Private Investigators: A Surreptitious Search For Money Hidden In Divorce & Other Cases
This is the 2nd post in my series about private investigators & what they can & cannot do legally when searching for assets. It is also the 10th post in my Divorce & Hidden Money series. The Huffington Post article “Uncovering Hidden Assets In Divorce Litigation” observes that information obtained by “surreptitious means” might be used by one divorcing spouse against the other. Obtaining information through a surreptitious search can be critical to recovering assets in a broad range of criminal & civil cases. Depending on the circumstances, surreptitious searches might involve wiretaps; bank searches; law enforcement databases; and physical surveillance. These surreptitious means have however, sometimes been abused by private investigators, attorneys & others in the following ways:
WIRETAPS– As stated in testimony at a 1967 U.S. Senate hearing ‘private bugging in this country can be divided into two broad categories, commercial espionage and marital litigation.’ ¹ Former attorney Mary Nolan handled divorce & family law matters for nearly 30 years before pleading guilty to the wiretapping & tax fraud charges at counts 1-4 &/or 6 of her 2012 criminal indictment. An amended judgment showed Ms. Nolan was sentenced to serve 24 months in prison, 3 years of supervised release, etc. Ms. Nolan’s sentencing memorandum said her cases frequently involved allegations that husbands were hiding assets. The prosecutor’s sentencing memorandum meanwhile, claimed Ms. Nolan had employed a private investigator “to install eavesdropping devices in cars used by her clients’ spouses for use in their divorce proceedings.”
BANK SEARCHES– Some private investigators try to surreptitiously search banks in the U.S. for accounts secretly opened by divorcing spouses, debtors, etc. These investigators may claim they search through computer research; insiders; or information brokers. Private investigators cannot ordinarily search banks legally because of privacy and other U.S. laws, as explained by the post available here. The Court has also noted “it is more likely than not that the only way that information brokers can obtain private financial information from banks is through the use of deception and trickery, including impersonation of account holders.” Commonwealth v. Source One Associates, Inc., No. CIV. A. 98-0507-H, 1999 WL 975120, at *6 (Mass. Super. Oct. 12, 1999) aff’d sub nom. Com. v. Source One Associates, Inc., 436 Mass. 118, 763 N.E.2d 42 (2002).
LAW ENFORCEMENT DATABASES– These databases can supply law enforcement with information from vendors like Accurint which offers “a cutting-edge investigative technology that can expedite the identification of people and their assets…” Some law enforcement databases may also store information from nonpublic filings like tax returns; Reports of Foreign Bank and Financial Accounts, (a.k.a. “FBARs”); Suspicious Activity Reports; and Currency Transaction Reports. Private investigators and the general public do not have access to confidential law enforcement databases. This is discussed at the October 22, 2014 press release “Private Investigator And Former NYPD Officer Arrested In Bribery Scheme To Obtain Reports From Federal Law Enforcement Database.”
PHYSICAL SURVEILLANCE– The video below from the Physical Surveillance Unit at the Canadian Security Intelligence Service, says surveillance work “has stretches of long idle moments and bursts of adrenaline in between.” If a private investigator mishandles surveillance work, the private investigator could among other things, be civilly liable for negligence. The Court in Devlin v. Greiner, 147 N.J. Super. 446, 466, 371 A.2d 380, 391 (1977) indicated that a private investigator can even owe a “duty” to those under surveillance, to accurately report on their activities. The husband in Devlin reportedly suspected his wife was having an extra-marital affair, so he hired a private investigator. This private investigator supposedly performed almost two weeks of surveillance and then allegedly issued a false report about the wife’s activities.
¹United States v. Murdock, 63 F.3d 1391, 1399 (6th Cir. 1995)(quoting Hearings on the Right to Privacy Act of 1967 Before the Subcomm. on Admin. Practice and Procedure of the Sen. Comm. on the Judiciary, 90th Cong., 1st Sess., part 2 at 413 (1967)).