On January 23, 2012, the US Supreme Court issued a ruling in the case of the United States vs. Jones which will likely set the precedence for future legislation of the use of GPS tracking devices. The ruling reversed a prior conviction against Respondent Antoine Jones. In the ruling, the Supreme Court noted the admission of evidence obtained by government agents was obtained without a valid warrant, and thus violated the Fourth Amendment.
This recent ruling raises the question of, “What does this mean for the private sector?” Private investigators, process servers, and private individuals for that matter are unlike law enforcement and government agents that have the ability to obtain warrants, so this ruling doesn’t impact the private sector, right? Actually, this recent ruling begins to lay the foundation for how the use of GPS tracking devices will be allowed for both government and private sectors. The term ‘Big Brother’ from George Orwell’s Nineteen Eighty-Four is a synonym typically used for the abuse of government power, and particularly when describing the government’s use of surveillance. It is the responsibility of professional investigators to not allow this term to become associated and perpetuated by the media to the use of surveillance in the private sector.
Let’s take a look at a worst case scenario, yet a very typical phone call that a private investigator receives from a private party. If you are an investigator who offers domestic, infidelity, or child custody investigations you have no doubt received this type of call. The potential client, in this case a male, requests to have a GPS tracking device placed on his girlfriend’s vehicle, perhaps because of the suspicion of infidelity. At this point, there should already be red flags, or at the very minimum, questions that should concern you and compel you to find out more. The experienced investigator will likely see the potential pitfalls on the backside of this case. However, at this point I will limit the topic of this article to focus primarily on the use of GPS tracking devices. So the inexperienced investigator accepts the case and proceeds.
The inexperienced investigator subsequently finds out the client’s girlfriend does not reside with the client. She actually resides in a house with a driveway, and she happens to park her vehicle outside in the driveway. The instructions from the client are to keep this assignment completely covert, as he is attempting to determine if his infidelity suspicions on the part of his girlfriend can be confirmed. Also, the client has only authorized a few hours of investigative time, and at this time the client only wishes to document the comings and goings of his girlfriend from the convenience of his home computer. The client has, however, dangled the carrot by indicating there is the potential to authorize surveillance depending on what the GPS tracking documentation reveals.
The inexperienced investigator, eager to please his/her client, proceeds to devise a plan of action. The investigator will wait until late at night and place the GPS tracking device on the underside of the vehicle of the client’s “girlfriend”. (Notice I have now placed the word girlfriend in quotations as the investigator is under the assumption that his client is telling the truth). The investigator successfully places the device on the vehicle by crawling under the vehicle at night without being seen. The investigator has now left himself / herself susceptible to being charged with trespassing as well as tampering. However, at this point in time, the investigator doesn’t have the slightest idea of the consequences that are to come.
The investigator, excited to have completed the assignment within the hours of authority, notifies the client. The client then proceeds to document the whereabouts of the vehicle that the GPS tracking device has been attached to. The client immediately notices the vehicle is spending time at a particular location, in this case a private residence where a male who the client is familiar with is known to reside. The client goes on to make accusations and threats against his “girlfriend” and goes as far as to tell her that he knows where she is going because he had Mr./Ms. Inexperienced Investigator place a GPS tracking device on her vehicle.
The “girlfriend”, extremely emotional and distraught, goes on to file charges against the investigator’s client. The investigator is also ordered to appear in court and is slapped with trespassing, tampering, and harassment/stalking charges. In court proceedings the inexperienced investigator finds out that his/her client and the “girlfriend”, who at this point will be referred to as the subject, are no longer involved in a relationship. The subject only briefly dated the client, never lived together, and in fact broke the relationship off due to control issues the client exhibited. The client went on to continue harassing the subject, compelling her to file a restraining order against him, all prior to the investigator being hired to place the tracking device on the subject’s vehicle.
Regardless of the outcome of the charges brought against the investigator, the PI knows that he/she undoubtedly faces an immediate future of several thousands of dollars in legal fees, not to mention time off work to attend to court matters.
To make matters worse, the client finds out that the GPS tracking device only tracks what it’s been placed on, in this case a car registered to the subject. During court proceedings, the client finds out the subject’s sister had recently moved in with the subject and was borrowing the subject’s vehicle and driving it to the residence of the male the client is familiar with. The client, in his haste and anger, realized he had prematurely jumped to conclusions and assumed the subject was at the male’s residence simply because the vehicle was there.
So can a private investigator, process server, or any private individual use GPS tracking devices for any type of case? There are many uses for GPS tracking devices, and without going into the endless numbers of scenarios for their use, I’ve broken them down into 3 categories, with increasing risk of legal implications. Remember, these categories will describe the uses of GPS tracking devices for the private sector, where there are no warrants issued by a judge.
In the first category of use, all parties, to include the individual(s) whom the vehicle is registered to and driver(s) of the vehicle are aware of and consenting to the use of the GPS tracking device. In essence, it’s a completely overt use of the tracking technology. The most typical examples of this would be in the case of an employer tracking the use of company vehicles used by employees, or a concerned parent tracking a vehicle being used by their teen son/daughter. These drivers would be likely to consent to the use of a GPS tracking device because they are borrowing and operating the vehicle of the owner. Since all parties are aware and consenting of the use of the GPS tracking technology, the chances of any negative legal action taken against the client or the investigator are minimal. However, keep in mind a GPS tracker cannot be continued or discontinued on-demand the way physical surveillance can. A GPS tracking device cannot determine if the individual is proceeding from public property onto private property. Also keep in mind the registrant(s) or driver(s) of the vehicle can potentially retract their consent during the time the GPS tracker is being used.
In the second category of use, all of the registrant(s) are consenting. However one or more drivers of the vehicle are non-consenting to the use of the GPS device. In this category, there is an element of covert tracking. The typical example of this scenario is in the case of a married couple, where one person owns the vehicle and suspects the other of infidelity. The owner of the vehicle might confidently believe they have every right to know the whereabouts of their property without the driver’s consent. However, the driver(s) of the vehicle could potentially claim their privacy was invaded. The investigator must be aware of messy pending divorce situations where one party has moved out of the client’s residence, or where there is a history of domestic violence, restraining orders, harassment/stalking charges, etc. Since the use of the technology is covert, it can also bring into question whether the driver is being tracked on private property, and thus having his/her expectation of privacy violated. For the investigator as well as for the private party, the legal liability for placing and/or using the GPS tracker under this type of category begins to increase.
In the third category of use, and the one with the most pitfalls for any private party involved with the placement of the GPS tracking device, one or more of the registrant(s) is non-consenting to the use of the device. Again, this falls under covert use of the technology. The worst case scenario used earlier in this article is an example of this type of use. It typically involves the boyfriend/girlfriend scenario, but can sometimes involve married parties, where the client’s (or user of the GPS tracker if done without hiring a PI) name is either not on the vehicle registration, or is only one of the names on the registration. Note that in this scenario, I didn’t mention the consent/non-consent of the driver as it becomes irrelevant. The driving, and thus critical factor for this category isn’t the non-consent of the driver(s), it’s the non-consent of the registrant(s). In the rare case that the client/user of the technology IS the driver, there are more effective ways to utilize GPS tracking, such as with a cell phone or other device that can be worn/carried on that person. Also note this category can include the scenario where all of the registrant(s) are non-consenting. A common request that fits this scenario is when an employee wants to have a GPS device placed on the vehicle of a co-worker, or an employer who wants to have the device placed on the personal vehicle of the employee. The use of GPS tracking devices in the tracking of claimants in worker’s compensation cases typically fits in this category. I highly recommend that any investigator who values their license and career not use GPS trackers that fall in this category.
I will likely hear of scenarios that will challenge whether there should be more than three categories, and I certainly welcome them. For example, some investigators have probably already thought, “What about the client who hires the PI to place a GPS tracking device and conduct surveillance on a spouse who rents a car at an airport?” If the investigator did not obtain the consent of the car rental company, this scenario would fall under the last and riskiest category of use. If the investigator was charming enough to convince the rental car company of consent, the use would fall under the second category of use. Taxis, leased vehicles, etc. all fit in one of the 3 categories listed above.
In conclusion, it is the responsibility of the user of the GPS tracking technology, whether a private investigator, process server, or the private party, to know and understand the risks associated with the different uses of GPS trackers. Particularly in states such as Colorado where there are no current state laws regarding the use of this technology, the waters are still murky. The recent Supreme Court ruling clearly indicates government and law enforcement agents can’t carelessly use this technology for any or no reason at all. With GPS tracking use, the old saying, “Err on the side of caution” certainly holds true.
This article was originally written for inclusion in the Professional Private Investigators Association of Colorado’s PPIAC Quarterly Newsletter. For more information, please click on the following link: http://ppiac.org/newsletter