct.... The Criminal regulatory junction respect form that if had found that sub Even we safety- employees engaged railroad proper, Oman’s test results would was tasks, sensitive and the reasonableness of grounds. on constitutional inadmissible so, system doing have been estab- case law that Court has established lished in this case. government employees drug testing of is 633, (emphasis subject analysis.1 Id. 109 S.Ct. at 1422 add- to Fourth Amendment ed). Ass’n, Railway Executives Skinner v. Labor 1402, 103 602, S.Ct. 489 U.S. 109 L.Ed.2d 639 Treasury Employees v. Nat’l Union (1989). Therefore, the State’s use Oman’s Raab, 656, 1384, Von 489 U.S. 109 S.Ct. subject Fourth test results was Amend (1989), companion L.Ed.2d 685 case to ment before the was restrictions Skinner, upheld compulsory drug the Court issued, subject ever and it remains employ- certain testing of Customs Service regardless validity of the Fourth Amendment Again, ees. found that the use of or of Fourth Amendment illegal employees posed substances such subpoenas. applicability safety threat public substantial such Skinner, justified. And again, the Federal Railroad Adminis- tests were non-prosecutorial regulations emphasized promulgated tration mandat- Court employees emphasizing of the tests ed blood and urine tests who function U.S., Ohio, prosecutions Mapp 81 S.Ct. 367 U.S. Weeksv. U.S. (1961): exclusionary applied L.Ed. also be rule in S.Ct. 652 must L.Ed.2d 1081 adopted prosecutions courts. in state search and seizure cases federal criminal drug testing question provided policy being something other than law enforce- not be turned results could over ment. including prosecutors, criminal agency, Applying the above cases to the case be- employee’s without the written consent. Id. us, fore we find first that the Michigan City The Court went on policy, Skinner, like that permissible to state: due to the substantial risks to safety drug- It is clear that the Service’s Customs resulting from impairment firefighters designed program is serve by the consumption drugs of alcohol and the ordinary needs of law enforcement. government interest of the in preventing Test results not be used in a criminal deterring find, such conduct. We also prosecution of employee without the however, that policy pursue use of that purposes consent. The prosecutions against employees is a program among are deter use violation of those employees’ constitutional eligible promotion those to sensitive rights under the Fourth Amendment. It positions prevent within the Service and to through seems clear to us that the above promotion posi- users to those cases the Court has a very fashioned narrow tions. substantial interests ... These public safety exception to usual Fourth may justify a special need that requirements. Amendment emphasized As ordinary departure from the warrant and repeatedly opinion, in this express- the Court probable-cause requirements. ly did exception not extend the to the use of 666, Id. at 109 S.Ct. at 1391. The Court government-compelled drug tests in criminal clearly prohibition against considered the us- prosecutions. We decline the invitation to do ing prosecutions test in criminal a as so now. factor determining upholding in and the con- stitutionality policy. Customs Service’s CONCLUSION emphasized This factor was further in The trial court in denying erred Oman’s Miller, Chandler 520 U.S. suppress motion drug his test results. Chandler, 137 L.Ed.2d 513 passed Reversed. Georgia requiring a statute candi- pass dates for office state to submit a challenged STATON, J., test. Candidates the consti- concurs. statute,

tutionality and the BROOK, J., separate opinion. concurs with Court held that was unconstitutional. holding, so the Court noted: BROOK, Judge, concurring To be reasonable under the Fourth agree majority I deputy that the Amendment, ordinarily a search must be prosecutor issuing exceeded his in suspicion based individualized wrong- a subpoena tecum for Oman’s particularized doing. exceptions But deny- results and that the trial court erred in the main rule are sometimes warranted ing Oman’s motion to the results. I needs, on ‘special beyond the normal however, separately, express write my for need law enforcement.’ When such profound possible concern about the erosion “special needs” —concerns than protections of Fourth Amendment may alleged justifica- crime in detection —are prosecutors issuing subpoenas result from intrusion, tion of a Fourth Amendment duces tecum without leave of court as man- context-specific courts must undertake a by § dated IND. CODE On 33-14-1-3. a

inquiry, examining closely competing note, related I believe that should private interests advanced practical guidelines offer some for determin- parties. Id. at S.Ct. ing reliability” the “indicia of added). for informa- (emphasis tion on which a is based. Again the careful Court was to include language denotes the provides which bases on which IND. CODE 33-14-1-3 might testing policies upon receiving constitutional information of the commission misdemeanor, prosecutor magistrates review felony or of a reliability” they mandatory before “indicia of to issue “shall cause (em- investigations. during can the same” be issued jurisdiction to issue having State, necessarily interpretation This restrict our su- would In Rita v. phasis supplied). 45(A)(2) cases. CODE 33-14- T.R. civil held that IND. preme court investigations: only pre-charge applies 1-3 reviewing holdings Thompson After our says prosecutor if a All the statute Pollard, prosecutor it is that a apparent may been a crime have commit- learns that need sufficient to satis- information first, ted, may, fy requirements “probable cause” may jurisdiction who anyone know te- seeking issue second, and, seek “pro- about the crime id.; Pollard, cum. See 329 N.E.2d to an if the un- leading arrest facts cess” (Fourth 263 Ind. at 254 Amendment Thus, by its support that action. covered literally “is the statute is available express terms warrants”). majority concludes post-information post-indictment Evi- that we need not “invoke the Rules of stage. dence as the standard which (Ind.1996). 968, 970 measured,” to offer should but declines 45(A)(2), also applies Ind. Trial Rule prosecutors criteria to which and trial courts (and proceedings” “criminal extent reliability weighing refer in provides Rule mitted Ind.Crim. inherently sufficiency) of information issue part that a “clerk shall a sub- relevant subpoenas. Although used the bases production poena, or a heightened evidentiary are re- standards tecum], documentary signed warrants, [duces quired for search these blank, to party but otherwise and sealed provide guidance useful standards attorney, his or her who shall requesting it or determining reliability court officers 1 n. fill it in before service.” See id. 3. subpoenas information be case, prosecutor’s the office instant based. subpoena duces tecum without issued the State, Bigler v. its this Court confirmed seeking obtaining leave of court or even approval “totality of the of the circum- Although majori- signature of the clerk. approach magistrates stances” for when issu- ty correctly subpoena improper finds the ing search warrants: grounds, troubling I find it that determining whether an able to “cause prosecutor was supported by probable warrant search is following spirit either the or issue” without cause, issuing task magistrate is letter the law. practical, make common-sense deci- observes, majority As Court held whether, given sion all circumstances Thompson “[t]he Fourth Amendment affidavit, including set forth cause is “veracity” and knowledge” “basis of only to the duces tecum extent information, supplying hearsay sons there issuing the subpoena probability a fair arbitrarily duces tecum act or in particular place. crime will found in a authority.” statutory excess of his 479 preventing (Ind.Ct.App.1992), As a means of 602 trans. N.E.2d N.E.2d 514 (1993), Gates, arbitrarily acting or 462 prosecutors citing outside denied Illinois 213, 239, scope their U.S. sub- tecum, magistrate poenas vividly which was so must L.Ed.2d case, entirety, giving I illustrated in the must indi- consider affidavit “in its my strong preference significance piece interpreting cate each relative of informa- require balancing tion of all judges weights IND. CODE 34-14-1-3 the relative 45(B) procedural requirements Trial Rule are found It should noted Ind. stantive production 45(A). applies specifically in T.R. evidence, documentary but the relevant seizures, of reliability the various indicia and unrelia whether of a direct an indirect bility attending Bigler, the information.” case, nature as in Oman’s again I suggest consideration, N.E.2d 514. As final that IND. CODE interpreted 34-14-1-3 be alleged “[t]he circumstances in the affidavit require judges magistrates to review a person need lead of reasonable caution applications for subpoenas duces tecum in to believe that a crime had been committed.” pre-charge investigations. State, (Ind.Ct. Taylor v. N.E.2d App.1993).

Here, prosecutor’s office issued a sub- sponte, lab sua upon indefensibly hearsay attenuated evi- prevent

dence. To similar abuses of authori- ty protect those who receive such

subpoenas from unreasonable searches and

Case Details

Case Name: Oman v. State

Court Name: Indiana Court of Appeals

Date Published: Mar 23, 1999

Citation: 707 N.E.2d 325

Docket Number: 46A03-9808-CR-365

Court Abbreviation: Ind. Ct. App.