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

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—_—_—

Supreme Court, U.S.

rrIELE @

9) JUL 25 1985

No. 84-1259

R L STEVAS

IN THE =

—-—

Supreme Court of the United States

OCTOBER TERM, 1985

THE Dow CHEMICAL COMPANY,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

BRIEF OF THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA AND

THE MOUNTAIN STATES LEGAL FOUNDATION

AS AMICI CURIAE

IN SUPPORT OF THE PETITIONER

ROBIN S. CONRAD

Counsel of Record

NATIONAL CHAMBER LITIGATION

CENTER, INC.

1615 H Street, N.W.

Washington, D.C. 20062

(202) 463-5337

Counsel for the Amicus Curiae

The Chamber of Commerce

of the United States

CONSTANCE E. BROOKS

MOUNTAIN STATES

LEGAL FOUNDATION

1200 Lincoln Street

Suite 600

Denver, Colorado 80203

(303) 861-0244

(Ga rane ene IT ARS LA OPS RS PEED

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

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QUESTION PRESENTED

Whether the Federal Government’s aerial surveillance

and photographing of an open-air commercial facility

violates the Fourth Amendmert.

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TABLE OF CONTENTS

STATEMENT OF INTEREST ......................................

STATEMENT OF THE CASE ......0...0..0.2.22.22--:2-c-00000---

SUMMARY OF ARGUMENT ......000000 ee.

ARGUMENT .............. Seidl iedsctiiniediscenietecssiennsexteeesee

I. THE OPEN FIELDS EXCEPTION TO THE

II.

FOURTH AMENDMENT DOES NOT APPLY

TO COMMERCIAL FACILITIES, AND BY

NECESSITY DOES NOT APPLY TO AERIAL

PHOTOGRAPHS OF OPEN-AIR COMMER-

SE NITE cntnctntccecoessesecdsincsescsonscnecenccecs ;

AERIAL PHOTOGRAPHS CAPTURING THE

DETAILS OF OPEN-AIR COMMERCIAL FA-

CILITIES CONSTITUTE UNREASONABLE

SEARCHES UNDER THE FOURTH AMEND-

Ne ihinieictdiciacirteiinicbaciwenecceteeerenesctcenecess

A. Dow Manifested A Reasonable Expectation

Of Privacy Against Photographic Intru-

i stadabtinmanpoccscooces

B. Detailed Aerial Photographs Of Commercial

Facilities Are Unreasonably Intrusive ..........

er aatiarecaterentsnnteceetenctnencnceessecsso-<sseceseses

(iii)

TABLE OF AUTHORITIES

CASES Page

Air Pollution Variance Board v. Western Alfalfa

oe RE FE ee eee 12

Camara V. Municipal Court, 387 U.S. 523 (1967)... 5,8

E.I. duPont De Nemours & Co. Vv. Christopher, 431

F.2d 1012 (5th Cir. 1970), cert. denied, 400 U.S.

1024, rehearing denied, 401 U.S. 967 (1971) ....... 4,8

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

RR NTR es 6 elo ein NTE | ot 6

Gibbens v. State, 156 Ga. App. 258, 274 S.E.2d 595

(1980), cert. denied, 450 U.S. 1026 (1981) .......... 7

Hester v. United States, 265 U.S. 57 (1924) .............. 4,7

Katz v. United States, 389 U.S. 347 (1967) ............. 10

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

SUID, dcisadinssiciakshdsidishiacllndentbetiin einai at ahaa. 8

Marshall v. Barlow’s Inc., 436 U.S. 307 (1978) ........ 2, 6,9

Oliver v. United States, U.S. ——, 80 L. Ed.2d

SI CHIE ciccinicsesncchetenecsbieosesseiieainasiiaeies naam 4, 5,6, 7,8

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

888 (1979), cert. denied, 444 U.S. 1081 (1980)... 7

See v. City of Seattle, 387 U.S. 541 (1967) _.......... 1,6,9

United States v. Allen, 675 F.2d 1373 (9th Cir.

1980), cert. denied, 454 U.S. 833 (1981) ............ 6

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

4 f De RRBs ein hoe 6

United States v. Freie, 545 F.2d 1217 (9th Cir.

1976), cert. denied, 430 U.S. 966 (1977) ............. 7

United States v. Hensel, 699 F.2d 18 (1st Cir.),

cert. denied, 461 U.S. 958 (1983) —....0..000 0. 6

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

REP rad eA NE AE er an 12

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

denied, 459 U.S. 854 (1982) ........0.... ecco 6

United States v. Minton, 488 F.2d 37 (4th Cir.

1973), cert. denied, 416 U.S. 936 (1974) ............ 6

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

1980) ........... sestdudieehddecconetannssiaadeaibasmidetitndiaddeaim deme leaia ia: 12

TABLE OF AUTHORITIES—Continued

CONSTITUTION AND STATUTES

I ares cneeel

Clean Air Act, 42 U.S.C. § 7401 et seq. (1983) ......

§ 113(b) (4), 42 U.S.C. § 7413(b) (4) -...........

IN THE

Supreme Cot of the United States

OCTOBER TERM, 1985

No. 84-1259

THE Dow CHEMICAL COMPANY,

. Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

BRIEF OF THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA AND

THE MOUNTAIN STATES LEGAL FOUNDATION

AS AMICI CURIAE

IN SUPPORT OF THE PETITIONER

STATEMENT OF INTEREST!’

For nearly two decades this Court has zealously

guarded the constitutional right of the American busi-

ness community to be free from unreasonable government

inspections of its commercial facilities. In See v. City of

Seattle, this Court held that:

The businessman, like the occupant of a residence,

has a constitutional right to go about his business

free from unreasonable entries upon his private

commercial property. The businessman, too, has

1 This brief is filed with the written consent of the parties pur-

suant to Supreme Court Rule 36.2. The parties’ consent letters have

been filed with the Clerk of this Court.

that right placed in jeopardy if the decision to en-

ter 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. 541, 543 (1967). This constitutional principle

was reaffirmed in Marshall v. Barlow’s Inc., 436 U.S.

307 (1978), where the Court held that a warrantless

administrative inspection under the Occupational Safety

and Health Act, 29 U.S.C. § 667 (1970), violated the

Fourth Amendment. In so doing, the Court said “it is

untenable that the ban on warrantless searches was not

intended to shield places of business as well as of resi-

dence.” 436 U.S. 307, 312 (1978).

The Sixth Cireuit decision to allow the Environmental

Protection Agency (“EPA”) to conduct aerial surveil-

lance of open-air commercial facilities without judicial

oversight violates privacy rights traditionally afforded

to businesses. This decision deprives companies of any

assurance that their secured open-air facilities are pro-

tected from aerial intrusions, and thereby threatens the

basis of our free enterprise system. On behalf of the

businesses they represent, the Chamber of Commerce of

the United States (“Chamber”) and the Mountain

States Legal Foundation (“MSLF” or “Foundation”)

respectfully urge this Court to reverse the decision be-

low, which strips open-air commercial facilities of their

Fourth Amendment protections by characterizing them

as “open fields.”

The Sixth Circuit’s extension of the “open fields” doc-

trine to commercial facilities has far-reaching conse-

quences for all businesses subject to government inspec-

tions. Numerous industries operate in the open-air be-

cause of economics, worker safety, or the nature of the

business itself. Many chemical plants install critical

aspects of their facilities out-of-doors. Petroleum and

iron and steel operations also take place outside. The

automobile industry conducts road tests on outdoor

tracks. All of these industries exclude the public from

their facilities to protect trade secrets and the results

of their research and development programs. If the deci-

sion below is upheld, these industries will be forced to

take drastic steps to preserve their Fourth Amendment

rights.

The Chamber and the Foundation are well-suited to .

present the broad spectrum of business interests affected

by this case. Together, they represent member companies

in these and other industries interested in protecting

corporate privacy from the dangerous erosion of the

Fourth Amendment approved by the Sixth Circuit. As

the largest federation of business and professional] organi-

zations in the United States, the Chamber’s membership

includes more than 180,000 corporations, partnerships

and proprietorships, as well as several thousand trade

associations and state and local chambers of commerce.

The Foundation is a nonprofit, membership, public inter-

est law firm dedicated to defending and preserving indi-

vidua! liberties, private property rights, and the private

enterprise system. Both the Chamber and the Foundation

regularly represent their members’ views in court on

issues of national significance and, in fact, filed as amici

curiae in support of the Petition for Certiorari in this

proceeding.

STATEMENT OF THE CASE

This case arises out of a lawsuit filed by The Dow

Chemical Company (“Dow”) against the Environmental

Protection Agency (“EPA”) for taking aerial photo-

graphs of its 2000-acre manufacturing facility in Mid-

land, Michigan, without judicial oversight, for use as

evidence in an impending enforcement action under the

Clean Air Act. 42 U.S.C. § 7401 (1983). The photo-

graphs captured in detail the interior regions of Dow’s

open-air plant, revealing valuable trade secrets.2 Dow

2 None of the photographs revealed any Clean Air Act violations.

Yet skilled technicians, working with high resolution equipment,

[Continued ]

sought injunctive relief and a declaratory judgment that

EPA’s aerial surveillance of the facility violated its

Fourth Amendment right to be free from unreasonable

searches and seizures.

The District Court found that Dow had a reasonable

expectation of privacy in the open-air interior regions

of its plant,* and held that EPA’s aerial activities vio-

lated the Fourth Amendment. The United States Court

of Appeals for the Sixth Circuit reversed, holding that

the Dow plant was not protected by the Fourth Amend-

ment because it was an “open field” within the meaning

of this Court’s decision in Oliver v. United States, ——

U.S. ——, 80 L. Ed.2d 214 (1984).

SUMMARY OF ARGUMENT

The “open fields” doctrine was first established in

Hester v. United States, 265 U.S. 57 (1924),* where the

Court held that “the special protection accorded by the

Fourth Amendment to the people in their ‘persons,

houses, papers, and effects’ is not extended to open fields.”

265 U.S. at 59. Lower courts have applied the open

2 [Continued }

can read aerial photographs like a blueprint of the plant, and

determine the configuration of technical process equipment, and the

types and quantities of products being manufactured and inven-

toried on site. See, E.J. duPont De Nemours & Co. v. Christopher,

431 F.2d 1012, 1013-1014 (5th Cir. 1970), cert. denied, 400 US.

1024, rehearing denied, 401 U.S. 967 (1971).

3 The District Court was “struck by the vivid detail and resolu-

tion” of the photographs which made it “possible to discern

equipment, pipes and power lines as small as '2 inch in diameter.”

It noted that “[m]Jany of these minute, but observable items are

located in interior regions of the plant which are surrounded by

buildings and other structures which make observation from any-

where but directly above, a near physical impossibility.” Petitioner’s

Appendix (“Pet. App.”) at B-3 (emphasis in the original).

4The issue in that case was whether revenue officers who ob-

served the defendant in possession of moonshine whiskey while

hiding on his land conducted a warrantless search in violation of the

Fourth Amendment.

fields doctrine predominantly in cases involving investi-

gations of illegal activities on agricultural or undevel-

oped property.

This Court decided Oliver just last term to “clarify

confusion that has arisen as to the continued validity

of the [open fields] doctrine.” 80 L. Ed.2d at 214. The

Sixth Circuit’s characterization of an outdoor manufac-

turing facility as an “open field” misapplies this Fourth

Amendment concept, and undermines the Court’s efforts

to clarify the scope of the doctrine. As a result, the

Sixth Circuit decision threatens the very essence of com-

mercial privacy, and should be reversed.

The record in this case compels the conclusion that

Dow’s open-air but fully secured manufacturing facility

is not an open field within the meaning of Oliver, and

therefore is entitled to Fourth Amendment protection.

Dow manifested an actual expectation of privacy in its

open-air facility, as evidenced by its extensive plant

security system and strict control over cameras and

photography on site. Moreover, society, by virtue of long-

standing precedent, recognizes commercial privacy and

the right of companies to protect their trade secrets.

ARGUMENT

I, THE OPEN FIELDS EXCEPTION TO THE FOURTH

AMENDMENT DOES NOT APPLY TO COMMER-

CIAL FACILITIES, AND BY NECESSITY DOES

NOT APPLY TO AERIAL PHOTOGRAPHS OF

OPEN-AIR COMMERCIAL FACILITIES.

The Fourth Amendment guarantees “[t]he right of

the people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures.

...” U.S. Const. amend. IV. The purpose of the Fourth

Amendment is to safeguard the privacy and security of

individuals against arbitrary invasions by governmental

officials. Camara v. Municipal Court, 387 U.S. 523

(1967).

The decisions of this Court firmly establish that Fourth

Amendment protection extends to business premises as

well as homes. Marshall v. Barlow’s Inc., 436 U.S. 307

(1978) ; G.M. Leasing Corp. v. United States, 429 U.S.

338 (1977); See v. City of Seattle, 387 U.S. 541 (1967).

By characterizing Dow’s manufacturing plant as an

“open field,” the Sixth Circuit stripped it of all Fourth

Amendment protection, giving the government a carte

blanche to conduct aerial surveillance of all open-air

commercial facilities. The Sixth Circuit’s holding and its

result is unsupported in law and contrary to public

policy. .

This Court’s reaffirmation of the open fields doctrine

in Oliver in no way supports the Sixth Circuit’s decision

that Dow’s open-air manufacturing plant is an “open

field.” A secure and developed commercial facility has

never been held, by this Court or any lower court, to be

an open field.®

The Fourth Amendment does not apply to open fields

because no right of privacy can be reasonably expected

5 The open field cases cited in the Government’s Brief in Opposi-

tion do not support the Sixth Circuit decision. See United States

v. Allen, 675 F.2d 1373 (9th Cir. 1980), cert. denied, 454 U.S. 833

(1981) (aerial surveillance of marijuana smuggling operations in

a “secluded area”); United States v. DeBacker, 493 F. Supp. 1078

(W.D. Mich. 1980) (aerial surveillance of marijuana growing on a

farm located in a sparsely populated area of the state characterized

as “boondocks’”’) ; United States v. Hensel, 699 F.2d 18 (1st Cir.),

cert. denied, 461 U.S. 958 (1983) (surveillance of marijuana smug-

gling operations on the high seas) ; United States v. Lace, 669 F.2d

46 (2d Cir.), cert. denied, 459 U.S. 854 (1982) (surveillance of

marijuana smuggling operations on property “clearly visible from

‘The road” and observable by “outsiders who ‘could enter the prop-

erty-at will’”); United States v. Minton, 488 F.2d 37 (4th Cir.

1973), cert. denied, 416 U.S. 936 (1974) (observation of illicit

whiskey from an embankment looking down over residence and

storage building). Amici’s own legal research has not found a

single case in which a developed commercial facility was deemed to

be an open field.

there. United States v. Freie, 545 F.2d 1217 (9th Cir.

1976), cert. denied, 430 U.S. 966 (1977). Since Hester,

the application of the open fields doctrine has been limited

generally to rural, agricultural lands.° The areas sur-

veyed in Oliver were marijuana patches grown on a farm

over a mile from the residence and in the woods behind

the residence, and were observed by police from the

ground. The Court found those areas to be “open fields”

within the meaning of Hester because they were “rural”?

and “by their very character as open and unoccupied, are

unlikely to provide the setting for activities whose pri-

vacy is sought to be protected by the Fourth Amend-

ment.” * None of the descriptions used by this Court to

illustrate the scope of the open fields doctrine remotely

resembles the Dow facility at issue here.® In fact, in

explaining why Fourth Amendment protection does not

extend to open fields, this Court emphasized the difference

between a commercial facility and an open field:

. .» [O)pen fields do not provide the setting for those

intimate activities that the Amendment is intended

to shelter from government interference or surveil-

lance. There is no societal interest in protecting the

® Most open field cases involve the discovery of marijuana grow-

ing in secluded areas. See, supra note 5; see also, Gibbens v. State,

156 Ga. App. 258, 274 S.E.2d 595 (1980), cert. denied, 450 U.S.

1026 (1981); People v. Lashmett, 71 Ill. App.3d 429, 389 N.E.2d

888 (1979), cert. denied, 444 U.S. 1081 (1980).

7 Oliver, 80 L.Ed.2d at 224.

8 Id. at 225, n. 10.

®“One need only think of the vast expanse of some western

ranches or of the undeveloped woods of the Northwest .. .” Jd.; “It

is clear .. . that the term ‘open fields’ may include any unoccupied or

undeveloped area outside the curtilage ... For example, ... a

thickly wooded area . . . may be an open field as that term is used

in construing the Fourth Amendment.” /d. at 225, n. 11; “Most of

the many millions of acres that are ‘open fields’ are not close to any

structure... .” Jd. at 226, n. 12.

privacy of those activities, such as the cultivation of

crops, that oceur in open fields. Moreover, as a prac-

tical matter these lands usually are accessible to the

public and the police in ways that a home, an office

or commercial structure would not be.

Id. at 224 (emphasis added).

While there is no societal interest in protecting the ac-

tivities that occur in open fields, society does have an

interest in protecting the activities occurring in commer-

cial settings. “The Fourth Amendment’s protection of

offices and commercial buildings, in which there may be

legitimate expectations of privacy, is . . . based upon

societal expectations that have deep roots in the history

of the [Fourth] Amendment.” Jd. at 224, n. 8." Aerial

surveillance of commercial facilities offends these tradi-

tional notions of corporate privacy, and must be limited

by the Fourth Amendment.

II. AERIAL PHOTOGRAPHS CAPTURING THE DE-

TAILS OF OPEN-AIR COMMERCIAL FACILITIES

CONSTITUTE UNREASONABLE SEARCHES UN-

DER THE FOURTH AMENDMENT.

Since it is inconceivable that a manufacturing facility

is an open field, then EPA’s aerial surveillance of the

Dow plant is not exempt from the Fourth Amendment

prohibition against unreasonable inspections. In Camara

10 Society also has an interest in protecting business’ right to

protect its trade secrets. The common law rights of privacy recog-

nize a cause of action against any third party that might try to

photograph Dow’s plant. See, Restatement of Torts, § 757(a)

(“[t]he law ... protects the holder of a trade secret against dis-

closure or use when knowledge is gained, not by the owner’s volition,

but by some ‘improper means’”) (quoted in Kewanee Oil Co. V.

Bicron Corp., 416 U.S. 470, 475-476 (1974) ). And, this Court, itself,

has at least twice disapproved the acquisition of trade secrets by in-

dustrial espionage. See, Kewanee Oil Co., supra; EJ. duPont De

Nemours & Co. Vv. Christopher, 431 F.2d 1012 (5th Cir. 1970),

cert. denied, 400 U.S. 1024, rehearing denied, 401 U.S. 967 (1971).

v. Municipal Court, this Court held that “except in cer-

tain carefully defined classes of cases, a search of private

property without proper consent is ‘unreasonable’ unless

it has been authorized by a valid search warrant.” 387

U.S. at 528-529. The Court decided See v. City of Seattle

on the same day, extending the rule of Camara to inspec-

tions of commercial facilities, and holding that “adminis-

trative entry, without consent, upon the portions of com-

mercial premises which are not open to the public can

only be compelled through prosecution or physical force

within the framework of warrant procedure.” 387 U.S.

at 545. The Court upheld the applicability of the war-

rant clause to administrative inspections in Marshall v.

Barlow’s, Inc., stating:

The authority to make warrantless searches devolves

almost unbridled discretion upon executive and ad-

ministrative offices, particularly those in the field, as

to where to search and whom to search. A warrant,

by contrast, would provide assurances from a neutral

officer that the inspection is reasonable under the

Constitution, is authorized by statute, and is pur-

suant to an administrative plan containing specific

neutral criteria. Also, a warrant would then and

there advise the owner of the scope and objects of

the search, beyond which limits the inspector is not

expected to proceed. These are important functions

for a warrant to perform, functions which underlie

the Court’s prior decisions that the Warrant Clause

applies to inspections for compliance with regulatory

statutes. 3

436 U.S. at 323-324. (citations omitted). The Clean Air

Act satisfies these objectives of judicial oversight under

§ 113(b) (4) of the Act, by requiring EPA to obtain a

civil injunction whenever a company refuses an inspec-

tion request. 42 U.S.C. § 7413(b) (4).

The Sixth Circuit recognized the applicability of the

Barlow decision to the case below when it stated that

“lijf the government action in this case—EPA’s aerial

photography of Dow Chemical’s Midland, Michigan plant

—constitutes a Fourth Amendment ‘search,’ then Bar-

low’s controls, and EPA’s warrantless search violated

Dow’s Fourth Amendment rights.” Pet. App. at A-5.

The Sixth Circuit determined, however, that no search

had occurred.

According to the two-part test for determining what

constitutes a search, the party claiming Fourth Amend-

ment protection must demonstrate, first, an actual (sub-

jective) expectation of privacy and, second, that expec-

tation must be one that society recognizes as reasonable.

Katz v. United States, 389 U.S. 347, 361 (1967) (Har-

lan, J., concurring). The Sixth Circuit does not dispute

that Dow exhibited an actual expectation to be free from

ground-level intrusions.

Here Dow had an actual expectation of privacy in

certain parts of its plant, privacy which included

the freedom from certain kinds of intrusion. Dow

took great pains to be free from ground level intru-

sion by building a perimeter security fence and em-

ploying security guards. 536 F. Supp. at 1364-65.

Hence, Dow had a kind of actual privacy expectation

in these parts of its plant, a privacy interest to be

free from ground level intrusions from the street.

Pet. App. at A-8. Nevertheless, the court held that EPA’s

aerial photography of the Dow plant was not a “search”

because Dow showed no actual expectation of privacy

from aerial intrusions.

A. Dow Manifested A Reasonable Expectation of Pri-

vacy Against Photographic Intrusions.

The government action at issue in this case is EPA’s

aerial photography of Dow’s plant, not mere unaided ob-

servation of “outdoor spaces between plant buildings,”

as contended by the Sixth Circuit. Pet. App. at A-4.

These photographs depict details of the plant that were

not visible to the naked eye, and by their very nature

were capable of being enlarged for further study."

In addition to preventing unauthorized ground level

entry, Dow also takes great pains to protect its plant

from being photographed by unauthorized personnel.

EPA was well aware of this policy against unauthorized

photography, since its intention to take pictures of the

plant was the very reason expressed by Dow for denying

the second inspection request. And, it was in the context

of taking photographs that the possibility of getting a

warrant was discussed.

While the Sixth Circuit concedes that “no one could

reasonably expect Dow to build a dome over its entire

Midland plant,” it offers no reasonable alternative to the

precautions already taken by the company to protect its

premises from being photographed. Pet. App. at A-8.

The court’s suggestion that Dow could have “shielded the

critical spaces in between its buildings,” mischaracter-

izes the privacy interest at issue here, namely, the con-

figuration of its equipment, pipes and powerlines. /d.

Moreover, the Sixth Circuit’s decision fails to appreciate

the economics of operating open-air commercial facilities.

The Sixth Circuit creates an artificial distinction between

the roofed and open portions of the manufacturing fa-

cility. Such a distinction is inherently unworkable be-

cause the open-air equipment is an. integral part of the

activities that occur in the contiguous buildings. Dow

clearly demonstrated an actual expectation of privacy,

and short of building a giant dome, there was little else

the company could have done to protect itself against this

vertical intrusion.

11 Enlargements of these photographs were hung on an office wall

in EPA’s Regional Office in Chicago. See Petitioner’s Brief on the

Merits at 12.

B. Detailed Aerial Photographs of Commercial Facili-

ties Are Unreasonably Intrusive.

The Sixth Circuit’s decision that an open-air commer-

cial facility can have no reasonable expectation of privacy

from aerial photography ignores the intrusiveness of the

government’s action in this case. There is no comparison

between a mere “aerial observer” and the kind of govern-

ment surveillance at issue here. EPA’s aerial photog-

raphy of the Dow plant is more akin to telescopic and

telephoto surveillance techniques than it is to unaided

observation from a public place. Compare United States

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

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

Air Pollution Variance Board v. Western Alfalfa Corp.,

416 U.S. 861 (1974). Commercial airplanes do not make

repeated runs over open-air plants. Nor do they use floor-

mounted aerial mapping cameras to photograph a plant’s

inner workings. Contrary to the Sixth Circuit’s decision,

government surveillance and aerial photographs that de-

pict minute details of commercial facilities are unreason-

ably intrusive under the Fourth Amendment.

Nor were these photographs necessary to further fed-

eral interests. Other means for obtaining evidence of non-

compliance were available to EPA.’ Furthermore, ob-

taining judicial oversight will not frustrate EPA’s en-

forcement of the Clean Air Act. Manufacturing facilities,

like Dow’s Midland plant, can afford neither the produc-

tion time nor the money it would cost to shut down or

otherwise alter their operations to elude government in-

spections. This Court should not allow a federal agency

to circumvent the Fourth Amendment by using inspection

techniques which are neither authorized by statute nor

supported by the Constitution.

12 Dow had earlier provided EPA with schematic drawings of the

powerhouses which the Government claims were the focus of its

aerial surveillance. And, an EPA inspector could have used a

Ringlemann Test (smoke-reader) to detect any air quality viola-

tions. See, Air Pollution Variance Board v. Western Alfalfa Corp.,

supra.

CONCLUSION

A fully developed open-air commercial facility is not

an open field, and is entitled to protection from aerial

surveillance under the Fourth Amendment. This intru-

sive government search violated Dow’s reasonable expecta-

tion of privacy in the details of its commercial structures.

For these reasons, the Chamber of Commerce of the

United States and the Mountain States Legal Foundation

respectfully urge this Court to reverse the decision below.

Respectfully submitted,