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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0184%3A09

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1986
- **Citation:** 476 U.S. 227

## Text

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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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0184%3A09. Public record. Not legal advice.