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Dow Chem. Co. v. United States

ELR Citation: 16 ELR 20679
Nos. No. 84-1259, 476 U.S. 227/24 ERC 1385/(U.S., 05/19/1986) Aff'd

The Court holds that the Environmental Protection Agency's (EPA's) aerial photography of petitioner's chemical manufacturing facility is within its statutory authority under Clean Air Act §114(a) and was not a warrantless search prohibited by the Fourth Amendment. After petitioner denied EPA's request to make a second on-site inspection of its facility in connection with the agency's investigation of possible Clean Air Act violations, EPA chose not to seek an administrative search warrant, but instead hired a commercial aerial photographer to photograph the facility, which is notvisible from ground level. The Court first rules that the use of aerial observation and photography is within EPA's statutory authority. Although the Clean Air Act §114(a) does not explicitly authorize aerial investigations, it expands on EPA's general investigative powers. EPA does not require an explicit statutory provision to employ investigative techniques commonly available to the public.

The Court next rules that the taking of aerial photographs of an industrial plant complex without a warrant is not a search prohibited by the Fourth Amendment. The open areas of petitioner's 2,000-acre complex are not analogous to the "curtilage" surrounding a home, which is entitled to protection from warrantless searches because the occupants have a reasonable expectation of privacy in the area around their homes. The open areas here are more analogous to "open fields" and thus may be photographed from aircraft lawfully in the public air space. The Court observes that while warrantless surveillance of private property using sophisticated equipment not generally available to the public might be unconstitutional, the photographs here, taken by a commercial camera commonly used in map-making, reveal only an outline of the buildings and equipment, not intimate details for which there is a legitimate expectation of privacy.

Four Justices dissent from the Court's Fourth Amendment holding. The dissent disputes the Court's conclusion that the Fourth Amendment protects the petitioner only from actual physical entry by the government into an enclosed area. The proper inquiry to determine whether an inspection of commercial property violates the Fourth Amendment is not whether there has been a physical intrusion, but whether the surveillance intrudes on a reasonable expectation of privacy recognized by society. By enacting trade secret laws, society has recognized that petitioner has a reasonable expectation to preserve the privacy of the open areas of its complex. EPA violated petitioner's expectation by capturing highly confidential information that petitioner took reasonable steps to protect. Neither the curtilage nor the open-field doctrine applies. Finally, the dissent notes that the method of surveillance should have no bearing in Fourth Amendment analysis.

[The lower court opinions in this case appear at 12 ELR 20607 and 14 ELR 20858.]

Counsel for Petitioner
Jane M. Gootee
The Dow Chemical Co.
2030 Dow Ctr., Midland MI 48640
(617) 636-2649

Counsel for Respondent
Alan I. Horowitz
Office of the Solicitor General
Department of Justice, Washington DC 20530
(202) 633-3948