Dow Chemical Co. v. United States Ex Rel. Administrator

476 U.S. 227, 106 S. Ct. 1819, 90 L. Ed. 2d 226, 1986 U.S. LEXIS 155, 16 Envtl. L. Rep. (Envtl. Law Inst.) 20679, 54 U.S.L.W. 4464, 24 ERC (BNA) 1385

• Court: Supreme Court of the United States
• Decided: May 19, 1986
• Docket: 84-1259
• Status: Published

Opinions

Chief Justice Burger

delivered the opinion of the Court.

We granted certiorari to review the holding of the Court of Appeals (a) that the Environmental Protection Agency’s aerial observation of petitioner’s plant complex did not exceed EPA’s statutory investigatory authority, and (b) that EPA’s aerial photography of petitioner’s 2,000-acre plant complex without a warrant was not a search under the Fourth Amendment.

I

Petitioner Dow Chemical Co. operates a 2,000-acre facility manufacturing chemicals at Midland, Michigan. The facility consists of numerous covered buildings, with manufacturing equipment and piping conduits located between the various buildings exposed to visual observation from the air. At all times, Dow has maintained elaborate security around the perimeter of the complex barring ground-level public views of these areas. It also investigates any low-level flights by aircraft over the facility. Dow has not undertaken, however, to conceal all manufacturing equipment within the complex from aerial views. Dow maintains that the cost of covering its exposed equipment would be prohibitive.

In early 1978, enforcement officials of EPA, with Dow’s consent, made an on-site inspection of two powerplants in this complex. A subsequent EPA request for a second inspection, however, was denied, and EPA did not thereafter seek an administrative search warrant. Instead, EPA employed a commercial aerial photographer, using a standard floor-mounted, precision aerial mapping camera, to take photographs of the facility from altitudes of 12,000, 3,000, and 1,200 feet. At all times the aircraft was lawfully within navigable airspace. See 49 U. S. C. App. § 1304; 14 CFR § 91.79 (1985).

EPA did not inform Dow of this aerial photography, but when Dow became aware of it, Dow brought suit in the District Court alleging that EPA’s action violated the Fourth Amendment and was beyond EPA’s statutory investigative authority. The District Court granted Dow’s motion for summary judgment on the ground that EPA had no authority to take aerial photographs and that doing so was a search violating the Fourth Amendment. EPA was permanently enjoined from taking aerial photographs of Dow’s premises and from disseminating, releasing, or copying the photographs already taken. 536 F. Supp. 1355 (ED Mich. 1982).

The District Court accepted the parties’ concession that EPA’s “‘quest for evidence’” was a “search,” id., at 1358, and limited its analysis to whether the search was unreasonable under Katz v. United States, 389 U. S. 347 (1967). Proceeding on the assumption that a search in Fourth Amendment terms had been conducted, the court found that Dow manifested an expectation of privacy in its exposed plant areas because it intentionally surrounded them with buildings and other enclosures. 536 F. Supp., at 1364-1366.

The District Court held that this expectation of privacy was reasonable, as reflected in part by trade secret protections restricting Dow’s commercial competitors from aerial photography of these exposed areas. Id., at 1366-1369. The court emphasized that use of “the finest precision aerial camera available” permitted EPA to capture on film “a great deal more than the human eye could ever see.” Id., at 1367.

The Court of Appeals reversed. 749 F. 2d 307 (CA6 1984). It recognized that Dow indeed had a subjective expectation of privacy in certain areas from ground-level intrusions, but the court was not persuaded that Dow had a subjective expectation of being free from aerial surveillance since Dow had taken no precautions against such observation, in contrast to its elaborate ground-level precautions. Id., at 313. The court rejected the argument that it was not feasible to shield any of the critical parts of the exposed plant areas from aerial surveys. Id., at 312-313. The Court of Appeals, however, did not explicitly reject the District Court’s factual finding as to Dow’s subjective expectations.

Accepting the District Court finding of Dow’s privacy expectation, the Court of Appeals held that it was not a reasonable expectation “[w]hen the entity observed is a multibuilding complex, and the area observed is the outside of these buildings and the spaces in between the buildings.” Id., at 313. Viewing Dow’s facility to be more like the “open field” in Oliver v. United States, 466 U. S. 170 (1984), than a home or an office, it held that the common-law curtilage doctrine did not apply to a large industrial complex of closed buildings connected by pipes, conduits, and other exposed manufacturing equipment. 749 F. 2d, at 313-314. The Court of Appeals looked to “the peculiarly strong concepts of intimacy, personal autonomy and privacy associated with the home” as the basis for the curtilage protection. Id., at 314. The court did not view the use of sophisticated photographic equipment by EPA as controlling.

The Court of Appeals then held that EPA clearly acted within its statutory powers even absent express authorization for aerial surveillance, concluding that the delegation of general investigative authority to EPA, similar to that of other law enforcement agencies, was sufficient to support the use of aerial photography. Id., at 315.

II

The photographs at issue in this case are essentially like those commonly used in mapmaking. Any person with an airplane and an aerial camera could readily duplicate them. In common with much else, the technology of photography has changed in this century. These developments have enhanced industrial processes, and indeed all areas of life; they have also enhanced law enforcement techniques. Whether they may be employed by competitors to penetrate trade secrets is not a question presented in this case. Governments do not generally seek to appropriate trade secrets of the private sector, and the right to be free of appropriation of trade secrets is protected by law.

Dow nevertheless relies heavily on its claim that trade secret laws protect it from any aerial photography of this industrial complex by its competitors, and that this protection is relevant to our analysis of such photography under the Fourth Amendment. That such photography might be barred by state law with regard to competitors, however, is irrelevant to the questions presented here. State tort law governing unfair competition does not define the limits of the Fourth Amendment. Cf. Oliver v. United States, supra (trespass law does not necessarily define limits of Fourth Amendment). The Government is seeking these photographs in order to regulate, not to compete with, Dow. If the Government were to use the photographs to compete with Dow, Dow might have a Fifth Amendment “taking” claim. Indeed, Dow alleged such a claim in its complaint, but the District Court dismissed it without prejudice. But even trade secret laws would not bar all forms of photography of this industrial complex; rather, only photography with an intent to use any trade secrets revealed by the photographs may be proscribed. Hence, there is no prohibition of photographs taken by a casual passenger on an airliner, or those taken by a company producing maps for its mapmaking purposes.

Dow claims first that EPA has no authority to use aerial photography to implement its statutory authority for “site inspection” under § 114(a) of the Clean Air Act, 42 U. S. C. § 7414(a);¹ second, Dow claims EPA’s use of aerial photography was a “search” of an area that, notwithstanding the large size of the plant, was within an “industrial curtilage” rather than an “open field,” and that it had a reasonable expectation of privacy from such photography protected by the Fourth Amendment.

Ill

Congress has vested in EPA certain investigatory and enforcement authority, without spelling out precisely how this authority was to be exercised in all the myriad circumstances that might arise in monitoring matters relating to clean air and water standards. When Congress invests an agency with enforcement and investigatory authority, it is not necessary to identify explicitly each and every technique that may be used in the course of executing the statutory mission. Aerial observation authority, for example, is not usually expressly extended to police for traffic control, but it could hardly be thought necessary for a legislative body to tell police that aerial observation could be employed for traffic control of a metropolitan area, or to expressly authorize police to send messages to ground highway patrols that a particular over-the-road truck was traveling in excess of 55 miles per hour. Common sense and ordinary human experience teach that traffic violators are apprehended by observation.

Regulatory or enforcement authority generally carries with it all the modes of inquiry and investigation traditionally employed or useful to execute the authority granted. Environmental standards such as clean air and clean water cannot be enforced only in libraries and laboratories, helpful as those institutions may be.

Under § 114(a)(2), the Clean Air Act provides that “upon presentation of. . . credentials,” EPA has a “right of entry to, upon, or through any premises.” 42 U. S. C. § 7414(a)(2)(A). Dow argues this limited grant of authority to enter does not authorize any aerial observation. In particular, Dow argues that unannounced aerial observation deprives Dow of its right to be informed that an inspection will be made or has occurred, and its right to claim confidentiality of the information contained in the places to be photographed, as provided in §§ 114(a) and (c), 42 U. S. C. §§ 7414(a) and (c). It is not claimed that EPA has disclosed any of the photographs outside the agency.

Section 114(a), however, appears to expand, not restrict, EPA’s general powers to investigate. Nor is there any suggestion in the statute that the powers conferred by this section are intended to be exclusive. There is no claim that EPA is prohibited from taking photographs from a ground-level location accessible to the general public. EPA, as a regulatory and enforcement agency, needs no explicit statutory provision to employ methods of observation commonly available to the public at large: we hold that the use of aerial observation and photography is within EPA’s statutory authority.²

IV

We turn now to Dow’s contention that taking aerial photographs constituted a search without a warrant, thereby violating Dow’s rights under the Fourth Amendment. In making this contention, however, Dow concedes that a simple flyover with naked-eye observation, or the taking of a photograph from a nearby hillside overlooking such a facility, would give rise to no Fourth Amendment problem.

In California v. Ciraolo, ante, p. 207, decided today, we hold that naked-eye aerial observation from an altitude of 1,000 feet of a backyard within the curtilage of a home does not constitute a search under the Fourth Amendment.

In the instant case, two additional Fourth Amendment claims are presented: whether the common-law “curtilage” doctrine encompasses a large industrial complex such as Dow’s, and whether photography employing an aerial mapping camera is permissible in this context. Dow argues that an industrial plant, even one occupying 2,000 acres, does not fall within the “open fields” doctrine of Oliver v. United States but rather is an “industrial curtilage” having constitutional protection equivalent to that of the curtilage of a private home. Dow farther contends that any aerial photography of this “industrial curtilage” intrudes upon its reasonable expectations of privacy. Plainly a business establishment or an industrial or commercial facility enjoys certain protections under the Fourth Amendment. See Marshall v. Barlow’s, Inc., 436 U. S. 307 (1978); See v. City of Seattle, 387 U. S. 541 (1967).

Two lines of cases are relevant to the inquiry: the curtilage doctrine and the “open fields” doctrine. The curtilage area immediately surrounding a private house has long been given protection as a place where the occupants have a reasonable and legitimate expectation of privacy that society is prepared to accept. See Ciraolo, supra.

As the curtilage doctrine evolved to protect much the same kind of privacy as that covering the interior of a structure, the contrasting “open fields” doctrine evolved as well. From Hester v. United States, 265 U. S. 57 (1924), to Oliver v. United States, 466 U. S. 170 (1984), the Court has drawn a fine as to what expectations are reasonable in the open areas beyond the curtilage of a dwelling: “open fields do not provide the setting for those intimate activities that the [Fourth] Amendment is intended to shelter from governmental interference or surveillance.” Oliver, 466 U. S., at 179. In Oliver, we held that “an individual may not legitimately demand privacy for activities out of doors in fields, except in the area immediately surrounding the home.” Id., at 178. To fall within the “open fields” doctrine the area “need be neither ‘open’ nor a ‘field’ as those terms are used in common speech.” Id., at 180, n. 11.

Dow plainly has a reasonable, legitimate, and objective expectation of privacy within the interior of its covered buildings, and it is equally clear that expectation is one society is prepared to observe. E. g., See v. City of Seattle, supra. Moreover, it could hardly be expected that Dow would erect a huge cover over a 2,000-acre tract. In contending that its entire enclosed plant complex is an “industrial curtilage,” Dow argues that its exposed manufacturing facilities are analogous to the curtilage surrounding a home because it has taken every possible step to bar access from ground level.

The Court of Appeals held that whatever the limits of an “industrial curtilage” barring ground-level intrusions into Dow’s private areas, the open areas exposed here were more analogous to “open fields” than to a curtilage for purposes of aerial observation. 749 F. 2d, at 312-314. In Oliver, the Court described the curtilage of a dwelling as “the area to which extends the intimate activity associated with the ‘sanctity of a man’s home and the privacies of life.’” 466 U. S., at 180 (quoting Boyd v. United States, 116 U. S. 616, 630 (1886)). See California v. Ciraolo, supra. The intimate activities associated with family privacy and the home and its curtilage simply do not reach the outdoor areas or spaces between structures and buildings of a manufacturing plant.

Admittedly, Dow’s enclosed plant complex, like the area in Oliver, does not fall precisely within the “open fields” doctrine. The area at issue here can perhaps be seen as falling somewhere between “open fields” and curtilage, but lacking some of the critical characteristics of both.³ Dow’s inner manufacturing areas are elaborately secured to ensure they are not open or exposed to the public from the ground. Any actual physical entry by EPA into any enclosed area would raise significantly different questions, because “[t]he businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property.” See v. City of Seattle, supra, at 543. The narrow issue raised by Dow’s claim of search and seizure, however, concerns aerial observation of a 2,000-acre outdoor manufacturing facility without physical entry.⁴

We pointed out in Donovan v. Dewey, 452 U. S. 594, 598-599 (1981), that the Government has “greater latitude to conduct warrantless inspections of commercial property” because “the expectation of privacy that the owner of commercial property enjoys.in such property differs significantly from the sanctity accorded an individual’s home.” We emphasized that unlike a homeowner’s interest in his dwelling, “[t]he interest of the owner of commercial property is not one in being free from any inspections.” Id., at 599. And with regard to regulatory inspections, we have held that “[w]hat is observable by the public is observable without a warrant, by the Government inspector as well.” Marshall v. Barlow’s, Inc., 436 U. S., at 315 (footnote omitted).

Oliver recognized that in the open field context, “the public and police lawfully may survey lands from the air.” 466 U. S., at 179 (footnote omitted). Here, EPA was not employing some unique sensory device that, for example, could penetrate the walls of buildings and record conversations in Dow’s plants, offices, or laboratories, but rather a conventional, albeit precise, commercial camera commonly used in mapmaking. The Government asserts it has not yet enlarged the photographs to any significant degree, but Dow points out that simple magnification permits identification of objects such as wires as small as inch in diameter.

It may well be, as the Government concedes, that surveillance of private property by using highly sophisticated surveillance equipment not generally available to the public, such as satellite technology, might be constitutionally proscribed absent a warrant. But the photographs here are not so revealing of intimate details as to raise constitutional concerns. Although they undoubtedly give EPA more detailed information than naked-eye views, they remain limited to an outline of the facility’s buildings and equipment. The mere fact that human vision is enhanced somewhat, at least to the degree here, does not give rise to constitutional problems.⁵ An electronic device to penetrate walls or windows so as to hear and record confidential discussions of chemical formulae or other trade secrets would raise very different and far more serious questions; other protections such as trade secret laws are available to protect commercial activities from private surveillance by competitors.⁶

We conclude that the open areas of an industrial plant complex with numerous plant structures spread over an area of 2,000 acres are not analogous to the “curtilage” of a dwelling for purposes of aerial surveillance;⁷ such an industrial complex is more comparable to an open field and as such it is open to the view and observation of persons in aircraft lawfully in the public airspace immediately above or sufficiently near the area for the reach of cameras.

We hold that the taking of aerial photographs of an industrial plant complex from navigable airspace is not a search prohibited by the Fourth Amendment.

Affirmed.

1 Section 114(a)(2) provides:

“(2) the Administrator or his authorized representative, upon presentation of his credentials —

“(A) shall have a right of entry to, upon, or through any premises of such person or in which any records required to be maintained under paragraph (1) of this section are located, and

“(B) may at reasonable times have access to and copy any records, inspect any monitoring equipment or method required under paragraph (1), and sample any emissions which such person is required to sample under paragraph (1).”

2 Assuming the Clean Air Act’s explicit provisions for protecting trade secrets obtained by EPA as the result of its investigative efforts is somehow deemed inapplicable to the information obtained here, see 42 U. S. C. § 7414(e), Dow’s fear that EPA might disclose trade secrets revealed in these photographs appears adequately addressed by federal law prohibiting such disclosure generally under the Trade Secrets Act, 18 U. S. C. § 1905, and the Freedom of Information Act, 5 U. S. C. § 552(b)(4). See Chrysler Corp. v. Brown, 441 U. S. 281 (1979).

3 In Oliver, we observed that “for most homes, the boundaries of the curtilage will be clearly marked; and the conception defining the curtilage — as the area around the home to which the activity of home life extends — is a familiar one easily understood from our daily experience.” 466 . While we did not attempt to definitively mark the boundaries of what constitutes an open field, we noted that “[i]t is clear . . . that the term ‘open fields’ may include any unoccupied or undeveloped area outside of the curtilage.” Id., at 180, n. 11. As Oliver recognized, the curtilage surrounding a home is generally a well-defined, limited area. In stark contrast, the areas for which Dow claims enhanced protection cover the equivalent of a half dozen family farms.

4 We find it important that this is not an area immediately adjacent to a private home, where privacy expectations are most heightened. Nor is this an area where Dow has made any effort to protect against aerial surveillance. Contrary to the partial dissent’s understanding, post, at 241-242, the Court of Appeals emphasized:

“Dow did not take any precautions against aerial intrusions, even though the plant was near an airport and within the pattern of planes landing and taking off. If elaborate and expensive measures for ground security show that Dow has an actual expectation of privacy in ground security, as Dow argues, then taking no measure for aerial security should say something about its actual privacy expectation in being free from aerial observation.” 749 F. 2d 307, 312 (CA6 1984) (emphasis added).

Simply keeping track of the identification numbers of any planes flying overhead, with a later followup to see if photographs were taken, does not constitute a “procedur[e] designed to protect the facility from aerial photography.” Post, at 241.

5 The partial dissent emphasizes Dow’s claim that under magnification power lines as small as Vz-ineh in diameter can be observed. Post, at 243. But a glance at the photographs in issue shows that those power lines are observable only because of their stark contrast with the snow-white background. No objects as small as 72-inch in diameter such as a class ring, for example, are recognizable, nor are there any identifiable human faces or secret documents captured in such a fashion as to implicate more serious privacy concerns. Fourth Amendment eases must be decided on the facts of each case, not by extravagant generalizations. “[W]e have never held that potential, as opposed to actual, invasions of privacy constitute searches for purposes of the Fourth Amendment.” United States v. Karo, 468 U. S. 705, 712 (1984). On these facts, nothing in these photographs suggests that any reasonable expectations of privacy have been infringed.

6 The partial dissent relies heavily on Dow’s claim that aerial photography of its facility is proscribed by trade secret laws. Post, at 248-249, and n. 11. While such laws may protect against use of photography by competitors in the same trade to advance their commercial interests, in no manner do “those laws constitute society’s express determination” that all photography of Dow’s facility violates reasonable expectations of privacy. Post, at 249. No trade secret law cited to us by Dow proscribes the use of aerial photography of Dow’s facilities for law enforcement purposes, let alone photography for private purposes unrelated to competition such as map-making or simple amateur snapshots. See swpra, at 232.

7 Our holding here does not reach the issues raised by the Court of Appeals for the Seventh Circuit’s holding regarding a “business curtilage” in United States v. Swart, 679 F. 2d 698 (CA7 1982); that case involved actual physical entry onto the business premises.