When Does Surveillance Become Stalking?

Surveillance is a critical skill for any private investigator (PI). In our investigative agency, over half our cases, from criminal defense to personal injury, require some degree of surveillance. For PIs who specialize in insurance or infidelity investigations, surveillance can be the bulk of their work.

Sometimes the issue arises of when legal, permitted surveillance crosses the line into stalking. A rule of thumb is to analyze one’s motive for conducting surveillance. If the performed surveillance serves a purpose for obtaining information that PIs usually obtain, courts will generally uphold rigorous surveillance.

Below are two separate case examples, the first where a state court found that a PI’s actions were stalking, the second where a state court found that the PI’s surveillance was in the course of legitimate investigative activities.

New Hampshire Supreme Court Case: PI Found to Be a Stalker
In the state of New Hampshire, one variety of stalking is when there is repeated, unwanted contact between a protected person (with a restraining order) and the restrained person (or their agent). There is an exception to this type of stalking in those instances for “conduct that is necessary for a legitimate purpose.” This encompasses “legitimate” domestic relations surveillance to prevent child support fraud or to uncover bad living conditions for children. However, a PI learned the hard way it does not cover “leaning on your ex” according to Miller v. Blackden 913 A. 2d 742 (NH Sup. Ct. 2007).

A New Hampshire woman convinced the state court that her ex-boyfriend hired a private investigator, also his personal friend, to stalk her. In the history between the woman and her ex, he’d broken into her home several months after breaking up with her and a few months before hiring the investigator to follow her.

The PI followed the woman on 6 occasions in a 24-hour period. During this time, she claimed he parked outside her home at night with his vehicle lights off, followed her the next morning to her son’s school, drove past her at the school while “staring her down” as she dropped off her child, and drove past her again when she picked up her son later that afternoon. It seems the PI sealed his fate that same day when he followed the woman to the courthouse and waited for her as she filled out the court paperwork for a restraining order against him.

At the hearing, the PI cited private investigator privilege and refused to tell the court why he had been following the woman. The court found it significant that there was a history of illegal activity on the ex-boyfriend’s part and concluded the PI’s conduct caused “a reasonable person to fear for their safety.” All of this compelled the New Hampshire Supreme Court to confirm that stalking had taken place and that the PI could not claim his “conduct had a legitimate purpose.”

This case teaches us that a private investigator must:

1. Have a legitimate purpose for surveillance
2. Conduct it in such a way that he/she does not strike fear into the heart of a subject who has been recently victimized
3. Look carefully at a client’s motives for conducting a surveillance.

The next example is a court upholding a PI’s rigorous surveillance activities:

Michigan Supreme Court Case: PI Absolved of Stalking Accusation
A few years ago, an individual in Michigan sued a PI firm for a violation of the Michigan stalking law for actions the investigators took during an insurance surveillance (Nastal v. Henderson 471 Mich. 712, 619 N.W.2d 1 2005).

The PI firm fought the case all the way to the Michigan Supreme Court, which agreed with the PI firm that “surveillance by private investigators contributes to the goal of obtaining information and amounts to conduct that serves a legitimate purpose. Even though plaintiff observed the investigators following him more than once, this is not a violation of the stalking law.” (In summary, the Michigan Supreme Court dismissed the lawsuit outright and never allowed it to the stage where a trial was held.)

Stalking Laws
The legal definition for stalking varies across jurisdictions. State laws differ regarding victim fear, emotional and/or physical distress, and intent of the stalker. Some states require that the victim was in fear of the stalker, others require only that the stalking behavior might cause a reasonable person to experience fear. Add to this that states vary on what level of fear is required. In our state, Colorado, it is a felony to repeatedly follow someone (who is protected by court order) and cause them “severe emotional distress.” Interstate stalking is defined by federal law.

To play it safe, conduct surveillances that recognize and respect others’ privacy rights and personal boundaries, and are conducted for the sole purpose of gathering evidence. Like the Eagles song “On the Border,” a PI needs to stay on the border, walkin’ the line.

Colleen Collins is a professional private investigator and multi-published author. She and her business partner run Highlands Investigations & Legal Services, Inc., based in Colorado, which specializes in asset/background checks, criminal/civil investigations, domestic relations, financial fraud, personal injury, skip tracing, and surveillance. To read more about their services, go to http://www.highlandsinvestigations.com