Dow Chemical Co. v. United States
476 U.S. 227 (1986)
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Rule of Law:
Warrantless aerial photography of an industrial plant complex from navigable airspace does not constitute a Fourth Amendment 'search' if the area observed is more analogous to an open field than to residential curtilage and the surveillance technology used is commercially available to the public.
Facts:
- Dow Chemical Co. operates a 2,000-acre chemical manufacturing facility in Midland, Michigan.
- The facility consists of numerous buildings with exposed manufacturing equipment and piping between them.
- Dow maintains elaborate ground-level security, including fences and guards, to bar public view and access from the ground.
- Dow has not, however, concealed the manufacturing equipment between buildings from aerial observation, believing the cost to be prohibitive.
- After Dow consented to one on-site inspection but denied a request for a second, the Environmental Protection Agency (EPA) hired a commercial aerial photographer.
- The photographer took pictures of the facility from a plane lawfully flying in navigable airspace at altitudes of 12,000, 3,000, and 1,200 feet, using a standard precision aerial mapping camera.
Procedural Posture:
- Dow Chemical Co. filed a lawsuit against the EPA in the U.S. District Court for the Eastern District of Michigan.
- The District Court granted Dow's motion for summary judgment, holding that the EPA's aerial photography was an unconstitutional search.
- The EPA, as appellant, appealed the decision to the U.S. Court of Appeals for the Sixth Circuit.
- The Court of Appeals reversed the District Court's decision, finding no Fourth Amendment violation.
- The U.S. Supreme Court granted certiorari to review the Court of Appeals' holding.
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Issue:
Does the warrantless aerial photography of a 2,000-acre industrial complex, using a commercially available precision mapping camera from navigable airspace, constitute a 'search' that violates the Fourth Amendment?
Opinions:
Majority - Chief Justice Burger
No. The taking of aerial photographs of an industrial plant complex from navigable airspace is not a search prohibited by the Fourth Amendment. The open areas of a large industrial complex are not analogous to the curtilage of a home for purposes of aerial surveillance; instead, they are more comparable to an open field. The Fourth Amendment protects the 'intimate activities' associated with the home and its curtilage, which do not extend to the outdoor spaces of a manufacturing plant. While businesses enjoy Fourth Amendment protection, the expectation of privacy in commercial property is less than in a private home. The surveillance here did not involve physical entry and used a conventional camera, not highly sophisticated, sense-enhancing technology not generally available to the public. The mere fact that the camera enhanced human vision to some degree does not create a constitutional problem, as the photographs were not so revealing of intimate details as to raise constitutional concerns.
Concurring-in-part-and-dissenting-in-part - Justice Powell
Yes. This was an unreasonable search under the Fourth Amendment. The majority's decision retreats from the established standard of Katz v. United States, which protects reasonable expectations of privacy regardless of physical trespass. Dow had a reasonable expectation of privacy in its plant, evidenced by its extensive security measures and the existence of trade secret laws society recognizes as legitimate. The camera used was not a simple device; it was a sophisticated mapping camera that captured details far beyond what the naked human eye could see from the air, intruding on Dow's protected privacy interests. The Court's distinction between this camera and more 'sophisticated' technology is arbitrary and will permit Fourth Amendment rights to decay as technology advances and becomes more common.
Analysis:
This decision solidifies the distinction between the high privacy expectations in a home's curtilage and the lower expectations in commercial settings, particularly large, open-air industrial facilities. It establishes that such facilities are more like 'open fields' for aerial surveillance purposes, reducing their Fourth Amendment protection. The Court's analysis introduces a technological component to the 'search' inquiry, suggesting that while some technological enhancement is permissible, surveillance with 'highly sophisticated' equipment not generally available to the public might constitute a search. This creates a moving standard that could be re-evaluated as new technologies become more common, impacting future cases involving drones, high-resolution satellite imagery, and other advanced surveillance methods.
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