How Private Investigators Can Keep Investigations Legal Using Common Sense
- August 04, 2010
- by Jeff Kimble
In my home state of Arizona where I am licensed to own and operate an investigative agency, the leeway granted to the private investigator within the boundaries of state statutes are, in my opinion, less restrictive than many other states. However, with advances in technology constantly changing the playing field and thereby laying the framework for case law trends and statutory adjustments, as well as the never-ending post 9-11 political battles between the security/privacy camps at the federal level, I have found it absolutely necessary to be a perpetual law student in order to survive and thrive in the investigative business.
The U.S. Constitution, while permanent in its intent to protect the freedom and privacy of citizens, still allows for each state in the union to breathe and pulse as a different part of one body. These individualistic legal rhythms must be monitored, understood, and obeyed to the best of the investigators capacity in order to succeed. Just reading local statutes and being familiar with specific case rulings in one's home state is not enough. Always see the forest for the trees. Take your individual, specific case, and what your client has requested, and place it in the context of the entire scope of state and federal law.
In addition to this approach, I have found that a few simple acronyms have served me well over the years. As should be expected, the following is not legal advice; rather, its just a bit of homegrown wisdom, and my hope is that it will serve as a guide to working PIs and the clients who hire them.
- R.E.P. (Reasonable Expectation of Privacy) This is the biggie. What is the subjects reasonable expectation of privacy in any given investigative scenario? Asking this question at every step of an investigation and giving yourself (and the client) an honest answer, particularly in the field of surveillance, will guide you through legal quagmires like a magic compass.
- W.O.W. (Who Owns What?) Who owns the vehicle? Who owns the computer? Who owns the cell phone? Who owns the child? Jurisdiction is everything, and it applies to the macrocosm as well as the microcosm. Establishing ownership and/or jurisdiction over the nouns involved (person, place, or thing) will give you, in most situations, a quick yes or no as to what you can and cannot do legally.
- W.W.J.D.? (What Would the Judge [or the Jury] Do?) Anticipate yourself sitting in court in front of "Judge Gallows" answering pointed questions from a state prosecutor regarding why you thought it was okay to stick your super-periscope-cam into the bathroom window of a second-story apartment. Forget statutes, jurisdiction, and the fine print for a moment and just ask yourself if you could explain your actions to other human beings who will view your choices and justifications through the colored glasses of human foibles, prejudices, and possible righteous indignation. Where, in the courtroom, will you stand if the proverbial excrement hits the fan?
Now take the following examples of PI-related tasks that most of us have probably been asked to perform at one time or another and apply the above acronyms:
Using GPS to Track Vehicles or Subjects. Apply R.E.P. Does a subject have a reasonable expectation of privacy while driving his or her vehicle? My answer would be yes on private property, but no on the open road. Everyone can see the vehicle plainly driving around town whether it's two human eyes or the eye in the sky. So move on to W.O.W.: Who owns what? If the client does not own the vehicle, you may want to stop right there. In Arizona, the statutes are currently nebulous, but in many states it is already illegal to place a GPS tracker on a vehicle that you do not hold title to. W.W.J.D.? My guess is that, except in extreme circumstances where human life is at risk or severe crimes are being committed, most average Americans in the jury box will not appreciate the fact that you are lackadaisically bugging their cars without permission. I tread softly on the GPS debate, and I suggest that you do, too. The winds are blowing both ways and an entire book could be written on the subject. This issue is in courts around the country as I write. Check out Michigan's Senate Bill 325 and its recent passing as a prime example.
Bugs/Wiretapping. If you have to apply the acronyms to answer this one, quit the PI biz now, or pursue some serious continuing education. (Former President Nixon is turning in his grave if you have to ask about this one ...) Im not saying that unscrupulous individuals do not perform these services, but this article is about performing our jobs legally, and this subject, without a warrant, is and always should be a big no-no. Bug your own property and tap your own phone (and even that can be interpreted as illegal in some states), but don't even think about bugging/wiretapping someone else's without a warrant.
Digging Through Trash. This one, Ill admit, cannot be addressed fully by simply applying the three acronyms. Some states have outright banned this practice, others could care less. Check your local statutes. Rule of thumb: If the trash is on public property and set out for obvious disposal, you are likely OK. But again, check the local laws.
Working on a Case Where the Client Wants to Bring Back a Child from Another State or Country. R.E.P. is generally meaningless in regard to the childs privacy as the child, if he or she is an un-emancipated minor and in the legal custody of a parent or guardian, is at the mercy of that parent/guardian. Which brings us to W.O.W. In this kind of case, jurisdiction is everything. Does the parent who wants the child legally own the child? Make absolutely sure. A clear, jurisdictionally functional court order establishing custody is essential. But even with such a document, this may not give you, the investigator, the right to retrieve the child as the parents agent - PI state licensing reciprocity aside. W.W.J.D.? They would expect you - or the client - to consult a reputable attorney to make sure all the legal requirements are fully met. Quite honestly, I would be fine with locating the child, but I would leave the physical delivery to the client, especially if the child is uncooperative. "Damn it, Jim, I'm an investigator, not a babysitter!"
Breaking and Entering. See "Bugs/Wiretapping" above.
Recording Conversations (With and Without Consent). R.E.P. and W.O.W. both apply, but specific state laws again can change the game. Two people having a private conversation have a reasonable expectation of privacy and therefore a third party cannot legally record them in any state without a warrant. However, in some states, like Arizona, if one party (your client) consents to the recording, it may be performed legally. Other states have a variation on the theme in that the conversation can be recorded with one party's consent, but the other party must also be notified prior to the recording being made. But even then, apply W.W.J.D.; just because something is "legal" does not mean it's ethical or appropriate. A judge or jury may still despise you for it in the end or deem it inadmissible. This is another area of surveillance that must be carefully considered on all levels before proceeding.
Tampering With Mail. See "Breaking and Entering" above.
Filming a Person While They are In Their House. All three acronyms apply here, but R.E.P. ends this one quickly. Unless the person is in plain view from a public area, e.g., from the road in front of the residence, and is filmed from there, forget it. A man's (or woman's) home is their castle, and you are asking for war if you attack the king on their home turf. We all have a reasonable expectation of privacy in our homes, and filming someone inside their own home obviously crosses the line big time. But what if the owner consents? For example, the wife wants a hidden camera placed in the bedroom to catch the cheating husband with the babysitter while the wife's away on business. I would defer back to the biggie: R.E.P. Even though the wife may comply with W.O.W. (she's on the mortgage), in my opinion, R.E.P. trumps W.O.W. There are easier ways to prove infidelity than by invading someone's bedroom and winding up with surveillance video not fit for primetime. Besides, in no-fault and community property divorce states (like Arizona) this kind of surveillance is pointless in court and simply asking for trouble.
Film a Person While They Are in Plain Sight. Do they have a R.E.P.? Ask this question and you have the answer. It doesn't mean they can't file a complaint against you if you're spotted snapping pictures, but essentially this is what your license allows you to do: loiter in a public place to collect information. Just make sure you are conducting a legitimate investigation and not harassing and/or otherwise behaving unprofessionally. There is no license to be a jerk. W.W.J.D.?
Obtain Credit Information. Forget the acronyms and go read the Fair Credit Reporting Act.
Pretexting To Get Information. Apply W.W.J.D. and then go read the Gramm-Leach-Bliley Act.
Track a Persons Computer Usage. W.O.W. primarily covers this one, but R.E.P. and W.W.J.D. apply. If the computer is owned by two people - a husband and wife - then R.E.P. could not easily be argued by the offended party, e.g., the husband has the computer examined by a computer forensics investigator and erotic emails to his wife's tennis instructor are discovered. The wife can't hope for much R.E.P. from the family computer. Which brings us to W.W.J.D. Imagine a jury's consternation at the thought of their computer information being exposed to a stranger's prying eyes in a simple domestic case. Imagine yours. Proceed with caution, preferably with a good attorney directing the show in advance.
Obtaining Cell Phone Records. Good luck without a subpoena. And even with a subpoena, good luck, depending on how antiquated the information is and whether it is called/received numbers or text messages. Phone companies do not retain all phone information ad infinitum. Phone records are well protected by state and federal law and are generally considered off limits. But then again, W.O.W. comes into play. If you are the primary on the account, you can get a fair amount of information from the phone company on your own as a private citizen. But if you want someone else's records, no self-respecting private eye will comply. The days of pretexting such records and/or having a "source" at the phone company still exist, but the potential criminal penalties are, in my opinion, not worth the meager retainer.
The law in regard to investigative techniques is not meant to be a complex maze of rules that can only be traversed and/or circumvented by a gifted few. Its intent is to protect the right to privacy, to forbidding unreasonable search and seizures, to freedom of religion, speech, the press, etc. Rather than looking for ways to push the limits of what we can do as private investigators, we should always utilize our common respect for personal freedom as our guide. Bending the law to win a case or please the client is the last potentially fatal step immediately preceding the breaking of the law, and there are plenty of PIs who have slid down this slippery slope to ruin. Much of PI work is simply common sense. I hope the above contributes to that sense.
Jeff Kimble is a guest writer for PInow.com. He is a licensed private investigator and co-owner of Arizona Legal Document Services LLC in Arizona.
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