During the ten-plus years that my husband and I co-owned a private investigations agency, we conducted dozens of surveillances, easily a hundred or more (I've never sat down to figure out how many exactly). Although I still work as a legal investigator for several law firms, I don't conduct nearly as many surveillances as I once did for the simple reason I got a bit, well, older. It might sound easy to sit in a car for hours on surveillance, but actually it can be physically and mentally taxing. Your focus can never waver, you sometimes deal with extreme heat or cold during the summer and winter, your body lacks sufficient exercise, and so forth.
Surveillance, however, is a topic many writers are curious about, and which we've presented at different writers' conferences over the years. Below is the first in a series of online classes we presented to writers at the invitation of a professional writers' organization in 2011. I updated the content for this post.
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Throughout this content, both “he” and “she” are used to refer to a PI (or your fictional PI) rather than always using the cumbersome he/she.
And now let's kick off the class with the question...
All PIs Conduct Surveillances, Right?
Actually, not all, although that’s what many people think. When people learn I work as a PI, they typically ask questions about what it's like to stake out “cheaters.” However, today’s PIs have many different specializations, from legal investigations to personal injury investigations to fraud investigations (those three areas just scratch the surface as there are many other fields of specializations--a comprehensive list of these categories is available on PINow: Types of Private Investigators).
Some investigative specializations rely more on surveillance than others. For example, a PI who works primarily with insurance companies, and/or their attorneys who want to prove the validity of workers compensation claimants’ injuries, will be doing back-to-back surveillance jobs. Other types of investigations that might require surveillance: theft, misconduct, missing persons, even politics. Think about this with your fictional PI—how much surveillance will she be doing in her specialized investigative field? Maybe he’s a legal investigator and people at cocktail parties are always assuming all he does is "chase cheaters," which irks him no end.
Legalities of Surveillances
In this section we'll look at the plain view doctrine and eavesdropping, followed by some ethical no-nos.
Plain View Doctrine
The plain view doctrine is a legal guideline by the high courts that basically says surveillance from publicly accessible areas is acceptable. Trespassing (such as hiding out on private property without the owner/occupants’ consent) is not acceptable.
What is openly displayed in public is plain view
If an investigator (or police officer) sees something in the open that makes them want to turn an item over or look inside of it, that is not in plain view. They must see what they’re looking for (such as a gun on a table or a stolen violin in its open case) in, literally, plain view. Therefore, if a police officer or PI pushes aside a magazine to see if a gun is underneath it, that gun was not in plain view and can result in disciplinary action for the officer or criminal charges for the PI.
Using tools can also violate plain view
Colleen recently wrote a story with a PI protagonist. In one scene, the fictional PI was peering into a motel room window, looking for evidence. Because the room was very dark (no lights on), her fictional PI was using a flashlight to see inside. However, by using an artificial aid such as a flashlight, the fictional PI was actually violating the plain view doctrine. If the PI had seen any evidence with the aid of that flashlight, that evidence most likely would not have been admissible in court. So Colleen rewrote the scene so her PI was merely peering inside the window without using any tools, aids, etc. An editor probably wouldn’t have caught this, but a savvy reader (for example, a police officer, paralegal, lawyer) would have.
Your fictional PI should be cautious about recording audio during the surveillance unless the persons speaking are in a public setting with no expectation of privacy. Recording of private conversations could result in criminal charges for electronic eavesdropping (on the other hand, you could use this as a plot point—maybe your fictional PI gets charged with electronic eavesdropping and ends up in jail for a night or two just when he’s on the verge of breaking a case).
Other Ethical/Legal No-Nos
Here’s a list of other ethical and legal issues a PI should not commit while on surveillance:
A client should never be allowed to ride along on surveillance. Even in states where this would not be illegal, it puts the PI in a position of being responsible for controlling the client and possibly being responsible for the client's actions. On the other hand, you might create some funny scenes if your fictional PI allows his client to join him on surveillance and things get out of hand.
- A PI should never call a client to inform them of the location where the client’s spouse/significant other is having an illicit rendezvous. Remember the woman who ran over her dentist husband three times in a hotel parking lot? Guess how she knew her husband was there--the PI she’d hired to watch her philandering husband told her. Yes, the PI called her from that hotel with the news that her husband was inside with his girlfriend, and the client-wife raced over in her car, saw her husband in the parking lot and ran over him, backed up and ran over him again, then drove forward and ran over him a third time. The PI videotaped the entire episode! That recording became damning evidence against her at trial.
- A PI would never trick the subject of a worker’s compensation case into doing things they aren’t supposed to be able to do. For example, the PI would not fake the delivery of a heavy box to coerce the surveillance subject to lift it, or place an obstacle in the subject’s path to see how the subject behaves (testing if the subject can lift his legs to step over it, or bend over to move it, and so on).
When On Surveillance, Blend In
Just like real PIs, your fictional PI won’t wear clothes that will make her stand out. She’ll wear inconspicuous clothes that blend into the circumstances of the surveillance. For example, if your PI character is pulling surveillance in the lobby of a 5-star hotel, he might wear dress slacks and shirt, maybe even a tie. If your fictional PI was surveiling someone at a Grateful Dead concert, she’d probably wear jeans and a tie-dyed t-shirt.
When Colleen accepted a series of investigative surveillances for an insurance company (surveiling claimants whose cases for disability, etc. were heading to trial), she knew she’d be sitting for long periods in a van (once 13 hours, no breaks), so she made a point to wear clothes that wouldn’t stand out and were comfortable to wear. For a nighttime surveillance, it’s a good idea to wear dark clothes. Oh, and remember to turn off that dome light! No use dressing in black if your fictional PI opens the door and has a mini-spotlight on her.
Some PIs will even use black duct tape to cover any lighted areas of the interior of their surveillance vehicle (such as an interior clock) during surveillances. It all depends on the circumstances. It could be a dramatic twist if a fictional PI is caught by the surveillance-subject due to some seemingly innocuous detail, such as the light on a dashboard dial casting a faint light on her form.
A Professional Surveillance Vehicle
A PI skilled in doing surveillances doesn’t necessarily need to have a van, although PIs who specialize in surveillances often have their own surveillance vans. But keep in mind the locale—for example, if your fictional PI is conducting a surveillance in a remote country town, he might instead drive a pick-up truck because he'd likely stand out in a big van.
Qualities of an effective surveillance vehicle
Just as a private investigator should blend in with her clothing, so should her surveillance vehicle blend into its locale. The vehicle should be:
- An unremarkable color that no one remembers clearly.
- A model that is difficult to identify, both on the street and in court, and easily confused with other makes.
- Well equipped and well organized (a PI often has to take a video or photo at a moment’s notice)
- Comfortable (a PI may spend hours in that van or car to capture just a few minutes of damaging evidence).
Most PIs keep a stash of supplies for surveillances, especially as they never know if they'll be taking off at a moment's notice, and could be spending hours on surveillance in all different kinds of weather. Here’s a sampling of possible supplies:
- Full tank of gas
- Easy to eat food, such as granola bars, raisins, trail mix -- avoid salty food because they make a person thirsty.
- Personal medications
- A watch, flashlight, blanket
- A large-mouthed cup (you can guess what this is for)
- Appropriate changes of clothes for weather and time of day.
This ends class 1 of Surveillance 101. Class 2 covers pre-surveillance, picking a location, types of surveillances, and the difference between mobile and stationary surveillances.