Respondents Brief — Dow Chemical Co. v. United States

Supreme Court brief1986

Ask Donna

What actually matters in this document.

Text

EST AVAILABLE COPY

Supreme Court, U.S.

FILED

Dow CHEMICAL COMPANY, PETITIONER

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES

LAWRENCE G, WALLACE

F. HENRY HABICHT II

Assistant Attorney

ANDREW L. FREY

ALAN I. Horow1Tz

DiRK D. SNEL

ANNE S. ALMY

Attorneys

(202) 633-2217

Acting Solicitor General

General

Deputy Solicitor General

Assistant to the Solicitor General

Department of Justice

Washington, D.C. 20530

QUESTIONS PRESENTED

1. Whether the Environmental Protection Agency

(EPA) violated the Fourth Amendment by contract-

ing with a private company to take aerial photo-

graphs of a chemical plant from public navigable air-

space with standard aerial camera equipment.

2. Whether the procurement of aerial photographs

of chemical plants by EPA exceeds its statutory au-

thority.

(1)

TABLE OF CONTENTS

Page

a ci csbsnsgeintenomenie 1

a SE Re 1

al aac natibsdieesatibianiilalanasecserreess 2

EE ST OE 6

Argument:

I. Using standard, generally available photographic

equipment to take aerial photographs of an out-

door manufacturing plant from navigable air-

space does not violate the Fourth Amendment.... 10

A. The Fourth Amendment does not generally

prohibit government officials from observing

areas exposed to their view from a place

where they have a right to be ......... "tibiae. 11

1. There is no constitutional bar to viewing

the “curtilage” from a vantage point to

which the public has access _...........0.......... 11

2. The fact that the purpose of a police ob-

servation is to discover evidence does not

automatically make the police conduct

a “search” within the meaning of the

FPourtn Amendment .................................... 15

B. Observation and ordinary photography from

the air do not violate the Fourth Amendment.. 17

1. There is no legitimate expectation that

one can conduct outdoor activity free from

the possibility of aerial observation ......... 18

2. There is no reasonable expectation that an

outdoor facility will not be photographed

LE iy er 21

Argument—Continued : Page

8. The fact that good quality aerial photo-

graphs are capable of revealing additional

detail when enlarged and magnified does

not give rise to a Fourth Amendment

CIID siciseinntinicenesssentethenaphisiaandaaisabeaiitactinsie 26

4. Society does not recognize a reasonable

expectation of privacy in outdoor activity

strong enough to outweigh the govern-

ment interest in using aerial photog-

NII sccitiiincabitidatlacctictnhecdesiellasiiasedinaMasiatiaise 33

5. The existence of a trade secret in an out-

door area does not convert photography

of that area into a Fourth Amendment

CO ciesiisinicsscih st cctigalindeeibike. 37

II. The use of aerial photography does not exceed

the scope of EPA’s statutory authority —............. 45

COT cececceceussccncesteciinstaiteaslnilabcectesashdialattiiaipaitisinasinn 50

TABLE OF AUTHORITIES

Cases:

Air Pollution Variance Board v. Western Alfalfa

Ce: Ge ee eth iiiabtsdinentditecinterscce 12, 47

Berger v. New York, 388 U.S. 411 ..................--........ 22-23, 46

Boyd v. United States, 116 U.S. 616 —........-.----.... 13

Camara V. Municipal Court, 387 U.S. 523 ............. fe 35

Chrysler Corp. v. Brown, 441 U.S. 281 .................... 41, 49

Delaware v. Prouse, 440 U.S. 648 ..........0.----0.0.e. 35

Donovan V. Dewey, 452 U.S. 594 -...00000. ee. 13

Dunaway Vv. New York, 442 U.S. 200 ....0000000000 oe... 35

E.I. duPont deNemours & Co. Vv. Christopher, 431

F.2d 1012, cert. denied, 400 U.S. 1024 _.............. 42, 43

Fullbright v. United States, 392 F.2d 432, cert. de-

I Te I, Nhe imncniconens 15, 26

Hester v. United States, 265 U.S. 57 .................... 11, 14-15

Hoffa v. United States, 385 U.S. 293 _......0000000000..... 44

Hunsucker v. Phinney, 497 F.2d 29, cert. denied,

GP CR TE dtcinnvtacetcicke Snbbntianinicesnaaaientliabsechetin,

Cases—Continued : Page

Hurst v. Hughes Tool Co., 634 F.2d 895 _................. 43

INS v. Lopez-Mendoza, No. 83-491 (July 5, 1984) .. 28

Kansas Vv. Missouri, 322 U.S. 218 ..................--..------.. 22

Katz v. United States, 389 U.S. 347........ 4, 12, 17, 18, 34, 45

Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470........ 42, 44

Lopez Vv. United States, 373 U.S. 427 —........0........... 8, 25, 30

Marshall v. Barlow’s, Inc., 486 U.S. 307 .................. 12, 49

Maryland v. Macon, No. 84-778 (June 17, 1985)... 12, 18

Michigan v. Summers, 452 U.S. 692 —.......00000000-...... 35

National Organization for the Reform of Marijuana

Laws, Inc. v. Mullen, 608 F. Supp. 945 .................. 20

Nebraska v. Wyoming, 325 U.S. 589 _........00000... 22

Oliver v. United States, No. 82-15 (Apr. 17, 1984) ..passim

On Lee Vv. United States, 343 U.S. 747 .......00.00000000.... 25

People v. Ciraola, 161 Cal. App. 3d 1081, 208 Cal.

Rptr. 93, cert. granted, No. 84-1513 (June 3,

a Nm sects 20, 21

People v. Lashmett, 71 Ill. App. 3d 429, 389 N.E.2d

888, cert. denied, 444 U.S. 1081 .....00000. ee. 20

People v. Sneed, 32 Cal. App. 3d 535, 108 Cal. Rptr.

RPGR tists 8 Secs Be 2 ea nO 20

Pieper v. United States, 604 F.2d 1131 ~.......0.000....... 28

Ruckelshaus v. Monsanto Corp., No. 83-196 (June

ARR SERIE soe a A a 41, 43

Smith v. Maryland, 442 U.S. 735 -.00000000 eee. 17

State v. Knight, 68 Hawaii 90, 621 P.2d 370 ............ 20

Tezas V. Brown, 460 U.S. 780 .................................. 6, 12,14

United States v. Allen, 675 F.2d 1373, cert. denied,

FRR ac ST a RRS ISR >. 8 20, 25-26

United States v. Bassford, 601 F. Supp. 1324 .......... 20, 21

United States v. Caceres, 440 U.S. 741 0.000000... 25

United States v. Chadwick, 433 U.S. 1 —.................. 30

United States v. Crews, 445 U.S. 463 .........0.000000....... 25

United States v. DeBacker, 493 F. Supp. 1078.......... 20

United States v. Dubrofsky, 581 F.2d 208 _......... 26

United States v. Espinoza, 641 F.2d 153 26

United States v. Hensel, 509 F. Supp. 1376, aff'd,

699 F.2d 18, cert. denied, 461 U.S. 958 26

United States v. Jacobsen, No. 82-1167 (Apr. 2,

STII + six ceuahisbeietaasesntiabaslaiaieeescectintdeiaianinceiiieaiaciiiesisties lili 16

Cases—Continued : Page

United States v. Karo, No. 83-850 (July 3, 1984).. 15, 16,

29, 30

United States v. Kim, 415 F. Supp. 1262 ................ 26

United States v. Knotts, 460 U.S. 276........ 8, 15, 17, 24, 30

United States v. Lace, 669 F.2d 46, cert. denied,

GD Ts, CH avec leteaiee i eicticletisittisscnccturtieceti 26

United States v. Lee, 274 U.S. 559 .............000000020.... 8, 14, 25

United States v. Leon, No. 82-1771 (July 5, 1984) .. 28

United States v. Long, 674 F.2d 848 .............0.......... 13

United States v. Marbury, 732 F.2d 390 ................. 20

United States v. Martinez-Fuerte, 428 U.S. 543........ 35

United States v. Minton, 488 F.2d 37, cert. denied,

I ee Ne ict cd elisedie Acie tdndtthinntibisstnnindeinen 26

United States v. Mullinex, 508 F. Supp. 512 _.......... 20

United States v. Oliver, 657 F.2d 85, rev’d, 686

F.2d 356, aff’d, Oliver v. United States, No. 82-

8 RR TSE Acne 4

United States v. Place, 462 U.S. 696 ...........o0..... 16

United States v. Santana, 427 U.S. 38 ........00000......... 14

United States v. Swart, 679 F.2d 698 ...................... 13

United States v. Taborda, 635 F.2d 131 .................... 26

United States v. Thomas, 613 F.2d 787 .................... 26

United States v. Tull, No. 84-1766 (4th Cir. July

I a a 23

United States v. White, 401 U.S. 746 ...0000000 00... 25

United States v. Wolfe, 375 F. Supp. 949 0.00000... 13

Walter v. United States, 447 U.S. 649 .....0000000....... 30

Wearly v. FTC, 616 F.2d 662, cert. denied, 449 U.S.

REF et (oP CER Gs IRS OP 41

Williams v. State, 157 Ga. App. 476, cert. denied,

Ge es I ee tcincnicessdctbiamccdbs pila cciecndaalhdtaia theese 20

Worksite Inspection of Quality Products, Inc., In

OT i a eee 28

Constitution, statutes and regulation :

U.S. Const. :

EDT ER ie eS AL passim

RULE” siden iulccshsdihsiapalenbbiatiadtlabandssdianaiibiaeadaeed 3, 4, 38

Air Commerce Act of 1926, ch. 344, § 10, 44 Stat.

REEVES ATER TORE ME Rir ros SOI Recta ee eT WT Ra 19

VII

Constitution, statutes and regulation—Continued : Page

Civil Aeronautics Act of 1938, ch. 601, § 3, 52 Stat.

ili iat Nis, ariel et Re A eR Te 19

Clean Air Act, 42 U.S.C. 7401 et seq. .............0000....... 2

Een 46

Ch Ren Ro Pe et oe 48

I 48

EE RD Cs 48

Oe I ID ctetistnsecententerentovicninnend 4, 47, 48

42 U.S.C. 7414(c) (§ 114(c)) ..........000 ee. 42, 49

Federal Aviation Administration Act of 1958, Pub.

L. No. 85-726, § 104, 72 Stat. 740 ..00 19

Federal Insecticide, Fungicide, and Rodenticide

Act, 7 U.S.C. 136 et seq.:

I i 41

EE a 48

Freedom of Information Act, 5 U.S.C. 552(b) (4).. 41, 49

Omnibus Crime Control and Safe Streets Act, 18

I a lakes liatnaciined 46

15 U.S.C. 1270 ............. eutiis Ko Sabredaohaos 7 SEL ORE ES eae 48

TESS SS SR ae OE Sata i 23

ED cid dctesecsecccticetnns FR Ed eo 41, 49

I a i dene asen 46

4 6 ee”) 6 ENCE 8/3818 CME ROS 46

EEE ee Ae ee er 46

a css edanaeoal 48

42 U.S.C. 2278(b)_ .............. CAEN OED 23

a ARE a oe aN 19

Mich. Comp. Laws Ann. § 752.772 (West 1985)... 39

Uniform Trade Secrets Act, 14 U.L.A. 541 (1980)

et seq.:

EN | Ee 39

$§ 1-8, 14 U.L.A. 641-648 oon... 39

§2(b), 14U.L.A. 544 ..00 ee... enlelitael dite 39

FL ae ee ee 39

Commissioners’ Comment, 14 U.L.A. 544. 39

nn ocuisuesommions St 19

40 C.F.R.:

SEES ee 88, 49

ET EN SR OC 50

Vill

Miscellaneous: Page

4 W. Blackstone, Commentaries on the Laws of

England (Univ. of Chicago Press ed. 1979) -....... 14

FAA, U.S. Dep’t of Transportation, No. AMS-420,

Census of U.S. Civil Aircraft (Dec. 31, 1983) .... 19

Fish Stories and Empty Offices, Time, Apr. 11,

. | Fee ee 33

Highway Design Division, Texas Highway Depart-

ment, The Use of Maps Compiled by Photogram-

matic Methods (1966) .......... th <i et he 22-23

W. MacConnell & M. Cobb, Mass. Agricultural Ex-

periment Station, Bull. No. 622, Remote Sensing

20 Years of Change in MIDDLESEX COUNTY,

Massachusetts, 1951-1971 (1974) ........................ 22

Oe Oe 42

4 Restatement of Torts (1939) -.........................-. 39, 40, 44

Reynolds, Oblique Aerial Photography for Compre-

hensive Urban Planning, Plan. Advisory Service

ee 8 oD eee 22, 33

Senate Comm. on Public Works, 93d Cong., 2d Sess.,

A Legislative History of the Clean Air Act

Amendments of 1970 (Comm. Print 1974) ........ 48

Wick, Aerial Photography of Real Property and

Its Admissibility into Evidence, 1 Northrop

of 3 i 2, ORR ee Te Abe 22, 23

Iu the Supreme Court of the United States

OCTOBER TERM, 1985

No. 84-1259

Dow CHEMICAL COMPANY, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES

‘OPINIONS BELOW

The opinion of the court of appeals (Pet. App.

Al-Al4) is reported at 749 F.2d 307. The opinion

of the district court (Pet. App. B1-B45) is reported

at 536 F. Supp. 1355. 3

JURISDICTION

The judgment of the court of appeals was entered

on November 9, 1984. The petition for a writ of cer-

tiorari was filed on February 7, 1985, and was

granted on June 10, 1985. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

1. Petitioner owns and operates a large chemical

manufacturing facility in Midland, Michigan, which

occupies approximately 2,000 acres in an area that

is characterized by light to medium development. Pe-

titioner’s plant is located near an airport, and com-

mercial aircraft frequently pass over and near the

property. At the Midland location, petitioner owns

and operates two power plants known as the South

Side Power Plant and the West Side Power Plant.

Pet. App. A9, B2.

In late 1977 and early 1978, enforcement officials

of the Environmental Protection Agency (EPA) were

gathering information concerning emissions from

these power plants with the intention of bringing an

enforcement action under the Clean Air Act, 42

U.S.C. 7401 et seg. EPA officials made an on-site

inspection of the power plants in September 1977,

but petitioner refused to accede to a subsequent re-

quest for a second inspection. Pet. App. A2. There-

after, EPA enforcement officials decided to obtain

aerial photographs of petitioner’s Midland power

plants in order to attempt to visualize the emissions

from the stacks, to see the layout of the facilities,

and to look at the effects of emissions on surrounding

vegetation (J.A. A30). They contacted EPA’s En-

vironmental Monitoring and Surveillance Laboratory

(EMSL) in Las Vegas, Nevada, and ordered the

photographs. EMSL, in turn, contracted with Abrams

Aerial Survey Corporation (Abrams), a local aerial

photography business, to take photographs of the Dow

plant. Pet. App. A2.

On February 7, 1978, an Abrams employee flew

over petitioner’s facility and took photographs. These

photographs were taken when the airplane was flying

at altitudes of 12,000, 3,000 and 1,200 feet. The

camera used was a Wild RC-10 aerial mapping

camera with a six-inch lens and a focal length of 150

millimeters. The photographs taken at 1,200 feet

ouow the plant at a scale of 1 inch to 200 feet.

Abrams sent the undeveloped film to EMSL by cour-

ier service. There, EPA technicians developed the

film and made several prints and enlargements of the

power plants. The most detailed of the enlargements

was a 2x enlargement of one of the photographs

taken at the lowest altitude, resulting in a scale of

100 feet to the inch. See J.A. A42. The film and

enlargements were then sent to EPA’s Region V en-

forcement office in Chicago, Illinois. Pet. App. A3.

2. On March 15, 1978, petitioner brought an ac-

tion for injunctive and deciaratory relief against the

United States and EPA. It alleged that aerial photo-

graphy of its Midland plant violated its Fourth

Amendment rights and deprived it of trade secret

property interests in violation of the Fifth Amend-

ment. Petitioner sought to obtain the photographs

and to enjoin EPA’s future use of aerial photography

of the Midland plant. The court entered a temporary

restraining order enjoining EPA from disseminating,

releasing, copying, or duplicating the photographs or

releasing information derived therefrom. Subse-

quently, the court entered a preliminary injunction,

and the negatives and prints made by EPA were de-

posited, under seal, in the district court.’

1 Attorneys for the parties maintained access to the sealed

exhibits. Petitioner’s counsel took some of the film and had

two frames (Nos. 8505 and 9506) enlarged 10x and 20x,

resulting in a scale of 1 inch = 10 feet. These enlargements

prepared by petitioner are contained in the Sealed Joint

Appendix, photographs 4 and 5.

On April 19, 1982, the district. court granted peti-

tioner’s motion for partial summary judgment and

ruled that the aerial photography violated petitioner’s

Fourth Amendment rights.*? First, the court ruled

that because EPA admittedly was engaged in a

“quest for evidence” (Pet. App. B6), the warrantless

aerial photography was an unlawful administrative

search. Id. at B5-B17. In the alternative, the district

court analyzed the case under Katz v. United States,

389 U.S. 347 (1967), to determine whether peti-

tioner had a reasonable expectation of privacy upon

which EPA had infringed. It found that because pe-

titioner had designed its plant so that some outdoor

portions of the facility were not visible to a person

standing on the ground at the plant boundary, it had

an expectation of privacy in these outdoor facilities.

The court also found that the aerial photography was

a form of “visually enhanced surveillance” subject to

special restriction because “EPA could later analyze

[the photographs] under enlarged and magnified con-

ditions” (Pet. App. B27). See id. at B17-B32. Fi-

nally, the district court ruled that the “open fields”

doctrine did not apply when a property owner’s ex-

pectation of privacy was objectively reasonable. In

this regard, it relied (Pet. App. B32-B38) on the panel

decision in United States v. Oliver, 657 F.2d 85

(1981), which was subsequently rejected both by the

en bane court of appeals, 686 F.2d 356 (6th Cir.

1982), and by this Court, Oliver v. United States,

No. 82-15 (Apr. 17, 1984).

The district court aiso ruled that Section 114 of

the Clean Air Act, 42 U.S.C. 7414, which grants EPA

2 Petitioner’s claims under the Fifth Amendment were later

dismissed without prejudice by stipulation of the parties.

C.A. App. 447-448.

inspectors the “right of entry to, upon, or through

any premises” in certain circumstances, impliedly ex-

cluded EPA from using other techniques, such as

aerial surveillance or photography, as an investiga-

tive tool. The court ruled that Congress intended

that “only land-based inspections be utilized” (Pet.

App. B44). Hence, it held that the overflights ex-

ceeded EPA’s statutory authority. Jd. at B39-B44.

Accordingly, the court entered a permanent injunc-

tion against use of the photographs and against any

future aerial surveillance and photography of peti-

tioner’s facility (id. at B45).

3. The court of appeals reversed (Pet. App. Al-

A14). Looking to whether petitioner had a reason-

able expectation of privacy in the areas in question,

the court concluded that no reasonable expectation of

privacy was invaded in photographing from the air

the “outdoor spaces of a chemical plant” (id. at A13).

The court reasoned that petitioner had exhibited no

actual expectation of privacy from aerial observation

of its large industrial plant (id. at A7-A8). Even if

it had such an expectation, moreover, the court ex-

plained that society would not deem it to be reason-

able (id. at AQ):

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 d when the complex is near an air-

port and within the pattern of planes landing

and taking off, it is difficult to see how a reason-

able person would have privacy expectations in

the outside of the buildings and the spaces be-

tween the buildings.

The court distinguished the open-air facilities in-

volved here from petitioner’s offices and enclosed fa-

cilities, where the Court recognized the existence of

“strong expectations of privacy” (id. at All).

The court of appeals also reversed the district

court’s ruling that the flights were unlawful because

EPA was not authorized by statute to use aerial

photography as an investigative technique. It ruled

that Congress’s delegation under the Clean Air Act

of general investigative authority to EPA was suffi-

cient statutory authority to conduct aerial observa-

tion that satisfied the Fourth Amendment, Pet. App.

A13-A14.

SUMMARY OF ARGUMENT

A. It is a truism of Fourth Amendment law that

a government official is not “precluded from observ-

ing as an officer what would be entirely visible to him

as a private citizen.” Texas v. Brown, 460 U.S. 730,

740 (1983) (plurality opinion). Several decisions of

this Court make clear that a prohibition on entry into

a particular area is not equivalent to a prohibition

on viewing that area from some other place where

the officer may be without violating the party’s prop-

erty or privacy rights. Therefore, whether petition-

er’s outdoor facility is termed an “open field” or

“curtilage” or something else, there is no constitu-

tional bar to government agents’ viewing it from a

vantage point to which the public has access. More-

over, there is no constitutional requirement that the

government have any patricular quantum of suspicion

in so viewing private property, even if it is looking

for something in particular and therefore in that

sense conducting a “search.” If a government at-

tempt to obtain information does not infringe a

legitimate expectation of privacy, it plainly is not an

“unreasonable” search, and there is no need to estab-

lish a basis for suspicion in order to satisfy the

Feurth Amendment. In such circumstances, the fact

that the government deliberately observes a person’s

visible property does not mean that it has conducted

a “search” within the meaning of the Fourth Amend-

ment.

B. The photographs involved here were taken from

a plane flying in navigable airspace, above the mini-

mum altitude, and thus in a region that has been

designated by Congress as the equivalent of a public

aerial highway. There is no legal or physical barrier

to prevent anyone flying in navigable airspace from

looking down into petitioner’s outdoor facility, or in-

deed the curtilage of a home, while flying in one of

the more than 260,000 aircraft registered in the

United States. Thus, there is no legitimate expecta-

tion that outdoor activity will not be observed from

the air. To the extent that this possibility of aerial

observation constitutes a loss of privacy, it is lost

to the public at large. No legitimate privacy interest

would be served by imposing upon the government a

special limitation on aerial observation; in Fourth

Amendment terms, such observation by the govern-

ment does not intrude into a legitimate subjective ex-

peci_tion of privacy.

The same principles apply when a photograph is

taken from an airplane flying overhead. The photo-

graphs here were taken by a private contractor with

standard, commercially available camera equipment.

Any member of the public could have taken, or con-

tracted for, such nictures. Moreover, government

agencies regularly and routinely engage in aerial

photography for mapping and other noninvestigative

purposes. Thus, petitioner could have no legitimate

expectation that its plant would not be photographed

from the air. In the absence of an intrusion into such

a legitimate expectation of privacy, there is no con-

stitutional prohibition on the use of technology to

enhance human senses. See, e.g., United States v.

Knotts, 460 U.S. 276, 282 (1983) (beeper) ; Lopez

v. United States, 373 U.S. 427, 439 (1963) (sound

recording) ; United States v. Lee, 274 U.S. 559, 563

(1927) (searchlight, binoculars).

Petitioner contends that the level of detail poten-

tially capable of being revealed by enlargement and

magnification of the photographs taken for EPA es-

tablishes a Fourth Amendment violation, but this is-

sue is not genuinely presented in this case. The en-

largements of which petitioner complains were made

by petitioner itself—of a portion of the plant and at

a level of detail unnecessary to EPA’s investigation.

But the Fourth Amendment inquiry must focus on

any privacy intrusion actually committed by the gov-

ernment, not on the potential intrusion that theoreti-

cally could result if the government were to take

further steps. The fact that the government could

obtain certain information by technologically enhanc-

ing the photographs it has taken should not be con-

trolling if the government does not take such action.

In any event, petitioner can have no legitimate ex-

pectation of privacy in details of its plant that can

be revealed by ordinary enlargement and magnifica-

tion of the photographs. These techniques are avail-

able to the public, and the Fourth Amendment does

not prohibit the government from using them as well.

Moreover, petitioner offers no basis for determining

when a particular level of detail has become constitu-

tionally offensive other than the subjective desires of

the complaining party.

Even if there were a subjective expectation of pri-

vacy in an outdoor facility, it would not be one that

society recognizes as reasonable. Outdoor areas ordi-

narily “do not provide the setting for those intimate

activities that the [Fourth] Amendment is intended

to shelter from government interference or surveil-

lance.” Oliver v. United States, No. 82-15 (Apr. 17,

1984), slip op. 7. Whatever minimal privacy inter-

est one could imagine as being infringed by the pos-

sibility of aerial observation of outdoor activity can-

not outweigh the important public interests served by

the use of that technique to assist government regu-

lation and law enforcement. This is particularly so

when the area in question is an industrial facility,

rather than the curtilage of a home.

Even if, as petitioner contends, the configuration of

pipes or other details of its outdoor plant may con-

stitute a “trade secret,” that fact would have no bear-

ing on the Fourth Amendment question at issue here.

Trade secret laws are designed to protect against un-

fair competition by preventing the unauthorized dis-

closure or use of a trade secret. These laws do not

purport to establish any privacy interest that would

be infringed by observation, and they provide no

guidance for the constitutional inquiry. For exam-

ple, even if aerial photographs were regarded as an

improper means of obtaining a trade secret for pur-

poses of unfair competition law, as disclosure of con-

fidential information by a former employee would be,

that would not mean that the method violates the

Fourth Amendment. Moreover, the government has

no interest in building a chemical plant to compete

with petitioner or otherwise using the trade secret;

therefore, its mere possession of particular informa-

tion would not even violate the trade secret laws and

ought to cause petitioner no concern. Indeed, nu-

merous statutes contemplate that companies will turn

over their trade secrets to the government in the

course of normal business.

Il.

It is clear that the overflight here was not invalid

for lack of statutory authority. When Congress in-

vests a government agency with law enforcement

and investigatory authority, it is naturally and prop-

erly assumed that the agency is entitled to use any

methods of investigation that could lawfully be em-

ployed by private investigators, even if not specifically

enumerated in the statute. Nothing in the Clean Air

Act gives any reason to doubt the correctness of this

assumption. Plainly, the expansion of EPA’s powers

to authorize it to enter and inspect private premises

in conducting its inquiries carries no negative im-

plication prohibiting other, less intrusive forms of

investigation.

ARGUMENT

I. USING STANDARD, GENERALLY AVAILABLE

PHOTOGRAPHIC EQUIPMENT TO TAKE AERIAL

PHOTOGRAPHS OF AN OUTDOOR MANUFAC-

TURING PLANT FROM NAVIGABLE AIRSPACE

DOES NOT VIOLATE THE FOURTH AMENDMENT

Petitioner contends that the EPA violated the

Fourth Amendment when it engaged a private con-

cern to take aerial photographs of its outdoor chemi-

cal plant. Petitioner appears to advance several al-

ternative, albeit related, contentions. First, because

it has taken steps to exclude the public from entry

onto the plant grounds, petitioner asserts that the

plant is not an “open field” and hence that it is pro-

tected from observation by agents of the government

in the absence of probable cause and a warrant (Br.

19-24). In any event, petitioner contends that the

aerial observation that took place here violated the

Fourth Amendment. Petitioner appears to contend

that it is unlawful to view its facility from the air

because it has taken extensive measures to prevent

observation from the ground (see id. at 7-9, 16-17,

21), and it particularly objects to the use of aerial

photography, arguing that the Fourth Amendment

prohibits anything other than unaided “naked eye”

viewing (id. at 24-30). Finally, petitioner contends

that the capacity of the photographs to reveal detail

through enlargement and magnification demonstrates

a Fourth Amendment violation (id. at 31-41).

The court of appeals correctly rejected these con-

tentions. Even if one accepts petitioner’s argument

that the plant is not like an “open field” insofar as

the public is denied access, this does not mean that

the plant may not be viewed by the public (or the

government) from a vantage point to which it undis-

putedly does have access. Put another way, the fact

that an area is protected from physical entry does

not mean that the law provides an additional barrier

to observation from outside the property where none

exists in fact. And the Fourth Amendment does not

prevent the use of a camera to record an otherwise

lawful visual observation.

A. The Fourth Amendment Does Not Generally Pro-

hibit Government Officials From Observing Areas

Exposed To Their View From A Place Where They

Have A Right To Be

1. There Is No Constitutional Bar To Viewing The

“Curtilage” From A Vantage Point To Which The

Public Has Access

In Oliver v. United States, No. 82-15 (Apr. 17,

1984), the Court reaffirmed the “open fields” doctrine,

which was first recognized in Hester v. United States,

265 U.S. 57 (1924). The Court held that the Fourth

Amendment is not violated by a government entry

onto open fields even though the entry is an unin-

vited trespassory intrusion onto private property. The

Court first noted (Oliver, slip op. 4-5) that open fields

beyond the curtilage of a dwelling are not properly

classified among the “persons, houses, papers, and

effects” to which the protections of the Fourth

Amendment apply. It then explained that the same

result would also be independently reached under the

“expectation of privacy” analysis of Katz v. United

States, 389 U.S. 347 (1967). First, “open fields do

not provide the setting for those intimate activities

that the [Fourth] Amendment is intended to shelter

from government interference or surveillance” (Oli-

ver, slip op. 7). In addition, despite his ownership

interest and manifestations of that interest such as

fences or no trespassing signs, a landowner has no

reasonable expectation of privacy in his open fields

because “as a practical matter these lands usually are

accessible to the public and the police in ways that

a home, office or commercial structure would not be”

(ibid.). The “open fields” doctrine thus is an illus-

tration of the more general principle that “there is

no reason [why a policeman or other government of-

ficial] should be precluded from observing as an of-

ficer what would be entirely visible to him as a pri-

vate citizen.” Texas v. Brown, 460 U.S. 730, 740

(1983) (plurality opinion). See also Maryland v.

Macon, No. 84-778 (June 17, 1985), slip op. 5;

Marshall v. Barlow’s, Inc., 486 U.S. 307, 315 (1978) ;

Air Pollution Variance Board v. Western Alfalfa

Corp., 416 U.S. 861, 865 (1974).

In Oliver, the Court distinguished “open fields”

from the common law concept of “curtilage,” de-

scribed as “the land immediately surrounding and

associated with the home” (id. at 8). While the Court

expressly did not consider the scope of Fourth

Amendment protection of the curtilage as opposed to

the home (id. at 9 n.11), it suggested that areas

considered part of the curtilage would have greater

constitutional protection than open fields. Petitioner

seizes upon this distinction to support its challenge

to EPA’s aerial viewing of its outdoor plant. Pe-

titioner contends that the outdoor portions of its plant

are not “open fields,” but rather are a “business cur-

tilage” (Br. 20) that cannot constitutionally be viewed

from the air. This contention misperceives the na-

ture of the issue in Oliver and of the Fourth Amend-

ment protection of privacy in the curtilage.’

It was never disputed in Oliver that the police were

entitled to look into the landowner’s property and see

whatever they could see while standing on public

8 Petitioner’s manufacturing plant does not fit within the

ordinary understanding of the term “curtilage,” which is par-

ticularly associated with the home. In Oliver, the Court de-

scribed the curtilage as “the area to which extends the inti-

mate activity associated with the ‘sanctity of a man’s home

and the privacies of life.’” Slip op. 8 (quoting Boyd V.

United States, 116 U.S. 616, 630 (1886)). The intimate

activities associated with the home do not take place in the

outdoor areas of a manufacturing plant. More generally, “the

expectation of privacy that the owner of commercial property

enjoys in such property differs significantly from the sanctity

accorded an individual’s home.” Donovan v. Dewey, 452 USS.

594, 598-599 (1981). Hence, petitioner’s plant cannot be con-

sidered as coming within the ambit of the common law concept

of “curtilage.” See, e.g., United States v. Long, 674 F.2d 848,

853 (11th Cir. 1982) ; United States v. Wolfe, 375 F. Supp.

949, 957-959 (E.D. Pa. 1974) ; but cf. United States v. Swart,

679 F.2d 698 (7th Cir. 1982) (stating that yard of auto

repair shop may be “curtilege” and hence protected from un-

consented entry). For present purposes, however, we will

assume that the grounds of petitioner’s plant are entitled to a

degree of Fourth Amendment protection somewhat akin to,

although not necessarily identical to, that appropriate for the

curtilage. See pages 36-37, infra.

property. The focus of the litigation in Oliver was

over the right of police to enter the property; regard-

less of the outcome of the case there would have been

no bar to observation of the private property from

outside, whether from the ground or the air (see slip

op. 7 n.9). The same assumptions that underlay the

Court’s deliberations in Oliver apply to the curtilage.

The fact that the Fourth Amendment may protect

against entry in the absence of probable cause or a

warrant does not mean that the Constitution erects

a barrier to visual observation from areas open to

the public. See, e.g., Texas v. Brown, supra (looking

into an automobile) ; United States v. Santana, 427

U.S. 38 (1976) (observing individual in doorway of

her home) ; United States v. Lee, 274 U.S. 559 (1927)

(looking onto a boat deck). This conclusion is par-

ticularly apt in the case of the common law concept

of curtilage, which originated in the course of de-

fining what intrusions into the area of the home

would constitute a burglary (see 4 W. Blackstone,

Commentaries on the Laws of England ch. 16, at

225 (Univ. of Chicago Press ed. 1979)); the notion

of curtilage focuses on physical entry, not freedom

from observation. Thus, petitioner’s assertion here

that its plant is not an “open field,” but rather some-

thing akin to curtilage that is entitled to Fourth

Amendment protection, does not address the question

presented of the lawfulness of the observation of the

plant from public navigable airspace.

This Court has never suggested that the Fourth

Amendment‘ prohibits government officials from ob-

serving the curtilage; indeed, a long line of decisions

plainly demonstrates that the Court has aways as-

sumed that such observation is lawful. In Hester,

for example, the police officers who entered the open

field were able to observe the defendant in possession

of contraband just outside the doorstep of his house.

265 U.S. at 58. Once the Court determined that the

trespass did not violate the Fourth Amendment, it

did not doubt that the officers lawfully could observe

the defendant’s activities from their vantage point

in the open field, although those activities almost

surely took place within the curtilage. Similarly, in

United States v. Karo, No. 83-850 (July 3, 1984),

and United States v. Knotts, 460 U.S. 276 (1983),

the Court considered the Fourth Amendment impli-

eations of police monitoring of a “beeper” trans-

mitting signals from in or near a privately owned

building. The Court found manifestly unobjection-

able the use of a beeper to obtain information avail-

able from visual surveillance, even if that surveil-

lance extended up to the door of a residence (see

Karo, slip op. 7-9; 460 U.S. at 281-282, 285). The

only Fourth Amendment problem arose from the use

of the beeper “to obtain information that it could

not have obtained by observation from outside the

curtilage of the house” (Karo, slip op. 9). In sum,

the fact that government officials may lack authority

in a given situation to enter the curtilage of a resi-

dence does not prevent them from standing outside

the curtilage and looking inside to observe what is

exposed to their view from that vantage point. See

also Fullbright v. United States, 392 F.2d 432, 434-

435 (10th Cir.), cert. denied, 393 U.S. 830 (1968).

2. The Fact That The Purpose Of A Police Observa-

tion Is To Discover Evidence Does Not Automati-

cally Make The Police Conduct A “Search”

Within the Meaning Of The Fourth Amendment

Contrary to petitioner’s contention (Br. 27-30),

the fact that government officials are looking for

something, and hence can be colloquially described

as conducting a “search,” does not mean that their

activity is violative of the Fourth Amendment if done

in the absence of probable cause and a warrant. In

Fourth Amendment terms, “[a] ‘search’ occurs ‘when

an expectation of privacy that society is prepared to

consider reasonable is infringed.’” United States v.

Karo, slip op. 6 (quoting United States v. Jacobsen,

No. 82-1167 (Apr. 2, 1984), slip op. 3). This is be-

eause in those situations where there is no intrusion

into a legitimate expectation of privacy, the investi-

gative activity is presumptively reasonable even in

the absence of any suspicion at all, and hence the

Fourth Amendment’s protection against “unreason-

able” searches does not even come into play.

Obviously, when police scour the streets looking for

a suspect or wait by the side of the highway looking

for a particular car, they are conducting a “search,”

but their activity raises no Fourth Amendment ques-

tion. Similarly, the Court has held that police may

enter and inspect an open field (Oliver), have a dog

sniff luggage (United States v. Place, 462 U.S. 696,

706-707 (1983)), and field test for cocaine (United

States v. Jacobsen, swpra) without any particularized

suspicion of criminal activity. These measures do not

implicate sufficiently weighty privacy interests to be

deemed unreasonable in the absence of such suspicion

(see Oliver, slip op. 5); hence, use of these measures

does not invoke Fourth Amendment scrutiny of the jus-

tification for the search. For this reason, such meas-

ures are not “searches” within the meaning of the

Fourth Amendment, although they plainly involve

“searches” in the ordinary sense of looking for some-

thing. See Oliver, slip op. 11; Place, 462 U.S. at 707;

Jacobsen, slip op. 10, 12. By the same token, the fact

that government officials who peer into exposed cur-

tilage may be “searching” for something does not

mean that they are conducting a “search” within the

meaning of the Fourth Amendment—.e., that their

activity is unreasonable in the absence of a particular

degree of suspicion.*

B. Observation And Ordinary Photography From The

Air Do Not Violate The Fourth Amendment

Petitioner’s primary contention is that, even if

ground level observation of activities and structures

on the curtilage from a point outside the curtilage

would be permitted, the use of airplanes, and particu-

larly aerial photography, to observe its chemical

plant is unconstitutional. Petitioner’s assertion that

these methods of observation invade its legitimate ex-

pectation of privacy must be assessed by reference

to the two-part inquiry first set forth by Justice

Harlan in his concurring opinion in Katz v. United

States, 389 U.S. at 361 (1967), and subsequently

embraced by the full Court. See, e.g., United States

v. Knotts, 460 U.S. at 280-281; Smith v. Maryland,

442 U.S. 735 (1979). Under this test, an individual

has a legitimate expectation of privacy subject to con-

stitutional protection in a particular area or activity

if he has exhibited a subjective expectation of privacy

and if that expectation is one that society is prepared

to recognize as reasonable.

The first part of the test recognizes that there are

situations in which even essentially private activities

that ordinarily warrant Fourth Amendment protec-

tion nonetheless can be devoid of any legitimate ex-

pectation of privacy because an individual engages in

those activities in a manner that is not calculated

to shield them from the public. If these otherwise

* Suppose that in this case EPA agents had observed and

photographed petitioner’s plant from the top of a nearby tall

building or water tower. Plainly, there could be no tenable

claim of a Fourth Amendment violation in such circumstances.

For reasons explained in the next point, the same action from

the public airspace is analytically indistinguishable.

private matters are exposed to the public, then they

are equally exposed to government officials. Thus, an

individual lacks a legitimate expectation of privacy

in a private conversation that is loud enough to be

overheard by passersby (Katz, 389 U.S. at 361 (Har-

lan, J., concurring) ), in private papers that he leaves

exposed on a park bench, or in reading material that

he sells to the public (Maryland v. Macon, supra).

The second part of the test recognizes that the mere

fact that an individual has taken steps to protect

certain activities from observation by the public does

not automatically mean that they are protected by

the Fourth Amendment. Some activities and areas

are sufficiently removed from the intimate private ac-

tivities whose protection is at the core of the Fourth

Amendment that the government’s interest in ef-

fectively conducting its business outweighs the lim-

ited privacy interest involved. For example, even if

a landowner takes steps to exclude the public from

his marijuana fields, the Fourth Amendment does not

prevent police from entering to investigate the illegal

enterprise (Oliver, slip op. 13).°

1. There Is No Legitimate Expectation That One

Can Conduct Outdoor Activity Free From The

Possibility Of Aerial Observation

In today’s society, there can be no reasonable sub-

jective expectation that outdoor activity will be free

from overflights by aircraft and the possibility of

observation from such aircraft. Since 1926, there has

been a public right of travel in airspace above pre-

5In this connection, we urge the Court to examine the

photographs taken for EPA and contained in the Sealed Joint

Appendix (Nos. 1, 2, and 3) ; the suggestion that they reveal

the kind of private object or activity deserving of substantial

Fourth Amendment protection seems to us to be entirely

belied by the photographs. |

scribed minimum altitudes of flight. See Air Com-

merce Act of 1926, ch. 344, § 10, 44 Stat. 574.° By

regulation, the minimum altitude for fixed wing air-

craft has been set at 1,000 feet in congested areas

and 500 feet in uncongested areas. 14 C.F.R. 91.79.’

In addition to commercial air carriers, this public

highway through the air is used by more than 260,000

aircraft registered in the United States, which log

more than 36 million flight hours per year. FAA,

U.S. Dep’t of Transportation, No. AMS-420, Census

of U.S. Civil Aircraft 4, 46, 54 (Dec. 31, 1983). Air-

planes and helicopters flying at relatively low al-

titudes are used routinely to perform such diverse

functions as providing traffic reports, crop dusting,

shooting film for news programs, sightseeing, and

getting from one place to another. There is nothing

to prevent the 718,000 active pilots (id. at 46) or

their passengers on these planes from looking down

and observing what they can see on the ground below

from altitudes as low as 1,000 feet.*

Indeed, the litigation in Oliver was premised on the

assumption by the parties and the Court that “the

* This declaration of a public right of freedom of transit

through navigable airspace was repeated in the Civil Aero-

nautics Act of 1938, ch. 601, § 3, 52 Stat. 980, and in the

Federal Aviation Administration Act of 1958, Pub. L. No. 85-

726, § 104, 72 Stat. 740. It is codified at 49 U.S.C. App. 1304.

™No minimum altitude is set for aircraft operating over

open water or sparsely populated areas, but such aircraft

must remain 500 feet above any person, vehicle, or structure.

Helicopters may be operated at lower altitudes than those

specified for fixed wing aircraft as long as they are operated

vithout hazard to persons or property on the ground. 14

C.F.R. 91.79.

* More than 1 million flight hours per year are devoted to

the purpose of “aerial observation.” Census of U.S. Civil

Aircraft, supra, at 54.

publie and police lawfully may survey lands from the

air.” Slip op. 7 (footnote omitted). The Court re-

lied on the fact that repudiation of the “open fields”

doctrine would have little practical effect because law

enforcement officials could resort to aerial surveillance

(id. at 7 n.9). Even the dissenting opinion in the

en banc court of appeals in Oliver shared this premise,

although it disagreed with this Court’s ultimate con-

clusion that an entry into open fields was permitted:

“Oliver did not have a reasonable expectation of pri-

vacy from planes or helicopters flying overhead.

Thus, the officers could have lawfully used airplanes

or helicopters to observe the marijuana from the air.”

686 F.2d at 372 (Keith, J., dissenting) .°

*In light of the established, pervasive use of the aerial

highways, lower courts faced with the question have almost

uniformly held that aerial observation does not violate the

Fourth Amendment. See, e.g., United States v. Marbury, 732

F.2d 390, 398 (5th Cir. 1984); United States v. Allen, 675

F.2d 1373, 1380-1381 (9th Cir. 1980), cert. denied, 454 U.S.

833 (1981); United States v. Bassford, 601 F. Supp. 1324,

1328-1332 (D. Me. 1985); United States v. Mullinezx, 508

F. Supp. 512, 514-515 (E.D. Ky. 1980); United States v.

DeBacker, 493 F. Supp. 1078, 1081 (W.D. Mich. 1980) ; State

Vv. Knight, 63 Hawaii 90, 621 P.2d 370 (1980); People v.

Lashmett, 71 Ill. App. 3d 429, 431, 389 N.E.2d 888, 890 (1979),

cert. denied, 444 U.S. 1081 (1980); Williams v. State, 157

Ga. App. 476, cert. denied, 454 U.S. 823 (1981). The courts

that have found constitutional violations in the context of

aerial observation generally have done so in cases where the

overflights went below navigable airspace,. See, e.g., National

Organization for the Reform of Marijuana Laws, Inc. Vv.

Mullen, 608 F. Supp. 945 (C.D. Cal. 1985) ; People v. Sneed,

32 Cal. App. 3d 535, 542-5438, 108 Cal. Rptr. 146, 150-151

(1973).

In People v. Ciraolo, 161 Cal. App. 3d 1081, 208 Cal. Rptr.

93 (1984), cert. granted, No. 84-1513 (June 3, 1985), the

California Court of Appeals appears to have established a

broad rule that aerial observation of the curtilage violates

Establishment of a rule making it a Fourth Amend-

ment violation to look down into the curtilage from

a passing airplane would lead to strange results. Gov-

ernment officials would be forced to avert their eyes

from the ground during flight even as other members

of the public looked down. Moreover, because air-

craft may come upon structures suddenly and, in any

event, it is difficult to distinguish between the cur-

tilage and open fields, the practical effect of such a

rule would be to prevent government officials from

observing even open fields from the air—an action

that everyone agrees is lawful. See United States v.

Bassford, 601 F. Supp. 1324, 1331-1332 (D. Me.

1985). Indeed, petitioner itself at times appears

to concede that aerial observation with the naked eye

does not implicate the Fourth Amendment (see Br.

25, 37). In short, Congress’s establishment of a

public right to freedom of transit in navigable air-

space necessarily constitutes a decision in favor of

the social and economic advantages of relatively un-

restrained aviation at the expense of the loss of some

degree of privacy from airborne observation. That

privacy has been lost to the public, and it cannot be

recaptured by reading the Fourth Amendment to im-

pose special limitations upon the viewing ability of

government officials.

2. There Is No Reasonable Expectation That An

Outdoor Facility Will Not Be Photographed

From The Air

Petitioner correctly notes that aerial] photography

allows more to be seen than mere observation from

the air by the unaided human eye. The creation of

the Fourth Amendment in the absence of probable cause and a

warrant. For the reasons discussed in this brief, we believe

that Ciraolo is wrongly decided and should be reversed by

this Court.

a permanent record may make it easier for the ob-

server to comprehend fully what is exposed to his

view. Moreover, it is usually possible to enlarge a

photograph, thus exposing more detail than could be

seen with the naked eye from the same vantage

point.” It does not follow, however, that an individ-

ual has a legitimate expectation that his outdoor ac-

tivity or facility will be free from the possibility of

being photographed from a plane flying overhead.

As this Court’s own decisions reflect (see Nebraska

v. Wyoming, 325 U.S. 589, 668 (1945); Kansas v.

Missouri, 322 U.S. 218, 220 (1944)), aerial photog-

raphy has been practiced on a regular basis since the

early days of aviation. See generally Wick, Aerial

Photography of Real Property and Its Admissibility

into Evidence, 1 Northrup U.L.J. 113 (1979). Aerial

photography is frequently employed by both govern-

ments and private persons for a variety of useful

purposes." In contrast to wiretapping (see Berger v.

10 Petitioner also asserts (Br. 38) that a camera can see

what a person cannot because looking through the floor of a

plane is a superior vantage point to looking out the window.

It may be true that a passenger’s view from a commercial air

carrier is not very good as compared to a floor-mounted

camera. But a passenger in a smaller general aviation craft,

which is the sort of aircraft that is likely to fly low enough

that items on the ground may be visible, nas a much greater

range of vision and ordinarily would be able to have a down-

ward view similar to that of a camera.

" Aerial photographs are used extensively for mapping

purposes, and they have considerable utility in urban and

regional planning (see, e.g., Reynolds, Oblique Aerial Photog-

raphy for Comprehensive Urban Planning, Plan. Advisory

Service Rep., May 1981, at 1; W. MacConnell & M. Cobb,

Mass. Agricultural Experiment Station, Bull. No. 622, Re-

mote Sensing 20 Years of Change in Middlesex County

Massachusetts, 1951-1971 (1974)) and highway location and

design (see Highway Design Division, Texas Highway De-

New York, 388 U.S. 41, 45-49 (1967)), there is no

history of federal or state laws generally restricting

aerial photography. Congress has acted to prohibit

the use of such photography only in very limited cir-

cumstances (see 18 U.S.C. 796 (military installa-

tions); 42 U.S.C. 2278(b) (designated national se-

curity-related nuclear facilities)) and otherwise has

allowed its widespread use. Indeed, the common use

of this technique is evidenced in this case by the fact

that the EPA did not need to go to great lengths to

obtain the photographs. It simply hired a local con-

tractor whose business was aerial photography.

The record in this case shows that the government

routinely engages in aerial photography for diverse

purposes having nothing at all to do with investigat-

ing criminal activity or discovering regulatory viola-

tions. See, e.g., Affidavit of G. LaRoche, Nuclear Reg-

ulatory Commission (site evaluation and emergency

response planning for nuclear power plants); Affi-

davit of J. Jarman, United States Forest Service

(watershed, flood plain, and resource survey); Af-

fidavit of R. McArdle, Department of Agriculture

(wetlands and soil conservation). See also United

States v. Tull, No. 84-1766 (4th Cir. July 30, 1985),

slip op. 14 n.5. The same is true of state govern-

ments. Indeed, the record shows that petitioner’s Mid-

land plant was photographed from the air by the

Michigan Department of Natural Resources pursuant

to its regular regulatory functions (J.A. A54). Thus,

petitioner’s outdoor plant is exposed to observation

and photography from the air, and such photography

is known to be relatively common. In these circum-

stances, it cannot reasonably be asserted that peti-

partment, The Use of Maps Compiled by Photogrammatic

Methods (1966)). See generally Wick, supra, 1 Northrop

U.L.J. at 116-117.

tioner had any genuine subjective expectation of pri-

vacy from aerial photography.

Notwithstanding the fact that it could not reason-

ably entertain a subjective expectation of privacy

from aerial photography, petitioner argues (Br. 16,

25, 30, 31, 37-39) that the use of technology such as

a camera to enhance the vision of the naked eye is so

inherently intrusive that it must be deemed violative

of the Fourth Amendment. This broad proposition

is clearly without support in established Fourth

Amendment jurisprudence. In United States v.

Knotts, 460 U.S. at 282, the Court observed that

“(n]jothing in the Fourth Amendment prohibited the

police from augmenting the sensory faculties be-

stowed upon them at birth with such enhancement as

science and technology afforded them in this case”

(a beeper). While this statement does not mean that

there are no constitutional limits on the use of tech-

nological developments to aid the police, it reflects the

Court’s consistent recognition that the Fourth Amend-

ment does not restrict government investigators to

observation by the unaided human senses.” A long

line of authority has recognized the use of relatively

common devices to enhance vision, hearing, smell, and

memory.

The Court has not specifically confronted the ques-

tion whether photography of an area that a govern-

ment official may lawfully view with the naked eye

2 If, for example, the government possessed a sophisticated

X-ray device that enabled it to see through the walls of a

house, there seems little doubt that the use of such a device

to discover objects or activities located inside a dwelling would

be subject to Fourth Amendment regulation. That is because

people can reasonably expect privacy from such surveillance.

The same plainly cannot be said with respect to the use of

commonly available photographic equipment to record outdoor

activities or conditions.

violates the Fourth Amendment, but its decisions on

related questions leave little doubt that it does not.

In United States v. Lee, supra, the Court ruled that

there was no constitutional bar to the use of a search-

light to illuminate a dark area into which officers

could not otherwise see. The Court analogized the

use of the searchlight to the use of binoculars, which

it regarded as so plainly constitutional that it did not

warrant discussion. 274 U.S. at 563. See also On

Lee v. United States, 343 U.S. 747, 754 (1952). The

mere fact that human vision is enhanced in a way

that allows an observer to see more detail does not

create a constitutional violation. By the same token,

the mere fact that the camera creates a permanent

record of a view that is only transitory to the naked

eye does not prohibit its use. In Lopez v. United

States, 373 U.S. 427, 439 (1963), the Court recog-

nized that an undercover police officer may surrep-

titiously record a private conversation; indeed, he

may even carry a transmitter to broadcast the con-

versation to other police officers. See United States

v. Caceres, 440 U.S. 741, 750-751 (1979); United

States v. White, 401 U.S. 745 (1971). As long as he

is listening to the conversation lawfully, there is no

bar to recording it for permanent use. Against this

background, there is little basis for the contention

that the police or other government officials are con-

stitutionally prohibited from photographing what

they can lawfully observe with the naked eye (or

through eyeglasses). See also United States v. Crews,

445 U.S. 463, 474-475 (1980) (plurality opinion).

The courts of appeals have recognized that govern-

ment officials are entitled to take photographs or make

other permanent records of things that they lawfully

observe. In United States v. Allen, 675 F.2d 1373,

1379-1381 (9th Cir. 1980), cert. denied, 454 U.S. 833

(1981), the court upheld the admissibility of photo-

graphs taken from a helicopter with a telephoto lens.

See also United States v. Hensel, 509 F. Supp. 1376,

1379 (D. Me. 1981), aff’d, 699 F.2d 18, 41 (1st Cir.),

cert. denied, 461 U.S. 958 (1983) (aerial photo-

graphs); United States v. Espinoza, 641 F.2d 1538,

167 (4th Cir. 1981) (photographs on ground) ;

United States v. Thomas, 613 F.2d 787, 793 (10th

Cir. 1980) (photocopies). And the courts have re-

peatedly upheld the use of vision enlarging aids such

as binoculars. See, e.g., United States v. Hensel, 699

F.2d at 41; United States v. Dubrofsky, 581 F.2d 208,

211 (9th Cir. 1978); United States v. Minton, 488

F.2d 37, 38 (4th Cir. 1973), cert. denied, 416 U.S.

936 (1974); Fullbright v. United States, supra.”

3. The Fact That Good Quality Aerial Photographs

Are Capable Of Revealing Additional Detail

When Enlarged And Magnified Does Not Give

Rise To A Fourth Amendment Violation

Perhaps recognizing the difficulty in contending

that it has a legitimate expectation of privacy from

18 Petitioner relies heavily (see Br. 16, 25, 27-29, 37) on

United States v. Taborda, 635 F.2d 131 (2d Cir. 1980), and

United States v. Kim, 415 F. Supp. 1252 (D. Hawaii 1976),

which found the use of telescopes to violate the Fourth Amend-

ment. These cases, however, are plainly inapposite here because

they turned on the fact that the telescopes were used to see

inside the home, not to observe activity occurring in the open

air. Taborda, 635 F.2d at 138-139; Kim, 415 F. Supp. at

1257-1258. Whether or not these cases are correctly decided

on their facts, it is apparent that the fundamental Fourth

Amendment concern with the privacy of the home because of

the intimate activities that occur there justifies greater pro-

tection against the use of technological visual aids than is

appropriate in the case of outdoor activities, even if they occur

on the curtilage. See United States v. Hensel, 699 F.2d at 41;

United States v. Lace, 669 F.2d 46, 49-51 (2d Cir.), cert.

denied, 459 U.S. 854 (1982). See generally pages 33-37, infra.

aerial photography generally, petitioner devotes part

of its brief (at 35-41) to what appears to be an

extremely case-specific contention, namely, that the

particular photographs taken here—because of the

degree of detail of petitioner’s chemical plant capable

of being revealed by enlargements of those photo-

graphs viewed under magnification—were so intru-

sive that they should be held to violate the Fourth

Amendment. This position is somewhat unfocusec,

but it appears to suggest an unacceptable regime in

which the dispositive factor would be the degree to

which an individual subjectively desires to be free

from aerial observation—a standard that would make

it all but impossible for government officials to have

known in advance whether their conduct comports

with the Fourth Amendment. Before turning to this

contention, however, it is important to emphasize that

this case does not genuinely present the case-specific

question addressed by petitioner; the intrusion that

petitioner asserts would be unconstitutional is a hypo-

thetical one that was not actually established by any

actions taken by the government in this case.

a. The Fourth Amendment issue in this case comes

to the Court in a most peculiar context. There has

been no attempt by the government to introduce any

evidence gleaned from the overflight against petitioner

in any judicial or other proceeding, and thus there is

no specific evidence that is sought to be suppressed.

Rather, it is petitioner that commenced this litiga-

tion, seeking to enjoin the government from any use

of the information obtained from the aerial photog-

raphy. Petitioner’s arguments accordingly have been

addressed to the entire array of photographs taken

and what they theoretically are capable of revealing

through the further application of enlargement and

magnification technology. The particular level of de-

tail about which petitioner expresses principal con-

cern in this Court (see Br. 12, 37-39; Sealed Joint

Appendix, Photographs 4 & 5) is found in enlarge-

ments created not by the government, but by peti-

tioner itself; these enlargements have never been in

the government’s possession except in a theoretical

sense.**

There is no reason to suppose that the government

would ever have made enlargements like those made

by petitioner, for they do not relate to any matter in

which the government has expressed an interest. The

government was investigating the two power plants

at petitioner’s Midland facility, and EPA officials did

make modest 2x enlargements of some pictures of the

power plants. Petitioner does not assert the existence

of any private information in these pictures of the

power plants. Rather, it focuses its attention on the

In our view, the district court erred in exercising juris-

diction over petitioner’s suit, presumably on the basis of its

inherent equitable powers, rather than waiting for a concrete

controversy where the government actually tried to make use

of some of the information gathered during the overflight.

See Pieper v. United States, 604 F.2d 1131 (8th Cir. 1979);

In re Worksite Inspection of Quality Products, Inc., 592 F.2d

611, 613-617 (1st Cir. 1979) ; Hunsucker v. Phinney, 497 F.2d

29 (5th Cir. 1974), cert. denied, 420 U.S. 927 (1975). More-

over, even if there existed a sufficient prospect of future

warrantless aerial photography of petitioner’s facility to

justify possible declaratory or prospective injunctive relief,

it is most doubtful that the injunction barring any use of the

photographs already taken could be proper. It is by no means

clear that the exclusionary rule would apply to EPA regula-

tory proceedings (cf. INS v. Lopez-Mendoza, No. 83-491

(July 5, 1984)) or that, if it did, it would bar consideration

of evidence obtained in the mistaken but “good faith” belief

that the Fourth Amendment was not being violated (cf.

United States v. Leon, No. 82-1771 (July 5, 1984)). The

propriety of EPA’s use of the photographs in such a manner

would be best determined in connection with any proceeding

in which such use was sought to be made.

details of the nearby chemical manufacturing fa-

cilities that were also captured on the film. Peti-

tioner has enlarged these photographs 20x (see

Sealed Joint Appendix, Photograph 5) and claims

that the enlargements that it itself produced so in-

trude into its private concerns that the aerial pho-

tography must be held to violate the Fourth Amend-

ment. In sum, the government has taken photographs

that do not appear to implicate any privacy concerns

of petitioner; petitioner in turn has manipulated those

photographs to expose information that it desires to

keep private and now complains about the attendant

privacy intrusion.”

Petitioner’s complaint therefore is about the po-

ential privacy intrusion created by the aerial pho-

tography here. The Court has recently rejected essen-

tially the same contention, however, making clear that

the Fourth Amendment does not prohibit government

activity simply because of the information that could

be revealed if further activity were undertaken. The

fact that it may violate the Fourth Amendment to

monitor a beeper when it is located in a private resi-

dence (see United States v. Karo, supra) does not

15 The difference between the magnified enlargements upon

which petitioner focuses its attention and the actual photo-

graphs possessed by the government is dramatic. Petitioner

apparently regards enlargements that show items as small as

14 inch in diameter to be unconstitutionally intrusive (see

Pet. Br. 12 n.*, 14). The original contact prints made by the

government in this case of the photographs taken at the lowest

altitude were at a scale of 1 inch = 200 feet (Pet. Br. 12).

Thus, on these prints a half-inch item would measure 1/4800

of an inch. The district court found that these prints could

be enlarged to a scale of 1 inch = 20 feet without significant

loss of resolution (Pet. App. B3; see Pet. Br. 12; J.A. A59).

Even at the scale of these potential enlargements, the items

in question would measure only 1/480 of an inch o. the

photograph.

mean that it is unlawful to install the beeper in a

container of chemicals that might be taken into a

private residence. As long as the beeper is not ac-

tually used to reveal information about the where-

abouts of an item in a private place that could not

be learned through observation from a place where

the police have a right to be, its use for other pur-

poses not implicating protected privacy rights is law-

ful (see United States v. Knotts, 460 U.S. at 285).

It is clear that “potential, as opposed to actual, in-

vasions of privacy [do not] constitute searches for

purposes of the Fourth Amendment. * * * It is the

exploitation of technological advances that implicates

the Fourth Amendment, not their mere existence.”

Karo, slip op. 6.**

Thus, even on the assumption that petitioner is

correct that it would violate its Fourth Amendment

rights for the government to observe the details of

petitioner’s chemical plant to the extent revealed in

16 Under petitioner’s suggestion, as technology improved,

there would paradoxically be a reduction in the degree of tech-

nology available to government officials. For example, under

Lopez Vv. United States, supra, the police are permitted to

record a conversation between a suspect and an informant.

Suppose it were possible through the use of advanced tech-

nology to amplify that recording and suppress interference to

the extent that a conversation taking place in the adjoining

room could be made audible. Petitioner’s contention would

lead to the perverse result that the possibility of such enhance-

ment would invalidate the act of recording itself and require

that Lopez be overruled. Indeed, petitioner’s argument, if

carried to its logical limit, could have ramifications even out-

side the context of technological enhancement. It would sug-

gest that an otherwise lawful seizure of an item could violate

the Fourth Amendment because it creates the potential for an

unlawful search or viewing of the item. Compare Walter v.

United States, 447 U.S. 649 (1980); United States v. Chad-

wick, 433 U.S. 1, 18-14 n.8 (1977).

the enlargements made by petitioner, the aerial pho-

tography here would not be unconstitutional. Peti-

tioner’s remedy in such a case would be to challenge

the government’s use of any unlawful enlargements

that it might make; there is no basis whatsoever for

the relief that petitioner obtained in this case—an

injunction against government use of any of the pho-

tographs, including the unenlarged photos of the

exterior of the power plants that apparently are not

even alleged to intrude into any privacy interest.

b. In any event, it would not violate the Fourth

Amendment even if the government had sought to

enlarge and use the particular photographs of the

chemical plant of which petitioner complains. Peti-

tioner advances no discernible basis for determining

when aerial photography is too intrusive to meet con-

stitutional standards. Petitioner concedes that the

Michigan Department of Natural Resources has taken

aerial photographs of its plant from an altitude of

12,000 feet (one of the altitudes at which the EPA

photographs in this case were taken) (see Br. 38;

J.A. A45-A47), but it dismisses these photographs

with the statement that the degree of detail that such

photographs show “does not cause Dow concern”

(Pet. Br. 39). The lawfulness of a particular

method of investigation cannot turn solely on whether

it causes the subject concern; the Fourth Amendment

requires a more objective standard. Petitioner’s focus

on its own subjective desire is particularly inapt here,

In light of this concession, it is unclear how petitioner

could have sought, and obtained from the district court, an

injunction prohibiting EPA from using any of the photo-

graphs taken by Abrams Aerial Survey. Some of these photo-

graphs were taken at 12,000 feet (see J.A. A389, A45) and

thus approximate the photographs taken by the Michigan

state agency.

where the gist of its complaint is directed not at the

actual observations or photographs made, but at the

detail they potentially can reveal when enlarged and

magnified. Presumably then, under petitioner’s theory,

if enlargement and magnification technology were to

improve, the heretofore unobjectionable photographs

taken by the State of Michigan might suddenly turn

into Fourth Amendment violations.”

In our view, the question whether an individual or

corporation has a legitimate expectation of privacy

from a particular form of aerial observation depends

largely on the extent to which that form of observa-

tion is available to the public. If the technology to

take a particular type of aerial photograph is com-

monly available and society has taken no steps to

restrict or outlaw such photography, then an in-

dividual can have no reasonable expectation that his

outdoor activity will not be photographed in this fash-

ion by members of the public. If so, the Fourth

Amendment does not prevent the government from

taking the same photographs.

Unless all aerial photography is to be banned,

there is no basis for finding a Fourth Amendment

violation in the pictures taken on behalf of EPA.

The photographs were taken with ordinary, commer-

cially available, camera equipment.”* No technology

18 Even with the technology commonly available today, the

altitude at which a plane flies is only one factor that deter-

mines the detail potentially exposed to the photographer.

That level of detail will also depend on the type of camera and

the degree of enlargement. For example, the photographs

taken by the state officials, if enlarged 10x, would be on the

same scale as the EPA pictures taken from the lowest altitude

here—pictures that the district court enjoined the govern-

ment from using.

19 Indeed, the record indicates that photographs showing

greater detail than those taken here could have been taken

was used that is secret or within the special compe-

tence of the government; on the contrary, the govern-

ment hired a private contractor who could have been

hired by any member of the public, and the contractor

used his standard equipment.” When the aircraft

flew over the plant, it was well within the navigable

airspace where Congress has guaranteed its right to

fly. Any details of the outdoor portions of the plant

capable of being revealed by this photography (and

we reiterate that the government did not take the

steps hypothesized by petitioner that could reveal such

details) cannot reasonably have been expected to re-

main private. If such photography is available to

members of the public, such as news magazines inter-

ested in petitioner’s plant (see Fish Stories and

Empty Offices, Time, Apr. 11, 1983, at 18), the

Fourth Amendment surely does not prohibit the gov-

ernment from using such photography in the exercise

of its regulatory responsibilities.

4. Society Does Not Recognize A Reasonable Expec-

tation Of Privacy In Outdoor Activity Strong

Enough To Outweigh The Government Interest

In Using Aerial Photography

As detailed above, application of the first prong of

the Katz test shows that no Fourth Amendment vio-

lation occurred here because petitioner could not have

a reasonable subjective expectation of privacy from

from a helicopter with a good quality 35 millimeter camera

and a standard 70 millimeter lens (J.A. A48-A50).

* An urban planner discussing the utility of aerial photog-

raphy reports that his local planning department purchased

from Abrams Aerial Survey Corporaticn vertical aerial photo-

graphs of the entire West Bloomfield Township area in Michi-

gan. The county planning commission made available

photographs of the populated area at an original scale of

1 inch = 100 feet, i.e., twice as detailed as the most detailed

pictures taken for EPA in this case. See Reynolds, supra,

Plan. Advisory Service Rep. at 4-5.

common, commercially available, and generally law-

ful photography. The second prong of the Katz

test, focusing on the nature of the privacy interest

at stake, also supports the decision of the court of

appeals. The only areas observable from the air, no

matter how extensively photographs are enlarged or

magnified, are ones that are open to the sky. Such

outdoor areas ordinarily “do not provide the setting

for those intimate activities that the [Fourth]

Amendment is intended to shelter from government

interference or surveillance.” Oliver, slip op. 7.”

To be sure, it is possible that a person may some-

times engage in an essentially private activity in an

outdoor setting. The question is whether it is rea-

sonable from society’s viewpoint for the Fourth

Amendment to protect from the fairly unlikely possi-

bility of aerial observation those occasional episodes

of intimate activity that occur outdoors (which are,

of course, undertaken with knowledge that they may

be observable from the air). This inquiry into the

reasonableness of aerial photography must be judged

“by balancing its intrusion on the individual’s Fourth

Amendment interests against its promotion of legiti-

21 Despite petitioner’s efforts to equate the two cases (see

Br. 16, 25, 27), the difference in the nature of the activ-

ity sought to be protected makes this case fundamentally

unlike Katz. In Katz, the question was the government’s

right to overhear “private communication” (389 U.S. at

352), the sort of activity that lies at the core of the privacy

interests valued by our society. Therefore, the Court found

that an individual who uses a phone booth “is surely entitled

to assume that the words he utters into the mouthpiece will

not be broadcast to the world” (ibid.). A fundamental aspect

of privacy would be lost if people had no ability to keep their

private conversations from being overheard at the whim of

the government. No comparable loss of privacy occurs if

persons are subject to the possibility of aerial observation

when they are outdoors.

mate governmental interests.” Delaware v. Prouse,

440 U.S. 648, 654 (1979) (footnote omitted). See

also United States v. Martinez-Fuerte, 428 U.S. 543,

555 (1976); Camara v. Municipal Court, 387 U.S.

523, 536-537 (1967).

We submit that it is not reasonable to use the

Fourth Amendment in the present context to erect a

visual barrier where none exists in fact. There is a

strong public interest in allowing the government

to use efficient and effective means in discharging

its law enforcement, regulatory, and other responsi-

bilities. The extremely limited privacy interest in

protecting from the possibility of aerial observation

the ordinary gamut of nonprivate outdoor activities

such as the emission of gases from a factory smoke-

stack, and even the occasional outdoor activity for

which an individual might genuinely desire privacy,

cannot outweigh this government interest, particu-

larly when private citizens are in any event able

to observe such activity from the air without restric-

tion. The “balancing of competing interests” that

is the “key principle” in assessing reasonableness

(see Michigan v. Summers, 452 U.S. 692, 700 n.12

(1981), quoting Dunaway v. New York, 442 US.

200, 219 (1979)) tips overwhelmingly in favor of

permitting aerial observation and photography.

The lack of constitutional protection of outdoor

activity from aerial observation does not mean that

persons are unprotected by the Fourth Amendment

when they are outdoors. Because of its association

with the home, this is particularly true when out-

door activity takes place within the curtilage. There

it is entitled to the basic privacy protection of free-

dom from entry and interference without just cause.”

2 This protection against entry serves the dual purpose of

protecting property and activities located on the curtilage from

For many of the activities that might conceivably

be conducted outdoors, yet considered private, this

protection against entry fully satisfies any privacy

interest that an individual might have. A prayer

meeting, a moment of solitude, or a desire to protect

fauna from human intervention (see Oliver, slip op. 9

(Marshall, J., dissenting) ) is significantly disturbed

by an uninvited entry, yet is hardly intruded upon,

if at all, by mere observation from an overflying air-

craft. Even the sort of outdoor activity that might

be considered intruded upon by observation, such as

a lovers’ tryst, is obviously much more severely in-

truded upon by an actual entry. Thus, the decision

below does not “wreak[ ] havoc on protection for

the home and its attendant curtilage” (Pet. Br. 34).

On the contrary, given the sorts of activities that are

likely to take place in the curtilage, a failure to pro-

hibit aerial photography permits only a fairly mini-

mal intrusion into the privacy of those intimate ac-

tivities that are at the core of the Fourth Amend-

ment. See Oliver, slip op. 7.

For the reasons discussed above, we submit that

aerial photography of the curtilage does not infringe

an expectation of privacy that society would regard

as reasonable. This case, however, does not even in-

volve the curtilage, and therefore it is even clearer

here that there is no basis for finding that the Fourth

Amendment prohibits the overflight that occurred.

The common law concept of curtilage is particularly

associated with the home, and its special Fourth

Amendment protection derives from the fact that the

intimate activities associated with the home may

extend in some fashion to the curtilage. See note

8, supra. That is plainly not the case with peti-

interference and providing a buffer that enhances the privacy

and security of the home itself.

tioner’s outdoor manufacturing plant. The types of

private activities that might occur in the curtilage,

or even in open fields (see Oliver, slip op. 9 (Mar-

shall, J. dissenting) ), surely would never take place

within the confines of petitioner’s manufacturing

plant. Indeed, if we put to one side for the moment

the question of trade secrets, which we discuss next,

it is difficult to conceive of any business-related ac-

tivities likely to take place within the outdoor sur-

roundings of a manufacturing plant that would fall

within the scope of private activities that the Fourth

Amendment is intended to shelter. Accordingly, there

can be no justification for interpreting the Fourth

Amendment to protect the plant from aerial observa-

tion at the expense of the considerable government

interest in effective regulation.”

5. The Existence Of A Trade Secret In An Outdoor

Area Does Not Convert Photography Of That

Area Into A Fourth Amendment Violation

The overriding theme of petitioner’s contention

in this Court is that the photographs of the outdoor

portions of its plant capture “trade secrets” that are

contained in the precise configuration of pipes and

equipment that fill the spaces between the enclosed

structures. See Pet. Br. 22-24, 35-39, 45-47. Peti-

tioner assets that its interest in preventing dissemi-

nation of these trade secrets confers upon it a consti-

*8 Petitioner complains (Br. 6, 32-33; see also Pet. App. G1-

G2) that it is economically infeasible for it to take measures

to insulate its plant from aerial observation. It hardly follows

from that premise, however, that the Constitution must pick

up the slack and serve as a roof for the plant. A more reason-

able deduction would be that the practical impossibility of

protecting petitioner’s outdoor activity from observation

merely evidences the fact that the activity cannot reasonably

be regarded as “private” and therefore is not the sort of

activity at which the constitutional protection is directed.

tutional right to be free from aerial photography by

the government. While petitioner’s premise strikes

us as doubtful, we will assume for present purposes

that the configuration of pipes does constitute a trade

secret that is capable of being revealed by the photo-

graphs taken by Abrams Aerial Survey. The fact

is, however, that the presence or absence of a trade

secret is completely irrelevant to the general Fourth

Amendment issue at hand.”

Both the common law and modern statutory law

have recognized that society has an interest in giving

individual entrepreneurs proprietary rights in the

fruits of their labor and inventiveness. It is thought

preferable for businessmen to develop products

through innovation and hard work, rather than by

stealing the work product of a competitor. Accord-

ingly, some degree of protection of trade secrets has

long been a component of tort or unfair competition

24 The existence of a trade secret in this case was in part at

least an issue of fact that was disputed by the parties. For

this reason, the district court did not dispose of petitioner’s

Fifth Amendment claim on summary judgment. See Pet. App.

B38. The Fifth Amendment claim was later dismissed with-

out prejudice, and therefore this factual dispute has not been

resolved. In any event, we think it highly doubtful as a matter

of law, that it is possible to have a trade secret that is so

easily observable from the air. See note 29, infra.

25 Moreover, we note that the significance of petitioner’s

trade secret claims to this particular litigation seems to be

greatly overstated. EPA policy, reflected in published regula-

tions (40 C.F.R. 2.119(b)), is to protect, not release, trade

secret information. Rather than requesting that EPA pre-

serve the confidentiality of this information, however, peti-

tioner chose to institute this lawsuit. Furthermore, the relief

sought and obtained by petitioner goes well beyond what is

relevant to protecting its trade secret. It seems apparent,

therefore, that petitioner wishes to prevent EPA overflights

quite apart from any question of trade secrets.

law. Section 757(a) of the Restatement of Torts

(1939) states that “[o]ne who discloses or uses

another’s trade secret, without a privilege to do so,

is liable to the other if he discovered the secret by

improper means.” As petitioner notes, similar pro-

visions are contained in Michigan law and in the Uni-

form Trade Secrets Act. See Br. 47-48; Pet. App.

C1-C2, D1-D6, E1-E3.

What petitioner fails to appreciate is that these

rules are directed solely at preventing unfair com-

petition; they do not purport to establish any privacy

interest and provide no guidance for the Fourth

Amendment inquiry. The Restatement establishes tort

liability for one who “discloses or uses” a trade

secret. The Michigan statute makes it a misdemeanor

for one to steal a trade secret “with an intent to

appropriate a trade secret to his own use or to the

use of another.” Mich. Comp. Laws Ann. § 752.772

(West 1985); Pet. App. E3. The Uniform Trade

Secrets Act §§ 1-3, 14 U.L.A. 541-548 (1980), estab-

lishes a right to injunctive relief or damages from

misappropriation of a trade secret. “Misappropria-

tion” is defined in terms of “disclosure and use” of a

trade secret acquired through improper means. Pet.

App. D1-D3.” Clearly, the essence of the law’s pro-

6 Section 1(2) (i) of the Act, 14 U.L.A. 541 (1980), arguably

suggests that acquisition of a trade secret can alone constitute

actionable misappropriation. The full context of the statute,

however, makes clear that the statute contemplates either dis-

closure or use of the trade secret as the basis for a suit under

the statute. The basic injunctive relief available is an injune-

tion against future use and disclosure (see Section 2(b) and

Commissioners’ Comment, 14 U.L.A. 544 (1980) ), and it is

difficult to imagine what damages could be available (Section

3) without disclosure or use by a competitor. To the extent

mere acquisition implicates the statute, it is acquisition with

the intent to appropriate a trade secret, which can be guarded

tection of trade secrets is the prohibition on unfair

destruction of the competitive advantage of the owner

of the secret by disclosing or using it. See 4 Restate-

ment of Torts § 757 comment at 17 (1939). This

prohibition is consistent with the goal of the rules to

prevent unfair competition.

Just as clearly, this case involves none of the con-

siderations that underlie the protection for trade se-

crets. Putting aside the fact that the government

never sought to acquire the trade secret because it

was interested in the power plants, not extreme mag-

nifications of the chemical plants also captured on

the film, it cannot seriously be contended that there

was any danger that the government would use the

trade secret. The EPA is not in the business of build-

ing chemical plants; its business is to administer the

anti-pollution laws and to regulate emissions from

manufacturing facilities. Nor is it in the business of

supplying information about chemical manufactur-

ing plants to a company’s competitors. Thus, even if

EPA inadvertently came into possession of a trade

secret in the course of its aerial photograpy of pe-

titioner’s plant, it would not have violated the trade

secret statutes, which focus on disclosure or use, and

its action should not have given petitioner cause for

concern that its secret had been compromised.”

against by a suit to enjoin disclosure or use of the secret—

relief far narrower than that sought and obtained from the

district court by petitioner.

27 Petitioner’s argument in this regard highlights again the

inappropriateness of considering its privacy claim in the

abstract, rather than in the specific context of a government

attempt to use the information it has obtained. There appears

to be no claim that petitioner has any trade secret in the power

plants that were the target of the government’s aerial observa-

tion. Thus, to the extent petitioner’s Fourth Amendment claim

More generally, there is no reason why the Fourth

Amendment ought to be implicated simply because the

government comes into possession of trade secrets.

That occurs all the time in the course of the normal

functioning of government. Statutes require com-

panies to furnish the government with information

that may be classed as trade secrets (see, e.g., Federal

Insecticide, Fungicide, and Rodenticide Act (FIFRA),

7 U.S.C. 186(a)), and the government may sub-

poena such information for legitimate purposes (see,

e.g., Wearly v. FTC, 616 F.2d 662 (3d Cir.), cert.

denied, 449 U.S. 822 (1980)). Legal disputes arise

over the government’s power to disseminate such in-

formation, which implicates the companies’ interest

in preserving their trade secrets from competitors,

but it has not heretofore been suggested that it is

unlawful for the government itself to take possession

of this information if it keeps it confidential. See, e.9.;

Ruckelshaus v. Monsanto Corp., No. 83-196 (June 26,

1984), slip op. 20 n.18; Wearly v. FTC, supra; see

also Chrysler Corp. v. Brown, 441 U.S. 281, 306

(1979). Indeed, the practice of furnishing trade

secrets to the government is so pervasive that special

statutes have been enacted to protect against the pos-

sibility that they will be unjustifiably disclosed, See,

€.9., 18 U.S.C. 1905 (Trade Secrets Act); 5 U.S.C.

rests on the presence of a trade secret, petitioner would appear

to have no objection to the overflight if the camera had been

more discriminating and the photographer had been able to

limit his photographs to the target power plants. But that

situation ought not to be treated differently from the one

actually presented here, where the government allegedly has

inadvertently obtained the capability to examine photographs

of a trade secret but has no intention of actually doing so,

much less making use of the trade secret. Under petitioner’s

theory, a marijuana farmer could protect his fields from

aerial observation by placing some trade secret in the midst

of the marijuana. Cf. Oliver, slip op. 11 n.13.

552(b) (4) (Freedom of Information Act). The Clean

Air Act itself has a provision protecting trade secrets

(42 U.S.C. 7414(c)), which indicates that Congress

contemplated that EPA would gain access to trade

secrets in the course of its regulatory activities.*

Petitioner cites dictum in a decision of this Court

(Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 476

(1974) ), and one court of appeals decision, E./. du-

Pont deNemours & Co. v. Christopher, 431 F.2d 1012

(5th Cir. 1970), cert. denied, 400 U.S. 1024 (1971),

for the proposition that aerial observation is an “im-

proper means” of obtaining a trade secret. See Pet.

Br. 47-48. Even if this premise is correct,” it does

28 There is always the theoretical possibility, of course, that

a trade secret in the possession of the government will be

disclosed inadvertently. Thus, it is understandable that peti-

tioner would prefer that the government not obtain possession

of any trade secret, even if it has no intention to use it or

disclose it. Because of this danger of inadvertent disclosure,

it might be said that the government’s mere acquisition of a

trade secret constitutes some invasion of petitioner’s rights

(although it would appear to be more its property right in

the trade secret than any right protected by the Fourth

Amendment). Even if that is true, however, it cannot seri-

ously be doubted that the strong government interests im-

plicated here would outweigh such a small, speculative effect

on petitioner’s rights. Unfortunately, in today’s society, manu-

facturing facilities frequently produce toxic chemicals that

pollute the environment. For example, EPA tests have indi-

cated that waste water discharged by petitioner’s Midland

facility into an adjacent river contains more than 40 toxic

chemicals. See N.Y. Times, Apr. 1, 1983, at Al, col. 1. The

strong public interest in enforcing the statutes that regulate

this type of pollution outweighs the possibility that informa-

tion obtained from aerial photography might also contain a

trade secret that might inadvertently be disclosed.

2° The Christopher decision is actually somewhat narrower

than described by petitioner. In that case aerial photographs

were taken of a plant under construction, and it was not con-

not follow that such observation is violative of the

Fourth Amendment. First, it is not true that an

action that constitutes a tort thereby necessarily or

even ordinarily constitutes a Fourth Amendment vio-

lation. See Oliver, slip op. 11-12. Moreover, because

the policies involved in the two situations are so dif-

ferent, there is no reason to suppose that the standards

for deciding what is an unfair means of whtaiuing a

trade secret ought to have any bearing on the reason-

ableness of an action under the Fourth Amendment.

tested that they were taken for the purpose of appropriating a

process that DuPont sought to keep secret. The court, in find-

ing that DuPont had an action under Texas law for misappro-

priation of a trade secret, relied heavily on the fact that the

photographer had used the “trick” (431 F.2d at 1016) of

flying over the plant before it could be completed. The court

explained that “after construction the finished plant would

have protected much of the process from view, [but] during

the period of construction the trade secret was exposed to

view from the air” (ibid.). See also Hurst v. Hughes Tool

Co., 634 F.2d 895, 898 (5th Cir. 1981). Thus, Christopher

does not really address the question whether it is improper

to appropriate a trade secret by flying over a completed facility

that is so constructed that the alleged “secret” is visible to the

aerial observer or photographer. Specifically, Christopher

does not resolve whether, in light of the fact that “the extent

of the property right [in a trade secret] is defined by the ex-

tent to which the owner of the secret protects his interests

from disclosure to others” (Ruckelshaus v. Monsanto Co.,

slip op. 13), a company can have a trade secret in an outdoor

plant that is readily subject to aerial observation. Thus, in

this case, it is doubtful both as a legal and factual (see note

24, supra) matter whether petitioner has a trade secret in

the configuration of its outdoor facility. For purposes of the

issues presented here, however, we will assume arguendo that

petitioner does have such a trade secret. As discussed in text,

whether or not private competitors may use aerial photography

to appropriate information claimed to be a trade secret has

no bearing on whether the Fourth Amendment prohibits the

government from using aerial photography for other purposes.

The purpose of the trade secret laws is to prevent

unfair competition and promote individual inventive-

ness. Therefore, the law would quite logically seek

to prohibit the acquisition of trade secrets through

certain means that do not infringe at all upon the

privacy interests protected by the Fourth Amend-

ment.

The Restatement notes in its comments that means

for acquiring trade secrets may be improper “even

though they do not cause any other harm than that

to the interest in the trade secret.” 4 Restatement of

Torts § 757 comment at 10-11 (1939). For exam-

ple, the Restatement gives as illustrations of “im-

proper means” of acquiring a trade secret the use of

a trespass or inducing employees to breach a duty of

confidence to their employer. Jbid. Deeming such

methods improper under the trade secret laws rea-

sonably furthers the policies of those laws; indeed,

the misappropriation before the Court in Kewanee

Oil, supra, was of this sort—a breach of confidential-

ity by former employees. But it is plain that such

activities do not violate the Fourth Amendment. It

does not necessarily violate the Constitution for police

to obtain evidence by means of a trespass (Oliver),

and it surely is constitutional for police to obtain

information about a criminal enterprise from a for-

mer employee turned informant or an undercover

operative. See e.g., Hoffa v. United States, 385 U.S.

293 (1966). By the same token, even if unfair com-

petition law would hold it improper to use aerial ob-

servation or photography for the purpose of acquir-

ing a trade secret, that does not suggest that it is

unreasonable for the government to use aerial ob-

servation to investigate criminal activity or in the

exercise of its other regulatory powers.

In sum, neither the existence of a trade secret in

an outdoor plant nor any other activity likely to be

- ae

carried on in such an area implicates the sort of in-

terest that the Fourth Amendment was designed to

protect. Thus, both prongs of the Katz test suggest

that petitioner has no legitimate expectation of pri-

vacy from aerial photography with commercially

available equipment, and hence that the Fourth

Amendment does not prohibit such photography. The

technique is freely available to the public, and there-

fore petitioner can have no subjective expectation

that its outdoor facility will not be photographed

from the air. And the privacy interests implicated

are sufficiently slight that society would not regard

it as reasonable to protect them at the expense of

constricting the government’s ability to utilize an

effective technique that materially assists in the ex-

ercise of important governmental] functions.

II. THE USE OF AERIAL PHOTOGRAPHY DOES NOT

EXCEED THE SCOPE OF EPA’S STATUTORY

AUTHORITY

Petitioner also contends (Br. 41-49) that, regard-

less of this Court’s resolution of the constitutional

question, the overflight that took place here was un-

lawful because EPA’s statutory grant of inspection

authority does not authorize it to contract for aerial

photography.” This contention is devoid of textual

%° We assume, for purposes of this discussion, that aerial

photography does not violate the Fourth Amendment. If the

overflight here were unconstitutional, we would not contend

that the statute must be construed to authorize it, and, in any

event, the issue would be insignificant because, regardless of

Congress’s intent, the overflight would be unlawful. For this

reason, we regard as quite irrelevant petitioner’s assertion

(Br. 46) that the EPA cannot use “other constitutionally of-

fensive scrutiny, such as intrusive aerial photography, which

Congress did not specifically list as forbidden.” We do not

dispute that the EPA cannot use “constitutionally offensive

scrutiny”; the issue is whether, as a matter of statutory au-

or other support, and the court of appeals was cor-

rect in rejecting it summarily (see Pet. App. Al3-

Al4).

When Congress invests a government agency with

law enforcement and investigatory authority, it has

never been suggested that Congress must explicitly

identify each and every lawful technique that might

be used in the course of an investigation. Rather, it

is naturally assumed that the agency is entitled to

use those methods of investigation that could be un-

dertaken by any member of the general public. Spe-

cial authorization may be given to use methods that

are not available to the public. For example, the

Attorney General is given special, express authority

to seize private property pursuant to warrant (18

U.S.C. 3107) and to engage in forcible entries in con-

nection with executing a warrant (18 U.S.C. 3109).

The enumeration of these specific powers does not

implicitly exclude from the Attorney General’s broad

authority “to detect and prosecute crimes” (28 U.S.C.

533) the power to engage in more mundane investiga-

tory activities, such as following a person or car on

the streets or questioning witnesses to a crime.

By the same token, the statutory power conferred

on EPA to enforce certain anti-pollution laws (see

42 U.S.C. 7413) must implicitly carry with it the

power to use ordinary, publicly available techniques

to gather relevant information. There can be little

thority, the EPA may use constitutionally permissible aerial

photography. Thus, as petitioner's own characterization re-

veals, the fact that the EPA cannot use wiretapping without

explicit congressional authorization has no bearing on the

issue here because that is an investigative technique that is

not available to the public, but rather is subject to stringent

constitutional and statutory limitations. See Berger v. New

York, 388 U.S. 41 (1967) ; Omnibus Crime Control and Safe

Streets Act, 18 U.S.C. 2510 et seq.

doubt that EPA officials can do research in the li-

brary, inspect public records of a company’s build-

ing permits at a local government office, place air

quality monitors on public property downwind from

a pollution source, or stand on the public highway and

observe (or photograph) a pollution source (see Air

Pollution Variance Board v. Western Alfalfa Corp.,

416 U.S. 861, 864-865 (1974) )—all without specific

statutory authorization. By the same token, they

ought to be able to use aerial photography to the

same extent that that technique is lawfully available

to the general public. Indeed, we are aware of no stat-

ute that expressly confers upon a government agency

the general authority to use aerial photography for

investigative or regulatory purposes, but, as noted

above (at 22-23), this technique is frequently used

by numerous agencies for diverse objectives, law en-

forcement and otherwise. Thus, there is no basis for

petitioner’s suggestion that aerial photography by

EPA is not authorized simply because it is not spe

cifically mentioned in the statute.

Congress has conferred upon the EPA special in-

vestigative powers to aid it in its enforcement mis-

sion. Under Section 114 of the Clean Air Act, 42

U.S.C. 7414, the EPA may prescribe recordkeeping

requirements and the installation of monitoring equip-

ment. More important, the statute gives appropriate

EPA officials the right to enter the premiseseof any

person who owns or operates an emission source in

order to look at these records, sample emissions, and

generally conduct an inspection. There is no sugges-

tion in the statute, however, that the powers con-

ferred by Section 114 are intended to be exclusive.”

*1 The enforcement provision of the statute is broadly

worded to authorize the Administrator of EPA to act on the

basis of “any information available to him,” which seems to

Somewhat paradoxically, petitioner nonetheless claims

(Br. 48-45) that it is this additional grant of author-

ity that demonstrates that Congress has prohibited

the EPA from engaging in aerial photography.

As with most administrative inspection statutes

(see, e.g., 7 U.S.C. 186g (FIFRA); 15 U.S.C. 1270

(hazardous substances); 29 U.S.C. 657 (OSHA) ),

Section 114 of the Clean Air Act prescribes certain

procedures to be followed by agency officials in ex-

ecuting their authority to enter private premises,

which include presenting their credentials. It is hard

to understand petitioner’s contention, however, that

these requirements should be read to prohibit aerial

photography. When agency officials seek access to pri-

vate premises or to inspect business records, it is obvi-

ous that they should identify themselves since their

right to enter depends on their status as agents of

the government acting pursuant to specific statutory

authority. A member of the public would not be en-

titled to enter the premises to inspect. But when

agency officials use some method of investigation that

is not an entry and that is available to a private in-

vestigator or any other member of the general public

and hence does not require specific statutory authori-

zation, there is no reason at all for the entry proce-

dures to apply.

More generally, it is clear that 42 U.S.C. 7414 was

enacted in 1970 with the intent of expanding the au-

thority of government officials to investigate air pol-

lution. See, e.g., Senate Comm. on Public Works,

93d Cong., 2d Sess., A Legislative History of the

Clean Air Act Amendments of 1970 829 (Comm.

Print 1974) (remarks of Rep. Murphy). If peti-

contemplate that he will receive information from sources

other than those specified in Section 114. See 42 U.S.C.

7413(a) (1), (2) and (8).

tioner’s argument were correct, this provision would

prohibit EPA inspectors from standing on a public

street and looking at the smoke coming out of peti-

tioner’s factory. But it would obviously be anomalous

to convert this positive grant of authority into an

implicit restriction on the EPA’s ability to use non-

entry investigative methods of the sort available to

the general public, particularly when the authority

expressly conferred to enter premises at ground level

is undoubtedly more intrusive than observation from

the public airspace or any other location off peti-

tioner’s property. In sum, there is no statutory im-

pediment to EPA’s use of aerial observation in aid

of its regulatory functions.”

* Petitioner also asserts (Br. 47) that allowing EPA to

engage in aerial photography would be inconsistent with the

Clean Air Act’s provision protecting against disclosure of

trade secrets. Section 114(c), 42 U.S.C. 7414 (c). This con-

tention is difficult to comprehend. A specific statutory provi-

sion protecting trade secrets hardly suggests a limitation on

investigative techniques; on the contrary, it presupposes that

in using its investigative powers the EPA will acquire informa-

tion that may require protection. See Marshall v. Barlow’s,

Inc., 436 U.S. 307, 339 n.10 (1978) (Stevens, J., dissenting).

It may be that petitioner is contending that the protections

of Section 114(c) would not apply to aerial photography (be-

cause by its terms that subsection applies only to “informa-

tion obtained under subsection (a)”) and hence that the use

of aerial photography is inconsistent with the Act’s recogni-

tion of the need to protect trade secrets. This argument is

flawed. Regardless of the applicability of the disclosure and

associated trade secret protections of Section 114 (c), such

trade secrets (if they exist) would still be protected from

disclosure under the Trade Secrets Act, 18 U.S.C. 1905, and

the Freedom of Information Act, 5 U.S.C. 552(b) (4) (see

Chrysler Corp. v. Brown, 441 U.S. at 318; 40 C.F._R. 2.119(b) ).

Indeed, the protection afforded under these statutes appears

to be even broader than that under Section 114 (c), which

excludes “emissions data.” The EPA has detailed regulations

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

LAWRENCE G. WALLACE

Acting Solicitor General *

F. HENRY HABICHT II

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

ALAN I. HOROWITZ

Assistant to the Solicitor General

DirK D. SNEL

ANNE S. ALMY

Attorneys

OCTOBER 1985

addressing the need to protect confidential business matters

(see 40 C.F.R. 2.201 et seq.), and it has specifically addressed

the issue of overflights. In May 1978, EPA adopted a policy

of promptly notifying companies of overflights in order to

give them an opportunity at the outset to claim trade secret

protection. See C.A. App. 160.

Finally, as discussed above (see pages 37-42, supra), trade

secrets are not a genuine concern unless they are used or dis-

closed; the statutory protection for trade secrets surely does

not suggest that EPA is prohibited from taking photographs

for its own legitimate internal use. In short, the existence of

trade secret protection is a complement to the EPA’s ability

to gather information through aerial observation, not a pro-

hibition on that method.

* Acting Solicitor General Fried is disqualified in this case.

W ov. 8. Government paintine orrice; 1965 461531 200235

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.