The landscape of how to conduct investigations is ever-changing in the tools available to an investigator. Tools of our trade can be anything from a database that helps us find information or new camaras available in how we gather video documentation in a surveillance. Our tools have changed considerably over the years with video equipment in the beginning of my career being quite large and now down to the size of a pinhole in certain cameras.
Oftentimes in surveillance we are tasked with difficult cases. In my 23 years of experience in investigations I can tell you no case is ever the same. Prior to the start of a surveillance, a thorough internal investigation is conducted including the layout of the area and in which type of neighborhood the surveillance will be.
Forethought is given to where the subject’s residence is located, how many exit points the subject has, is it possible to have continuous visual contact on the residence or must the surveillance be conducted from a distant vantage point in anticipation of the subject’s departure? Rural and remote residences are even more difficult and require extra planning on the part of the investigative team. Some might ask why not make it easier on ourselves and utilize the aid of a drone in these types of investigations? Drones are used in investigations for crime scene aerial documentation and accident scene investigations, but why are they not readily utilized in surveillance, particularly insurance defense investigations?
Drones, UAV’s and micro aerial vehicles have changed a lot over the last few years in size, weight, distance ability and video capabilities and have certainly been a consideration to a potential tool in investigations. They’re easily accessible, available, and nowadays you can even find them at big box stores. Why then have we not offered this as a service with API?
With each tool we utilize for surveillance, careful scutiny is given to how that tool will be used and what we as investigators must do to not only utilize that tool effectively, but also have the end result hold up in court should we be asked to testify in our case. There are inherent issues in using a drone.
Drones of a certain size and weight must be registered with the FAA. Certification through the FAA must be taken to become a ‘licensed pilot’ of the drone. Liability insurance coverage must be obtained for the drone operator, and limitations on the height a drone can fly per the FAA regulations need to be followed.
Is the drone to be used as a covert tool or an overt tool? Noise considerations, battery life (very short for the purposes of surveillance), the FAA requires a direct line of sight between the operator and the drone at all times, privacy concerns and yes, even aerial trespass and nuisance considerations must be given.
The legality of drones as a surveillance tool cannot be overlooked. Did you know that ‘aerial trespass assumes a property owner’s possessory right to some portion of the airspace above the owner’s property? There are potential safety considerations. What if it lands or crashes on a subject’s property? Could that lead to potential trespass or harassment claims? Certain municipalities including Aurora, Boulder, Cherry Hills Village, Denver, Louisville and Telluride already govern recreational and commercial use and I’m sure many more will follow.
A crucial criteria we think about with each and every surveillance is ‘reasonable expectation of privacy’. Limiting the liability of our clients is always in the forefront of our minds when working a case and always protecting our cases and clients from potential bad faith claims is crucial. When a tool is physically out of the hands of the investigator, liability increases. Giving careful thought to all of these considerations has led us to the conclusion that utilizing a tool such as a drone for surveillance has too many potential legal pitfalls for our clients to outweigh the benefits.
-Andrea Orozco