Surveillance Across a Property Line
A PI is conducting mobile and static surveillance of a subject suspected of workers' compensation fraud. The subject lives on a flag lot; the only clear view of the backyard is from an adjacent vacant parcel owned by a third party. The PI parks on the vacant parcel, sets up a camera with a telephoto lens aimed at the backyard, and observes the subject for three hours. The backyard is enclosed by a six-foot solid fence; the PI's camera is positioned to see over it. The PI also follows the subject's teenage daughter from school to a friend's house to see if the subject picks her up. The subject's attorney later alleges invasion of privacy and harassment of a minor.
1. Assess the backyard surveillance. What factors determine whether this is a lawful observation or an invasion of privacy?
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Key factors: (1) Trespass - parking on a third party's vacant parcel without permission is a trespass, independent of privacy law. That alone taints the observation. (2) Reasonable expectation of privacy - a solid six-foot fence signals the homeowner intended the yard to be private. Using a telephoto lens to see over a barrier specifically erected to block view is the aggravating fact; courts weigh whether the observer used enhanced means to defeat a privacy measure. (3) Location of the observer - observation from a lawful public vantage point is generally permissible; observation made possible only by trespass and magnification is not.
Conclusion: the combination of trespass plus lens-over-fence is high-risk and likely indefensible. A lawful alternative would be observation from a public street or with the neighbor's consent, without defeating the fence.
2. Address the daughter surveillance. What line separates legitimate investigation from harassment of a minor?
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The legitimate purpose (does the subject drive/ride when claiming disability) can usually be established by surveilling the subject, not the child. Following a minor from school serves little investigative purpose and creates real risk: it can be characterized as stalking or harassment, may violate school-related protections, and invites exactly the counterclaim raised.
If the child's activity is genuinely relevant (e.g., subject claims inability to drive but is seen driving to pick her up), the PI should document the subject's conduct from public vantage points and avoid sustained following of the minor. The test is necessity and proportionality: is the intrusion on the minor necessary to prove the claim, and is it the least intrusive means?