Dow Chemical Company v. United States

PETITIONER: Dow Chemical Company
RESPONDENT: United States
LOCATION: Dow Chemical

DOCKET NO.: 84-1259
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 476 US 227 (1986)
ARGUED: Dec 10, 1985
DECIDED: May 19, 1986

Alan I. Horowitz - on behalf of the Respondent
Jane M. Gootee - on behalf of the Petitioner
Miss Jane M. Gootee - on behalf of petitioner -- rebuttal

Facts of the case

Dow Chemical Company denied the Environmental Protection Agency a follow-up on-site inspection of its facilities in Midland, Michigan. In response, EPA conducted an unannounced aerial inspection. When Dow became aware EPA had taken aerial photographs of its facilities, it filed suit in District Court alleging that EPA conducted a warrantless search in violation of the Fourth Amendment. The District Court ruled that the aerial inspection violated Dow's "expectation of privacy" from searches. The United States Court of Appeals for the Sixth Circuit reversed the ruling on the ground that Dow only expected pivacy with respect to its indoor property.


Does the Fourth Amendment require government inspectors to obtain warrants before conducting aerial searches of outdoor business facilities?

Media for Dow Chemical Company v. United States

Audio Transcription for Oral Argument - December 10, 1985 in Dow Chemical Company v. United States

Warren E. Burger:

Ms. Gootee, I think you may proceed whenever you are ready.

Miss Jane M. Gootee:

Mr. Chief Justice, and may it please the Court:

This is a Fourth Amendment administrative search case where Dow is asking this Court to reinstate the district court's holding that EPA's action both exceeded its statutory authority under Section 114 of the Clean Air Act, and that EPA's actions amounted to an unreasonable search in violation of the Fourth Amendment.

On cross-motion for summary judgment, and as the tryer of fact, the district court found that the Dow facility in Midland, Michigan was a highly secured commercial facility.

It was not an open field.

The district court also found that EPA's action amounted to a search, a fact which the Government admitted, both in its brief and its oral argument.

The district court also found that the EPA's photographs contained vivid detail to the point of depicting items and equipment as small as one-half inch in diameter, and the court found that the camera saw much more than the human aerial eye or mind could ever see.

In September of 1977, EPA conducted a three-hour on-site inspection of the two powerhouses at Dow's Midland facility.

That was done in continuing preparation for Clean Air Act enforcement action and to confirm the EPA's suspicion that the two powerhouses did in fact violate the Clean Air Act.

William J. Brennan, Jr.:

Now, that was an on the ground inspection?

Miss Jane M. Gootee:

Yes, it was, Justice Brennan, and during that inspection the EPA people received full cooperation from Dow personnel.

They saw everything they wanted to see.

They were denied nothing.

In fact, after the inspection, at EPA's request Dow submitted drawings and schematics to EPA depicting the powerhouses, the equipment in the powerhouses, and the areas surrounding the powerhouses.

The EPA enforcement engineer testified that after that September inspection he needed no further information from or about Dow to confirm his suspicions that the powerhouses were in violation of the Act.

Three months later, in early December of 1977, Dow received a phone call from the EPA requesting a repetitive on-site inspection with a camera.

Dow refused that request, told the EPA it would not allow non-Dow cameras inside the fence line, and the possibility of EPA's getting a warrant was discussed.

In fact, after the phone call a Dow attorney called the U.S. attorney's office in Bay City, Michigan and told that office that if the EPA approached the office and was going to try to seek a warrant, that Dow would appreciate the opportunity to be there and be heard.

Two months after that refusal of the second on-site inspection, knowing that Dow refused consent for a second on-site inspection, knowing that Dow objected to aerial photographs, or the photographs of its plant, and knowing of its duty to resort to the court, the EPA ignored Dow's constitutional and statutory rights and ignored its duty to seek judicial oversight and acquired surreptitiously--

John Paul Stevens:

But isn't the question in the case, whether it had such a duty?

You said it ignored this duty, but isn't that the issue?

Miss Jane M. Gootee:

--Yes, Justice Stevens.

The issue is whether there was a search.

The EPA had tried to come on to that property to conduct a search and had been turned away after there had been one consensual, voluntary inspection.

The district court found that there was a search.

In fact, the Government admitted in both the oral argument and the brief that it had conducted a search in conducting the fly-over.

The district court also found that EPA's actions exceeded its statutory inspection authority under Section 114.

On appeal by the Government the Sixth Circuit... the Sixth Circuit agreed with the district court that Section 114 of the Clean Air Act does not explicitly authorize aerial photography as a site inspection technique, but the district court, ignoring the plain language of the statute, ignoring the obvious congressional intent of providing the owners notice, without citation to any authority, held that the Act did not impliedly forbid aerial photography.

Dow thinks that--

Sandra Day O'Connor:

Ms. Gootee, what if the EPA inspector here had been able to go to a nearby hilltop and just look over the fence?