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Intentional Surveillance: a Tool for the Criminal Defense Investigator, Part II

  • September 01, 2011
  • by TW Person

Private investigator conducting surveillanceThis is the second article in a two-part series on intentional surveillance. To read the first part, click here.

So, let’s talk about Intentional Surveillance.  

To be “Intentional”, surveillance must incorporate six clearly identifiable facets:

  1. The Target – you must know as much about your target as possible including residence, appearance, work habits, hangouts, play habits, vehicles, associates, enemies, drug or alcohol dependencies and even temperament. The more you know, the better chance you will have of accomplishing your mission.
  2. Desired Results – be clear on what it is you want to find, but be aware you may achieve results not desired or results even more desirable than you foresaw.
  3. Time Frame – know at least a definite start time. Your ending time may be pre-determined or it may be determined by your target’s activities. If you have a designated number of hours to spend, allocate them as well as possible based on your knowns.
  4. Expecting the Unexpected – always know that something will happen you have not planned for. It’s very rare that surveillance is routine if your target is active. Perhaps like fishing, you’re never exactly sure what you’ll come home with.
  5. Documentation – keeping accurate track of where you’ve been and what you heard and saw is essential. A handheld digital audio recorder is ideal. If your desired results contain video footage, your equipment should reflect that. If still pictures will suffice, prepare accordingly. If you are dealing with still photos, be sure there is no flash. Keep track of every turn, driving speeds, times at which events occur and anything out of the ordinary. The more detailed your documentation, the more believable it becomes.
  6. Reporting – be prepared to write a thorough report. It may be necessary to transcribe audio portions and even video portions of your results. A video example might be to be sure to point out with which hand an individual opens a door or how fast he/she walks. Be sure to be accurate and search for clues which may have been overlooked initially.

These guidelines are compiled from years of experience and hundreds of surveillance assignments and apply generally to perfect conditions. However, they are just that – guidelines. They will help you and are basic and mandatory to any surveillance effort you make. Having said that, you can never be too prepared. You may be working on another case or in some other town and suddenly see something which you feel pre-empts your current assignment and you need to begin surveillance. If that is the case, follow these six points as closely as you are able, but follow them. And, keep the three main points in mind always.

If there’s any possibility you may be going on surveillance, have your bag packed. Keep a gym bag with a minimum of the following articles: binoculars, audio recorder, video recorder, flashlight, pee jug, radios, batteries, a towel and packaged snacks like crackers or granola bars. Bottled water may also be handy. Make for yourself a checklist of all necessary items each time you go out. If you are going on a mobile or stationary surveillance in your vehicle, make sure it is not too clean (except for the windows) or not too dirty. You want to blend in, not stand out. Your vehicle should be a neutral color like gray or light blue, not red or black. Your clothing should be inconspicuous also.  

Another rule to keep from being noticed is to never make eye contact with your subject. Once you have done that, it becomes more of an undercover assignment than surveillance. Do not converse with your target or be noticed at all if possible. Remain aware of your surroundings and blend in as much as possible. That’s the key.

So, how can surveillance be of value to the defense investigator?

"The Criminal and Civil Investigation Handbook" by Joseph J. Grau points out that one main difference between criminal and civil investigations is there are more lies and liars in criminal cases. That has certainly proved true in my experience. And, in my estimation, that is a principal area where surveillance can be a successful and beneficial tool to the criminal investigator.  

Establishing credibility or discrediting witnesses and victims can be very useful to criminal defense attorneys. If a witness has expressed that he or she does not know or associate with so-and-so, for example and you during surveillance see the two of them together, guess what? If a No Contact Order has been issued and it may be beneficial to the defense to verify it is or is not being violated, surveillance can do that. If you suspect and want to prove an individual frequents a certain location, it can help there as well. You may even be witness to further crimes or suspicious activity by persons associated with your case while conducting your surveillance. Your imagination might tell you how you could use that type of information.

If a victim or witness claims to have been injured in some way, or walks with a limp or claims to otherwise be hampered as a result of a crime (in the presence of certain people), it may be effectively disputed by surveillance.

If a witness or accuser is barred from driving and is caught driving during surveillance, that could be useful. Or, perhaps a witness or victim is on probation and might be documented to be drinking or otherwise violating probation.

The activities of a spouse, significant other or alleged victim in a domestic assault or sexual abuse case can be documented if there is reason to believe they are lying to you or to authorities.

Some witnesses are very good at putting up an impressive front when they deem it may be beneficial. Finding out their real personality and behavior patterns can be done with surveillance.

Surveillance at times may even uncover new evidence beneficial to the defense of a case. The more surveillance you perform and the more you use it, the more productive and useful it will become.

Conclusion

Intentional Surveillance entails preparation, having a defined purpose and goals and expecting the unexpected.

Similar in a way to a polygraph examination, surveillance can find untruths and uncover deception or deceptive behavior – and surveillance is admissible!

How, when and if surveillance can be beneficial to a defense rests in the minds of the attorney and investigator in each case, but knowing what surveillance is and can do is vital in making those decisions.

TW Person has been a licensed private investigator for 18 years at OS 29 Investigations. Person published a book in 2009 called "Milo Powell PI," which is a collection of 40 short stories from his career. Anyone interested in hearing more about that book can email [email protected]

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