Dow Chemical Co. v. United States

Incident Summary & Facts

Dow Chemical Co. operates a 2,000-acre chemical manufacturing complex in Midland, Michigan. The site has numerous covered buildings, with manufacturing equipment and piping between the buildings exposed to view from the air. Dow kept elaborate ground-level security around the perimeter and investigated low-level overflights, but it did not conceal its outdoor equipment from aerial view, saying the cost of covering it would be prohibitive. In early 1978, with Dow’s consent, EPA inspected two powerplants on the site. When Dow refused a second inspection, EPA did not seek an administrative warrant. Instead it hired a commercial aerial photographer, who used a standard floor-mounted precision aerial mapping camera to photograph the facility from 12,000, 3,000, and 1,200 feet while the aircraft stayed lawfully within navigable airspace.

When Dow learned of the flights, it sued. The district court granted Dow summary judgment, holding that the photography was a warrantless Fourth Amendment search and beyond EPA’s statutory authority, and it enjoined EPA. The Sixth Circuit reversed. The Supreme Court granted certiorari.

The case did not involve a use-of-force encounter. It concerns warrantless aerial surveillance of commercial property by a regulatory agency.

Core Legal Issue

(1) Whether EPA’s aerial photography exceeded its investigative authority under § 114(a) of the Clean Air Act. (2) Whether warrantless aerial photography of the open areas of an industrial complex from navigable airspace, using a precision mapping camera, is a “search” under the Fourth Amendment.

The Holding

EPA’s use of aerial observation and photography is within its statutory authority. “The taking of aerial photographs of an industrial plant complex from navigable airspace is not a search prohibited by the Fourth Amendment.” The Sixth Circuit’s judgment was affirmed.

The Court’s Analysis:

• Statutory authority. Investigative authority “generally carries with it all the modes of inquiry and investigation traditionally employed or useful.” EPA “needs no explicit statutory provision to employ methods of observation commonly available to the public at large.”
• Industrial complex is not curtilage. Curtilage protects “intimate activity associated with the ‘sanctity of a man’s home and the privacies of life,’” and those activities “simply do not reach the outdoor areas or spaces between structures and buildings of a manufacturing plant.” The complex falls “somewhere between ‘open fields’ and curtilage” and is “more comparable to an open field” for purposes of aerial observation.
• Commercial property and public vantage points. Government has “greater latitude to conduct warrantless inspections of commercial property,” and “[w]hat is observable by the public is observable without a warrant.” Dow keeps a reasonable expectation of privacy inside its covered buildings, and physical entry “would raise significantly different questions.”
• Technology. EPA used “a conventional, albeit precise, commercial camera commonly used in mapmaking,” not a device that could “penetrate the walls of buildings and record conversations.” Highly sophisticated equipment not generally available to the public, “such as satellite technology,” might require a warrant. “The mere fact that human vision is enhanced somewhat, at least to the degree here, does not give rise to constitutional problems.”
• Partial dissent (Powell, J., joined by Brennan, Marshall, and Blackmun, JJ.): The majority’s reliance on the absence of physical trespass and on the type of camera “repudiates Katz.” Dow had taken every feasible step to protect trade secrets and had a reasonable expectation of privacy, and EPA should have obtained a warrant. The dissent joined Part III on statutory authority.