How to Choose a Qualified Private Investigation Agency to Conduct a Physical Surveillance
A common mistake by persons and businesses, such as law firms, is hiring unlicensed and uninsured private investigation businesses to conduct private investigations in California, potentially invalidating key testimony and evidence ⎯ and exposing their clients to uninsured liabilities. Under California law, a person or business that engages in the business of providing private investigative services—including conducting physical surveillance for compensation—must hold a valid California private investigator license issued by the California Bureau of Security and Investigative Services (BSIS) and comply with applicable licensing and insurance requirements.
California Business and Professions Code sections 7520, 7521, and 7523(a) prohibit a person or business from engaging in the business of a private investigator, as defined by law, unless properly licensed. Section 7521 broadly defines activities constituting private investigation, including obtaining information regarding a person’s identity, conduct, habits, reputation, associations, whereabouts, and securing evidence for use in judicial or administrative proceedings.
Businesses, including law firms, corporations, insurance companies, or other entities that retain investigative services should exercise due diligence to ensure the company they directly hire is properly licensed in California. If an unlicensed person or business contracts directly to provide private investigative services for compensation, that conduct may be illegal and violate the California’s Private Investigator Act.
A business that contracts directly with an unlicensed person or business entity to provide investigative services, where that unlicensed entity in turn subcontracts the actual investigative work to a licensed California private investigator, may be illegal under California Business and Professions Code sections 7520, 7521, and 7523(a), because the unlicensed entity is holding itself out as engaging in the business of private investigation. • Business & Professions Code § 7520 – No person shall engage in a business regulated by the chapter unless licensed.
• Business & Professions Code § 7521 – Defines “private investigator” broadly as one who, for compensation, undertakes investigations or obtains information or evidence.
• Business & Professions Code § 7523(a) – No person shall engage in the business of private investigator without a California license.
The legal consequences of using an unlicensed investigative provider can extend beyond potential licensing violations. Depending on the circumstances, questions may arise regarding contractual enforceability, insurance coverage, professional liability, witness credibility, and the admissibility or weight of evidence obtained during the investigation. These issues are ultimately determined by the applicable law and, where relevant, by the court.
If you believe a person or business is unlawfully providing private investigative services in California without the required license, you may submit a complaint to the California Bureau of Security and Investigative Services (BSIS) through its online complaint portal: https://www.bsis.ca.gov/enforcement/index.shtml
❝ Private-sector physical surveillance on an alert subject is the most difficult investigative discipline to perform successfully on a consistent basis. Just as one would not use a primary physician for a colonoscopy, one should not use a generalist private investigator for a highly specialized investigative discipline such as private sector physical surveillance.❞
Physical surveillance can be extremely difficult to perform competently, especially to successfully follow an alert subject through busy urban traffic. That difficulty is why the FBI, CIA and other same type agencies have specialized units whose selected personnel are dedicated to only conducting physical surveillance. For example, the Special Surveillance Group (SSG) of the FBI is one full-time dedicated physical surveillance unit consisting of practitioners who perform surveillance as a full-time job. The private-sector does not have the multi-million dollar resources for surveillance, hence why it is even more important to use specialized qualified private-sector surveillance investigators.
☑ Checklist
SI = surveillance investigator
☑️ 1) SPECIALIZES IN PRIVATE-SECTOR PHYSICAL SURVEILLANCE: The private investigation agency should specialize in high-level physical surveillance. Note: A PI agency that primarily conducts workers' comp sub rosa typically pays their surveillance investigators at the lower level of the pay scale, thus will not likely have experienced Tier One top surveillance investigators with significant high-stakes experience.
Private sector physical surveillance on an alert subject is the most difficult investigative discipline to perform successfully on a consistent basis. Just as one would not use a primary physician for a colonoscopy, one should not use a generalist unqualified private investigator for a highly specialized discipline, such as physical surveillance.
Part of being a specialist in physical surveillance is having the requisite skill-sets and equipment. One significant skill is the ability to successfully operate a camcorder in a fast moving and stressful environment⎯whether gathering fleeting video evidence of a stalker violating a TRO or conducting a real-time recording of a Person of Concern for a threat assessment professional or recording vital evidence for a high-value civil lawsuit. Much like baseball is sometimes referred to as a game of inches regarding winning or losing, evidentiary success or failure in physical surveillance can be determined in seconds.
☑️ 2) PHYSICAL SURVEILLANCE AS A FULL-TIME JOB: The SI working your case should perform physical surveillance as a full-time job.
Private-sector physical surveillance is the most difficult investigation discipline to successfully perform on a consistent basis, and should only be performed by full-time surveillance practitioners. It is an art form that requires extensive experience, regular practice and expensive equipment. Only full-time surveillance practitioners are likely to have the requisite skill sets and experience, and possess mandatory high-tech equipment⎯and know how to deftly use the equipment in fast paced stressful situations. ☑️ 3) CREDIBLE REFERENCES (Very important!): At a minimum, have the prospective private investigation agency provide you with three credible references who have used the prospective private investigative agency for the same type of physical surveillance assignment you need. ☑️ 4) HOURLY PAY RATE OF A SURVEILLANCE INVESTIGATOR: If possible, find out how much the person conducting the physical surveillance is paid per hour. This may be the best way to determine how effectively the SI will likely perform. A quality SI will have a private investigator license and be insured and make around $75 to $ 150 per hour in Southern California. ☑️ 5) CA PRIVATE INVESTIGATOR LICENSE REQUIRED: In the state of California, a private investigator license is required to provide the service of physical surveillance, therefore verify the private investigation company has a valid private investigator license in California: https://search.dca.ca.gov Note: Persons in the field conducting the physical surveillance should each have a California private investigator license or be valid employees of the California licensed private investigation agency you hired for the surveillance assignment. It is a misdemeanor crime to conduct physical surveillance in the state of California unless one is a licensed private investigator and insured.
Watch out for Private Investigative agencies that say they use "off-duty" law enforcement. There is a chance that any SI fitting that profile is not a full-time practitioner of physical surveillance and may not be properly licensed and insured, hence operating illegally (aka committing a crime) with significant exposure to financial liabilities since insurance is unlikely to be valid.
☑️ 6) BUSINESS REGISTRATION: Verify private investigation agency (corporation or LLC) is active and in good standing with the California Secretary of State: https://www.sos.ca.gov/business-programs
☑️ 7) EMPLOYEE OR SUB-CONTRACTOR: Will the private investigation agency use employees or licensed PI sub-contractors to conduct the physical surveillance?
The worker classification of the SI will determine how much more vetting will be needed to ensure legal compliance and the end client's amount of exposure to liabilities. If there is not legal compliance, insurance coverage may not be valid.
☑️ 8) PROFESSIONAL INSURANCE: Verify the private investigation agency has the required general liability (E&O) insurance policy of a minimum $ 1,000,000 coverage.
If you use the private investigation agency, you should asked to be added as an additional insured on the private investigation agency's general liability (E&O) insurance policy. A certificate of additional insured will be provided naming your firm. This is standard practice by insurance companies and Third Party Administrators when vetting and adding private investigation agencies to their claims investigation panel.
☑️ 9) CIVIL/CRIMINAL CHECK ON BUSINESS AND OWNER: Check local on-line civil and criminal superior court and federal court records to determine if the considered investigation agencies and/or its officers have appeared as defendants, and if there are any disqualifying reasons.
☑️ 10) EQUIPMENT: Does the private investigation agency use the necessary equipment to assist the surveillance investigators?
For example, a qualified private investigation agency will normally have SIs who use long range HD video cameras; FCC licensed two-way radios; and rapid deployable remote compact video cameras that transmit via data (not wi-fi). It is a plus if the they have drone capability operated by commercial licensed drone experts, especially for rural type environments. Equipment frequently makes the difference between success and failure of physical surveillance assignment.
☑️ 11) SAMPLE REPORT & INVOICE: Ask for a sample redacted physical surveillance report, sample redacted invoice and negotiate pricing for short and extended days surveillance.
The sample invoice will provide you with those unexpected costs, much like the “resort and destination fees” at some hotels. Typical charges are hourly rates to include gas mileage fees and travel time to and from the physical surveillance location.
Mileage and travel time fees are typically pass-through costs that go directly to the SI. For example, to cover auto maintenance, fuel costs and auto and professional insurances, which are at a premium expense these days for SIs ... especially in California.
Physical surveillance rates in Southern California ranges around $ 115 to 150 per hour plus mileage and expenses. Hourly rates vary and should be based on the quality of the SI and the amount of surveillance needed. Hourly rates should be reduced when the SI's time exceeds 24 hours.
☑️ 12) CASE SUPERVISOR'S PHYSICAL SURVEILLANCE EXPERIENCE & COMMUNICATION: Does the person supervising the SIs have private-sector physical surveillance experience as a field level private-sector physical surveillance practitioner?
A surveillance experienced case supervisor will be knowledgeable of the local, state and federal laws related to conducting private sector physical surveillance, i.e., privacy laws and the ethical standards. The supervisor will also ensure great communications with the SIs in the field and providing timely updates to the client.
Just like a sports team or military unit, a physical surveillance team needs a qualified experienced manager-team leader to achieve positive results and avoid negative situations. Problem solving in a fast-paced private-sector physical surveillance field level environment is a must skill built on experience and knowledge. The case supervisor should have those qualifications.
The Tooth Fairy and Private Sector Physical Surveillance Myths
Off duty/retired law enforcement make good private-sector physical surveillance investigators ☞ Government employee surveillance is conducted with extensive multi-million dollar resources to include numerous personnel in multiple vehicles, court ordered electronic tracking and at times, air support --- hence, does not necessarily take a lot of individual talent to successfully tail an alert subject. Success in private-sector physical surveillance depends on an SI's private-sector physical surveillance experience, personal traits, innate talent and refined skill sets as a full-time practitioner. Experience in law enforcement is simply not an accurate predictor of one's surveillance effectiveness in the private-sector. If a company hires off-duty LE for a private-sector surveillance, ask the person who hired the off-duty SI what selection criteria was used and what private-sector references were checked to confirm SI's surveillance successes in the the private-sector. Effective private-sector mobile physical surveillance requires specialized experience developed through sustained, full-time field practice. The SCAM alert should go off if a private investigator who is not a full-time surveillance practitioner tells you she/he is a surveillance expert. Much like a primary physician saying she/he can do your colonoscopy. One surveillance investigator is sufficient to conduct an extended physical surveillance tail ☞ FBI SSG is said to use no less than seven SIs in seven different vehicles, with the added help of other assets. In the private sector, its naive to think one SI can successfully follow an alert subject through traffic successfully over an extended distance and time. Conducting private-sector physical surveillance over a lot of years is sufficient to conclude one is an effective SI ☞ Most who are careerist physical surveillance practitioners are not good. It is difficult to find quality SIs who have integrity and that are highly effective. In Southern California, full-time practitioners of physical surveillance each have their own brands ⎯ very few have brands that one should invest significant monies into on a high stakes case.
In 1998, Claims magazine, a nationally recognized publication serving the insurance industry, published an article by Mike Wolivar addressing the selection of qualified surveillance investigators.
At the time, insurance companies and third-party administrators invested millions of dollars each year in surveillance to investigate potentially fraudulent or exaggerated claims. Mobile surveillance of an alert subject in a busy urban environment is widely regarded as one of the most demanding disciplines in the private investigative profession. Success depends not only on technical skill, but also on sound judgment, patience, planning, and experience.
The article emphasized the importance of selecting investigators with demonstrated private-sector performance. Choosing the right surveillance specialist can significantly improve the quality of evidence obtained while reducing the likelihood of missed opportunities, unnecessary expense, or investigative failures. Those same principles continue to guide Mike and his team's approach in helping clients identify the investigative and protective specialists best suited to complex and high-stakes matters. Please contact us for a copy.
