Top 10 Things NOT To Do In An Investigation -- Illegal Investigation Techniques in New York

Winning in court requires thorough investigation, but zealous advocacy must not cross the line into criminal conduct. Lawyers may be responsible for the conduct of their private investigators.

Avoid these illegal investigative techniques:

1.  Opening Someone's Mail

It might be tempting to open mail addressed to a spouse or business partner with whom there is litigation or just suspicion, but doing so is a crime.

New York Penal Law § 250.25 (1), tampering with private communications (B misdemeanor), prohibits opening or reading a sealed letter or other sealed private communication without the consent of the sender or receiver. PL § 250.25 (2) prohibits divulging the contents or any portion of a sealed letter, without the consent of the sender or receiver.

Under federal law, 18 U.S.C. § 1702 makes it a crime, punishable by up to 5 years in prison, to take or open a letter after it has been placed in the mail, before it is delivered to the person to whom it is directed.

2.  Eavesdropping

New York and the majority of  U.S. jurisdictions are one-party consent states, meaning that a conversation (whether live or on the phone) may be recorded as long as one party consents. Two-party consent states -- where both parties must consent to a conversation being recorded -- include California, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Pennsylvania, and Washington.

Secretly recording a conversation where neither party consents is always illegal, even within one’s own home. See Penal Law § 250.05 (E felony); 18 U.S.C. § 2511; see Pica v. Pica, 70A.D.2d 931, 417 N.Y.S.2d 528 (2d Dep’t 1979) (husband could not secretly record conversations his wife had with a third party in the marital home).

Penal Law § 250.05 defines eavesdropping as “unlawfully engag[ing] in wiretapping, mechanical overhearing of a conversation, or intercepting or accessing of an electronic communication.” Penal Law § 250.00(6) defines “intercepting or accessing of an electronic communication” as the intentional “acquiring, receiving, collecting, overhearing, or recording of an electronic communication.”

Despite terms like “acquiring, receiving, and collecting,” New York courts have held that an eavesdropping violation requires the contemporaneous interception of electronic communications when they are transmitted. See Moore v. Moore, 2008 N.Y. Misc. LEXIS 5221, 240 N.Y.L.J. 32 (S.Ct. NY County) (in divorce action, husband’s internet communications downloaded by wife were admissible because they had not been “intercepted” contemporaneous to their transmission); Boudakian v. Boudakian, 2008 N.Y. Misc. LEXIS 7532, 240 N.Y.L.J. 123 (S.Ct. Queens County 2008) (internet communications that were not accessed while in transit were admissible because they had not been “intercepted”); Gurevich v. Gurevich, 24 Misc.3d 808, 886 N.Y.S.2d 558 (S.Ct. Kings County 2009) (since emails were not intercepted while “in transit” there was no eavesdropping).

Spy software, such as FlexiSpy or StealthGenie, is illegal when it can be hidden on a victim's phone and allows a remote user to monitor phone calls, overhear live conversations in the room where the phone is located, track location, read text messages and emails, and obtain passwords for programs like Facebook or Gmail.

Notably, on November 25, 2014, the United States Department of Justice obtained the first ever conviction for the advertising and sale of StealthGenie. See November 25, 2014 U.S. Dep’t of Justice Press Release.

The defendant in that case was charged with and convicted of violating 18 U.S.C. §§ 2512 (1)(b) and (1)(c)(ii), which prohibit the sale, possession, or advertising of electronic communication intercepting devices. See August 7, 2014 Indictment in United States v. Hammad Akbar, 14-CR-276 (E.D. Va.), PACER Dkt. # 1; see also November 25, 2014 Plea Agreement in United States v. Hammad Akbar, 14-CR-276 (E.D. Va.), PACER Dkt. # 35.

Pursuant to New York's Civil Practice Law and Rules § 4506, eavesdropping evidence is inadmissible in a court proceeding.

Pursuant to New York CPLR § 4548, privileged communications made through electronic means, maintain their privilege ("No communication privileged under this article shall lose its privileged character for the sole reason that it is communicated by electronic means or because persons necessary for the delivery or facilitation of such electronic communication may have access to the content of the communication.").

3.  Hacking Into Someone's Computer

Gaining unauthorized access to someone's computer is illegal, regardless of whether or not it is password protected.

New York Penal Law § 156.05, Unauthorized Use of a Computer (A misdemeanor), prohibits accessing a computer or smartphone without authorization, knowing that the use is without authorization. “Unauthorized use” includes use that is “in excess of the permission” of the owner or the computer or computer service. PL § 156.00 (6). “Reasonable grounds to believe” you had permission to use, copy, or destroy computer data is a defense. PL §156.50.

New York Penal Law § 156.10, Computer Trespass (E felony), prohibits unauthorized access of a computer, plus intent to commit a felony, or gaining access to “computer material” (private computer data).

New York Penal Law § 156.20, Computer Tampering in the Fourth Degree (A misdemeanor), prohibits accessing a computer without authorization, and intentionally destroying computer data.

New York Penal Law § 155.25, Petit Larceny (A misdemeanor) prohibits a person from stealing "property.” PL § 155.00 includes "computer data” within the definition of "property." In contrast to the narrow definition of “computer material” in PL §156.00 (5), the definition of “computer data” is quite broad.  “’Computer data’ is property and means a representation of information, knowledge, facts, concepts or instructions which are being processed, or have been processed in a computer and may be in any form, including magnetic storage media, punched cards, or stored internally in the memory of the computer.” PL § 156.00 (3).

There are several federal statutes that apply to computer crimes.

18 U.S.C. § 1030 prohibits unauthorized access of a computer and related conduct.

18 U.S.C. § 2511 prohibits unauthorized interception of electronic communications.

18 U.S.C. § 2701 prohibits unauthorized access of stored electronic communications.

4.  Pretending To Be A Member of Law Enforcement

Many private investigators are former members of law enforcement. When attempting to interview a witness, one cannot pretend to be a member of law enforcement to induce the witness to cooperate with the investigation.

New York Penal Law § 190.25, Criminal Impersonation in the Second Degree (A misdemeanor) makes it a crime when one “impersonates another and does an act in such assumed character with intent to obtain a benefit or to injure or defraud another” or (1) pretends to be a member of an organization with intent to benefit or defraud, (2) pretends to be a public servant (or wears a badge or uniform) or pretends to be acting with the approval of a public agency to induce another to: (i) submit to pretended authority, (ii) solicit funds, (iii) act in reliance on that pretense."

“Another” means a “real person,” see Peoplev. Sadiq, 236 A.D.2d 638, 654 N.Y.S.2d 35, leave to appeal denied sub nom. People v. Sikandar, 89 N.Y.2d 1100,660 N.Y.S.2d 394, 682 N.E.2d 995 (1997)

Penal Law § 190.26, Criminal Impersonation in the First Degree (E Felony) makes it a crime when one pretends to be a police officer or acting under the authority of the police and cause another to rely on that pretense and in the course of which the impersonator commits or attempts to commit a felony or pretends to be a physician or other person licensed to issue prescriptions and orally communicates a prescription to a pharmacist.

5.  Secretly Filming Intimate Sexual Conduct

Although secret video surveillance (without sound) is legal, video surveillance that is directed at intimate or sexual conduct is prohibited, such as using a hidden camera to catch a cheating spouse "in the act."

New York Penal Law § 250.45, Unlawful surveillance in the second degree (E felony), applies to surveillance that involves undressing, sexual, or other intimate parts of another where the target has a reasonable expectation of privacy. Penal Law § 250.65 provides exceptions for: (a) law enforcement, (b) a security system with notice posted on the premises, and (c) a video system installed in a manner that is clear and immediately obvious.

Notable cases in the news include People v. John C. Kelly, Ind. No. 5336-2013 (S.Ct. NY County), in which a prominent banker was charged with violating Penal Law § 250.45 (1) for video recordings of sexual encounters with several women, without their consent. Also, People v. Carlo Dellaverson, 5593-2014 (S. Ct. NY County), in which an NBC producer was convicted of unlawful surveillance for posting a secret sex tape of his girlfriend on a porn site.

A interesting civil case decided on April 9, 2015 is Foster v. Svenson, 2015 N.Y.App.Div. LEXIS 3028 (1st Dep’t 2015). The First Department held that an artist did not violate a family’s right to privacy, pursuant to New York Civil Rights Law §§ 50 and 51, when he secretly photographed the family through the windows of their Manhattan apartment, using a telephoto lens. Even though the photographs were publicly displayed and sold as artwork, the court held that (1) the photographs were protected by the First Amendment, under the “newsworthy and public concern exemption” (which applies to artistic works) and (2) the manner in which the photographs were obtained – using a telephoto lens to secretly photograph a family in their private home (including their minor children) – was not sufficiently “outrageous” to overcome the “newsworthy and public concerns exemption.”

The court specifically noted that the photographer “while clearly invasive, does not implicate the type of criminal conduct covered by Penal Law 250.40 et seq., prohibiting unlawful surveillance.” Foster, 2015 N.Y.App. Div. LEXIS 3028*22. The court relied on Howell v. New York Post Co., 81 N.Y.2d 115, 596 N.Y.S.2d 350, 612 N.E.2d 699 (1993), in which the Court of Appeals held that a photographer who trespassed onto the grounds of a private psychiatric facility to take photographs of Hedda Nussbaum, did not engage in intentional infliction of emotional distress.

In Foster, the court looked to the Legislature to address emerging privacy issues, noting that “as illustrated by the troubling facts here, in these times of heightened threats to privacy posed by new and ever more invasive technologies, we call upon the Legislature to revisit this important issue, as we are constrained to apply the law as it exists.” Id.

In 2015, a defendant was acquitted in Ulster County of attempted unlawful surveillance in connection with using a drone-mounted camera to shoot photos and videos of a medical office building.

6.  GPS Tracking

While hiring a private investigator to follow somebody around might be legal, you can't hide a GPS tracking device in someone's car to record their movements, unless you are a legal co-owner of the vehicle. Accordingly, in United States v. Jones, 132 S. Ct. 945, 181 L. Ed.2d 91 (2011), the Supreme Court of the United States held that the warrantless attachment of a GPS device to suspect’s car by law enforcement was an illegal trespass that violated the Fourth Amendment. see also People v.Weaver, 12 N.Y.3d 433, 882 N.Y.S.2d 357, 909 N.E.2d 1195 (2009) (New York State Constitution violated by law enforcement’s warrantless GPS tracking of defendant’s car for 65 days).

But in Villanova v. Innovative Investigations, Inc., 420 N.J. Super. 353, 21 A.3d 650, 2011 N.J. Super. LEXIS 125 (App. Div. 2011), the New Jersey Appellate Division held that a wife did not violate her husband’s right to privacy by secretly installing GPS device on their jointly-owned vehicle to track his movements.

Courts have also held that there is no prohibition of obtaining cellphone locator data maintained by a third party, such as the phone company. See People v. Moorer, 39 Misc.3d 603, 959 N.Y.S.2d 868 (County Ct. Monroe County 2013) (determining the location of a person’s cell phone through GPS “pinging” does not violate Fourth Amendment privacy rights); United States v. Davis, 2015 U.S. App. LEXIS 7385 (11th Cir. 2015) (en banc) (no Fourth Amendment violation where government warrantlessly obtained 2 months' worth of robbery suspect's historical cell tower location information).

Since 2007, all New York City Taxis are equipped with a Taxi Technology System, including GPS. This information is available via subpoena.

Assuming that a GPS tracking device is being used legally, following someone around can cross the line from legitimate investigation to harassment or stalking.

For example, under Penal Law § 240.26 (2), harassment in the second degree (violation), a person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person he or she follows a person in or about a public place or places.

Under Penal Law § 240.25, harassment in the first degree (B misdemeanor), a person is guilty of harassment in the first degree when he or she intentionally and repeatedly harasses another person by following such person in or about a public place or places.

Under Penal Law § 120.45, stalking in the fourth degree (B misdemeanor), a person is guilty of stalking in the fourth degree when he or she intentionally, and for no legitimate purpose, engages in a course of conduct directed at a specific person, and knows or reasonably should know that such conduct (1) is likely to cause reasonable fear of material harm to the physical health, safety or property of such person...; (2) causes material harm to the mental or emotional health of such person, where such conduct consists of following, telephoning or initiating communication or contact with such person...and the actor was previously clearly informed to cease that conduct; or (3) is likely to cause such person to reasonably fear that his or her employment, business or career is threatened, where such conduct consists of appearing, telephoning or initiating communication or contact at such person's place of employment or business, and the actor was previously clearly informed to cease that conduct.

There is also a federal stalking statute. 18 U.S.C. § 2261A prohibits travelling between states for the purpose of intimidating or harassing another person and places that person in fear of death or injury to themselves or their family members or causes substantial emotional distress.

There is no prohibition against tracking your Pizza Hut delivery driver.

7.  Gaining Entry To a Premises Through Deceit

Lying your way into a place that is not open to the public may be considered criminal trespass.

New York Penal Law § 140.10, criminal trespass in the third degree (B misdemeanor) makes it a crime to knowingly entering or remaining unlawfully in a building or upon real property. Under Penal Law § 140.00 (5), a person “enters or remains unlawfully” in a premises “when he is not licensed or privileged to do so.”

A person “who gains admittance to premises through intimidation or by deception, trick or artifice, does not enter with ‘license or privilege’.” Denzer and McQuillan, Practice Commentary to § 140.00, McKinney’s Penal Law (1967). People v. Graves, 76 N.Y.2d 16 (1990); People v. Mitchell, 231 A.D.2d 937, 647 N.Y.S.2d 637 (4th Dep't 1996).

Under New York Penal Law §145.15, Criminal Trespass in the Second Degree (A misdemeanor), “a person is guilty of criminal trespass in the second degree when he/she knowingly enters or remains unlawfully in a dwelling.”

8.  Obtaining Private Banking Information

It is illegal to trick a bank into providing someone's financial records.

Under federal law, 15 U.S.C. § 6821(a) prohibits making false, fictitious or fraudulent statements or representations, or using documents that are forged, counterfeit, lost or stolen or contain false or fraudulent statements, to obtain non-public financial information from financial institutions or their customers.

9.  Obtaining Someone's Phone Records (Thanks Hewlett-Packard)

In the 2006 Hewlett-Packard pretexting case, HP investigated leaks to the media from Board members by hiring private investigators to obtain the phone records of Board members and journalists to discover which Board members and journalists were speaking with each other. The private investigators did this by impersonating the Board members and journalists to the phone companies.

Under federal law, 18 USC § 1039 (a) prohibits using false and fraudulent statements or representations, or providing false or fraudulent documents, to obtain confidential telephone records from an employee or customer of a telecommunications carrier or IP-enabled voice service provider.

New York General Business Law § 399-dd prohibits the unauthorized acquisition of consumer telephone record information.

Penal Law § 250.30, unlawfully obtaining communications information (B misdemeanor), makes it a crime to use deception, stealth, or any other manner to obtain from a telephone company any information concerning a record of any telephone communication.

10.  Destroying Evidence and Witness Tampering

Taking steps to prevent evidence from being presented in court -- whether by destroying evidence or convincing a witness not to testify -- is illegal.

New York Penal Law § 215.40, tampering with physical evidence (E felony), makes it illegal to suppress physical evidence by any act of concealment, alteration or destruction, or by employing force, intimidation or deception against any person. The statutory definition of "physical evidence" found in Penal Law § 215.35 includes any "article, object, document, record, or other thing of physical substance." At least one court has held that physical evidence may include computer data. see People v. Sandy, 236 A.D.2d 104 (1^st Dep’t 1997) (conviction for erasing computer data).

Similarly, New York Penal Law § 215.10, tampering with a witness in the fourth degree (A misdemeanor), prohibits inducing or attempting to induce a witness to absent himself from, or otherwise to avoid or seek to avoid appearing or testifying at, such action or proceeding, or (b) knowingly making any false statement or practicing any fraud or deceit with intent to affect the testimony of a witness.

Some Emerging Issues:

1.  The Use of Drones To Conduct Surveillance

An emerging issue is the use of drones to conduct surveillance. There is currently no prohibition in New York against the use of drones to conduct surveillance, but several states have passed laws that regulate the use of drones.

Idaho: Private right of action against the use of drones to conduct surveillance on an individual or their dwelling. Idaho Code Ann. § 21-213 (2) (a)-(b).

North Carolina: Private right of action against the use of drones to conduct surveillance of a person or dwelling or real property. N.C. Gen. Stat. Ann § 15A-300.1 (b)(1)-(2).

Oregon: Private right of action against flying a drone at a height of less than 400 feet above another person’s property, if previously asked to stop. Oregon Revised Statutes, ORS 837.380.

Tennessee: Crime of trespass by drone for flying a drone above a private property at a height not regulated as navigable airspace by the FAA. Tenn. Code Ann. § 39-14-405.

Texas: Crime and private right of action to use a drone for surveillance of an individual or property, unless the images are immediately destroyed. Tex. Gov’t Code Ann. § 423.003, et seq.

Wisconsin: Crime to use a drone to photograph anyone in a place where the individual has a reasonable expectation of privacy. Wisconsin Statutes, Wis. Stat. § 942.10.

See also this article for a discussion of international rules regarding drones. Also, this whitepaper from Reed Smith regarding interesting legal issues regarding drones.

2.  Secretly Collecting DNA Evidence

Can you secretly collect someone's DNA for testing?

An ethics complaint was filed against a North Carolina attorney who secretly collected DNA from the water bottle of an individual she suspected of being the real murdered in an innocence project case. DNA testing helped exonerate her client. Additional coverage of that case can be found here.

In another case, Lowe v. Atlas Logistics Group Retail Services, LLC (N.D. GA 2015), the United States District Court for the Northern District of Georgia held that the Genetic Information Nondiscrimination Act (GINA) prohibited an employer from collecting DNA samples from employees for purposes of investigating misconduct (in that case, defecating on the floor of the workplace).

Admissibility of Illegally Obtained Evidence

The Fourth Amendment only applies to the government, not private individuals, so there is no exclusionary rule of a Constitutional nature that applies to evidence obtained illegally by a private individual. Courts have discretion, however, to preclude illegally obtained evidence.

Illegally or unethically obtained evidence is admissible in New York, absent a specific statutory exclusion. Sackler v. Sackler, 15 N.Y.2d 40, 255 N.Y.S.2d 83, 203 N.E.2d 481 (1964) (in a divorce action, evidence of wife’s adultery, obtained by means of illegal forcible entry into her home, admissible).

The one exception is that evidence obtained as the result of eavesdropping is not admissible in any proceeding, pursuant to CPLR § 4506.

Under New York CPLR § 3103 (c), courts have discretion to suppress improperly obtained evidence. CPLR § 3103 (c) provides: "Suppression of information improperly obtained. If any disclosure under this article has been improperly or irregularly obtained so that a substantial right of a party is prejudiced, the court, on motion, may make an appropriate order, including an order that the information be suppressed."

Several cases have upheld the court's ability to impose suppression as a sanction. See In re Beiny, 129 A.D.2d 126, 517 N.Y.S.2d 474 (1st Dep’t), reh’g denied, 132 A.D.2d 190, 522 N.Y.S.2d 511 (1st Dep’t 1987) (improperly subpoenaed documents suppressed); Cippitelli v. Town of Niskayuna, 203 A.D.2d 632, 610 N.Y.S.2d 622 (3d Dep’t 1994) (soil testing results obtained by trespass suppressed); Wilk v. Muth, 136 Misc. 2d 476, 518 N.Y.S.2d 762 (S.Ct. Suffolk County 1987) (Physician was entitled to suppression of report obtained by plaintiff prior to her commencement of lawsuit against him where plaintiff had falsely stated that she wanted report because she was involved in personal injury action resulting from car accident; physician was clearly misled, and to permit plaintiff to use report prepared under false pretenses would result in substantial prejudice to him); Lipin v. Bender, 84 N.Y.2d 562, 620 N.Y.S.2d 744, 644 N.E.2d 1300 (1994) (sexual harassment case dismissed under CPLR 3103 (c) after plaintiff stole attorney-client privileged defense memos).

On the other hand, if the evidence would have been disclosed anyway during the normal course of litigation (sort of like the inevitable discovery rule, but in the civil context), courts are less likely to order suppression. See, DiMarco v. Sparks, 212 A.D.2d 965, 624 N.Y.S.2d 692 (4th Dep’t 1995) (CPLR § 3103(c) did not require suppression of documents obtained by defendants from non-party regarding application by plaintiffs to refinance their mortgage, even though documents were improperly obtained without notice to plaintiffs, where no documents were privileged, and there was no showing that defendants would not have been entitled to them in normal course of discovery); Gutierrez v. Dudock, 276 A.D.2d 746, 715 N.Y.S.2d 333 (2d Dep’t 2000) (In personal injury action wherein defendants obtained documents from nonparty insurance company concerning injuries plaintiff sustained in prior accident, without giving notice to plaintiff pursuant to CPLR § 3120 (b), plaintiff was not entitled to suppression of documents or imposition of sanctions, costs and counsel fees, as he was not prejudiced by lack of notice, documents in question were not privileged, and defendants would have been entitled to their production in normal course of business).