Hoai Thu Tran- Sunny
ID#: 201000077
Case: Dow Chemical Co.v. United States

Question 1: Of what significance is the fact that Dow’s plant could be seen from the air? * The firm brought suit in Federal District Court, alleging that EPA’s action violated the Fourth Amendment. The court found that Dow manifested an expectation of privacy in the “interior regions of its plant” meaning by phrase, the open, outdoor spaces between plant buildings. * 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. * The court also emphasized that camera used to photograph the facility “ saw a great deal more than the human eye could ever see”.

Question 2: Did Dow take any steps to protect its privacy? What difference would such steps make?
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 intrusion by building a perimeter security fence and employing security guards. 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.
But 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. Certainly, no one could reasonably expect Dow to build a dome over its entire Midland plant in order to establish its expectation of privacy, free from aerial intruders. But it does not follow that Dow could not take any measures at all to shield outdoor spaces from aerial observers. Dow could have shielded the critical spaces in between its buildings, if it had an actual expectation of privacy from aerial observation of these regions. Dow has described no trade secret or confidential relationship outside its building walls that the observer from above would compromise, and Dow's objective behavior does not indicate an expectation to be free from the aerial spectator.
Question 3: What objections do the dissenting judges raise to the decision?
In the opinion of the Court of Appeals, Dow's size and location militate against regarding an expectation of privacy free from aerial observation as reasonable. When the entity observed is a multi-building complex, and the area observed is the outside of these buildings and the spaces in between the buildings, and when the complex is near an airport and within the pattern of planes landing and taking off, it is difficult to see how a reasonable person would have privacy expectations in the outside of the buildings and the spaces between the buildings. The facility more closely resembles an “open field” than a “curtilage”. The context or conditions for privacy are not present there, and such demands are not reasonable. Id. In affirming this Court in Oliver, the Supreme Court made reference to and quoted with apparent approval from a passage.
Therefore the doctrine couldn’t apply in this case.