Surveillance by Private Investigators and the Law

The laws pertaining to surveillance can definitely be a legal minefield for private investigators. Our licensing does not bestow any type of extra powers and we are bound by the very same rules relevant to criminal laws as any other private citizen.

Before you conduct physical or electronic surveillance you should be competent and well trained in the technical and legal aspects of surveillance.  If for any reason you have violated a subject’s rights and are indeed found negligent in a court of law, not only can you or your agency be held liable, but the client hiring you or your agency can also be held liable for damages.

Conducting surveillance illegally is just not worth the consequences (i.e. losing your business, your license, your reputation).  If for some reason you are placed in a situation that may involve trespassing, entrapment or some other violation, think before you commit.

Some of the possible risks that may arise from physical surveillance are traffic violations, trespassing, roping and entrapment, invasion of privacy, and stalking.

Traffic Violations

In all instances, you should obey the law to the best of your capacity and traffic violations are no different.  Seldom are we ever working a case that is so important as to jeopardize the general public due to careless or reckless driving and the flagrant disregard for traffic laws.  If you have an accident because of negligent acts committed during an investigation your client will be held liable as well; this is not good for positive word of mouth advertising.

Trespassing

Trespassing is simply the act of entering private property without the consent of the land owner.  Trespassing can be a very complicated subject, mostly because state laws vary so extensively.  As an investigator, the key thing to remember in gathering your evidence, whether photographically or otherwise, is that if you violate trespassing laws while gathering your evidence then all that evidence is going to be inadmissible in a court of law.   Yes, there are states that still allow an investigator to go on a third party’s property with consent, such as a neighbor.  Again you should thoroughly research your state’s laws on trespassing prior to setting up in the neighbor’s yard.

A stationary technical surveillance platform should never be placed on the subject’s private property. Nor should an investigator enter posted private property or attempt to utilize a right of way to access a better vantage point of the subject’s property. Right of ways are legal property agreements between two parties and the fact that a right of way exists on the subject’s property does not make it a public thoroughfare.

Roping and Entrapment

Roping is the obtaining of information from another person by means of legal deception.  For instance, a private investigator acting drunk in a lounge in order to gain the confidence of a drinking buddy is “roping that person.”

Roping, however, can also lead into nefarious acts such as dropping a bunch of loose change on a subject’s porch in order to videotape him bending over to pick the coins up during a disability assignment.

Roping is, in many instances, very obvious to a judge and jury and should never be attempted as it could cause your client exorbitant amounts of money in civil suit damages.  Roping is synonymous with pretexting and the investigator should be mindful that the things he does or says may very well come out in a courtroom.

Entrapment is creating a condition in which the target of an investigation is required to perform a certain action.  Letting the air out of a target’s tires in order to obtain photographs of his ability to change a tire is entrapment because the subject is required to change the tire in order to use his vehicle.

In the instance of an undercover agent investigating employee theft, the investigator must be careful not to do or say anything that entices or encourages the subject(s) to do anything illegal.  His job is to detect theft not to cause it; he may assist but never insist.

In order to obtain evidence by means of pretending to be an accomplice in this situation you must be absolutely sure of the following precepts:

1. The plan and criminal intent must originate in the suspect’s own mind;
2. The target must commit all of the essential elements of the crime.

Invasion of Privacy

“Invasion of Privacy” deals with the area of expected privacy by an individual.  Any evidence obtained in violation of an individual’s privacy will not be admissible in a court of law.  Privacy is “the condition or state of being free from public attention to intrusion into or interference with one’s acts or decisions.” (Black’s Law Dictionary.) Therefore, surveillance in a public place is not private and there is no reasonable expectation of privacy in a public place.  Determining whether the law protects your privacy requires knowledge of the law and it is often a question of what society deems is reasonable.

Surveillance in areas such as bathrooms, locker rooms, changing/dressing rooms, bedrooms and other areas where a person should expect a high level of personal privacy is off limits.

Stalking

Stalking is defined as “a term used to describe unwanted attention by individuals (and sometimes groups of people) to others. Stalking behaviors are related to harassment and intimidation. It may also be used to refer to criminal offenses or civil wrongs that include conduct which some people consider to be stalking, such as those described in law as “harassment” or similar terms.

Over the past decade, most states have passed legislation prohibiting stalking. Investigators conducting surveillance must be aware of their own state’s stalking statutes and take the necessary steps in their surveillance activities to prevent themselves from being on the wrong side of a lawsuit.

One example that comes to my mind where surveillance may be alleged as stalking is the surveillance tactic of “rough shadowing.” Rough shadowing is a tactic used by investigators who are “public,” overzealous, or outright blatant in their surveillance activities such as parking outside the subject’s home in full view of neighbors, following subjects into places of business, or publicly videotaping subjects with no effort to conceal their motives or actions. This method of surveillance exposes the subject to public disgrace, ridicule, contempt or public embarrassment and may potentially result in a lawsuit. Remember Schultz v. Frankfort M. Accident & P.G. Insurance Company, 139 N.W. 386 (1913)? The Wisconsin Supreme Court ruled in favor of the plaintiff where the plaintiff had filed suit that he was being investigated through the use of rough shadowing. The plaintiff’s primary complaint was he could not perform his daily duties in a natural manner.

Bottom line, surveillance is to be covert and should never be openly and blatantly performed and never cause the subject to suffer any type of substantial emotional distress.

When you have a moment check out your state’s statues regarding stalking: http://www.esia.net/State_Stalking_Laws.htm

This article is a small excerpt from Serious Surveillance: Obtaining Evidence that Stands up in Courts, an online continuing education course for private investigators.