Private Investigation: Undercover Operations
The use of an undercover operative in a private investigation should be a consideration when criminal activity is affecting a business but the details are unknown and proof is needed to bring it to an end. An option for the business is to engage an investigative agency skilled in undercover operations. The agency is obligated to provide an operative that is experienced and free of prior crime. The work to be performed by the agency should be clearly set out in an agreement. It sometimes happens that the client gets cold feet or wants the operation to be altered in some way. The client should never be permitted to call the shots. The client can provide useful information but should not be allowed to tell the investigative agency what do, save shutting down the operation.
The first step is to bring the operative into the business in an apparently routine way such as hiring him or her to fill a vacant position, even it means creating a position. It will help if the operative has the skill and know-how to perform the tasks of the job, or the job can be made so simple that skill and-know how are not necessary such as a janitorial job. The position should be such that the operative is placed in a physical location where the activity can be observed. If the location proves to be the wrong location for observation, a routine transfer to another potential location should be made.
The second step in the operative’s game plan is determine the nature of the activity, i.e., the what, where, how, and who. In other words, find out what is being stolen or compromised, where the activity is occurring, how the activity is being carried out, and the identities of the persons involved. A controller, an experienced investigator, should be the operative’s only point of contact with the agency.
The third step for the operative is to establish a relationship with the persons involved such as befriending a member of the criminal group or posing as a thief interested in becoming a member of the group. A cover story is essential and should be capable of validation in case the criminal group wants to check out the operative’s cover story. A point needs to be made on this matter: if the operative is in danger, such as his or her cover being blown, the operative must be extracted in a manner that does not confirm suspicions of the criminal group. An example would be transferring the employee (operative) to a new, remote location, letting the employee go for a reason of manpower reduction, or terminating the employee for a cause completely unrelated to the criminal activity. The objective is to protect the operative first, and investigate the criminal activity second. After a reasonable period of time, a second operative can be inserted.
The fourth step is to avoid entrapment if the police become involved in anyway. Entrapment relates to the police, and if there is any indication the police have participated, even in a minor way, prosecution may not be possible. Also, there is the risk that at trial the criminal group will attempt to show that the operative helped plan the activity, participated in it, and the activity would not have occurred if it were not for the operative. This can be shown if the operative participates in the activity and shares in the profits generated by the activity. If taking a portion of the stolen items or a share in the profits becomes absolutely essential to “legitimatize” the operative with the group, the operative should not personally benefit in any way. Any stolen items, share of the “loot,” or other material owned by the victim must turned over to the controller and held as evidence.
The fifth step is to have a controller constantly receive information from the operative and direct him or her to take certain actions or avoid certain actions. The communication between the operative and the controller should be at least daily. The method of communication can be covert person-to person meet, dropped message, telephone, telephone mailbox, e-mail, fax, and twitter provided the method is reasonably free from detection. While effective, use of a body wire is risky to the operative. Making written notes or maintaining a diary is a no-no.
From an evidential point of view, photographs, video tapes and other forms of imagery are very, very good but difficult to acquire. An operative caught taking photos can be placed in great danger. A fairly effective method of showing the thieves in action is to install a fiber optic lens that sends images to a photographic recording device that has a time and date generator. A fiber optic lens is easy to cancel, such as in a fire alarm sound box or inserted in a plasterboard wall. The downside is that the area of view can be less than desirable.
The telephone bug and other forms of eavesdropping devices can be helpful in the capture of incriminating discussions and a pen register can be helpful in identifying participants located away from the area of the crime such as a fence.
Of great importance is the identification of places where stolen goods are hidden before being removed from the premises. When the operation comes to a conclusion, the hidden stolen goods can be seized and held as evidence. Typically, the police would arrive at the scene with a warrant. Property is seized and arrests made, including arrest of the operative. The idea is to not expose the operative to retaliation. The standard police procedure is to separate the arrested persons while they are in confinement. This practice can facilitate a safe release of the operative and at the same prevent the criminals from concocting a defense story Depending on the judgment of the prosecuting attorney, the operative may or may not be called as a witness at trial.