Law School Case Brief
Dow Chem. Co. v. United States - 476 U.S. 227, 106 S. Ct. 1819 (1986)
The open areas of an industrial plant complex with numerous plant structures spread over thousands of acres are not analogous to the "curtilage" of a dwelling for purposes of aerial surveillance; such an industrial complex is more comparable to an open field and as such it is open to the view and observation of persons in aircraft lawfully in the public airspace immediately above or sufficiently near the area for the reach of cameras.
Petitioner Dow Chemical Co. (“Dow Chemical”) operated a 2,000-acre chemical manufacturing facility that was heavily secured against entry on the ground but partially exposed to visual observation from the air. When Dow Chemical denied a request by the Environmental Protection Agency (EPA) for an on-site inspection of the plant, EPA did not seek an administrative search warrant, but instead employed a commercial aerial photographer, using a standard precision aerial mapping camera, to take photographs of the facility from various altitudes, all of which were within lawful navigable airspace. Upon becoming aware of the aerial photography, Dow Chemical filed suit against EPA, alleging that EPA’s action violated the Fourth Amendment and was beyond its statutory investigative authority. The United States District Court for the Eastern District of Michigan, granting Dow Chemical’s motion for summary judgment and enjoining the EPA from continuing such photography or from disseminating, releasing, or copying the photographs already taken, held that the EPA had exceeded its authority under § 114 of the Clean Air Act, which authorizes site inspections, and also had conducted a search which violated the Fourth Amendment. The United States Court of Appeals for the Sixth Circuit reversed, holding that Dow Chemical did not have a reasonable expectation of privacy from the air with respect to those parts of the facility which were not enclosed in buildings, and that the use of enhanced aerial photography was within the general investigative authority of the EPA in the absence of any language in § 114 which clearly prohibited such a technique. Dow Chemical challenged the appellate court’s decision.
- Was EPA’s act of taking aerial photographs of Dow Chemical’s facility violative of the latter’s Fourth Amendment rights?
- Did the EPA exceed its authority under § 114 of the Clean Air Act when it took aerial photographs of Dow Chemical’s facility, notwithstanding the absence of a search warrant?
On certiorari, the Supreme Court of the United States affirmed and held that the EPA's taking, without a warrant, of aerial photographs of Dow Chemical’s plant complex from an aircraft lawfully in public navigable airspace was not a search prohibited by the Fourth Amendment. According to the Court, the open areas of an industrial plant complex such as Dow Chemical’s are not analogous to the "curtilage" of a dwelling, which was entitled to protection as a place where the occupants have a reasonable and legitimate expectation of privacy that society is prepared to accept. Moreover, the Court held that the use of aerial observation and photography was within EPA's statutory authority. The Court averred that although § 114(a) of the Clean Air Act, which provided for EPA's right of entry to premises for inspection purposes, did not authorize aerial observation, the aforementioned section appeared to expand, not restrict, EPA's general investigatory powers. According to the Court, there was no suggestion in the statute that the powers conferred by § 114(a) were intended to be exclusive. The Court held that EPA needed no explicit statutory provision to employ methods of observation commonly available to the public at large.
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