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JURISDICTIONAL ISSUES FOR THE PRIVATE INVESTIGATOR There is always someone asking "Is he licensed in that state"? I want to take the time to address issues that is a bit annoying, a little bothersome, and always present. If you are a licensed Private Investigator, then I am sure that you have encountered the issue of jurisdiction in relation to certain cases you may have accepted or declined. This is always a consideration in our industry, or at least it should be. It can be a confusing issue depending on how well you have garnered a good reputation, and how far and wide your marketing strategy has spread your company name. The annoying and bothersome part of this issue would be the uneducated and/or jealous Private Investigators that ask this question without understanding the need to ask it.
First, I think we need to address a marketing issue. If you are actively advertising your business in a state that you are not licensed in as a Private Investigator, there may be an issue with unlicensed activity. However, before we can determine if there is an issue with unlicensed activity in this instance, we have to define what we mean by "advertising in a state that you are not licensed in". Naturally your web-page would not constitute any legal issues with advertising in a state that you are not licensed in, because there is no way to limit web-pages on the world wide web to a particular state (not without a great deal of work, inconvenience, and a large fortune, anyway). However, if you have taken out a Yellow Page Ad in another state that you are not licensed in, there may be an issue because this shows a deliberate attempt to advertise in a state that you would know you hold no license in. Here we have to look at intent. If we were to view a web-page as an attempt to advertise a service in another state that one may not hold a license in, then what doors will this open? Would signature lines on Groups? Of course we can see how silly this issue can become. However obvious this may be though, there are still some Private Investigators that will still ask the unnecessary question as to whether or not another Private Investigator is licensed in another state, if he or she chooses to accept an assignment from a client in another state.
Secondly, we should address the reasons that a particular jurisdiction does not allow unlicensed activity within its confines. There are many reasons for this. One reason is consumer protection issues, most states have taken on the task of consumer protection. Along with this task comes the responsibility of making sure that those offering certain services are qualified and capable of offering such services. Without insuring this, the consumer is at risk of paying for a service that is not adequately performed, thereby causing the consumer to pay more for a job performed properly without some type of regulation requiring people in certain industries to demonstrate that they can perform the services they are offering properly. Another issue is the policing of certain industries to insure that people that are granted certain privileges due to the line of work they are in handle those privileges responsibly and don't abuse them. We should all be grateful that our government has tasked itself with these responsibilities.
Now, onto the crux of the problem. First of all, if you are a Private Investigator and you are physically in a state that you are not licensed in, and working a case in that state, you are breaking the law. There are a few exceptions such as, if you have a temporary license issued by that state to do so, or that state will allow you to work off of another properly licensed Private Investigator Associate of yours that is licensed in that state. If you take a case in another state that does not require you to be in that state to work such a case, you should still consider testimonial issues if there is a possibility of your case going to court in that state. The rule is that you can testify in any state you are called to testify in, but you may not be able to testify as a Private Investigator, you may simply be a witness for whichever side you happen to be working for.
Now for the case work that is the exception... High Technology Criminal and Civil Investigations becomes an exception to the jurisdictional dilemma. First of all, often times it can become confusing as to which jurisdiction the incident occurred that warranted an investigation. This is to say that when an Investigator starts an investigation in this area, he or she has no idea of how many jurisdictions might be involved, or what jurisdiction the actual incident that is being investigated may have occurred. Sure, the client may have called from another state, but this does not necessarily mean that the incident that you are being asked to investigate occurred in the same state the client called you from. Second of all, barring cases that may require an independent computer forensic examination rarely is there ever a need for the Private Investigator to go outside of his state to work these cases (if he or she knows what he is doing). Third of all, in the event that testimony is going to be required in a criminal case, you will find that you will be testifying for the prosecution typically, and if the prosecution uses a subpoena to compel you to testify, then you really have no choice. I hear someone saying R.I.A.A., and Media Sentry? Well, even here the waters are still a bit murky. However, let’s examine how one state handled a complaint against Media Sentry for unlicensed activity. Here is a letter to a complainant from the Michigan Department of Labor & Economic Growth regarding the complaint this complainant filed: Complaint Letter here I should remind you that Media Sentry is deliberately conducting hundreds of investigations in multiple states without a license, and getting paid for it. So, as we can see from this letter, the likelihood of a Private Investigator actually being charged for conducting an investigation within the confines of his home office, in his state, for an out of state client is pretty low. Again, we have to bring this down to intent. Most reasonable and intelligent investigators understand the difference between someone actually marketing in another state that they hold no license in, with the intent to profit by doing so and conducting the work that requires a license in that state while unlicensed; and someone that makes no attempt to advertise outside of his or her state but will consider accepting a case that will not require him to physically work in a state he or she is not licensed in, conducting high technology investigations into incidents that appear to have occurred over the Internet. I believe this type of reasoning is also used by state regulatory authorities in such incidents as these.
Some other services that can be offered and performed without a license in another state are "skip tracing" (locating people), background checks (notice I wrote "background checks" as opposed to "background investigations", there is a difference), asset searches, and judgment recovery. None of these services require the Private Investigator to place him or herself outside of the state they are licensed in.
While it is important for the new Private Investigator to know when it is necessary to ask questions concerning jurisdictional issues, it is equally as important for the seasoned Private Investigators to know when these questions are not necessary. Any Private Investigator that would accuse another Private Investigator of unlicensed activity based on a news article or a brief post on a group, demonstrates that they work off of ASSumption (there is a reason for the case in the word assumption), rather than facts. Often times we will see seasoned Private Investigators raise these issues without any cause whatsoever, and while I will reserve my thoughts as to why this happens, someone confronted with this issue should know how to properly respond, or at least know enough about this issue to not allow their self to be "bluffed" by such needless questions. If you know that you are legally correct in accepting a case from an out of state client, and you encounter this question or accusation, tell the person raising the issue to submit a complaint if they feel like you are in violation. The quickest resolution to issues such as these is to tell the person with such issues to "put up or shut up", and advising them to submit a complaint in cases such as these does just that.
Ricky B. Gurley |
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