PI PRACTICES

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Licensing, 5 Art of Report Writing, 9 PI Ethics, 14 Protecting your Assets, 39 Best Business Practices, 47 PI Specialties, 60 Surveillance, 80 PI Lingo, 102 iPad and Tablet Users See DEMO & Links Above

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Contents Licensing 5 Permissible activities 5 License disqualifiers 7 Art of Report Writing 9 Report writing 9 Ghostwriting 12 PI Ethics 14 Ethical decisions 22 Kaiser Foundation 25 Right of privacy 26 Pretexting, ISPLA 30 Protected information 36 Protecting Your Assets 39 Breach of contract 42 Misrepresentation 43 Best Business Practices 47 Written contracts 50 Disclaimers 51 Insurance coverages 52 Limited partnerships 56 PI Specialties 60

Indemnity agreements 64 Line supervisor 67 Surveillance 80 Courtesy notification 80 Furman vs. Sheppard 82 Fourth amendment 82 ICU vs. Jones 83 ECPA Act 84 Miller vs. Blackden 86 Anti-Stalking law 87 Violence Against Women Act 87 Title 18, Section 875 C 91 GPS Tracking, Approval of 93 License plate checks 95 Mobile vehicle surveillance 96 Covert surveillance 95 Non-descript vehicle 98 PI Lingo 102 Freedom of Information Act 102 HIPAA 105

Independent adjuster 67 Public Adjuster 67 Wrongful death Investigator 79

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Preface The first known private investigation firm was founded by Eugene Francois Vidocq and oddly enough he started out as a criminal in 1833. Vidocq would go on to inspire the works of Poe, Huge, and Honore de Balzac with his rich history. Vidocq was considered to be the father of criminology and is credited with the introduction of undercover work, ballistics, and new techniques of record keeping. After Vidocq the notion of a private investigator industry was born. In the earlier days of private investigation, most private investigators acted as the police in matters that clients thought were not taken seriously by the authorities. During the tumultuous time in France, after the French Revolution, these private investigators also acted as hired muscle for the aristocrats who wanted to control the large numbers of workers who had developed new ideas about freedom, which did not sit well with the wealthy. Some saw early private investigators as nothing more than mercenaries and hired hands that could help private entities solve problems with show of force. Across the pond, Allan Pinkerton, was starting the first U.S. based private investigation service, Pinkerton National Detective Agency. During the Civil War, Pinkerton was credited with foiling an assassination plot against Abraham Lincoln. Pinkerton’s agents often worked undercover during the Civil War as confederate sympathizers to gather military intelligence. At the height of its existence, the Pinkerton Detective Agency had more agents than the standing army of the United States, which caused great concern in Ohio, where the agency would be outlawed because they could potentially be hired out as a private militia. During the labor unrest of the 19th century, Pinkerton Detective Agency associates were hired out by businessman to be guards and keep strikers and suspected unionists out their factories. Pinkerton agents also tracked down western outlaws, such as Jesse James, the Wild Bunch, Butch Cassidy and the Sundance kid, and the Reno Brothers. Allan Pinkerton and his agency were the source of the federal Anti-Pinkerton Act of 1893, which still exists today, which bars any individual

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employed by the Pinkerton Agency, or similar organization, from being employed by the government of the United States. While men like Vidocq and Pinkerton were the pioneers of private investigation, the industry did not really come about until the prosperity of the 1920’s, when private investigators were affordable to the average middle-class. With this came a shift in investigations, and private investigators were hired for all sorts of cases such as infidelity, insurance fraud, missing persons and other such niches. In recent years, private investigators have become subject to strict legal and ethical standards which exist to not only protect the client, but also the investigator. In the course of PI Best Practices, we hope to enlighten and remind investigators that living by the ethical standards are really the best course of action when conducting any and all duties, which will in turn help reassure the public of their competence and professionalism. Everything from the report writing, to business practices, to best surveillance practices is covered in PI Best Practices.

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LICENSING State Licensing & Permissible Activities States with no PI license requirements are the exception rather than the rule today. As of the writing of this course, only Alaska, Idaho, Mississippi, South Dakota and Wyoming allow investigators to work without a license. Since rules change, you would be wise to research unique requirements in each of the jurisdictions in which you practice to determine license rules and regulations. It may even be possible to request opinions from the states’ attorneys general offices for particular situations. The majority of states that do require PIs to be licensed focus on permissible activities such as:

• Overt investigations, in which investigators identify their roles and principals and do not otherwise mislead or deceive anyone.

• Public records searches. • Physical observations, measurements, and the like. • Protection of a person, if it is "incidental" to an investigation and if the

investigator complies with the firearm and insurance requirements. • Surveillance, even if covert, provided that investigators do not

trespass or invade privacy. Investigator Defined

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The definition of an investigator can be slightly different among varying jurisdictions. Typical examples of statutory definitions of an investigator that would require licensure include a person investigating:

• The identity, habits, conduct, movements, whereabouts, transactions, reputation or character of any person or organization.

• The credibility, honesty or integrity of witnesses or other persons. • The location, disposition or recovery of lost or stolen property, missing

persons, owners or heirs of property or heirs to estates. • The origin of and responsibility for libels, losses, accidents, fires, or

damages or injuries to persons or property. • The conduct, honesty, efficiency, loyalty or activities of employees,

persons seeking employment, agents, or contractors and subcontractors.

• The identity or location of persons suspected of crime or wrongdoing. • • Evidence (or obtaining of evidence) to be used before any committee,

board of award or arbitration, administrative or licensing body or officer, or in preparation for trial of any civil or criminal case.

Exemptions & Exclusions Jurisdictions have differing exemptions and exclusions from their PI licensing requirements, and some offer no exemptions at all from licensure requirements. Examples of exceptions from PI licensure in various jurisdictions include attorneys, CPAs, government officials, individuals conducting genealogical research, computer forensics experts, insurance adjusters, expert witnesses and reporters. Most states exclude someone performing an investigation on behalf of his or her employer, such as an internal auditor or company detective while others provide no such exceptions. Some states specifically exempt a person conducting computer forensic examinations, while other states specifically include them in the definition of an investigator requiring a PI license. Each investigator is responsible to ensure they’re in compliance with the law, so you need to consult your legal counsel. Don’t wait to be embarrassed on the stand or find yourself charged with a crime. Proactively investigate the necessity of licensure in the jurisdictions in which you practice. Bonds Many jurisdictions require that the private investigator or his or her firm be bonded; the amount of required bond varies by jurisdiction and ranges from

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$2,500 to $100,000. A few states require liability insurance . . . some allow it in lieu of a bond. Expert Testimony If you’re going to testify as an expert witness or fact witness, be sure that you’re either properly licensed within that jurisdiction or specifically exempted from licensure requirements. Otherwise, opposing counsel can accuse you of violating the law during cross examination, or the judge may choose to disallow your testimony entirely. Either way, your case and professional reputation could be severely damaged License Disqualifiers Although you should refer to your particular state’s disqualifiers, most states will disqualify you from applying for a PI license if any of the following conditions exist for you:

• Are under 18 years of age and are applying to be a private investigator, or private investigator associate (intern).

• Do not have three years of investigative experience • Are not a citizen or legal resident who is authorized to seek

employment in the United States • Have ever been convicted of a felony, whether or not your conviction

was subsequently set aside and your Civil Rights were restored • Are currently under indictment for a felony, or named in an

outstanding arrest warrant • Have been convicted of any misdemeanors involving personal violence,

misconduct with a deadly weapon, dishonesty or fraud, arson, theft, domestic violence, narcotics, or sexual misconduct within the last five years preceding your application

• Are on parole, community supervision, work furlough, home arrest, or release on any other basis

• Are on probation pursuant to a conviction for any act of personal violence or domestic violence

• Have been adjudicated mentally incompetent or found to constitute a danger to self or others

• Have a disability, which renders you incapable of performing essential functions of the job even with reasonable accommodation from an employer

• Have been convicted of acting or attempting to act as a security guard or private investigator without a license if a license was required

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Note: Not all arrests will disqualify you from pursuing a career as a private investigator and eventually obtaining your license. Many of the country's top investigators committed minor crimes in their past, but this has not stopped them from being effective at what they do. Fees & Penalties For Unlicensed Investigators & Others Regulations and fees from licensing PIs, give states the power to discipline and limit what non-sworn law enforcement personnel can do while conducting an investigation. In most states that require PI licensing, anyone may file a complaint against an individual or firm conducting an investigation without a license. Penalties for practicing without a PI license vary, but in a few states the crime is a felony. In one recent case, even a CPA providing forensic accounting services was charged with a felony for conducting an unlicensed investigation in Virginia. Unlicensed persons who represent themselves as licensed or act as private investigators are committing a misdemeanor. Fines might be $5,000 and up to one year in jail. In addition, anyone--presumably including a lawyer--who "knowingly" engages an unlicensed investigator or who conspires to have an unlicensed person operate as an investigator also commits a misdemeanor with the same penalties. Public prosecutors may seek civil remedies against unlicensed investigators, their coconspirators, and anyone who knowingly engages such investigators. The civil remedies include an injunction (for which prosecutors need not "show lack of adequate remedy at law or irreparable injury"), a civil fine of up to $10,000, and reimbursement of investigation expenses. Private Party Remedies While many jurisdictions may not have specific private rights of action for licensing violations, private parties who wish to purse an unlicensed investigator have three indirect remedies:

• A licensing violation under unlawful business act or practices with equitable relief, including an injunction and, if appropriate, restitution.

• A move to exclude evidence gathered by an unlicensed investigator.

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• A person who contracts with an unlicensed investigator might seek to avoid paying the investigator's fees on the ground that the contract is illegal.

The Art of Report Writing Report writing is one of the most essential tools a private investigator can have in their tool box. A well written report will convey all of an investigator’s hard work in a detailed, easy to read manner, to their clients. The main elements of any investigative report will include a summary, a conclusion of the investigation, the main body of the report, recommendations, and an appendix. It is important to remember to notate any case specifications in the beginning of the report such as case number, the person or persons that worked the case, the date the case was assigned, and the case type (workmen’s compensation, infidelity, etc). A good summary will be brief and to the point and provide the reader with a synopsis of the who, what, when, where, why, and sometimes how of the investigation. This is the need to know and typically most important information that will highlight the whole report. When discussing the who of any investigation, it generally means who is being investigated; that could be a person, place, or thing. The what of the summary should define what the problem or situation is, as in what is this investigation about? Addressing the when in the summary can be anything from the timeline that the investigation took place to the literal time that something occurred. Where will address where the event took place or a description of the locations of different occurrences that are vital to the point of the investigation. Why indicates the need and the situation of the investigation, as in why was this investigation needed or why is this important? When addressing the how describe the process of occurrences and how the investigation was examined, as in how the conclusion happened. Each of the six W’s of

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investigation will vary because every investigation will be different, however, the need to know, short and sweet, long story short, will be in the summary. A conclusion of the investigative report can go at the end of the report, or under the summary, where it will be easy for the reader to find. Conclusions can be compared to scientific research conclusions, as in what was found out during the course of the investigations. As an investigator, are there any recommendations for follow-up on this investigation, or any suggestions that the investigator may have for the client. Again, this does not need to contain the whole report, just a condensed overview. The main body of the report will be where all of the hard work, long hours, and arduous tasking of the investigation will live. The main body of the report should be as meticulous and detailed as possible. The main report should contain the investigator’s method of collection, the goal of the investigation, any significant incidences, tools/devices that were used, and specifics like dates, times, and weather circumstances.

Method Collection is essentially how the investigator approached the investigation. Nearly every detail from the start to the end of the investigation should be notated in the method collection. Some helpful hints to get started:

1. Where and how did the investigation start? An online search? If so, which database? What did you find out? Make sure to print or save a copy of everything that was deduced from the online investigation to put in the appendix of the report. Although some clients will not read or care, this will be a sure way to cover yourself if need be.

2. What was the next step in the investigation? Surveillance, etc. What were the dates of surveillance, where did it take place, what were the findings from that surveillance?

3. Were there any witnesses that were interviewed? If so, give a synopsis.. was it a recorded interview? What was the date, time, weather of this interview?

4. Review the six w’s: who, what, when, where, why and how and

write the report accordingly. These helpful hints are subjective and interchangeable depending on the type of investigation being conducted and they are merely jumping off points. Remember to track the investigation from beginning to end through

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thorough notetaking (we’re talking: dates, times, weather, landmarks, etc); as tedious as this seems, the client will get a full run through of what the investigator did to arrive at the conclusion. As no investigation is ever the same, it is important to tailor your report accordingly. Also, know your audience: great grammar and spelling are essential to the report, but using fancy language or terms that clients may not understand is important to consider. If the need arises to use a technical term or language, make sure to explain or define the term or language. After completing the main body of the report, any recommendations that the investigator has would go next. Recommendations should be objective. An example would be if the investigator spent two weeks surveilling the subject and suspects that there is more to be found (and this should be able to be proven), they should notate this to the client. Recommendations are not necessary and definitely not applicable to every investigation. Almost every report should contain an appendix. The appendix will be where pictures, database searches, records, and any other tangible, pertinent information will be accessible. The appendix is often overlooked, but could be essential in a “cover your butt” situation. Always documenting everything is another best practice. Tedious, yes, but essential, also yes. All the attachments that are included in the appendix should be addressed in the report so the client/reader understands their importance. Common Pitfalls to Avoid in Report Writing To reiterate, reports are almost, if not more, important than the actual investigation as they convey everything that was done during the investigation. Here are some common pitfalls that often show up in investigative reports, AVOID these at all costs:

1. Poor English or grammar. This is a non-negotiable, as every single electronic device comes equipped with spell and grammar check; USE it.

2. Use only facts; do not use speculative language and only provide accurate data.

3. While bold face, italics, capital letters, and exclamation points do help

to get the points across in say, a book about investigations, do not use them when addressing clients in a formal report. They often times add a sense of bias to the report or unnecessary opinions.

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4. Speaking of bias, the investigative report should have none, this goes along with only stating facts and taking guesses and speculative language out. Reports should be objective, not subjective.

5. Always give your clients a clean (free of dirty finger prints, rips, tears,

coffee cup stains) report. Generally, it helps to put the report straight from the printer into a file folder or other such folder for safekeeping.

6. Not having consistency. This is very important. If an investigator is

addressing someone specific for example, Joe Smith, he will want to ensure that throughout the report he is addressing the subject as Joe Smith. Often times, it is easy to get in the flow of writing and all of a sudden the investigator is writing Joseph Smith or Jose Smith; this is an embarrassing pitfall that can be avoided by editing and proofreading a report.

7. Using ambiguous language such as possibly, probably, substantially, or

the word appears in the investigative report can often times denote that the investigator is unsure if their investigation.

8. Avoid using pronouns such as he, she, they, etc in the report as it will

often times confuse the reader if there are multiple people involved in the investigation. A good practice to have is to name the person at the beginning of the report and then insert the shortened version of their name that the reader will see throughout the report. Example: Joe Smith (Smith). This also works if you are going to abbreviate something. Example: Private Investigator (PI). Again, consistency is key here.

9. Format the investigative report the same throughout. Use the same

margins, the same font, the same sized font (for all headers), and also number all of the pages. If the investigative report is assigned a case number, ensure that this makes its way onto every page, in case something gets lost.

10. If there is something that needs to be referenced, for example a picture, make sure to reference it specifically as in picture is located in Appendix A, page 10 or if there was an internet database search referenced, make sure that it is notated in the report where the reader/client can find this information.

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Another pitfall to avoid in report writing needs its own section and that is: ghostwriting. Ghostwriting is prevalent in every industry from sciences to novel writing to reporting and should be expressly avoided in private investigations. Ghostwriting can mean a few things such as the investigator handing over their investigation findings to someone else to write the report, while the investigator takes credit for writing the report, or the worst of the worst, the investigator fabricating events or details that did not happen. Lying, omitting, or stretching the truth, in an investigational report is never a good idea and instantly discredits the investigator. This should go without saying, but even well-intentioned investigators pressed for time can make up details to pad their report. Example of what not to do: Indicate to your client that you visited a subject’s residence five times, when in reality the investigator only went twice. Conducting investigations and reporting in this manner is the fastest way to get a bad reputation. Again, cover yourself by documenting every SINGLE thing.

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PI Ethics

ETHICS IN A NUTSHELL Many PIs believe that ethics and the law are the same. It is important to realize that ethics are not laws, yet they can be guided by laws. Proof of this exists in the fact that you can be unethical yet still operate within limits of the law. And, laws are growing in numbers every day. The courts attempt to legislate protections from those without values or with values in opposition to what most of us would consider right and wrong. We have more laws than any one lawyer can ever know. And more and more lawyers seem to be necessary to handle the litigation that results from what seems to be a trend in "making others pay". Being ethical is indeed professional but the gesture goes beyond the mere compliance with law. It means being completely honest concerning ALL FACTS. It means more than merely NOT telling lies because an incomplete answer can be more deceptive than a lie. It means more than being silent when something needs to be said, because saying nothing can be the same as a lie.

ETHICS DEFINED Just what is ethics? A simplified definition of ethics is a set of values that constantly guides our values. These values are typically aligned with what society considers correct and positive behavior within legal boundaries. Ethics is also defined as the balancing of an individual's good with the good of the whole. Let's say you develop a seminar series on "asset searches". At the event, you have a person pass around a clipboard asking people if they would like to be informed of future seminars. The real purpose of this exercise, however, is to create a mailing list to market your services. Smart marketing? Or, breach of ethics? Are you really concerned

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with your clients education (the whole) OR only what you will get out of their business (the one)? Balancing the good of the one with the good of the whole is not as easy any more. The whole that we have to consider is everybody, not just a competing PI down the street or in the next town. Survival is important, but not at any cost. True survival requires long-term, successful relationships with customers and companies, as well a co-workers and competitors. When people do not understand their role in the "whole" and are completely self and survival oriented, it throws the ethical system we once knew out of whack. How can you stay on track? Most important is that you know your personal core values and the values that your company stands for and then live and work congruently and consistently with those values. The people will know you as a person of integrity. And, with integrity comes trust. The authentically ethical person in our seminar example would have simply disclosed the purpose of the clipboard or simply buy a mailing list from someone else. Respect for privacy would be honored and remembered.

ETHICS FROM THE START Instilling ethics is a process that must start long before a person chooses private investigation as a career. It is probably part of the very fiber that is rooted in lessons parents teach their children. So, preaching ethics in a forum like this course of study may not be incentive enough to sway someone to stay on track. It may be easier to explain that honesty and fair play could mean more business and lessen the possibility of lawsuits. Perhaps part of the blame for modern-day ethical indiscretions is the complexity of financial and legal issues, along with the intense competition . . . it seems everyone is doing what everyone else is doing. Both make it harder for consumers to understand what they want or need and easier to be misled by a less than ethical investigator.

Take the Miller v Miller case, for example. Investigators convinced a vulnerable and angry spouse to place hidden cameras in her husband's home and intercept his mail. Neither the spouse, nor the investigators had the authority to do either. All parties were sued for wilfull, intentional, malicious, and reckless disregard for the husband's privacy rights

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Some believe that the ethics problem reflects our current culture that glorifies short-term success at all costs. This includes awards for merely participating as well as “golden boy” stories of the entrepreneur who goes from lonely computer geek to multi-millionaire from a single idea. Neither of these events is meant to say that these individuals accomplished their feats in an unethical manner. It simply raises the bar for those who follow them. If those who follow have inadequate skills and work habits, they could employ less than ethical means to reach the same goals. How can investigators develop a sense for long-term ethics? The best way is to fully understand what ethics is and the many levels it plays in your career. Following are some special areas of interest you should know about ethics:

SHADES OF GREY One of the problems with ethics today is that we have so many different mores or values that guide our society. The values that guide each individual and/or company can vary tremendously, therefore an individual or company may be ethical according to their values and not to yours or the definition above. Several major shifts in right or wrong standards means that we are faced with more and more grey areas in our personal and professional lives. The shifts are occurring at such a pace that they may even hinder our ability to cope and process the changes. In United States v. Smallwood (2005), investigators recorded a telephone interview with a critical prosecution inmate-witness, without the knowledge or consent of that witness or his appointed counsel. The grey area became the fact that the witness was an existing client of the attorneys who hired the investigator. In another example, client once hired a PI to find out whether a former employee who was starting a rival business planned to illegally copy the firm’s manufacturing techniques. The investigator who befriended the former employee at a trade show and worked to develop a relationship. After several weeks, the two men went on a fishing trip together, during which the former employee offered the investigator a job with his new firm and revealed that he had his former employers’ trade secrets. The company used that information to sue the former employee with the investigator as the star witness. On the one hand, the investigator did not disclose he was working for the former and rival company. On the other hand, the employees was illegally using trade markets.

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Clearly these examples foster shades of grey bordering legal issues. The practice, unfortunately, is widespread.

MORAL & MARKET VALUES The American economy depends on ethical standards upheld by responsible business leaders. Unfortunately, this unwritten rule was violated in recent ethics scandals occurring in many corporate boardrooms. Respected companies lost credibility and innocent investors lost millions in the late 1990's and early 2000's. Cheating became rampant because it was the norm. It was no longer seen as wrong. In fact, at the peak of the problem, much of our economy resembled a giant pyramid scheme, taking in money from new suckers to pay those who invested earlier. A so-called bubble economy developed where businessmen willing to gamble with other people's money were rewarded handsomely. Stock prices were rising so fast that if you cut corners to meet projected numbers, you probably thought you were doing your shareholders a favor. And, there was always new money pouring in to make up the difference. Such was the case when the U.S. Attorney's office in Seattle indicted at least ten investigators hired by attorneys and others to obtain confidential information by pretext. As an investigator, you know there is a market for "information". A PI firm recognizing this opportunity set up a large-scale operation, selling confidential information. In a few years, they obtained confidential information for as many as 12,000 individuals involved in bankruptcies, law suits, divorces and collection efforts nationwide. Services were utilized by attorneys, insurance companies and collection companies to investigate the backgrounds of opposing parties and witnesses, and to uncover assets or income for satisfaction of debts, according to the indictment.

The moral violation is that they collected this information via pretext from the I.R.S., Social Security Administration, various State Unemployment Insurance Departments, private financial institutions, banks, pharmacies and hospitals. The alleged defendants fraudulently posed as the individuals about who information was sought. Clearly obtaining confidential information from entities like the IRS or Social Security is protected by specific laws Will tougher laws and longer prison sentences be a deterrent to practices such as these? It can't hurt. But, the fact is bubbles burst quicker than a business climate can change. If a crooked practice doesn't pay off, a lot

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fewer people will take the risk of using them. So, the real challenge is to create a new business culture that matches the market. Think about a system that rewards and reinforces the honest and careful information brokers and businessmen just like the bubble economies made heroes out of the gamblers.

ETHICS NOT THE SAME AS LAWS Many PIs believe that ethics and the law are the same. It is important to realize that ethics are not the same as laws, yet they can be guided by laws. Proof of this exists in the fact that you can be unethical yet still operate within limits of the law. Consider the tragic story of 20-year-old Amy Boyer of New Hampshire. She was killed in a murder-suicide by an obsessed former classmate who got her address from an Internet-based investigations firm that had obtained it by calling Boyer and pretending to be an insurance company verifying her address for a refund. The prosecutor used no law to indict the PI firm but a huge ethical barrier was crossed that day. Using questionable sources, like information brokers, is another ethical dilema. In his book Analysis of the PIA and Case Law, Los Angeles lawyer John Caragozian claims that private investigators who subcontract with information broker or subcontractors do so to insulate themselves from potential criminal culpability.

“Private investigators have no more rights to access people’s personal information than any other citizen, beyond what a reporter has or any other citizen has,” Caragozian said. “If it would be illegal for a private person to do something, chances are it’s illegal for a private investigator to do it.”

Why do investigators sometimes use unsavory sources? It creates plausible deniability, said Chris Jay Hoofnagle, director of information and privacy programs at the Berkeley Center for Law & Technology. Practices such as pretexting were at the forefront of a 2005 push to get the federal government to establish stricter rules surrounding the dissemination of a consumers’ personal phone records.

The more distance created between the private investigators and subcontractor, the more plausible the deniability, said Stan Goldman, a criminal law professor at Loyola Law School. Sure, we can add more laws, but we already have more laws than any one lawyer can ever know. And more and more lawyers seem to be necessary to

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handle the litigation that results from what seems to be a trend in "making others pay". The problem becomes that the courts attempt to legislate protections from those without values or with values in opposition to what most of us would consider right and wrong. Being ethical is indeed being professional but the gesture goes beyond the mere compliance with law. It means being completely honest concerning ALL FACTS. It means more than merely NOT telling lies because an incomplete answer can be more deceptive than a lie. It means more than being silent when something needs to be said, because saying nothing can be the same as a lie. If the investigator that found Amy Boyer was more concerned in how the information he found was going to be used, Amy might be alive today.

A MORAL COMPASS During times of fundamental change, values that were previously taken for granted may be strongly questioned. These are the times when the attention to business ethics is critical. Leaders, workers and agents must sensitize their actions -- they must maintain a strong moral compass. John Kennedy Jr's last flight went wrong because he lost sight of land. In the growing dark around him, the horizon line became blurred and he became disoriented eventually flying his place right into the ocean. The same can thing can happen with an investigator's moral compass. Remember the dirty DUI case a few years back? A private investigator admitted that he hired female decoys to assist in determining if a "target" male, usually the husband of his female client in a custody or support case, would drink alcohol in a quantity sufficient to exceed the legal limit to drive an automobile. Once the "target" male had been observed to consume this amount of alcohol likely to exceed the legal limit to drive, the hired female decoys would leave the establishment and ask the target to follow them home. In some cases, the PI would tip off local police to stop, test and arrest the target. How could someone's moral compass be so distorted? When nothing is stable or dependable, you also can lose your own sense of moral direction. When it happens, you start accepting ambiguity as real. You begin making up your own rules. You cut corners. This is exactly how things started going bad in the dirty DUIs. Investigators simply made-up their own standards. They lied to the target using a TV show ploy,

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cheated by using female decoys and then setup the target for an arrest. Over time, they began justifying their unethical behavior as acceptable. How can you keep this from happening to you? You can have a strong, unfailing sense of what is right and stay focused on it at all times. It's called integrity. When you have it, it allows others to trust you, even when things go bad. Kim Cameron, Professor of Organizational Behavior at the University of Michigan, says that it is not enough to simply encourage ethical behavior, honesty and integrity because these concepts in themselves imply an absence of harm. A strong moral compass means that you strive to behave in ways where self-interest is not the driving motivation." Too soft and fuzzy for you? Well take note, Kim's research proved that businesses with high scores on virtuousness significantly outperformed those with low scores. It pays to have a strong moral compass! Certified Fraud Examiner Dawn Lomer says there are ethical implications when you are obtaining and digging through personal information, but those often depend on who you work for and your position.

If you’re an auditor or an accountant in a financial institution, you’re more than likely not allowed to misrepresent yourself. Private detectives, law enforcement, intelligence officers… we use subterfuge and guile all the time; they are considered official resources of the trade, she says. At the same time, you have to have a moral compass, she adds. If you’re a smart investigator and you’ve been doing it long enough, you know when to stop.

MORAL DISTRESS Have you ever thought about why people make bad decisions? One reason is dissatisfaction with your work or how about near impossible objections. When either one of these occurs, a person experiences growing pressure to engage in unethical behavior. You are left in a situation where every decision must weigh your own survival against the care and attention you give your client. The end results is that shortcuts will be taken or you become frustrated, resentful, angry or guilty about your bad decisions. What can you do? Stakeholders: Experts suggest that, among other things, you adopt a long-term stakeholder mentality, and, to be ethical under social justice

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theories you should be fair to all stakeholders. What does this mean? A stakeholder is anybody that can be affected by your actions. Your client is a stakeholder in that he or she depends on you. Your partner, your errors and omissions insurer and your sources are also stakeholders. When it comes down to it, you are a stakeholder yourself. That’s right! You owe it to yourself to survive in your chosen field. And, as we have already described, the best way to do this is long-term, with integrity and respect for others and all stakeholders. Remember, customers ultimately pay your fees and companies (like insurers you work for) enable you to make a living. That's something that should be important to you. So, how could you be a bystander and watch either of them be injured in any way by your actions? Pace Yourself: Another way to reduce moral distress is to operate at a reasonable pace. We have already explained that when you cut corners it promotes unethical practices. For instance, if you fail to budget time to verify a source, your report goes out without being reviewed, raising ethical questions and moral distress. Consider the Frank v Louisiana Board of PI Examiners (2016) case. A host of investigator misteps surfaced that eventually lead to a revocation of the PI's license. The legal decision was labeled professional misconduct but the problems really came down to some simple issues like:

• Not keeping the client reasonable informed through the investigative process

• Failing to produce records -- a written report / file. This allegation was later reversed as the jurisdiction states records need to be kept only three years.

• Misconduct in that (he told client that records were routinely destroyed after 3 years but he admitted in the board investigation that he still had the file).

The investigator just didn't want to spend the time to do it right and it cost him his license. Of course, the solution might be to allow more time. But, this will mean less production which creates economic stress. At times like this, you have to assure yourself that you are in this for the long-term. Being genuine and ethical means that you live by the choice to do what is right, even when it is not pleasurable. You could also look at it in more positive terms. Why not

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make a client for life by taking the time necessary and earn his referral or repeat business. A Tolerance For Problems: When you succeed at something, it's normally because you are doing something that other people do not want to do. In a sense, you have to "tune-up" your instincts to be satisfied at meeting objectives that others find hard to take or when people don't want you to succeed. What does this have to do with moral distress? A lot, because you can reduce your level of moral distress by increasing your tolerance for problems. Think about it. You can convince yourself that external forces are never-ending anyway, so there is no reasons to sweat it so much. The fact is, you're in the problem solving business and you're a pro! Just remember the immortal words of Saturday Night Live's Rosanna Rosanna Danna -- "It's always something!"

ETHICAL DECISION-MAKING Before the 2001 Enron fiasco, Arthur Anderson had a steadfast reputation. When big organizations wanted him to falsify their accounting he said . . . "No, we'll find other ways to make our money". The point is, to maintain ethical standards, you have to be able to think around problems, cultures and differences. Here are some ways to accomplish this: Get The Facts: The Makkula Center for Applied Ethics suggests you find the relevant facts about a situation. This means identifying the individuals or groups who have an important stake in the outcome. Some may have a greater stake because they have special needs or because you have a special obligation to them. An example might be elderly clients. Due to their status or cognition, they may need to rely more on your advice than other clients. Your ethical standards may have to be raised in matters that concern them. Sizing Up The Problem: Michigan University Business Ethics Professor Tim Fort suggest you ask the following questions when faced with an ethical decision: What's the moral issue? Who has been harmed? Or who could be harmed? In what ways? What are the alternatives that exist? What facts need to be known to make a reasoned decision? What are the personal impacts on the person making the decision?

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Working within a format like this helps bring the issues away from your own self-interests over the interests of others. Pursuasion: If an ethical dilemma arises between you and a peer or client, why not solve the problem with your powers of persuasion. Be convincing. Have convictions. The influence you exert may very well change their mind. Taking Risks: The more you are paid, the more complex the decisions you must make. Things are rarely "black and white" and a lot of your decisions will challenge your integrity. But, these are the risks you must be prepared to assume in a sometimes difficult world. You must constantly weigh short-term results with long-term consequences. Evaluate Alternative Actions: Which option will produce the most good and do the least harm? Which option respects the rights and dignity of all stakeholders? Will everyone be treated fairly? Which option will promote the common good. Which option will enable the deepening or development of the core values you share with your company? Your profession? Your personal commitment? Solicit Client Feedback: Before you make the final decision ask the client if your solution meets with his approval. Always ask these important questions: • Have I given you all the information you need to make a decision? • Does this information make sense? • Is there something else I can answer for you to assure you that this is

the right solution based on your needs and objectives? Reflect on Your Decision: Was you position defensible? Would you do it again? How did it turn out for all concerned? Was your decision successful for both you and your client?

CONFRONTING UNETHICAL CONDUCT In a lot of ways, we have become a no-fault society. Popular thinking dictates that as long as you don't own the problem you don't need to get involved. A crucial shift is needed to avoid this bystander mentality. People need to think of themselves as members of a community. And, their life in this community entails mutual obligations and interdependence. In other words, be part of the solution, not part of the problem.

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How can this be accomplished. Well, you can learn to help solve ethical dilemmas rather than walk away or simply ignore them. Here are a couple ways to do this: State Your Position: Ask those who want you to perform an unethical task to state their position clearly. This forces them to make an ethical choice. If your client wants you to make an illegal entry, for example, pose the following question: Are you asking me to enter without authorization? It is probably a safe bet that he will back away from his unethical request. Present A Case: Many ethical dilemmas result because someone has taken a short cut. You can sometimes turn their thinking around by presenting things statistically or in an organized manner. Take the client who wants you to enter without authorization. Without a lot of trouble, you can find a case where someone did that and faced a huge penalty, jail time and/or loss of their license. When presented this way, it would be hard to ignore the correct path. Don't Ratify Unethical Actions: One of the easiest ways to become entangled in the wrong deeds of someone else is to ratify their behavior. Ratification might occur where an employee or subcontractor you hire adopts bad behavior that could be considered oppressive, fraudulent, or malicious. If you fail to intercede, investigate or discipline the errant misconduct once it becomes known you may have ratified (approved) his behavior. Punitive damages can be awarded by a jury where actual knowledge of the conduct and its outrageous nature is proven. Not only is it unethical, but it can come back to haunt you in the form of rather large lawsuit.

CREATE A MORAL BUSINESS CLIMATE If you don't create a business culture that reinforces values and ethics, other investigators and employees will only do what is right so many times and then they will either leave or give in to outside pressures to cut corners, lie, fudge, etc. In order to reinforce this theme, you can't punish people for taking actions they need to take. You have to support good, moral decisions, even at the cost of production. What happens if no one else cooperates? You must continue to forge forward, even if you are the only one doing the right thing. Why? It's a

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fundamental choice you are making to be an ethical leader. And, it will pay off in time. Integrity While many believe that "integrity" is a characteristic of choice, many state laws set minimum investigator standards to follow, such as: Qualifications Investigator Boards have been known to suspend or revoke an investigator's agent’s license if it is determined that he or she is not properly qualified to perform the duties of a person holding the license. Lack of Business Skills or Reputation Licenses have been revoked where the PI is NOT of good business reputation, has shown incompetency or untrustworthiness in the conduct of any business, or has exposed the public or those dealing with him or her to danger of loss. Activities Circumventing Laws PI licenses have been revoked or suspended for activities where the licensee did not actively and in good faith carry on as a business the transactions that are permitted by law; avoids or prevents the operation or enforcement of laws; knowingly misrepresents any terms or the effect of a contract; or fails to perform a duty or act expressly required of him or her under unfair business practice codes. Catchall Category In addition to the specific violations above, most states establish that investigator responsibilities MUST NOT violate the “public interest”. This is obviously a catchall category that has been used where PIs have perpetrated acts of mail fraud, securities violations, RICO (Criminal) violations, etc. Misuse of Position What are you doing that might influence people in an unfair or abusive manner. For example, do you represent yourself as an expert when you are not? Do you claim to have special knowledge when you don't? The point is, when you disguise your actual position you deceive clients with the

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intention of influencing their decisions. It is certainly unethical and many times illegal. In 2016, a former police officer turned investigator was accused of embezzling $7 million from the Kaiser Foundation Health Plan. The investigator became senior supervisor in charge of investigating fraudulent insurance claims at Kaiser Foundation Health Plan. He worked in Oakland and was responsible for hiring investigators to conduct surveillance on people who were suspected of filing fraudulent claims. The investigator was authorized to approve charges of as much as $50,000. In the end, he used his position as supervisor to submit invoices for investigative services that were not performed or were not justified over a 16-year span after he joined the company in 1998. Attorneys for Kaiser said much of the work was never done . . . “the investigator regularly directed Kaiser to pay invoices for investigative services that were not in fact performed, as well as invoices for work that was performed but nonetheless was not in fact justified. Privacy Protecting a client’s privacy is an ethical responsibility as well as an area of increasing liability for PIs. The concern by clients is that highly personal and financial information you collect in the process of investigations will get in the hands of groups who might use this data to exploit them. You must also be concerned about violating privacy of the targets you investigate. The right of privacy, as an independent and distinctive legal concept has two main aspects: (1) the general law of privacy, which affords a tort action for damages resulting from an unlawful invasion of privacy, and (2) the constitutional right of privacy which protects personal privacy against unlawful governmental invasion. The general law of the right of privacy, as a matter of tort law, is mainly left to the law of the states. Invasion of privacy consists solely of an intentional interference with a person's interest in solitude or seclusion, either as to his person or as to his private affairs or concerns, of a kind that would be highly offensive to a reasonable man. The invasion may be by physical intrusion into a place in which the plaintiff has secluded himself, as when the defendant forces his way into the

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plaintiff's room in a hotel or insists over the plaintiff's objection in entering his home. Or, it may also be by the use of the defendant's senses, with or without mechanical aids, to oversee or overhear the plaintiff's private affairs, as by looking into his upstairs windows with binoculars or tapping his telephone wires. Other examples of invasion of privacy may also be by some other form of investigation or examination into his private concerns, as by opening his private and personal mail, searching his safe or his wallet, examining his private bank account, or compelling him by a forged court order to permit an inspection of his personal documents. The intrusion itself makes the defendant subject to liability, even though there is no publication or other use of any kind of the photograph or information outlined. Most states have common law, constitutional, and statutory protections against the invasion of privacy. The statutory protections are numerous and scattered, ranging from an antipaparazzi law (banning certain photography of "personal or familial activity"and an antistalking law to a ban on the use of a "telescope, binoculars, camera,...or camcorder" to view the interior of a "bedroom, bathroom,...or the interior of any other area in which the occupant has a reasonable expectation of privacy." To complicate matters further, federal privacy statutes also exist. Let's look at how these laws create issues for investigators. Confidentiality

Some confuse the confidentiality with privacy. Privacy demotes the right to be left alone and control information about oneself. Confidentiality concerns the communication of private information and personal information form on person to another. If you surreptitiously collect information for marketing purposes, you are intruding on an individual's privacy. If you pass on information without permission, you are violating confidentiality. The New Jersey Wife Case. Ralph was a medical doctor with a thriving private practice, yet in his New Jersey divorce he claimed a low net worth. Ralph’s divorcing wife Nancy suspected Ralph had hidden money in anticipation of the divorce. Nancy gathered documents she obtained during the pretrial discovery phase of the divorce and before.

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These documents included copies of Ralph’s: passport, statements for airline frequent flyer miles, phone bills, tax filings and additional financial records. Nancy gave the documents to Mike, the licensed private investigator Nancy retained to perform an asset search regarding Ralph. After conducting an investigation for more than a month, Mike told Nancy that Ralph hid monies at offshore banks and at a bank in Nevada.

Mike stated that Ralph secretly maintained about $2.5 million dollars in the offshore bank accounts which were located in high-risk geographical locations known for money laundering. Ralph had supposedly hidden another $85,000 dollars in the secret bank account in Nevada. Mike explained to Nancy that he could collect evidence regarding the secret bank accounts by conducting searches at the Nevada and the offshore banks.

Nancy paid Mike over $10,000 dollars for the bank account searches and Mike provided Nancy with an investigative report summarizing his search results. The report named the offshore banks and the Nevada bank Ralph supposedly used to hide his money. It supplied the purported secret bank account numbers; account balances and detailed the bank signatory information.

The report meanwhile, never explained the source of Mike’s information/how Mike detected Ralph’s supposed secret bank accounts. When Nancy asked Mike how he had obtained the information at the report, Mike said the report was completely reliable. A trusted colleague supplied Ralph’s offshore bank account information, Mike said. Mike also explained he obtained Ralph’s Nevada bank account information from an “insider”, a teller who worked for the Nevada bank. According to Mike, the insider used the bank’s computer system to sneak a peek at Ralph’s $85,000 dollar bank account.

Assuming that Mike’s representations to Nancy were true, then the bank teller and Mike could have violated privacy and other U.S. laws.

The key ingredients of confidentiality are trust and loyalty. As a PI, you gather personal and confidential information from and for your clients. You must be willing to take responsibility for handling this sensitive information. For instance, do you take measures to secure client data? Do you unknowingly publicize a client's address, phone or e-mail address, exposing them to unwanted mail? Do you forward e-mail messages and attachments without reading them? Share passwords? Neglect to change your own password?

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In a nutshell, it takes a combination of legal, technological and individual actions to preserve confidentiality.

MISREPRESENTATION / PRETEXTING Pretexting generally involves the use of information about an individual, such as a social security number, to impersonate the individual and mislead information providers into giving out additional information that would generally only be available to the authorized individual. Attorneys, and private investigators, when gathering facts, must avoid making false or misleading statements representing that they are authorized to obtain personal information when in fact they are not. A Story: In the celebrated 1939 novel and 1946 movie The Big Sleep, Los Angeles private detective Philip Marlowe was retained by General Guy Sternwood to investigate Arthur Geiger, after Geiger had requested payment of some suspect promissory notes. Marlowe's investigation included two visits to Geiger's book shop on Hollywood Boulevard. On the first visit, Marlowe pretended to be interested in buying books; on the second, he pretended to have a book to sell. In neither visit did Marlowe disclose that he was an investigator or that General Sternwood had retained him. Under Wayne v. Bureau and its progeny, Marlowe might well have violated the law and risked discipline and civil liability. The fictional Philip Marlowe could ignore such risks. Nonfictional investigators and lawyers cannot. Violation of pretexting laws can be swift and substantial. The pretexter may be required to give back any money or profits made from their illegal act. In cases of egregious violations, there are criminal options available through the Department of Justice. Who could be liable? If the person who hired the pretexter had no idea how the information was going to be acquired or didn't specifically know that pretexting was going to be used, then they may not be charged. PIs who hire out all or parts of their investigation may be brought to a higher standard. A PI should not simply rely on a subcontractor's word, but should know how information will be acquired. Pretexting Techniques: Part Of Investigations? In the course of such investigations, investigators may explicitly or implicitly misrepresent who they are, may misstate the purpose of their visit, questions or interviews, and may secretly tape record, photograph or

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videotape others during the visits (to the extent such secret recording is permitted by law). Not every act of interviewing is pretexting. Further, some feel that if pretexting were outlawed, an unintended consequence would be the loss of undercover investigators to detect theft in the workplace or seek out identities of drug dealers.

Consider the following, somewhat acceptable, form of pretexting: A client once hired a PI to find out whether a former employee who was starting a rival business planned to illegally copy the firm’s manufacturing techniques. The investigator who befriended the former employee at a trade show and worked to develop a relationship. After several weeks, the two men went on a fishing trip together, during which the former employee offered the investigator a job with his new firm and revealed that he had his former employers’ trade secrets. The company used that information to sue the former employee with the investigator as the star witness.

The Investigative & Security Professionals for Legislative Action (www.ISPLA.org) suggest many other examples where pretext investigations may be required:

• A brand owner suspects that its products are infringed upon or counterfeited and therefore hires private investigators to visit some stores or showrooms, speak to salespeople, determine who the owner of the store is and ascertain the scope of the infringing or counterfeit activity;

• Before or after commencing an action against an infringer or

counterfeiter, a brand owner hires private investigators to take pictures of a store window displaying infringing or counterfeit goods, to buy infringing or counterfeit goods and to speak with sales representatives in order to assess how they present the products to consumers;

• Before or after commencing an action against an Internet infringer or

counterfeiter, a brand owner hires private investigators to contact the online seller, exchange communication with the seller and purchase infringing or counterfeit goods to ultimately identify the seller and ascertain his or her domicile; or

• After commencing an action against an infringer or counterfeiter,

discovery is difficult and a brand owner has difficulties getting the

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requested documentation. The brand owner, therefore, hires an investigator to visit defendant’s stores, speak to defendant’s salespeople and record conversations with defendant’s low-level employees in order to gather evidence as to defendant’s representations to consumers regarding the infringing or counterfeit goods.

Use of pretexts extends well beyond the investigation of trademark infringement and counterfeiting cases:

• A ban on such use would make all in-plant and internal survey style undercover investigations illegal, for posing as either an employee or as one other than an investigator would be a pretext.

• All “sting” operations would be illegal and the use of pretense in

attempting to track down the location of thieves and their illegally gotten gains taken from the clients of investigators would be a crime.

• Retail loss interrogations would be restricted as many recognized

interrogation techniques involve subterfuge or some limited pretext when questioning a suspect.

• Retail testing operations or the use of “Mystery Shoppers” would be

illegal, as operatives would be posing as customers.

• Investigators conducting surveillance, who are approached by a neighbor inquiring as to the reason for their presence, would be unable to use a simple pretext to explain their presence in order not to alert the subject of their surveillance.

John Lennon's Image A case from New Jersey illustrates what are likely the outer limits of what a court is willing to define as an ethical misrepresentation in the context of gathering facts in aid of litigation. In Apple Corps Ltd. v. International Collectors Society, Yoko Ono’s counsel hired investigators to investigate whether a postage stamp company was violating the terms of a settlement agreement with John Lennon’s estate concerning stamps bearing the rock star’s image.

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The investigators posed as consumers and placed orders by phone with the stamp company for products not authorized under the settlement agreement. The stamp company sold the products to the investigators, which was the critical piece of evidence showing the stamp company’s violation of the settlement agreement. After the plaintiffs sought a contempt order and injunction, the stamp company motioned for ethical sanctions against plaintiff’s counsel, claiming their behavior was deceitful. The Apple Corps court held that the phone calls did not violate ABA, New York or New Jersey ethics rules prohibiting fraud and deceitful conduct, although the investigators did not identify their purpose in calling. The Apple Corps vs International court held lawyers and their investigators DO NOT violate pretexting laws when they “act as members of the general public, transact ordinary business and engage with low-level employees of a represented corporation to detect violations of the law. To what extent the conduct approved in Apple can be generalized to all cases is open for debate. Arguably, undercover investigative acts that verge on pretexting, such as those undertaken by the Apple Corps attorneys, appear to be accepted only in those narrow areas where courts or ethics boards have expressed some approval, as in the contexts of housing discrimination and trademark disputes, where the potential violations would otherwise not easily be detected or proven. Posing As A Chiropractor In yet another case, that seems to contradict the Apple Corps case, an Oregon court decided that a pretexting scenario did violate misconduct rules prohibiting "fraud, deceit or misrepresentation." In re Gatti, (2000). Gatti, a lawyer, sought to investigate whether Comprehensive Medical Review (CMR), a company that conducts claims reviews for State Farm Insurance Company, employed unqualified reviewers and used an improper cost-cutting formula to determine whether to grant medical coverage for chiropractic services. Gatti, posing as a chiropractor, called a reviewer who worked for CMR to ask questions about his qualifications. Then Gatti called a CMR executive and falsely stated that he himself had performed medical examinations, was interested in working as a CMR claim reviewer, and had been referred to CMR by both State Farm and the chiropractor-reviewer Gatti had called. The court held that the Oregon Bar could prosecute Gatti based on a disciplinary rule prohibiting knowingly misrepresenting one’s identity with the

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intent that it be acted upon, in circumstances where disclosing one’s real identity would have influenced the recipients' conduct. In response to the In re Gatti decision, which met with a critical response from the state bar, Oregon adopted a new professional rule, now Rule 8.4(b), permitting attorneys to supervise lawful covert activity in the investigation of violations of law or rights, where the supervising lawyer in good faith believes there is a reasonable possibility of unlawful activity. The differences in conduct engaged in by Yoko Ono's attorneys and Gatti are important. One conclusion to be drawn is that an investigator’s failure to identify her true objectives is acceptable if she is acting as a member of the general public, doing something that members of the public typically can do in relation to a particular transaction. In such a situation, the investigator is not lying to the investigation target, nor is she tricking the target into acting differently or giving out information that would not otherwise be given in such a situation. However, where an investigator lies about his identity or poses as someone else in order to mislead the target into disclosing information that would otherwise be withheld, then such activity is treated as violative of the rules of professional conduct Private Investigator Indicted A private investigator accused of posing as a journalist to gain access to the reporter's private telephone records is another example of illegal pretexting. The investigator was accused of using the Social Security number of the journalist, who has not been identified, to gain illegal access to the phone logs.

The PI was also accused of conspiring to illegally obtain and transmit personal information on directors, journalists and employees of a large company to learn the source of boardroom leaks to the news media.

Six years later, after a lot of attorney fees, the PI was sentenced to three months in jail.

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The company that hired the investigator was also sued by the attorney general for engaging in unfair business practices. A $14.5 million settlement was reached.

Pretexting Examples

Simply using a pretense to determine whether or not a subject is at home or place of employment would be illegal. Such practice is common in holding visual electronic surveillance of subjects in workers compensation claims and personal injury litigation. Calling a bank to determine if a check will clear if you don't actually have a check or you are trying to discern whether there is money in that account. If you use false pretenses to get a bank to give you a consumer's address or get a consumer to give you the name of his bank, it is pretexting.

OTHER THINGS A PI SHOULD NOT DO If you know what side of the road to drive on you have the ability to recognize right from wrong. But, if no one ever told you to drive on the right side of the road you might not know it was wrong. Violating ethics is to know be told something is wrong and doing it anyway. So, an ethical PI needs to know what he cannot do first.

PINow.com did an excellent job in taking this further to describe things a PI cannot do. We've added a few PI blunders to help further.

Operate Without a License (If Required in That State) Some states have extensive licensing laws for private investigators. In one, for example, an investigator must complete 6,000 hours of paid investigative work under a licensed investigator over the course of three years (or fewer

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hours over a shorter period of time depending on relevant advanced degrees and law enforcement background), get fingerprinted, submit an application packet, and pass a Private Investigator Examination before they can work as a licensed private investigator.

In one case an unlicensed individual used fabricated reviews to mislead potential clients into believing his business had nationwide offices and investigators, when in fact, he operated out of a small office in with less than five employees . . . most were family members. By the time the dust settled, he pleaded guilty to 17 felony counts of grand theft by false pretense, 11 felony counts of fraudulently using an access card, two felony counts of identity theft, four felony counts of possession of a firearm by a felon in his office stemming from a conviction for stalking, six felony counts of obtaining services through false pretenses, one felony count each of perjury by declaration, computer access and fraud, and possession of ammunition by a prohibited person in his employ, one misdemeanor count each of unlawful representation as a private investigator, engaging in the business of private investigation, and doing business without a valid license with sentencing enhancements for aggravated white collar crime over $100,000 and property damage over $65,000. Clearly, ethical and legal lines were crossed.

Trespass A private investigator cannot enter a property, house, or building through illegal means, including breaking and entering. Though trespassing laws vary from state to state, in some jurisdictions the investigator must have permission from the owner before entering a property. Private investigators in some states will be allowed an exemption to trespassing laws if they are working as a process server to serve legal documents.

In one case, an investigator was hired to gather information on a target who filed a workers compensation claim. Over a period of time, two investigators took 18 rolls of movie film of the target while he was engaged in various activities on his property outside his home. Some of the film showed plaintiff mowing his lawn, rototilling his garden and fishing from a bridge near his home. Some of the film was taken from behind the target's barn, some on a neighbor's property.

The target was unaware he was being taped until a workers compensation hearing. After the hearing he filed a lawsuit the investigators for invasion of privacy and one for civil trespass. He

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demanded general and punitive damages for invasion of privacy and nominal and punitive damages for trespass.

Enter Your Home or Place of Business Without Consent A private investigator cannot enter your residence or business without consent, and if asked to leave must do so immediately. In line with this, they cannot use forced entry or lock picking to get inside.

Film a Subject Through a Window to a Private Home Investigators are generally allowed to film exchanges and interactions that take place in public, but they cannot film the interior of private property through an open window.

Record a Conversation of Which No Party Has Knowledge Depending on the jurisdiction, in order to legally record a conversation at least one person involved must be aware that they are being recorded. In some states, both parties must be alerted ahead of time. A private investigator can, however, eavesdrop on a conversation that takes place in public or is naturally loud enough to hear.

Place a GPS Tracker on a Vehicle Without Consent GPS trackers can only be placed on vehicles with the consent of an owner. For example, if a husband wants to put a tracker on the car his wife drives, he can only do so if the car is in his name, not hers. An employer cannot place a GPS tracker on an employee's private car, but they can place a tracker on a company-owned vehicle, provided they have gone through the proper steps of consent.

Hack Into a Social Media or Email Account Hacking of any sorts just isn't what a private investigator does. Some investigators have software that allows them to access information about profiles, like when photos were posted and pulling data on where the person was at the time, but a private investigator will not attempt to gain access to a social media account that belongs to another person.

Run a License Plate Without Reason A private investigator cannot run a license plate unless they have a legal reason to do so. This means that a private investigator will generally run a

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license plate only for investigative purposes (i.e. when attempting to locate a person or conducting a background check) or for future use in a court proceeding.

Run a Credit Check As a credit report is considered private information, a private investigator must have written consent from the individual in order to run a credit check. If granted consent, a private investigator must also have a legal purpose for running a credit check before doing so.

Obtain Protected Information Without Consent or Legal Purpose

Although they can find the location of the information, which can be helpful in asking for a subpoena, private investigators cannot obtain federally or state protected information without consent of the individual or a subpoena. These restrictions apply to various documents, including:

• Bank Accounts A private investigator can identify the location of bank accounts associated with a specific individual, but does not have access to specific information about these accounts. Unless they have obtained permission from the account holder, a private investigator must be granted a formal demand such as a court order to legally access the files.

• Financial Records Account-specific information, like transaction history, can't be obtained without either a court order or permission from the card or account holder.

• Phone Records Through legitimate investigative methods, an investigator can find out what carrier or person is associated with a given phone number, but because phone records are considered private and protected by both federal and state statutes, a private investigator cannot obtain those records without a court order or subpoena.

Obtain Cell Phone Records Without a Warrant An investigator cannot access cell phone records without a warrant or consent of the individual who holds the records. In most instances, a private investigator can get comparable evidence through other methods.

Entrap or Entice A Target To Do Something Wrong

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In Unruh v Truck Insurance Exchange, investigators were hired by the insurers to investigate an accident claim. The PIs "had knowledge of plaintiff's physical and mental condition and medical history." They placed the target under surveillance and actually befriended her. Unfortunately, the investigator did NOT represent his capacity and his intentions toward the plaintiff." On specified dates, for the purpose of obtaining motion pictures of plaintiff, the investigators enticed and cause the plaintiff to conduct herself in a manner beyond her usual and normal physical capabilities ... In particular defendants enticed plaintiff to visit Disneyland where she was filmed crossing a rope bridge and a barrel bridge. While she was on the bridge, the PIs willfully and intentionally violently shook and disturbed the bridges which allegedly caused additional physical harm to the plaintiff insured. , Upon learning of "the ruse and deception" practiced on her by defendants, plaintiff allegedly suffered a physical and mental breakdown requiring hospitalization. This breakdown was proximately caused by defendants' negligent exhibition of the films described, and by defendants' negligent failure to properly control their agents and employees "as to the limit, scope and manner of their investigation," and as to "the possible risk of injury to plaintiff therefrom." Needless to say, the target asked for a large sum of money for pain and suffering. Extreme Surveillance & Intervention PIs have been known to aggressively shadow a target . . . filming them day and night, tailing them to work, restaurants and events . . . so much so the targets suffered alleged mental breakdowns and invasion of their privacy. In other cases, PIs were hired to help clients gain custody of their children. The PIs went too far by restraining the opposing spouse or acting as a decoy so the parent client could snatch the kids. In both cases, the investigators wqere accused of kidnapping. NOTE: This list is not meant to cover every circumstance and laws vary from state to state.

CONSEQUENCES When things go bad, someone will pay the price. There are penalties, fines and even jail sentences for violations of laws and licensing.

Beyond these issues, there is an important consequence of wrongdoing that every PI needs to keep in mind.

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• Unethical / illegal actions may lead to suspension of or other action against the private investigator's license.

• Evidence obtained as a result of misrepresentation, illegal or unethical

actions might be excluded in civil proceedings. • Victims of torts may seek damages against investigators. • Victims of intentional torts may seek damages against attorneys or

others hiring the investigators. • Victims of negligently supervised or entrusted investigators may seek

damages from attorneys or others hiring the investigators.

Protecting your Assets Oftentimes a private investigator will be seen as a protector of information and privacy and extremely good at being discreet, but who and what are protecting the investigator? In this chapter, we will discuss everything protection, from laws and facts, to picking and choosing clients, to insurance needs to help protect you and your business. General Private Investigation Law 101 When discussing law pertaining to the profession of a private investigator, it is important to note that some of these laws will vary from state to state, but generally these should not be a part of your practice. Always remember that private investigators cannot break the law. It’s their experience, other tools, and resources that make them different than the average Joe. Impersonating a Law Enforcement Agent

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Impersonating a law enforcement agent could look like anything from displaying a badge or having fake credentials to wearing an FBI or ICE, etc type windbreaker jacket and should be avoided at all costs. Private investigators cannot wear a uniform, misrepresent that they are law enforcement officials, or carry a badge. An investigator caught doing so, can be punished with an arrest and/or being charged with a misdemeanor. In some municipalities, this will vary county to county, and state to state, investigators are allowed to sport badges, uniforms, and tactical vests, but they must clearly indicate that they are a private investigator. Trespassing Trespassing can be put into three categories when and where the law is involved: trespassing on property, trespassing to movable personal property (sometimes called chattel) and trespassing against a person. Private investigators need to understand the notion of “reasonable expectation of privacy”, which is covered in the Fourth Amendment of the Constitution, to understand what would constitute trespassing. If a subject is in their home, but their window is wide open, well that is a grey area. They have the reasonable expectation of privacy because they are in their home, but they left their window open to the public. This does not mean that an investigator can sneak a peek by stepping on the subject’s property; this is trespassing. Trespassing against a person can be anything from false imprisonment (private investigators cannot make arrests) to battery to assault. Trespassing against movable personal property could directly mean tampering with a subject’s mail, as in intercepting it, destroying it, etc. Arresting Anyone In the United States, it is lawful that a private citizen may make an arrest, however, that law is very specific (and can vary state to state) on what grounds a private citizen may make an arrest for. In some states a private citizen can arrest another citizen for a misdemeanor that is taking place in the present in the private citizen’s presence. In other states, a private citizen can make an arrest of another person that has or is committing a felony. The problem arises when a court may make a determination that the person arrested was not committing a misdemeanor nor a felony and the arrestor can then face charges for trespassing against a person/false imprisonment. As private investigators do not have the express consent to arrest someone that law enforcement does, it is a best practice to not arrest anyone and save that for the proper authorities.

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Wiretapping Under the Title 18 of the U.S. Code, Article 2511 It is a federal crime to wiretap or use a machine to capture the communications of others without court approval. It is also illegal to be in possession of electronics that are used to wiretap. Wiretapping is considered a felony, and can be punishable by up to five years in prison and a $250k charge for each violation. Hacking Computers or Phones Hacking is another modern day way of illegally obtaining information. Private investigators cannot access anyone’s computer files or phones without the owner’s legal consent. Even then, it’s a slippery slope. Say a wife wants to find out if her husband is cheating on her and she pays the cellphone bill for both of them; technically she is the owner of the accounts, but in order to actually see text messages or other messages, she would need a subpoena to see the content. An investigator should not try to illegally access anyone’s phone or computer. Take it from Eric Saldarriaga, of Queens, NYC, who was sentenced in 2015 because he was illegally hacking emails on subjects of his investigations. Saldarriaga used an online alias to locate hackers. All in all, Saldarriaga, hacked more than sixty email accounts and was convicted of conspiracy to commit computer hacking. He served six months in jail, has to serve three years’ probation, and pay a $1,000 fine. Tampering with Mail Tampering or intercepting mail is another illegal act that could result in a felony, as it is a federal offense. This being said, another state to state law, is the good old dumpster diving. As foul as it sounds, an investigator can learn a lot about his subject, from the types of food he may like to anything of other relevance like discarded, opened, mail. As state laws and statues vary, it is vital to check your state law to determine legality. The dumpster or trash can must not be on the subject’s property either, it must be on the street. Essentially the law, in most states, is that once a person has set their trash cans on the street, it is considered abandoned property.

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Pretexting Pretexting can be legal or illegal, depending on the context that it is being used by a private investigator. If or when a PI is in a situation where he/she may find it beneficial to fabricate, tell a little white lie, etc in order to garner information, it is generally okay. Generally, it is not a PI Best Practice to unethically stretch the truth in order to gain certain information, because this is where it can bleed into the illegal side. A PI may not impersonate a doctor, lawyer, or police officer in order to gain information. He/She may not pretext in order to access phone records, financial records, medical records, or other personal records. The Gramm-Leach-Bliley Act made it illegal to use pretexting of any kind to obtain a person’s financial information. The Federal Trade Commission conducts regular sting operations on private investigators who advertise asset or bank account searches. In 2005, Hewlett-Packard made headlines in a spying scandal involving PI’s pretexting as board members and up to nine journalists in order to obtain their phone records. One of the three PI’s hired by Hewlett-Packard, Bryan Wagner, was charged with conspiracy and theft by the federal government because he obtained and used a journalist’s social security number to access their phone records. Wagner was sentenced to three months in prison. Credit Checks/Certain Court Records Private investigators cannot obtain credit checks on subjects on anyone without their consent. Generally, most criminal/civil court records are public record, however, private investigators are not privy to any records that are sealed. Local/State Laws Private investigators do not any special right to violate any local or state or other laws, either. Although an investigator may occasionally have to speed up or run a stop sign on a surveillance, they are by no means exempt from the law, and if caught may face the same punishment as any other private citizen. Operating without a license/Having Insufficient Licensing Private investigators are required to be licensed in forty-two states. It is important to stay up to date with your states’ (if you are licensed in multiple states) new rules and regulations including continuing education, if required.

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Most states that require private investigators to be licensed also require that they carry an insurance policy and/or a bond. More on this later, but, it is a best practice to have both a liability insurance policy (aka Errors and Omissions) and a surety bond. Litigious Clients and Investigators A great PI best practice is to assume that a majority of your clients are going to be litigious in nature and you are not excluded from this just because you may have helped them. The following list are the most common possible claims that clients will file against private investigators:

1. Breach of Contract- A breach of contract most commonly occurs when one party does not perform a promise that forms all or part of the contract. A good contract, great documentation, and due diligence will go a long way in avoiding a breach of contract.

2. Fraudulent Misrepresentation- Fraudulent misrepresentation occurs when there is an instance of a false statement wherein the party making the statement knows it’s false, but makes it anyway or the party making the statement manipulates another party into entering a contract and lastly the other party enters into said contract as a result of the false statement and consequently suffers a loss.

3. Defamation- Defamation occurs when someone’s reputation is hurt by

a statement that was written (libel) or spoken (slander). Defamation is not considered to be a crime, but rather a tort (a civil wrong-doing).

4. Negligence- Negligence is when a party fails to exercise proper care

towards others, in which a reasonable person would do. There’s a four pronged test that must be proven by the plaintiff in order to win their negligence case: The defendant owed a legal duty that was not fulfilled. The defendant breached that legal duty either by doing something or not doing something. The defendant’s actions (or inaction for that matter) caused the plaintiff’s injury. Lastly, the plaintiff was harmed or injured (damaged) by the defendant’s lack of actions or actions.

5. Negligent Misrepresentation- Negligent misrepresentation is another

form of misrepresentation of contract law. It occurs when the defendant does not directly lie (fraudulent misrepresentation), but has made a representation about something while having no real, reasonable reason for believing it to be true. For example, An

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investigator tells a potential client they think their spouse is cheating because the investigator has seen the client’s spouse’s behavior in previous cases, but the investigator has no definitive proof. This can possibly lead to a civil case because the client may have signed a contract with the investigator based on false pretenses.

6. Unfair and Deceptive Trade Practices- Under the Federal Trade

Commission Act, USCA 45 (a) (1) unfair and deceptive trade practices allow state attorneys, along with general and private consumers to commence lawsuits over false or deceptive advertisements or other unfair practices. Be aware, false advertising is the lead cause of consumer complaints.

7. Trespassing- Trespassing is entering anyone’s property without the

permission of the owner. Depending on where the trespassing occurred, as in geographically, trespassing may be considered a crime, a civil crime (aka Tort), or both.

8. Invasion of Privacy- Invasion of privacy is a common civil tort and

allows a plaintiff to bring a lawsuit against someone who they think unlawfully intruded into his or her’s private affairs, disclosed his or her’s private information, publicizes him or her in a false light, or appropriates his or her name for personal gain. Privacy is a tricky beast. Say you are on a surveillance and the affair in progress is taking place behind closed doors, but they leave a tiny bit of a window shade open, enough to see in from the street (or other non-trespassing space). Technically they have the expectation of privacy, but they left the shade slightly drawn and open to public viewing. Grey area at best.

These are the top reasons why private investigators get sued or are taken to court. A PI best practice to keep in mind is to have a lawyer you trust in your back pocket that you can call upon when you are unsure whether or not something will get you into trouble or blurs the line of legality. Good judgement will get you far, but sometimes wading through and trying to interpret the thousands of laws is better left to a lawyer. Doing your Due Diligence Doing your due diligence can apply to many facets of being an investigator, but one that is especially crucial is doing your due diligence when interviewing potential clients. It may seem nonsensical to turn down any

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potential business, however, discovering motives from potential clients is a necessity. The most important discovery that can be made when meeting a potential client is trying to decipher what they are actually trying to accomplish by hiring you. The five w’s will come in handy during the initial meeting. When discussing the course of the potential case, it would behoove any investigator to ask, what will you do with my findings? Investigating the client before meeting with them or taking the case is also another PI Best Practice. Nearly every living human has a smart phone and an easy database search or search of local records prior to meeting the client is easy. Although there may not be anything that pops up on the interwebs, when meeting the client, you can also use your intuition. Does this guy that wants to find the “one that got away” seem like a stalker lunatic? If so, use your best judgement to avoid lawsuits in the future. Along the same lines of investigating a client or their motives is to poach them about the subject. Questions such as, do you think this person is dangerous? What will they do if they find out they are being investigated? It is always a PI best practice to protect yourself and your client and involve law enforcement if need be. Another PI best practice when practicing doing your due diligences is addressing whether or not you can truly help the client. Do not take a case that is beyond the realm of your experience, as most likely you will not be able to assist the client and will end up looking up the wrong end of a bad review via Yelp (yes, people Yelp reviews about PI’s) or in court for breach of contract. Ethics and morals can and will play a huge role in any investigator’s career, and even if you are hungry for work, accepting work that can put your ethics and/or morals on trial, will inevitably leave a bad taste in your mouth and your client’s mouth. To Carry or Not to Carry? The answer depends on the investigator, their particular line of work, and the state laws. State laws will differ on what is acceptable and what is not acceptable in terms of concealed carry, open-carry, what type of firearm is allowed, on and off duty carry, and even insurance needs based on whether the investigator is packing. Also many of these states require training, certification, and annual renewals of the firearms certifications. Some lines

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of private investigator work are more dangerous than others, such as being a body guard, corporate espionage, and even infidelity cases can take a violent turn really quickly. A PI best practice would be to ask yourself, if you needed to discharge the weapon, would you be okay with the result? Some private investigators do not carry, even though laws allow for it in their prospective states, because they pick and choose their work, or they are a cubicle, data type of private investigator and not exposed to the elements, per say. There are times when a private investigator is faced with a life or death situation and they must decide whether or not to discharge their firearm. In December of 2016, a retired police officer, turned private investigator, was sitting in his car. A thirteen-year-old boy with a replica gun (that appeared to be real) approached the man and opened his car door. The private investigator shot and wounded the thirteen-year-old. The man was interviewed and investigated by Baltimore Police, but was not charged. Less lethal options for a private investigator may be a taser gun, stun gun, or even pepper spray. If an investigator chooses to bring a weapon on board, it is a PI best practice that they first, know if the weapon is even legal to operate in their state or jurisdiction, and second, actually know how to operate the weapon, in order to prevent further damage or harm. Recording Interviews If a recorded interview is to be admissible in court, it must be known to the interviewee that they are being recorded. Additional recordings, other than those of the surveillance nature, should follow the guidelines of “expectation of privacy”; this is a PI Best Practice. If someone is in the privacy of their own home and the PI is recording them through an implanted device, that could be considered crossing the boundaries. If two people are having a conversation at a coffee shop, in public, the line is a little less blurry, as they are discussing whatever out in the open.

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Best Business Practices Smart and Best Practices of a Private Investigator Businessowner Private investigators workload is hard enough and can change at a moment’s notice. Being prepared is an absolute must to being successful as a businessowner and as an investigator. Below you will find a few best business practices for private investigators. Client Privacy- It is imperative that private investigators maintain a confidentiality aspect in relation to their client’s privacy. All states have different rules and statutes regarding client privacy. In Michigan, for example, private investigators are expressly prohibited from divulging any information about clients, past or present. Any evidence collected is considered privileged and cannot be subpoenaed. Other states, such as California, Florida, Illinois and Texas do not offer the same protection from subpoenas; if a subpoena is served, investigators must answer and information must be turned over to the requesting court. Even if not expressly stated by law, private investigators have a duty to keep any and all information and details of the investigation strictly confidential. Establishing client rates- Each investigator will need to establish a foundation for client rates that includes everything from an hourly rate to travel to possible court appearances. Private investigators should establish a fee schedule to present and discuss with clients. The majority of an investigator’s charges are based on per hour of investigative work. There may also be charges for additional travel expenses to consider and some investigators also charge a premium for certain case types (i.e. anything potentially dangerous). Some investigators will work a case from beginning to end before charging their clients.

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Responsiveness- Clients will expect to be updated in a timely manner. Setting boundaries and notifying clients how often you will be in contact with them up-front is important, or else they will be consistently calling. This is a best practice to also establish and maintain credibility. Many investigators have a rule of letting clients know that they will update them when there is something to update them with. Documentation- As previously discussed, documentation on cases is one of the most helpful ways an investigator can do everything from keeping track of cases to establishing timelines in case of litigation. Documenting expenses according to case and keeping track of mileage will also help come tax time. Camaraderie- Get to know other PI’s who may have a different skill set or reside in a different geographic location. It can behoove any investigator to have contacts that can help on cases if needed. A great, online networking tool many PI’s utilize is Linked-In; you can touch base with other investigators in other areas. Also, do not poach other PI’s clients; it looks shady and is not a best practice. Joining Associations- Joining national accredited Investigator associations like United States Association of Professional Investigators (USAPI) or National Council of Investigation and Security Services will help lend credibility that a PI cares about their personal and career development. j/ Equipment- The right car, technical equipment, camera, phone, etc will only help an investigator. There are numerous websites online that sell gear exclusively to PI’s. Every now and again, PI’s should browse these websites to find the latest gear and technology available to aid in their investigations. Along with having the right equipment, knowing how to properly operate the equipment is essential. Taking a photography class, even a beginner’s class can help when one needs to take any photographs of subject and helps with angles, lighting, etc; all which, if not known how to properly handle, can ruin a picture. Zoning- Zoning is a term that means mapping to investigators and is useful in day to day planning. Map out, as best as can be achieved, the day according to geographic location. This will not work everyday and usually no two days are alike, but it will help cut down on gas and travel mileage, if one can work in areas that are close together. Knowing the city that you are investigating in is also extremely helpful; learning freeways and main streets will help. Also, having actual maps can prove useful in that sometimes GPS technology will fail or one will not be able to get cell service.

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Website- Having and maintaining a website is a must in the digital age. Wordpress offers great templates that are easy to use and understand and contain items such as plug-ins and SEO optimization. A PI’s website should include his/her phone number and email address prominently displayed, where clients can easily locate it. Having a list of investigations that the PI can handle is also helpful for potential clients who are interested in using your services; this way they can see what the PI has to offer before they even call. Some private investigators also list hours of operations (some are available 24 hours a day) and testimonials from previous clients. If a private investigator wants to blog about helpful items (this will also help with SEO), it is a best practice to keep your blog updated weekly, bi-weekly, or monthly, as long as it is a consistent update. This shows potential clients that you are engaged in your work and put a concerted effort into the business. Some states require that an investigator put their PI License number on their website; this is another best practice. If the license number is visible to potential clientele, they can easily check with the respective state’s licensing bureau and ensure that they are hiring a viable investigator. Case Studies- Case studies are generally thought of as something pertaining to sciences, but they can be a useful tool for any PI to have on their website. The case study is essentially a difficult, troubling, or informative case that the PI can share with potential clients. Discretion should be used and names/locations/personal information should not be divulged. Case studies can showcase a PI’s range of skills and depict what sort of cases he or she can and have handled. Case studies should be short, sweet, and to the point as to keep the reader engaged.

Private Investigators as Expert Witnesses Private investigators will often be asked to testify in a case that they have been working or have worked in the past. As an expert witness on a case, a private investigator will provide expert testimony and evidence that was gathered during his or her investigation to the court of law. When an investigator is called to testify, it is essential that they are prepared with the correct evidence (that is admissible in court), as well as answers to potential questions from the opposing party. The investigator should only reference the facts of the case and not insert his or her opinions.

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When drafting a written contract with a client, it should be noted that you as the investigator will charge for any time and mileage associated with being called to be an expert witness.

Written Contracts As a PI Best Practice, it is essential that every PI have a written contract with each client, that is individual to that case. Written contracts protect both parties involved in the case. Pursuit Magazine says that "PI contracts are crucial in the private investigation business. Never accept an assignment without having one in place!" They cite the following reasons:

• First, you want to get paid for your work! A well-written contract for services or retainer agreement spells out terms of work and billing rate, and it specifies how payment will be made.

• If a client balks at your invoice, then you have evidence of the agreement that hopefully will stand up in court should in case of non-payment and breach of contract. There are penalties for not paying and/or trying to reverse the charges on the credit card used to pay for services as well.

• A contract for services or retainer agreement maximizes an investigator’s protection in the event of a client dispute. Other client problems such as misunderstandings, refunds, complaints, or clients threatening to sue, can easily be avoided or defended with a properly drafted and executed contract or retainer agreement.

• Contracts manage client expectations rather than to absolve or indemnify your company of any perceived liability which may arise from our investigation. Very few “retail” clients have a realistic understanding of the investigative process and what they can or cannot expect; this isn’t CSI Miami or Magnum PI, and the end result of any investigation may be less than dramatic and not what the client had expected. A great contract diffuses unrealistic expectations and helps to prevent “buyer’s remorse” when an investigation doesn’t turn up hoped-for slam-dunk evidence of an affair.

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• Sometimes the difference between stalking and surveillance is a contract. If the subject of your investigation calls the police, the responding officers are going to want a good explanation for why you have been “harassing” the complainant. A crime of stalking or harassment requires the intent to create distress in the victim, and evidence that you are a disinterested professional diligently working on behalf of a third party could go a long way in sorting out the mess before it lands you in jail.

Other pitfalls to watch according to Pursuit Magazine:

• Mapping out what the client intends to do with the information you obtain during the investigation will reduce an investigator’s liability in the event of a client dispute or a client’s misuse of the information obtained during the investigation.

• Using a database provider to get the job done? Try to closely match

some portion of the description of the purpose of the investigation to a “GLBA Permissible Purpose” which the data broker, e.g., “The client is employing the services of the agency in order to conduct surveillance upon John Smith (subject) in an effort to determine the extent of the subject’s injuries as it relates to a potential legal liability claim against the client.”

• Failures in communication are the most common source of friction

in investigator-client relationships. The investigator should keep the client reasonably informed about the status of a matter, promptly comply with reasonable requests for information from the client and provide client with adequate information to participate judiciously in decisions concerning the objectives of the investigation.

• Provide a non-guarantee statement in your agreement saying that

you will do your very best to collect the facts they are looking for but that there is no guarantee you will obtain the exact results they desire.

• A limitation of liability clause is often inserted into a contract to

exclude or limit your liability for breach of contract or negligence.

A disclaimer is generally any statement intended to specify or limit the scope of rights and obligations that may be exercised and enforced by parties in a legally-recognized relationship. e.g., There is no restraining order or protection order against me (CLIENT) for this individual. ______,

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and/or There has never been a charge of stalking or aggravated stalking against me (CLIENT)._______ Maintaining Credibility with Insurance A properly and well insured private investigator, is a good private investigator.

Trusted Choice.com does an excellent job in describing the types and need for PI insurance.

The right insurance for private investigators will vary from one business to another. If you are a PI, you may need a number of different insurance policies to completely cover your risks. For starters, most PIs require the same general types of insurance as any business:

• General liability: Covers your risk of bodily injury or property damage to another person or business in the course of doing business.

• Property coverage: If you own your building, you may need this coverage to protect your business property.

• Auto liability: Commercial vehicle insurance will protect you whether you drive a business vehicle or drive a personal auto for business.

• Workers compensation: You may be required to carry this coverage, whether or not you have employees. It provides protection against job-related injury or illness suffered by you or one of your employees. Laws vary by state.

In addition, depending on the type of work you do and whether you hire employees, you may need a number of specialized coverages, such as:

Assault & Battery Coverage

Protects you if you are accused of physically harming another person. Some private investigator work can involve situations where physical confrontation may be necessary. For example, you may face this risk if you are involved in any of the following:

• Executive and celebrity protection • Retail store security • Hotel security • Investigating domestic issues

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In order to get the proper protection, you will need for your insurance company to amend or waive the assault and battery exclusion in a standard general liability policy. Only a company specializing in private investigator liability insurance will consider taking this step.

Care, Custody & Control Insurance Coverage

Some of the work done by private investigators involves guarding or securing property. For example, a department store might hire you as a PI if it is experiencing substantial inventory shortages and suspects that some of its employees are to blame. As the private investigator hired to look into the situation, you would have access to the entire store. A difficult insurance situation can arise if you inadvertently cause damage to some of the store's property while looking for evidence.

A standard general liability policy excludes liability for property in the "care, custody or control" of the insured. Your insurance carrier could well exert this exclusion in this scenario. The solution is to work with your insurance agent to create an amendment to the basic policy, providing a sub-limit for property damage otherwise excluded by the care, custody and control provision.

This is highly technical work and you need a knowledgeable agent who specializes in commercial coverage to help you through this and other concerns pertaining to private investigator insurance coverage.

Invasion of Privacy Coverage Claims of "invasion of privacy" are a definite professional risk for private investigators.

Fidelity Bonds This coverage protects you against the deeds of unscrupulous employees.

A Word On PI Errors & Omissions Insurance A great deal of the work done by private investigators involves researching information or developing data that will be used by others to make significant decisions, such as choices regarding hiring or firing, marriage, contracts, or whether or not to do business with another party.

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As a private investigator, you may find yourself responsible for a financial loss by another person or business in a number of ways. For example, you may face this risk if:

• You do an inadequate job of researching a given situation; • You provide information that results in a poor decision by a client; • You neglect to provide critical information that results in a client's

choice of a contractor, who then does not perform quality work.

These situations will not be covered by a general liability policy because there is no bodily injury or property damage involved. Only a professional liability policy will protect you in this situation. "Errors and omissions" or "E & O" risks are inherent in any business that provides consulting services or provides information and advice, and this is particularly true of PIs.

Professional liability for private investigators may be one of the most important coverages you can buy to protect yourself against liability risks.

Owning a PI Business At some point in time, an investigator may decide it is time to perhaps branch out on their own and begin running their own business. In this section, we will discuss some of the fundamentals of running a successful private investigator business. Conducting Ethical Investigations Conducting ethical investigations would not only be a private investigator best practice in terms of not ending up in a legal battle of sorts, but also will only help establish the investigator and their business as legitimate in nature. Conducting ethical investigations means abiding by all federal, state, and local laws. It also means maintaining your private investigator license and having near zero complaints against you. Ethical investigations can also range from being honest with your clients, to having documented proof of all of the activities, to refusing cases that are beyond your skill set. Potential Cost of Starting a Private Investigation Business

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Starting any business will have its fair share of startup costs. Here is a rough estimate for starting a private investigation business and also considerations that one must make:

1) Rent: On average (depends on geographical location) is around $800. Some PI’s want a well-established office to meet clients, others opt to work from home to save money.

2) Telephone Equipment- Telephone equipment can include cell phones, office phones, etc. Average cost-$1,000.

3) Incorporation- Costs will vary from state to state and county to county. Incorporation can mean creating a corporation, limited liability company, or sole proprietorship. Each of these have merits and pitfalls; it is important to research thoroughly and discuss with an attorney and a tax professional. Average cost- $700.

4) Business License- Costs will be varied from state to state and county to county. Average cost- $200 a year.

5) Computer/Laptop- Will vary depending on the computer purchased. Average cost- $500 to $2000

6) PO Box- Besides having a physical address or in lieu of having an office, many PI’s will opt for a Post Office Box. Average cost- $75 to $200 a year

7) Supplies- Anything from paper to printers to ink etc. Average cost- $700

8) Insurance- Will vary depending on the needs of the private investigator. Anywhere from $500 to $5000 annually.

9) Advertising- Will vary depending on the investigator. Word of mouth will get one far, but in this day in age, a lot of PI’s invest in SEO, Google Adwords, and a great website. These fees can be monthly, one-time, or annual, depending on the PI’s preference. Average cost is completely varied. 10) Legal Costs- Having access to an attorney that is trustworthy is a PI Best Practice. Attorneys generally charge on average, $150 an hour.

The cost to start a business will vary, but averages around $5,000 for the bare minimum. Many of the items necessary to maintain a business will also be on-going, annual payments, like licensing fees and PO Boxes.

What’s in a Name One of the more challenging aspects of starting a PI business, is choosing a name for your business, which is seemingly odd. However, choosing the right name for your private investigation business will be key to marketing yourself and the business in the present and in the future.

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According to Investigator Marketing, there are six main things to consider when choosing a name for the business: 1. Avoid Acronyms and Initials- Acronyms essentially mean that the

investigator is creating two names for their business, which makes branding a two part process and can often be confusing to customers.

2. Avoid Using Your Name as Your Business Name- Although many people do not start a business, especially an investigation business, with the intention of selling it, this may be an option for a private investigator that wants to retire. In naming your business after yourself, it is going to be difficult to position the business without you, if it is named after you. If the private investigator has no intentions of selling and will dissolve the business when he or she retires, this is a moot point.

3. Don’t be too Specific with your Name- This is a mistake that companies make when choosing a name that may narrow down perspective clients. For example, if you name your business after a geographic location, such as Los Angeles Investigators, many people may tend to think that your company only services Los Angeles. It is best to avoid names that are tied to a particular state, city, service, or market.

4. Do Not Copy Other Company Names- You risk getting confused with another company, especially with word of mouth advertising.

5. Ensure the Domain Name is Available- In the world of the internet, it is important to ensure that your name is available for your website. To add to that concept, ensure that the .com version of your domain name is available; this is the version that most people are going to be familiar with.

6. Make it Memorable and Easy to Spell- You will want your agency name to stand out amongst others and easy to spell. Avoid naming your business with words that have different meanings, are spelled differently, but sound the same, like Rain, Reign, Rein.

Choosing a Business Structure Another one of the more difficult decisions when deciding to start a PI business is choosing which structure would be most suitable. Each has its benefits in terms of taxes and liability and also its own set of pitfalls. The most common business structures are sole proprietorship, partnership, corporation, limited liability company and a limited liability partnership.

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Sole Proprietorship- Sole Proprietorship is one of the more popular business structures for entrepreneurs, as it is the simplest and usually involves only one person, the business owner. The taxes are also easier to file. The disadvantages of being a sole proprietor include being liable, personally, for any company liabilities. Personal assets are at risk and could be seized to satisfy a tax or business debt, along with any legal claim against the business. Partnership- Partnership business structures will only work if there are several partners involved. There are two types of partnerships, general and limited liability partnerships. In a general partnership, the partners all assume responsibility for the other partners and the liability of the partnership, as well as own and operate the business. In a limited liability partnership, there are still general partners, who operate the same as in a general partnership, and there are limited partners, who are essentially silent partners that are investors that do not have the same liability as the general partners, nor are they involved in the operation of the business. The downsides of limited partnerships are the administrative complexities and the required tax filings; most PI businesses would not need the partnership model, unless there are multiple PI’s that want to start a business. Also, partnerships are like sole proprietorships in that the partners are responsible and liable for themselves and their partners, which means debts, legal action, etc. Corporation- Corporations are structured in a way that the owners are separate from the business entity, which means a lot of paperwork and a lot more government regulation. The biggest benefit for a business owner that decides on a corporate business structure is that the debts and liabilities of the corporation are separate than that of the owners. The private investigator that decides to incorporate his or her business will not be putting their personal assets are risk. The biggest downfall is the double taxes; both federal and state. The corporation will have to pay the corporate tax and the taxes on any earnings that are distributed to shareholders in the form of dividends. S Corporation- An S Corporation is another appealing business structure for small private investigator businesses as it has the liability protection of a corporation but less taxes. Income and losses are passed through to shareholders and included on their individual tax returns and as a result there is only one level of federal taxes to pay, unlike the double taxation of a regular corporation.

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Limited Liability Company- An LLC is another popular business structure amongst private investigators. The LLC’s business owners get the liability protection of the corporation without the double taxation and earnings/losses are passed through to the owners on their own personal tax returns. LLC’s are an attractive model because there is no limit to the number of shareholders the company can have and each of these shareholders can have a say in the operation of the business. LLC’s are strange in the sense that certain states require them to dissolve after thirty years of when a partner dies, quits, or retires. Choosing a business structure is fluid in that it should be reassessed over time, as the company grows or declines. Consulting a tax professional to help with setting up any of these business structures is always going to be PI Best Practice Marketing the Business Since PI’s have such a diverse clientele, skill set, and geographic availability, a great place to start with marketing is identifying their demographic and if there are any niche areas the investigator wants to serve. Once established, the investigator can tailor their marketing around those areas. There are hundreds of different types of marketing that one can partake in and these are some of the most common types utilized by private investigators. Word of Mouth- Word of mouth is one of the most prominent and powerful marketing tools for private investigators. When your clients have a positive experience working with you, they will tell everyone they know and vice versa is true as well. This is why it is essential for investigators to always conduct thorough, legal, and ethical investigations. Networking- Networking is a tried-and-true marketing method. Joining any sort of association that could need your services, such as an insurance association and/or an attorney association. Local chambers of commerce and business networking groups are also good places to network your investigative expertise. Volunteering- Volunteering for community goings-on that could use a private investigator’s skill-set could be a great marketing tool for future work. A lot of times there are search and rescue teams in larger cities, that always need skilled volunteers. Offering Pro-Bono work to attorneys is another way to get a foot in the door for future cases.

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Process Serving- Most PI’s will at some point or another dabble in process serving. For a private investigator that is starting out his or her practice, offering these services to attorneys and paralegals can lead to future cases. This way the investigator has proved that he/she is competent and trustworthy. Article Marketing- Article marketing is one of the many tools investigators can use to increase their presence on the internet. Many PI’s regularly contribute their knowledge or expertise to publications such as Pursuit Magazine, PI Magazine, or PI Now. Along with the exposure of having knowledge and expertise about a certain subject matter, it will also help with Search Engine Optimization (SEO). An example of a PI that has been successful with this type of marketing is Brian Willingham. Willingham has written numerous articles and is attached to several large PI Publications. Exposure that also creates awareness for your knowledge and expertise is essential in marketing. Internet Marketing- There are numerous ways to market a private investigation business online and one of the more popular methods is Google Adwords. Google Adwords allows the buyer to set a limit of what they want to spend a month on advertising, which can be a cost effective method. Google adwords allows companies to pay for advertising so that people will notice their businesses (in the top and side margins of the Google page) when conducting a Google search. Other investigators opt to hire out for their online marketing to companies like Investigator Marketing and Private Investigation Marketing. These companies, for a fee, will provide investigators with everything from custom websites to SEO, to social media content. Social Media Marketing- Nearly everyone has heard of Facebook, Instagram, Twitter, and Linked-in and often times potential clients will look for a company that has one of these accounts and updates it. Social media is like a plant in that you must water it often and take care of it. Social media can help with SEO, is free, and allows an investigator to engage with a wider audience of potential clientele. Many PIs opt out of social media marketing because one must give up anonymity in order to have the social presence. An important social media tool for every investigator to have in their pocket is Yelp. Yelp is a double-edged sword in that anyone can leave negative or positive feedback. However, many people searching for an investigator will look to Yelp to see other’s experiences.

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Online Directories- Online Directories like PI Directory are essentially yellow pages for the internet. These also provide help with SEO by providing a directory for someone searching for a PI in say, Los Angeles. This is another fairly cost effective way for a PI to gain exposure on the internet. Trustify- Trustify is the Uber of private investigators. Investigators contract with Trustify to take on cases in the investigator’s areas of expertise and geographically. Trustify handles both personal and business type investigations. Trustify says, “Our technology provides transparency during the investigation, powering a direct connection between client and investigator. The result of this real-time communication? Cases are solved quickly, efficiently, and much more affordably”.

Private Investigator Specialties In any given private investigator’s career they will more than likely work with attorneys and or insurance companies. For many investigators, attorneys and insurance companies will be their main clientele and account for a bulk of their business. Working with Attorneys At some point in your career, you will be hired by attorneys to conduct a variety of tasks. Some say the trend is moving away from "out-in-the-weeds" surveillance to the use of private investigators for researching public records, court records, background investigation and/or online surveillance.

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Following are issues a law firm or insurance company lawyer will consider in evaluating your services:

License and Insurance

Since there has been a wave of unlicensed private investigator cases lately, the first thing that an attorney will do is confirm your licensing status and the existence of any liability / errors and omissions insurance. We address these issues in great length elsewhere in this course. For now, know that states with no PI license requirements are the exception rather than the rule today. As of the writing of this course, only Alaska, Idaho, Mississippi, South Dakota and Wyoming allow investigators to work without a license. Since rules change, you would be wise to research unique requirements in each of the jurisdictions in which you practice to determine license rules and regulations. It may even be possible to request opinions from the states’ attorneys general offices for particular situations. The majority of states that do require PIs to be licensed focus on permissible activities such as:

• Overt investigations, in which investigators identify their roles and principals and do not otherwise mislead or deceive anyone.

• Public records searches. • Physical observations, measurements, and the like. • Protection of a person, if it is "incidental" to an investigation and if the

investigator complies with the firearm and insurance requirements. • Surveillance, even if covert, provided that investigators do not

trespass or invade privacy.

Concerning insurance, you should know that the right insurance for private investigators will vary from one business to another. If you are a PI, you may need a number of different insurance policies to completely cover your risks. For starters, most PIs require the same general types of insurance as any business:

• General liability: Covers your risk of bodily injury or property damage to another person or business in the course of doing business.

• Property coverage: If you own your building, you may need this coverage to protect your business property.

• Auto liability: Commercial vehicle insurance will protect you whether you drive a business vehicle or drive a personal auto for business.

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• Workers compensation: You may be required to carry this coverage, whether or not you have employees. It provides protection against job-related injury or illness suffered by you or one of your employees. Laws vary by state.

In addition, depending on the type of work you do and whether you hire employees, you may need a number of specialized coverages, such as:

• Assault and battery coverage • Care, custody and control coverage • Invasion of privacy coverage • Fidelity bonds • Errors & omissions coverage

Needs Assessments

What are you being hired to do? It is critical to communicate as much information as possible from the outset, no matter how minute the details may be. Most attorneys hire PIs to locate people or assets, litigation research, opposition research, cross examination research, electronic and field surveillance and monitoring.

What specific services are you being hired to investigate? A potential needs list might look like this:

• Accident / Reconstruction • Arson / Fire • Asset Search • Background Checks • Child Support / Custody • Civil • Computer Forensics / Crime • Corporate • Crime Scene • Criminal • Domestic • Due Diligence • Electronic Data Discovery • Electronic Surveillance • Executive Protection • Financial • Forensic • Fraud

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• Identity Theft • Infidelity / Cheating Spouse • Judgment Recovery • Missing Persons • People Locate / Skip Trace • Polygraph / Lie Detector • Process Service • Public Records • Repossession • Surveillance • Trial Preparation • Video / Photo Surveillance • Workers Compensation • Wrongful Death

It is also important for the law firm to understand what information is potentially attainable and what may not be, within the confines of the law.

Expertise

The attorney may likely want the investigator to have subject matter expertise relating to the situation at hand, be it surveillance, finding a witness, intelligence gathering, due diligence investigation, background investigation, asset search, expert witness. investigation, etc. A private investigator should be able to provide the law firm with examples of previous work done on similar matters.

As we mentioned above, there is a trend moving to research rather than strict surveillance. Investigations here focus on deposition research, involving hours or days sifting through existing depositions, using your research to develop criteria for new depositions or actually interviewing witnesses. Or, spending hours or days digging through court records

When it comes down to selecting the private investigator for the job, some attorneys prefer an investigator with former law enforcement backgrounds. However, in the new digital age, a nerdy PI with computer skills might have a distinct advantage where online research is involved.

For law firms handling cases where the crime or situation at hand has already been committed, supportive evidence for discovery is the largest need. That’s where an attorney needs a private investigator with digital research and surveillance skills. For example, before divorce papers are served, it’s important to catch a cheating spouse in the act. Law firms

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commonly acquire the services of a private investigator to determine if the spouse is cheating. That can involve lots of online investigating, surveillance, and interviewing witnesses.

Infidelity and identifying hidden asset cases also require digital research and at times surveillance. An investigator can’t simply access or hack someone’s financial records, but they can rummage through discarded bank statements, interview witnesses, and film or photograph the subject using property that supposedly doesn’t exist.

Another resource in their digital investigations involves looking at a person of interest’s social media profiles. It’s a similar tactic that law enforcement uses to identify and capture people. In the digital age, self-incrimination happens frequently, which is why it’s also used for insurance claims.

Budgets

The attorney may want you to prepare a descriptive agenda of your objectives and what efforts you will make to accomplish those goals.

The investigation should be conducted in stages, with deliverables provided upon completion of each stage, so the law firm can have a measuring stick to gauge the progress of the assignment.

Contracts

Attorneys are known for demanding engagement letters to retain your services. BE CAREFUL! Included in most engagement letters they will bury indemnity agreements making you responsible for any professional misconduct that violates the law.

Additionally, the scope of the work, the agreed-upon budget, any agreed-upon retainer agreement and a termination clause will likely be included in the engagement letter.

WORKING WITH INSURERS The PI and Claims An investigator working for an insurance company will be hired to work with a variety of different types of claims: personal injury, slip and fall, product liability, workers’ compensation, disability insurance, healthcare and other

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types of potential fraud investigations. Knowing how insurance claims work can be key to properly conversing with insurers and understanding their needs. So, let's get started . . . The PI's work with an insurer typically begins when a savvy insurance adjuster thinks a claim ‘looks’ suspect. Using investigations, surveillance and research, the PI is tasked with uncovering whether a fraudulent claim has been filed. Surveillance is often conducted on a person who has filed an injury claim. Surveillance may find someone who has claimed to have been seriously injured working on top of a ladder to clean gutters, going horseback riding, taking adventurous trips or conducting home improvement projects. In other situations, claims may be complicated and involve several different people such as a doctor who colludes with accident victims to support fraudulent claims. Surveillance can also help expose fraud, such as by recording a person walking normally until he or she reaches a doctor’s office and then begins limping. In other situations, claimants may purchase expensive luxury items, vacations and commodities that are contrary to their regular income, indicating some type of illegal receipt of monies. A private investigator may conduct research into an insurance claim. This may involve reviewing any photographs of the injury or accident, reviewing receipts for property purchases, reviewing repair bills, cross-referencing police report statements with other statements and reviewing other documentation related to the case. Another helpful way that private investigators assist in a case is by conducting a background check on the claimant. This can help identify whether the person making the insurance claim has a history of filing claims and whether he or she has been convicted of crimes such as fraud. Additionally, a private investigator may be able to conduct a background check on a person to reveal personal or financial things about the claimant, such as that the claimant is going through a divorce, has fallen behind on bills, has his or her home in foreclosure or other factors that may influence him or her to try to commit insurance fraud. Another way that private investigators can help in insurance fraud investigations includes a careful review of insurance documents. For example, a claimant may submit falsified documents from a purported doctor’s office or repair shop. Sometimes these documents may be forged. In addition, the PI may review the original insurance application to expose

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any misrepresentations of facts. The claim for itself is yet another source of potential overstatements, excess valuations and/or more misrepresentations.

Claims Departments Within the claims division of a sizable insurance carrier, there may be a corporate office claims department which establishes claims procedures and practices for the entire carrier, a regional claims office which supervises branch claims offices within its jurisdiction, and branch claims offices which supervise claims representatives or adjusters as well as the investigation, evaluation and disposition of all but the largest and most troublesome claims presented to a carrier. The head of a corporate office claims division is responsible for the following: • The development and communication of procedures and practices for the

investigation, evaluation, direction and settlement of claims and the audit of payments of claims to policyholders and other named insureds.

• Verifying that disbursements are proper and in conformity with contract provisions of insurance policies.

• Insuring that policyholders receive the benefits purchased, service and protection.

• Deterring of questionable, unreasonable, inflated, fraudulent or frivolous claims.

• The effective pursuit and supervision of reinsurance, subrogation and salvage recovery.

• Overseeing the establishment and maintenance of efficient and prompt processing and disposition of claims.

• Monitoring significant litigation. • Discouraging unnecessary expense.

Branch Claims Office

The branch claims facility is the office to which most claims are directed. Most branch offices are located in significant population centers. The personnel within a branch claims office handle and supervise claims and issue the settlements.

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The Adjuster

An insurance adjuster, sometimes referred to as a "claims representative," a "claims specialist," an "examiner," a "senior adjuster," a "general adjuster" or an "executive general adjuster," is a professional, trained in the examination, evaluation and dispensation of claims. In addition, a standard part of the responsibilities of any adjuster is to counteract exaggerated, fraudulent or frivolous claims that are brought against a carrier.

Independent Adjusters

A smaller insurance company that does not have branch offices may employ the services of an independent adjuster to provide claims services relative to the investigation, evaluation and settlement of claims. Independent appraisers are typically hired by carriers for several reasons. During certain times of the year, such as hurricane and tornado season or during the early spring when flooding is rampant, the needs of many carriers are increased such that a number of extra adjusters are required. The holidays and summer months are seasons when theft is at a peak, again requiring an increased staff of adjusters. In less densely populated areas, such as small towns and rural areas, the number of claims is not typically large enough to justify staffing a full-time office, so carriers look to independent adjusters to take care of the infrequent number of claims that are filed in such places. An independent adjuster is self-employed, in some cases working for him/herself and in other instances associating with a large group of professional independent adjusters. An independent adjuster may have to pass exhaustive examinations provided by the state department of insurance to obtain a license. Typically, an independent adjuster receives remuneration on a case-by-case basis, charging an hourly rate and recouping expenses. Adjusters do not collect a certain percentage of settled amounts. Independent adjusters should be motivated to arrive at a fair and quick disposition of a claim to avoid being reported to the state insurance department for unethical or underhanded practices. Public Adjusters

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Sometimes referred to as a "loss consultant," a public adjuster also works independently of a carrier, but, unlike an independent adjuster, he or she is typically hired by a claimant. Many public adjusters have scanners in the fire and police departments. Unlike an independent adjuster, a public adjuster works on a percentage of the amount recovered. In some states, a public adjuster must be licensed before he or she can offer his or her services to the public. A competent public adjuster is a professional who handles all the paperwork involved with a claim and negotiates a settlement with the carrier on behalf of a claimant. On average, a public adjuster recovers at a minimum at least 17 percent more than a claimant could by acting on his or her own behalf. Public adjusters are perceived by some carriers as ambulance chasers, and hiring one can result in a carrier giving a claimant a difficult time in processing and settling a claim. However, a legitimate and competent public adjuster is usually thoroughly grounded in the subtle provisions of a policy and the inner workings of the claims department of a carrier.

Line Supervisors

The direct responsibility for supervising adjusters is that of a line supervisor, who specializes in claims surrounding a line or specific type of insurance, such as liability, personal injury, theft, fire, collision, workers’ compensation or tort claims. Typically, a line supervisor has the final word on the disposition or settlement of a claim. A line supervisor usually reports directly to a claims manager who is in charge of a branch office and is rarely involved with a claim.

Claims Adjusting in Catastrophic Situations

Claims adjusting stands alongside marketing and underwriting as the three most important functions of an insurance company, especially since the final value of an insurance contract is only determined in a situation involving a loss. One of the most remarkable trends in the development of insurance over the past several decades has been the organization of a team of insurance

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experts to deal effectively and swiftly with losses in major catastrophes. The result is immediate loss adjustment in an area of a disaster. Insurance professionals, including claims adjusters, sometimes use superhuman efforts investigating, evaluating and settling claims, often working long hours under very stressful conditions. The mobile operation may involve the use of sound trucks to advise policyholders of the availability of loss claims adjustment services. Temporary living facilities may be located. Cleanup crews may be made available. Also, the insurance team may assist the victims in securing lumber and other building supplies to begin needed repairs and reconstruction of their homes.

Interdependency Between the Claims Department and the Underwriters

One of the responsibilities of the claims department of an insurance company is to advise the underwriters about unfavorable laws, areas with an excessive incidence of claims, various cost items and other potentially burdensome items. In turn, the underwriters should advise the claims department about stressful situations developing between the company and any policyholders. When a request for underwriting is submitted by an insurance company, the underwriter must rely on information about the carrier, much of which comes from the claims department. Information such as the length of the claims history, the number of occurrences and the desirability of an account is needed. Claims files assist an underwriter in determining what can go wrong through an evaluation of the costs of different kinds of losses and practices of maintaining reserves. The underwriter uses this information to price the insurance product and to predict the number and size of possible losses. Expenses involved in investigation and negotiation of claims and the cost of litigation can drive the general and administrative overhead and related expenses of an insurance company through the roof if there is little or no cooperation between the claims department of an insurance carrier and that company’s underwriters. Another area of invaluable input involves the clarity and meaning of language used in policies. When an underwriter fashions a policy, he or she may have one meaning in mind that is not consistent with that gleaned by the claims department in their experience with claims processing. New

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policies tend to carry phrases and words that have not been exposed to judicial determination and interpretation. Serious losses are sometimes subjected to postmortem examination. Conferences between the underwriters and the claims departments can help minimize or prevent future problems.

Interdependency Between the Marketing and Claims Departments

One commonalty that exists between the marketing and claims departments of an insurance carrier is that both represent the carrier to the public. Nothing tests the performance quality of an insurance product more than a claim. An unsatisfactory resolution of a claim indicates that the insurance product has failed to perform its intended need and function. The claims department can measure the delivery end of a carrier for the marketing department. Many facts developed from experiences with claims can make for a better insurance product.

Relationship Between the Claims and Loss-Control Departments

A significant amount of information from a claims department can enhance a loss-control specialist’s knowledge of what to guard against in an attempt to reduce losses. Safety improvements and other changes may be warranted. Pre-claim activity should have as its goal the mitigation of losses. Necessary evidence should not be lost or misplaced after a loss. Claims and loss control should work together to prepare and maintain records that are invaluable following a loss. Such a system enhances quality control of the insurance product. The combined input of both departments can be provided to an underwriter to help in the decision about whether an insured’s potential loss is desirable. Cooperation between loss control and claims is especially useful in the area of workers’ compensation. Loss control personnel may possess specialized information not well known to the claims staff, such as mechanical, technical and engineering matters. By their collaborative efforts, they can prevent and reduce losses and solve technical problems that go hand in hand with claims. Claims and loss control cooperation can develop practices and routines that

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help to minimize accidents in the workplace. In the investigation of claims, a loss-control department can provide information to the claims department such as standards, codes, technical opinions and laboratory assistance. Accurate information about losses is important to help emphasize to the carrier the trends in—and resulting costs of—accidents and their effects on premiums and rates and the need for a reliable safety program. Other Private Investigator Specialties The skills of a private investigator can transcend into a multitude of other specialties and developing niches in these areas can expand an investigator’s offerings to potential clientele. Accident/Reconstruction Investigations- Accident and reconstruction investigators are typically hired by either attorneys or insurance companies to determine how an accident occurred, whose fault it is, and if there are ways to prevent this in the future. Accident and Reconstruction investigators work accidents anywhere from cars to marine investigations, to employees, to slip and fall investigations. Adoption Inquiry Investigations- During adoption inquiry investigations, private investigators will work closely with family law attorneys to provide thorough background screenings of potential adoptive families. Also, private investigators can also work the other side of the adoption inquiries, and help adoptees locate long-lost relatives or help a parent who may have had to give a baby up for adoption. Arson/Fire Investigations- Arson investigators are usually brought in by insurance companies or attorneys to investigate the cause of a fire and whether or not it was arson. Generally, arson investigators are retired fire fighters or people with extensive training on burn patterns, accelerants, etc. Asset Search Investigations- Many private investigators offer asset searching as part of their investigative repertoire. Asset search investigation research, generally through public records, the personal property or real estate property held by a person or corporate entity. Asset investigations can be useful for personal injury cases, divorce cases, and business dispute cases. Background Investigations- A background investigation is a thorough investigation into someone’s background for purposes such as hiring a new employee, making an investment, starting a business with a partner,

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investigating a spouse’s new boyfriend/girlfriend, government security clearances, public officials, etc. Every background investigation will be different, as every person is different. The investigation should also be tailored to the client’s main concern, so as not to waste their money or your time. If something is developed in the investigation, it is a best practice to disclose this to the client, even if it was not part of the initial inquiry. A typical background investigation will include a criminal record search, an education and employment search, a check of civil records, and references. This is a generic starting off point for most private investigators and some investigations go as far as initiating surveillance, witness interviews, and asset searches. Bounty Hunter- Arguably one of the more dangerous services a private investigator can provide, bounty hunting or bail enforcement agents are people that track down and bring in someone who (aka criminals) has skipped their bond or bail and has failed to show up for their court hearing. Think: Dog the Bounty Hunter. Child Support/Custody Investigations- Child custody investigations are investigations that observe a child’s well-being and treatment, generally as part of a divorce, separation, or in the case of custodial rights. Often times, distraught parents will hire and investigator because they are concerned about the child’s safety, they want peace of mind, and sometimes it’s because they themselves have been accused of abuse or neglect. Child support and custody investigations primarily involve surveillance of the child. In more in depth cases, investigators will interview witnesses, like family members or neighbors, and conduct background investigations on both parties. The reports for these types of investigations need to be extremely detailed, as they often will be used in court to determine the custody of the child. Civil Investigations- Civil investigations are conducted on behalf of parties involved in a dispute, that is not criminal in nature. Civil investigators will gather evidence and can be hired by either party, as a non-biased fact collector. Civil investigations can include missing persons, child custody, marital investigations, personal injury investigations, and workmens’ compensation investigations. Computer Forensics Investigations- Computer forensics investigations also include cellular device and table investigations as well. In these types of investigations, the purpose is to collect and analyze digital data. Computer forensics can also aid in the fight against cyber crime by analyzing

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client’s computers and devices and determining if the computer is at risk or already compromised and develop a plan of action from there. These types of investigators are trained specifically in the areas of computer and cellphone forensics. Corporate Investigations- Corporate investigations are designed to uncover wrongdoing committed by management, employees, or a third party. Corporate investigations also help protect against theft, compromised customer or company information, liability, damaged reputations. Crime Scene Investigations- Private investigators can also be crime scene investigators, given they have the proper training and education. Most law enforcement agencies already have staffed crime scene investigators, but private investigators are often hired for the defense of the accused to have a second look. Crime scene investigators that are law enforcement are not usually called unless the theft is valued at over $5000. Private investigators can also be called in to conduct burglar investigations as well. Criminal Investigations- While an official criminal investigation can only be brought by an official law enforcement agency, police and federal agents do not have enough manpower to investigation every criminal or potential criminal act. Private investigators can often help victims when there is the suspicion of criminal activity. When police’s hands are tied by bureaucracy and there is not enough time in a day, private investigators can promptly follow-up on leads while time is precious. In addition, private investigators will have the knowledge and wherewithal to correctly collect evidence with proof and documentation. The following are examples of criminal investigations that can and have been conducted by private investigators:

• Arson Investigations • Assault and Battery Investigations • Burglary Investigations • Child Abuse Investigations • Counterfeiting Investigations • Human Trafficking Investigations • Internet Crime Investigations • Kidnapping Investigations • Rape Investigations • Theft Investigations • Terrorism Investigations

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Domestic Investigations- Domestic Investigations are investigations involving instances of domestic problems such as infidelity, fraud, theft, or even abuse that occur in the home. Private investigators will usually conduct surveillance, background checks, sometimes computer forensics, if warranted, public record searches and even skip tracing. Due Diligence Investigations- Due diligence investigations involve the investigation of business, usually before a company merger, company purchase or an acquisition. The investigations cover everything from a company’s finances, management, mission, history, clients, liabilities, company equities, and essentially how the business functions. The findings should provide a complete picture of the company. Elderly Abuse Investigations- With the aging population of baby boomers, elderly abuse investigations are at an all-time high and as with criminal investigations, police agencies are often overworked. Elderly abuse investigations look at alleged inappropriate or criminal behavior towards an elderly person. Elderly abuse can be perpetrated by caregivers, nursing homes, spouses, family, extended family, nurses and other professional healthcare workers. Investigations consist of taking statements, interviewing potential witnesses, interviewing other abuse victims, looking into a medical records search, doing a background investigation on the alleged perpetrator (s), and electronic surveillance can be used too. Elderly abuse can be physical, mental, or emotional in nature. Electronic Surveillance- Electronic surveillance involves the LEGAL monitoring of home, business, or an individual utilizing devices such as CCTV, cameras, video cameras, GPS, and in some cases, legal wiretapping. Electronic evidence can also refer to surveillance done on the computer using email tracking or internet tracking, or mobile phone surveillance. Executive Protection Investigations- Executive protection investigations, refer to the security measures taken to provide safety of anyone from celebrities to dignitaries or anyone else that is at an elevated risk because of their employment status, wealth, or associations. Measures taken during these types of investigations include security systems, armored vehicles, bodyguards, mail screening, background checks for personnel, amongst other precautionary measures. Financial Investigations- Financial investigations are also known as forensic accounting or audits. Most financial investigations involve corporations and also extend to theft, embezzlement, money laundering, tax

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evasion, asset searches, criminal financial investigations. The financial investigation will provide an analysis of the money trail. Forensic Investigations- Forensic investigations can be either criminal or civil in nature, but apply science in order to solve a case. Forensic investigations can look at DNA, fingerprints, computers, cellphones, accounting records; anything that can provide a clear picture of the crime. There are many areas which need forensic investigators: criminal, accounting, pathology, psychology, and even dentistry. Fraud Investigations- Fraud is any course or action involving deception, intentional concealment, omission, stretching the truth, deceit, etc. Fraud investigations will help determine what fraud has occurred and will gather evidence in order to aid the victims involved. Many fraud investigations conducted by private investigators will involve insurance companies hoping to catch people committing fraudulent claims, especially when it comes to workers’ compensation claims. Investigators will employ any number of tactics during these investigations such as surveillance, background investigation, witness interviews, and even asset searches as evidence of possible fraud. Identity Theft Investigations- In the digital age of today, ID Theft is more rampant than ever. In 2013 alone, ID Theft cost Americans $24 Billion. The main types of identity theft are financial (most prevalent), identity cloning and concealment, criminal identity theft, synthetic identity theft and medical identity theft. Identity Theft Investigations involve tracking where theft originated, protecting the client in the future, conducting computer sweeps, and even surveillance, depending on the type of case. Intellectual Property Investigations- Intellectual Property (IP) Investigations can involve anything from helping clients to monitor counterfeit products, copyright infringement, design infringements, and understanding trademark law. IP Investigators use tactics such as anti-counterfeiting investigations, undercover operations, brands comparison analysis, factory audits, amongst many other things. There are private investigation companies that only conduct IP Investigations. Judgment Recovery- Judgement Recovery Investigations are necessary when a judge or court issues a financial judgment ruling as a result of a lawsuit or legal case. In up to 80% of these cases, the money is never recovered, as the judgments go unenforced. A private investigator can use

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asset searches, employment checks, forensic accounting, and skip-tracing to help clients collect their money. Malpractice Investigations- Malpractice investigations, particularly in the medical field, have been a growing niche for private investigators. Most private investigators that conduct these types of investigations will have a background in a medical field such as forensics. Malpractice investigations can involve patient death due to medical error, illegal billing practices, disability due to medical error, or medical negligence. Missing Persons Investigations- Most law enforcement agencies around the world require a 24 to 48 hour waiting period before an adult is allowed to be reported missing. As is known, these first few hours that a person goes missing are crucial to finding them. Many law enforcement agencies are tied up due to thinning resources and cannot devote the time to look for people that voluntarily left or may be living on the streets or may be a juvenile runaway. Private investigators are often tasked with helping to find people in the above situations or locate long-lost loved ones, fugitives (bounty hunters usually take the brunt), locate debtors, cold case missing persons, and other such missing persons scenarios. Private investigators use numerous tactics when searching for missing persons, such as surveillance, talking with urban dwellers (aka homeless people), utilizing databases, social media, conducting background checks, or skip-tracing. Mystery Shopper/Secret Shopper Investigations- Private investigators involved in mystery shopping investigations often investigate customer service, employee honesty, and consumer prices. Mystery shoppers will often purchase something, ask questions, investigate websites and competitors’ websites, check quality of items, and test the customer service. In some states, companies can only hire private investigators to conduct their mystery shopping. Many industries such as automotive, education, financial, healthcare, hospitality, real estate, retail stores, restaurants, and travel and transportation will hire mystery shoppers to ensure that their customers are getting the best customer experience possible. Pre-Marital/Nuptial Investigations- Pre-marital investigations are no longer a taboo or superfluous investigation for the super-rich; they are almost necessary in today’s world, especially with the high rate of divorce. Pre-martial investigations can look into a potential spouse’s financial strength, reputation, any previous (read: unknown) marriages, any lingering affairs, employment status and profile, drinking habits, drug habits, temperament of the potential spouse, family background, children issues, real name and date of birth, property ownership, past bankruptcies, liens,

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and judgments. Pre-marital investigations are essentially background investigations that delve deep to protect the client. Process Servers- Process servers deliver documents that inform a person that there is legal action against them. Process service presents a challenge, as most people do not want to be served and can sometimes be dangerous. A PI Best Practice is to surveil someone and then serve them in a public place, if possible. Many private investigators that are starting out in the private investigator business will start with process serving; it is a good way to gain the trust of attorneys, for future potential business. Public Record Investigations- Public records are used to record significant events in a person’s life such as birth, marriage, divorce, military service, court judgments, law suits, and home purchases. The types of public records that can be accessed are court judgments, credit records, divorce records, child custody records, criminal records, bankruptcy records, property records, prison records, and financial records. Individuals, law firms, and corporations alike hire private investigators to conduct public record searches and in many cases searching public records is standard operating procedure for private investigators to obtain any useful information that may be available to assist in their case. Although there are numerous online record searching companies, oftentimes their records are not complete, they are outdated, they are not going to be able to be used as official documents, and generally not accurate. In addition, the cost to obtain these records is going to be more than the cost of records from a courthouse. Reality Star Background Investigations- Reality television shows are a dime a dozen these days and with that comes great responsibility for vetting potential reality television stars. With scandals like the Josh Duggar incident or Honey Boo Boo’s Mother dating a child molester, more television networks are seeking in-depth background investigations on any of their potential reality television stars. The reality star background investigations consist of the same in-depth delve as a regular background investigators, but many private investigators have made a nice living just conducting background investigations and risk assessments for reality television. Repossession Agents- Repossession agents are generally hired by debt collection agencies, banks, or other financial institutions to take back unpaid possessions or collateral from people in debt. Collateral can be a car, home, business equipment, farm products like livestock, inventory, and personal property. In the United States, repossessions are carried out in accordance

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with the respective state laws and permit a creditor to take back possession of goods if the debtor defaults under the contract that was created by the original interested parties. The most common reasons for default are non-payment and failing to maintain adequate insurance coverage. When an item (most often a vehicle) is repossessed, an agent will usually use a tow truck to take back possession of the item and deliver it back to the interested party. In most circumstances, the owner of the vehicle must be notified of the repossession beforehand. Repossession companies will often have investigative resources to track down and recover the assets. Skip-Tracing Investigations- Skip-tracing is a form of recovery, whether it be debtor or fugitive, or looking for someone for another reason. Skip-tracing involves using records and people to find the person. Records that are used are phone numbers, information on a job application, criminal background checks, utility bills, public tax information, interviewing relatives, friends, and neighbors also aid in the investigation. Surveillance is another valuable tool for investigators in skip-tracing as it allows the investigator to understand the individual, their habits, routines, and schedules. Subrogation Investigations- Under the laws of most states, an insurance company which pays an insured for a loss occasioned by a third party is entitled to be subrogated or substituted in place of the insured with respect to the insured’s rights to sue such third party. The third party can be a manufacturer, building maintenance company, driver of a car; essentially anyone or anything or any company can be liable as the third party involved in a loss. Subrogation investigations can involve personal injury lawsuits, product liability defect, toxic chemical exposure (think asbestos), assault and battery, automobile accidents, and slip and fall accidents. A private investigator will locate and interview potential witnesses, take recorded statements and affidavits, collect police, OSHA, and other incident reports if/when available, gather admissible evidence in the event the case goes to trial, surveillance, photography, specialists’ testimony Surveillance Investigations- Surveillance investigations are one of the most important ways for a private investigator to garner information on a subject. Surveillance is used in missing persons cases, domestic cases, child custody cases, workers’ compensation cases, criminal investigations, and myriad of other cases. There are different types of surveillance that can be used depending on the scope of the investigation; the most common type of surveillance is subject observation, where an investigator can learn about their habits, routines, social habits, and schedules. Private investigators

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may use any number of surveillance tactics during the course of an investigation such as overt surveillance, which is the use of security cameras or cover surveillance where a PI is trailing a subject undercover. Trial Preparation- Trial preparation is preparing raw materials for a court case or hearing that can give the attorney, judge, or jury a better understanding of the facts in a lawsuit. Trial preparation is essential for both parties if they want a chance of winning the case. Trial preparation can include evidence analysis and gathering, forensic investigation, properly prepared witness testimony, any aspect of a medical or criminal investigation, if needed, even an investigator’s report. The private investigator’s main duty is to help the attorney by supplementing the case with the evidence and facts. Investigators can also aid in locating and interviewing witnesses properly and develop any new witnesses. Workers’ Compensation Investigations- Nearly every private investigator at some point their career will work a workers’ compensation case and some PI’s only take workers’ compensation cases. Workers’ compensation is a form of insurance that provides wage replacement and medical benefits to employees who have been injured in the course of their employment. Higher workers’ compensation costs have led to more anti-fraud efforts. Workers’ compensation fraud occurs when a person knowingly or intentionally conceals, misrepresents, or makes a false statement to either deny or obtain workers’ compensation benefits or insurance coverage, or otherwise profit from the deceit. The most common type of fraud investigated is injured worker benefit feud. More cases involving health care provider fraud were referred to district attorneys for criminal prosecution than injured worker benefit fraud. Investigators have found that health care provider fraud was often the most expensive type of fraud in the workers’ compensation system. One out of every four Americans think it is okay to defraud insurers. With numbers like that it is easy to see why it is estimated by the National Insurance Crime Bureau that workers’ compensation fraud costs $30 billion a year. Private investigators use methods like surveillance, interviews and research, background and record checks, and other evidence gathering to combat the fraud on both sides of the spectrum, as private investigators can also combat fraud on the employer’s end. Examples of employer fraud include denial of valid claims, misclassification of workforce and the nature of work being done by the employee (one of the most common types of fraud), refusal to even purchase workers’ compensation for employees, late issuance of disability checks, and issuance of ghost policies to independent contractors and who are actually employees.

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Wrongful Death Investigations- Wrongful death occurs when a person is killed by an accident or there was negligence involved. These claims are filed by the beneficiaries of the deceased and often look to collect recovery of lost wages, lost income, medical bills, loss and suffering, and other costs associated with death. Wrongful death investigations are complicated because the person making the claim has the burden of proof and must provide evidence of negligence in order the prove the case. Investigators looking into a wrongful death investigation will look at any or all of the following regarding the claim:

• Duration of the time the deceased lived after the accident, to determine the amount of possible pain and suffering

• Age of the deceased • General health of the deceased • DNA Testing • Review of any police reports • Witness testimony- coworkers, neighbors, witnesses to the event,

sometimes family and friends • Accident Reconstruction • Potential earning capacity of the deceased • Number of dependents • General economic condition and social status • Marital status • Complete medical bills • Complete funeral expenses • Causal relationship between the death and the accident, which

includes reports from the coroner, the death certificate, the autopsy report, medical history report as well.

It is important to note that the opposing side will be casing this information as well. The main types of wrongful death investigations are workplace investigations, product liability investigations, accident and criminal investigations, and medical or malpractice investigations. There are many facets and niches for private investigators to choose from.

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Surveillance Surveillance is used in almost every type of investigation from domestic cases to insurance fraud and even some background investigations. Surveillance is an incredibly useful and powerful tool used by all private investigators at some point in their career. It is important that investigators understand the laws, the basics of surveillance, the equipment that is available, and that each of them maintain a sense of moral fortitude when conducting these types of investigations. Laws of Surveillance Surveillance laws have been brought about from precedents set by government, whether at the federal, state, or local level. It is the responsibility of each investigator to know the laws of their jurisdiction, as well as any other they may work. Although some of the laws differ, there are ground level laws that must be practiced by all. Informing Authorities In some states, such as Massachusetts, there is a courtesy notification that private investigators must fill out to inform police that they will be in a specific area working on a case. The investigator is not required to let them know the nature of the investigation or whom the subject may be. If questioned, a private investigator is not required to disclose to the authorities what they are doing, but it would be a PI Best Practice to not argue with the authorities and instead leave the area for the time being. Child Photography Laws

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While the states are still sorting out the legislation, there are certain states that are proposing that photographing or videoing minors when the investigator is investigating an adult, should be an illegal act. The legislation would forbid an investigator from intentionally or not intentionally taking pictures or video where minors may be seen. Privacy Laws Courts generally interpret a violation or invasion of privacy where: One intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person. The form of invasion of privacy discussed here does not depend upon any publicity given to the person whose interest is invaded or to his affairs. Invasion of privacy consists solely of an intentional interference with a person's interest in solitude or seclusion, either as to his person or as to his private affairs or concerns, of a kind that would be highly offensive to a reasonable man. The invasion may be:

• Physical intrusion into a place in which the plaintiff has secluded himself, as when the defendant forces his way into the plaintiff's room in a hotel or insists over the plaintiff's objection in entering his home.

• It may also be by the use of the defendant's senses, with or without mechanical aids, to oversee or overhear the plaintiff's private affairs, as by looking into his upstairs windows with binoculars or tapping his telephone wires.

• It may be by some other form of investigation or examination into his private concerns, as by opening his private and personal mail, searching his safe or his wallet, examining his private bank account, or compelling him by a forged court order to permit an inspection of his personal documents.

The intrusion itself makes the defendant subject to liability, even though there is no publication or other use of any kind of the photograph or information outlined.

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Privacy Rights Outside the Home The expectation of privacy in today’s world is a constant, ever evolving concept. However, since September 11th, surveillance rules for the government have changed, but the private sector (as in private investigators) remains steadily unchanged. A main issue for private investigators is the expectation of privacy that someone has in a public area. The boundaries of what is acceptable surveillance in public area is an often grey area for private investigators. It is always a PI best practice to consult with an attorney if any questions regarding the legality of a surveillance arise. Below are examples of where an investigator might get into a grey area regarding privacy in a public area.

Private Clubs In January of 2000, the Court of Special Appeals of Maryland actually ruled in the favor of a private investigator, Hubert Sheppard, after Sheppard snuck into the Maryland Yacht club private yacht club while surveilling Ivring Furman, who was a claimant in a personal injury claim. Sheppard was hired to determine if Furman was substantiating his injuries further than what they really were. The Maryland Yacht Club is a private club that is surrounded by security gates and cameras and has no trespassing signs posted. The Court ruled that Sheppard made the observations while trespassing, but it does not establish a violation of any reasonable expectation of privacy. Furthermore, not every trespass constitutes an unreasonable intrusion and only becomes relevant when it invades a defendant’s reasonable expectation of privacy. Even though the Maryland Yacht club is “private” business and commercial enterprises are generally not as private as a residence. In addition, failure on the part of the Maryland Yacht Club to enforce its own premises warrants the conclusion that the persons operating the club have no reasonable expectations of privacy either. Sheppard was able to obtain footage from the guest public parking lot of Furman sailing on his boat and engaging in heavy labor. Furman was in plain view when he was on his boat in the water, which is a public place. Because any non-trespassing member of the club could have seen his actions in plain view, the fact that Sheppard was on private property when he videotaped Furman was not relevant. As a general PI Best Practice it should be stated that staying off of private property is usually in the best interest of the private investigator and their client, in attempts to ward off potential lawsuits. That being said, as proven with this case, there is no real expectation of privacy at a private

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club. Also, under the Fourth Amendment, parking lots are considered to be public areas and the court saw no reason to treat them differently under civil law.

Private Acts in Public Areas When it comes to surveillance of private acts in public areas, it would be a PI Best Practice to follow the rule of thumb that their footage may someday be used in a lawsuit. Sometimes a subject may be caught doing something very private in public and a private investigator should use their best judgment to determine if what the subject is doing is something that is really necessary to the case. Take for example the case of I.C.U Investigations vs. Jones, where the investigators of I.C.U were conducting a surveillance of Charles Jones for a worker’s compensation case. The investigators of I.C.U in the normal day to day videotaping of Jones, caught him on camera, several times urinating in his front yard. Jones became aware that they had caught him urinating on camera and sued I.C.U Investigations for invasion of privacy. Initially the courts sided with Jones, but it was later overturned because Jones was in his front yard, in plain sight, and therefore had no real expectation of privacy. The lesson here is if it is not vital to the case (such as a subject urinating in their front yard) turn off the camera and make a note of why the camera was turned off. It is best to use your discretion as a private investigator though. If you are working an infidelity case, it sometimes becomes necessary to film or catch private acts that are happening in public spaces, as evidence for your client. This is another grey area in the private acts in public spaces, because invasion of privacy is a hot button issue.

• Balconies- A PI Best Practice in regards to balconies is to remember that it is only considered a public space if it stands up to the test of a member of the general public being able to see the balcony in question, with the naked eye .

• Gyms and other sporting establishments- Another strange and

grey area in regards to invasion of privacy. The gym is a public place that is reserved for members of its facility, much like a private club. However, most gyms have a strict no camera policy, which protects its members. Take for example the case of 2017, where a former Playboy Bunny took an unsolicited picture of a nude, elderly women using Snapchat and proceeded to send the photo to all of her followers. Since the gym, LA

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Fitness, has a strict no cameras policy, the bunny was removed as a member, and charges have been filed against her with the LA County District Attorney’s Office. She ended up pleading no contest to criminal invasion of privacy , but only received 30 days of graffiti removal and thirty-six months’ probation; light sentence considering the crime.

Many times an investigator will have to follow a claimant into the gym, especially when working a workers’ compensation case. It is a PI Best Practice to make sure that they are fully aware and educated of the gym’s policy in regards to cameras and photography before snapping any pictures of the subject.

• Restaurants- Restaurants are a public place, so does one really have an expectation of privacy here? It depends. Even though two people maybe be engaged in a very private conversation, in a very public place (like a restaurant), some jurisdictions have very strict eavesdropping laws. In California, for example, you can eavesdrop until the cows come home, but you cannot, under any circumstances, record said private conversations or use an electronic device in order to amplify your hearing of the conversation. So if you are looking to record the private conversation of the two people, you might want to hold off and make notes of the conversation instead. There was a peculiar case in December of 1999 where NBC was sued by a man named Stephen Wilkins of SimTel Communications, a company that leased 800 and 900 lines. NBC was conducting an undercover investigation of the scam 800 and 900 lines and actually recorded a conversation with Stephen Wilkins at a busy Malibu, CA restaurant. Wilkins sued NBC for invasion of privacy, but ultimately lost as it was determined that any person could have reasonably overheard their conversation, and it was not a private conversation because it was in a public place. Although this case was an exception to the privacy rule, it is still a best practice to know and understand the laws of privacy in whatever jurisdiction you may be working a case in.

• Workplace- Technology has allowed for employers to virtually

monitor almost all workplace communication with respect to e-mails, work chat rooms, and internet browsing habits. The general rule of thumb is that there is no expectation of privacy while one is using an employer owned computer system.

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Employers have the right to monitor and view employees’ emails. In fact, many emails have been used as evidence, during trials to prove wrongdoing or employee misconduct. Under the Electronics Communications Privacy Act (ECPA), employers cannot monitor an employee’s person phone calls, even if those calls are placed from an employer owned phone. The employer may only monitor a personal call if the employee agrees to be monitored beforehand. Cellphones that are owned by an employer are subject to being able to be searched and monitored by the employer. Employers can also search an employees’ workspace, as it is owned by the employer. The expectation that an employee may have in a place such as the lunchroom is near to nothing. The lunchroom is considered a public place and therefore, expectation of privacy does not exist, even if the conversations are private in nature. So why is this important to a private investigator? Many times, private investigators will be tasked with infiltrating a company, whether it be to surveil whether said company is stealing another company’s secrets, or the company suspects employee theft or selling of secrets, etc. A private investigator is limited in what they can record or observe (with a camera), if the footage or audio were ever to be used in a court of law. If an employee openly discusses something like they are selling trade secrets in the lunchroom, it is possible that a recording of this will be admissible in court, but if the conversation takes place behind closed doors, in the employee’s office, it is a no go. An investigative reporter for ABC Broadcasting went undercover at a telephone psychic office to investigate their business practices in Sanders VS. ABC. The reporter subsequently videotaped interactions she had with another employee of the company and in turn the reporter was sued for invasion of privacy. Initially the plaintiff, Sanders won the case for invasion of privacy, but an appellate court overturned the ruling and ruled in favor of the defendant because Sanders could have no reasonable expectation of privacy in his workplace conversations because they took place and could be overheard by coworkers who shared in the office space.

• Churches- Privacy and confidentiality has often been associated with churches, with pastoral confidentiality and all, but what about other forms of invasion of privacy? Take for example, Creel vs. ICE Associates; in this case, the plaintiff,

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Myra Creel was being surveilled by ICE Associates as part of her claim of disability. ICE and Associates were tasked with following her and observing her doing activities at her husband’s church. Creel’s disability claim was dismissed and she subsequently turned around and sued ICE Associates for invasion of privacy and infliction of emotional distress. The churches services were open to the public and viewed as a public place, even if it was a place of worship. The court found that there was no invasion of privacy, but did toy around with the idea of an “emotional privacy” tort, but found that the Creels case did not meet the standards. As far as the claim of infliction of emotional distress, the court really considered allowing validity to this claim because of the distasteful nature of videotaping someone at church; it was ultimately thrown out because there was no explicit prohibition from videotaping church services. From a legal standpoint, the investigator’s behavior, while distasteful, was not extreme or outrageous enough to rise to the level of intentional infliction of emotional distress.

Surveillance and Anti-Stalking Practices

Surveillance of a subject is the most effective way of finding out information about their habits, their whereabouts, their haunts, etc. However, is there a fine line when it comes to surveillance and stalking?

In a New Hampshire case, Miller vs. Blackden, a Private Investigator was accused of stalking after Rebecca Miller’s ex-boyfriend hired Brian Blackden, a licensed PI, to surveil her. Miller had recently retained a restraining order against her ex-boyfriend when he decided to retain the services of Blackden. Blackden watched Miller’s home at night and followed her to her son’s school. The New Hampshire Supreme Court sided with the plaintiff as the defendant could not and would not provide a “legitimate purpose” for following around Miller and also cited that he was exercising client privilege in not disclosing the reason he was surveilling Miller in the first place. Blackden argued that because he was a private investigator that his ”clandestine surveillance” was well within the scope of his job duties and therefore exempted him from anti-stalking laws. The court disagreed saying that he had no legitimate purpose and that he could not provide affirmative proof.

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In another case, Nastal vs. Henderson Associates Investigations, Ronald Nastal alleged that Henderson Associates was stalking him in accordance to a civil stalking statute, as Nastal had observed the investigators following him more than once and had notified law enforcement each time. Ultimately, the Michigan Supreme Court determined that even though the plaintiff observed the investigators following him more than once, this is not a violation of the stalking law because the investigators had the goal of obtaining information for a legitimate purpose, which was that Nastal was possibly committing insurance fraud stemming from an accident.

It is important to note that some states including Louisiana, Arkansas, North Dakota, South Dakota, South Carolina, and Utah all expressly exempt private investigators from anti-stalking laws. Most other states do not and a private investigator could be subject to that state’s anti-stalking laws if they do not have a legitimate purpose for conducting the surveillance. A private investigator, in addition to having a legitimate purpose for surveillance, conduct surveillance in a way that is not harmful or strike fear into a subject, and the investigator must also do their due diligence in learning a client’s motives for the surveillance.

Federal Anti-Stalking Law

In 1996, Congress passed an anti-staking law as part of the Violence Against Women Act (VAWA). Under this law, it is a federal felony to cross state lines to stalk or harass an individual if the conduct causes fear of serious bodily injury or death to the stalking victim or the victim’s immediate family members. It is also a federal felony to stalk or harass on military or U.S. Territorial lands, including Indian country.

Surveillance and Pretexting

One ethical pitfall that occurs with some frequency is pretexting, which is the use of false pretenses as a method of discovery. Pretexting generally involves the use of information about an individual, such as a social security number, to impersonate the individual and mislead information providers into giving out additional information that would generally only be available to the authorized individual. Attorneys, and private investigators, when gathering facts, must avoid making false or misleading statements representing that they are authorized to obtain personal information when in fact they are not.

In Hawkes vs. PIS and Commercial Union Insurance, an investigator from Private Investigators Services (PIS), not once, but twice posed as someone

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that was interested in building a home like Hawkes’, in order to gain access to Hawkes’ home. Hawkes was being surveilled by the insurance company, Commercial Union Insurance, for suspected workers’ compensation fraud. Hawkes gave the investigator a tour of his home and the investigator asked if he could return at a later date with his wife. The investigator returned with a woman and Hawkes invited the couple into his home. During these two instances, the private investigator found out that Hawkes had hired contractors to construct his home, but he had planted trees and bushes on his own. The investigator, after these contacts were made, also surveilled Hawkes painting, shoveling manure, and mowing his lawn with a ride on mower. The investigator, as well as the insurance company, was later sued by Hawkes for invasion of privacy and emotional distress.

Commercial Union filed for summary judgment claiming (1) that Maine’s workers’ compensation act provided the employer’s workers’ compensation carrier with the same immunity from suit as the employer itself; and (2) Hawkes claims are covered by the release he signed when he settled the workers’ compensation claim.

In response to the first argument, Hawkes claimed that if the actions of the private investigator went beyond mere surveillance and constituted independently actionable torts, Commercial Union has stepped outside its role as insurer and has therefore forfeited its immunity. The Court denied Commercial Union’s motion for summary judgment; if the actions of the investigator go beyond surveillance directly related to his claimed injuries, the carrier could, indeed forfeit its immunity.

Three years after the alleged intrusions took place, Hawkes signed a release relating to his workers’ compensation claim. The release included the concluding statement, “This is a final release and settlement of all claims under . . . the Maine Workers’ Compensation Act.” The Court held that the release did not cover common law claims and specifically only related to workers’ compensation claims. The court held that the release was too narrowly tailored to cover the claims against the investigator and the carrier for invasion of privacy and emotional distress.

Surveillance and Technology

Federal Wiretapping Act / Electronic Communications Privacy Act

As an amendment to the 1968 Federal Wiretap Statute, the Electronic Communications Privacy Act (ECPA), codified the common law tort of

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invasion of privacy as it relates to electronic communications. Whereas the Federal Wiretap Statute made it unlawful for one to eavesdrop on or intercept another person's oral and wire (telephone) communications, the ECPA broadened that statute's scope to protect all forms of electronic/digital communications, such as data transmissions between computers, paging devices, e-mails, video transmissions, and telephone voice communications.

Generally, the ECPA prohibits any person (not just the government) from intentionally intercepting an electronic communication, or from disclosing the contents of any intercepted electronic communication. This prohibition applies not only to those who seek to break into an electronic communications system (such as hackers) but also to those who own and operate such systems (such as Internet access/service providers and private network operators).

However, this prohibition does not prevent an employer or agent of a provider of an electronic communication service from intercepting, disclosing, or using the communication in the normal course of his or her employment while engaged in any activity that is necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service. Employers, for example, may monitor an employee for as long as the communication is business-related.

In Epps v. St. Mary's Hospital of Athens, Inc. (1986), an employer monitoring the conversation between two employees, reprimanded one employee who had criticized supervisors. Since this was in the ordinary course of business and the call took place during work hours, and it concerned supervisory employees and the work environment it was considered legitimate.

Also, in Briggs v. American Air Filter Co. (1980), an employer's monitoring of a business call, in which the employee revealed trade secrets to a business competitor, was within the ordinary course of business and justified because the employer had suspicions that trade secrets were being revealed, and he listened only long enough to confirm that fact.

The ECPA provides various levels of privacy protection depending on: (1) the type of system (public or private) where the communication is found; and (2) whether the communication is in storage or in transit. Typically, there are three main types of systems: a private network; a semi-public network or commercial services; and the Internet.

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Private networks are essentially closed systems that operate within the same office. E-mail communications on a private network raise a reasonable expectation of privacy as seen in United States v. Keystone Sanitation Company (1995).

A right to privacy is similarly fairly clear on semi-public networks or commercial services provide e-mail services to individuals or entities for a subscription fee. Typically, access to those networks is password-protected. Computers send messages over a reserved telephone network to the commercial network. Stored on the commercial network, those messages are accessed via password by another member of the commercial service. Such transmissions are subject to a reasonable expectation of privacy per United States v. Maxwell (1995).

E-mail provided through the Internet typically uses ordinary telephone lines and intermediate computers to transfer information. Operated by Internet service providers, Internet e-mail may be stored temporarily in one or more computers. Once stored, the ECPA prohibits any person from unlawfully and intentionally accessing a stored electronic communication without authorization. Stored messages include those in the addressee's mailbox waiting to be picked up by the addressee, and records of private discussions between users. Thus, stored e-mail messages can be obtained only pursuant to a search warrant

However, the ECPA does not provide users of a system with a right of privacy against the operator of the system, at least with respect to stored messages. Since a system can be configured to store all messages that pass through it, the system operator effectively has the ability to review all messages that pass through the system. It is illegal, however, for a system operator to divulge the contents of any communication stored on the system (other than to the intended addressee and other limited exceptions).

With regard to the transmission of any voice or electronic communications, the ECPA prohibits unauthorized interception, use, or disclosure of such communications in transit. Therefore, the interception of private e-mail and other communications in transit requires a wiretap authorization per Jackson Games, Inc. v. U.S. Secret Service (1994). However, there are a limited number of exceptions. For example, no protection exists for communications that are “readily accessible to the general public” such as those in public chat rooms. Also, an Internet service provider may intercept an injurious message if necessary to protect “the rights of property” of the Internet service provider.

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The ECPA provides for both criminal and civil remedies in the event of a violation. Appropriate relief in a civil action may include actual damages suffered by the plaintiff, profits made by the violator, and attorney's fees and costs.

Computer Legislation These types of laws prohibit an unauthorized person from knowingly installing or providing software that performs certain functions, such as taking control of the computer or collecting personally identifiable information, on or to another user's computer. Private investigators are not allowed to install spyware on the computer of a subject as a means to surveil their online habits. Federal Anti-Stalking Law via the Internet Under Title 18 of the U.S. Code, Section 875 ©, it is a federal crime, punishable by up to five years in prison and a fine of up to $250k to transmit any communication in interstate or foreign commerce containing a threat to injure a person. Threats can be transmitted via telephone, e-mail, beepers, or the internet. While this law covers threats, it overlooks and does not apply to a situation where a cyberstalker engages in harassing or annoying another, unless there is a viable threat against the person. Certain forms of cyberstalking may be prosecuted under 47 U.S. Code 223, which makes it a federal crime and a misdemeanor to use a telephone or telecommunications device to annoy, abuse, harass, or threaten any person at the contacted number. The reason that this may be relevant, is again making sure that you know your client’s intentions with regards to why they hired you. As an investigator, if you are associated with a person that has threatened the subject online, and you aid in surveillance or other monitoring activity, you may be liable if you cannot provide a “legitimate purpose” of your surveilling or monitoring.

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States have their own laws regarding harassment and threats of another online and it is important for each private investigator to know, understand, and abide by these laws. Global Positioning Systems (GPS) and Surveillance GPS tracking systems are arguably one of the more effective tools a private investigator can use. GPS can provide concrete evidence as to where a subject has been, are cost effective, and efficient. However, they can also lead a private investigator into a legal battle. The laws of using GPS for a surveillance are murky at best in some states, while in others there are serious rules and guidelines for using a GPS. In addition, federal laws are relatively ambiguous when it comes to the regulation of the GPS devices and private citizens. GPS Legality In a Georgia case that is still on-going, Atkins vs. TFP Company, Melissa Atkins alleged that TFP Company (a private investigation company), violated her right to privacy, trespassed, and inflicted intentional emotional distress on her because they placed a GPS tracking device on her car. TFP alleges that the GPS tracking device was placed on the car on public property and that they only tracked the vehicle on public roads, in public places. In Georgia, private citizens are not bound by the same constraints as law enforcement, therefore, TFP was not required to obtain a warrant. The jury in the case found that TFP was not in violation of any of the charges brought against them. However, Atkins has refiled a motion for a new trial as of April 2017 that is still on-going. In an Illinois case, Troeckler vs. Zeiser, Theresa Troeckler and her daughter, Candice Zeiser, were anonymously tipped off that Troeckler’s car was being monitored by a GPS device made by World Tracker Enduro. Tracking the World, INC, which sells the World Tracker, gave up the name of the person that purchased the tracker, which lead Troeckler to discover that her ex son-in-law, Donald Zeiser, had been using the GPS to track her whereabouts. Troeckler sued Zeiser for intrusion on seclusion, which is a form of invasion of privacy. In order for Troeckler to qualify for this form of invasion of privacy, she would have to prove that Zeiser was intentionally invading her private affairs in an offensive manner that would cause mental anguish and/or suffering. In Illinois, placing a GPS tracker on someone else’s car without their permission is not an invasion of privacy, yet. According to Zeiser’s defense team, “a vehicle travels only through public places and can be readily observed by other drivers, pedestrians, and

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members of the public” and that the GPS tracker was only gathering information that any pedestrian on a public street could gather as well. Troeckler also argued that the placement of the GPS violated her fourth amendment rights, but the Judge said these claims were unfounded as the case United States vs. Jones determined that the use of such device by police was equivalent to a warrantless search and Zeiser’s investigator was not a member of the police. The Judge sided with the defense and dismissed the plaintiff’s claims, however, the case is still on-going. In New Jersey in the case of Villanova vs. Innovative Investigations, Villanova sued the private investigator his then wife hired to follow him, as she suspected he was having an affair. In 2011, the NJ appeals court approved the use of GPS tracking devices to spy on cheating spouses. The ex-husband sued Innovative Investigations for invasion of privacy, but the court found that the installation and the use of the GPS tracking device in their shared vehicle did not constitute a violation of the right to his privacy. Most states have laws that allow for the use of GPS on shared vehicles, or if the person that is placing the GPS (or hiring out) owns the vehicle, there will most likely not be any issue. However, if the GPS is installed on a car not belonging to the person or not shared, it could leave an investigator opened to a lawsuit for invasion of privacy. A private investigator best practice is to check the laws of using a GPS tracker in the jurisdiction you are working and work in the constraints of those laws. Use of Drones Drones, AKA Unmanned Aircraft Systems (UAS), have presented an interesting challenge for such government agencies as the Federal Aviation Administration and also for concerns of citizens in regards to their privacy. The FAA has set forth standards for businesses, private use, and government use. A private investigator would most likely be using a drone for business use and the FAA demands that the pilot of the drone must be at least sixteen years old, must hold a remote pilot airman certificate with a UAS rating, and must pass the applicable TSA vetting. The areas of operation are also monitored and there are off-limit areas in every jurisdiction. Operating Rules

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If a person were to meet all the above rules, they are also subject to operating rules which are:

1. Must fly under 400 feet above ground level 2. Must keep the drone in sight 3. Must fly during daylight or twilight hours 4. Must fly below 100 MPH 5. Must yield right of way to manned aircraft 6. Must not fly over people 7. Must not fly from a moving vehicle unless you are in a sparsely

populated area Privacy Rights and Drones When operating a drone in a neighborhood the US Department of Commerce’s National Telecommunications Information Administration says the following (these are voluntary best practices, but if violated could lead to legal issues):

1. If possible, inform people that they may be in a picture or a videotape beforehand

2. If someone has a reasonable expectation of privacy (i.e. in their own backyard), do not violate that privacy by taking pictures, video, or otherwise gathering sensitive data, unless you have a good reason to do so.

3. Do not fly over people’s private property without their permission.

4. Do not gather personal data, unless you have reason to do so.

5. If sensitive data is discovered, secure it against loss or theft 6. If someone asks that their sensitive data be deleted, it is a

best practice to do so. 7. If anyone raises privacy, security, or safety concerns, it is

important to hear their concerns. 8. Do not harass people with the drone

Drones and Private Investigators Since drones are such a new technology, government agencies are still scrambling to regulate them. Most private investigators choose not to use drones, as there are limitations on when the drones can be used, they are not a good substitute for an actual human, and they could potentially

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invade a subject’s right to privacy and the investigator could find themselves in a legal battle. Barring that none of the above operating or privacy rights are being violated, some private investigators will use drones to aid in their surveillance in public, outdoor areas. Again, the legislation on this is not a science, yet, and it would a PI best practice to contact an attorney or professional prior to using a drone in an investigation.

License Plate Checks A private investigator cannot run a license plate unless they have a legal reason to do so. This means that a private investigator will generally run a license plate only for investigative purposes (i.e. when attempting to locate a person or conducting a background check) or for future use in a court proceeding.

Surveillance Basics Surveillance is used for intelligence gathering and often to obtain evidence in a domestic case or a criminal case. Types of Surveillance There are different types of surveillance techniques private investigators employ to follow their subject (s) during any given surveillance. Generally, any type of surveillance will follow either a close or loose surveillance, and sometimes a combination of both will be required, depending on the circumstances of the investigation. During close surveillance, subjects are kept under constant observation for the duration of the investigation; even if they know they are being followed. In loose surveillance, the subjects do not need to be observed all the time, especially if the subject becomes suspicious that he or she is being followed. A combination of both close and loose surveillance can be also be used, if there is a specific act or event that may need monitoring. Covert Surveillance- Covert surveillance is the most common type of surveillance that private investigators practice. Covert surveillance is just that, meaning undetected surveillance. Covert surveillance involves trailing a subject, whether by human surveillance or using a GPS (if allowed in the jurisdiction) device. This type of surveillance allows a private investigator to observe the subject (s) without (hopefully!) being observed. Overt Surveillance- Overt surveillance is where cameras and other

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devices are noticeable and the subject is aware that they are being followed. This type of surveillance is not typically practice by private investigators, but for example, some claimants that have filed workers’ compensation claims are well aware that they may be followed at any given time. Sometimes, in law enforcement cases, overt surveillance can be used to unnerve suspects. Mobile Surveillance- Mobile surveillance is often referred to as shadowing or tailing. Mobile surveillance is where an investigator is following a moving subject. Mobile surveillance can be conducted in a moving vehicle or by tracking the subject (s) on foot, all depending on the circumstances. Stationary Surveillance- Stationary surveillance is often referred to as fixed surveillance or stakeout. Stationary surveillance involves an investigator staying in one place to observe the subject. Stationary surveillance can also include a surveillance van or truck that is left at a certain place (usually the subject’s neighborhood) to track the comings and goings at the property. Mechanical Surveillance- Mechanical Surveillance is a type of surveillance where technological devices are used in the conduct the surveillance. This type of surveillance is beneficial because it can be recording in different locations, at different times, 24 hours a day, if need be. CCTV cameras are an example of mechanical surveillance; if a PI was hired by a company to catch an employee stealing, the cameras could be set up at different angles, in different locations to help the investigator see many points of view at once. Human Surveillance- Technology can be incredibly useful to a private investigator, but nothing is a substitute for human surveillance. In human surveillance, the investigator is there, in person, either alone or with a team, tracking the subject (s). Human surveillance will often times turn from being fixed to mobile. Surveillance and Evidence Collecting and sorting evidence is of great importance in the field of private investigation, as this evidence may be used at a later date in a court proceeding. Although having video or photographed evidence of say, a worker’s compensation claimant climbing a ladder is extremely helpful, the testimony coming from the investigator and his report and notes, is just as valuable, if not more valuable. That being said, video surveillance must never be edited in a way to show something that did not happen, or

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happened differently than it did. The investigator must not tamper with dates, times, or even lighting. Surveillance Tips Avoiding Pitfalls Especially important when conducting mobile surveillance in a vehicle, obeying traffic laws and other laws is an absolute PI Best Practice. An investigator will want to follow all laws in order to present evidence that may be admissible in court, avoiding traffic tickets and getting burned at the same time, ensuring that their investigations are done ethically in a way that will help to avoid any legal action against the private investigator. It is also important to conduct ethical and lawful investigations to avoid license (if required) revocation and to keep one’s self and others out of harms way. The most common pitfalls when conducting moving surveillance are:

1. Speeding- It is almost inevitable that a PI will need to speed to catch a subject. As long as the rate of speed is not extremely dangerous to you or others, sometimes maintaining a speed that is slightly higher than the posted speed limit is necessary.

2. Traffic Lights- Traffic lights will always pose a problem when conducting mobile surveillance. There is no one size solution fits all to these scenarios. If an investigator happens to get stuck behind the subject, it is a good idea to pull the sun visor down and avoid looking at the subject. This is where having a hat comes in handy, once the light changes, remove the hat or put on the hat to make your appearance different. If your subject runs a light, it is a best practice not to run the light; there is sometimes too much risk involved whether it’s to your or someone else’s safety, or there are police around. If an investigator is lucky, sometimes they may be able to maneuver really quick going right and pulling a U-turn on a perpendicular street; only do this if it is safe enough and not illegal. Again, it is a judgement call.

3. Heavy Traffic Conditions- Traffic can often present a huge problem for investigators, especially in city environments. It is easy to lose sight of a subject when one is trying to navigate heavily trafficked streets and freeways. In these cases, sometimes it is easiest to follow right behind a subject, instead of putting other vehicles in front of you. Most times a subject will not notice you, especially when there is a lot of traffic.

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4. Carpool Lanes- A subject may be with another passenger, or just illegally entering the car pool lane during your moving surveillance. If an investigator is alone, obviously it is against the law to move into this lane. But it may be necessary to use the carpool lane while following a subject, especially if there is traffic. The investigator must always use his or her best judgement and always ensure the safety of others is considered.

Moving/Fixed Surveillance The two types of surveillance that most PI’s will be doing are moving, fixed, or a combination of both; doing either of these alone presents a tricky problem for investigators as most clients will not foot the bill for more than one man surveillance either. If an investigator must go it alone, here are some tips to running a moving surveillance a little more efficiently:

1. Knowing where you’re going- Many PI’s, when on a case for the

first time, will start bright and early, usually around 6 AM, in order to ensure that their subject has not left for work. It is impossible to know exactly where any subject is going, but over time, an investigator will get to know someone’s habits, as most humans are creatures of habit. It also helps to get as much information as you can from the client about the person’s habits, if they know. Sometimes, in domestic cases a client can tip off the PI that the subject is leaving or has plans at a certain time or place. Another helpful tip, with the advent of social media and people wanting everyone to know what they are doing, checking a subject’s social media accounts before heading out on surveillance might help. Scout out the area you will be beforehand, if not in person, at least on a GPS or an actual paper map. It is impossible to know exactly what a subject will do, but knowing the neighborhood you are in is a good practice. While you are in the areas, especially in a neighborhood, it is a good idea to canvas the other cars and vehicles and making notes of who drives which car, if at all possible. Study your subject’s car; memorize any stickers, dents, license plate decals, rims, anything noticeable about the car. It’s almost inevitable that once you are following someone, you notice a lot more cars like theirs. When talking to the client, also ensure that you get as much detail as possible, for example, if you are working an infidelity case, ask the client which way the subject is more likely to take to work, etc. This will help when you are surveilling alone.

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2. Take Cover- Taking cover is all about planning ahead for any

foreseeable situation, being a good private investigator is about being prepared for almost any situation.

• Vehicle choice- Surveillance vehicles should be non-descript

sedans that are not too new and not too old. They should not be pristine, but not horribly dirty either. White, black, silver, and grey are the most popular colors for cars and beige/brown cars have been found to be the most forgettable. The vehicle should have nothing remarkable about it including no stickers, no license plate decals, no limo tint on the windows, no fancy rims on the tires, preferably no spoiler, no handicapped plates; basically, nothing should be memorable about your car. If at all possible, removing the front license plate is also a good idea, but this is illegal in many states. Most vehicles these days are equipped with Bluetooth technology, but this is a great tool to have when conducting a two man surveillance. A PI would also do well not to use anything that looks like a police car or a kidnapper van for that matter. When choosing a van or stakeout vehicle, it is been found that either white or blue is the best color, as most worker vans are blue or white.

• Notes- Note -taking, next to conducting the actual investigation, is probably one of the most important factors of the job. A PI good practice is to have a notebook for each case (notebooks cost less than .50 nowadays). When out in the field, the PI can document everything from their mileage to what the subject has done, what dates and times they followed the subject, anything else of note, and it will all be in one place. Some PI’s may take some of their notes from their other cases along as well in case there is a chance to conduct some work on that case. Blank notebooks are always a good idea to have on hand as well. To protect client privacy, having a locked storage box in the trunk of the car is also a good idea.

• Change of clothes - Having a change of clothes handy is always a best practice. As a PI, you may never know what a surveillance has in store for you. With that in mind, having a “grab bag” in the trunk of your is also essential. The grab should include more clothes, hats, wigs, toothbrush, toiletries, etc in case a case takes you out of town, or you are stuck pulling an all-nighter. Speaking of clothes, do not wear anything opulent or flashy when conducting any type of surveillance. Always wear muted colors that do not attract attention. It is best not to wear

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jewelry of any kind, and if you do, make sure it is not fancy or flashy or memorable. Bright shoes, flip flops, and heels (for women) should also be avoided.

• Back story- When conducting surveillance, it is always best to have a backstory as to why you are there, in case of nosy neighbors or even if the subject approaches you. Back stories can also include props, like having your dog with you (if it is not too hot or cold), using your phone and pretending that you are lost (this one is usually if you are only going somewhere once), or even that you are trying to see if your own spouse or partner is cheating on you. Or sometimes, it is best to leave and come back another day and find another vantage point in which to surveil.

• Avoiding distraction- As tempting as it might be to catch up on a book or a new episode of a show on Netflix, surveillance requires almost 100 percent attention; inevitably, the time you are not paying full attention, is when something happens. On long surveillances, having something to pass the time is crucial. A few ideas would be listening to talk radio, music, podcasts, and even chewing gum to keep your mind active and engaged. At least once an hour, if possible, get out of the car and stretch your legs to avoid poor circulation, plus this also helps awaken the mind.

• Nature Calls- Again, inevitably, the time you leave a subject to go to the bathroom, will be when something happens. Men have the advantage when it comes to using bottles and other such containers, but women have a harder time. There are a few devices on the market now that specifically cater to women, the most famous being the “Go Girl”. On long surveillances, holding the urge will only lead to more problems; it is best to be prepared. If it is absolutely necessary to go the restroom, this is why it is important to know the area, so you can quickly locate the nearest one.

• Snacks/Water- This trick seems the most obvious, but is often the most overlooked. Especially during a long surveillance, an investigator will get hungry and will also need to stay hydrated. Packing a cooler with meals, snacks, and water will only help with preparation. Also, packing healthy meals and snacks is essential. Healthy food helps sustain one’s blood sugar levels and will help keep an investigator alert versus unhealthy, sugar and fat packed foods which will cause spikes in blood sugar and lead to being less alert and groggy.

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• Tech Items and other Gadgets- Technology helps every investigator with each case and is increasingly becoming better and more efficient. The problem? Chargers! It is important to be prepared with adapters in one’s car that can charge phones, cameras, audio recorders, basically anything that needs to charge. In addition, batteries, of all sizes should be on hand as well (or in the grab bag). Flashlights are not high-tech, but should always be on hand. Make sure that the time/date stamp is correct on any camera that may be in use during the surveillance. Also, if an investigator is using a cellphone as the camera, there are apps that are available that can date and time stamp pictures. Another problem is not knowing how to use your tech items. Many private investigators will take photography classes in order to learn the best angles, lighting, etc in order to learn to work their cameras to get the best possible pictures.

3. Follow the other person- This technique is usually used on

domestic cases, but if the client knows who the other person is, sometimes it may be easier to follow that person than the actual subject. Some subjects are hard to catch because they drive recklessly, even when they do not suspect they are being followed.

4. Practice, Practice, Practice- Anticipating what a subject will do

is not a science, but after years of surveillance work, investigators can often times predict what someone will do. Practicing driving in all conditions, be it traffic, open road, pedestrian filled streets, etc, will help an investigator become better at predicting what move that you will need to make when a subject makes a move.

5. Mobile Surveillance on Foot- Surveillance on foot is generally

harder than mobile surveillance in a vehicle because the subject is more likely to notice someone following him or her. If the case calls for it, having a dog with you, especially in a neighborhood setting, is a great start. If, for example, you are tailing someone at a mall, it is best to keep distance between you and the subject and also keeping a kiosk or people between you as well, to help with cover. When following a subject on foot, it helps to also have items with you that will help change your appearance such as sweaters, glasses, or hats. For women, changing your hair from an up position to a down position or vice versa, will also change your appearance.

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Private Investigator Lingo Affidavit- An affidavit is a written declaration made under oath. A.K.A- AKA is an abbreviation for “Also Known As” or an alias. Arbitration- Arbitration is a form of alternative dispute resolution; the parties involved in a dispute will use an arbitrator to oversee the dispute by reviewing evidence and making a legally binding determination to solve the dispute. Arbitration can be bonding or non-binding. Asset- An asset can be a person that is helpful on a case or an item of value such as a person’s home, valuables, cash, etc. Bail Enforcement- Bail enforcement is the act of locating and apprehending bail-secured defendants who have jumped bail. Bail Enforcement Agent- A bail enforcement agent is someone who is tasked with locating and bringing in defendants that jump bail. Breaking & Entering- AKA Burglary. Breaking and entering is the criminal act of entering a residence or other enclosed property through force without authorization. If someone intended to commit a crime, it is considered a burglary. If no intent exists, then the breaking and entering will most likely be considered an illegal trespass. Burned- Getting burned, also known as “being made”, occurs when the subject becomes aware that they are under surveillance. Generally this term is used when covert surveillance is being conducted. Canvassing- Canvassing can mean a few things in the world of private investigations. During surveillance, if an investigator loses the subject, they may canvass the area to relocated the subject. Canvassing can also mean searching the neighborhood for witnesses or conducting pre-surveillance. Chain of Custody- Chain of custody is the legal documentation showing the paper trail, custody, control, transfer, analysis, and disposition of physical or electronic evidence. Claimant- In insurance terms, the claimant is the person that has made the initial claim.

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Claims Adjuster- Claims adjuster is a person who investigates insurance claims by interviewing claimants, witnesses, reviewing police or hospital records, and inspecting property damage. Class Action- Class action is a type of lawsuit where one of the parties is a group of people who are represented collectively by a member of that group. Confidentiality- Confidentiality is a set of rules or a promise that limits access or places restrictions on certain types of information. Conflict of Interest- Conflict of interest occurs when a private investigator has a duty to their client, but another party’s interests would make it near impossible for an investigator to remain impartial. For an example, an investigator would generally not help a husband and a wife going through a divorce. Counter surveillance- Counter surveillance is attempting to determine if your client is under surveillance or the act of avoiding being surveilled. Covert- Covert means concealed or hidden. Database- A collection of information that has been systematically organized. Defendant- A defendant is a person or could also be a business or institution who is being sued or accused of something in a court of law. Deponent- A person that is being deposed. Deposition- A deposition is a statement taken under oath, which is usually written or recorded, that may or may not be used in court. Drive-by- Drive-by to a private investigator means that the investigator will check a subject’s residence or place of work or other area where they may be, to check to see if the subject is around. Due Diligence- Due diligence is the process of systematically evaluating information to identify any risks during a transaction. Eavesdropping- Eavesdropping is the practice of listening to the private conversation of others without their consent.

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Embezzlement- Embezzlement occurs when money or property is taken by a person with whom said money or property has been entrusted. Most often employees are convicted of embezzlement against their employer. Errors & Omissions- E & O is a specific type of professional liability insurance that aims to protect an investigator if a client or subject was to ever sue the investigator. Evidence- Evidence can be anything including records, testimony, material objects, DNA, etc that is presented at a trial in order to prove or disprove a fact. Fact- Something that is known to have existed or an assertion that can be proved. FCRA- FCRA stands for the Fair Credit Reporting Act. FCRA act is a federal law that was enacted in 1970 and regulates how consumer reporting agencies use the population’s information. Felony- A felony is typically a criminal offense that is punishable by prison time or death, depending on the crime. Fishing- Fishing occurs when a subject or claimant suspects that they are being followed and maneuvers in a way that would make it obvious that they are being followed; such as if they turn into an abandoned parking lot. FOIA- FOIA stands for the Freedom of Information Act. The FOIA is a law that gives the people the right to access information from the federal government. Fraud- Fraud is any intentional misrepresentation, concealment, or omission of material facts done with the purpose of deceiving another which can cause harm to that other person or business. Garbology- Garbology is the process of going through trash in an attempt to obtain information. GPS- GPS stands for Global Positioning System, which is a system comprised of satellites that orbit the planet and send out very closely time signals. The GPS receptors on earth receive these signals and can calculate the receivers’ latitude, longitude, and altitude. Hearsay- Hearsay is something that cannot be substantiated and is essentially a rumor.

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Heated- In relation to surveillance, heated, means that neighbors are suspicious of an investigator’s presence in an area; it can also mean that a subject is suspicious about an investigator’s presence as well. HIPAA- HIPPA stands for the Health Insurance Portability and Accountability Act; it was passed in 1996 and is legislation that provides data privacy and security provisions that safeguard medical information. Impeaching- Impeaching means to question a witness’s reliability or truthfulness of their testimony. Informant- An informant is someone that is cooperative in providing information during an investigation. Informants are generally compensated. Information Brokers- Information Brokers are individuals or companies that have access to specialized sources of information and can use advanced techniques to gather information; they often resell to private investigators. Inked Fingerprint- An inked fingerprint is a fingerprint that has been intentionally recorded with the use of printer ink and recorded on a standard fingerprint card. In Pocket- In terms of surveillance, in pocket means that the whereabouts of the subject is known to the investigator or someone on the investigation team. Intellectual Property- Intellectual property, commonly referred to as IP, is the legal claim to something that is created by a person or person; examples of IP include copyrights, trademarks, and patents. Interrogation- Interrogation is the practice of interviewing persons in order to obtain information regarding offenses that are criminal in nature. IP Address- An IP address is an identifier for a computer from which something originates; these are individual like a telephone number. Judgment- Judgment is a final determination through a court of law that sets forth the rights and liabilities of the parties in a lawsuit. Judgments are generally financial in nature. Latent Fingerprint- A latent fingerprint is a fingerprint that is not visible to the eye, but can be discovered through dusting or fuming.

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Liability- In insurance, liability means a claim against the assets, or legal obligations of a person or organization, which has come about due to past or current transaction or actions. In law enforcement, a liability is the responsibility for the consequences of one’s acts or omissions and is punishable by damages (aka money) or criminal punishment. Libel- Libel occurs when someone’s or a company’s reputation has been defamed by a published false statement. Mail Drop- A mail drop is also known as a commercial mail receiving agency. With a mail drop, a customer can receive mail and other deliveries at an actual street address versus a po box, which cannot receive courier packages. Malpractice- Malpractice is a tort in which an instance of negligence or incompetence has occurred on the part of a professional and which results in an injury or loss to another. Misdemeanors- Misdemeanors are minor criminal offenses that are lower than felonies and are generally punishable by fines, light jail time, or forfeiture. NCIC- NCIC stands for the National Crime Information Center. The NCIC is an electronic clearinghouse of crime date that can be tapped into by nearly every criminal justice agency; it helps criminal justice professionals apprehend fugitives, locate missing persons, recover stolen property, and even identify terrorists. Negligence- Negligence is the failure to use reasonable care and which may result in injury or damage to another person. PACER- PACER stands for Public Access to Court Electronic Records and is an electronic system that provides online access to US Appellate, District, and Bankruptcy Court Records and documents nationwide. Parole- Parole is the temporary or permanent release of a prisoner on the premise that outside the prison, they will maintain good behavior. Perjury- Perjury is the intentional act of swearing a false oath or of falsifying an affirmation to tell the truth, whether spoken or in writing, concerning matters material to an official proceeding.

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Permissible Purpose- Permissible Purpose is defined in Section 604 of the FCRA and is the permissible purposes under the law that define whether or not a consumer report can be accessed. There are eleven permissible purposes defined under the code. Plaintiff- A plaintiff is a person or a company that brings a case against another person or company in a court of law. Plea Bargain- A Plea bargain is an agreement in a criminal case between the prosecutor and the defendant where the defendant agrees to plead guilty to the crime in return for leniency on their sentence for that crime. Point Man- The point man on a surveillance is the person who has physical sight of the subject. Polygraph- A polygraph is a way of detecting lies through measures that record physiological indices such as blood pressure, pulse, perspiration, and respiration while the subject is asked a series of questions. Premise Liability- Premise Liability cases occur when a property owner has been accused of being negligent by not taking proper precautions to maintain a safe property and has caused injury to another, while on the property. In insurance fraud cases, the most common type of premise liability is “slip and fall” accidents. Pretext- Pretexting is a lie, ruse, or subterfuge that is typically employed by private investigators to encourage someone to reveal information that is necessary to solving the case that they would not normally share with an investigator. Privilege- Privilege, in terms of private investigation, is a special right that is reserved for some people that is not available to the public at large. An example would be marital privilege in which a husband cannot be forced to testify against his wife and vice versa. Probation- Probation is a period of supervision ordered by the court over a criminal offender in which the offender must follow certain conditions set forth by the court in order to remain out of prison. Pro Bono- Any professional work that is undertaken voluntarily and without payment; some private investigators will offer their services pro bono to help the community or a person in need that cannot afford their services.

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Recorded Statement- A recorded statement is a statement made by a witness, claimant, or other person involved in a case, that is electronically recorded and covers the facts of the incident. Release- A release is signed document by an insured or third party claimant relieving an insurance carrier of any further liability; this is generally made after a claim has been paid by the insurance company. An information release is a written authorization by a person permitting the sharing of or transfer of their protected information. Repossession- Repossession is the forced or voluntary surrender of property as a result of the person’s inability to pay for the property. Respondent Superior- A respondent superior is a common law doctrine that an employer is liable for the actions of an employee when the employee has acted wrongfully. Retainer- Retainers are money paid by the client to obtain the services and commitment of an investigator. A retainer is essentially a deposit. Robbery- A robbery is the theft of something by use of force or threat of force. Roping- In conducting investigations, roping, is the process where an investigator creates a situation where the subject does something that they are not supposed to do, and the investigator records this; Roping is highly unethical. An example of roping is using a decoy (such as an attractive woman) to get a man drunk, and then as he leaves, call the police to report him drinking and driving. In insurance investigations, roping involves getting the claimant to do something laborious in nature and then record this act. Search Warrant- A search warrant is an order that a specific location, like a house or car, can be searched for items, which if found, can be used as evidence in a court of law. Service of Process- The service of process is the notifying of a person that he or she has been named as a party in a lawsuit or has been accused of an offense. Service of Publication or Notification- Service of publication or notification is a method whereby an individual that is being named in a lawsuit or being accused of an offense, is served papers without physically

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laying the papers in their hands. These notices can be used when a person cannot be located and can be published online or in a newspaper. Once this has been done, and a period of time has passed, the person is considered to be served. Signed Statement- A signed statement is a written declaration that is signed under penalty of perjury by a claimant or witness. SIU- SIU stands for Special Investigations Unit; generally SIU refers to a unit in an insurance company that investigations insurance fraud. Skiptracing- Skiptracing is the process of finding someone that is missing, lost, or in hiding. Slander- Slander is the spoken statement that defames a person or company’s reputation. Stalking- Stalking is the unwanted or obsessive attention by an individual or group of people towards another person and these stalking behaviors are generally related to harassment or intimidation. Subrogation- Subrogation is a legal right retained by most insurance carriers; this right gives the insurance company to legally pursue a third party that contributed to an insurance loss to the insured. Subpoenas- A subpoena is a witness summons that is issued to compel a witness to testify or produce evidence under a penalty of failure. A subpoena is court ordered. Subpoena ad testificandum- This is an order for a person to testify before the ordering authority or face punishment. Subpoena duces tecum- This is an order for a person or organization to bring physical evidence before the ordering authority or face punishment. Suspect- A suspect is an individual that is usually suspected of committing or aiding in a crime and is under investigation for said crime. Sweeping- Sweeping refers to technical counter surveillance methods and involves finding and removing “bugs” or covert listening or video devices. Swoop and Squat- A swoop and squat is an insurance fraud scam wherein a staged car accident takes place. The alleged fraudster will cut off another

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vehicle (usually a large semi-truck) and then slam on their brakes, causing the truck or vehicle to rear-end them Testimony- Testimony is evidence that is given by a competent witness that is under oath in a legal proceeding. Theft- Theft is the wrongful taking of someone else’s property without their permission. Tort- A tort is a civil wrong-doing that unfairly causes someone harm or a loss and results in legal liability for the person or company that was complicit, contributed, or committed the wrong-doing. Trade Secret- A trade secret is a formula, practice, process, design, instrument, pattern, commercial method, or compilation of information that is not generally known or reasonably ascertainable by others. Trespass- To trespass is to enter the owner’s land or property without their consent or permission. VIN- VIN stands for Vehicle Identification Number, which is a unique serial number that is assigned to every automobile by the manufacturer. Warrant- A warrant is a written order that directs the arrest of a person. Wiretap- A wiretap is a monitoring of telephone conversations by a third party, usually to gain information by covert means. Witness- A witness is a person that sees and event and may have information pertinent to an investigation. Work Product- A work product is the writings, notes, memoranda, reports on client conversations, conclusion, opinions, legal research, or theories that re confidential and are not required to be submitted in a discovery request or subpoena. The reports of a private investigator that is hired directly by an attorney are considered to be work products. Writ of Execution- A writ of execution is a court order that is put in force judgment of possession that commands that certain actions cease or be taken.

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