Choosing a Physical Surveillance
Provider for Threat Management
Threat Management Teams should consider using physical surveillance on Persons of Concern, according to workplace threat management protocols in the ANSI Work Place Violence Prevention and Intervention (ASIS/SHRM WVPI.2011). The surveillance provider you choose will determine if the physical surveillance threat management tool is successful or fails in helping to protect your organization.
By Michael Wolivar
Copyright © Wolivar & Associates, Inc. 2019
March 17, 2019
A physical surveillance team can be a valuable tool for the Threat Management tool box, especially when it is necessary to covertly monitor a Person of Concern's activity and location.
The focus of this article is to briefly discuss and recommend guidelines for choosing a reliable and effective physical surveillance provider, specifically for threat management cases.
Not All Physical Surveillance Teams are Created Equal
Private sector physical surveillance is one of the most misunderstood investigative disciplines and the most difficult to perform well on a consistent basis. Physical surveillance providers are not created equal. Using surveillance teams that are sub-par and ineffective can create safety and liability issues for the Threat Management Team and the people for whom they are charged to protect.
The range of physical surveillance talent in the surveillance industry is dramatic, with few surveillance operatives qualifying for that small circle of so-called, "high-level" surveillance operative, an informal surveillance reference to an exclusive group known for their consistent effectiveness on the most challenging and high stakes cases.
Security, investigative and legal professionals routinely illustrate a misunderstanding of private sector surveillance when they choose unqualified surveillance providers, especially for sensitive assignments.
Many of those professionals, wrongly, view all physical surveillance providers as the same. Nothing could be farther from the truth. There are very few physical surveillance providers that are suitable for sensitive assignments such as conducting physical surveillances on a Person of Concern.
Threat Management Protocol, Physical Surveillance and Associated Risks
According to workplace threat management protocols in the The American National Standard Institute (ANSI), Workplace Violence Prevention and Intervention (ASIS/SHRM WVPI.2011), using physical surveillance on a Person of Concern should be a consideration as part of the threat management plan.
The ANSI protocol further recommends that threat management “seek assistance by a qualified professional in assessing…potential risks associated with surveillance efforts.”
In this article, recommendations are made on how to choose an effective physical surveillance team so that risks associated with surveillance efforts can be significantly reduced.
The most significant benefit that a physical surveillance provides to the threat management team is always knowing the location and activity of the Person of Concern.
Two of the most concerning risks associated with surveillance efforts are that the Person of Concern A) detects the surveillance and becomes aggravated thus causing, B) the surveillance to be discontinued and Person of Concern no longer monitored.
Additional surveillance risks include surveillance operatives that cheat by using illegally placed GPS devices on the target's vehicle or invading the privacy of the target by, for example, video recording the target in his or her backyard that is surrounded by an eight foot solid wall - where there is likely an expectation of privacy by the target.
Video should never be taken if the person has a reasonable expectation of privacy. Additionally, there are private investigators that use GPS devices illegally to conduct a moving surveillance. According to the Orange County Register, in 2014 two private investigators were charged with two felonies each related to the placement of a GPS on a vehicle ( click here for 2014 Orange County Register Story). In addition to criminal liability, there may be civil liability on persons or organizations that hire surveillance investigation companies that have violated civil and/or criminal law.
The risks associated with physical surveillance on a Person of Concern can mostly be eliminated if a qualified, ethical and effective surveillance provider is chosen. If an unqualified, unethical and ineffective surveillance team is used, the risks of something going wrong on the surveillance significantly and unnecessarily increases.
Select the Physical Surveillance Team Before the Threat Occurs
For a threat management team to properly weigh the “...potential risks associated with surveillance efforts,” as stated in the ANSI threat management protocol, it is recommended that a surveillance team be vetted and selected before a threat of work place violence occurs. Knowing the capabilities and background, to include response time and the team's work history, would be important information to conduct a proper risk assessment for using surveillance at the time the threat occurs.
Three Physical Surveillance Principles
The measure of a surveillance provider and its surveillance-operatives is primarily determined by these three principles:
1. Never let the target know he or she is under surveillance, and;
2. Never lose sight of the target's location.
3. Always comply with relevant regulations, ethical codes and laws.
The most difficult part of any physical surveillance is covertly tailing a vehicle, which is normally done when a Person of Concern is driving.
Choosing the right surveillance team that can tail the Person of Concern while meeting the three surveillance principles should be the top criteria when choosing a physical surveillance provider.
Physical Surveillance Team Responsibilities to Threat Management
The physical surveillance team has three primary responsibilities:
1. Most important, monitor the location of the Person of Concern so defenses can be readied should should the Person of Concern travel toward a possible target location.
2. Provide the Threat Management Team with updated field observations on the Person of Concern’s activity that includes video/photos showing non-verbal behavior; photos and vehicle plates of persons with whom Person of Concern meets; and locations visited.
3. When appropriate, collect potential evidence that can aide in securing a Temporary Restraining Order; or secure video evidence demonstrating Person of Concern violating a Temporary Restraining Order.
FIVE GUIDELINES FOR CHOOSING A SURVEILLANCE PROVIDER
1 - Choose Only Investigation Companies that Specialize in Surveillance
Much like the medical and legal fields, private investigation has a variety of experts and specialists. There are a large number of private investigators that claim to “do it all.” Just as one would not use a patrolman to defuse a bomb or a primary physician for heart surgery, one should never use a private investigator that is not a full-time specialist in physical surveillance, the most difficult of all investigative disciplines to conduct effectively.
Federal agencies such as the FBI and CIA have long recognized the import of only using specialist for physical surveillance. For example, FBI has dedicated units (Mobile Surveillance Team and Special Operations Group) where Special Agents and Surveillance Specialists conduct team physical surveillance full-time.
Physical surveillance companies that provide high-level surveillance will have surveillance teams that have worked together for a long period of time on same type assignments.
There are a wide variety of private investigation companies that advertise surveillance. Most of those investigative companies do not specialize in physical surveillance, and only a handful specialize in high-level physical surveillance.
It may be prudent to avoid using surveillance companies who primarily conduct surveillance on insurance claims. The performance bar, in general, for insurance claims surveillance tends to be low and those operatives are more likely to get burned on cases and lose the claimant or plaintiff they are surveilling.
The employee-surveillance operatives that work in the insurance industry are among the lowest paid in surveillance, earning from approximately $ 12 to $ 25 per hour. A quick Internet search will demonstrate the pay as well as a large number of complaints of those operatives regarding their private investigator employers and work environment.
Another group you may want to avoid is surveillance providers that use “off duty police officers,” from advertised elite police surveillance units. Often times the off duty officers are not licensed private investigators nor bona-fide employees of a private investigation company, hence, in California, may operate illegally, therefore any evidentiary requirements, such as testifying, may be challenged. And un-licensed investigators are probably not covered under any professional insurance.
It is important to note that law enforcement surveillance and private sector surveillance are very different. Private sector physical surveillance requires much more skill, experience and craftsmanship. Law enforcement has many more resources in terms of personnel, equipment and technology. Just because one conducted surveillance in law enforcement does not mean they are effective in private sector surveillance.
2 - Interview the Person Who Supervises the Surveillance Operatives
Next to checking credible references, the most important part of due diligence is interviewing the Surveillance Director, also referred to as the Surveillance Supervisor or Case Manager. Any legitimate surveillance provider will have a credible person in this role.
Below are information points about the Surveillance Director or person in similar role:
• Will have significant experience conducting and supervising high-end security and threat type physical surveillances.
• Will discuss the surveillance equipment to include non-descript vehicles used, i.e., not high profile vans or vehicles that would stand out during a moving tail. Fancy surveillance vans with periscopes are more for the comfort of the operative at the expense of alerting target to a surveillance.
• Responsible for knowing all the necessary case information and preparation, and for the success or failure of the assignment. And for staying within budget.
• Closely supervises the surveillance operation and provides timely updates to the Threat Management Team.
• Will confirm that the following resources are used to support the surveillance: proprietary databases, DMV accounts (run vehicle registrations, driving records and ownership of vehicles) and sophisticated social media search engines. These resources may be needed to initially locate a Person of Concern and/or develop intelligence helpful to conducting the physical surveillance.
• Like the coach of a sports team, knows what traits, skills and experiences to look for when hiring and putting together a high-end physical surveillance team - and can tell you how he or she does it.
• Surveillance-operatives have strengths and weaknesses. The Surveillance Director schedules and assigns operatives at the right times and for the tasks that best fits a particular operative.
• Knowledgeable of ethic codes and invasion of privacy laws relevant to physical surveillance.
• History of good judgment on cases worked for the references provided.
3 - Confirm Surveillance-Operatives are High-Level Qualified
Confirm via the Surveillance Director that the surveillance-operatives who will work on your case are qualified for high-level surveillance and have a track record of working successfully on threat type cases.
The primary surveillance-operatives should have a minimum five years experience conducting physical surveillance as a full-time job. The majority of that time should be spent as part of a surveillance team working on high-level cases.
Also important is that the surveillance-operatives have worked as a team on numerous occasions. You don’t want your case to be the one where an investigative company (that does not specialize in physical surveillance) randomly throws together a bunch of independent contractors who have not worked together and have not been vetted by a qualified person such as a surveillance specialist or surveillance director.
Physical surveillance is an art form that very few can do well on a consistent basis. It requires a wide variety of uncommon skill sets and traits, that includes superior multi tasking abilities and possessing that rare “6th sense” that serves as a sensor to alert the operative when tailing a Person of Concern if he or she is too close or too far away.
Over a period of time, it becomes apparent whose got that 6th sense - and who doesn’t. Just like watching athletes that lead in assists; they have that extra that others don’t and cannot learn. It’s important that all operatives on your case have that so-called “6th sense.”
4 - Request Two Credible References for Threat Related Surveillances
Request at a minimum two credible references that can provide confirmation that the prospective provider has successfully conducted physical surveillance on Persons of Concern related to threat management.
5 - Private Investigation License/Certificate of Insurance/Attorney Work Product
A) Request a copy of the private investigation license and confirm the license is valid. In many states, it’s a violation of law to conduct private investigations if you are not licensed. In California, if a business is not licensed and they conduct the surveillance via employees or sub-contractors, “they are guilty of a misdemeanor, which is punishable by a fine and/or imprisonment,” per California Business and Professions Code 7512-7573; California Code of Regulations Title 16, Division 7.
If the surveillance provider and its operatives are not licensed, the professional insurances may not be enforceable. Further, the evidence gathered during the investigation may be challenged in court since that evidence was obtained during the commission of above listed misdemeanor crime.
To verify a private investigator license in California click on this link: https://search.dca.ca.gov/
B) All major insurance companies and Third Party Administrators that use physical surveillance providers require the vendor to carry a minimum amount in Errors & Omissions liability insurance. You should do the same and request that your organization be named as an Additional Insured on the surveillance provider’s Certificate of Insurance. The standard charge for this additional insured is around $ 50.00.
C) Consideration should be made to have case related written communication and reports addressed to in-house counsel in an effort to invoke the attorney-work product privilege, should at some point there be discovery requests. It is recommended the in-house counsel be consulted for the proper procedures.
When a threat emergency occurs, it is a best practice to already have an effective physical surveillance tool at the ready and in the threat management toolbox - and know its capabilities.
Copyright © Wolivar & Associations, Inc. 2019