Movies and T.V. have changed public perception of the way investigations are conducted. Many cop and P.I. programs, regularly, show the protagonist using a pretext, more often than not an outrageous one, to obtain information. Ever wonder how legal that is? Actually, pretexting can be legal or illegal depending on how it’s done.
What is pretexting, anyway? A P.I. puts a business sign on his van, dresses in a service uniform and asks for access to a home or business in order to check something, install something—you get the picture. While in the residence or business, she looks through files, checks out the lay of the land and generally snoops. Another type of pretext used on T.V. and movies is one in which the P.I. makes a phone call, pretending to be someone else. Perhaps she asks for phone records to be sent to a “new” address. However, this is not as easy as it seems today, with privacy passwords in place. If information is gained through the use of a ruse or pretext, can it be used in court? Does it matter to the investigation?
Basically, pretexting is lying. Not lying for personal gain or with intent to hurt—at least most of the time—but lying nonetheless. It’s become controversial because of serious misuse in the past, by law enforcement as well as private investigators, yet courts have consistently upheld its use when properly executed.
Pretexting is an essential tool in the police detective and the PI’s bag of tricks, but it’s trickier than most. Lying is a moral issue, and in certain circumstances, a crime, so the criminal justice system has struggled for years with how far deception should be allowed in law enforcement and in private investigation. The issue is still presented to the courts from time to time.
Undercover work is lying—every step—from the use of a false name and credentials to the unmarked car masking the operative’s true identity. While some argue against pretexting, if performed without harming anyone or coercing the innocent into a false confession, it can be used in court.
The problem lies in the need to balance the reality of criminal behavior with laws that protect the rights of all. Many offenders prey on the average citizen’s uninformed idealism and naiveté about the criminal mind and behavior. Because of this, the law enforcement officer, and by extension the PI, may feel constrained by laws protecting the rights of this suspect who, seemingly, cares nothing for the rights and safety of others. Yet commitment to the rule of law (a universally accepted and defined group of laws) separates countries such as the United States from those ruled by totalitarianism; so we must balance getting the bad guy with protecting individual rights.
Because of what’s at stake, adherence to the law must be top priority, balanced by protection for the public. The Supreme Court has recognized this challenge. In order to balance the scale when necessary, it has given permission to certain behavior that skirts the hard-line rule of law, and allows those with responsibility for public protection to push the truth when seeking information from a suspect. The line between what’s legal and what is not is fine, however, and must be tread carefully.
In achieving this balance, the cost of lying is weighed against the foreseeable benefits to the public and victim should this lie result in resolution of a crime. When placed on the scale, the moral wrong of the lie (if done correctly) isn’t as weighty as achieving justice for the crime victim and protection for the public by removal of the offender—especially a violent one—from society. Unfortunately, this isn’t the only situation in which legal ideals and real-world practicality clash. For every ideal a civilized society vows to uphold, there is something else to challenge the practicality of that ideal. Some of these challenges follow:
- The presumption of innocence is challenged by the knowledge that many are actually guilty.
- The ideal to protect each person’s civil rights is challenged by the facts that some have abused, and will continue to abuse, the civil rights of others. When victim and offender rights conflict, the question of whose rights are more important strains the ideal.
- The ideal of the right to be released on bail is challenged by the knowledge of the violent potential of many offenders should they be released—so bail must sometimes be denied.
- The ideal of law enforcement refraining from use of physical force is challenged by suspects who refuse to be taken into custody without a fight and by the need for the officer to protect himself and the public.
More challenges exist, but this short list illuminates the problem of finding a balance. In light of the challenges to law, the challenge of lying “correctly” can be discussed. The lie in question is called permissible deception. It means that law enforcement officers are allowed to lie to a suspect if the answer wouldn’t harm an innocent person or coerce one into making a false confession. If, instead, the aim is to reveal the guilt of an offender or get to his guilty knowledge concerning a crime, the lie is permissible.
However, some lies aren’t permissible. For example, an investigator can’t tell a suspect that his child is in the hospital and that, upon confession, he’ll be taken to this child who is barely clinging to life. Under these circumstances, many innocent people would confess for the chance to see a beloved child one last time. This type of lie is outside the parameters of legality and morality and won’t hold up as permissible deception.
So what can the investigator say to elicit information? She can tell the suspect that his partner, spouse, girlfriend, or another person has given him up as the offender. This has been used so many times on cop shows you’d think it wouldn’t work anymore—but it does.
Also, the investigator can allege that evidence from the suspect’s person was found at the scene or on the victim. This ruse wouldn’t hurt an innocent person because nothing of his was actually found at the scene, but it may convince a guilty person (who might not be sure that he hadn’t left some trace evidence) to tell the truth. There are many other aspects of permissible deception, but these form the basic tenets.
For police, using a pretext or ruse has also been upheld in the courts for the purpose of gaining entry to an otherwise unavailable area or person. Pretending to be organizing a future class reunion, masquerading as a past coworker, acting as someone who owes the suspect money or wants to send a package are all permissible ruses for gaining access to the suspect and those around her. Other ruses are more questionable, especially for the PI.
Regularly, police pretending to be in other occupations in order to gain entry have been exonerated for using pretexting, but the PI must be more careful. No one should pretend to be someone in whom most people have automatic trust, such as a doctor or pastor. Juries don’t like this, by the way. And, it’s illegal to claim to be law enforcement if you’re not.
Not only should a pretext be carefully chosen, the location where the P.I. attempts to gain access using a ruse should also be chosen carefully. If attempting to enter a private residence by pretending to be an inspector of some type, someone providing a free service such as cleaning carpets or giving an estimate for painting, or an employee from the alarm company checking an irregularity, beware—this can get a P.I. into a lot of trouble.
Entering a private residence under these pretenses is not something most PIs will do. Not only is this considered a bit sleazy, but should the P.I. be found out, the subject can charge the pretexter with stealing, breaking a valuable object, or even committing violence against him, his property, or his family. Where’s the proof that this didn’t happen? Police routinely audio or video tape undercover operations, and some P.I.s wear body cameras to protect against false accusations in any kind of operation, but it is still dicey.
The end result should always be kept in mind—can that which is learned be used to further the case? Some P.Is will take the risk of entering illegally in order to gather information that cannot be obtained otherwise. However, most recognize that if you can’t take what you find to court, what good is it? Alternatively, if your character is the unethical P.I., she doesn’t care about that. This type will probably not be taking anything to court and is only interested in what can be obtained and exchanged for payment.
Using pretexts to talk to public employees or enter parts of public areas that aren’t open to the public is a somewhat different situation. The expectation of privacy in these places is not as great, so this is where more P.I.s may take a chance on pretexting.
To avoid any of these problems, it’s not necessary to pretend to be someone one is not. Instead, the P.I. can pretend to want something other than what is really wanted, or pretend to want the desired information for an entirely different reason. Learning to encourage people to talk is a necessity. When they’re comfortable and answering freely, slip in the real questions.
One way to encourage talk is to scope people out and discover something held in common. Does he work on cars? Does he like boats? Does she read a certain author? Does she garden or golf? People love to discuss hobbies and interests. Finding something with which this person relates is golden. Comment on a child’s or a pet’s photo on the desk. Then, find a way to work in questions.
Back to the beginning of this article: Can information obtained by using an illegal ruse or any other illegal method, be used in court? The answer is no—usually. There are always exceptions, but basically, illicitly gained information and evidence is “fruit of the poisonous tree”. If the search for, or obtaining of, evidence is illegal, the tree is poisoned. Any fruit, information or evidence, from this poisonous tree is deemed inadmissible.
Does this matter? In police investigations it definitely matters. The aim of all searches and investigations is to gain evidence should a case end up to court. Does it matter to a P.I.’s investigation? Often, not so much. If the aim of the investigation is to discover whether a spouse has been unfaithful, and the client has no intentions of settling in court (for whatever reason), the P.I. may make the decision to gain information in any manner available. If it doesn’t matter to the client, it may not matter to the P.I. In this case, listening devices, hidden cameras and GPS devices may be used illegally—violating the spouse’s right to privacy. How this might be done is the subject for another article. 🙂
However, there are inherent dangers in violating privacy rights, even those of a spouse. First, if the illicit activity or illegal use of a device or camera is discovered, the P.I. may lose a professional license or even face criminal charges. The client may face criminal charges as well. There is also the risk of a client/spouse confrontation when the spouses’ activities are illuminated. In some states, if the client commits a violent act against a spouse, or anyone, as a result of illegal information provided by a private investigator, further charges may be added. Many P.I.s are careful with information that is obtained legally as well, asking for an attorney, family member or counselor to be present when the client views sensitive information or video.
While there could be times when a writer can make the case for violating someone’s privacy for a greater good, this is not something that happens often in the real world of investigation. One reason is that investigators, particularly police investigators, are schooled in the damage that can be done to a case if illegalities are uncovered. The case is the thing—an investigator who does not clear cases, or is unable to secure evidence for court may not be an investigator for long. In order to take the risk of obtaining information and evidence illegally in the course of an investigation, the stakes would have to be great.
Sheila L. Stephens was the first female Alcohol, Tobacco & Firearms (ATF&E) special agent in Alabama, recruited while a police officer. Stephens earned a MS in Criminal Justice and is completing a PhD in Forensic Psychology. She holds degrees and certificates in Education, Interview/Interrogation, Terrorism, Hypnosis, NRA programs, and Street Survival. Stephens owns a private investigation business, is a professor at several online schools to include Boston U’s Masters in Criminal Justice program. In 2008, “The Everything Book of Private Investigation” was released. Her book on weapons, surveillance and technology will be released soon. Learn more at www.SheilaLStephens.com or www.SaferSecurityInc.com.
(The Killer Nashville Guest Blog series is coordinated by KN Executive Director Beth Terrell (http://www.elizabethterrell.com/). To be a part of this series, contact Beth at firstname.lastname@example.org.)