The California Private Investigator's Legal Manual (Third Edition)

The

California

Private Investigator’s Legal Manual

(Third Edition)

David D. Queen

iUniverse, Inc.

Bloomington

The California Private Investigator’s Legal Manual (Third Edition)

Copyright © 2005,2011 by David D. Queen.

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iUniverse rev. date: 06/07/2011

Contents

Author’s Preface

About the Author

Chapter 1

Chapter 2

Chapter 3

Chapter 4

Chapter 5

Chapter 6

Chapter 7

Chapter 8

Chapter 9

Chapter 10

Appendix

Cases

Statues

Regulations

Other Authorities

Author’s Preface

This is the third edition of The Private Investigator’s Legal Manual, first published in 2005 and revised in 2008. Other than a slight change to the title, this third edition is a continuation of my effort to provide a broad-ranging review of legal issues of importance to California private investigators. However, this Manual does not cover every possible legal issue affecting investigators nor could it explore every issue to the depth I might have liked. This is, after all, a manual, not an encyclopedia.

Every good lawyer knows you start your advice with a disclaimer and I’m no exception. No warranties, either express or implied, are made by the author, publisher or distributors of this book. The information in this book is a guide and is neither intended to be nor should it be construed as legal advice. The author has made every effort to assure that the information in this book is current and accurate as of the date of publication. Laws and the court decisions interpreting them change – often. It is important, therefore, to remember when referring to a section of this book months after its publication that the law might well have changed.

Key state and federal laws have been selected for discussion because of their importance to California private investigators. However, many other state and federal laws and local ordinances could not be included. Statutes and regulations may have been amended, repealed or added since publication. Many of the statutes and regulations cited in this book are reproduced in full in Appendix A to allow reference to the full text. Every effort has been made to accurately quote statutes, cases and other materials. Nevertheless, the reader should always refer to official source documents before quoting or relying on citations contained in this book. In addition, this manual includes web site addresses (URLs) for various forms and resources. Those addresses are subject to change. Indeed, after publication of the 2008 edition of this manual many of the URLs changed. The author apologizes in advance if any of the URLs included in this edition change after publication.

This book is written for both non-lawyer private investigators to guide them in understanding the surprisingly numerous and tricky legal pitfalls surrounding the profession and the attorneys who hire and represent investigators. Because of the dual audience, I have made a considerable effort to overcome my lawyer’s tendency to write like a lawyer without sacrificing the level of detail necessary to lawyers. I especially urge the non-lawyer readers not to skip the legal overview in Chapter 1.

The resulting book – I hope – provides easy to understand explanations, but includes the statutory and case citations vital for greater legal analysis when needed by attorneys and investigators comfortable with legal research.

David D. Queen

About the Author

The author is an attorney and licensed private investigator, based near Los Angeles. He has been practicing law since 1973. Prior to entering the private sector, Mr. Queen served as an Assistant United States Attorney in the Middle District of Pennsylvania, the District of Maryland and as a Special Assistant U.S. Attorney in the District of Columbia. As a prosecutor, he headed investigations and conducted trials covering a wide range of federal criminal laws including bank robbery, counterfeiting, threats against the President, mail and wire fraud and political corruption. In 1982 he was nominated by President Reagan to be the United States Attorney for the Middle District of Pennsylvania where he oversaw the criminal prosecution of the Three-Mile Island nuclear power plant disaster, the E.F. Hutton mail fraud case among many others. While United States Attorney, the author served on the Attorney General’s Advisory Board.

He was later appointed Deputy Assistant Secretary of the U.S. Treasury for Enforcement (and later Acting Assistant Secretary) overseeing the enforcement operations of the U.S. Secret Service, the Customs Service, the Bureau of Alcohol Tobacco and Firearms and the I.R.S. While at the Treasury Department, he participated in the creation of the Office of Financial Enforcement which has been responsible for preventing and investigating international money laundering. The author was also a Treasury Department representative to INTERPOL and served as a member of the Board of the Federal Law Enforcement Training Center.

In addition to this Manual, Mr. Queen is the author of two books on corporate compliance and contributing author to a third book on the subject. He lectures extensively on a wide variety of compliance and law enforcement topics.

Chapter 1

Basic Legal Overview

This book will be easier to read and more rewarding for the non-lawyer who understands a few simple principles of legal structure, so please take the time to read this introduction. What follows is general in nature. There are exceptions to some of the principals and concepts which follow.

There is, in effect, a hierarchy of law. At the top of the legal mountain are the constitutions. That’s right, there is more than one. The U.S. Constitution towers over every other subordinate legal concept. But there are also constitutions in each of the fifty states. When a state constitution clashes with the U.S. Constitution you know which one usually prevails. Think of our constitutions as existing chiefly to confer rights and protections on the citizenry.

Statutes are the laws passed by Congress and the state legislatures. Statutes often create rights and protections, but it is the statute that typically creates restrictions on citizens’ rights and behaviors or imposes duties. Even where a statute creates rights or protections, it typically involves restrictions on individual behavior. Think of statutes as the thou shall not portion of what is commonly referred to as the law. The courts have typically permitted states to impose more stringent restrictions on its citizens than are imposed by federal law. For example, California’s eavesdropping laws are significantly more restrictive than the federal laws.

Almost equally important are regulations. Regulations are rules created by an agency (federal or state). Regulations exist when the legislature enacts a statute expressly authorizing (or sometimes requiring) a state agency to promulgate regulations governing the operation of the agency and the people and businesses that agency oversees. Regulations have the full force and effect of law and can often be used to establish criminal and civil liability.

An example of this is the very agency which licenses and oversees private investigators: the Bureau of Security and Investigative Services (BSIS). The California legislature passed a statute entitled The Private Investigators Act (the Act) in 1994 to control the regulation, licensing, registration and disciplining of private investigators. The Act replaced an earlier version which jointly covered private investigators and insurance adjusters (The Private Investigators and Insurance Adjusters Act), separating them into two statutory systems. The Business and Professions Code governs the actions of countless professions licensed by the state, including private investigators. The Act is actually just a portion of the Business and Professions Code which is found in §7512 through §7567. Those sections apply exclusively to private investigators. Other sections of the Business and Professions Code apply exclusively to other professions, such as insurance adjusters, real estate agents and so on. Therefore, when we refer to the Private Investigators Act, we are actually referring to a portion of the Business and Professions Code. However, as you will see, some portions of the Business and Professions Code apply to all licensees.

The Act established a broad range of requirements for private investigators. It also empowered the BSIS (a division of the Department of Consumer Affairs) to create regulations necessary to carry out the legislature’s intentions described in the Act. That Act and many of the Bureau’s regulations are discussed throughout this book and many are reproduced in Appendix A.

The term ordinance usually applies to laws created by political subdivisions such as cities and counties. Ordinances have the same power to restrict the behavior of citizens, but their reach stops at the subdivision’s borders. Consequently, individuals (including private investigators) are simultaneously living and working under the legal mandates of three jurisdictions: federal, state and local.

Lastly are the courts. Courts cannot create statutes or regulations, but are given the power and authority to interpret the constitutions, statutes, regulations and ordinances. Courts also sometimes create rights for citizens in their interpretations of the constitutions. An example of this would be an inferred right to remain silent, which led to the famous Miranda decision. Miranda v. Arizona 384 U.S. 436 (1966). The greatest importance of the courts for purposes of this book is the crucial effect of their decisions regarding when and how statutes and regulations apply to people and businesses. Courts often restrict a statute’s reach or expand its application in surprising ways that would not seem obvious from a simple reading of the statute or regulation. As a result, the reader should never assume to understand a statute or regulation without first reviewing any court decisions discussing it, which is why this book includes numerous quotations from cases. The collective work of the courts is commonly called case law.

The law is divided into three basic categories: criminal, civil and administrative. Within criminal law are concepts worth understanding. Crimes are offenses against society which carry punishment imposed on the offender by the government. Private citizens can lodge complaints and make so-called citizen’s arrests. Ultimately, however, a prosecutor must authorize a criminal case in order for it end up before a judge and jury.

Most federal and state crimes are subdivided into felonies and misdemeanors. California also has a category of crime called an infraction. In California a felony is any crime punishable by death or imprisonment in a state prison. Penal Code §17(a). At the other end of the spectrum are infractions, which are offenses expressly classified as such and which do not carry any imprisonment for their violation, but can carry fines. All other crimes are misdemeanors, provided the punishment does not exceed one year’s imprisonment in a county detention facility. Penal Code §17(b). Although punishment for misdemeanors is clearly less severe than for a felony, many offenses are classified as misdemeanors and they should not be treated as inconsequential. For example, trespassing is a misdemeanor.

Throughout this book are quotes from criminal cases. Those which involve searches and seizures do not apply directly to private investigators because private investigators are nearly always acting as private citizens. Nevertheless, those criminal cases provide useful insight into issues such as wiretapping, searches and surveillance techniques often used by private investigators.

Civil law governs non-criminal disputes, usually between private parties. In civil law, there is no risk of a prison term, although monetary judgments are frequently imposed against the defendant. Civil disputes involve a wide array of issues such as divorce, breach of contract and what are called torts or tortious conduct." A tort is a breach of a civil duty owed to someone (other than by contract) for which the law will provide a remedy in the form of monetary damages and sometimes injunctive relief. Steve H. v. Wendy H. (1997) 57 Cal. App. 4th 379. The government can also be a party to a civil case.

A fine is different from a monetary judgment. Both involve the payment of money by the defendant. However, the purpose of a fine is punishment, whereas the payment of a judgment is generally intended to compensate the victim. Therefore, a fine is usually paid to the government while the judgment is paid to the private plaintiff. In many criminal cases, the defendant must pay both.

In addition, licensees are subject to what is called administrative actions, meaning fines, suspensions or revocations of licensess. Finally, it is important to keep in mind that some activities can result in criminal charges and a civil suit and an administrative hearing. For example, a private investigator who illegally wiretaps a private telephone could be charged with the crime of wiretapping and also be civilly sued for invasion of privacy by the persons whose calls were illegally overheard and face an administrative license revocation hearing.

An important reminder: the law varies from state to state. In other words, what is legal in one state may be a serious crime in another. Therefore, no California investigator should assume that he can use an investigative technique here just because a colleague from another state routinely does so there.

Some of the court cases in this book involve licensure of professions other than private investigators, such as lawyers, physicians, real estate agents and the like. Those cases are frequently applied to private investigators because a significant number of professions (including investigators) are governed by the Business and Professional Code Consequently, a court case deciding the definition of dishonesty or fraud, for example can apply to every profession covered by the Code.

Many of the court cases chosen for citation in this book contain instructive language which lawyers sometimes refer to as dicta or dictum, meaning that the language was not essential to the decision and therefore not the basis of the decision. Dicta is, nevertheless, a valuable insight into a court’s decision making process.

A significant number of quotations from cases cited in this book contain  . . . (called ellipses.) Those indicate that language from the original case has been deleted in order to shorten and simplify the quote and to delete extraneous language. In addition, a significant number of California cases are, for reasons not disclosed by the court, classified as not for publication and some expressly state they are not to be cited in legal briefs and pleadings. Despite those court-imposed restrictions, these cases offer valuable instruction from the courts and can be relied upon by attorneys and investigators when attempting to understand the law.

Some of the sections in this book may leave the reader frustrated, wondering why there is no clear yes or no answer to the question: am I legally allowed to do this? The explanation, unfortunately, is that many areas of the law are what lawyers call unsettled. I have attempted to give as much pertinent information available on those subjects to allow the reader to evaluate the level of risk.

Before launching into our review of the law affecting private investigators, the author offers this sobering conclusion from all his research: a California private investigator’s license does not confer extra powers denied to ordinary citizens, except the authority to conduct investigations for a fee. On the contrary, it imposes numerous restrictions and duties not imposed on ordinary citizens.

Chapter 2

Licensing/Scope of Work/Employees

A private investigator’s license is required for anyone engaged in the business of private investigations conducted within the state of California. Business and Professions Code §7520.

2.0 Private Investigations—Defined

The Private Investigator Act defines private investigation as engaging in the business of obtaining information related to: (a) completed or threatened crimes; (b) conducting background checks; (c) locating and recovering lost property; (d) causes or responsibility for fires, libels, losses, accidents, or damage or injury to people or property; or (e) securing evidence to be used before courts, boards or investigating committees. Business and Professions Code §7521.

In Mason v. Peaslee (1959) 173 Cal. App. 2d 587, 343 P. 2d 805, footnote 2, the court defined the noun investigation to mean the process of inquiring into or tracking down through inquiry and the verb investigate to mean follow up by patient inquiry or observation; to inquire and examine with systematic attention to detail and relation.

Several activities are expressly exempt from the Private Investigators Act and therefore do not require a private investigator’s license.. They include: (a) those engaged exclusively in financial ratings; (b) attorneys; (c) those engaged exclusively in obtaining information from public records; (d) licensed insurance adjusters; (e) registered process servers; and (f) secured property repossessors. For a complete list of the types of activities not covered by the license requirements, see Business and Professions Code §7522. In addition, so-called heir hunting, or the search for missing individuals who are in line to inherit from an estate, is not covered by the Act and therefore does not require a private investigator’s license. Gunning v. Caudill (2001) 90 Cal. App. 4th 228. See, Heir Hunting, §3.3.2.

The Insurance Code requires that anyone who negotiates or works on behalf of an insured in a real or personal property claim must be a licensed insurance adjuster. Insurance Code §15007. Importantly, both attorneys and private investigators are exempt from that license requirement, provided the insurance claim work they are doing is within the scope of their licenses. Insurance Code §15008(c)(h). Building Permit Consultants, Inc. v. Mazur No. B17097 (Cal. App. Dist. 2 Ocotber 2004)

2.1 License Requirements

An applicant for a private investigator’s license must complete a written application using the form designed by the Bureau of Security and Investigative Services. Among other things, the applicant must submit to a full criminal background check and have three years’ documented investigation experience, consisting of at least 2,000 hours per year. Process serving, document searching, repossession work, and the like do not count toward the experience requirement. Certain college and law school education will reduce, but not eliminate the number of hours of investigation experience.

For a detailed list of qualifications, see Business and Professions Code §7540-7541.2. If the applicant’s background check and qualifications prove satisfactory, the applicant is then required to pass a written exam testing his/her knowledge of a wide range of practical and legal subjects.

Every private investigator must be licensed as a qualified owner/manager or be employed by a licensed owner/manager. The business of each licensee shall be operated under the active direction, control, charge, or management, in this state, of the licensee, if he or she is qualified, or the person who is qualified to act as the licensee’s manager, if the licensee is not qualified. Business and Professions Code §7536(a).

Effective January 1, 2009, the legislature gave the Director of Consumer Affairs the discretion to grant probationary licenses which can be valid for up to three years. Business and Professions Code §7526.1. The purpose of the probationary license is meant to deal with applicants with impairments such as psychiatric problems or substance abuse.

Importantly, the new law also requires the Director to provide any license applicant a statement of reasons for an application denial and a copy of his/her criminal record if that record was at least in part a basis for the denial. §7564.1(d)(1).

2.2 Unlicensed Activity

The Private Investigator’s Act also prohibits falsely representing oneself as a licensed private investigator. Business and Professions Code §7520. Conducting private investigations without a license or falsely claiming to be licensed are misdemeanors punishable by a fine of $10,000 and up to one year in prison or both. Business and Professions Code §7523(d).

In addition to the criminal penalty, significant civil penalties also apply to unlicensed activity. Code of Civil Procedure §1029.8 provides that "any unlicensed person who causes injury or damage to another person as a result of providing goods or performing services for which a license is required… shall be liable to the injured person for treble the amount of damages assessed in a civil action in any court having proper jurisdiction. The court, may, in its discretion, award all costs and attorney’s fees to the injured person if that person prevails in the action." (Emphasis added). Injury under this code section is not limited to physical injury, but rather means injury in the broad civil sense such as monetary loss. Note that the tripling of any monetary award is mandatory and the unusual sanction of awarding attorney’s fees is an important option for the court.

As this edition of The Manual went to press, the BSIS published proposed amendments to its regulations concerning unlicensed activity. The proposed regulations would give BSIS authority to directly issue citations for unlicensed activity and related advertising including the power to issue cease and desist orders and to impose administrative fines up to $5,000. Unlike existing regulations, BSIS would not have to refer unlicensed activity cases to the county district attorney for action. See, Title 16 California Code of Regulations §601.6-601.10.

One court has concluded that a sound engineer who provided equipment to a wife to secretly record her husband’s office conversations, wired her personally to obtain admissions and who hired an out-of-state private investigator to follow her husband was not acting as a private investigator within the meaning of the private investigator act. The court based its decision on the fact that the engineer never claimed to be a licensed investigator and that the single transaction with the… [wife] did not constitute engaging in business… [because] the word ‘engage’ connotes frequency of action. Mason v. Peaslee (1959) 173 Cal. App. 2d 587, 343 P. 2d 805, 808. The court never addressed the legality of the sound recordings themselves.

In Kennard v. Rosenberg (1954) 127 Cal. App. 2d 340, 273 P. 2d 839, 841, the court said:

 . . . the private detective license law was not intended… to place a limitation on the right of professional engineers to make chemical tests, conduct experiments and to testify in court as to the results thereof. A physician, geologist, accountant, engineer, surveyor or a handwriting expert, undoubtedly, may lawfully testify in court in connection with his findings without first procuring a license as a private detective, and… a photographer may be employed to take photographs… for use in court without procuring such a license.

2.3 Employees

A licensee  . . . shall at all times be legally responsible for the good conduct in the business of each of his or her employees or agents, including his or her manager. Business and Professions Code §7531.

But what is an employee for purposes of the Private Investigator’s Act? The Business and Professions Code defines an employee as an individual who works for an employer, is listed on the employer’s payroll records, and is under the employer’s direction and control. §7512.11. Employer is defined as  . . . a person who employs an individual for wages or salary, lists the individual on the employer’s payroll records, and withholds all legally required deductions and contributions. §7512.10.

Some confusion exists over whether a licensee must be the employer of all individuals working under his or her license who are engaged in investigative work or whether the licensee can use the services of a non-employee independent contractor who does not possess an investigator’s license. Representatives of BSIS have verbally stated that §7512.10 requires the employee to in fact be a W-2 employee, though he or she can be part-time. BSIS has not, however, promulgated any regulations on the subject. No California cases currently exist which definitively address the issue.

Importantly, §7531’s reference to agent, immediately following the word employee suggests that it is permissible for a licensee to use the services of an independent contractor. Indeed, the term agent is broadly defined by Civil Code §2349. See, Principal/Agent, §6.2.

Under the Private Investigator’s Act, A licensee shall at all times be legally responsible for the good conduct in the business of each of his or her employees or agents, including his or her manager. Business and Professions Code §7531. In Borg-Warner Protective Services Corp. v. Superior Court of the State of California for the County of Riverside E023754 (Cal. App. 4th September 1988), the court said: By virtue of the ownership of a… license such owner has the responsibility to see to it that the license is not used in violation of the law. And, the court said, that applies to both employees and independent contractors.

In order to determine whether an act is within the scope of one’s employment, The accepted test… asks if the… occurrence was a generally foreseeable consequence of the employment activity, so that ‘in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it from among other costs of the employer’s business. Plancarte v. Guardsmark LLC (2004) 118 Cal. App. 4th 640.

It is clear than an employee of a licensee need not be a licensee. In Estate of Dempsey A121116 (Cal. App. December 2008), citing §7531, the court refused to set aside a document negotiated by an employee of a licensed investigation agency who was himself not a licensee:  . . . the assignment runs to B&D, not Salazar. B&D is a licensed private investigator and Salazar was acting as an employee of B&D… As such, B&D was legally responsible for Salazar’s conduct.

The sheriff is required to provide a licensed investigator with  . . . a report stating whether any employee, or proposed employee, of such licensee has ever been convicted of a crime involving moral turpitude or the illegal possession of a dangerous weapon or of a felony; provided that the information contained in the sheriffs report to the applying licensee shall be only a statement of whether or not a conviction of such a crime has occurred. Government Code §26616. It is therefore advisable that a licensee make a written request to the sheriff of his or her county requesting such information as part of the employment screening process.

2.4 California Investigators working out-of-state

A licensed California investigator working in another state is governed by that state’s regulations and statutes, including whether the investigator can even conduct investigations within that state.

Four states – Florida, Georgia, Louisiana and Oregon – currently have reciprocal arrangements with California, authorizing California investigators to work in those states under certain restrictions. However, reciprocity does not mean that each of those states’ rules governing out-of-state investigators is identical to California’s. For example, a California licensee operating in Florida is limited to 30 days per case, may not solicit business while there or set up residence. It is important, therefore, to check the full text of the reciprocity agreements. Links to each of the above states’ reciprocity rules can be found at the Bureau’s web site: bsis.ca.gov/industries_regulated/pi_recip.shtml.

If an act committed in California exposes the investigator to discipline, that same act if committed out-of-state also exposes the investigator to discipline in California.

2.5 Out-of-state investigators working in California.

A private investigator’s license issued in another state does not automatically authorize the licensee to operate inside California. Morris v. Superior Court of Sacramento (1983) 145 Cal. App. 3d 561, 567, fn. 3.

A private investigator, licensed in a state other than California, may obtain authorization to investigate a case inside California for up to 60 days, provided: (a) the investigation in California is an extension of an investigation begun in the licensee’s state; (b) the licensee’s state offers similar privileges to California licensee’s (known as reciprocity); and (c) the out-of-state investigator notifies the Department of Consumer Services in writing upon entering the state. Business and Professions Code §7520.5. However, §7520.5 says the director of the Bureau may authorize an out-of-state investigator to work inside California, suggesting that the director has discretion and could therefore refuse to grant permission.

States which currently have reciprocal arrangements with California are: Florida, Georgia, Louisiana and Oregon.

2.6 Scope of Work

2.6.1 Background Checks

The bread and butter for many investigators is the background check, though it takes many forms. Background checks are defined as investigating The habits, conduct, business, occupation, honesty, integrity, credibility, knowledge, trustworthiness, efficiency, loyalty, activity, movement, whereabouts, affiliations, associations, transactions, acts, reputation or character of any person. Business and Professions Code §7521(b).

For the background check on a willing subject (such as an employment applicant) it is wise to obtain authorization forms and releases. They simplify the investigator’s work and can reduce future liability. An authorization does just that: it authorizes a specific person to perform a background check – usually a prospective employer – and it also authorizes third parties to disclose information about the subject. A release, on the other hand, relieves those who seek or disclose information from a wide arrange of liabilities. Risks of defamation and invasion of privacy can be greatly reduced or eliminated altogether with a properly drafted release. Authorizations are usually combined with a release.

Releases which waive the subject’s right to view his background report can be enforceable in some circumstances. County of Riverside v. Superior Court of Riverside County (2002) 27 Cal. 4th 793; Schmidt v. City of San Jose H022437 (Cal. App. Dist. 6 October 2002).

Be sure your standard authorization and release form or the one provided to you by the employer seeking the background check is clear about what may be disclosed and that any limitations (such as a cutoff date so that the authorization is for pre-employment only) are clearly spelled out. Most sources, such as universities or former employers, will not disclose information without an authorization form.

Increasingly, individuals are seeking background information on other individuals outside the employer-employee relationship. Prospective spouses or even those early in the dating process have turned to investigators to find out if their intended really was never married before, or to assure he or she has no criminal record or really has those claimed graduate degrees. The law does not require a subject’s consent to conduct a background check. Indeed, the client usually wants his or her skepticism kept a secret. However, without the subject’s consent, the investigator must exercise greater caution. The most important limitation is that a credit check cannot be conducted. See, Fair Credit Reporting Act, §8.0. While employers are not permitted to rely on arrests which do not result in a conviction, a private citizen is free to do so. As with any report, especially one without a release from the subject, background checks carry risks. See, Defamation, §6.14 and Privacy, §5.0.

2.6.2 Polygraphs – Performing

There is no California law requiring testing or licensing of polygraph operators. And nothing in the Private Investigators Act prohibits a licensee from conducting polygraph examinations. See, Polygraph – Legal Restrictions, §6.4.

2.6.3 Body Guarding/Personal Protection

A licensed investigator may provide personal protection services, only if it is incidental to an investigation for which the private investigator has been previously hired to perform. Business and Professions Code §7521.5(a) (Emphasis added). In other words, personal protection cannot be the reason for the investigator’s employment, but merely a logical outgrowth of it. The incidental to exception applies to guarding the client, not property. "A private investigator may protect individuals. However, he/she may do so only in connection with a case that he/she has been previously hired to investigate." bsis.ca.gov/customer_service/faqs/ pi.shtml.

And if the investigator provides such incidental personal protection services, "he or she shall comply with… those provisions [which] relate to the carrying of firearms and the receipt of a valid firearms qualification card from the bureau." Business and Professions Code §7512.5(b) (Emphasis added). Importantly, a private investigator’s license does not automatically authorize an investigator to carry or use firearms, even when providing personal protection, unless the investigator meets several separate stringent requirements. See, Firearms, §2.8.

The BSIS website explains it this way: A Private Investigator may carry a concealed weapon on duty if he/she also has [a] BSIS exposed firearms permit, and possesses a concealed weapon permit issued by local law enforcement or: is a retired peace officer with an endorsement to carry a concealed weapon or is an active duty police officer… . Even though a Private investigator may possess a concealed weapons permit, he/she must also complete [a] Bureau-approved firearms training course and obtain the Bureau’s exposed firearms permit prior to carrying and using a firearm. See, bsis.ca.gov/customers_service/

faqs/pi.shtml.

A licensed investigator is not permitted to subcontract bodyguard work to others. "If a person acts for, or on behalf of a private investigator in providing [bodyguard] . . . services that person shall be an employee of the private investigator… and there shall be an employer-employee relationship…" Business and Professions Code §7521.5(e) In other words, if a qualified bodyguard is not employed by the licensee, then the client must contract directly with the licensed bodyguard. See, Employees, §2.3.

An investigator wishing to provide personal protection without also serving as the investigator must secure a separate license as a Private Patrol Operator. If the licensee does not have a Private Patrol Operator’s license and believes that body guarding should be a component of representing a client, it is suggested that the investigator select an appropriate licensed private patrol operator and facilitate a contract directly between the client and the patrol operator. The Private Security Services Act requires that an agency providing personal protection maintain liability insurance with minimum limits of $500,000 for death or property loss. Business and Professions Code §7521.5(c). Likewise, a Private Patrol Operator licensee is permitted to conduct investigations only if incidental to their guarding duties and then only if related to theft, loss, embezzlement, misappropriation or concealment of property being protected. Business and Professions Code §7582.1(b).

2.6.4 Property Protection

A private investigator is not authorized to protect property. Business and Professions Code §7521.5(a) In order to offer property protection a separate Private Patrol Operator’s license is required. Business and Professions Code §7583 et. seq.

2.6.5 Bounty Hunting

The apprehension of those released on bail who fail to appear or otherwise violate their bail restrictions or bail contracts is commonly called bounty hunting. The official term in California is bail fugitive recovery person. All bounty hunters are required to complete classes on powers of arrest. Penal Code §1299.04.

Licensed private investigators are expressly permitted to act as bounty hunters, including investigators licensed in other states working in California. Penal Code §1299.02(a)(4). However, a bounty hunter does not need to be a licensed private investigator. People v. Askew A96260 (Cal. App. 1 November 2002).

2.6.6 Fingerprinting

State agencies are permitted to enter into contracts with private individuals for performance of fingerprinting and fingerprint checks for certain state employees (e.g. teachers) and professional license applicants. Contracts must be: (1) with licensed private investigators; (2) who have at least five years experience; (3) provide bank references; (4) carry at least one million dollars in liability insurance; and (5) have the ability to perform the work throughout the state either directly or via subcontracts. Penal Code §11148.

2.6.7 Investigators as witnesses

In criminal cases, the judge is required, on the motion of either the prosecution or defense, to exclude all potential and actual witnesses [from the courtroom] who have not been examined. The trial judge is also required to order witnesses not to converse with one another until after they have testified. Penal Code §867. However, investigators, including defense investigators, are expressly excluded from this provision and can remain in court while others testify even if the investigator is expected to be a future witness. There is no comparable statutory provision in the code covering civil trials. Case law suggests that civil trial judges have the inherent power to exclude witness from the court room until they testify. The standard of review is whether the trial judge abused his or her discretion in doing so. Isaman v. Steinberg B198503 (Cal App. 2d, February, 2009). However, it stands to reason that if the court is required to allow a defense investigator to remain in the court room during a criminal trial, the same should apply in civil cases.

2.7 Powers of Arrest

2.7.1 Generally

A licensed private investigator has no greater powers of arrest than any other private citizen. Therefore, private investigators are treated as private citizens for purposes of arrest power. What exactly is a private citizen’s arrest? One court’s jury instruction on the subject is helpful:

An arrest by a private person is made by actually restraining the person arrested and the person arrested may be subjected to such restraint as is reasonably needed for his said arrest and continued detention. People v. Piorkowski (1974) 41 Cal. App. 3d 324, footnote 6.

The authority of a private citizen to make an arrest is found in Penal Code §837 which states:

"A private person may arrest another:

1. for a public offense committed or attempted in his presence.

2. when the arrested person has committed a felony, although not in his presence.

3. when a felony has been in fact committed and has reasonable cause for believing the arrested person to have committed it." (Emphasis added).

In example 1 above, the offense may be either a misdemeanor or a felony, but it must have been committed or attempted in the actual presence of the arresting party. The term ‘in his presence’ is liberally construed… Presence is not mere physical proximity but whether the crime is ‘ . . . apparent to the officers’ senses… The ‘senses’ include those of hearing and smell. People v. Burgess (1959) 170 Cal. App. 2d 36, 41; People v. Wilkins (1972) 27 Cal. App. 3d 763, 769.

In People v. Lee (1984) 204 Cal. Rptr. 667, 157 Cal. App. 3d Supp. 9, the court, citing Burgess, said: The term ‘in the presence’ has historically been liberally construed in this state. Neither physical proximity nor sight is essential… a private citizen may arrest another when circumstances exists which would cause a reasonable person to believe that a crime has been committed in his presence. The test to be applied must be one of whether the person making the arrest had a reasonable good faith belief that the conduct constituted a public offense. Gomez v. Garcia (1980) 112 Cal. App. 3d 392, 397. In Gomez, the court reversed a civil judgment against the arresting private citizen despite the fact that the arresting party signed a complaint citing an incorrect statute that was allegedly violated. [I]f that conduct in fact constituted a public offense, the person making the arrest is not liable simply because he was mistaken as to which particular penal statute was violated."

For purpose of example 1, the powers of arrest possessed by peace officers and private citizens are equal. Ogulin v. Jeffries (1953) 121 Cal. App. 2d 211, 215.

In examples 2 and 3, the offense must be a felony, not a misdemeanor. For the arrest to be valid under subdivisions 2 or 3, "the requirement that there in fact be a felony committed can only be met if there is evidence of the corpus delicti [the body of the crime] and it is an offense known by the arresting party to have been committed. People v. Piorkowski (1974) 41 Cal. App. 3d 324, 328. (Emphasis added). Put another way:  . . . if the jury found that a felony had not in fact been committed, then defendant was not privileged to effect an arrest." Piorkowski at fn. 8. In other words, a reasonable suspicion or probable cause by itself is not enough when carrying out a citizen’s arrest and when the offense was not committed in the arresting party’s presence. It must be a felony which was actually committed.

The arresting party is permitted to rely in part on information he obtains from other witnesses. People v. Buonauro (1980) 113 Cal. App. 3d 688, 691. However, too great a reliance on second hand information can jeopardize the arrest if the crime is not a felony since a court could later conclude that the arresting party learned of the crime not from witnessing it, but simply from hearing about it.

The arresting party in any citizen’s arrest is required to follow a procedure when affecting an arrest, according to Penal Code §841:

"The person making the arrest must inform the person to be arrested of the intention to arrest him, of the cause of the arrest, and the authority to make it, except when the person making the arrest has probable cause to believe that the person to be arrested is actually engaged in the commission of or an attempt to commit an offense, or the person to be arrested is pursued immediately after its commission or after an escape.

The person making the arrest, must, on request of the person he is arresting, inform the latter of the offense for which he is being arrested.

Section 841  . . . does not require that the arrestee be advised of the reason for the arrest if, at the time, he is actually engaged in the commission of the offense and in any event the statute requires only that the arrestee be advised of the offense for which he is being arrested if he so requests. Moreover, even if the arresting party tells the arrestee an incorrect offense, a ‘failure to comply with the formalities of Penal Code section 841 does not per se render the person making the arrest liable… for false imprisonment." Gomez at 352.

The arresting party must also act quickly. In making an arrest without a warrant for breach of the peace or a misdemeanor, an officer must act promptly at the time of the offense. If he does not act immediately after the offense has been committed, he can thereafter make arrests only by procuring a warrant and proceeding in accordance with its terms. The same rule applies to an arrest made by a private individual in cases in which, if he acts immediately, an arrest without a warrant is permitted. In order to justify delay, there should be a continued attempt on the part of the officer or person apprehending the offender to make the arrest; he cannot delay for any purpose which is foreign to the accomplishment of the arrest. Ogulin at 215-16.

"Where the arrest is lawful, the person being arrested has a duty to remain passive and any force used by him in resisting is an assault. In that event the person affecting the arrest may use such force as is reasonably necessary to accomplish the arrest and the detention and to defend himself." Piorkowski at footnote 6. (Emphasis added). However, the use of deadly force during a felony arrest is permissible only where the felony threatens death or great bodily harm either to the arresting party or others. People v. Wild (1976) 60 Cal. App. 829, 833.

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