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A few private investigators are actively opposing Senator Dingell's legislation, apparently believing that the use of such devices would be legal without the passage of the bill.
The only justification I have heard for private investigators using such devices is that surveillance might otherwise be too difficult for those few P.I.s who must rely on aids such as these. Such devices and other trendy gimmicks are simply crutches to be used by persons who might be better suited to less demanding occupations. My associates and I have had the opportunity to conduct successful moving surveillances without electronic aids in such tough environments as Mexico City, Singapore and Amsterdam. Literally hundreds of other investigators around the world seem to have no problem conducting a simple moving surveillance without electronic dependency.
Another rationale for electronic tracking is that since honest people being electronically tracked would have nothing to hide, they should have no objection. This flawed thinking could apply equally to telephone taps, room bugs, peeping tom activity, home invasion, ad infinitum. While these crimes are acceptable and routine activities in private detective pulp fiction, they have no place in the real world.
In the late 1960s, some Michigan investigators--who did not do their homework--were taken in by vendors selling high priced psychological stress evaluators which were clearly as illegal in that era as these so-called "bumper beepers" are today. Ethical investigators who innocently succumbed to the sales pitches offered by folks hawking electronic trackers would be wise to write off their costs as bad investments. Attorneys should be aware that regardless of the opinion of the investigators, on every case where such a device is used, the investigator is exposing the attorney and the attorney's client to both civil and criminal risks.
Establish Ground Rules
As previously mentioned, often attorneys neglect to provide direction to private investigators contracted for surveillance work. There are a few ground rules attorneys should insist their private investigators follow when engaging them for surveillance assignments.
Obviously, the first rule is for the attorney to specifically prohibit the investigator from using any type of electronic vehicular tracking device, except in cases where the vehicle is owed by the client.
Attorneys should also make it clear that private investigators working routine surveillance cases should not carry firearms, unless unusual circumstances exist. Attorneys should specifically authorizes armed surveillance only on a case-by-case basis.
Additionally, attorneys should mandate that if a subject does become aware of a surveillance by the private investigator, the surveillance should be terminated immediately. Continuing to follow a subject after the surveillance has been exposed, is, of course, of no value whatsoever and can result in unwarranted exposure. Wily insurance "fraudsters" might take such opportunities to move and act in a manner consistent with their alleged disabilities in an effort to support false claims. Others, however, might take unsafe traffic risks attempting to elude the surveillance. In these cases, in addition to the increased driving hazards, there exists a fine line between following, harassing, chasing and even stalking a subject.
The investigator should be prohibited from conducting surveillance from any location other than public property or property normally accessed by the general public, such as a restaurants, parking lots or shopping centers. Surveillance from private residential property adjacent to the subject's home should be specifically prohibited, except in cases where the property owner has provided written consent.
Clearly, it makes good sense for attorneys to obtain certificates of insurance for both workers' compensation and general comprehensive liability coverage from private investigators. In Michigan there is no legal requirement for investigators to maintain liability insurance coverage. A license bond is required for licensing; it is not a third party fidelity bond, and it offers little or no protection to investigative clients.
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