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

That Good Feeling

That Good Feeling

By: Jim Silvania, CLI, CFE

            There are times in this business when you wonder if it’s all worth it. Incoming payments are slow and every investigation seems to run into a brick wall. Then something you did weeks ago makes it all worthwhile.

            For some it’s the release of a wrongfully convicted offender. For others it is reuniting a loved one with a lost relative. The list could go on, but for me on this wonderful day it’s obtaining justice or some semblance thereof.

            Some time back we were contacted by a frustrated family in Southern Ohio who had come to the end of their wits in attempting to resolve a “bullying” issue involving their 14 year old special needs daughter. The aggrieved family had been turned away by the county prosecutor, the county sheriff, Children Services and the school system in which the alleged bullying occurred. The superintendent of the school district had ordered the family off school property and sent them an email stating that their accusations were “bordering on slander and harassment."

            In every instance the family was turned away by the people whose salaries they paid to protect their child. Even worse, the perpetrators of the alleged abuse were also recipients of the family’s tax dollars. So, in reality, the family was paying to have their daughter abused by her middle school teacher and the teacher’s aide.

            A well-placed tape recorder revealed the following conversations:

·         The teacher’s aide can be heard asking the student why she said she didn’t know the answer to a question. “Because I didn’t know,” the student said. “Are you kidding me?” the aide said. “Are you that damn dumb? You are that dumb? ... Oh, my God. You are such a liar.” “I am not lying,” the student said. “No wonder you don’t have friends,” the aide said. “No wonder no one likes you.”

·         Both the teacher and the teacher’s aide teased the student about her body. “Don’t you want to do something about that belly?” “Yes,” the girl said. “Well, evidently you don’t, because you don’t do anything at home,” the aide said. “You sit at home and watch TV.”

·         When the student failed to answer a question correctly, the teacher ordered her to climb onto an exercise treadmill, which was in the classroom to help “refocus” special-needs students. The recordings suggest that the student spent more than 15 minutes on the treadmill—with the speed steadily increasing. Eventually, the treadmill stopped working, and the girl was told to run in place.

            When the family complained to the school board, the accused teacher’s remarks were “liars raising a liar.” The school board initial investigation found “no inappropriate conduct” by either the teacher or the teacher’s aide. That was until the audiotapes were made public which in turn caused the school board to quickly settle the matter out of court for $300,000.

            The sad part of the story is that the teacher’s only punishment for her criminal acts was to be forced to attend a “bullying” seminar. The teacher’s aide was summarily dismissed. The superintendent, who allowed for the activities of the teacher and teacher’s aide to continue, received no disciplinary action.

            There are times when people have been betrayed by those they place in positions of trust to look out for their own interest and that of their loved ones. In those times the much aligned plaintiff’s attorney and their private investigators can expose the darkness to light and attempt to bring about justice for the wronged.

It’s what keeps some of us going.

Jim Silvania, CLI, CFE, owns Silvania Investigative Services, LLC. He’s investigated throughout Ohio for 45 years.

 See: http://today.msnbc.msn.com/id/26184891/vp/45302872#45302872  for Ann Curry’s interview of the victim, her father and their attorneys.

Businesses hire private investigators to trawl social media

Businesses hire private investigators to trawl social media
Published: Monday, November 28, 2011, 5:40 AM     Updated: Monday, November 28, 2011, 6:45 AM
 By Alison Grant, The Plain Dealer
     Business Wire file more than 82 percent of companies use social media to find out information about their competitors, according to a Forrester Research survey last year of more than 150 companies.

     CLEVELAND, Ohio -- The telephoto lens is still one of a private investigator's most valuable tools, but a Facebook account is becoming just as important. Especially in the business world. Increasingly, corporations are hiring private investigators to trawl social-media sites for intelligence about competitors and to watch for insider leaks, product complaints and evidence of employee misconduct.
     Investigators still use the old-fashioned ways -- snapping secret photos, slapping global positioning devices onto cars, tunneling through criminal files. But today's corporate sleuths spend more time mining the mass of information people put online about themselves.
     "We use social media primarily to research people," said Avon Lake native Kristin Wenske, an investigative analyst in New York City with Corporate Resolutions Inc., an intelligence service. Wenske's clients are mostly private-equity firms and hedge funds, and before they plow hundreds of thousands or millions of dollars into a company, they want to make sure its management team is clean.

     Private investigator Tom Pavlish of Cleveland also has been assigned to check into chief executives of companies targeted for acquisition. In one case, the CEO had a favorable public image, but research unearthed sexual harassment accusations from two sources. Pavlish's client decided not to keep the executive when the deal closed because of the potential exposure and liability if the manager repeated his conduct.

    "Remarkably, I've developed negative information even from LinkedIn references," Pavlish said.
 Spying on the other guys

     More than 82 percent of companies use social media to find out information about their competitors, according to a Forrester Research survey last year of more than 150 companies.
     Paul Baeppler, a Cleveland police sergeant who founded Integrity Investigations in Westlake, said Tweets, Facebook updates and Google searches back up classic detective work, allowing investigators "to read between the lines and see what's not actually there and using that as a lead into something more concrete."

     At Corporate Resolutions, Wenske uses social media to look for illegal activity, undisclosed business interests and resume puffing. For one client who needed help collecting money from a businessman who pleaded poverty, Corporate Resolutions' cyber-search showed the businessman was hiding assets. The businessman's son posted comments on Myspace.com about hanging out at his dad's place in the Caribbean, with photos of the property.  "Based on these comments we extended our asset search to the Caribbean," Wenske said.

     The hazards of an accidental online disclosure also tripped up Hewlett-Packard Co. this year when a vice president mentioned the computer maker's new web-storage initiative on his LinkedIn profile. Business rivals got a look at previously secret details of the company's cloud-computing services.

     Kroll Inc., an international firm, has a reputation as Wall Street's private eye because of the agency's corporate espionage. Social media is a tool that only gets better as it gets more robust, said Peter Turecek, Kroll's senior managing director of business intelligence and investigations. Kroll builds profiles of executives in prospective deals, "where we hope the person is good and angelic," Turecek said. Fraud investigations look at the modus operandi of suspects. Have they done this before? How did they do it? Who in their network may be in on it?

    When one client asked Kroll to investigate an intellectual-property breach, the company used photos posted on Twitter -- shot from the rooftop of a New York City building -- to determine the address of the suspect's apartment.

    In another investigation, Kroll used LinkedIn and Facebook to establish connections between a vendor and an employee who may have embezzled company money.

     "Not too long ago it was very difficult to try to ascertain who someone's network or associates were without doing a lot of data mining and even surveillance, which is fairly labor intensive and therefore costly," Turecek said. Mario Zelaya of Majesetic Media in Toronto said he and his partners were shocked to learn how easily they were able to spy on a competitor. By blending information from Google, Facebook, Twitter and geolocation sites FourSquare and Gowalla, Majestic Media identified which clients the competitor's salespeople spoke with and what potential deals were occurring. It would have been quite possible to phone the clients and confirm the hunches -- and possibly disrupt ongoing negotiations if contracts weren't signed, Zelaya said. That's why he considers such tactics unethical. He said his experiment was meant only as a cautionary lesson about posting sensitive information online.

 'You want to avoid surprises'

     Jim Silvania, owner of Silvania Investigative Services in Columbus, has used social media to check the financial strength of people who wanted to invest in a client's business; to see who was responsible for giving business secrets to a competitor; and to investigate a violent employee who turned out to be a member of the American Nazi Party, posing in an Internet photo with a rifle in his arms and a swastika. "They provided extra security when they did the termination," Silvania said.
     The Cleveland law office of Porter, Wright, Morris & Arthur has hired investigators to find out more about a company or its executives when there were reasons to be "abundantly prudent," partner Michael Ellis said. "You try to gather as much information about the other side, good and bad, as you can. You want to avoid surprises," he said.

    As the effect of social media becomes more intense, companies have begun monitoring what's being said about them online -- and trying to manage their Internet footprint.

     In a warren of cubicles at SP Data's U.S. headquarters in Tower City, many of the office's 225 employees track what is being said about SP Data's customers on social media, blogs and opinion sites. Online chatter about a company or its products that is positive might prompt an SP Data employee to re-Tweet the comment or respond to the writer with a thank you. When the sentiment is negative, the poster might get a response through the same online site, or by phone or email. "Only 5 percent of posts ever made about a company are responded to," said Daniel Bemis, president of SP Data. "It should be commonplace."

     Reputation.com Inc., based in Redwood City, Calif., helps businesses promote themselves on the web. Chief Executive Michael Fertick advises businesses to start by understanding how they're perceived online. Does 50 Likes on Facebook mean anything? Does the fact that people are mentioning you once a week on Twitter mean anything? How does that compare with other businesses in your field? Reputation.com says there's a way to put the Internet genie back in the bottle: Once a company has a handle on its image, it can start to manage it. The firm has made "millions of observations" about the secret rules of Google, Fertick said, to figure out how to shuffle postings about a company to put it in the best light. As for web monitoring for competitive business intelligence, Fertik figures it's in its infancy.

    A single Fortune 500 business might be mentioned dozens or hundreds of times a day online -- a mountain of traffic to analyze. So Reputation.com is designing software that understands human language enough to sift for positive and negative sentiment. The computer analytics are daunting. "We've worked on it for 4½ years," Fertik said.

    But when it comes to human investigators sniffing the Internet for specific companies or employees, the hunt for fertile tidbits is in full swing. "Every day, in a multitude of ways, in social networks," Silvania said, "it's out there."

Teacher, aide bullied student, 14

 This was our case:

$300,000 SETTLEMENT

Teacher, aide bullied student, 14

WASHINGTON C.H., Ohio — A Fayette County school district has agreed to pay $300,000 to settle a lawsuit filed by the mother of a 14-year-old special-needs student who was ridiculed last spring — on tape — by her teacher and a classroom aide.

The Miami Trace Local School District also says it will abide by a state-brokered agreement that places the teacher, a licensed intervention specialist, on what amounts to probation and requires her to complete eight hours of training in how to recognize child abuse and stop bullying.

The teacher, Christie J. Wilt, 30, “engaged in conduct unbecoming to the teaching profession when she made inappropriate comments to a student with disabilities and allowed a co-worker to make inappropriate comments to a student with disabilities,” according to a consent agreement signed last month by Wilt and Stan Heffner, the state’s superintendent of public instruction.

The classroom aide, Kelly L. Chaffins, 46, who had worked at Miami Trace Middle School since August 2008, was asked to resign by the district after her comments came to light.

Wilt’s and Chaffins’ remarks were made over a four-day period in April and captured on a tape recorder that the student’s mother had hidden on her daughter after hearing her complain about her treatment at school.

The girl, now a freshman at Miami Trace High School, told WBNS-TV (Channel 10) last week that the comments made her “pretty sad.”

Miami Trace Superintendent Dan Roberts said district officials were “distressed, very upset and angered by what was on those tapes.”

Daniel R. Mordarski, a Columbus attorney representing the student and her family, said Miami Trace officials should have fired Wilt, a teacher there since August 2007, as soon as they heard the comments.

“What’s shocking to me is that there is one teacher that is still employed by the district,” he said.

In one of the recordings made in April, Chaffins can be heard asking the student why she said she didn’t know the answer to a question.

“Because I didn’t know,” the student said.

“Are you kidding me?” the aide said. “Are you that damn dumb? You are that dumb? ... Oh, my God. You are such a liar.”

“I am not lying,” the student said.

“No wonder you don’t have friends,” Chaffins said. “No wonder nobody likes you.”

On another occasion, Wilt and Chaffins teased the student about her body.

“Don’t you want to do something about that belly?” Chaffins said.

“Yes,” the girl said.

“Well, evidently you don’t, because you don’t do anything at home,” the aide said. “You sit at home and watch TV.”

Another time, after the student failed to answer a question correctly, Wilt ordered her to climb onto an exercise treadmill, which was in the classroom to help “refocus” special-needs students, district officials said later.

The recordings suggest that the student spent more than 15 minutes on the treadmill — with the speed steadily increasing. Eventually, the treadmill stopped working, and the girl was told to run in place.

When the girl’s mother and the mother’s boyfriend complained about that incident and the comments, Chaffins said they were “liars raising a liar.” That remark also was recorded.

An initial investigation by Roberts found no inappropriate conduct by Wilt or Chaffins. In fact, in an email, the superintendent said the accusations were “bordering on slander and harassment."

Only after he was presented with the recordings did Roberts change his mind.

“When we found audio proof, we acted immediately,” he said.

District officials demanded — and received — Chaffins’ resignation. She was making $16,132 a year, school records show.

They did not, however, seek Wilt’s resignation. She is paid $41,292 a year.

“We felt that the level of her involvement there did not meet what the educational aide had done,” Roberts said.

However, district officials did forward the matter to the Ohio Department of Education’s Office of Professional Conduct and promised to comply with the agency’s disciplinary findings.

Under the resulting agreement, which Heffner signed Oct. 31, Wilt will be suspended if she fails to complete the anti-bullying training by June 1 or engages in any other “unbecoming conduct.”

Wilt declined to comment, and Chaffins could not be located.

“Forty-eight Hours in Portsmouth"

“Forty-eight Hours in Portsmouth”

By: Jim Silvania

          To most, if not all, homicide investigators the first 48 hours of any homicide investigation is the most crucial or critical time period of that investigation.  That’s the reason that CBS Television named its reality crime show,“48 Hours” and A&E has “The First 48”.  But, as the majority of Ohioans know, Portsmouth is a place where time stands still.

          On March 19^th of this year the Portsmouth Fire Department responded to a fire at an Edendale Rd. address and as fireman do, they put out the fire.  It was not until 72 hours later that authorities received a call from one of the persons of interest that there was a body inside the burnt out rubble. Apparently to be a Portsmouth Fireman, you don’t have to pass a vision test.

          After the belated discovery of the deceased victim the investigation began, or sort of.  Portsmouth is the only city in Ohio where the fire department conducts homicide investigations if they are fire related. Firemen, in most cases, are very good at what they do…put out fires. It is law enforcement’s job to investigate homicides, just not in Portsmouth.

The Portsmouth Fire Department was wise enough to call in an investigator from the State Fire Marshall’s office but he again is not a homicide investigator.  He is a cause & origin expert who ruled the fire incendiary with probable cause to believe it’s victim’s death was the result of a homicide.    

          Crime scene experts where then called in to gather evidence and DNA was submitted to BCI&I for analysis and the victim’s body was shipped off to Montgomery County for an autopsy.

          One of the campaign ploys forwarded by now Attorney General Mike DeWine was that DNA results would no longer take BCI&I months to be analyzed and returned to local law enforcement.  DeWine was elected Attorney General, but…

          3048 hours after the body’s discovery and DNA Collection, BCI&I released their DNA results and the Scioto county corner the death certificate stating that the victim was alive when the fire was started.

          Now, some 5,232 hours after the body’s discovery the homicide investigation appears to be going nowhere. During this time period the Portsmouth Fire & Police Department as well as the Scioto County Sheriff’s Department were offered “free” technical expert assistance into the death of Jason Moore but those offers all fell upon deaf ears.

          Anyone who watches any detective show on television knows that it is the homicide detective who speaks for the dead, no matter who they are, but in this case the only words coming from Jason Moore are “If you want to commit a homicide in Ohio just bring the body to Portsmouth and light a match”.

          The Obama Administration has just rewarded $100,000 of taxpayer’s monies, my money, to Scioto County to help curb the problems associated with drug abuse.  This comes a little late for Jason Moore. 

          You can throw all the money in the world into Scioto County but it’s not until law enforcement in that county enters the 21^st century will any progress be made.

OH Dept of Public Safety Lawyer Faces Public Reprimand

Lawyer faces public reprimand

• Joshua Engel pleaded guilty last October to three misdemeanors in the email case.

The Columbus Dispatch Thursday October 13, 2011 7:52 AM

Joshua Engel, former top lawyer for the Ohio Department of Public Safety, should get a public reprimand for illegally intercepting all agency emails for several months, a state panel has recommended.

The Ohio Supreme Court’s Board of Commissioners on Grievances and Discipline rejected the court disciplinary counsel’s push for a six-month suspended sentence of Engel’s law license. Instead, the panel said Tuesday that the Harvard-educated lawyer lacked a “dishonest or selfish motive” in intercepting emails between the Ohio inspector general or The Dispatch and anyone in the agency.

Although he secretly obtained confidential material, including inspector-general probes and federal criminal and grand-jury investigations, no one was harmed by the electronic “bug” but Engel himself, the commissioners determined. The panel cited an Engel character witness who said his ethics “are above reproach” and that he is “an extraordinarily caring and competent attorney.”

Commissioners acknowledged he should have had the email filter removed when he first got confidential material, but they said ongoing battles within and without the agency distracted him.

“The panel believes the stress of the ‘turf war’ undoubtedly obscured his focus. We believe it was not his knowing intent to ‘trap’ confidential information.”

And the board also noted, “His personal suffering, beginning with job-related stress in 2008, and as exacerbated by both criminal and disciplinary proceedings, have resulted in severe depression and suicidal thoughts. We note that he voluntarily sought psychiatric care and psychological counseling before being terminated from his position at DPS in late 2010.”

The board pointed out that former Gov. Bob Taft also was given a public reprimand in 2006 after he was found guilty of four misdemeanor ethics charges.

Last October, Engel was fined $750 and given a 30-day suspended jail sentence for each of three misdemeanors.

A technologies manager who obeyed Engel’s request to install the email filter was suspended but returned to work after receiving a written reprimand. Another department lawyer resigned for collaborating with Engel.

Engel’s attorney, Larry James of Columbus, told the panel, “The mistake made by (Engel) could have happened to anyone” as he tried to pursue the source of leaks from the department.

The recommendation now goes to the Supreme Court for final action.