concurrence">BOEHM, Justice,

concurring in result.

I agree with the majority’s result, but not with all of its reasoning. First, the majority notes that older cases seem rather clearly to assume, if not to hold, that an investigatory subpoena may be issued without court approval. The majority distinguishes these cases on the ground that they deal with subpoenas to testify, not with subpoenas requiring the production of physical evidence. I see no material difference between the two for purposes of determining whether a court’s approval is required before a citizen can be haled before the grand jury. It seems to me that the new rule this Court announces today in the exercise of its supervisory powers is inconsistent with these precedents, and that we should acknowledge that conflict *1149and recognize that these older cases are disapproved.

Second, I do not believe it is fair to say that there is no evidence to suggest a breach of the confidentiality policy by whoever alerted the assistant chief of police to the positive result of Oman’s test. Several factors suggest that the tipster was someone who administered the test, received the report pursuant to the confidentiality policy, or got the information from someone who did. The evidence here is not that some anonymous caller told the police to look into Oman’s test. Nor is it that someone claimed that at or near the time of the accident Oman looked suspiciously like someone who had used a controlled substance. Either could easily have come from someone who observed Oman. Instead, the evidence is that the day after the accident, the assistant chief of police “heard” that Oman had tested positive, not just that there was a probability he might test positive. The fact that the information was passed on to the police so soon after the test, perhaps before Oman himself was informed of the results, strongly suggests that a person bound by the confidentiality policy was the unnamed tipster.

There is apparently no constitutional requirement that confidentiality be a component of a drug testing program to validate it against Fourth and Fourteenth Amendment challenges. See Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). Nonetheless, simple notions of fairness suggest that where an employer guarantees confidentiality and then breaks that promise, there is something wrong with using positive results to prosecute an employee. The issue here, however, is whether a breach of the confidentiality policy warrants suppression of the evidence in a criminal proceeding. In my view, other remedies, including disciplinary action against the source of the breach, should be sufficient to validate the policy. The exclusionary rule proposed by Oman is simply more than is required by the Constitution or by policy considerations to accomplish that goal. Accordingly, I concur in the result reached by the majority.

DICKSON, J., concurs.

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