In a New Hampshire incident, the defendant investigator claimed the fact he was a licensed investigator precluded the stalking order. The law sees it differently.
The investigator is not accused of breaking any criminal law. This was a civil stalking petition filed by the victim. The investigator was not working for an attorney; he had been hired by the ex-boy friend, with whom he worked. The Court noted the victim "had ended their relationship about six months earlier, and the defendant (ex boyfriend) began stalking her after she had had him arrested for breaking into her home."
The Court left the door open to interpret future events stating the investigator merely "... had to show the purpose for which he was hired was itself lawful." The investigator was asked to explain his "legitimate purpose" during the hearing. He claimed that was a privileged communication between him and his client and he could not reveal it.
The Court in New Hampshire has created two categories for surveillance: "To meet this burden, the defendant had to do more than merely testify that he was a licensed private detective who was hired to follow the plaintiff. He also had to show the purpose for which he was hired was itself lawful. See id. at 7-8. For instance, had he been hired to follow the plaintiff so a third-party could kill her, the purpose for which he was hired was not lawful. See RSA 106-F:9 (Supp. 2005) (investigators must file surety bond that is "so conditioned that the person bonded shall conduct his or her business in a lawful and honest manner without committing, compounding, aiding or abetting the commission of any criminal offense");
Private investigators have duty to exercise reasonable care in disclosing third party's personal information to client, in part, because of foreseeable risk that such information could be used by stalkers to harm victim). Similarly, had he been hired to follow the plaintiff for the purpose of causing her to fear for her own personal safety, that purpose also would be unlawful. We do not construe RSA 633:3-a, II(a) as authorizing stalking by proxy. In this case, the defendant refused to testify as to why he was hired. Accordingly, by his own election, he failed to demonstrate that the purpose for which he was hired was lawful. Thus, the trial court did not err when it ruled that the defendant's conduct was not for a "legitimate purpose" merely because he engaged in it in his capacity as a licensed private detective. "
According to the decision: "The following day, when she pulled into the parking lot of her son's school, she saw the defendant (investigator) drive by her. She testified that 'he... stared me down. NH law does not have a blanket exception for investigators in the licensing statute, but the issue is addressed in the stalking statute (RSA 633:3) which states that following an individual for a "legitimate purpose" can not be considered stalking. The burden of proof is on the investigator to prove "legitimate purpose." This term was put into the law when it was crafted, specifically for investigators. But it puts the burden of proof on the investigator to be able to prove the "legitimate purpose" should the need arise. All investigators in NH must be aware of this and prepared to deal with it.
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 is: anticipation of litigation. The GLB contains similar permissible purposes.
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).
PIs 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.
Does articulating this pose an ethical dilemma for the investigator? I don't have the answer. Will the court accept a generic purpose or demand more information? Again we do not know.
In a 1998 case the same Court noted the value of a surveillance done for an attorney. "The evidence offered regarding the plaintiff's failure to properly supervise and attend to the children was overwhelming.....In addition, a private investigator testified that when he observed the plaintiff on ten 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.
John M. Healy
The author is a retired State Police Lieutenant and is a licensed professional investigator. He is the Past President of The New Hampshire League of Investigators, Inc., and the New England Council of State Investigator Associations. (WWW.PIMALL.COM/NECOSIA">WWW.PIMALL.COM/NECOSIA) He teaches investigative classes at the NH and VT Police Academies and to investigators around New England. He does business as Litigation Intelligence Services, LLC and lives in Warner, NH.
http://www.litigationintelligence.com
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