SURVEILLANCE IS NOT PEEK-A-BOO

As a classic movie buff, whenever I hear Bogart say to Bergman, “Here’s looking at you, kid,” call me crazy; but just one word comes to my mind: Surveillance.  In fact, over the years I have uttered that famous Casablanca line myself, but from the back of a van with video equipment pointing outwards towards the unsuspecting. 

Surveillance work is mentally tedious, physically strenuous and, thanks to the Hollywood and television crowd, totally misunderstood by the public. All those hours sitting bored to death in a van staring out at the world going by are then rewarded by just a few moments of frantic activity.  There he is … camera up … steady … angle OK … shoot … limit zooming in and out … he’s moving … let’s go.  Then it starts all over again when the subject makes his next stop. Oh, and by the way, let’s do this without running over five nuns in a cross-walk.   In a world where instant gratification is the norm; surveillance work demands patience, physical stamina and a special skill-set learned along the way.

Another misconception is that you just grab your stuff and go follow somebody.  A real surveillance begins with gathering together as much information as possible on the subject from the client, from restricted databases and from other background sources.  Given that knowledge is power, shouldn’t we have the details of physical description, confirmed address, probable vehicles and likely routes of travel, before we take to the field?  Ergo, pre-surveillance fact-gathering is an enormous factor in determining the outcome of a surveillance case.

To illustrate: Years ago we were on a hastily put together insurance surveillance when there came a knock on the side of the van.  That’s never good. The undercover New Jersey State Trooper detective warned that the guy we were watching was a mobster and we were in the way of his surveillance.  Lesson learned: Doest thine homework.

Most associate surveillance with marital and custody matters, however, it can be appropriate for a variety of other reasons, as well.  More obvious is the insurance case where the plaintiff is suspected of over-stating his claim allegations or outright fraud.  But this tactic is also commonly employed in the business world. When fraud, embezzlement or theft is suspected, surveillance can be an option when other means fall short.  Unfair competition, breach of contract and even matters involving trademark violations can be enhanced by surveillance.  In fact, whenever one side needs to “see” what the other side is doing, surveillance can play an important role.

The latest: GPS

A new and highly technological gizmo has come along and caused quite a stir among investigation professionals.  That is, of course, Global Positioning System (GPS).   Now it seems we have instant gratification when it comes to surveillance work, too.  Think about it.  All you have to do is stick this thing under a car and you can know where that vehicle is in real time or logged on your computer over a given time span.  No more arduous camping and cramping in vans in the heat or cold for hours on end?  The thought is appealing.

But not enough legal opinion has been heard on the subject.  The U.S. Supreme Court recently ruled police may not use a GPS unit to track a person’s movements for a long period of time without a warrant.  Conversely, a New York Appeals Court has ruled that an employer who used GPS to monitor a state employee’s whereabouts during working hours was reasonable given all the facts of the case. (U.S. v. Jones  U.S. Supreme Court, No. 10-1259, 2012.  Cunningham v. New York State Department of Labor, New York Supreme Court, No. 512036, 2011.  )  

To be sure, the jury is still out on the use of GPS, so most of my contemporaries are erring on the side of caution by using GPS only on vehicles registered to the client. The theory is that you have a right to know where your own vehicle is at any time.  This does, by the way, work well for businesses with fleets of trucks on the road.  No doubt, GPS will be an arrow in the surveillance quiver when the legal dust settles.  We’ll see to what extent.

In the meantime, remember: If a cat can look at a king, anyone can look at anyone; but peek-a-boo through the castle window is a no-no.

Dave Watts is a Certified Legal Investigator (CLI), a Certified Fraud Examiner (CFE) and a Florida Certified Investigator (FCI). He has been a licensed SWFL investigator since 1989 and New Jersey Licensed Private Investigator since 1976. Mr. Watts has over 30 years experience and past licenses in NY & PA. He can be reached at (800) 950-4808 or islandinv@aol.com.

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