More Limiting Liability for Surveillance Investigators

Apr 2, 2011

During the course of a surveillance, a private investigator should always keep in consideration the REASONABLE EXPECTATION OF PRIVACY of not just the subject, but anyone who the surveillance investigator encounters during the operation. Note that by its very name, the term reasonable expectation of privacy is subject to interpretation. What may be reasonable to one person may be unreasonable to another. However, in general any time the subject is easily viewed with the naked eye to the general public or passersby has no reasonable expectation of privacy. When the subject is behind closed doors or in their back yard enclosed by a privacy fence, there is typically a reasonable expectation of privacy that must be respected. Not considering an individual’s reasonable expectation of privacy will likely place surveillance investigators under increased liability.

 Another important consideration in surveillance investigations is to be respectful of private property. Trespassing on private property can not only place liability on the PI, but it can serve to have the investigator’s work be thrown out of a court case. Surveillance investigators should establish stationary surveillance points on public right of ways and parking lots that are readily accessible to the public. Establishing a stationary surveillance point on private property should only be done with the permission of the property owner. In rural areas, keep in mind public lands that can serve as a possible surveillance point.

 The subject of harassment, stalking, and restraining orders also must be considered during all surveillance investigations. The surveillance operative who has taken the time to ensure that there is a lawful purpose for the surveillance, has remained within the boundaries of the law AND has taken care to ensure the surveillance has remained covert, is generally able to avoid any harassment, stalking, or restraining order issues. Typically, a private investigator who has a restraining order placed against them or is charged with harassment or stalking can be pinpointed back to the investigator being discovered during surveillance. On a post-surveillance basis, the PI should be concerned about harassment, stalking, or restraining orders if a lawful purpose for surveillance was not determined prior.  

 The use of GPS tracking devices has been the subject of many discussions and debates amongst private investigators as well as with the public. In Colorado there was a recent incident in which a private investigator was charged with stalking following the placement of a GPS tracking device on the subject’s vehicle. This has sparked many questions as to the legality of this technology.

 In terms of the use of GPS tracking devices, API favors California’s statute regarding their use. The statue is copied and pasted below:

 California Tracking Device Law: California Penal Code section 637.7 states: (a) No person or entity in this state shall use an electronic tracking device to determine the location or movement of a person. (b) This section shall not apply when the registered owner, lesser, or lessee of a vehicle has consented to the use of the electronic tracking device with respect to that vehicle. (c) This section shall not apply to the lawful use of an electronic tracking device by a law enforcement agency. (d) As used in this section, “electronic tracking device” means any device attached to a vehicle or other movable thing that reveals its location or movement by transmission of electronic signals. (e) A violation of this section is a misdemeanor.

 Though GPS tracking technology is not illegal in Colorado, what many surveillance investigators overlook is that the placement of the device on the vehicle could entail trespassing on private property or tampering with personal property. There have been investigators in Colorado that have faced legal battles for the placement of tracking devices on vehicles. As the California law states, the tracking device may only be placed with the permission of the owner, lesser, or lessee. If a surveillance operative has to crawl under the vehicle in the cover of darkness, it’s certainly an admission that the activity is not on the “up and up.” It’s not a big stretch of the imagination that if the subject of the surveillance investigation catches the investigator crawling under the vehicle without consent, the subject might believe the investigator is placing a bomb, cutting a brake or fuel line, or in the process of some other malicious activity.  

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