Bar News - February 9, 2007
Miller v. Blackden: Surveillance or Stalking?
By: John M. Healy
In its recent decision on Miller v. Blackden, the New Hampshire Supreme Court upheld a stalking order; finding the defendant—a licensed private investigator—stalked the victim. The defendant claimed that RSA 106-f precluded the stalking order. The District and Supreme Courts disagreed. (RSA 106-f is the regulatory scheme for licensed investigators.)
Apparently, Brian Blackden, a private investigator and owner of NH Forensic and Detective Services in Concord, was hired by a local man Eric Raymond to follow his ex-girlfriend Rebecca Miller, also of Concord. The former boyfriend had been accused by Miller of previously breaking into her home, restraining her, and taking items from the home. Charges of stalking against the private investigator came about when a local police officer recognized Blackden, who was in the area watching Miller’s home. The officer then notified the victim she was being watched.
The police made the correct decision in this case, based upon the information they had about the victim and her former boyfriend. This is not the type of case most investigators would take. The conventional wisdom is to only take surveillance under the direction of an attorney for a specific reason related to litigation. This writer and most investigators I know concur with the decision of the district and supreme courts in this case.
The Court left the door open to interpret future events, stating that the investigator merely “had to show that the purpose for which he was hired was itself lawful.”
This is not unlike the federal laws that govern an investigator’s (or an attorney’s) access to certain protected data and information. The person seeking the data must have a verifiable permissible purpose under the law.
One of the “permissible purposes” stated in the Driver Privacy Protection Act and the Gramm-Leach-Bliley Act is: anticipation of litigation.
If we apply this rationale to the instant case, working for an attorney may have provided the “legitimate purpose” required by RSA 633:3-a, II (a).
The record is not clear as to whether there was an attorney involved.
According to a member of the Criminal Justice Committee, who handled this legislation, private investigators are exempt so long as it is for a legitimate purpose, which is exactly why that clause was put in. That was the legislative intent, exempting licensed professionals, but only for a legitimate purpose.
In Mathews v. Mathews in 1998, the same Court noted the value of a professional surveillance done for an attorney: “…[A] private investigator testified that when he observed the plaintiff on 10 different evenings, the plaintiff left the children alone overnight on six occasions while she visited a male friend. Furthermore, the investigator’s report indicated that following the first day of the hearing, the plaintiff continued her pattern of leaving the children alone overnight.” The investigator mentioned is the author of this article.
Surveillance is both an art and a science. While it is possible, a trained investigator is rarely discovered during a properly conducted surveillance. Normally, when this happens, it is later learned that the target had been warned, or even threatened with surveillance.
Training dictates that surveillance must be conducted with the feelings of the subject in mind. If direct contact is made, or the investigator feels the subject is suspicious or concerned about his presence, he should leave the area and not return.
Interestingly, the legislature, in creating the regulatory statute, (RSA 106-F: 4) did not merely mention surveillance. It qualified the issue further by using the wording “clandestine surveillance.” Clandestine is defined as: executed with secrecy or concealment.
According to the Court in Blackden: “The following day, when she (the victim) pulled into the parking lot of her son’s school, she saw the defendant drive by her. She testified that ‘he . . . stared me down.’” She must have somehow recognized or known him. Surveillance is mainly conducted for insurance cases and for law firms regarding criminal defense, litigation, or potential litigation. Most investigators will not and, perhaps, should not engage in any “private surveillance,” where the actions of one person are reported directly to another.
The Remsburg v. Docusearch decision makes a private investigator liable for the actions of the client. In Texas, a private investigator was sued after apparently reporting directly to the client by phone in an adultery case, and then filming the client hitting, and killing, her philandering husband with her car at the scene of the surveillance.
When the need for surveillance does arise, the attorney must be aware it is an activity regulated by RSA 106-f and requires an investigator’s license. There are more than a few unlicensed entities offering this service. To obtain the license requires, in addition to experience, the posting of a $50,000 bond. This is good public policy. As when hiring any service provider, the attorney should examine the resume of the potential candidates, ask questions about training and experience in the area or ask a colleague for a referral.
To locate qualified candidates for any investigation, the attorney should consider the New Hampshire League of Investigators (http://www.nhli.net/). Its members are not only licensed but also agree, in writing, to adhere to a Code of Professional Conduct (http://nhli.net/ethics.html). The New Hampshire League of Investigators also conducts several training events each year.
John M. Healy, a retired NH State Police lieutenant, is a licensed professional investigator and principal of Litigation Intelligence Services in Warner. Contact him at email@example.com.