Surveillance In California

Surveillance isn't like what you think! And, it isn't so easy that anyone can do it. It's not just sitting on a park bench with a fedora hat on looking over the top of a newspaper watching your target as they undertake a romantic interlude with somebody other than their spouse. It's not about hiding in the shadows of seedy red light district.... That is romantic stuff of cheap spy novels and bad television.

And, in my opinion, anyone who refers to any surveillance operation as a, "Stake Out," surely doesn't know a darn thing about what they are talking about.

"While some think of surveillance as 'following,' it actually means the continued observation of people, places, and things to obtain information of investigative significance.

The Merriam-Webster Dictionary defines surveillance as:

Main Entry: sur• veil• lance

Pronunciation: \sər-ˈvā-lən(t)s also -ˈvāl-yən(t)s or -ˈvā-ən(t)s\

Function: noun

Etymology: French, from surveiller to watch over, from sur- + veiller to watch, from Old French veillier, from Latin vigilare, from vigil watchful - more at vigil

Date: 1802

: close watch kept over someone or something (as by a detective); also : supervision

In this article the title Investigator and Operator will be used interchangeably.

Surveillance can be static or dynamic. That is stationary or moving respectively. It can be physical or technical. Physical surveillance is conducted personally by one or more Operatives of a surveillance detail or team. Technical surveillance involves the use of technologically advanced tools such as GPS units, pinhole cameras, night vision devices, parabolic microphones, audio recording devices, digital and still photography, and videography. Furthermore, surveillance is part art and part science. It is one of the most complex tools that any Investigator can use. It takes a very mercurial Operator to pull it off successfully.

Why is surveillance used?

Surveillance is extremely versatile, and there are several reasons why anyone might use surveillance as a tool in an investigation. Insurance companies use surveillance to confirm injuries claimed by their insured(s) and claimants during the adjusting process. It uncovers frauds perpetrated against them and saves us all the costs of higher premiums. Sometimes Attorneys have surveillance conducted to confirm details of complaints filed. In doing this they can use the evidence obtained to get their case dismissed or aid in mitigating the amount of potential settlement or sentence. Businesses experiencing internal theft/shrinkage may choose to conduct a surveillance of their premises during business hours or their employees. Businesses that have people working in the field may wish to confirm that their employees are completing their assigned tasks in a professional manner and being wisely utilized. Businesses may conduct surveillance upon their competitors. Individuals may suspect that their spouse is unfaithful and want to confirm this or gain peace of mind. Parties involved in divorce proceedings may wish to use surveillance to help determine if there are assets being hidden by the opposite party. Or in issues of a child custody battle surveillance can be used to confirm who is really taking care of the kids, or God forbid, if the kids are even being taken care of and not neglected. Surveillance even has a place in missing persons investigations.

Who should conduct surveillance?

In the private sector a Private Investigator should be used to conduct surveillance. Some are better at it than others. Some Private Investigators have a background in law enforcement and have conducted surveillance in that capacity. There are those too that have a military background wherein surveillance was utilized in their service of our Country. There are also opportunities for licensed Private Investigators to gain training in surveillance.

Surveillance Operators do not conform to any one physical model. I believe there is a place for both men and women of all shapes, sizes, races, and backgrounds. However, there are some common denominators to good Operators. First and foremost they must want to be a Surveillance Operator and really enjoy, if not thrive on, the "hunt." They must be an expert in surveillance procedures and also have a practical knowledge of the tactics used based on experience. The Operator needs to be knowledgeable of counter-surveillance techniques as well. They should have an inconspicuous appearance. In a perfect world they would be the type of person that blends in as a face in the crowd that nobody regularly notices. Due to the complexity that this type of investigation entails it is essential that the Operator have a keen sense of judgment and the ability to use rational logic in reacting to any given situation or circumstance as it presents itself on the fly. The Surveillance Operator must also have good perception in order to observe something and then deduce what most others might not. They must also be resourceful. There is a necessity for the Operator to be able to take in and later recall peoples, places, events, times and other pieces of data that are of importance to the investigation. The Operator absolutely must have a high degree of self restraint and patience. On top of all this the Surveillance Operator must have a working technical understanding of all equipment to be used in the course of any investigation.

Paramount to all of these traits the Investigator must know the applicable laws that pertain to when and how surveillance can conducted and the rights to privacy.

What are the legalities of surveillance?

The first thing that everybody needs to understand is that Private Investigators by examination and licensure have an extensive knowledge of the laws that are applicable to conducting surveillance operations. Most "John Q. Public" are not versed in the legalities and in such get themselves in dire trouble.

I'm not an Attorney, so I cannot and will not give my interpretation of law here. Nor should anything written here be construed as legal advice. However, there are multiple laws that govern surveillance investigations. Some are criminal and some civil. Almost all deal with the admissibility of any evidence obtained during surveillance.

As well, it needs to be reiterated that we are talking about surveillance in the private sector . Private Investigators are not Agents of the Government. If that were the case the laws surrounding this type of investigation would be drastically different, more extensive, and encompassing.

California Civil Code Section 1708.8 (A) and (B), "Invasion of Privacy," states:

1708.8. (a) A person is liable for physical invasion of privacy

when the defendant knowingly enters onto the land of another person

without permission or otherwise committed a trespass in order to

physically invade the privacy of the plaintiff with the intent to

capture any type of visual image, sound recording, or other physical

impression of the plaintiff engaging in a personal or familial

activity and the physical invasion occurs in a manner that is

offensive to a reasonable person.

(b) A person is liable for constructive invasion of privacy when

the defendant attempts to capture, in a manner that is offensive to a

reasonable person, any type of visual image, sound recording, or

other physical impression of the plaintiff engaging in a personal or

familial activity under circumstances in which the plaintiff had a

reasonable expectation of privacy, through the use of a visual or

auditory enhancing device, regardless of whether there is a physical

trespass, if this image, sound recording, or other physical

impression could not have been achieved without a trespass unless the

visual or auditory enhancing device was used.

Furthermore, California Civil Code section 1708.7 (A) and (A)(1), "Stalking," reads:

1708.7. (a) A person is liable for the tort of stalking when the

plaintiff proves all of the following elements of the tort:

   (1) The defendant engaged in a pattern of conduct the intent of

which was to follow, alarm, or harass the plaintiff. In order to

establish this element, the plaintiff shall be required to support

his or her allegations with independent corroborating evidence.

Taking all this a step ahead, California Penal Code section 602, "Trespassing," lists several instances where the uninformed might find themselves in violation of the law while conducting surveillance.

Specifically the topic of criminal Invasion of Privacy is covered in California Penal Code sections 630 through 638.

Not to go into a deeper subject and discussion than the purpose of this article, but I think the topic GPS tracking devices needs to be touched upon here.

The internet and "spy shops" in shopping malls are filled with advertisements and working models of GPS tracking devices that tout being able to be placed secretly upon a vehicle or person and allowing the device to be tracked over the internet real time (we're far from days of a homebrew "bumper beeper" made from electronic parts bought at Radio Shack).

Use of these devices by anyone other than a Law Enforcement Officer is regulated by California Penal Code Section 637.7, which explains:

637.7. (a) No person or entity in this state shall use an

electronic tracking device to determine the location or movement of a

person.

   (b) This section shall not apply when the registered owner,

lessor, or lessee of a vehicle has consented to the use of the

electronic tracking device with respect to that vehicle.

   (c) This section shall not apply to the lawful use of an

electronic tracking device by a law enforcement agency.

   (d) As used in this section, "electronic tracking device" means

any device attached to a vehicle or other movable thing that reveals

its location or movement by the transmission of electronic signals.

   (e) A violation of this section is a misdemeanor.

   (f) A violation of this section by a person, business, firm,

company, association, partnership, or corporation licensed under

Division 3 (commencing with Section 5000) of the Business and

Professions Code shall constitute grounds for revocation of the

license issued to that person, business, firm, company, association,

partnership, or corporation, pursuant to the provisions that provide

for the revocation of the license as set forth in Division 3

(commencing with Section 5000) of the Business and Professions Code.

Please note that paragraph (f) affords the penalty of revoking a California Private Investigators license!

What all does a surveillance investigation entail?

Let's get a brief overview of a surveillance operation, under the best circumstances, by a team of Surveillance Operators. I use a team of Operators in this example because for the best results to come from this type of investigation there is a necessity for multiple people to coordinate their efforts for the maximum effectiveness.

The scenario is a surveillance of a workmen's compensation claimant who is believed to be more physically active and able than they have stated to their carrier and their Doctor(s), on a day that they are known to be travelling to and from their Doctor's office from their home.

Regardless of how the case is assigned to the team there is a significant need for the development of basic intelligence and data. To properly conduct the surveillance the background of the subject must be known. Who they are, where they live, who they live with, what vehicles they drive, and where they previously worked at the very least. A photograph needs to be obtained or developed of the subject as well as their complete physical description. A thorough review of the facts of the loss, injuries claimed, and work restrictions will also be needed. A dossier should be built and each member of the team should have a copy.

After this basic information is compiled a brief reconnaissance of the subjects home address, the Doctor's office address, and both adjacent neighborhoods should be conducted to ascertain the lay of the land. Copies of map book pages and or satellite pictures of these locations should also be placed into the dossier.

At this stage the team of Operators should conduct a checklist of all equipment to be used by all team members to make sure all is in good mechanical order. The following is a brief list of equipment (it is not all inclusive-equipment should be tailored to the task):

1. Two Way Radios

2. Cellular Phone And Charger

3. Still Camera (35mm SLR) and Digital Camera With All Appropriate Lenses

4. Video Camera With Supply Of Blank Disks And Extra Batteries

5. Binoculars

6. Night Vision Devices

7. GPS Navigation System

8. Flashlight And Extra Batteries

9. Change Of Clothing With Props Such As Hats And Sunglasses To Alter Appearances

10. Extra Water And Something To Snack On

11. Petty Cash - Including Several Dollars In Coins For Parking Meters Or Toll Booths

12. Extra Vehicle Keys

13. Paper Towels And Glass Cleaner

14. An Index Card With The Business Telephone Number For The Police Department(s) Of The City You Are Going To Be Operating In

15. Digital Voice Recorder

Once all team members have completed their equipment checklist the team leader should conduct a briefing to discuss the investigation and its objectives.

Hours before the known appointment time an Operator should take up a position of advantage to view the subject leaving their home location for their appointment. All other team members should stage some distance from the location of the expected direct route of the subject's travel. Once the subject is on the move all Operatives will need to coordinate their movements parallel to or around the subject as they are on the move. This requires a significant amount of communication and choreography. It also requires that all Operatives think logically a few steps ahead of the subject.

This constant flux of the Operatives and the subjects movements is carried on for the duration of the investigation. All fruits of the investigation are documented and preserved for later utilization.

It also needs to be mentioned that at times the team approach is not practical or feasible. Conversely, some Private Investigators are one person shops. In that case the sole Investigator is completely tasked with all of the aforementioned responsibilities and duties. The sole Investigator ends up being an over stretched multi-tasking specialist. That in and of itself may create a certain hazard for the Investigator.

In conclusion....

We've covered an exorbitant amount of general information here and we've only begun to scratch the surface. Surveillance is not just sitting in vehicle up the block from your target's location with a hole in a vehicle sunshade to poke binoculars through. You have to know how to prepare in advance for the unpredictable. You must know the law as to when and how you can conduct your investigation. Without this you run the risk of civil and criminal liability.

Here's some food for thought... In the case Redner v. Workmen's Compensation Appeals Board the Court held that victims of Investigator's misconduct may seek damages:

[P]rivate Investigators may well make an intrusion in to the individual's right of privacy which would be objectionable or offensive to the reasonable man.... Courts have permitted such an individual to maintain an action for damages against the intruders.

Good luck, be safe and use your head out there.

About me:

Chris Loomis, P.I.
Chris Loomis Consultations
A Private Investigations Firm
CA PI # 24384
P.O. Box 660351
Arcadia, CA 91006 U.S.A.
(626) 230-3137 Office
www.clcpi.com

Sources:

Swanson, Chamelin, Territo, Taylor. "Criminal Investigation." 10^th Ed.

Redner v. Workmen's Compensation Appeals Board , 5 Cal. 3d 83 (1971)