Spying Spouses – Savvy Investigators or Criminal Stalkers?

SpiesWhy the Difference is Important to Know

When going through a divorce or domestic dispute in court, your ability to directly access important information and to preserve critical evidence before it is lost or manipulated can alter the entire course of legal action in your favor.  However, gaining access illegally or invading your spouse’s right to privacy can also wind you up in jail, with your evidence stricken, with heavy sanctions imposed by the court, the loss of custody or visitation with your children, and/or slapped with up to a 5 year permanent domestic violence restraining order.

Knowing what is and is not permissible will supply you with the tools necessary to ensure that you: 1) don’t overstep your legal bounds; 2) are fully equipped to assiduously investigate and act swiftly to preserve important evidence; and 3) are poised to aggressively defend yourself from any such antics perpetrated by your spouse or domestic partner.

Hot Investigation Topics in Family Law

There are 4 hot investigatory areas important to be aware of today:

  1. Installing GPS tracking devices on vehicles (or cell phones) to spy on your significant other or ex significant other.
  2. Accessing “private” data stored on family or work computers (including emails).
  3. Wiretapping, or secretly intercepting real-time communications (including keystroke logging).
  4. Accessing and preserving data that has been stored for any length of time on your significant other’s cell phone.

This is the first part of a 4-part discussion covering each of the areas above.  This part deals with the first section – the use of GPS tracking devices in domestic disputes.

The GPS Tracking Device – Can You Lawfully Monitor Your Spouse’s/Partner’s Location?

Under Federal law and the 4th Amendment, it appears that GPS tracking devices won’t be allowed to be used by law enforcement officers without a warrant, at least where the use is over 24-hours, is beyond mere “discrete” and “short-term” use, or passes beyond public areas into traditionally “private” areas, or areas where one would reasonably expect privacy.  The issue of tracking with modern GPS devices has not yet been before the U.S. Supreme Court, but looking at the two most significant and on point federal cases on this issue -U.S. v. Knotts (1983) 460 U.S. 276 and U.S. v. Maynard (D.C. Cir. 2010) 615 F. 3rd 544 – it seems unlikely to be permitted without a warrant and/or substantial limitations to protect privacy rights.  The rules and rights in the private arena, and what’s legislated by States in that regard, cannot ignore these privacy rights where sufficient similarities exist.

In California, the State Legislature has enacted law that makes it a misdemeanor for any person in the State to “use an electronic tracking device to determine the location or movement” of another person unless “the registered owner, lessor or lessee of the vehicle has consented to the use with respect to that vehicle.”  Cal. Penal Code section 637.7.

What this means in the family law and domestic dispute context is that spouses or partners who are both registered owners of a vehicle may, unbeknownst to the other (or to anyone else in their car, for that matter), track the location of that vehicle and the persons in that vehicle after surreptitiously installing a GPS device.  Note however, that the statute does not spell such an exception out, or any one like it, if the GPS device is attached to any other movable object except a vehicle.

Even with this limited right to attach a GPS device to a car that you are registered to own, there are still two significant warnings and limitations of which to be aware.  First, the tracking must be limited to public places - this being one of the key factors in the federal case decisions noted above.   In other words, the tracking may not be used to track persons or the vehicle through private property such as large ranches, private corporate facilities or other areas not open to the general public.

Second, it cannot be used as a means to instill fear in the persons traveling in the vehicle.  There are numerous cases in States across the Nation that found the use of GPS tracking devices to be evidence of criminal stalking and/or domestic violence. Unfortunately, this illegal use is often what prompts people to purchase and install GPS tracking devices.  As a result, if you do use a GPS tracking device, you should anticipate and be prepared to respond to courts and other parties who suspect you to be acting with an unlawful intent, and needlessly harasssing the other party.

It is also important to note, however, that the “stalking” cases all included more evidence of other harassing behavior taking place than the mere passive receipt of GPS information.  Keeping that risk in mind, however, it should be an immediate red flag to you that using a GPS tracking device is probably not appropriate if there is any evidence or likelihood of there being accompanying threats made, harassment, a history of domestic violence, or the presence of a current restraining or protective order.  In such a case, significant safeguards, including taking the actual act of the monitoring away from yourself (the registered owner of the vehicle) or any other interested parties would be wise, to say the least.

I Think I Want to Monitor My Spouse/Partner – Now What?

If you or your client think it would be beneficial to secretly install a GPS tracking device on a vehicle to monitor a significant (or ex-significant) other’s location, consider taking the following precautions and using them as a checklist:

  • First, it is fundamentally vital that you first confirm that you (or your client) is in fact a registered owner of the vehicle.
  • Second, determine exactly what evidence or information you are seeking to obtain, and then consider whether that evidence or information is relevant and significant enough under the laws of California to justify the risk involved.  Consult with an attorney about this first, and only do it with their guidance and oversight.  Keep in mind, also, that although you may technically be “allowed” to use the device, a judge still has discretion to allow the evidence to be used.  Thus, it certainly would not be in your benefit to take this risk, for example, if your particular judge (or court) is known to consistently strike such evidence.
  • Third, protect yourself (or your client) against allegations of stalking and/or harassment.  If you are the registered owner of the vehicle, avoid having immediate or real-time access to any of the GPS related information about the location of the vehicle.  The more the registered owner is distanced from actively monitoring the vehicle’s location, the less likely it is for the monitoring to be deemed an act of stalking.
  • Fourth, if you decide to secretly install a GPS tracking device after first carefully considering the above, and, hopefully, after working with an attorney, you (or your client) should not tell or intimate to the other person that they are being monitored in any way.  Telling or hinting to the other party that you know where they were and are monitoring them has often been seen as an attempt to intimidate, frighten and harass them.
  • Fifth, design and implement a plan to ensure that you cease monitoring (or can cease monitoring) the person/vehicle while the vehicle is inside a private location.  You should also have a way to protect any such logging information that you receive as confidential, and you should not review any such tracking information collected while the person/vehicle is in a private place.
  • Finally, be prepared to present the evidence (whether to the court, to any other fact finder or the other party) as clearly relevant to the case, and as having been carefully procured.  In other words, be prepared to testify to the the care that you (or your client) took to avoid invading anyone’s privacy, and to clearly present the law (Cal. Penal Code section 637.7) and demonstrate that you complied with it, had no foul intent, and that use of the device was never harmful or threatening to the monitored person(s).
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