06/17/83

Overflights Initiated by the Criminal Enforcement Division

MEMORANDUM                             JUNE 17, 1983

SUBJECT: Overflights Initiated by the Criminal Enforcement
         Division

FROM:    /s/  Peter G. Beeson
         Associate Enforcement Counsel
         Criminal Enforcement Division

TO:      All SAICs


    This is written to discuss the law on the use of overflights in criminal
investigations and prosecutions and to establish uniform procedures within
our Division.  The use of overflights as an investigative technique can
require prior approval and the issuance of a search warrant by a Federal
magistrate in certain circumstances.  Consideration of Fourth Amendment
issues prior to requesting an overflight is, therefore, a necessity.

Background:  Pre-Dow Chemical Case Law

    Until the recent case of the United States v. Dow Chemical Co., 536 F.
Supp. 1355 ( E.D. Mich. 1982 ) ( hereinafter referred to as "Dow" and
discussed in detail below ), the few courts which had ruled in this area had
upheld warrantless overflights using photographic and sense-enhancing
equipment so long as the flights were at lawful altitudes.

    The initial question as to whether the overflight is a "search"--and
therefore subject to Fourth Amendment analysis--is governed by the decision
in United States v. Katz, 389 U.S. 347 (1967).  In Katz, the Supreme Court
held that attaching an electronic listening device to the outside of a
telephone booth is a search because (1) a person has an actual
( subjective ) expectation of privacy pertaining to private telephone
conversations and (2) this expectation is one that society is prepared to
recognize as reasonable.

                                    -2-

    In pre-Dow decisions, courts looked at the physical layout of the
property to determine whether there appeared to have been an attempt to
protect the facility, or its internal operations, from public view or aerial
inspection.  Solid fencing, roofs and other coverings obviously reflect a
subjective expectation of privacy pertaining to land-based as well as aerial
surveillance.  The location of the site ( commercial or residential, rural
or urban ) and the nature of the property ( buildings, land ) determine
whether the expectation of privacy is reasonable.  If the overflight path
encompasses open fields  1/  , yards outside houses  2/  , farms  3/  , or
areas generally open to public view  4/  , courts have normally not found a
privacy interest that would trigger the protection, and the warrant
requirement, of the Fourth Amendment.

  1/ Dean v. Superior Court, 35 Cal. App. 3d 112, 110 Cal. Rptr 585 ( Ct.
    App. 1973 ).

  2/ People v. Superior Court, 37 Cal. App. 3d 836, 112 Cal. Rptr 764 ( Ct.
    App. 1974 ).

  3/ People v. Lashmett, 389 N.E.2d 888 ( Ill. Ct. App. 1979 ).

  4/ Dean v. Superior Court, supra.

    Overflights that include the use of sense-enhancing devices
( binoculars, telephoto lenses ) can change the character of an overflight
because of the intrusiveness of the equipment.  Similarly, flights which are
at lawful altitudes are different from those in which helicopters or other
small aircraft are used to hover directly over the airspace of private
property.  People v. Sneed, 32 Cal. App. 3d 535, 108 Cal. Rptr 146 ( Ct.
App. 1973 ).  Finally, an overflight which would not ordinarily appear to
violate privacy interests may become violative if repetitive.

The Dow Decision

    The Dow decision, which is now on appeal, analyzed the Fourth Amendment
issues raised by EPA's use of overflights to photograph Dow's facility in
Michigan.  After Dow denied EPA's request to enter its facility to inspect
and to take photographs, EPA contracted to have an airplane fly over the
facility and take approximately 75 color photographs using sophisticated
photographic equipment.  The facts surrounding these overflights clearly had
a significant effect on the Court's ultimate analysis of the Fourth
Amendment issues.

                                    -3-

    First, the Court was so impressed with the "vivid detail and resolution"
of the photographs that it found the pictures to "more closely approximate a
view of the interior of the plant than the exterior."  Dow, 536 F. Supp. at
1357 n.3.  The Court also noted the significant evidence of Dow's subjective
expectation of privacy.  Specifically, Dow had an eight foot high chain link
fence encircling its facility, gates with guards at the entrances and exits,
closed-circuit television surveillance, alarm systems, motion detectors,
roving patrols, identification requirements, a prohibition against cameras
on the facility, a pass system and a multi-million dollar security budget.

    In finding that EPA had intruded upon Dow's privacy, the Court gave
considerable weight to Dow's obvious attempts to conceal itself from
unauthorized observation.  Dow's efforts to maintain the confidentiality of
its operation were based on a concern that trade secrets would otherwise be
available to competitors.  The Court held that Dow's attempts to shield its
interior from competitors were reasonable, and that EPA's overflights were a
"search".  Since the search was not consensual and not executed pursuant to
a search warrant, it was held to be in violation of the Fourth Amendment.

    The Court went on to find that Congress has not authorized any aerial
searches under the Clean Air Act ( CAA ).  Therefore, even if such
overflights had been constitutional, EPA is not, according to Dow,
authorized by statute to use them as part of a CAA inspection or search.
Whether or not Dow is followed by other districts, the opinion highlights
the Katz analysis which must be made before an overflight is initiated, and
demonstrates the hazard ( of suppression of evidence ) which can result from
a non-consensual, warrantless overflight.

Overflights Initiated Within the Division

    Within the Criminal Enforcement Division, overflights will not be used
within the Eastern District of Michigan to investigate potential violations
of the Clean Air Act.  This policy is subject to review following a decision
by the Sixth Circuit on the Dow appeal.

                                    -4-

    In addition, search warrants should be obtained for non-consensual
overflights throughout the country whenever they will be used to search
private facilities at which the owner has manifested a reasonable
expectation of privacy.  As a general rule, warrants will not be required
for overflights involving open fields, woods, yards, or other areas visible
to the land-based public.

    Prior to initiating an overflight, the SAIC or the case agent must
consult with the local United States Attorney and the Criminal Enforcement
Division legal staff on the need for a warrant.

    Questions on the Dow decision, or the issue of overflights generally,
can be directed to Betsy Herman ( FTS 557-7410 ).

Attachment

OMITTED TEXT:  ATTACHMENT - FEDERAL SUPPLEMENT