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© Anthony J. Sacco, Sr. May 2011.
Read this article on Triond

Cheyenne - In the usual course of business, private investigators are called upon to uncover information in a variety of matters, including those in both the civil and criminal arenas. At the conclusion of an investigation, we present our findings to our clients in the form of a report. Much of the information we gather is personal to the subject of the investigation. Some or all of it may breach the subject’s right to privacy. What the client does with that information raises further questions. In the past, these issues have not always been something with which we concerned ourselves.

But “The Times They Are a-Changin’”, as the title of Bob Dylan’s third album suggested in 1964. Back then those words meant changes were in the offing. Today, for private investigators, it means that Ethics – bodies of rules having a certain moral significance, or that dictate standards for right actions, have made their way into our profession. Those ethical rules reflect the fact that actions have consequences, and suggest that a private investigator, whether in a state that licenses the profession or not, is responsible for the consequences of his or her actions and he or she must adhere to the highest ethical standards as responsible professionals.
As private investigators examined that idea over the last few years, we’ve begun to understand that it’s  no longer okay to just perform the task the client has given us, hand him or her a report, and wash our hands of the matter. Ethics dictates, and morality affirms that it’s necessary to do our work in a way that does no harm to anyone. (A Masters in Criminal Justice degree can help you jump start a career as a private investigator.)

So the question arises: is there any harm in providing a subject’s personal data to a client? Putting it another way; should a private investigator perform his work with an eye on the consequences his work might bring about, good and/or bad?

It’s probably safe to say that because so few people have had occasion to hire a private investigator, the public perception of us and what we do has been gathered mostly from the literature written about amateur detectives; Mickey Spillane’s Mike Hammer, Raymond Chandler’s Philip Marlowe, Agatha Christie’s Miss Marple, Dashiell Hammett’s Sam Spade, and many, many others. These larger-than-life protagonists of the genre − the fictional detectives − sometimes thumbed their noses at the Constitution; they occasionally trespassed on private and public property, broke and entered the homes or offices of their suspects, conducted searches without warrants, and arranged scenarios to entrap the villains at their leisure. Of all the fictional super sleuths, perhaps only G.K. Chesterton’s Father Brown and Agatha Christie’s Miss Marple, could be said to have always acted with morality, ethics, and the law clearly in mind.
Today’s real life investigators are, indeed, every bit as clever, inventive, and resourceful as their fictional counterparts. Should they slip a bit and emulate their fictional predecessors, what consequences will they suffer? Are there legal ramifications to, say, breaking into the home of a suspected kidnapper or drug seller to gather evidence? If so, what are they? There are three situations with which I’d like to deal in this article.

To guard against arbitrary police intrusions, the newly formed United States in December 1791 ratified ten amendments to the U.S. Constitution. These are known as the Bill of Rights. Because it’s important for the educated private investigator to have at least a basic awareness of this issue, here’s a brief history of the Constitutional right to privacy; i.e. the prohibition against illegal searches and seizures:

The Fourth Amendment states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Sound Good? It was meant to. But for a century or more, this protection was afforded little weight in federal courts. However in 1914, the U.S. Supreme Court devised a way to enforce it. In Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652 (1914), a federal agent conducted a warrantless search for evidence of gambling at the home of a man named Fremont Weeks. The evidence seized in the search was used at trial, and Weeks was convicted. On appeal, the Supreme Court held that the Fourth Amendment barred the use of evidence secured through a warrantless search and seizure. Weeks' conviction was reversed and thus was born “The Exclusionary Rule.”

“The Exclusionary Rule,” and made it applicable to the states through the Fourteenth Amendment’s "due process" clause. The decision applied to counties and municipalities as well.  Mapp v. Ohio 367 U.S. 643, 6 L.Ed.2nd 1081. The Court’s reasoning: violating one's Fourth Amendment rights is such a fundamental, important, issue that to do so is automatically a violation of the Fourteenth Amendment due process [of law] rights of the person subjected to
the illegal search or seizure.

With regard to whether or not information obtained in a search by a private investigator without a warrant can be used in a subsequent court proceeding, there appears to be no legal prohibition under either the right to privacy guaranteed by the Bill of Rights’ Fourth Amendment or the due process clause of the Fourteenth Amendment, because these Constitutional provisions apply only to federal and state actions.

What is the victim’s remedy for violations of “The Exclusionary Rule?” In the Weeks case mentioned above, the Court stated that warrantless searches, performed without probable cause and without an exception to the warrant requirement (or even when a warrant is used, but where the warrant is later determined to be legally defective), subjects any recovered evidence to exclusion from being used as evidence in court. Weeks v. United States (1914), ibid.
However, since 1947, courts have held that “The Exclusionary Rule” does not apply to private persons.  “Private persons (unless working as an agent of law enforcement") may violate a subject's constitutional rights without threat of suppression, in that the constitutional protections apply to government searches only.  People v. Johnson (1947) 153 Cal. App.2nd 873.

So, a licensed private investigator who is acting in furtherance of a private interest rather than for a law enforcement or government purpose, is not subject to the restrictions of the Fourth Amendment.  People v. Mangiefico (1972) 25 Cal. App.3rd 1041, 1046-1047; People v. De Juan (1985) 171 Cal. App.3rd 1110, 1119.)

In addition to being a licensed and bonded private investigator, I’m also a published author. In my fact-based fiction novels The China Connection (Writers Club Press, 2003), and Return to Darkness (to be published soon), my protagonist, private investigator extraordinaire Matt Dawson would be subject to “The Exclusionary Rule” since in those books he is acting as an agent of law enforcement, while in my first novel, Little Sister Lost (iUniverse, Inc., 2004), he would not be, since he is “acting in furtherance of a private interest.”

But the same private investigator who obtains information by trespassing on other people’s property or by breaking and entering, DOES violate the law. If caught he can be prosecuted under the criminal laws of the State in which he performs those illegal acts. If convicted he may become a guest of that State and find himself spending time in substandard state housing.

There’s another aspect to the problem; gathering personal information about a subject and turning it over to a client who you know has in mind doing some illegal act with it. That’s the Amy Boyer situation. Here’s a short summary of that case:

On July 29, 1999, Liam Youens contacted Docusearch, an internet-based investigation and information service, and requested the date of birth of Amy Lynn Boyer, a woman Youens had been obsessed with since the two attended high school together. Youens later contacted Docusearch to request Boyer's social security number (SSN) and employment information. Docusearch was unable to provide Boyer's date of birth, but obtained her SSN from a credit reporting agency as part of a credit header and provided it to Youens for a fee. Docusearch then obtained Boyer's work address by having a subcontractor, Michelle Gambino [a private investigator] place a "pretext" call to Boyer. Gambino lied about who she was and the purpose of her call in order to convince Boyer to reveal her employment information. Gambino pretended to be affiliated with Boyer's insurance company, and requested "verification" of Boyer's work address in order to facilitate an overpayment refund. Docusearch charged Youens a fee for this information. Armed with the information and a gun, Youens went to Boyer’s work address, shot and killed her, and then shot and killed himself. Amy Boyer’s Executrix, Helen Remsburg, filed suit against Docusearch. The New Hampshire Supreme Court held that information brokers and private investigators can be liable for the harm caused by selling personal information.

This is a third aspect of the problem. It refers to what Gambino did in the above-described Boyer case, and what an East Coast firm of private detectives, employed by Hewlett-Packard’s former President and Board Chairwoman, Patricia Dunn, did while attempting to discover and end leaks of “insider” information from Board members to the Press a few years ago.

Pretexting is the practice of collecting information about a person using false pretenses. Typically, investigators pretext by calling family members or coworkers of the subject under the pretense of some official purpose. This can include calls made under the pretense that the victim is about to receive a sweepstakes award or insurance payment. The family members or coworkers called are deceived by the pretexter, and provide personal information on the subject.

Certain types of pretexting were prohibited by a 1999 law (The Financial Services Modernization Act, also known as the Gramm-Leach-Bliley Act or GLBA). The GLBA prohibits pretext calls made to financial, brokerage, or insurance companies. But since those are the only situations covered under that law, investigators still can call friends, relatives, or entities not covered by the GLBA under false pretenses in order to gain information on the subject.
For more information about pretexting and this case, see my article, Hewlett-Packard, a Firm of Private Investigators, and a Republican Gubernatorial Candidate: Strange Bedfellows Indeed! on TRIOND, @    

The above should be enough to convince any respectable private investigator that our actions DO have consequence. So since they do, it makes sense for us to “view our work with an eye on the ultimate consequences,” Kitty Hailey, CLI, points out in her article, Consequentialism: Ethics in the Investigative World; PI Magazine, September/October 2010. “This [higher ethical standard] poses new and interesting questions for the legal investigator.”

In her article, Hailey goes on to say: “The questions we should be asking each and every time we receive a new assignment are:

  • Will this [work] harm anyone, intentionally or unintentionally?
  • Are the benefits of using this tactic, or that information, sufficient to [justify] violat[ing] someone’s privacy?
  • Is there a possibility that this will harm my own reputation?
  • When there are no easy answers, can I justify the risk in a delicate balance between necessary information and unnecessary invasion of privacy?
  • Can I say “no” to a client who assumes my role is to gather information regardless of my careful weighing of the consequences?”

All but five states license private investigators. I’m not a fan, because I think licensing tends to unnecessarily exclude people from the profession, limiting them to either having been former police officers, or having had three or more years of experience working for a licensed private investigating firm. Whether working in a state that licenses or one that does not, if the profession is to be held in high esteem by members of the public, and if we seek to avoid further onerous licensing requirements, ethical – no, not just ethical standards, but moral standards as well – must be looked to and voluntarily applied by each of us as we go about the business of gathering information for our clients.