By Dave Pettinari
TAC Forensics and Investigations
A mother calls a private investigator wondering whether or not she can help track where her footloose, wild, and tight-lipped 16-year-old daughter, a bit reckless with her newfound freedom, goes in her car on Friday and Saturday nights. A suspicious husband calls asking the PI to track his wife, whom he suspects of having an affair.
Old-fashioned gumshoe surveillance works in these situations. Hang low nearby, and when the subject enters the car, follow him. But "getting made," where the subject becomes aware you are following them, or losing the tail at a stoplight, can derail these investigative efforts. Besides, it is
expensive.
Clients might be able to afford to pay $75 per hour times many hours of human surveillance. Global positioning system technology can do the job for much less, as it takes perhaps 10 seconds to place one of these magnetic units under a car. But, with the recent arrest of a Colorado PI caught planting a GPS tracking device on a car in a public parking lot, many PIs
are wary of using them.
Law enforcement has used GPS devices for years, and private investigators have used them for surveillance to detect misuse of equipment, and in child-custody violations, insurance fraud and marital infidelity cases.
The GPS listens for satellite radio signals and calculates how long the signals take to arrive. The tracking units must receive signals from at least three satellites to triangulate. This provides a highly accurate estimate of latitude and longitude through a cellular network (real-time GPS
units) or is recorded on the device that is retrieved later (passive GPS units).
PIs who use GPS attach these devices to a vehicle, then monitor and track the vehicle's movements, sometimes from a web site. They can also program them to transmit signals from a cellular tower to a base unit to report location in terms of longitude and latitude, tracking how long the vehicle stays at that location, and report where the vehicle is headed next.
Should a PI embrace this technology, originally developed to assist U.S. military forces, or shun it? What would be legal to do to accomplish investigative missions, and where do the legal landmines lie? Could it be considered wiretapping (usually not) or cause violation of privacy statutes (maybe, depending on the state law)?
What would happen if a PI gives the client minute-by-minute updates on the location of a tracked spouse's vehicle, and the husband ends up shooting the wife based on this information?
Would each new genre of case call for a legal opinion before proceeding?
The short answer is, "be careful." Since the technology is new, case law on the topic is in its infancy. GPS surveillance may or may not be legal depending on the type of device and on the location.
Two cases in the western U.S. have said that police using GPS without a warrant did not violate the Constitution based on so-called Bird Dog cases. U.S. v. Knotts (1983) said using this technology, a lower-tech predecessor to the GPS, amounted to simply "augmenting the sensory faculties" these officers had since birth. Next year, in U.S. v. Karo, the Supreme Court
ruled that more Fourth Amendment oversight was justified when the Drug Enforcement Administration attached a bird dog device to a delivery to a drug house. The court said this action crossed a threshold under the federal constitution from monitoring things in public view to continuing to monitor after the device entered a private residence. Law officers must also
consider whether their actions are legal under their state constitutions.
The California Scott Peterson investigation was one case where investigators used this technology to track Peterson to the ocean several times after he murdered his pregnant wife, and this evidence was admissible in court.
Can these law enforcement cases provide similar justification for PIs who primarily use GPS in domestic investigations and in civil cases? Might PIs track vehicles in the open, but come up against a potentially litigious situation if they track the vehicle all the way into someone's private
garage? Would they be permitted to install and retrieve GPS devices in a public place, but not on private property, as long as they did not commit a crime -- such as breaking into the car, tapping into the car's power supply, or altering the car's driving characteristics?
Keep in mind that police have a much higher standard to meet than PIs do because the U.S. Constitution and most state constitutions prohibit government intrusion onto private property without a warrant. Even so, PIs can be sued if their actions are perceived to violate one's rights.
What can PIs do, and what cannot they not do, with these devices? Most states would permit the following:
. Businesses tracking their own vehicles or materials, with informed consent of the employees.
. Domestic applications where husband and wife jointly own the vehicle. However, if the spouses have separate residences, this could pose a problem.
. Use without consent of the subject in all public areas.
. Use on the investigator' s vehicle to track routes during mobile surveillance.
To ensure he or she is on the right side of the law, the PI or police officer must get permission to install the device, either from the courts or from the property owner. And, morally speaking, the PI must inform his or her client of the device's proposed use, as clients can be held liable for
illegal use as well. It would also not be a bad idea to contact the state's attorney general to see what state laws might preclude or limit this approach to surveillance.
Some PIs attempt to distance themselves from responsibility for missteps by requiring clients to install the devices themselves on cars they own, or have the units installed at dealerships during routine maintenance visits. A contract may spell out that the client cannot use the information to
confront, stalk or harm the tracked person.
Even so, in marital fidelity/integrity check cases, the PI should search police, sheriff and court files to ensure no restraining orders exist, as well as no history of domestic violence. They should also be keenly aware of privacy, trespass and criminal mischief statutes, and the local police
attitudes toward use of this technology by PIs.
From a legal and financial standpoint, some PIs require clients to purchase the devices outright in case they are discovered, lost, stolen or damaged.
With all the above caveats, technology is still not a solution that replaces time-tested investigative techniques and real eyes, ears and brains. A piece of equipment cannot tell anyone what the wife did after she left her car and went inside the bar, or whom the child talked to or what he or she did along the route while being monitored.
GPS is one more tool in the kit bag, but PIs must use it only after understanding legal issues that could expose the investigator to arrest or lawsuit. Remember, even murderers, child molesters and cheating spouses have rights.
Dave Pettinari, a retired sheriff's commander, writer, computer forensic examiner, and university professor, is a Colorado private investigator based in Beulah, just west of Pueblo. He can be reached at davepet@fone.net, and on the Internet at http://www.tacforensic.com.
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