PIs Fight anti-GPS Legislation

Private investigators in Virginia have been fighting against proposed anti-GPS legislation since it first was floated nearly two years ago because it excludes them. ISPLA executive committee member, Nicole Bocra of Infinity Investigative Solutions in Virginia, summed up the objections of HB 807 for the Associated Press:  “Private investigators perform a public service by working on insurance fraud, embezzlement and other white-collar crimes,” she said. Their efforts will be hampered if they can’t electronically track suspected embezzlers as well as cheating husbands. “We play a vital role in this system.”  She noted that, unlike police, they cannot obtain a warrant, which by the 2012  U.S. Supreme Court decision in U.S. v Jones is now required of law enforcement. The bill passed out of a Virginia House of Delegates committee. However, Nicole Bocra, and representatives of Private Investigators Association of Virginia and the Professional Investigators and Security Association did not cease their fight to defeat this bill.

On February 20, Phil Becnel of Dinolt Becnel and Wells Investigative Group of Virginia, an ISPLAPAC financial supporter, posted the following announcement:

“I am very pleased to announce that Del. Joe May's GPS tracking bill was killed in the Virginia Senate today by a vote of nine to six. Although there is a slim chance that the bill could be reintroduced this session, this is highly unlikely, meaning that we are probably out of the woods on this issue until next year.

I would like to extend a very special thank you to our lobbyist in Richmond, James Towey, for pulling the right strings behind the scenes and to our members John Morse and John Kipley for helping to represent our industry’s position this morning in Richmond when so many of us (me included) could not make it down there. I would also like to thank Nicole Bocra for pulling everything together at the final hour and for her tireless work on this issue over the past couple years. This was a joint effort of PIAVA, PISA and ISPLA ......and it just goes to show you what we can accomplish when we all work together as an industry.”

A Washington Post article on this legislation is at:

http://www.washingtonpost.com/local/va-senate-committee-kills-legislation-to-bar-secret-electronic-tracking/2012/02/20/gIQAVtOZPR_story.html

ISPLA stands ready to assist our colleagues in any way it can on this issue in the future. In Michigan, where ISPLA Chairman Peter Psarouthakis of EWI & Associates, Inc. has handled legislative matters, GPS tracking by professional investigators conducting lawful investigations is legal. He has furnished legislative material used to enact the favorable GPS statutes in Michigan to our colleagues in Arizona, Georgia, New York, and Virginia.

Bruce Hulme

ISPLA Director of Government Affairs

www.ISPLA.org

ABAResolution 101C ADOPTED AS REVISED

Urges Judges’ Consideration Presenting Expert Testimony to Jurors

RESOLVED, That the American Bar Association urges judges and lawyers to consider the following factors in determining the manner in which expert testimony should be presented to a jury and in  instructing the jury in its evaluation of expert scientific testimony in criminal and delinquency proceedings:

1. Whether experts can identify and explain the theoretical and  factual basis for any opinion given in their testimony and the reasoning upon which the opinion is based.
2. Whether experts use clear and consistent terminology in presenting their opinions.
3. Whether experts present their testimony in a manner that accurately and fairly conveys the significance of their conclusions, including any relevant limitations of the methodology used.
4. Whether experts explain the reliability of evidence and fairly address problems   with evidence including relevant evidence of laboratory error, contamination, or sample mishandling.
5. Whether expert testimony of individuality or uniqueness is based on valid scientific research.
6. Whether the court should prohibit the parties from tendering witnesses as experts and should refrain from declaring witnesses to be experts in the presence of the jury.
7. Whether to include in jury instructions additional specific factors that might be    especially important to a jury’s ability to fairly assess the reliability of and weight to be given expert testimony on particular issues in the case.

The resolution is derived from a report which in part states:

"Many of the reported problems with forensic science evidence have resulted from the failures of trial attorneys to investigate thoroughly forensic science evidence, the misunderstandings of trial attorneys concerning the nature of that evidence and misstatements by trial attorneys concerning the weight to be attributed to that evidence.  Until an elevation in the knowledge base of trial attorneys is achieved, the adversarial system will continue to falter with respect to the proper presentation of forensic science evidence."

Below is a direct link to the 17-page ABA reference material which criminal defense investigators should consider reviewing. Among other things, it comments on the National Academy of Sciences (NAS) Report on forensic science, along with cases such as Daubert:

THE MICHIGAN Tracking Device Execption

Never thought I said this but: Go Blue

THE MICHIGAN PENAL CODE (EXCERPT)
Act 328 of 1931

750.539l Tracking device; placement or installment on motor vehicle without consent; violation as misdemeanor; penalty; exemptions; inapplicability of subsection (2)(j); liability for damages; definitions.

Sec. 539l.

(1) A person who does any of the following is guilty of a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $1,000.00, or both:

(a) Installs or places a tracking device, or causes a tracking device to be installed or placed, in or on a motor vehicle without the knowledge and consent of the owner of that motor vehicle or, if the motor vehicle is leased, the lessee of that motor vehicle.

(b) Tracks the location of a motor vehicle with a tracking device without the knowledge and consent of either the owner or the authorized operator of that motor vehicle or, if the motor vehicle is leased, either the lessee or the authorized operator of that motor vehicle.

(c) While being the restrained party under a protective order, tracks the location of a motor vehicle operated or occupied by an individual protected under that order with a tracking device.

(d) While on probation or parole for an assaultive crime or a violation of section 81(3) or (4) or section 81a(2) or (3), tracks the location of a motor vehicle operated or occupied by a victim of that crime or by a family member of the victim of that crime without the knowledge and consent of that victim or family member.

(2) Subsection (1) does not apply to any of the following:

(a) The installation or use of any device that provides vehicle tracking for purposes of providing mechanical, operational, directional, navigation, weather, or traffic information to the operator of the vehicle.

(b) The installation or use of any device for providing emergency assistance to the operator or passengers of the vehicle under the terms and conditions of a subscription service, including any trial period of that subscription service.

(c) The installation or use of any device for providing missing vehicle assistance for the benefit of the owner or operator of the vehicle.

(d) The installation or use of any device to provide diagnostic services regarding the mechanical operation of a vehicle under the terms and conditions of a subscription service, including any trial period of the subscription service.

(e) The installation or use of any device or service that provides the lessee of the vehicle with clear notice that the vehicle may be tracked. For a lessor who installs a tracking device subsequent to the original vehicle manufacture, the notice shall be provided in writing with an acknowledgment signed by the lessee, regardless of whether the tracking device is original equipment, a retrofit, or an aftermarket product. The requirement for written acknowledgment placed upon the lessor is not imposed upon the manufacturer of the tracking device or the manufacturer of the vehicle.

(f) The installation or use of any tracking device by the parent or guardian of a minor on any vehicle owned or leased by that parent or guardian or the minor, and operated by the minor.

(g) The installation or use of a tracking device by a police officer while lawfully performing his or her duties as a police officer.

(h) The installation or use of a tracking device by a court officer appointed under section 8321 of the revised judicature act of 1961, 1961 PA 236, MCL 600.8321, while lawfully performing his or her duties as a court officer.

(i) The installation or use of a tracking device by a person lawfully performing his or her duties as a bail agent as authorized under section 167b or as an employee or contractor of that bail agent lawfully performing his or her duties as an employee or contractor of a bail agent.

(j) Except as provided in subsection (3), the installation or use of a tracking device by a professional investigator or an employee of a professional investigator lawfully performing his or her duties as a professional investigator or employee of a professional investigator for the purpose of obtaining information with reference to any of the following:

(i) Securing evidence to be used before a court, board, officer, or investigating committee.

(ii) Crimes or wrongs done, threatened, or suspected against the United States or a state or territory of the United States or any other person or legal entity.

(iii) Locating an individual known to be a fugitive from justice.

(iv) Locating lost or stolen property or other assets that have been awarded by the court.

(3) The exemption under subsection (2)(j) does not apply if either of the following applies:

(a) The professional investigator or the employee of the professional investigator is working on behalf of a client who is the restrained party under a protective order.

(b) The professional investigator or the employee of the professional investigator knows or has reason to know that the person seeking his or her investigative services, including the installation or use of a tracking device, is doing so to aid in the commission of a crime or wrong.

(4) A person who illegally installs or uses a tracking device or a person described in subsection (2)(i) or (j) who installs or uses a tracking device is liable for all damages incurred by the owner or lessee of the motor vehicle caused by the installation or use of the tracking device.

(5) As used in this section:

(a) "Assaultive crime" means that term as defined in section 9a of chapter X of the code of criminal procedure, 1927 PA 175, MCL 770.9a.

(b) "Minor" means an individual less than 18 years of age.

(c) "Motor vehicle" means that term as defined in section 412.

(d) "Professional investigator" means a person licensed under the professional investigator licensure act, 1965 PA 285, MCL 338.821 to 338.851.

(e) "Protective order" means both of the following:

(i) An order entered under section 2950, 2950a, or 2950h of the revised judicature act of 1961, 1961 PA 236, MCL 600.2950, 600.2950a, and 600.2950h, or under section 6b of chapter V or section 3(2)(o) of chapter XI of the code of criminal procedure, 1927 PA 175, MCL 765.6b and 771.3, or under section 13a of chapter XIIA of the probate code of 1939, 1939 PA 288, MCL 712A.13a, or under section 36(16) of the corrections code of 1953, 1953 PA 232, MCL 791.236.

(ii) A foreign protection order as defined in section 2950h of the revised judicature act of 1961, 1961 PA 236, MCL 600.2950h.

(f) "Tracking device" means any electronic device that is designed or intended to be used to track the location of a motor vehicle regardless of whether that information is recorded.

History: Add. 2010, Act 107, Eff. Aug. 1, 2010

© 2009 Legislative Council, State of Michigan