The Alley, the Loading Dock, and the Tarp: Consent Isn't a Blanket

Treat the three acts separately; they have different risk profiles.

• Alley photographs. The 'public vantage' principle only protects observation from a place where the observer has a lawful right to be. An easement is a limited right held by specified parties (often the adjoining owner and its invitees), not a public right-of-way. If the investigator had no right to be in the alley, the photographs were taken during a trespass even though nothing was touched. Whether a right existed depends on the recorded easement instrument, not on a phone call.
• Loading dock. Owned by the adjoining parcel. Neither MallCo's ownership of the mall nor the manager's statement conveys any authority there. Same trespass analysis, plus a potential claim by that adjoining owner, who has no relationship with MallCo or the investigator.
• Lifting the tarp. This is the highest risk. It is a physical intrusion on personal property, not mere observation, which defeats any 'plain view' characterization of the VIN. The truck belongs to the mechanic, a third party, so the tenant's landlord and the client cannot consent for him. Expect a trespass-to-chattels or conversion theory even if nothing was damaged.

Practical framing: the criminal exposure is usually small, but the case-killing risk is evidentiary and economic - a motion attacking the investigator's conduct, or a counterclaim that costs more than the lease dispute is worth.

Consent is only as broad as the consenting party's authority, so break it down:

1. Common areas of the mall - a property manager acting as the owner's agent can ordinarily consent to observation or entry in common areas. Get it in writing, with the areas described, and confirm the manager's authority in the management agreement.
2. The leased unit itself - consent reaches the unit only to the extent the lease gives the landlord a right of inspection or entry. Read the access clause before going in; a general management role does not override the tenant's possessory interest.
3. The alley - the manager cannot authorize use of an easement shared with a different owner. At best he can consent to what MallCo owns; the adjoining owner's interest is untouched.
4. The loading dock - outside MallCo's ownership entirely; the consent is simply inoperative.
5. The mechanic's truck - personal property of a non-party. No landlord consent reaches it at all.

Also: consent is revocable, verbal phone consent is weak evidence, and consent to be on land never authorizes touching someone's belongings. Convert the permission to a signed letter that lists areas and dates, and note in the file the exact words the manager used.

Disclose method, do not just disclose result.

• In the report: state the vantage point for every image ('taken from the alley behind the mall, standing beside the loading dock'), and state plainly that the VIN was obtained by lifting a corner of a tarp. Do not describe the alley as a public right-of-way, and do not label the tarp images 'plain view.' Record the manager's statement verbatim, the date of the title search, and the fact that the truck is registered to a third party.
• Do not strip or edit metadata, rename files to obscure origin, or drop the weakest images to make the exhibit look cleaner. An accurate, self-critical record is what survives a deposition.
• Recommend to the client: (a) flag all alley and dock images, plus the VIN, to counsel before they are used; (b) re-collect from a lawful vantage - public sidewalk or street, at ground level, no hovering or climbing; (c) use the landlord's contractual inspection right with proper written notice, which produces lawful, admissible access to the service bay; (d) consider a witness statement from the manager about what is visible from the mall's own common areas.
• Tell the client in writing that the VIN images carry authenticity and credibility risk, so they should not be the centerpiece of the case.