Amicus Curiae Brief — Dow Chemical Co. v. United States

AS

IN THE

CLERK

) } Office-Supreme Court, US. |

No. 84-1259 \_/ FILED

JUL 96 1985

ALEXANDER? L STEVAS,

Supreme Court of the Unites States

OCTOBER TERM, 1984

THE DOW CHEMICAL COMPANY,

Petitioner,

v.

UNITED STATES OF AMERICA

BY AND THROUGH ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF OF

MICHIGAN MANUFACTURERS’ ASSOCIATION,

THE OHIO MANUFACTURERS’ ASSOCIATION

AND MID-AMERICA LEGAL FOUNDATION

AS AMICI CURIAE SUPPORTING PETITIONER

JOHN M. CANNON

*SUSAN W. WANAT

ANN PLUNKETT SHELDON

Attorneys for Amici Curiae

*Counsel of Record for Amici Curiae:

MID-AMERICA LEGAL FOUNDATION

Suite 1725

20 North Wacker Drive

Chicago, Illinois 60606

(312) 263-5163

Pandick Midwest, Inc.. Chicago © (312) 454-7600

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TABLE OF CONTENTS

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SUMMARY OF ARGUMEN T .1<..cccsccoccecscssesersscssenssoseee

ARATE IIGIIIG TD, sesseecensigneentetntgegianviavitvtiigneinttinatiningacasion

I.

II.

II.

EPA’s Aerial Surveillance was a “Search” With-

in the Purview of the Fourth Amendment ...........

A.

The Government Intruded Upon Dow’s

Reasonable Expectation of Privacy.............

B. The Open Fields Doctrine Does Not

POI sccicertnincrisissinsicsingiptiniptiiindibiiatiiogunis

EPA’s Warrantless Search was Unreasonable .....

A. EPA’s Warrantless Surveillance Does Not

Comport with Constitutional Standards

for Administrative Searches.....................++.

B. The Clean Air Act’s Grant of Authority to

EPA is Not Sufficiently Specific to Author-

ize Warrantless Inspections .................0000+

C. The Use of Enhanced Aerial Surveillance

by EPA was Unreasonable..........................

Use of a Private Contractor to Conduct

Warrantless Searches is Not Authorized by the

ELLIOT CARTS EL LO

TN, cncctnnnernmennmnnmmensnmnacanaasiatin

11

11

14

17

ss

TABLE OF AUTHORITIES

PAGE

Cases

Bunker Hill Company Lead and Zinc Smeiter v.

United States Environmental Protection Agency,

658 F.2d 1280 (9th Cir. 1981)... tt eeeeeee 24

Camara v. Municipal Court, 387 U.S. 523 (1967)... 11-14, 16

Colonnade Catering Corp. v. United States, 397

I a a caliaretatt 12, 14-16

Donovan v. Dewey, 452 U.S. 594 (1981) ................. 15, 16

Dow Chemical Co. v. United States, 536 F.Supp.

a a cpeainsatinedsiionss 4

Dow Chemicai Co. v. United States, 749 F.2d 307

Ce I ecikitthinsitecitichtindiccidtiicthechdhalcbinhndnentunecenes passim

G. M. Leasing Corp. v. United States, 429 U.S. 338

EE RES Ene eC Ae ee 6, 10

Gouled v. United States, 255 U.S. 298 (1921) ......... 7

Hale v. Henkel, 201 U.S. 43 ( 1906) ............cccccceeeeeee 4

Hester v. United States, 265 U.S. 57 ( 1924)............ 9, 10

Katz v. United States, 389 U.S. 347 ( 1967)............. passim

Maine v. Thornton U.S. __, 104S.Ct. 1735

ITT aicinclehitethiechtinitissbitiattieatitlaiaaii leslie ciitatinieaitiate bles 9

Marshall v. Barlow’s, Inc., 436 U.S. 307 ( 1978)...... 14-16

Oliver v. United States, __. U.S. ___., 104 S.Ct.

SSIES ESE en 9, 10

iil

See v. City of Seattle, 387 U.S. 541 (1967)..............

Smith v. Maryland, 442 U.S. 735 (1979) ..........eee

Stauffer Chemical Company v. Environmental

Protection Agency, 647 F.2d 1075 (10th Cir.

Tape @. GRE, FPS US. 1 C1SGB) nccececccrcccoccccseccccsceses

United States v. Allen, 633 F.2d 1373 (9th Cir.

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

CR I ID feta icindnceditceinieptentcntndiinbeverintsnts

United States v. Lace, 669 F.2d 46 (1982), cert.

denied, 459 U.S. 854 (1982) .......cccecceecceeseseeeeseees

United States v. Mullinex, 508 F.Supp. 512 (E.D.

United States v. Stauffer Chemical Co., 684 F.2d

1174 (6th Cir. 1982), aff'd on other grounds,

Se) en

United States v. Swart, 679 F.2d 698 (7th Cir.

Statutes and Constitutional Provisions

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encase cneseneeneilih

A I Oo ccnensusnusenennbedounonanncesn

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Clean Air Act § 114 (a)(2), 42 U.S.C. § 7414

19, 20

passim

8

8, 24, 25

14

23

23

14, 16, 21

iV

PAGE

Other

Amsterdam, Perspectives on the Fourth Amend-

ment, 58 Minn. L. Rev. 349 ( 1946) ...............ceeeee 17

S. Rep. No. 92-414, 92nd Cong. 2d Sess., reprinted

in 1972 U.S. Code Cong. & Ad. News 3668,

IN THE

Supreme Court of the Qnited States

OcTOBER TERM, 1984

THE DOW CHEMICAL COMPANY,

Petitioner,

v.

UNITED STATES OF AMERICA

BY AND THROUGH ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF OF

MICHIGAN MANUFACTURERS’ ASSOCIATION,

THE OHIO MANUFACTURERS’ ASSOCIATION

AND MID-AMERICA LEGAL FOUNDATION

AS AMICI CURIAE SUPPORTING PETITIONER

This brief amici curiae in support of petitioner is submitted

with the written consents of counsel to all parties filed with the

Clerk of the Court.

2

INTEREST OF AMICI

Michigan Manufacturers’ Association is a business associ-

ation organized to study legal and administrative matters of

general interest which promote the interest of Michigan busi-

nesses and the public generally.

The Ohio Manufacturers’ Association is a nonprofit trade

association representing approximately fourteen hundred man-

ufacturers with facilities located in Ohio. The Association seeks

to promote a healthy industrial climate for the benefit of the

general welfare throughout the state.

Mid-America Legal Foundation was organized in 1975 to

support the public interest in preserving the economic and

political freedoms of our democratic society.

These amici have an interest in the disposition of this case

because the opinion below interprets the Fourth Amendment in

a way which effectively deprives any industrial or commercial

enterprise of an expectation of privacy in its open air plant

operations which are secured from public view on the ground,

but visible from the air through the use of enhanced photo-

graphic techniques. If the court of appeals’ decision is allowed

to stand, it will be virtually impossible for industry to protect

the privacy of its manufacturing processes.

3

SUMMARY OF ARGUMENT

EPA’s aerial surveillance of Dow’s Midland plant was a

“search” within the meaning of the Fourth Amendment since

Dow possessed a reasonable expectation of privacy in the areas

of its plant that were surreptitiously photographed by EPA.

Dow’s subjective expectation of privacy was evidenced by its

extensive plant security, and this expectation was reasonable in

light of a manufacturer’s significant proprietary and monetary

interest in the design and operation of its plant. Furthermore,

the interior regions of Dow’s facility cannot be characterized as

an “open field” to vitiate Fourth Amendment protection.

The EPA search of the Midland facility was unreasonable.

As a general rule, warrantless administrative searches are

prohibited, except in circumstances where there is an important

need for these inspections and the intrusion is into an area

where there is a low expectation of privacy. EPA’s aerial

surveillance undertaken in this case meets neither of these

criteria.

Although legislative authorization of warrantless searches

has been sustained where a statute narrows government dis-

cretion and specifies in considerable detail the circumstances

under which such a search may be conducted, the Clean Air Act

provides no justification for EPA’s search of the Dow plant.

This Act sets forth no limit on the time, place, manner or scope

of EPA’s authority to conduct inspections, and yet such detail is

required if warrantless searches are to comport with con-

stitutional requirements. The unreasonableness of the intrusion

on Dow’s privacy was further exacerbated by the use of highly

sophisticated enhanced viewing equipment.

Finally, use of a third party by EPA to conduct the aerial

surveillance violated Section 114(a)(2)(A) of the Clean Air

Act. Unless this section is construed to authorize only EPA

personnel to conduct inspections, the policy behind protecting

trade secrets and holding government officials accountable for

disclosure of confidential information will be undermined.

4

ARGUMENT

I. EPA’s AERIAL SURVEILLANCE Was A “SEARCH” WITHIN

THE PURVIEW OF THE FOURTH AMENDMENT.

A. The Government Intruded Upon Dow’s Reasonable

Expectations of Privacy.

In its decision below, the Sixth Circuit held that EPA’s

photographic flyover of Dow’s Midland property did not

constitute a Fourth Amendment search. Dow Chemical Co. y.

United States, Pet. Cert. App. A-2. The court legitimately

viewed the word “search” as “a term of art with special

constitutional significance,” id., but it proceeded to apply the

term with rather too much art and too little common sense. A

straightforward reading of this Court’s previous cases merits the

conclusion that EPA’s aerial surveillance does indeed qualify as

a “search” within the Fourth Amendment’s purview.

“A search ordinarily implies a quest by an officer of the

law.” Hale v. Henkel, 201 U.S. 43, 76 (1906). This direct

approach has of course been modified to reflect the com-

plexities of modern day search and seizure cases, but it remains

true, as the late Chief Justice Warren pointed out in Terry v.

Ohio, 392 U.S. 1, 18 n.15 (1968), that “the Fourth Amendment

governs ail intrusions by agents of the public upon [ private ]

security.... This seems preferable to an approach which

attributes too much significance to an overly technical definition

of ‘search’... .”

Generally, the question of whether government action

amounts to a “search” cognizable under the Fourth Amend-

‘The court did not directly address the following statement

made by the district court: “the Court wishes to point out that the EPA

has admitted, both in its briefs and at oral argument, that the flyover

constituted both a ‘quest for evidence’ and a ‘search’ of Dow’s plant.”

Dow Chemical Co. v. United States, Pet. Cert. App. B-6.

5

ment depends upon whether the area scrutinized is one in

which there exists a reasonable expectation of freedom from

governmental “intrusions” and “quests”. This “expectation of

privacy” analysis first emerged in Katz v. United States, 389

U.S. 347, 353 (1967), which held inter alia that the govern-

ment’s activities in electronically listening to and recording a

telephone booth conversation violated the privacy upon which

Katz justifiably relied and thus constituted a search within the

meaning of the Fourth Amendment. Justice Harlan in con-

currence proposed a two part standard for determining when a

privacy expectation is of sufficient importance that government

action in derogation thereof is properly characterized as a

search. 389 U.S. at 361. As amplified in Smith v. Maryland,

442 U.S. 735, 740 (1979), this test states that

the application of the Fourth Amendment depends on

whether the person invoking its protection can claim a

‘justifiable,’ a ‘reasonable,’ or a ‘legitimate expectation of

privacy’ that has been invaded by government action

[citations omitted]. This inquiry, as Mr. Justice Harlan

aptly noted in his Katz concurrence, normally embraces

two discrete questions. The first is whether the individual,

by his conduct, has ‘exhibited an actual ( subjective )

expectation of privacy,’ 389 U.S., at 361—whether, in the

words of the Katz majority, the individual has shown that

‘he seeks to preserve something as private.’ Jd. at 351. The

second question is whether the individual’s subjective

expectation of privacy is “one that society is prepared to

recognize as reasonable”, id., at 361—whether, in the

words of the Katz majority, the individual’s expectation,

viewed objectively, is ‘justifiable’ under the circumstances.

Id. at 353.

Viewing the present case in light of these Katz criteria,

EPA’s photographic flyover impinged upon Dow’s reasonable

expectations of privacy in the Midland plant’s unroofed con-

necting areas, and thus triggered application of the Fourth

Amendment. That Dow possessed a subjective expectation of

privacy in the scrutinized areas is abundantly demonstrated by

the record and substantiated by the company’s perseverance in

pursuing the present protracted litigation. It is senseless to

6

suppose that a profit-maximizing corporation like Dow would

undertake the multimillion dollar security precautions described

by the district court, Pet. Cert. App. B-20,21, if it had no

interest in shielding the Midland facility from undesired

reconnaissance. The court of appeals determined, however,

that Dow lacked a subjective expectation of privacy in the areas

at issue because the company’s “objective behavior [did] not

indicate an expectation to be free from the aerial spectator.”

Pet. Cert. App. A-8. Yet the, record shows that antiaircraft

measures were an explicit component of Midland’s security

plan at the time of EPA’s overflight. Jt. Appen., Ct. App., 291-

306. These measures could not deter every conceivable cursory

observation of Midland’s interior by aerial passersby. This does

not alter the fact that Dow subjectively expected freedom from

detailed aerial intrusion any more than the possibility that some

of Katz’s conversation could conceivably have been heard

through the closed door by someone waiting to use the phone

booth altered Katz’s subjective expectation of freedom from

detailed monitoring and recording of his words. Dow sought to

preserve, by the most reasonable means available, the privacy

of Midland’s unroofed space from aerial scrutiny. And as Katz

teaches, “what [someone] seeks to preserve as private, even in

an area accessible to the public, may be constitutionally pro-

tected.” 389 U.S. at 351.

Turning to the second prong of the Katz test, it is clear that

Dow’s subjective expectation of privacy is justifiable under the

circumstances of the present case. This Court has acknowledg-

ed generally that governmental action that conflicts with corpo-

rate privacy interests implicates the Fourth Amendment. See,

G.M. Leasing Corp. v. United States, 429 US. 338 (1977).

Society cught to be prepared to deem Dow’s expectation of

privacy reasonable because, as this Court has long noted, the

Fourth Amendment “should receive a liberal construction, so as

to prevent stealthy encroachment upon or ‘gradual deprecia-

tion’ of the rights secured by [it], by imperceptible practice of

courts or by well-intentioned but mistakenly over-zealous exec-

utive officers.” Gouled v. United States, 255 U.S. 298, 304

(1921).

Revelation of the make-up, configuration and manage-

menr ~f Midland’s secluded structure “exteriors” and adjacent

“ope. spaces” threatens Dow with the loss of a competitive

edge should such information come within the grasp of rival

manufacturers. Society recognizes the legitimacy of Dow’s

interest in restricting the dissemination of such confidential

information. As the district court pointed out, Pet. Cert. App.

B-3, the Midland open-sky areas photographed by EPA are an

essential element in the design of large integrated chemical

production facilities. Although a reading of the Sixth Circuit

opinion would suggest that these areas are mere vacant excess,

in fact they contain pipelines, smokestacks, valves, power lines

and related equipment, in addition to space consciously set

aside by company planners to accommodate foreseeable ex-

pansion and design innovations. At Midland these areas are

patrolled, monitored, maintained and upgraded by Dow em-

ployees. They are as vital to the profitable, efficient and safe

operation of the plant as Dow’s offices, control rooms, and

other enclosed areas.

The chemical industry is capital-intensive and highly com-

petitive. It does not stretch the imagination to realize that Dow

possesses a valuable proprietary and monetary interest in

preventing the free appropriation by its competitors—by means

of the photographs now held by EPA or through any other

source—of its sizeable continuing investment in how it designs,

engineers, and utilizes Midland’s open areas.

That society deems “reasonable” a corporation’s ex-

pectation that it may keep costly proprietary information

private in order to forestall erosion of its hard-won market

position requires little demonstration. A host of state and

federal statutes recognize the importance to our nation and our

economy of allowing businesses to maintain the privacy of their

commercial advantages. To cite just two prominent examples,

8

Congress at 5 U.S.C. § 552(b)(4) exempted trade secrets and

confidential commercial information from the wide scope of the

Freedom of Information Act’s disclosure requirements, and at

18 U.S.C. § 1905 imposed criminal liability upon any federal

Official who reveals without authorization information rejating

to “the trade secrets, processes, operations, style of work, or

apparatus ... of any person, firm, partnership, corporation, or

association....” Such measures embody the overwhelming

social consensus in favor of recognizing the reasonableness of

Privacy expectations in corporate trade secrets. Dow is clearly

justified under the present circumstances in relying on the

subjective expectation engendered by this unmistakable public

policy.

To recapitulate, the reasonable security measures under-

taken by Dow to conceal the Midland plant’s unenclosed

connecting areas from prying eyes evince the company’s subjec-

tive expectation of privacy in those areas. This expectation is

justifiable and socially reasonable because Dow possesses a

Significant proprietary and monetary stake in keeping from

others the knowledge of how it designs and operates the

Midland areas at issue. EPA intruded upon these expectations

in its quest for evidence concerning Dow’s possible violation of

the Clean Air Act. It is precisely this kind of governmental

activity that should be evaluated in light of the constitutional

standards developed by this Court to determine whether such

intrusion was reasonable under prevailing circumstances.

EPA’s flyover invaded Dow’s zone of private security, and

therefore constituted a search within the scope of the Fourth

Amendment.

B. The Open Fields Doctrine Does Not Apply.

The court of appeals determined that EPA’s photographic

flyover of Dow’s installation was not a search and therefore did

not implicate the Fourth Amendment because “‘Dow’s Midland

plant is much more like ‘open fields’ than it is a home or office.”

Pet. Cert. App. A-9. As the court admitted, the analogy is not

9

perfect. In fact, the anaiogy defies common sense and does not

accord with this Court’s previous decisions. The open fields

doctrine simply does not apply to a chemical factory.

The open fields concept evolved from Hester v. United

States, 265 U.S. 57 (1924), which upheld a visual search

conducted by federal revenue agents while trespassing on the

open fields of Hester’s land. Justice Holmes, writing for the

Court, concluded that “the special protection accorded by the

Fourth Amendment to the people in their ‘persons, houses,

papers, and effects’ is not extended to the open fields.” 265 U.S.

at 59.

Recently, this Court reinterpreted Hester in light of the

privacy expectation framework employed in modern search and

seizure jurisprudence, and affirmed the continuing Vitality of the

open fields doctrine. Oliver v. United States, ___. US.

104 S. Ct. 1735 (1984). Oliver validated a warrantless search

of an agricultural field located over a mile from the nearest

structure on the ground that the property’s owner could assert

no reasonable expectation of privacy in such an accessible area.

104 S. Ct. at 1741. The Court explained that “open fields do

not provide the setting for those intimate activities that the

[Fourth] Amendmeni is intended to shelter from government

interference or surveillance. There is no societal interest in

protecting the privacy of those activities ... that occur in open

fields.” Jd.

Dow’s Midland plant bears no geographical resemblance

to the remote croplar4 involved in Oliver or to the patch of

common woods sear 1 in the companion case of Maine v.

Thornton, __. U.S. —_, 104 S.Ct. 1735 (1984). As stated

earlier, Midland’s interior connecting areas are neither “unoc-

cupied” nor “undeveloped.” Oliver, 104 S. Ct. at 1742 n.11.

More importantly, a far greater expectation of privacy exists in

the Midland facility than in an open field. As this Court has

noted, “open fields usually are accessible to the public and the

police in ways that a home, an office or commercial structure

would not be.” Jd. at 1741 (emphasis added). Dow, on the

10

other hand, enforces rigid access restrictions in all areas of the

Midland installation. See, Dow Chemical Co., Pet. Cert. App.

B-20,21. Also unlike an open field, Midland’s unenclosed

exterior spaces serve as the setting for myriad activities con-

nected with the pursuit of Dow’s business, including storage of

materials, operation of machinery, and product, safety and

emission testing. This Court has recognized the social value

(absent in the open field context) in protecting the privacy of

such business activities, by extending to them the shelter of the

Fourth Amendment. G. M. Leasing Corp., 429 U.S. at 353.

In addition to this obvious divergence between the reason-

ableness of privacy expectations in a chemical factory like

Midland and an open field, there is a second reason why it was

erroneous for the court below to apply the Hester doctrine to

the present facts: the “exterior” and “open” areas at issue are

within the curt.lage of Midland’s enclosed structures. As noted

in Oliver, “{a]t common law, the curtilage is the area to which

extends the intimate activity associated with the [home] ...

and therefore has been considered part of home itself for

Fourth Amendment purposes.” 104 S. Ct. at 1742. The court

below declined to apply the curtilage exception to the open

fields doctrine in the present case because it found such

application inappropriate in a manufacturing setting. Pet. Cert.

App. A-11-12. Yet the reasons proffered by the court in

justification of this “inappropriateness” lack substantial merit.

Although it is true that little authority exists which would

extend the curtilage concept beyond traditional dwellings, at

least one federal circuit has recognized the plausibility of a

commercial or industrial curtilage doctrine. United States v.

Swart, 679 F.2d 698, 702 (7th Cir. 1982).

Certainly there lurks an analytical flaw in a reading of the

Fourth Amendment that accepts the shielding of traditional

curtilage because it is associated with the protected privacies of

home, but not the shielding of the commercially necessary

connecting spaces between industrial buildings which are equal-

11

ly associated with the protected privacies of business. This

Court «hould not embrace such an irrational double standard as

a basis for constitutional rulings. Rather, the cogency of the

industrial curtilage doctrine should be recognized, and Fourth

Amendment protection accorded to the exterior spaces between

Dow’s buildings.

In conclusion, Dow’s expectation of privacy in every area

of its Midland plant is of altogether greater constitutional

magnitude than that which may be asserted in an open field.

Additionally, the unenclosed areas searched and photographed

by EPA are within the curtilage of Midland’s structures and

therefore protected by the Fourth Amendment. For these

reasons, the open fields doctrine does not apply in the present

case.

Il. EPA’s WaRRANTLESS SEARCH WAS UNREASONABLE.

A. EPA’s Warrantless Surveillance Does Not.Comport

with Constitutional Standards for Administrative

Searches.

As a general rule, warrantless administrative searches are

prohibited except in certain narrow circumstances. A review of

the case law which developed these exceptions mandates the

conclusion that EPA’s warrantless search of Dow’s plant was

unreasonable.

The per se rule of the unreasonableness of warrantless

searches was first applied to the area of administrative searches

by the companion cases of Camara v. Municipal Court, 387

U.S. 523 (1967), and See v. City of Seattle, 387 U.S. 541

(1967). In Camara, this Court reviewed the respondent’s

justifications for the conclusion that administrative searches

could be made without a warrant, and reached a contrary

conclusion regarding each of them. First, the opinion noted

that the individual has an interest in limiting any governmental

entry, because the administrative search could provide a pretext

for entry to search for criminal evidence, and because regu-

12

latory legislation is enforced by criminal processes and sanc-

tions. 387 U.S. at 531. Second, this Court stated that statutory

limitations which are interpreted and applied by a government

administrator, rather than a judicial officer, left individuals

subject to the same discretion—that of the government

agent—which the warrant requirement of the Fourth Amend-

ment protects against. Jd. at 530-533. Finally, the Court found

that the important social need to maintain public health and

safety could not justify warrantless administrative searches

since the goals of the inspection could be achieved even with a

warrant requirement. Jd. at 531.

Thus, Camara held that legislative bodies did not have the

power to enact warrantless administrative search legislation

because, with few exceptions, under the Fourth Amendment

any government search must be made pursuant to a warrant to

be reasonable.

From the firm principle set in Camara, several exceptions

have been carved. Colonnade Catering Corp. v. United States,

397 U.S. 72 (1970), held that Congress could provide for

warrantless searches as part of the inspection process to enforce

the laws and regulations governing the liquor industry, without

violating the Fourth Amendment, because the liquor industry

had been “long subject to close supervision and inspection.”

397 US. at 77. In the face of such regulatory history, the Court

found Camara inapplicable. Jd. at 76.

2 See v. City of Seattle applied the principle in Camara to

commercial premises as well as private residences. The Court said,

“[a]s we explained in Camara, a search of private houses is

presumptively unreasonable if conducted without a warrant.... The

businessman, like the occupant of a residence, has a constitutional

right to go about his business free from unreasonable official entries

upon his commercial property. {he businessman, too, has that right

placed in jeopardy if the decision to enter and inspect for violation of

regulatory laws can be made and enforced by the inspector in the field

without official authority evidenced by a warrant.” 387 U.S. at 542.

13

Similarly, United States v. Biswell, 406 U.S. 311 (1972),

held that a search by a federal treasury agent authorized by the

Gun Control Act was not prohibited by the Fourth Amendment

because the interstate traffic of firearms, like the liquor industry

in Colonnade, was subject to close governmental control. 406

U.S. at 315. In rationalizing this exception, this Court pointed

to the social need for governmental control of firearms and the

necessity of warrantless searches for effective control because of

the deterrent effect of unannounced and frequent searches. /d.

at 316. The Court also argued that a gun dealer’s justifiable

expectation of privacy was not threatened by a search because

the dealer chose to engage in a pervasively regulated industry

and accepted a license with the knowledge that the business

would be subject to inspections. Further, the Court reasoned

that the Gun Control Act provides the dealer with sufficient

notice of authority and limits of inspection. Jd.

Generally, Colonnade and Bisweill hold that there is an

exception to the general requirement of a warrant for an

administrative search when there is an important social need for

warrantless inspections and the intrusion is into an area where

there is a low expectation of privacy. The EPA search in the

present case cannot meet the criteria of the Colonnade-Biswell

exceptions. Although the Clean Air Act notes the need for

pollution control, warrantless searches are not necessary for

effective attainment of that goal. The chemical manufacturer,

unlike the merchant of illegal liquor or firearms, cannot easily

conceal or rapidly dispose of violations. In this instance, the

slight delay of obtaining a warrant would not hinder enforce-

ment of air quality standards.

Furthermore, it cannot be said that Dow sacrificed any

justifiable privacy expectations by engaging in a pervasively

and traditionally regulated industry. The chemical industry is

subject to the Clean Air Act standards just as other manufac-

turers. Also, Dow has no license akin to that involved in Biswell

14

which provided its owner with notice of inspection. Finally, the

Clean Air Act does not provide the regulated industry with

annual notice of authority and limits co. inspection as does the

Gun Control Act construed in Biswell. Unlike the federal

Statute regulating firearms, which provides such a com-

prehensibie and predictable inspection scheme that warrantless

inspections mandated under the statute do not violate the

Fourth Amendment, the Clean Air Act merely grants the EPA

inspector a broad right of entry. 42 U.S.C. § 7414(a).

B. The Clean Air Act’s Grant of Authority to EPA is Not

Sufficiently Specific to Authorize Warrantless In-

spections.

Subsequent to the development of the Colonnade-Biswell

exception, Congress provided for warrantless inspection of

work places in the Occupational Safety and Health Act

(“OSHA”), 29 U.S.C. § 651 et seg. (1976). These provisions

were challenged in Marshall v. Barlow’s, Inc., 436 U.S. 307

(1978). In Barlow’s, a corporation president refused to allow

an Occupational Safety and Health Administration inspector to

conduct a search without a warrant. The Administration

obtained a court order requiring Barlow to admit the inspector,

but Barlow again refused and brought suit seeking an in-

junction prohibiting the warrantless searches conducted by the

Administration. 436 U.S. at 310.

The Supreme Court held that OSHA’s warrantless in-

spection provisions violated the Fourth Amendment. This

Court distinguished Barlow’s from Colonnade and Biswell, and

viewed the Colonnade-Biswell exception as resting on a theory

of implied consent that was not applicable to businesses subject

to the broad restrictions of OSHA. The opinion emphasized the

additional privacy protection afforded by a warrant require-

ment, 436 U.S. at 323, and reaffirmed Camara’s basic principle

that a government search of private premises is reasonable only

if made pursuant to a warrant. By narrowly interpreting the

15

Colonnade-Bisweil exception as based on the implied consent of

those subject to warrantless searches, Barlow’s reaffirmed the

proposition that legislatures do not have unilateral power to

enact warrantless search legislation.

Another federal regulatory statute which allowed warrant-

less inspections was challenged in Donovan v. Dewey, 452 US.

594 (1981). In Dewey, the government sought to enjoin the

president of Waukesha Lime and Stone Company from refus-

ing to permit warrantless searches under the Federal Mine

Safety and Health Act of 1977 (“MSHA”). This Court held

that the warrantless inspection provisions of MSHA are reason-

able within the meaning of the Fourth Amendment. 452 U:S.

at 598-99. The opinion noted that

a warrant may not be constitutionally required when

Congress has reasonably determined that warrantless

searches are necessary to further a regulatory scheme and

the federal regulatory presence is sufficiently comprehensive

and defined that the owner of commercial property cannot

help but be aware that his property will be subject to

periodic inspections undertaken for specific purposes.

(emphasis supplied) Jd. at 600.

The Court recognized the need for warrantless inspections

for effective enforcement of MSHA standards, and found that

the restrictions placed on the discretion of the administrators

charged with enforcing the statutes met the protections pro-

vided by a warrant. Jd. at 605. Specifically, the Dewey Court

found the following statutory constraints critical to its holding:

MSHA requires notification to the operator that inspections will

be performed on a regular basis and what standards must be

met to comply; MSHA directly curtails the discretion of the

Officials to determine what facilities to search and what viola-

tions to search for; and MSHA provides a specific mechanism

for accommodating any special privacy concerns that a specific

mine operator might have. Thus, Dewey approved the MSHA

16

warrantless search provision on the ground that the restrictions

on administrative discretion in warrantless searches provided

for in MSHA were so complete, that the loss of the additional

privacy protection of a warrant requirement was justified.

Dewey does not unilaterally authorize legislatures to enact

Statutes providing for warrantless searches of commercial

enterprises. Actually, Dewey’s interpretation of the Colonnade-

Bisweill exception parallels Barlow’s interpretation in that an

exception to the Camara principle will be made only where (1 )

there is a low expectation of privacy on the part of those subject

to the warrantless search, (2) an important social need exists

for warrantless searches, and (3) there are sufficient limitations

on the discretion of government agents in the use of the

inspection powers.

Even under the criteria set forth in Dewey, the Clean Air

Act cannot be construed to authorize the type of warrantless

search conducted by EPA at the Dow facility. The Act does not

provide the clearly defined limits on the discretion of govern-

ment Officials authorized to conduct searches which this Court

found so critical in Dewey. Section 114 authorizes EPA officials

to enter the premises to inspect “upon presentation of creden-

tials.” 42 U.S.C. § 7414 (a) (2). Unlike the MSHA provisions

which authorized the warrantless search at issue in Dewey, the

Clean Air Act does not similarly limit the time, place, scope or

manner of EPA inspections. Without these statutory con-

straints, the required protections of a warrant requirement are

not met. Therefore, the broad grant of authority in Section 114

cannot be construed to authorize warrantless searches.

As noted earlier, while Congress has found that a need

exists for control of air pollution, it has not determined that

warrantless searches are necessary to achieve this control

effectively. The record in this case reveals no indication that

requiring EPA to obtain a warrant would constrain the per-

formance of its function under the Clean Air Act. Nor is there

17

an indication that anything impeded EPA’s ability to obtain a

search warrant in the first place. In fact, the ttme, money and

energy expended in hiring the private contractor probably

exceeded that necessary to obtain a warrant.

C. The Use of Enhanced Aerial Surveillance by EPA was

Unreasonable.

In Katz, this Court reoriented its Fourth Amendment

analysis to concentrate on “people, not places”. 389 U.S. at

351. Such a reorientation makes Fourth Amendment protec-

tion depend on whether the conduct of government officials

exceeds the reasonable expectation of privacy of the target of

the investigation. Thus, an unreasonable warrantless search

relies on two components: the reasonable expectation of privacy

of the target and the intrusion upon that sphere of privacy by

government Officials. As the court in United States v. DeBacker,

493 F.Supp. 1078 (W.D. Mich. 1980), noted in upholding

aerial surveillance of defendant’s marihuana field,

The ultimate question, therefore, is not whether the surveil-

lance in this case occurred in ‘open fields’. Instead, the

issue is whether ‘if the particular form of surveillance

practiced by the police is permitted to go unregulated by

constitutional restraints, the amount of privacy and free-

dom remaining to citizens would be diminished to a

compass inconsistent with the aims of a free and open

society.’

493 F.Supp. at 1081, quoting Amsterdam, Perspectives on the

Fourth Amendment, 58 Minn. L. Rev. 349, 403 (1974).

Applying this reasoning to the facts in the instant case, the

unfettered use by government officials of sophisticated surveil-

lance devices mounted on aircraft carries the most ominous

implications for competitive business and society in general.

Such devices can apparently be made with virtually unlimited

power, if reports about the capabilities of Defense Department

satellites are believed. Nothing could be kept from prying

18

government eyes so equipped—not trade secrets, nor the most

intimate details of private life.

Courts have never upheld enhanced aerial surveillance

which intrudes upon a reasonable expectation of privacy. It

might be argued that DeBacker stands for the proposition that

aerial surveillance does not constitute an unreasonable search in

violation of the Fourth Amendment, since in that case the court

upheld a search warrant based on the aerial observation of

marihuana growing in the defendant’s fields. Such a character-

ization of the case fails to address properly the Katz analysis

because it only deals with the actual surveillance, and not the

reasonable expectation of the target of that surveillance. In

DeBacker, the court actually predicated its decision on the lack

of any reasonable expectation of privacy of the defendant in his

fields owing to the fact that other pilots might have seen the

marihuana growing there. 493 F.Supp. at 1081. Similarly, the

court in United States v. Mullinex, 508 F.Supp. 512 (E.D. Ky.

1980), only held an aerial search passed Fourth Amendment

scrutiny because other airplanes frequently flew over the area

and the defendant consequently could entertain no reasonable

expectation of privacy in his marihuana field: “What was

exposed to police aerial surveillance was also exposed to the

public.” 508 F.Supp. at 514. Therefore, a more precise

statement of the rule for aerial surveillance would run: a

warrantless aerial search only avoids unconstitutionality under

the Fourth Amendment where the government officials see only

what any other pilot would have seen.

In the instant case, however, EPA was able to see much

more than any other pilot flying over the Dow plant, because of

its use of sophisticated photographic equipment. The fact that

the vision of EPA officials was enhanced far beyond normal

human capabilities violated Dow’s reasonable expectation of

privacy.

The Second Circuit explicitly struck down the use of

telescopic equipment to enhance vision in United States v.

19

Taborda, 635 F.2d 131 (1980). The court expressly dis-

tinguished between what might have been seen with the naked

eye, and what was in fact only discerned with the aid of a

telescope, when it dismissed the defendant’s conviction for

dealing in narcotics:

The vice of telescopic viewing into the interior of a home is

that it risks observation not only of what the householder

should realize might be seen by unenhanced viewing, but

also of intimate details of a person’s private life, which he

legitimately expects will not be observed either by naked

eye or enhanced vision.

635 F.2d at 139. The court concluded that any enhanced

viewing of the interior of a home intrudes upon a legitimate

expectation of privacy and consequently runs afoul of the

Fourth Amendment. /d.

To apply this reasoning to the actions of EPA officials, the

method they used to enhance their aerial surveillance was

functionally identical to the telescope in Taborda. In Taborda,

the telescope whose use met disapproval possessed a magnifica-

tion rating of 36, three times the power of a standard pair of

binoculars.3 While the magnification power of the Wild RC-10

which the EPA used is not known, its high-resolution capabil-

ities at least give it the same qualities as a telescope; i.e., that its

pictures can be blown up to effectively magnify details. If

anything, a powerful camera intrudes slightly more than a

telescope because it captures an image which can later be

methodically examined. The effective magnification power of

the RC-10 must have been at least equal to the Tchorda

telescope; the aerial survey company’s brochure described it a.

the “finest precision aerial camera available.” Dow Chemical

Co., Pet. Cert. App. B-3. Indeed, considerable magnification is

3 The same court later upheld the use of binoculars in United

States v. Lace, 669 F.2d 46 (1982), cert. denied, 459 U.S. 854 ( 1982).

However, binoculars provide only marginally enhanced surveillance,

unlike the method employed in the instant case.

20

required to see pipes as thin as % inch in diameter from 1,200

feet as the RC-10 did. Pet. Cert. App. B-3. Such detail would

have been impossible to discern with the naked eye at that

altitude, and more importantly, Dow reasonably did not expect

it to be discernible. Moreover, it does not matter that the Dow

equipment scrutinized was located outside any building, unlike

in Taborda. The only distinction which Katz recognizes is

delineated by the existence of a reasonable expectation of

privacy, and for the reasons discussed in Section I Dow

legitimately entertained such an expectation.

Although respondent might argue that United States v.

Allen, 633 F.2d '373 (9th Cir. 1980) justifies such enhanced

aerial surveillance, a closer reading of the case reveals that it is

inapposite. The court upheld the Coast Guard’s aerial use of

telephotographic equipment to investigage a drug smuggling

ring on the Oregon coast. But the court only did so where the

Katz analysis presented no problems in contravening the de-

fendant’s reasonable expectation of privacy:

Coast Guard helicopters routinely traversed the nearby air

space for several reasons, including law enforcement. The

residents of the Allen Ranch would, no doubt, have been

aware of these routine flights and any reasonable person,

cognizant of the ranch’s proximity to the coastline and the

Coast Guard’s well-known function of sea-coast patrol and

surveillance, could expect that government officers con-

ducting such flights would be aided by sophisticated

electronic equipment. As such, the residents could not

reasonably bear a subjective expectation of privacy from

the Coast Guard’s airborne telephotographic scrutiny . . . .4

633 F.2d at 1290. The holding in Allen is irrelevant to the

present case because, by contrast, Dow did not reasonably

“Such an argument takes the Katz ana ysis too literally. It

implies that any government surveillance, if longstanding enough to

be expected, and no matter how intrusive, might be valid. To the

extent that this argument distorts Fourth Amendment analysis, Allen

ought to be disregarded altogether.

21

expect such enhanced aerial surveillance. The record contains

nothing to indicate that Dow knew the area was patrolled by

government aircraft, much less those carrying sophisticated

surveillance equipment.

Similar reasoning applies to United States v. Lace, 669

F.2d 46 (2nd Cir. 1982), cert. denied, 459 U.S. 854 (1982).

There the court upheld the use of binoculars and a spotting

scope—presumably a small telescope—to observe the area

between a house, a garage, and a barn clearly visible from a

road, on land which hunters and swimmers had been allowed

to enter freely. But in that case also, the defendant could not

reasonably have harbored an expectation of privacy in that

area, the court said. 669 F.2d at 50. If the area in question had

not been clearly visible from the road and if defendants had

attempted to exclude trespassers with a high fence and an

elaborate security system, such as reasonably to lead defend-

ants to expect privacy, Katz would have compelled the court to

invalidate che surveillance under the Fourth Amendment. Such

a situation is analytically identical to the position of Dow.

Ill. Use Or A Private Contracror To CONDUCT WARRANT-

LESS SEARCHES Is Not AUTHORIZED By THE CLEAN AIR

Act.

Section 114 of the Clean Air Act, 42 U.S.C. § 7414,

delineates the authority of EPA to enter the premises and

conduct inspections of emission sources. In relevant part

section 114 provides:

(a) for the purpose... (ii) of determining whether any

person is in violation of any such standard or any require-

ment of such a plan, or (iii) carrying out any provision of

this chapter.

(2) the Administrator or his authorized representative,

upon presentation of his credentials—

(A) shall have a right of entry to, upon or through

the premises of such person or in which any records

required to be maintained under paragraph (1) of this

section are located, and

22

(B) may at reasonable times have access to copy

any records, inspect any monitoring equipment or method

required under paragraph (1) and sample any emissions

which such person is required to sample under paragraph

(1).

(emphasis supplied ).

By hiring a private corporation to engage in the aerial

surveillance of Dow’s plant, EPA exceeded the grant of author-

ity in section 114(a)(2). The pilot of the aircraft involved in

the present case, an employee of Abrams Aerial Survey Corpo-

ration, was not an “authorized representative” of the Adminis-

trator within the meaning of Section 114(a)(2). Although the

term “authorized representative” may at first appear am-

biguous, several cases which interpret section 114(a)(2) con-

clude that the term must be construed narrowly to include only

officers and employees of EPA and not private parties.

Section 114(a)(2) was first construed in Stauffer Chemical

Company v. Environmental Protection Agency, 647 F.2d 1075

(10th Cir. 1981) (“Stauffer I’), where a chemical company

refused to admit two employees of a private contractor, GCA

Corporation, who accompanied a team of EPA inspectors.

EPA then obtained an ex parte administrative search warrant

authorizing it to conduct the inspection of Stauffer’s plant

through the two GCA employees. Stauffer filed a motion to

quash the warrant. The district court permanently enjoined

EPA from using GCA employees or employees of other com-

panies in any Stauffer plant without Stauffer’s permission. The

Tenth Circuit affirmed this decision, holding that employees of

a private company under contract with EPA are not “author-

ized representatives” of the EPA Administrator for purposes of

section 114 of the Clean Air Act. 647 F.2d at 1079.

The court of appeals enumerated several reasons for its

construction. First, the court declined to give the phrase

“authorized representative” a literal interpretation, noting that

the “plain meaning” test did not solve the problem. Jd. at

23

1078. Next, the court analyzed the legislative history of section

114(a)(2) and referred to the joint House and Senate confer-

ence committee report which stated that in the proposed

amendment, “the Senate authorized entry and inspection by

DHEW personnel ... for purposes of setting standards and

enforcing them.”5 Jd., quoting H.R. Rep. No. 1783, 91st Cong.,

2d Sess., reprinted in 1970 U.S. Code Cong. & Ad. News, 5356,

5379-81. This Senate bill became section 114(a)(2).

The Tenth Circuit also addressed the legislative history of

amendments to the Clean Water Act, 33 U.S.C. § 1251 et seq.

(1976) (Supp. I 1977, Supp. II 1978). In 1972, Congress

amended the Clean Water Act to include section 308, 33 U.S.C.

§ 1318(a)(B), which is virtually identical to section 114(a)(2).

The court noted that the Report of the Senate Public Works

Committee stated:

It should be noted that the authority to enter, as under the

Clean Air Act, is reserved to the Administrator and his

authorized representatives which such representatives must

be full-time employees of the Environmental Protection

Agency. The authority to enter is not extended to con-

tractors with the EPA in pursuit of research and devel-

opment.

S. Rep. No. 92-414, 92nd Cong., 2d Sess., reprinted in 1972

U.S. Code Cong. & Ad. News 3668, 3729 (emphasis by the

court). The court recognized that post-enactment legislative

history is generally not to be accorded the same weight as

legislative history concurrent with the enactment of the statute,

but considered the Senate Committee’s statement reliable au-

thority due to the short interval between the enactments of

section 114(a)(2) of the Clean Air Act and section 308 of the

Clean Water Act. Stauffer I, 647 F.2d at 1079. Further, the

court pointed to the close subject matter relationship between

5 The Clean Air Act was administered by the Department of

Health, Education and Welfare before EPA was created.

24

the two acts and observed that a contrary holding would

anomalously give EPA the power to delegate to employees of

private companies the authority to enter and inspect under the

Clean Water Act, but not under the virtually identical Clean Air

Act. Id.

The “contrary holding” discussed in Stauffer I surfaced in

Bunker Hill Company Lead and Zinc Smelter v. United States

Environmental Protection Agency, 658 F.2d 1280 (9th Cir.

1981) where the court held that the plain meaning of “author-

ized representative” is broader than “officers or employees”.

Bunker Hill, 648 F.2d at 1283.

The conflict between the holdings of the Ninth and Tenth

Circuits was recognized and analyzed one year later in United

States v. Stauffer Chemical Co., 684 F.2d 1174 (6th Cir. 1982),

aff'd on other grounds __. U.S. ___., 104 S.Ct. 575, (1984)

(“Stauffer IT’). The facts in Stauffer I] were identical to those

in Stauffer I, except they arose in a Stauffer plant at a different

location. In an analytically comprehensive decision, the Sixth

Circuit held that the phrase “authorized representative” in

Section 114(a)(2) means officers and employees of the EPA

and does not include employees of private contractors. Stauffer

II, 684 F.2d at 1189-90.

Several policy arguments support a narrow interpretation

of “authorized representatives” limited to officers and employ-

ees of EPA. One is that such an inspection is unduly intrusive

when conducted by private contractors who are not subject to

the same constraints against disclosure of confidential informa-

tion as are government employees.

More specifically, private parties are not subject to either

the criminal sanctions or the substantive confidentiality stan-

dards provided by the federal trade secrets act, 18 U.S.C.

§ 1905. That statute expressly protects one’s privacy interest in

trade secrets. To allow employees of private contractors to

make inspections under the authority of section 114(a)(2)

without subjecting them to the confidentiality standards for

25

government employees established by 18 U.S.C. § 1905 would

severely undermine this policy. Finally, private contractors are

not subject to the constraints of Federal Reports Act, 44 U.S.C.

§ 3501 et seg., which governs interagency transfers of con-

fidential information.

In summary, a private contractor is not subject to the same

constraints that restrict the acts of government employees.

Since these restrictions are a legitimizing factor in allowing

intrusive government inspections, private contractors should not

be awarded the same latitude as government employees. Ac-

cordingly, the section 114(a)(2) grant of inspection authority

to “authorized representatives” should be construed to include

only government employees.

26

CONCLUSION

For the reasons set forth above, the judgment of the

United States Court of Appeals for the Sixth Circuit should be

reversed and the case remanded for proceedings consistent with

the nghts of the petitioner.

Respectfully submitted,

JOHN M. CANNON

SUSAN W. WANAT

ANN PLUNKETT SHELDON

Attorneys for Amici Curiae*

MID-AMERICA LEGAL FOUNDATION

Suite 1725

20 North Wacker Drive

Chicago, Illinois 60606

(312) 263-5163

* We wish to acknowledge the assistance of Bernard J. Bobber,

student at Northwestern University School of Law, Michael J. Drooff.

student at the University of Chicago Law School, and Thomas P.

Fredell, student at the University of Michigan Law School.