Surveillance at the Subject's Home
You are a licensed private investigator in Alabama, hired by an insurance company to conduct surveillance on a claimant, Dana, who is suspected of exaggerating a back injury. The client provides Dana's home address and asks you to 'get video of her doing anything physical.' You park on the public street across from Dana's house and begin recording. After two hours, Dana comes out, gets in her car, and drives away. You follow her at a distance, maintaining visual contact, and record her entering a gym and working out with weights. You also record her license plate and note the gym's address. The next day, you return to the same spot and continue surveillance. On the third day, Dana's neighbor approaches your vehicle and asks what you are doing. You identify yourself as a private investigator and state you are conducting an investigation. The neighbor becomes angry and demands you leave. You remain parked on the public street. Later, Dana's attorney sends a cease-and-desist letter, claiming invasion of privacy and stalking. The client asks you to continue surveillance and to 'push the boundaries' to get more evidence.
1. Does your surveillance on public streets and in public places violate Alabama law? Explain the legal principles that apply, including any statutes or common law doctrines.
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Surveillance conducted in public places where the subject has no reasonable expectation of privacy is generally lawful. Alabama recognizes the tort of invasion of privacy, which includes intrusion upon seclusion, public disclosure of private facts, false light, and appropriation. However, observing and recording a person in public does not typically constitute an intrusion upon seclusion because there is no reasonable expectation of privacy in public. Alabama's stalking statute (Ala. Code § 13A-6-90) requires a course of conduct that places the victim in reasonable fear of death or serious bodily injury or causes emotional distress. Mere surveillance without threats or harassment likely does not meet the statutory definition. However, following someone too closely or repeatedly could be considered harassment if it causes reasonable fear. The key is whether the investigator's actions would cause a reasonable person to feel harassed or intimidated. In this case, recording Dana on a public street, following her to a public gym, and recording her there are generally permissible. The investigator should avoid trespassing on private property, using hidden cameras in private areas, or engaging in conduct that would cause a reasonable person to fear for their safety. The cease-and-desist letter from Dana's attorney does not by itself make the surveillance illegal, but it may be a factor in a harassment claim if the conduct continues and escalates.
2. What should you do in response to the client's instruction to 'push the boundaries'? Discuss the ethical and legal considerations, including your obligations under Alabama law and board regulations.
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The investigator must not follow the client's instruction to 'push the boundaries' if that means engaging in unlawful or unethical conduct. Alabama law and the Alabama Private Investigation Board regulations require licensees to comply with all applicable laws and to refrain from conduct that is dishonest, fraudulent, or deceptive. The investigator should explain to the client that they will continue lawful surveillance but will not trespass, harass, or invade privacy. The investigator should document the client's request and their refusal to engage in unlawful conduct. If the client insists, the investigator should consider terminating the engagement. The investigator should also be aware that the cease-and-desist letter may indicate that the subject is aware of the surveillance and may take legal action. The investigator should review the evidence gathered so far and ensure that it was obtained lawfully. If any evidence was obtained unlawfully, it may be inadmissible in court and could expose the investigator to civil liability. The investigator should also consider whether the surveillance is proportional to the client's needs and whether continued surveillance is likely to yield relevant evidence. The investigator should communicate clearly with the client about the legal boundaries and the potential risks of continuing surveillance after a cease-and-desist letter.