Environmental Law

An Illegal Search?

By Walter James

On June 3, 2009, the Texas Commission on Environmental Quality (?TCEQ?) announced that starting the first week of June 2009, it would use a Bell Jet Ranger helicopter to fly over many industrial facilities located on the Houston Ship Channel.  The fly-overs are part of a project between the TCEQ and the University of Houston to field test a new type of remote sensing technology intended to identify sources of benzene emissions.  The helicopter will be equipped with specialized remote sensing technology known as Differential Absorption Light Detection and Ranging (?DIAL?) (which has been used in the past by the TCEQ in a past study in the Texas City area to measure emissions from such industrial sources as liquid storage tanks and flares).  The project is field testing a smaller, more specialized version of DIAL technology.  The project is scheduled to conclude on June 30, 2009.

So, what happens if the TCEQ spots any wrong-doing while conducting the fly over?  Is it an illegal search?  Do you have a Fourth Amendment right to the air space over your facility?  Probably not.  Especially if the ?open fields? doctrine is applied.  The ?open fields? doctrine is a judicially created standard for evaluating claims of an unreasonable search by the government in violation of the Fourth Amendment of the United States Constitution.  You can learn more about the ?open fields? doctrine by reviewing the case law:  Hester v. United States, 265 U.S. 57 (1924) which held that ?the special protection accorded by the Fourth Amendment to the people in their ?persons, houses, papers, and effects,? is not extended to the open fields."  Id.  The doctrine was further refined Katz v. U.S., 389 U.S. 347 (1967) which established a two-part test for what constitutes a search within the meaning of the Fourth Amendment.  The relevant criteria are, generally, an actual expectation of privacy and that society is prepared to recognize that expectation as reasonable.  To further raise the bar, in Oliver v. United States, 466 U.S. 170 (1984) the Supreme Court held that a privacy expectation regarding an open field is unreasonable.

So, a fly over by a helicopter collecting data probably would not be an illegal search under the Fourth Amendment. 

More later.

As always, feel free to contact me via e-mail at walter.james@jamespllc.com.

WDJiii

Full post as published by Environmental Crimes Blog on June 03, 2009 (boomark / email).