# Petition for Writ of Certiorari — Dow Chemical Co. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0184%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1986 - **Citation:** 476 U.S. 227 ## Text IN THE Supreme Court of the United States — October Term, 1984 — THE DOW CHEMICAL COMPANY, Petitioner, versus UNITED STATES OF AMERICA BY AND THROUGH ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY, Respondent. — PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT - AND APPENDIX - —— Sa JANE M. GOOTEE, Esq. Counsel of Record BERNDT W. SANDT, Esq. THE DOW CHEMICAL COMPANY 1111 Washington Street Midland, Michigan 48674 (517) 636-2663 Counsel for Petitioner Interstate Brief & Record Co., Suite 731, David Whitney Building, Detroit, MI 48226 (313) 962-8745 i QUESTIONS PRESENTED I. HAS THIS COURT’S DECISION IN OLIVER v. UNITED STATES, — U.S. —, 80 L.Ed.2d 214 (1984), WHICH HELD AN AGRICULTURAL FIELD TO BE AN “OPEN FIFLD”, MODIFIED EARLIER HOLDINGS OF THIS COURT TO SUCH AN EXTENT THAT A HIGHLY SECURED YET OPEN-AIR MANUFACTURING FACILITY IS AN “OPEN FIELD” WITH NO REASONABLE EXPECTATION OF PRIVACY IN THE MINUTE DETAILS OF ITS COMPLEX PLANT FROM THE INTRUSIVE, VISUALLY AIDED SURVEILLANCE FROM THE AIR? Il. DOES SUBSECTION 114(a) OF THE CLEAN AIR ACT AUTHORIZE THE ENVIRONMENTAL PROTECTION AGENCY TO UTILIZE AERIAL RECONNAISSANCE PHOTO- GRAPHY AS A SITE INSPECTION TECHNIQUE? TABLE OF CONTENTS Page QUESTIONS PRESENTED ................. i TABLE OF AUTHORITIES ................. iv PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS oe le) ee 1 Es ars n.d 04 00 9 0:0 b owe se 4 1 CE SENS bp abcess ccesecsseess 2 CONSTITUTIONAL AND - STATUTORY PROVISIONS ............... 2 STATEMENT OF THE CASE ............... 4 REASONS FOR GRANTING THE WRIT ........ 7 I. THE DECISION IS INCONSISTENT WITH THIS COURT’S OPINIONS IN OLIVER v. UNITED STATES, 80 L.Ed.2d 214 (1984); MARSHALL v. BARLOW’S INC., 436 U.S. 307 (1978); AIR POL- LUTION VARIANCE BOARD v. WESTERN AL- FALFA CORPORATION, 416 U.S. 861 (1974); AND KATZ v. UNITED STATES, 389 U.S. 347 (1967) . . 9 A. Detailed Aerial Photography Versus Mere Aerial Observation............... 10 B. A Secured, Developed Industrial Facility Is Not An Open Field ............ 11 C. The Open Fields Doctrine Has Limited, If Any, Application To Cases Where Sophisticated, Intrusive Surveillance De- vices Are Employed To Seek Evidence Without Consent Or Judicial Authority. . 12 iv Page Il. SECTION 114(a) OF THE CLEAN AIR ACT DOES NOT AUTHORIZE, EITHER EXPLICITLY OR BY LACK OF PROHIBITION, THE USE OF AERIAL PHOTOGRAPHY AS AN _ INVESTIGATION TOG £65505 46 554 ea 14 A. The Decision Is Inconsistent With Con- gressional Intent As Shown By The Plain Meaning Of The Statutory Language .. 15 B. The Decision Is Inconsistent With The Clean Air Act’s Provision Protecting Trade Secrets And With Existing Tort And Criminal Law............... 16 RP Fer eee PCr rrr oeres 17 PE, +445 Rhee ee ee A-1-G-4 TABLE OF AUTHORITIES CASES: Air Pollution Variance Board v. Western Alfalfa Corp., 416 U.S. 861 (1974) ....... - 9, 10, 13, 18 Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. __, 81 L.Ed.2d 694 GE 6 sat bie weve cere cues aeetenes 16 Consumer Product Safety Commission v. G.T.E. Sylvania, Inc., 447 U.S. 102 (1980) ......... 16 DuPont v. Christopher, 431 F.2d 1012 (5th Cir. WE she edaeeavecastieueanasseayes 17 Federal Trade Commission v. Raladam Company, 283 ee RE rene eee ee 16 Hester v. United States, 265 U.S. 57 (1924)...... 12 Katz v. United States, 389 U.S. 347 (1967) .. 9, 13, 18 Kewanee Oil Company v. Bicron Corporation, 416 OE rere Sree eee 8, 17 Marshall v. Barlow's Inc., 436 U.S. 307 (1978) 9, 13, 18 Oliver v. United States, _. U.S. __, 80 L.Ed.2d 214 PSUR T TOPE ee ee te 9, 12, 18 Olmstead v. United States, 277 U.S. 438 (1928) .. 13 United States v. Kim, 415 F. Supp. 1252 (D.Ha. | APCS Petes eee ETE eT 10, 13 United States v. Taborda, 635 F.2d 131 (2nd. Cir. ee eee re ee ee 2 ee a 10, 13 STATUTES: CEE og 0 cess oe oe 0460 8960404 3ee 5 Lo a) errs eer ee eo 4 i ot | er rs re ee 15 Lk Te re ae ee a ee 15 y Lig Sl) ree 2 | ae ee ae ee ee 4 LE eS) Se errrrr rrr er ce eee se 4 dl ree ae ee 4 i | es a ee 4 RT |) eee ee ee 4 42 U.S.C. § 7414(a) (§ 114 Clean Air Act) 2,7, 14-16 Stk le >). ee 3, 4, 16 Page Sed ED 06 6c ee ee CEN Chea 17 ta , PCC CERT ETE 17 i | FPPPCEEETERIELE CELT ee 17 REGULATIONS: ee ees ee ee ee 15 oe 2 Rk YY f eorrrre Sere ee ee 16 UNITED STATES CONSTITUTION: Fourth Amendment ............ et a oe 13, 14, 17, 18 MISCELLANEOUS: La Fave, SEARCH AND SEIZURE § 2.4 (1978) ... 12 Restatement of Torts § 757 (1939) ........... 17 No. IN THE Supreme Court of the United States a October Term, 1984 THE DOW CHEMICAL COMPANY, Petitioner, versus UNITED STATES OF AMERICA BY AND THROUGH ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY, Respondent. — PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT —— an Petitioner respectfully prays that a Writ of Certiorari issue to review the opinion of the United States Court of Appeals for the Sixth Circuit decided and filed Nov- ember 9, 1984. OPINION BELOW The opinion of the Court of Appeals decided and filed on November 9, 1984 (Appendix A), has been reported at 749 F.2d 307. 2 JURISDICTION Jurisdiction of this Court to review the decision of the United States Court of Appeals for the Sixth Circuit is founded upon 28 U.S.C. § 1254(1). The opinion of the Court of Appeals (Appendix A), was decided and filed on November 9, 1984. A Petition for Rehearing was not filed. CONSTITUTIONAL AND STATUTORY PROVISIONS U.S. Const. amend. IV provides: The right of the people to be secure in their persons, houses, papers, and effects, against un- reasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirma- tion, and particularly describing the place to be searched, and the persons or things to be seized. Subsection 114(a) of the Clean Air Act, 42 U.S.C. § 7414(a), provides: Authority of Administrator or authorized representative For the purpose (i) of developing or assisting in the development of any implementation plan under section 7410 or section 7411(d) of this title, any standard of performance under section 7411 of this title, or any emission standard under section 7412 of this title, (ii) of determining whether any person is in violation of any such standard or any requirement of such a plan, or (iii) carrying out any provision of this chapter (except a provision of subchapter II of this chap- 3 ter with respect to a manufacturer of new motor vehicles or new motor vehicle engines) — (1) The Administrator may require any person who owns or operates any emission source or who is subject to any requirement of this chapter (other than a manufacturer subject to the provisions of section 7525(c) or 7542 of this title) with respect to a provision of sub- chapter II of this chapter to (A) establish and maintain such records, (B)r.1ke such reports, (C) install, use, an. maintain such monitoring equipment or methods, (D) sam- ple such emissions (in accordance with such methods, at such locations, at such intervals, and in such manner as the Administrator shall prescribe), and (E) provide such other information as he may reasonably require; and (2) the Administrator or his authorized repre- sentative, upon presentation of his creden- tials — (A) shall have a right of entry to, upon, or through any premises of such person or in which any records required to be maintained under paragraph (1) of this section are located, and (B) may at reasonable times have access to and copy any records, inspect any moni- toring equipment or method required under paragraph (1), and sample any emissions which such person is re- quired to sample under paragraph (1). Subsection 114(c) of the Clean Air Act, 42 U.S.C. § 7414(c), provides: 4 Availability of records, reports, and information to public; disclosure of trade secrets Any records, reports or information obtained under subsection (a) of this section shall be avail- able to the public, except that upon a showing satisfactory to the Administrator by that person that records, reports, or information, or particular part thereof, (other than emission data) to which the Administrator has access under this section if made public, would divulge methods or pro- cesses entitled to protection as trade secrets of such person, the Administrator shall consider such record, report, or information or particular portion thereof confidential in accordance with the purposes of section 1905 of Title 18, except that such record, report, or information may be disclosed to other officers, employees, or author- ized representatives of the United States con- cerned with carrying out this chapter or when relevant in any proceeding under this chapter. STATEMENT OF THE CASE The genesis of this case was EPA’s surreptitious acquisition ‘of aerial reconnaissance photographs of Dow’s entire 2,000 acre fenced and secured Midland, Michigan, manufacturing facility for use as evidence in a Clean Air Act enforcement action concerning emis- sions from Dow’s two power houses. For reasons of worker safety, economics, maintenance and industry custom, many of the process areas within the Dow Mid- land facility are open-air plants. After learning of the flyover from the EPA contractor, Dow brought this action under 28 U.S.C. § 1331* to preserve its privacy * Jurisdiction was also based on 28 U.S.C. §§ 1337, 1361, 2201, 2202 and 5 U.S.C. § 701. 5 interests and to protect the internal details, confidential business information and trade secrets of its cpen-air operations from public disclosure through the Freedom of Information Act (5 U.S.C. 552) or any other mechanism. Dow has been manufacturing chemicals at its Midland facility since the 1890’s. The 3.25 million dollar (1977 dollars) security system for the 2,000 acre manufacturing facility is described in the District Court opinion [536 F. Supp. 1355, 1364-1365] (Appendix B, pp. B-19-21). That system ranges from an eight (8) foot high perimeter fence and a twenty-four (24) hour security force of at least twenty-five (25) people, to motion detectors at strategic locations within the facility. Dow’s security measures to protect against aerial photography, which include explicit direction to the Dow security department to watch for sus- picious aircraft (multiple passes) and follow-up was des- cribed to the Court of Appeals (Jt. Appen., Ct. App., 291- 306). The Court, however, found that Dow takes no pre- cautions against aerial observation (Appendix A, p. A-8). Dow welcomed the EPA into Dow’s secured Midland facility for a two (2) to three (3) hour inspection on September 9, 1977. During the visit, which was part of EPA’s ongoing investigation of emissions from Dow’s two power houses, EPA was denied nothing it requested to see. After the visit, Dow provided schematic drawings of the power houses to EPA per its request. On December 2, 1977, EPA contacted Dow and requested a second, repetitive on-site inspection — but this time with a camera. Dow refused the repetitive in- spection and the taking of photographs. The possibility of EPA’s getting a warrant was discussed. Without further communication to Dow, on February 7, 1978, EPA caused the flyover of Dow’s entire Midland facility and the taking of high resolution, vivid color aerial photographs with a precision, floor-mounted, cer- 6 tified mapping camera. In six (6) passes over the plant and approximately seventy-five (75) photographs, EPA captured not only Dow’s two thousand (2,000) acre fenced manufacturing area, but also Dow’s research and corporate office areas, the Dow Corning Company facil- ity, and nearly all of the city of Midland. Items and equipment as small as one-half ('2) inch in diameter are discernable from the original (unenlarged) contact prints using simple, hand-held magnification. Many of these minute, but observable items are located in interior regions of the plant which are surrounded by buildings and other structures which make observation from any- where but directly above, a near physical impossibility. EPA ordered the aerial reconnaissance photographs of the Dow facility for use as direct evidence in a Clean Air Act enforcement action against Dow relating to the power house emissions. None of the photographs depic- ted power house emissions. Despite the District Court’s finding that items and equipment, which were both inside the fence and neither visible from the ground nor from the air with the naked eye, were depicted in astonishing detail, the Court of Appeals did not recognize the critical distinc- tion between mere (unaided) aerial observation and detailed aerial photography. The unaided human eye and mind cannot perceive or capture for later study the complex web of pipes, vessels and equipment of one plant, much less many plants on 2,000 acres. The aerial photographs at issue did. Dow recognizes that planes fly over or near its plant. But, there is no support in fact or in the record for the Court of Appeals’ finding that the Midland plant is on a take-off and landing pattern for an airport (Appendix A, pp. A-8, 9). 7 The District Court granted Dow’s Motion for Partial Summary Judgment and found that EPA’s actions of cap- turing the entire facility in vivid detail (to the point of discerning items '2 inch in size) after consent for an inspection had been refused and without judicial au- thorization was a violation of Dow’s reasonable expecta- tion of privacy and an unreasonable search in violation of the Fourth Amendment. The District Court also found that aerial photography is outside of EPA’s inspection authority since the practice of aerial photography cannot comply with the plain language of Section 114(a)(2) of the Clean Air Act, which authorizes EPA to present credentials then enter to, upon or through a site to inspect records, check monitoring equipment, or take samples. On November 9, 1984, the Court of Appeals reversed in toto the District Court’s opinion. Despite the fact that EPA admitted its activity was a search, the Court of Appeals found that there was no search. The Court of Appeals held that even though Dow had a privacy in- terest to be free from ground level intrusion, Dow had no reasonable expectation to be free from the aerial spec- tator. The Court also held that “[a]lthough the [Clean Air Act] does not expressly authorize enhanced aerial observation, the language of Section 114 clearly does not foreclose this technique.” (Appendix A, p. A-14). No petition for rehearing was filed. REASONS FOR GRANTING THE WRIT This case should be granted certiorari because: a) this Court's existing Opinions have not been followed; b) the immediate cost to Dow and many others similarly situ- ated to attempt to protect their privacy is extremely high and there is little chance, at any cost, of obtaining 8 continuing protection as intrusive technology increases; and c) nonparticularized and general searches by means of aerial photography are frequently occurring and will continue indefinitely without review, judicial oversight, or legislative authority/safeguards since the searches are carried out in a wholly surreptitious manner and hence will not be challenged. The Court of Appeals’ decision is inconsistent with accepted precedents of this Court, common sense, and public policy. The decision poses a tremendous eco- nomic problem to the chemical industry. If complex manufacturing facilities are deemed to be open fields in which the owners have no reasonable expectation of privacy with respect to visually enhanced intrusions, then companies such as Dow cannot maintain that their technology discernible through such visually enhanced means has been maintained secret. Making reasonable efforts to maintain the secrecy of a trade secret is a condition precedent to alleging that information or tech- nology in fact constitutes a protectable trade secret. Kewanee Oil Company v. Bicron Corporation, 416 U.S. 470, 476 (1974). The decision cracks open the door to legaliz- ing industrial espionage. The Court of Appeals’ decision wiil soon engender serious economic (privacy protection cost) and public policy (privacy loss) problems and cause citizens to engage in non-productive activity, such as attempting to cover all or a portion of huge outdoor production pro- cesses despite the common sense factors of worker safety, plant maintenance and unit cost dictating against such action. All to prevent government agents from doing what they ought not do in the first place. 9 THE DECISION IS INCONSISTENT WITH THIS COURT’S OPINIONS IN OLIVER v. UNITED STATES, 80 L.Ed.2d 214 (1984); MARSHALL v. BARLOW’S INC., 436 U.S. 307 (1978); AIR POLLUTION VARIANCE BOARD v. WESTERN AL- FALFA CORPORATION, 416 U.S. 861 (1974); AND KATZ v. UNITED STATES, 389 U.S. 347 (1967) __ It is axiomatic that commercial and industrial estab- lishments have a reasonable expectation of privacy and are entitled to Fourth Amendment protection in their non-public areas. Marshall v. Barlow's Inc., 436 U.S. 307 (1978); Katz v. United States, 389 U.S. 347 (1967); and Oliver v. United States, _. U.S. —_, 80 L.Ed.2d 214 (1984). The Court of Appeals’ opinion is a radical departure from those cases. The Court of Appeals did find that Dow has an expec- tation of privacy at ground level: Here Dow had an actual expectation of privacy in certain parts of its plant, privacy which included the freedom from certain kinds of intrusion. Dow took great pains to be free from ground level intrusion by building a perimeter security fence and employing security guards. 536 F. Supp. at 1364-65. Hence, Dow had a kind of actual privacy expectation in these parts of its plant, a privacy interest to be free from ground level intrusions from the street. (Appendix A, p. A-8). Despite its finding of a reasonable expectation of privacy at ground level, the Court of Appeals aban- doned consistency and common sense and found that Dow had no reasonable expectation of privacy from the air. The Fourth Amendment is thus eviscerated as far as open-air industry is concerned. To reach this remarkable conclusion, the Court ignored the distinction between 10 mere aerial observation and detailed aerial photography, held that EPA’s admitted search was not a search at all, held that Dow’s security measures to protect against aerial photography were nonexistent, found that the Dow facility was on an airport flight pattern despite no support in fact or in the record, and held the secured, developed industrial complex to be an open field. A. Detailed Aerial Photography Versus Mere Aerial Observation 4 The Court of Appeals ignored the critical distinction between mere aerial observation and detailed aerial pho- tography. Mere aerial observation (naked-eye) is akin to a government agent watching a house from a public park, or an EPA smoke reader observing a plume from a public right-of-way. Air Pollution Variance Board v. Western Alfalfa, 416 U.S. 861 (1974). Sophisticated aerial photography, which perceives and captures detail which is inaccessible to the unaided human eye or mind, is analogous to using a telescope or telephoto lens to peer into a structure to a degree where the details of human activity are visible. Cf. United States v. Kim, 415 F. Supp. 1252 (D.Ha. 1976) [government use of telescope enabling agents to determine reading material of suspect through an apartment window is an unreasonable search], and United States v. Taborda, 635 F.2d 131 (2nd Cir. 1980) [enhanced viewing through a window into interior of a home with a high-powered telescope unlawful]. As a public policy and common sense matter, the loca- tion of the “window”, that is, to the street or to the sky, should not matter. Once the human relations that create the need for privacy are established, and the reasonable expectation of privacy is recognized, the reasonableness of the search is judged by the government's actions. 11 The EPA aerial reconnaissance photographs taken by a floor-mounted certified mapping camera captured Dow’s entire Midland facility (and most of Midland) in such vivid detail as to defy the label of mere aerial observation. Those pictures, which depict the inner workings of the open-air manufacturing plants within the fenced and secured Midland facility, are the product of extremely intrusive, aided and constitutionally offen- sive scrutiny. The photographs are the equivalent of technical process drawings and blueprints — the very heart of Dow’s business. EPA searched the interior regions of the Dow facility — areas where the public has no right to be. EPA “saw” the minute details of interior portions of the plant not merely by means of the aerial perspective, but through the aid of sophisticated visual enhancement and capture via aerial photographs. B. A Secured, Developed Industrial Facility Is Not An Open Field It is contrary to common sense and public policy that an industrial facility can be deemed to be an open field from the sky, but not from the ground. An area is either an open field or it is not. It cannot logically be both. Having Fourth Amendment rights at ground level is a meaningless mockery if a more intrusive, non-particular- ized, sucreptitious search method is available without restriction upon government agents. In its Opinion, the Court of Appeals references Dow’s buildings and the spaces between those buildings (Appendix A, pp. A-4, 6, 8-13). The Court overlooks the complex mass of pipes, vessels and equipment which comprise Dow’s outdoor manufacturing areas, the detail of which Dow is trying to protect, and which are neither buildings nor open spaces between buildings. Those multi-million dollar outdoor plants are the basis of 12 Dow’s business, its competitive edge, and the fruits of its inventors and engineers. They are protected by Dow’s multi-million dollar security system and our legal system. Until the Court of Appeals’ decision, a secured and developed industrial facility had never been held to be an open field. The District Court specifically rejected the applicability of the open fields exception to this case. 536 F. Supp. at 1358, n.5 (Appendix B, ¢. B-6). Since Hester v. United States, 265 U.S. 57 (1924), the open fields doctrine has been generally applied to rural, agricultural land. Some courts have interpreted “field” well beyond its literal meaning to include wooded areas, deserts, _ vacant lots in cities, and open beaches, but never a developed, secured industrial complex. See, I.W. LaFave, Search and Seizure § 2.4 at 332 (1978). In those cases the land is usually “developed” only in an agricul- tural sense. The security and expectation of privacy question usually revolves around agricultural-type fen- cing and posting. In Oliver v. United States, supra, this Court specifically included “offices and commercial buildings” and “an office or commercial structure” within the protection of the Fourth Amendment, as opposed to “open fields.” Id., p. 224, and p. 224 n.8. The Sixth Circuit opinion misapprehends and misapplies the open fields doctrine of Hester as reaffirmed in Oliver, in derogation of Peti- tioner’s Fourth Amendment rights. C. The Open Fields Doctrine Has Limited, If Any, Application To Cases Where Sophisticated, Intru- sive Surveillance Devices Are Employed To Seek Evidence Without Consent Or Judicial Authority The open fields doctrine must be limited both to the nature of the site inspected and to the unaided or un- 13 enhanced viewing application of Hester and Oliver. As Justice Brandeis cautioned in his dissent in Olmstead v. United States, 277 U.S. 438 (1928), and as the Court accepted in Katz, the Fourth Amendment must be capable of wider application than the mischief which gave it birth. Once it is decided that society recognizes a reasonable expectation of privacy in a commercial establishment, Marshall v. Barlow's Inc., supra, then that protection ought not depend on the intrusive means selected by the government. Enforcement officials can observe (unaided) the perimeter or exterior or plainly visible aspects of a home, factory or apartment as much as they want. Air Pollution Variance Board v. Western Alfalfa Corp., supra; Marshall v. Barlow's Inc., supra. In fact, the EPA deployed a smoke reader to the Dow facility after the September 1977 inspection and before the February 1978 flyover (Jt. Appen., Ct. App., 91). However, when the government uses observation or detection aids to intrude in minute detail into the interior areas of a protected place, that action has been held to be unconstitutional. United States v. Taborda, supra, 635 F.2d at 137; United States v. Kim, supra. The use of sophisticated photographic equipment in this case is comparable to the wire-tap in Katz. The expectation of privacy only has to be reasonabie, not total. The law protects the reasonable expectation of privacy, not the perfect security system. The perfect security system has no need for protection. If achieve- ment rather than expectation of privacy were the only thing protected by the Fourth Amendment, then that Amendment would be a nullity. Dow has thirty-seven (37) manufacturing locations in nineteen (19) states. Those locations encompass about two hundred and ten (210) separate manufacturing units, most of which are open air plants. The one representa- 14 tive plant discussed in this case covers thirty (30) acres, and although deemed not practical by the plant manager/ engineer, would have cost at least $15,000,000 to roof in 1978. See Appendix F, excerpt of J. Wait’s 5/10/78 Depos- ition, pp. 13-14 (F-1-F-2), for a brief summary of atten- dant practical problems. The current cost of protecting all, or a part of, two hundred and ten (210) plants would be astronomical and unreasonable in view of Dow’s existing multi-million dollar security system. As the Court in Katz v. United States, supra, 389 U.S. at 351, recognized: “What a person knowingly exposed to the public, even in his own home or office, is not a subject of Fourth Amendment protection. [Cite omitted. ] But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally pro- tected” (emphasis added). Il. SECTION 114(a) OF THE CLEAN AIR ACT DOES NOT AUTHORIZE, EITHER EXPLICITLY OR BY LACK OF PRO- HIBITION, THE USE OF AERIAL PHOTOGRAPHY AS AN INVESTIGATION TOOL The Court of Appeals agrees that Section 114 of the Clean Air Act does not expressly authorize enhanced aerial observation (Appendix A, p. A-14). However, some misplaced analogies are used to hold that the language of Section 114 does not foreclose the technique. First cited are data gathering methods which are distinguish- able since they do not entail observing on-site details of an industrial facility. Next is a comparison with “other law enforcement officers.” Even if the EPA is deemed to be a law enforce- ment agency rather than an administrative agency, law enforcement agencies are bound by the Constitution and 15 statutes which authorize and limit their activities. For example, the Omnibus Crime Conirol And Safe Streets Act defines the “why” and the “when” of warrants for wiretaps. 18 U.S.C. § 2510 et seq. Other administrative agencies, such as OSHA, have regulations that some- what define and limit the agency’s statutory inspection authority. 29 C.F.R. § 1903 et seq. EPA has no compar- able regulations guiding the discretion of its inspectors. The Court of Appeals’ analogy to military inves- tigators is especially inappropriate. Not only does the military operate under a different system of justice, but it is expressly prohibited from aiding in civilian law enforcement. 18 U.S.C. § 1385. Also, unlike the EPA, the military generally keeps its files from public scrutiny. In balancing citizens’ right to privacy and the EPA’s investigation and enforcement needs, detailed aerial photography is clearly a loser. There is absolutely no particularity attendant to aerial photography. The camera is switched on and the “run” is made, capturing every- thing around the point of interest. Many people's pri- vacy in addition to Dow’s was invaded in this case. More economic, lawful and reliable alternatives exist. Smoke-readers are used by the EPA. Under Section 114 (a)(1) the Agency has the authority to request a wealth of information from a site owner or operator. Although costly to the Agency to obtain, the aerial photographs in this case showed no plume. The method is a hit-or-miss, unreliable evidentiary tool. A. The Decision Is Inconsistent With Congressional Intent As Shown By The Plain Meaning Of The Statutory Language By statute, the EPA must present credentials, then enter fo, upon or through the property for the purpose of checking records, monitoring equipment or sampling emissions. 16 Section 114(a)(2) [42 U.S.C. § 7414(a)(2)]. None of the statutory prerequisites or purposes delineated by Con- gress are met by aerial phctography. The Court of Appeals’ decision that the language of Section 114 does not foreclose the use of aerial photo- graphy as an on-site inspection technique is contrary to the plain meaning of the statutory language. Consumer Product Safety Comm. v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). Congress has directly spoken on the precise question at issue; that is, the manner and purposes of a site inspection under the Clean Air Act. Section 114(a)(2). Congress’ unambiguously expressed intent must be given effect. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. —, 81 L.Ed.2d 694, 703 (1984). “If broader powers be desirable, they must be conferred by Congress. They cannot be merely assumed by administrative officers; nor can they be created by the courts in the proper exercise of their judicial functions.” Federal Trade Commission v. Raladam Company, 283 U.S. 643, 649 (1931). B. The Decision Is Inconsistent With The Clean Air Act’s Provision Protecting Trade Secrets And Existing Tort And Criminal Law The Court of Appeals’ decision annihilates the protec- tion for trade secrets offered by the Clean Air Act. Section 114(c) (42 U.S.C. § 7414(c)) and 40 C.F.R. § 2.201 et seq. The Agency’s use of aerial photography abrogates any trade secret protection since the person photo- graphed has no notice of the Agency’s acquisition of the photographs and no opportunity to claim that the pho- tographs contain confidential business information. The decision is also counter to the criminal law on theft of trade secrets and the law of torts on misappro- 17 priation of trade secrets. The Restatement of Torts § 757 (1939) (Appendix C), is the basis of trade secret defini- tion and protection. “The law also protects the holder of a trade secret against disclosure or use when the know- ledge is gained, not by the owner's volition, but by some ‘improper means,’ Restatement of Torts § 757(a), which may include theft, wiretapping, or even aerial reconnaissance.” Kewanee Oil Company v. Bicron Corpora- tion, supra, 416 U.S. at 475-476 (footnote omitted). DuPont v. Christopher, 431 F.2d 1012 (5th Cir. 1970), cert. den. 400 U.S. 1024 (1971), cites the Restatement of Torts § 757 and discusses the tortious taking of trade secrets from a plant under construction by aerial photographs. See also the Uniform Trade Secrets Act (Appendix D), which was approved by the National Conference of Commissioners on Uniform State Laws in 1979, and has been adopted by at least seven (7) states. In part, a trade secret under the Uniform Act (§ 1(4)) must not be readily ascertainable by proper means, and subject to efforts that are reasonable under the circumstances to maintain its secrecy. Although Michigan has not yet adopted the Uniform Trade Secrets Act, Michigan Com- piled Laws (M.C.L.) § 752.772 (Appendix E), makes it a crime to steal a trade secret. Photographs are explicitly recognized in M.C.L. § 752.771 (Appendix E), as one means of stealing trade secrets. It is also illegal to invade one’s privacy by means of surveillance in Michigan. M.C.L. § 750.539a and d (Appendix E). CONCLUSION The wide-spread ramifications of holding that a multi- million dollar developed and secured industrial facility is an open field, and hence outside of the protection of the Fourth Amendment, is especially grim. Industrial privacy 18 and trade secret prutection from sophisticated surveil- lance into open-air operations are lost. The potential for abuse by the government is manifest. Searches will be indiscriminate with no judicial authorization, no re- straint on frequency, and no restraint on the nature or scope of the surveillance. The Court of Appeals, in reversing the District Court, condoned the violation of Petitioner's right to be pro- tected against unreasonable search and seizure as guar- anteed by the Fourth Amendment, and granted the Respondent carte blanche to conduct general searches contrary to existing constitutional restraints and legisla- tive direction. In view of this Court’s decisions in Katz v. United States, Marshall v. Barlow's Inc., Air Pollution Variance Board v. Western Alfalfa, and Oliver v. United States, the Open Fields Doctrine was misapplied and Petitioner's reasonable, constitutionally justified, expectation of pri- vacy was violated. For reasons stated above, this Petition for Writ of Certiorari should be granted. Respectfully submitted, By: JANE M. GOOTEE, Esq. Counsel of Record BERNDT W. SANDT, Esq. The Dow Chemical Company 1111 Washington Street Midland, Michigan 48674 (517) 636-2663 Counsel for Petitioner Dated: February 7, 1985 TABLE OF CONTENTS OF APPENDIX Page APPENDIX A Opinion of the U.S. Court of Appeals eee Tee A-1l APPENDIX B Opinion of the U.S. District Court for the Eastern District of Michigan ...... B-1 APPENDIX C Excerpts from Restatement of Torts § 757 (1939)... C-1 APPENDIX D Uniform Trade Secrets Act .............. D-1 APPENDIX E Relevant Michigan Compiled Laws: Mich. Comp. Laws § 750.539a andd..... E-1-E-2 Mich. Comp. Laws § 752.771 ........... E-2 Mich. Comp. Laws § 751.772 ........... E-3 APPENDIX F Excerpt from Deposition of J. Wait, EE sat 5. wah 06 bo 6-00 a ce fa F-] APPENDIX G Non-Fully Owned Subsidiaries And Affiliates Of The Dow Chemical Company As Of EES CIES 6 60-6 eG e's v8 v0 i o's G-1 ) A-1 APPENDIX TO PETITION FOR CERTIORARI APPENDIX A OPINION (United States Court of Appeals for the Sixth Circuit) (Decided and Filed November 9, 1984) (DOW CHEMICAL COMPANY, Piaintiff-Appellee, v. UNITED STATES OF AMERICA, by and Through ANNE M. BURFORD, ADMINISTRATOR, ENVIRONMENTAL PRO- TECTION AGENCY, Defendant-Appellant — No. 82-1811; ON APPEAL from the United States District Court for the Eastern District of Michigan.) Before: LIVELY, Chief Judge; MERRITT, Circuit Judge; HORTON, District Judge. * MERRITT, Circuit Judge. In investigating Dow Chemical Company for possible violations of the Clean Air Act, the Environmental Pro- tection Agency caused aerial photographs of Dow’s 2000- acre Midland, Michigan plant to be made by a private aerial survey company. Upon learning of the EPA fly- over, Dow sought declaratory and injunctive relief in the United States District Court for the Eastern District of Michigan. On cross-motions for partial summary judg- ment, the District Court held that EPA’s detailed aerial photography was an unreasonable search and seizure under the Fourth Amendment. The District Court per- manently enjoined EPA from conducting future aerial * The Honorable Odell Horton, Judge of the United States District Court for the Western District of Tennessee, sitting by designation. A-2 surveillance and photography of Dow’s Midland, Michigan plant. We hold that the photographic flyover did not consititute a Fourth Amendment search and was not outside the EPA’s statutory authority. I. The EPA began an investigation of Dow’s Midland, Michigan plant during the latter part of 1977. The inves- tigation focused on whether emissions from two coal- burning power houses violated the federal air quality standards established under the Clean Air Act. On September 9, 1977, EPA made an on-site inspec- tion of Dow’s power plants. EPA later requested and received from Dow schematic drawings depicting both the physical layout of the power houses and the boilers and turbines within the power houses. EPA then called Dow to arrange a second inspection. Dow refused to grant entry for this inspection upon hearing that EPA inspectors planned to take photographs of the plant. After being denied entry, EPA informed Dow that it would consider seeking a search warrant to gain access to the plant. EPA did not secure a warrant; instead, on February 6, 1978, EPA contracted with Abrams Aerial Survey Corpo- ration, a private company located in Lansing, Michigan, to take aerial photographs of the Dow plant. EPA’s stated purposes for the aerial surveillance were to create visual documentation of smokestack emissions and to obtain perspectives on the layout of the plant and its relationship to the surrounding geographic area. EPA directed Abrams to take the pictures at particular altitudes and angles; EPA informed Abrams that emis- sions would be more visible in early morning or late afternoon, but left the actual time of the flight to Abrams’ discretion. A-3 Abrams performed the overflight in the afternoon on February 7, 1978. The aircraft made at least six passes over the plant at altitudes of 12,000, 3,000, and 1,200 feet. Abrams used a Wild RC-10 aerial mapping camera to take approximately 75 color photographs of various parts of the Dow plant. Because of Abrams’ sophisti- cated photographic equipment, the photographs contain vivid detail and resolution; some of the photographs can be enlarged to a scale of 1 inch equals 20 feet or greater, without significant loss of detail or resolution. The District Court found that when enlarged in this manner and viewed under magnification, the photographs show equipment, pipes and power lines as small as 4 inch in diameter. EPA did not notify Dow either before or after the flight. When Dow learned of the event a few weeks later, from sources other than EPA, Dow filed this action. The District Court reasoned that once it is established that an administrative search occured, “[t]he question [turned] on whether EPA’s authority under the Clean Air Act meets ‘the sufficiently comprehensive and de- fined’ criteria of Donovan v. Dewey . . . or whether the search violated a reasonable expectation of privacy.” 536 F. Supp. at 1360. The District Court concluded that Marshall v. Barlow's Inc., 436 U.S. 307, 313 (1978), controlled the present case, and that an administrative search requires a warrant, unless the search falls into one of several narrow and well-defined exceptions to the warrant requirement. In the District Court’s view, EPA’s search of Dow’s chemical plant did not fit any of these exceptions. Hence, the Court found that EPA’s aerial photography of Dow’s Midland plant was an unreason- able search proscribed by the Fourth Amendment. A-4 Although the Court “[was] fairly certain that the Fourth Amendment issue raised in this case is properly re- solved on the basis of an administrative inspection analysis alone,” 536 F. Supp. at 1363, nevertheless, it considered it useful to “alternately review the facts (in Dow) under the framework of Katz.” Id. According to the District Court, the search of Dow’s Midland plant was unreasonable because EPA’s aerial photography invaded Dow’s reasonable expectation of privacy in the “interior regions of its plant” — meaning by this phrase, the open, outdoor spaces between plant buildings. The Court concluded that the photographic equipment used by EPA’s agents constituted “enhanced viewing” that invaded Dow’s reasonable expectation of privacy in these outdoor regions. Additionally, the search was unreasonable because EPA’s needs in preventing pollu- tion, though legitimate, were outweighed by Dow’s reasonable expectation of privacy. Lastly, the District Court held that the Clean Air Act did not authorize EPA to institute aerial surveillance of chemical plants. Hence, by conducting such surveil- lance, EPA exceeded its statutory authority under the Act. Therefore, two questions are presented by this appeal. First, we must decide the constitutional issue of whether there was an unreasonable search under the Fourth Amendment. Second, did EPA exceed its statutory authority under the Clean Air act by conducting the aerial photography? Il. The Fourth Amendment provides for “people to be secure in their persons, houses, papers and effects against unreasonable searches . . . and [that] no warrant shall issue but upon probable cause . . ..” U.S. Const. A-5 amend. IV. The U.S. Supreme Court held nearly twenty years ago that these protections apply, at least in part, when a governmental agency conducts an administrative search of a commercial facility. Camara v. Municipal Court, 387 U.S. 523 (1967); See v. City of Seattle, 387 U.S. 541 (1967). More recently, in Marshall v. Barlow's Inc., 436 U.S. 307 (1978), the Court clarified the law con- cerning administrative searches and held that when government action constitutes a Fourth Amendment “search,” the agency must get an administrative warrant, or, subject to certain exceptions, the search will be deemed unreasonable.’ If the government action in this case — EPA’s aerial photography of Dow Chemi- cal’s Midland, Michigan plant — constitutes a Fourth Amendment “search,” then Barlow’s controls, and EPA’s warrantless search violated Dow’s Fourth Amendment rights. If, on the other hand, the aerial photography was not a search, then EPA’s aerial observation did not violate the Fourth Amendment. The question before this court then is whether EPA’s aerial photography was sufficiently intrusive to constitute a “search” triggering the warrant clause of the Fourth Amendment. ' Exceptions to the Barlow's administrative warrant requirement have been made in industries like the alcoholic beverage industry, which has long been “subject to close supervision and inspection.” Colonnade Corp. v. United States, 397 U.S. 72, 77 (1970), and the fire- arms industry, which has also been subject to pervasive and comprehensive government regulation. United States v. Biswell,406 U.S. 311 (1972). Implicit in these exceptions to the warrant require- ment is the notion of implied consent. Another exception has been carved out when a statute, by explicitly requiring a warrantless search, “establishe[d] a predictable and guided federal regulatory presence.” Donovan v Dewey, 452 U.S. 594, 604 (1981) (Supreme Court upholds constitutionality of section 103(a) of the Mine Safety and Health Act requiring that mine safety inspectors make warrani- less searches). Inherent in this exception is a test that balances the strength of the federal regulatory interest, on the one hand, with the reasonable expectation of privacy of the commercial entity on the other. The government has not argued for the application of any of these exceptions to this case. A-6 The issue of whether there was a search is a threshold requirement of Fourth Amendment analysis. To be enti- tled to Fourth Amendment protection, it is first neces- sary to determine whether there was a “search,” a term of art with special constitutional significance. Tradition- ally, in defining what constituted a search, the Supreme Court interpreted the Fourth Amendment as primarily protective of property rights; a trespass was a necessary condition for determining whether a search had occur- red. See Olmstead v. United States, 277 U.S. 438 (1928) The Supreme Court modified this property based con- cept in Katz v. United States, 389 U.S. 347 (1967). Katz defines what constitutes a search with a two-prong test: first, the person claiming Fourth Amendment protection must prove that he or she had an actual, or a subjective, expectation of privacy in the area intruded upon by the government. Second, that subjective expectation must be _ one that society would deem reasonable. The Katz doctrine therefore protects an individual's actual privacy interest when that interest is reasonable. In the instant case, we must determine whether the government's aerial photography of Dow’s Midland plant intruded upon Dow’s actual and reasonable expectation of privacy in the spaces between its buildings, or in the words of the District Court, “in the interior regions of its plant.” Before applying the Katz analysis to this case, it is important to note that the word “reasonable” is used in Fourth Amendment analysis in two different ways, and that these two ways must be separated in order to avoid confusion. A “reasonable search” is different from a “reasonable expectation of privacy.” The former refers to whether “probable cause” existed or whether the officers exceeded the limits of the warrant. The latter determines whether there was a Fourth Amendment “search” at all and focuses on whether the human relationships that A-7 normally exist at the place inspected are based on inti- macy, confidentiality, trust or solitude and hence give rise to a “reasonable” expectation of privacy. The District Court may have confused or conflated these two when it stated that it “[was] fairly certain that the Fourth Amendment issue raised in this case is properly re- solved on the basis of an administrative inspection analysis alor -” without reference to an analysis under Katz. 536 F. Supp. at 1363. But in order for an admini- strative inspection to trigger the Fourth Amendment, there must be a search in the constitutional sense of that term. Hence, Katz must be discussed for Katz defines in terms of privacy interests what a search is for Fourth Amendment purposes. III. Establishing an actual expectation of privacy requires two elements. First, it must be established what a person had an expectation of privacy in, for example, a home, office, phone booth or airplane. Second, it must be established what the person wanted to protect his privacy from, for example, non-family members, non- _ employees of a firm, strangers passing by on the street or flying overhead in airplanes. The New York Stock Exchange, a place which illustrates the two types of expectations, permits only members and employees on the floor but welcomes the public observer from above. A useful test of whether a person has a privacy interest in a certain place is whether there are any “objective manifestations of any claimed privacy expecta- tions.” Dow Chemical Co. v. United States, 536 F. Supp. 1355, 1364 (E.D. Mich. 1982). See also United States v. Taborda, 635 F.2d 131, 137 (2nd Cir. 1980) (looking into a dwelling window with telescopic lenses invades Fourth Amendment privacy inw rest). The objective manifestations A-8 of a privacy expectation must be in some place and an expectation to be free from a certain kind of intrusion. Here Dow had an actual expectation of privacy in certain parts of its plant, privacy which included the freedom from certain kinds of intrusion. Dow took great pains to be free from ground level intrusion by building a perimeter security fence and employing security guards. 536 F. Supp. at 1364-65. Hence, Dow had a kind of actual privacy expectation in these parts of its plant, a privacy interest to be free from ground level intrusions from the street. But Dow did not take any precautions against aerial intrusions, even though the plant was near an airport and within the pattern of planes landing and taking off. If elaborate and expensive measures for ground security show that Dow has an actual expecta- tion of privacy in ground security, as Dow argues, then taking no measure for aerial security should say some- thing about its actual privacy expectation in being free from aerial observation. Certainly, no one could reason- ably expect Dow to build a dome over its entire Midland plant in order to establish its expectation of privacy, free from aerial intruders. But it does not follow that Dow could not take any measures at all to shield outdoor spaces from aerial observers. Dow could have shielded the critical spaces in between its buildings, if it had an actual expectation of privacy from aerial observation of these regions. A comparison of the precautions a person does take with the precautions he might take, when such precautions are feasible and not unreasonably expensive, is a factor to be considered in determining his privacy expectation from the kind of intruder about whom he is complaining. Dow has described no trade secret or confidential relationship outside its building walls that the observer from above would compromise, and Dow’s objective behavior does not indicate an expectation to be free from the aerial spectator. A-9 IV. We are not convinced that Dow had an actual expecta- tion of privacy from the air, but even if Dow did have such an expectation the expectation was unreasonable. On this question, the District Court erred in dismissing defendant's “open field” argument. Dow’s Midland plant is 2000 acres, located in an urban area near an airport and within the pattern of planes landing and taking off. Both the size and location of an entity must be taken into account in order to determine whether it is objec- tively reasonable to expect privacy in all or part of that entity. Dow’s size and location militate against regarding an expectation of privacy free from aerial observation as reasonable. When the entity observed is a multi-building complex, and the area observed is the outside of these buildings and the spaces in between the buildings, and when the complex is near an airport and within the pattern of planes landing and taking off, it is difficult to see how a reasonable person would have privacy expec- tations in the outside of the buildings and the spaces between the buildings. Although the analogy is not perfect, Dow’s Midland plant is much more like “open fields” than it is a home or office. When the area observed is like an open field, an inspection which would otherwise be a search be- comes a non-search for Fourth Amendment purposes. Hester v. United States, 265 U.S. 57 (1924); Air Pollution Variance Board v. Western Alfalfa Corp., 416 U.S. 861 (1974). The Supreme Court recently reaffirmed the “open fields” doctrine and interpreted it in light of Katz. Oliver v. United States, 104 S.Ct. 1735 (1984). The Court held that individuals cannot demand privacy rights for activities conducted in what are essentially open fields. The context or conditions for privacy are not present there, and such demands are not reasonable. Id. In A-10 affirming this Court in Oliver, the Supreme Court made reference to and quoted with apparent approval from a passage in our opinion, the full text of which reads as follows: The Fourth Amendment and other laws protecting privacy create the conditions and the context for many relationships based on intimacy, friendship and trust. These laws establish an environment in which individual emotional and mental pro- cesses can develop freely without surveillance or interference. The legal principles that protect privacy, therefore, do not protect the desert island, the mountain top or the open field — even one that the owner posted with a “no tres- pass” sign. The human relations that create the need for privacy ‘do not ordinarily take place in these settings. The only significant interest at stake here — a property owner's interest in ex- cluding others from his possessions — is not sufficient alone to bring into play legal principles protecting privacy. United States v. Oliver, 686 F.2d 356, 360 (6th Cir. 1982) (en banc). Our reasoning there leads to the conclusion here that the interior spaces outside Dow’s buildings are not places in which one may have a reasonable privacy expectation. It is true that certain outside areas associated with a home or dwelling have traditionally received Fourth Amendment protection as falling within the “curtilage.” Thus, the Fourth Amendment has been held to apply to the search of a smokehouse located within a fenced yard, see Robertson v. United States, 165 F.2d 752 (6th Cir. 1948), and to a honeysuckle patch situated within a fence 150 feet from a home. See United States v. Van Dyke, 643 F.2d 992 (4th Cir. 1981). A-11 It can be argued here that the areas in between Dow’s buildings formed a sort of industrial curtilage, and there- fore should receive Fourth Amendment protection. However, to apply the curtilage doctrine to this 2000- acre manufacturing complex would be a distortion of the principles on which the doctrine rests. The doctrine of curtilage is grounded in the peculiarly strong concepts of intimacy, personal autonomy and privacy associated with the home. The home is fundamentally a sanctuary, where personal concepts of self and family are forged, where relationships are nurtured and where people nor- mally feel free to express themselves in intimate ways. The potent individual privacy interests that inhere in living within a home expand into the areas that enclose the home as well. The backyard and area immediately surrounding the home are really extensions of the dwelling itself. This is not true simply in a mechanical sense because the areas are geographically proximate. It is true because people have both actual and reasonable expectations that many of the private experiences of home life often occur outside the house. Personal inter- actions, daily routines and intimate relationships revolve around the entire home place. There are compelling reasons, then, for applying Fourth Amendment protec- tion to the entire dwelling area. Dow has legitimate privacy interests in many aspects of its corporate life. Dow has strong expectations of privacy within its offices and inside its enclosed facil- ities. These interests are not so powerful that they auto- matically apply to the exterior of Dow’s plant. In the home setting, Fourth Amendment protection applies to adjoining areas because of the unique privacy interests associated with dwelling places, and because of our traditional understanding that home life is not confined A-12 the physical structure of the house. The areas — between industrial buildings do not normally share the same uses. Although Dow has a reasonabie expectation of privacy in the interior of its plant buildings and offices, this is not to say that such a privacy interest has equal force to that which inheres in a dwelling. Indeed, the Court's ruling in Marshall v. Barlow's Inc., supra, that a lesser showing of probable cause is required to secure an administrative warrant, is evidence of this difference. The Court has noted that a commercial owner's privacy interest “differs significantly from the sancitity accorded an individual’s home.” Donovan v. Dewey, 452 U.S. 594, 598-99 (1981). Dow’s reasonable privacy interest in the interior of its buildings does not extend into the areas between the buildings because, unlike the home setting, there is no compelling reason in terms of privacy to justify this extension. After a diligent search we have found no cases applying the curtilage concept to the commercial setting. Although there may be some places for research and development or employee interaction which justify an extension of the concept, we hold that the common law curtilage doctrine does not apply to this particular manufacturing setting. V. Finally, much is made of the government’s use of sophisticated photographic equipment from the air. The District Court found that such sophisticated technology violated Dow’s Fourth Amendment rights because the extreme detail of the photographs enabled a viewer to observe “more than the human eye could ever see.” 536 F. Supp. at 1367. A-13 The government conducts a search when it uses “en- hanced viewing of the interior of a home,” because it impairs “a legitimate expectation of privacy and encoun- ters the Fourth Amendment’s warrant requirement.” United States v. Taborda, 635 F.2d 131, 139 (2nd Cir. 1980). Had the EPA’s aerial photography of Dow’s plant intruded inside the plant offices, file rooms and eating areas, it would be proscribed by Taborda.* As we have already discussed, it is unpersuasive, however, to com- pare the spaces in between Dow’s buildings as anything like the interior of a home or its curtilage. The « *1tdoor spaces of a chemical plant are simply a necessary reature of a plant, a complex of buildings, having several dispa- rate buildings. Dow has not described what privacy inter- ests contained in these spaces make enhanced viewing violative of the Fourth Amendment. Vi. The District Court also erred in upholding Dow’s contention that EPA’s use of enhanced aerial observation as an inspection technique exceeded the agency’s au- thority under the Clean Air Act. The District Court held that section 114 of the Clean Air Act, 42 U.S.C. § 7414, does not authorize aerial photography as an inves- tigatory tool “even by reasonable implication.” 536 F. Supp. at 1374. This finding was based on the court's statutory interpretation of section 114(a)(2)(A), which 2 Our reasoning in this regard is similar to that of the Ninth Circuit in United States v. Allen, 633 F.2d 1282 (9th Cir. 1980). In Allen, aerial agg tie were taken of the exterior of ranch build- ings and grounds. When enlarged, these photographs showed details of drug smuggling operations. The Ninth Circuit held that the warrantless helicopter surveillance of the coastal ranch was not a search under the Fourth Amendment. The Court observed that the case did not present PP cages expectations associated with the inter- iors of residences or structures.” 633 F.2d at 1289. A-14 provides that “upon presentation of credentials,” the EPA has a “right of entry to, upon, or through any premises.” 42 U.S.C. § 7414(a)(2)(A). In holding that enhanced aerial surveillance was not impliedly author- ized by section 114, the court found that the language of the statute pointed to the conclusion that Congress meant only to authorize “land-based examination of emission sources.” 536 F.Supp. at 1374. Although the statute does not expressly authorize enhanced aerial observation, the language of section 114 clearly does not foreclose this technique. Congress has delegated general investigative authority to EPA under the Clear Air Act. EPA investigators may go to the library to research a company, talk to its employees and former employees and observe the plant from different vantage points without making an “entry” on the pre- mises which requires notification. Other law enforce- ment officers who use aerial observation in their work, e.g., drug enforcement and traffic officers, coast guard and property tax mapping officials, do not have to announce their presence in advance or present creden- tials. Like these officers, EPA investigators should be permitted to use aerial photography as a part of their general investigative authority. Congress need not ex- pressly delegate this authority to EPA just as it need not expressly delegate it to the FBI or the DEA or to military investigators. So long as these investigators operate in the public air space and do not intrude into areas protected by the Fourth Amendment, they may use an airplane and a camera without presentation of creden- tials to the owners of property over which they fly. Accordingly, the judgment of the District Court is reversed. Costs are asseessed against appellee. B-1 APPENDIX B MEMORANDUM OPINION AND ORDER (United States District Court — Eastern District of Michigan, Northern Division) (Dated April 19, 1982) (The DOW CHEMICAL COMPANY, Plaintiff, v. UNITED STATES OF AMERICA, By and Through Anne M. GOR- SUCH, Administrator, Environmental Protection Agency, Defendants — Civ. No. 78-10044) JAMES HARVEY, District Judge. I. INTRODUCTION This case involves a constitutional and statutory challenge to the use of warrantless aerial photo- graphy of a chemical manufacturing plant by the Environmental Protection Agency (EPA). The Dow Chemical Company (Dow) asserts that this activity by the EPA constitutes an unreasonable search in violation of the Fourth Amendment, a taking and misappropriation of trade secrets in violation of the Fifth Amendment, and the use of an inspection tool which is outside the scope of EPA’s statutory authority under Sections 113 and 114 of the Clean Air Act, 42 U.S.C. §§ 7413-7414 (1980). Dow seeks a declaratory judgment and injunctive relief. B-2 Il. FACTS The Dow Chemical Company owns and operates a 2000 acre manufacturing plant in Midland, Michigan. In the latter part of 1977 EPA, the governmental agency primarily charged with administering and enforcing the federal pollution laws, was conducting an investigation of Dow to check emissions from the power houses located inside Dow’s facility for possible violations of federal air quality standards. In September of 1977, EPA made an on-site inspection of the power houses at Dow’s plant. After the inspection EPA requested, and later received, schematic drawings of the power houses from Dow. In December of 1977 EPA again contacted Dow and requested a subsequent entry for purposes of inspecting the power houses. Prior to making this request EPA had already begun preparations for a planned enforcement action against Dow.’ EPA informed Dow that as part of the inspection it would be taking photographs of the Dow layout and facility. Dow objected to EPA’s inten- tion to take photographs and therefore denied EPA’s request for entry. In response, EPA suggested to Dow that it would consider seeking a search warrant to gain entrance to the plant. Rather than institute a civil action or seek a search warrant, EPA decided to obtain aerial photographs of Dow’s facility. On February 6, 1978, EPA contracted with Abrams Aerial Survey Corporation (Abrams), a private company located in Lansing, Michigan, to take . A clean air act enforcement action was eventually filed and is presently awry binpagh aby cmarery Stewart A. Newblatt of this District. United v. Dow Chemical Company, No. 80-10011 (ED Mich., filed January 25, 1980). RECT AV ) B-3 aerial photographs of the Dow plant. EPA specifically informed Abrams as to the altitude, location, and direc- tion from which the photographs were to be taken. In the afternoon of February 7, 1978 Abrams flew over Dow’s plant as directed. The aircraft made at least 6 passes over the plant at altitudes of 12,000, 3,000, and 1,200 feet. Abrams used a sophisticated Wild RC-10 aerial mapping camera to take approximately 75 color photographs of various parts of the Dow plant.” The Court has carefully examined all of the photo- graphs and has been struck by their vivid detail and resolution. As amply demonstrated by Dow ata hearing before the Court, some of the photographs taken from directly above the plant at 1,200 feet are capable of enlargement to a scale of 1 inch equals 20 feet or greater, without significant loss of detail or resolution. When enlarged in this manner, and viewed under magnifica- tion, it is possible to discern equipment, pipes, and power lines as small as 2 inch in diameter. Many of these minute, but observable items are located in interior regions of the plant which are surrounded by buildings and other structures which make observation from any- where but directly above, a near physical impossibility.° 2 It is important to an understanding of this case to provide a description of the highly effective equipment used by Abrams. The i used was a twin engine Beechcraft, which Abrams describes as able to “provide omg ta stability, fast mobility and flight endurance required precision photography.” Handbook on Aerial Surveys & Photogrammetry — Abrams ial Survey Corporation. The camera used by Abrams cost in excess of $22,000.00 and is described by the company as the “finest precision aerial camera available.” Id. The camera was mounted to the floor inside the aircraft and was capable of taking several photographs in precise and rapid succes- sion. Id. 3 Throughout its brief, EPA has used the term exterior to describe the areas depicted in the photographs. Dow has implied that these (continued on following page) ILABLE COPY © B-4 Dow was not aware of the EPA flyover either before or during its occurrence. When it subsequently became aware of this event a few weeks later, from sources other than EPA, Dow immediately instituted this action. Il. JURISDICTION AND ISSUES PRESENTED The Court has jurisdiction over the subject matter herein pursuant to 28 U.S.C. § 1331, 5 U.S.C. § 702, and 28 U.S.C. §§ 2201-2202. This action presents 3 central issues for the Court's consideration: I. Whether the EPA flyover and aerial photo- graphy of Dow’s facilities constitutes an un- reasonable search in violation of the Fourth Amendment; II. Whether aerial photography of Dow’s plant by EPA constitutes a taking of property (trade secrets) without due process in violation of the Fifth Amendment; and Ili. Whether EPA exceeded its statutory authority under Sections 113 and 114 of the Clean Air Act in using warrantless aerial photography as an investigatory tool. This matter is presently before the Court on cross mo- tions for summary judgment. Dow seeks summary judg- ment on the Fourth Amendment and statutory issues, and EPA seeks entry of summary judgment on all issues. (continued from preceding page) B-5 This case is appropriate for summary judgment on the Fourth Amendment and Clean Air Act questions, since the material facts relative to these claims are not in dispute, and a decision thereon can be rendered as a matter of law. F.R.Civ.P. 56(c). See Felix v. Young, 536 F.2d 1126, 1130 (CA 6, 1976). As to the Fifth Amend- ment claim, however, and for reasons more fully described later in this opinion, infra, genuine issues of material fact exist which render disposition of that question by summary judgment inappropriate. See Willetts v. Ford Motor Co., 583 F.2d 852, 855 (CA 6, 1978). For the reasons stated below, the Court concludes that the EPA flyover and aerial photography violated Dow’s rights under both the Fourth Amendment and the Clean Air Act. Partial summary judgment on these issues will therefore be entered in favor of Dow and against EPA. IV. DISCUSSION FOURTH AMENDMENT [1] The first clause of the Fourth Amendment to the United States Constitution provides that, “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated .. .” As the very language of this amendment makes clear, the Constitution does not pro- scribe all governmental searches and seizures, only those that are unreasonable. Dow puts forth at least 3 analytical arguments in support of its position that the overhead flight and aerial photography by EPA constituted an unreasonable search: first, under Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), that a warrant- less search is per se unreasonable; second, under Marshall B-6 v. Barlow's Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978) that this was an unreasonable warrantless inspection; and third, under Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), that EPA violated Dow’s reasonable expectation of privacy. The Court will separately address each of these contentions. Before turning to Dow’s first assertion, the Court wishes to point out that the EPA has admitted, both in its briefs and at oral argument, that the flyover consti- tuted both a “quest for evidence”* and a “search” of Dow’s plant. (EPA Brief at 9; Transcript of oral argument at 44).° EPA has also admitted that the search was conducted without first securing a warrant. Id. With these two premises established, the Court need only determine whether the search was unreasonable within the meaning of the Fourth Amendment. A. Per Se Unreasonable [2] Subject only to “a few specifically established and well-delineated exceptions,” warrantless searches have been recognized as per se unreasonable and therefore violative of the Fourth Amendment. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 454-455, 91 S.Ct. 2022, 2031-2032, 29 L.Ed.2d 564 (1971). On the basis of this * EPA was admittedly attempting to gather evidence for a planned enforcement proceeding against Dow. An action was later filed and is still pending. See note 1 supra. 5 Paradoxically, EPA later asserts that the “open fields” exception of Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924) applies to this case, making EPA’s actions a “non-search” and taking it outside the protection of the Fourth Amendment. (EPA Brief at 13-15). The Court, however, rejects the applicability of the “open fields” exception to this case and therefore independently concludes that a search occurred. See Discussion, Section IV(D) infra. B-7 principle, Dow asserts that EPA’s aerial search of its facility, without prior judicial scrutiny or oversight, is per se unreasonable.°® Relying upon Donovan v. Dewey, 452 U.S. 594, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981), EPA responds that warrantless searches of commercial estab- lishments are not per se prohibited by the Fourth Amendment, but are only impermissible if they violate a legitimate expectation of privacy. In the area of administrative inspections, wherein this case “roughly” fits, the Supreme Court appears to have retreated somewhat from the hard and fast conclusion that warrantless searches are per se unreasonable.” In Marshall v. Barlow's Inc., 436 U.S. at 313, 98 S.Ct. at 1820, the Court, in tracing some of its earlier decisions, used the phrase “generally unreasonable” to describe warrantless administrative searches. Later in the same opinion the Court stated that “the reasonableness of a warrantless search ... will depend upon the specific enforcement needs and privacy guarantees of each statute.” Id. at 322, 98 S.Ct. at 1825. In its most recent ® Dow’s position in this regard is not without sound policy considerations to support it. As the Supreme Court stated in Katz, 389 U.S. at 359, 88 S.Ct. at 515: Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures. The government agents here ignored ‘the procedure of antece- dent justification ... that is central to the Fourth Amend- ment,’ a procedure that we hold to be a constitutional precondition of the kind of electronic surveillance involved in this case. See also Marshall v. Barlow's Inc., 436 U.S. at 323, 98 S.Ct. at 1825. This “constitutional pre-condition” is the genesis of this Court's ulti- mate conclusion in this case that at a minimum, EPA should have secured an ex parte warrant before carrying cut the aerial search. See note 20 and accompanying text, infra. ” The Sixth Circuit, however, continues to adhere to the principle that warrantless administrative searches are per se unreasonable. United States v. Blue Diamond Coal Co., 667 F.2d 510 (CA 6, 1981). B-8 decision in this area, the Court in Donovan v. Dewey, 452 U.S. at 599, 101 S.Ct. at 2538, 69 L.Ed.2d at 269-270, an- nounced that: ... the Fourth Amendment protects the interest of the owner of property in being free from unreasonable intrusions onto his property by agents of the government. Inspections of commercial property may be unreasonable if they are not authorized by law or are unnecessary for the furtherance of federal interests. * * * , a warrant may not be constitutionally required when Congress has reasonably deter- mined that warrantless searches are necessary to further a regulatory scheme and the federal regulatory presence is sufficiently comprehensive and defined that the owner of commercial prop- erty cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes. ° On the basis of this authority, the Court agrees with the EPA that, under the facts of this case, the Fourth Amendment inquiry does not end — with a decision adverse to the government — once it is established that a warrantless administrative search occurred. The question must turn on whether EPA’s authority under the Clean Air Act meets the “sufficiently comprehensive 8 This Court's citation of the language above is not to suggest that the Court finds a parallel between the authority of the EPA under the Clean Air Act, 42 U.S.C. § 7401 et seq., and the Depart- ment of Labor under the Federal Mine Safety and Health Act, 30 U.S.C. § 801 et seq.; it does not. The language is quoted only as support for the Court’s determination that a warrantless administra- tive inspection is not per se unreasonable, and that a more sensitive reading of the Fourth Amendment is required in this case. B-9 and defined” criteria of Donovan v. Dewey, supra, or whether the search violated a reasonable expectation of privacy. See United States v. Taborda, 635 F.2d 131, 136 (CA 2, 1980); United States v. DeBacker, 493 F.Supp. 1078, 1081 (WD Mich., 1980). B. Administrative Inspection The question of the reasonabieness of a commercial entity’s expectation of privacy is necessarily intertwined with, and must be considered in the context of, the Supreme Court's decisions in the area of administrative inspections.” Most recent in this relatively short line of authority is Marshall v. Barlow's Inc., supra, and Donovan v. Dewey, supra. Dow asserts that Barlow’s, wherein the Court held that a warrantless administrative inspection under the Occu- pational Safety and Health Act, 29 U.S.C. § 657(a) (1970) (OSHA) violated the Fourth Amendment, controls this case. EPA, on the other hand, maintains that Dewey, which upheld a warrantless administrative search under the Federal Mine Safety and Health Act, § 103(a), 30 U.S.C. § 813(a) (1977) (FMSHA), controls the present facts. For the reasons expressed below, the Court holds that this case is governed by the principles and rationale of Barlow’s. The Fourth Amendment prohibition against unreason- able searches was extended to administrative inspections of private commercial property nearly a decade and a half ago. Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967). The ° As the Court stated in Marshall v. Barlow's Inc., 436 U.S. at 313, 98 S.Ct. at 1820, citing Katz v. United States, supra, “certain industries have such a history of government oversight that no reasonable expectation of privacy could exist. . .” B-10 reason for this extension was found in the basic purpose of the amendment, which is “to safeguard the privacy and security of individuals against arbitrary invasions of government officials.” Camara, 387 U.S. at 528, 87 S.Ct. at 1730. Unlike searches of private homes, however, which generally must be conducted pursuant to a war- rant in order to be reasonable, “legislative schemes authorizing warrantless administrative searches of commercial property do not necessarily violate the Fourth Amendment.” Dewey, 452 U.S. at 598, 101 S.Ct. at 2538, 69 L.Ed.2d at 268. The touchstone of any decision on the legality of a warrantless administrative search is a consideration of the type of business involved, and an analysis of the “pervasiveness and regularity” of the applicable legisla- tive scheme. Dewey, supra, 452 U.S. at 604, 101 S.Ct. at 2541, 69 L.Ed.2d at 273. Barlow's and its progeny, Camara and See, created the general rule that absent consent, a warrant is constitutionaily required before an administra- tive inspection may be conducted. From this general rule, certain narrowly defined exceptions have been carved out. In Colonnade Catering Corp. v. United States, 397 U.S. 72, 73, 90 S.Ct. 774, 775, 25 L.Ed.2d 60 (1970), the Supreme Court recognized that because the alcoholic beverage industry had long been “subject to close super- vision and inspection,” Congress enjoyed “broad power to design such powers of inspection ... as it deems neccessary to meet the evils at hand.” Id. at 76-77, 90 S.Ct. at 776-777. Similarly, in United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972), the Court concluded that the federal statute regulating firearms provided a sufficiently comprehensive and predictable inspection scheme that the warrantless inspections man- dated under the statute did not violate the Fourth Am- endment. Id. at 316, 92 S.Ct. at 1596. Most recently, in Donovan v. Dewey, supra, the Court held that “warrant- B-11 less inspections required by the Mine Safety and Health Act do not offend the Fourth Amendinent. Id. 452 U.S. at 602, 101 S.Ct. at 2539, 69 L.Ed.2d at 271. The Court explained that: ... the Mine Safety and Health Act applies to industrial activity with a notorious history of serious accidents and unhealthful working condi- tions. The Act is specifically tailored to address those concerns, and the regulation of mines it imposes is sufficiently pervasive and defined that the owner of such a facility cannot help but be aware that he ‘will be subject to effective inspec- tion’ . . . First, the Act requires inspection of all mines and specifically defines the frequency of inspection. ... Second, the standards with which a mine operator is required to comply are ali specifically set forth in the Act or in Title 30 of the Code of Federal Regulations. ... Thus, rather than leaving the frequency and purpose of inspections to the unchecked discre- tion of government officers, the Act establishes a predictable and guided federal regulatory pre- sence. Like the gun dealer in Biswell, the oper- ator of a mine ‘is not left to wonder about the purposes of the inspector or the limits of his task.’ ; Id. 452 U.S. at 603, 101 S.Ct. at 2540, 69 L.Ed.2d at 272 (citations omitted). '° ‘© Even prior to the Supreme Court's decision in Dewey, the Sixth Circuit had upheld a similar warrantless inspection of a sand and gravel quarry. Marshall v. Nolichuckey Sand Co. Inc., 606 F.2d 693 (CA 6, 1979), cert. denied, 446 U.S. 908, 100 S.Ct. 1835, 64 L.Ed.2d 261 (1980). B-12 EPA relies heavily on the language of Dewey"', but makes no argument that EPA’s authority to regulate the chemical industry under the Clean Air Act constitutes a sufficiently “predictable and guided federal regulatory presence” as to include it as an exception to the general rule prohibiting warrantless administrative inspections. This is understandable, since it is clear to this Court that no such plausible argument can be made. Unlike the government's control over the alcohol, fire- arms, and mining industries, the chemical industry is not “pervasively regulated” by EPA under the Clean Air Act. EPA’s authority to regulate entities such as Dow is more closely akin to the authority of the Department of Labor under OSHA which the Supreme Court reviewed in Barlow's. The Court described that authority as follows: (OSHA) imposes health and safety standards on all businesses engaged in or affecting interstate commerce that have employees . . . and author- izes representatives of the Secretary to conduct inspections to ensure compliance with the act. . . However, the Act fails to tailor the scope and frequency of such administrative inspections to the particular health and safety concerns posed by the numerous and varied businesses regulated by the statute. Donovan v. Dewey, 452 U.S. at 601, 101 S.Ct. at 2539, 69 L.Ed.2d at 270 (citations omitted). 1! EPA’s reliance on Dewey appears to be for the proposition that the lesser degree of Fourth Amendment protection accorded commercial premises in general, and the federal regulation of the chemical industry in particular, undercuts and thereby diminishes Dow’s reasonable expectation of privacy. This assertion is addressed by the Court later in this opinion. See Discussion, Section IV(C) infra. B-13 As one commentator, himself a former Assistant Re- gional Counsel for the EPA accurately observed: EPA, like OSHA, regulates all kinds of indus- tries. Once again, the test is not whether the industry is regulated, but whether it is pervasively regulated. Although certain environmental stat- utes, the Federal Water Pollution Control Act (FWPCA), for example, are licensing statutes in the very broadest sense, such licensing and regu- lation is distinguishable from that which was present in Colonnade or Biswell. The scope of the FWPCA is much more akin to the kind of regula- tion that exists under the auspices of OSHA. Both OSHA and EPA regulate a broad spectrum of different industries pursuant to legislative mandates. However, those myriad businesses are not necessarily highly regulated industries which may be said by implication to consent to warrant- less inspections. In that sense, Barlow's, Inc.'s finding of the non-applicability of this exception in an OSHA context also applies to EPA. Martin, EPA and Administrative Inspections, 7 Fla.St.L.Rev., 123, 131-132 (1979). The only statutory provision authorizing administra- tive inspections in the Clean Air Act is Section 114, 42 U.S.C. § 7414.'* This provision potentially applies to any number of different industries. By its terms it neither requires or defines the type or frequency of inspections, ner contains standards by which they are to be con- ducied. In fact, on its face, this provision does not 2 Section 114 of the Clean Air Act provides in pertinent part that: (a) For the purpose ... (ii) of determining whether any person is in violation of any such standard or any require- (continued on following page) B-14 appear to allow forced entry without some form of prior judicial oversight.'* The Supreme Court has already recognized this limitation in the Clean Air Act in its Barlow's decision wherein it observed: Some statutes already envision resort to federal- court enforcement when entry is refused, em- ploying specific language in some cases... (an) example is the Clean Air Act, which grants federal district courts jurisdiction “to require compliance” with the Administrator of the Environmental Protection Agency’s attempt to inspect under 42 U.S.C. § 7414, when the Administrator has commenced “a civil action” for injunctive relief or to re- cover a penalty. 436 U.S. at 321 n.18, 98 S.Ct. at 1825 n.18 and accom- panying text. In addition, the legislative history of the Clean Water Act, 33 U.S.C. §§ 1251-1376, also supports the observa- tion that forced entry, or warrantless inspection, is not (continued from preceding page) ment of such a plan, or (iii) carrying out any provision of (2) the Administrator or his authorized representative, upon presentation of his credentials — (A) shall have a right of entry to, upon, or through any premises of such person or in which any records i to be maintained under para- graph (1) of this section are located, and (B) may at reasonable times have access to and copy any records, i any monitoring equipment or method under paragraph (1), and sample any emissions which such person is required to sample under paragraph (1). 13 See note 27 and accompanying text, infra. B-15 contemplated under the Clean Air Act. The Senate Report to the Act states that “As under the Clean Air Act, the Committee expects that authority to enter will be used judiciously and upon any challenge to entry the Committee expects the Administrator to obtain the nec- essary warrant.” S.Rep.No. 92-44, 92d Cong., Ist Sess. 62, reprinted in [1972] U.S.Code Cong. & Ad.News 3668, 3729 (emphasis added). The inescapable conclusion of the foregoing judicial and legislative pronouncements is that the holding and rationale of Barlow’s controls in this case. Therefore, EPA’s warrantless aerial search of Dow’s plant cannot withstand Fourth Amendment scrutiny. The repugnance of this form of warrantless inspection activity was well stated by the Supreme Court in Barlow's, 436 U.S. at 323- 324, 98 S.Ct. at 1825-1826: The authority to make warrantless searches devolves almost unbridled discretion upon execu- tive and administrative officers, particularly those in the field, as to when to search and whom to search. A warrant, by contrast, would provide assurances from a “eutral officer that the inspec- tion is reasonable under the Constitution, is authorized by statute, and is pursuant to an ad- ministrative plan containing a specific neutral criteria. Also, a warrant would then and there advise the owner of the scope and objects of the search, beyond which limits the inspector is not expected to proceed. These are important func- tions for a warrant to perform, functions which underlie the Court’s prior decisions that the Warrant Clause applies to inspections for compliance with regulatory statutes. “ * It is indeed curious that in the present case EPA argues that its warrantless search of Dow was not inconsistent with the Barlow's (continued on following page) B-16 For these reasons, the Court concludes that EPA’s aerial photography of Dow’s facilities, in an admitted quest for evidence, constituted an unreasonable search in viola- tion of the Fourth Amendment. In the typical administrative inspection case the Court’s Fourth Amendment inquiry would halt at this point. This case, however, is not “typical” in any sense of the word. We are not here dealing with an ordinary on-site administrative search, neither are we faced with one of the more common Fourth Amendment challenges. Indeed, the Court’s research suggests that, con- sidering the facts before it, it is venturing into unchar- tered constitutional territory. (continued from preceding page) decision, when a published EPA memorandum suggests that as a matter of agency policy, its position is otherwise: Barlow's clearly establishes that the owner does have the right to ask for a warrant under normal circumstances. Therefore, refusal to allow entry for inspectional purposes will not lead to civil or criminal penalties if the refusal is based on the inspector's lack of a warrant and one of the exemptions discussed in Part C does not apply. If the owner were to allow the inspector to enter his establishment only in response to a threat of enforcement liability, it is quite possible that any evidence obtained in such an inspection would be inadmissible. An inspector may, however, inform the owner who refuses entry that he intends to seek a warrant to compel the inspection. In any event, when entry is refused, the inspector should leave the premises immediately and telephone the designated Regional Enforce- ment Attorney as soon as possible for further instructions. The Regional Enforcement Attorney should contact the U.S. Attorney's Office for the District in which the establishment desired to be inspected is located and explain to the appro- priate Assistant United States Attorney the need for a warrant to conduct the particular inspection. EPA Memorandum on Inspection Procedures, 41 Envir.Rep. (BNA) 2451, 2452 (April 11, 1979). It is undisputed that in this case, Dow specific- ally refused EPA’s request for entry prior to the flyover. B-17 Both Dow and EPA devoted much of their attention, in briefing and arguing this case, to an analysis of the present facts under the Supreme Court's decision in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) and subsequent interpretive decisions. The Fourth Amendment analysis, as applied to this case, focuses on the question of whether Dow had a reason- able expectation of privacy which was violated by EPA’s flyover and photography of Dow’s plant. The Court is fairly certain that the Fourth Amendment issue raised in this case is properly resolved on the basis of an administrative inspection analysis alone. Given, however, the atypical nature of this case, the fact that the parties have explored the Katz analysis at length, and the additional fact that this analysis raises several important sub-issues and policy considerations, the Court will alternatively review the facts before it under the framework of Katz. C. Expectations Of Privacy [3] In Katz v. United States, 389 U.S. at 351-352, 88 S.Ct. at 511-512, the Supreme Court observed that: the Fourth Amendment protects people, not places. What a person knowingly exposes to the public even in his own home or office, is not a subject of Fourth Amendment protection . . . But what he seeks to preserve as private, even in an area accessible to the public, may be constitution- ally protected. Justice Harlan, in a concurring opinion which has since become the prevailing formulation for evaluating the legality of a search, see Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); United States v. Bailey, 628 F.2d 938 (CA 6, 1980); erected a twofold requirement to determine whether one possesses an B-18 expectation of privacy which is protectable under the Fourth Amendment. This test was best described by Justice Blackmun in Smith v. Maryland, 442 U.S. 735, 736, 740, 99 S.Ct. 2577, 2578, 2580, 61 L.Ed.2d 220 (1979): ... the application of the Fourth Amendment depends on whether the person invoking its pro- tection can claim a ‘justifiable,’ a ‘reasonable,’ or a ‘legitimate expectation of privacy’ that has been invaded by government action . . . This inquiry, as Mr. Justice Harlan aptly noted in his Katz concurrence, normally embraces two discrete questions. The first is whether the individual, by his conduct, has ‘exhibited an actual (subjective) expecta- tion of privacy,’ 389 U.S. at 361 [88 S.Ct. 507 at 516, 19 L.Ed.2d 576] — whether, in the words of the Katz majority, the individual has shown that ‘he seeks to preserve [something] as private.’ Id. at 351 [88 S.Ct. 507 at 511, 9 L.Ed.2d 576]. The second question is whether the individual's subjective expectation of privacy is ‘one that society is prepared to recognize as “reasonable.”’ id., at 361 [88 S.Ct. 507 at 516, 19 L.Ed.2d 576] — whether, in the words of the Katz majority, the individual's expectation, viewed objectively, is ‘justifiable’ under the circumstances. (citations omitted; em- phasis added). This Court must now apply this two-part test to the facts before it. 1. DOW'S PRIVACY EXPECTATION [4, 5] The extent of any claimed privacy expectation must be evaluated in light of the identity of the party seeking to invoke the protections of the Fourth Amend- ment. Donovan v. Dewey, supra; GM Leasing Corp. v. United States, 429 U.S. 338, 97 S.Ct. 619, 50 L.Ed.2d 530 B-19 (1977). While the expectation of privacy that the owner of commercial property enjoys “differs significantly from the sanctity accorded an individual’s home,” Id., it is clear that a commercial establishment may possess a protectable privacy expectation under the Fourth Amendment. Marshall v. Barlow's Inc., supra. [6] The first part of the Katz test appears to require that a party’s actual state of mind be determined. Various courts, however, have interpreted this aspect of the test as an “objective” rather than a “subjective” requirement. United States v. Taborda, 635 F.2d 131, 137 (CA 2, 1980); United States v. Kim, 415 F.Supp. 1252, 1256-1257 (D.Haw., 1976); accord United States v. Bailey, 628 F.2d 938, 942-943 (CA 6, 1980). This Court agrees with this interpretation, and concludes that the essence of the first prong of the test is that the party “must have acted in such a way that it would have been reasonable for him to expect that he would not be observed.” United States v. Taborda, supra. Therefore, the Court must look to objective manifestations of any claimed privacy expectation. [7] The first and most obvious indicia of a privacy expectation is ownership. Wilson v. Health and Hospital Corporation of Marion City, 620 F.2d 1201, 1212-1213 (CA 7, 1980). Dow’s ownership of the Midland complex is undisputed. Ownership of property alone, however, is insufficient to claim an expectation of privacy. The owner must demonstrate that the premises were kept in a closed and secured condition. Id. Dow cites the following measures as evidence that it has manifested and exhibited an expectation of privacy in its plant: 1. A chain-link fence at least 8 feet high installed completely around the production facility; 10. B-20 gates for ingress and egress at various inter- vals in the fence have an attendant (guard) on duty when any given gate is in operation to admit or allow people to leave the facility; closed-circuit television surveillance for con- tinuously monitoring the various entrance and exit gates and to monitor the area along the fence surrounding the facility; alarm systems which will indicate unauthor- ized entry at various locations; motion detectors at strategic locations to indi- cate movement of personnel in certain re- stricted areas within the facility; roving patrols which travel throughout the facility and guard the perimeter to augment the other security systems; liaison with local public law enforcement offi- cials including radio communication to assist in the apprehension of persons engaged in unlawful activities relating to the production facility; a requirement that employees entering the facility must exhibit an identification bade [sic] in every instance of entry; a requirement that non-employees who wish to visit the facility must be approved and must obtain a visitors pass including a bade [sic] which must be exhibited at all times while in the facility; a requirement that non-employees who have been approved to visit be greatly restricted in their movements and that some areas of the facility remain off-limits to all non-employees; 11. 12. 13. 14. 15. B-21 a requirement that cameras by anyone other than an authorized representative of Dow are prohibited at all times and in all places in the facility; a requirement that persons visiting for techni- cal reasons must obtain a technical pass which provides among other things that the visitor will not disclose any technical information learned as an incidence to his visit; a staffing program such that security person- nel are on duty twenty-four hours a day and seven days a week with at least twenty-five such people on duty at all times and with about fifty people on duty during normal duty hours; a security budget whereby Dow spent at least 3.25 million dollars in each of the last ten years on the security of the Midland produc- tion facility; and a disposal or drawings etc, that requires that, in the event the engineering drawings and/or blueprints of a specific production plant were to be disposed of, for example, at the conclu- sion of construction, the drawings and/or blueprints would be packaged and incinerated under the direction of security personnel who would also witness the incineration. In addition, Dow points out that its employees and contractors sign secrecy agreements, and that its plant layout is designed in such a way that the more sensitive, proprietary areas are not visible to persons on the public right-of-way outside the fence. (Dow Brief at 11-12). EPA responds to these assertions by arguing that Dow has sought only to restrict access to its plant and to protect its trade secrets from the eyes of its competitors, B-22 it has not attempted to conceal the exterior of its plant from view. Therefore, EPA maintains that Dow has failed to satisfy the first prong of Katz. This Court cannot agree. As previously explained’, EPA’s reference to the exterior of. Dow’s plant mischaracterizes what was actu- ally captured in the aerial photographs. The photo- graphs depict internal regions of the plant in such vivid detail, capable of further enlargement and magnification, as to defy simply being described as views of the exterior of the facility. When these photographic results are combined with the uncontroverted fact that Dow de- signed its plant so as to conceal the more sensitive, proprietary areas in the inner regions of the complex, EPA’s position loses its persuasive weight. The Court in Katz, 389 U.S. at 351-352, 88 S.Ct. at 511- 512, specifically stated that what a person “seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” (emphasis added). Dow would never be able to show that it possesses a legitimate privacy expectation in its entire plant. Obvi- ously, much of the plant is observable by the general public, both from the ground and from the air. But what is visible to the public are areas which Dow, either purposely or due to some commercial or architectural impracticability, has decided to allow the general public to see. Notwithstanding this common sense limitation, Dow may still possess an expectation of privacy with respect to interior regions of its facility. The Fourth Amendment should not be read as to re- quire the citizens or businesses of this nation to take unreasonable measures to protect themselves from sur- reptitious governmental searches. This Court is not pre- 15 See note 3 and accompanying text, supra. B-23 pared to conclude that Dow must build a dome over its entire plant before it can be said to have manifested or exhibited an expectation of privacy. See United States v. Allen, 633 F.2d 1282, 1289 (CA 9, 1980), cert. denied, U.S. —, 102 S.Ct. 133, 70 L.Ed.2d 112 (1981). Rather, what Dow “seeks to preserve as private,” and then takes reasonable precautions to safeguard, is entitled to the protection of the Fourth Amendment. Katz v. United States, supra. On this basis, the Court finds that Dow has satisfied the first prong of the Katz test. 2. REASONABLENESS OF DOW’S PRIVACY EXPECTATION The more difficult question to decide in this case is the second prong of Katz: whether Dow’s expectation of privacy is one that society is prepared to accept as reasonable. EPA proposes several factors which should be considered in resolving this inquiry.'° On the basis of these factors, EPA’s position is that even if Dow has exhibited an expectation of privacy, it is not one that society accepts as reasonable. Some of the factors proposed by EPA pertain either to the issue of whether Dow manifested a privacy expecta- tion’” or whether the “open fields” exception to the Fourth Amendment, Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), is applicable to this ‘© The factors proposed by EPA include: 1. Lawfulness of Location From Which Observation was made Equipment Used to Make the Observation Type of Location Observed Nature of Objects or Activities Observed Efforts to Conceal Objects or Activities from View Frequency of Overflights al ‘heptytuuhad tana bdeenettnt ee B-24 case.'® Some of its suggested factors, however, do go to the question of reasonableness and therefore merit some discussion. In describing the “type” and “nature” of the location observed as 2 factors to be considered, EPA argues that “it is hard to imagine anything larger or more con- spicuous than a 2000 acre chemical manufacturing plant located in an urban area of a city.” (EPA Brief at 20). As stated previously, the Court would agree that Dow could not possess a reasonable expectation of privacy in its entire plant. It may, however, exhibit such an expec- tation with respect to internal areas of the plant. While not a Fourth Amendment case, the holding of the Fifth Circuit in E.I. duPont de Nemours & Co. Inc. v. Christopher, 431 F.2d 1012 (CA 5, 1970), cert. denied, 400 U.S. 1024, 91 S.Ct. 581, 27 L.Ed.2d 637 (1971), which the Supreme Court cited approvingly in Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 476 n. 5, 94 S.Ct. 1879, 1883 n. 5, 40 L.Ed.2d 315 (1974), is instructive. duPont filed an action against a competitor, under Texas law, for using aerial surveillance and photography to obtain its trade secrets. In ruling in duPont’s favor that aerial photo- graphy was an improper method of discovering trade secrets, the Court reasoned that: ... Wwe realize that industrial espionage of the sort here perpetrated has become a popular sport in some segments of our industrial community. However, our devotion to free wheeling indus- trial competition must not force us into accepting the law of the jungle as the standard of morality expected in our commercial relations. Our toler- ance of the espionage game must cease when the 18 This is true of at least factors 1 and 2, perhaps all of them. See Discussion, Section IV(D) infra. B-25 protections required to prevent another's spying cost so much that the spirit of inventiveness is dampened. Commercial privacy must be protected from espionage which could not have been reasonably anticipated or prevented. We do not mean to imply, however, that everything not in plain view is within the protected vale, nor that all information obtained through every extra optical extension is forbidden. Indeed, for our industrial competition to remain healthy there must be breathing room for observing a competing industrialist. A competitor can and must shop his competition for pricing and examine his products for quality, components, and methods of manufacture. Perhaps ordinary fences and roofs must be built to shut out incursive eyes, but we need not require the discoverer of a trade secret to guard against the unanticipated, the undetectable, or the unpreventable methods of espionage now available. * + * To require duPont to put a roof over the un- finished plant to guard its secret would impose an enormous expense to prevent nothing more than a school boy’s trick. We introduce here no new or radical ethic since our ethos had never given moral sanction to piracy. The market place must not deviate far from our mores. We should not require a person or corporation to take unreason- able precautions to prevent another from doing that which he ought not to do in the first place. Reason- able precautions against predatory eyes we may require, but an impenetrable fortress is an unreasonable requirement, and we are not dis- posed to burden industrial inventors with such a duty in order to protect the fruits of their efforts. Id. at 1016-1017 (emphasis added). B-26 This statement of policy reasons in support of a state tort law decision nonetheless provides guidance to the Court here. As in duPont, the present case also involves claims of trade secret appropriation. The rationale of duPont supports this Court’s belief that commercial privacy may be expected and exhibited, and may be deemed reasonable and legitimate by society. Just as duPont need not be required to take “unreasonable precautions” to prevent aerial photography of its plant as a prerequisite to a tort action, likewise Dow should not be so required in order to claim the protection of the Fourth Amendment. Society has spoken in this area through Congress, the State Legislatures, and the courts. Federal law, under the Trade Secrets Act, 18 U.S.C. § 1905, makes it a crime for government employees to disclose trade secret infor- mation. The Clean Air Act itself, in Section 114(c), 42 U.S.C. § 7414(c), addresses this concern for propriety information. Moreover, EPA has adopted regulations providing for protection of trade secrets. 40 CFR 2.201- 2.309. Michigan law, in addition to recognizing a tort action, also makes it a crime to appropriate trade secrets, M.C.L.A. § 752.772, as well as to invade one’s privacy by means of surveillance. M.C.L.A. §§ 750.539a-539b. These legislative and judicial pronouncements are reflec- tive of a social acceptance of Dow’s privacy expectation as reasonable. There is some dispute in this case as to whether use of sophisticated aerial photography equipment consti- tutes visually enhanced surveillance.'"? Dow suggests that “a sophisticated aerial camera, in the hands of a government agent, is even more constitutionally repug- nant than a telescope because it enables the searcher to permanently capture the image for later detailed study 19 supra note 2. B-27 at leisure.” (Dow Brief at 42). EPA, on the other hand, posits that this equipment captures nothing more than that which is already visible to the naked eye. (EPA Brief at 17-18; Transcript of oral argument at 29-32). Having examined the photographs, the Court is unable to agree with EPA’s position that “the camera can’t see what the eye can’t see” Id. On the contrary, when flying at 1,200 or 5,000 feet, the eye can discern only the basic sizes, shapes, outlines, and colors of the objects below. In this case, the finest precision aerial camera available was used to take the EPA photographs. The camera successfully captured vivid images of Dow’s plant which EPA could later analyze under enlarged and magnifie’ conditions. In doing so, the camera saw a great dv. more than the human eye could ever see. The court therefore would agree with Dow that the use of a sophisticated aerial camera is, at a minimum, on a par with other methods of visually enhanced surveillance in terms of its intrusiveness. In United States v. Taborda, 635 F.2d 131 (CA 2, 1980), the Second Circuit was faced with the issue of whether observation by means of a high-powered telescope con- stituted the type of intrusion against which the Fourth Amendment protects. Consistent with Katz, the Court concluded: . . . Observation of objects and activities inside a person’s home by unenhanced vision from a loca- tion where the observer may properly be does not impair a legitimate expectation of privacy. However, any enhanced viewing of the interior of a home does impair a legitimate expectation of privacy and encounters the Fourt Amendment's warrant requirement, unless circumstances create a tradi- tional exception to that requirement. Id. at 139 (emphasis added). B-28 See also United States v. Kim, 415 F.Supp. 1252, 1254-1256 (D.Hawaii, 1976). Since the present case involved an intrusion into the interior of Dow’s palnt, as the Court has previously defined that term, the enhanced viewing in this case similarly encounters the Fourth Amend- ment’s warrant requirement. [8] Turning the question of “reasonableness” around for a moment — i.e. looking at the reasonableness of the government's actions — it is likely that society would view many forms of visually enhanced surveillance by the government as unreasonable. This is particularly so when it is used in a non-criminal context. See United States v. Bailey, 628 F.2d 938, 944 (CA 6, 1981). In this age of ever-advancing and potentially unlimited tech- nology the government should be made aware that it does not possess carte blanche authority to utilize sophisticated surveillance methods to keep watch over citizens or businesses not suspected of any criminal activity. As the government's arsenal of technologically- advanced surveillance equipment expands, so too the protections of the Fourth Amendment should broaden in response. United States v. Holmes 521 F.2d 859, 866 (CA 5, 1975), United States v. Kim, 415 F.Supp. at 1257. The Court is reminded of the powerfully eloquent dissent of Justice Douglas in United States v. White, 401 U.S. 745, 756, 760-761, 91 S.Ct. 1122, 1128, 1130-1131, 28 L.Ed.2d 453 (1971): Electronic surveillance is the greatest leveler of human privacy ever known. How most forms of it can be held ‘reasonable’ within the meaning of the Fourth Amendment is a mystery. To be sure, the Constitution and Bill or Rights are not to be read as covering only the technology know in the 18th century. Otherwise its concept of ‘commerce’ would be hopeless when it comes to the manage B-29 ment of modern affairs. At the same time the concepts of privacy which the Founders enshrined in the Fourth Amendment vanish completely when we slavishly allow an all-powerful govern- ment, proclaiming law and order, efficiency, and other benign purposes, to penetrate all the walls and doors which men need to shield them from the pressures of a turbulent life around them and give them the health and strength to carry on. * + * . . . Electronic aids add a wholly new dimension to eavesdropping. They make it more penetrating more indiscriminate, more truly obnoxious to a free society. Electronic surveillance, in fact, makes the police omniscient; and police omnisci- ence is one of the most effective tools of tyranny. These same concerns are not entirely absent from this case. While the EPA did not engage in any form of “Star Wars” surveillance, and only used equipment which was commercially available, if this warrantless investigatory method is countenanced in this case, where will courts draw the line? In this regard the Court finds merit in the language of Dean v. Superior Ct., 35 Cal. App.3d 112, 110 Cal.Rptr. 585, 588-589 (1973): Expectations of privacy are not earthbound. The Fourth Amendment guards the privacy of human activity from aerial no less than terrestrial invasion. At a recent but relatively primitive time, an X-2 plane could spy on ground activities from a height of 50,000 feet. Today’s sophisticated technology permits overflights by vehicles orbiting at an altitude of several hundred miles. Tomor- row’s sophisticated technology will supply optic and photographic devices for minute observations B-30 from extended heights. Judicial implementations of the Fourth Amendment need constant accom- modation to the ever-intensifying technology of surveillance. In analyzing claims of immunity from aerial surveillance by agents of government, the observer's altitude is a minor factor. Hori- zontal extensions of the occupant’s terrestrial activity form a more realistic and reliable measure of privacy than the vertical dimension of altitude ... Reasonable expectations of privacy may as- cend into the airspace and claim Fourth Amenc- ment protection. The conclusion of this brief turn-around of the “reasonableness” question is that a society which views certain forms of visually enhanced governmental surveil- lance as unreasonable, would likely accept as reasonable, Dow’s expectation to be free from this form of intrusion. A final argument raised by EPA, which, at first blush, is not without a good deal of merit, is that the public interest in effective pollution control outweighs any pri- vacy expectation which Dow may have. United States v. Martinez-Fuerte, 428 U.S. 543, 555, 96 S.Ct. 3074, 3081, 49 L.Ed.2d 1116 (1976). In this regard EPA emphasizes the utility of warrantless aerial overflights and photography as a tool to monitor compliance with the federal pollu- tion laws. All of us certainly recognize the need for aggressive and effective pollution control. In this regard we, as citi- zens, certainly desire EPA to possess all the tools neces- sary to carry out its legislative mandate to effectuate and enforce the federal pollution laws. For 2 reasons, however, EPA’s “public interest — pollution control” argument does not outweigh Dow’s expectation of pri- vacy under the facts of this case. B-31 First, the Court finds very little pollution control utility in the investigatory method used by EPA in this case. EPA asserts that it had 2 purposes for the over- flight: to get photographs of the “general layout of the plant in relation to the power houses,” and to confirm “excess emissions from the power houses.” (EPA Brief at 21). The facts are uncontroverted, however, that Dow had earlier given schematic drawings of the power houses to EPA voluntarily. EPA could have made fur- ther requests for similar drawings, maps, or even photo- graphs, of the general layout from Dow. Furthermore, it is difficult to place credence in EPA’s assertion that a goal of the aerial photography was to confirm excess emissions. EPA had little or no control over when the photographs would be taken by Abrams, and no knowl- edge of whether there would be any emissions at the moment they were taken. A second reason militating against EPA’s position is that it is difficult to justify a need for the agency to conduct warrantless aerial searches. It appears to the Court that at a minimum,”® an ex parte warrant proce- dure would best strike the balance between Dow’s expectation of privacy and EPA’s asserted need to conduct surprise inspections of this sort. See generally Note, Rationalizing Administrative Searches, 77 Mich.L.Rev. 1291, 1329 n. 184 (1979). As well stated by one com- mentator, “since the normal inspection procedure for EPA requires some advance preparation and advance decisions concerning which facilities to inspect, the addi- tional step of obtaining a search warrant does not seem to be a tremendous burden in light of the constitutional rights involve...’ Martin, EPA and Administrative Inspec- tions, 7 Fla. St.L.Rev. 123, 130 (1979); see also EPA 20 See n. 27 infra B-32 Memorandum on Inspection Procedures, 41 Envir.Rep. (BNA) 2451, 2452 (April 11, 1979). In terms of policy considerations, the public interest in governmental compliance with constitutional and statu- tory provisions is also involved in this case. United States v. Martinez-Fuerte, supra. This consideration would appear to lend support to Dow’s assertion that its pri- vacy expectation is one which society is prepared to accept as reasonable. For all these reasons, the Court finds that Dow has exhibited an actual expectation of privacy, ard that that expectation is one the society is prepared to recognize as reasonable. Therefore, under a Katz analysis, the Court again concludes that EPA’s aerial photography of Dow’s plant constituted an unreasonable search in violation of the Fourth Amendment. D. “Open Fields” In Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 446, 68 L.Ed. 898 (1924) the Supreme Court held that “the special protection accorded by the Fourth Amend- ment ... is not extended to the open fields.” In other words a visual observation of something in plain view — i.e. observable by members of the public — does not constitute a search within the meaning of the Fourth Amendment.”' This ruling was followed in Air Pollution Variance Bd. v. Western Alfalfa Corp., 416 U.S. 861, 94 S.Ct. 2114, 40 L.Ed.2d 607 (1974), which involved a constitutional challenge to a health inspector's warrant- less observation of “plumes of smoke being emitted 1 The “plain view” doctrine of Coolidge v. New Hampshire, 403 U.S. 433, 464-468, 91 S.Ct. 2022, 2037-2039, 20 L.Ed.2d 564 (1971) is not involved in this case. That doctrine is not a justification to search, but a reason to extend an otherwise valid search. See Wilson v. Health and Hospital Corporation of Marion City, 620 F.2d 1201, 1209 (CA 7, 1980). B-33 from ... chimneys” on the premises of a corporation. Id. at 863, 94 S.Ct. at 2115. The Court held that, “the field inspector dia not enter the plant of offices . . . He had cited what anvone in the city who was near the plant could see in the sky — plumes of smoke .. . [therefore] he was well within the ‘open fields’ exception . approved in Hester.” Id. at 864-865, 94 S. Ct. at 2115-2116. EPA asserts that the “open fields” exception applies in this case and therefore validates its actions. In addition to the foregoing authority, EPA cites 2 recent federal cases, United States v. Allen, 633 F.2d 1288 (CA 9, 1980), cert. denied, _. U.S. —., 102 S.Ct. 133, 70 L.Ed.2d 112 (1981), and United States v. DeBacker, 493 F.Supp. 1078 (WD Mich., 1980), and 9 state cases” in support of its position. This Court finds the cases cited either distin- guishable or nondispositive, and concludes that the “open fields” exception does not apply in this case. In United States v. Oliver, 657 F.2d 85 (CA 6, 1981), the Sixth Circuit relying upon the rationale of Katz, held that “the ‘open fields’ exception to the warrant requirement can no longer be automatically invoked to validate a warrantless search and seizure ...” Id. at 87-88. The Court explained that “Katz shifted the emphasis of the test [for determining the legality of a warrantless search] from an inquiry into commonlaw property distinctions 22 People v. St. Amour, 104 Cal.App.3d 886, 163 Cal.Rptr. 187 (1980); People v. Lashmett, 71 Ill.App.3d 429, 27 Ill.Dec. 657, 389 N.E.2d 888 (1979); Burkholder v. Superior Court, 96 Cal.App.3d 421, 158 Cal.Rptr. 86 (1979); State v. Brighter, 589 P.2d 527 (Haw. 1979); State v. Stachler, 570 P.2d 1323 (Haw. 1977); Plunkett v. City of L.Ed.2d 787 (1978); People v. Superior Court, 37 Cal.App.3d 836, 112 Cal.Rptr. 764 (1974); Dean v. Superior Ct., 35 Cal.App.3d 112, 110 Cal.Rptr. 585 (1973). B-34 to an inquiry in which the . . . reasonable expectations of privacy became the focal point.” Id. It then concluded that: ... Oliver's expectation of privacy was objec- tively reasonable. Society’s interest in law enforce- ment is not unduly hampered by requiring a warrant prior to searching a private field which has been reached through a private road exhibiting several “No Trespassing” signs and blocked by @ locked gate, unless there is an imminent threat of destruction of the evidence or there exists a high probability that the evidence will cause serious bodily harm. We are presented with no such emergency situa- tion here. Id. at 87 (emphasis added). See also United States v. Mullinex, 508 F.Supp. 512, 514 (ED Ky., 1980). The Court has already found that Dow’s expectation of privacy was objectively reasonable. In accordance with Oliver, therefore, society's interest in the enforce- ment of pollution laws is not unduly hampered by requiring a warrant prior to EPA’s aerial search of a private manufacturing plant which is reasonably secured, especially after EPA is specifically refused entry. Other factors take this case out of the “open fields” exception as well. As previously stated, the exception has the effect of making a plain view observation a non- search. Such a result, however, would be anomalous in this case. EPA has already admitted that it was engaged in a “search” and a “quest for evidence.”~ Therefore, the question before this Court is really limited to whether that admitted search was unreasonable under the Fourth Amendment. 23 See note 4 and text accompanying, supra. B-35 The Court has already described why it finds that the EPA aerial photographs “more closely approximate a view of the interior of the plant than the exterior.”** This distinction is relevant to the “open fields” inquiry. See Wilson v. Health & Hospital Corporation of Marion City, 620 F.2d 1201, 1210 (CA 7, 1980). EPA was able to observe a great deal more than “what anyone in the city who was near the plant could see,” Air Pollution Variance Bd., supra, in its detailed aerial photographs. Granted, other aircraft fly in the vicinity of the Dow plant on occasion. The persons in those aircraft are likely able to observe Dow’s plant below. But it is unlikely that those persons are able to see minute, internal details of the plant, without the type of equipment used by EPA. One commentator, writing specifically about this case, made the following observation: The recently filed Dow Chemical case against EPA seems to involve a fact situation where the open fields exception may have some applicabil- ity. However, aerial surveillance would seem to push the exception too far. Although E.I. duPont de Nemours and Co. Inc. v. Christopher, 431 F.2d 1012 (5th Cir., 1970), cert denied 400 U.S. 1024 [91 S.Ct. 581, 27 L.Ed.2d 637,] rehearing denied, 401 U.S. 967 [91 S.Ct. 968, 28 L.Ed.2d 250] (1971), involved industrial espionage carried out by means of aerial surveillance, what the court said there would seem to apply at least in spirit to the Dow Chemical case: [We] realize that industrial espionage of the sort here perpetrated has become a popular sport in some segments of our industrial 24 See no [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0184%3A02. Public record. Not legal advice.