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Notice To Preserve Evidence: EFFECTIVE Evidence Gathering

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First, I should preface this post. This blog post is in the legal category of my blog, but I am NOT an attorney. Always follow the discretion of your attorney over what I say and/or write. Your attorney will understand things about your case that nobody else will, like the nuances of your case, the general attitudes that key people in your case have, and such. So, always listen to your attorney in your case, over anyone else.

Now, on to the topic of this blog post. This blog post is about the Notice To Preserve Evidence Letter, sometimes referred to as the Litigation Hold Letter. This has to be one of the most effective tools for gathering evidence that I have ever used, but yet one of the most overlooked tools that I know of. The Notice To Preserve Evidence Letter is very powerful, if worded correctly and explained correctly to the person it is being served to.

I have served these Notice To Preserve Evidence Letters for over 10 years, and although attorney’s seem to overlook using them, or at least seem to rarely use them, we have gotten evidence that we would not have gotten without using them. In one case we got video evidence that actually exonerated a client on drug trafficking charges, and in another case we got video evidence that assisted a client in securing a settlement from city government. 

Below is a photo of an old Notice To Preserve Evidence Letter that RMRI, LLC. used to get video evidence that resulted in our client obtaining a settlement from the city of Columbia, MO.

The benefit to the Notice To Preserve Evidence Letter is that it puts a burden on the person that it is being served to, that often times influences that person to turn over the requested evidence when they are being served rather than have to try to keep up with it and risk losing it. In the case mentioned in the previous paragraph, where our client was exonerated from drug trafficking charges, RMRI, LLC. served a Notice To Preserve Evidence on a local hotel for video footage in the time frame that the arrest and search of our client occurred, and we found evidence that the items that were found in the search did not belong to our client, nor did he have any knowledge that they were there. The evidence was compelling enough that the prosecution dropped all charges against our client. The hotel did not want to have to pull the video, store it, and be responsible for it, so the management decided to allow us to pull the video and process it the same day we served the the hotel with the Notice To Preserve Evidence Letter. We actually got key video evidence in this case before the local law enforcement agency that investigated this case did. In the other aforementioned case where our client got a settlement from the city, we also got that video evidence before local law enforcement did, the Notice To Preserve Evidence Letter in that case is pictured above.

Typically, Notice To Preserve Evidence or Litigation Hold Letters are used in civil cases, however I know of no case law, court rule, or procedure which bars them from being used in a criminal case. 

The Notice To Preserve Evidence Letter should be crafted by the Private Investigator in these criminal cases, since the Private Investigator should know what specific evidence to target, approved by the attorney, and then served by the Private Investigator. Serving the Notice To Preserve Evidence Letter is no different than process service, as a matter of fact it is process service. After the Notice To Preserve Evidence is served, the signatures are taken and the time and date are filled out, a copy of it should be put in the court docket. This allows the court to see that the party that was in possession of said evidence was put on notice to preserve that evidence in a legal matter. 

The Notice To Preserve Evidence Letter has been one of the most powerful tools that I have ever used in gathering evidence in criminal and civil cases.

RMRI, LLC. hopes to see this tool more widely used by attorney’s and private investigators to gather key evidence that may exonerate their clients in criminal cases or win judgments in civil cases.

Rick Gurley of RMRI, LLC.

Confidentiality: Good P.I.’s Remain Silent About Their Cases And Clients!

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I have been on the Internet for a very long time, probably longer than most Private Investigators have. I am always amazed at the information one can find on the Internet. Most of the information on the Internet is information that we freely give about ourselves. Between social networks, email, and the “deep web”, we can find out almost anything about anyone. It has become accepted and even expected that the consumer will inadvertently give out private information about their self on the Internet in current times. But what about Private Investigators? One would think that a Private Investigator would be cautious of what they allow others to see about them and their business on the Internet. Sadly, this does not seem to be the case.

The Private Investigation business is a funny business, while the Private Investigator has to be able to keep his or her case information confidential, he or she also has to find an effective way to advertise or market on the Internet these days, also. Often times Private Investigators blur the lines between marketing and giving out confidential information on the Internet. I was amazed eight years ago when I found a naked picture of one Private Investigator on the Internet. Not surprisingly this Private Investigator was the very person responsible for their naked picture being on the Internet. If this Private Investigator had not sent their naked picture to other unsuspecting people of the opposite sex in email, their picture would have never been found on the Internet. This is just an example  of how careless one Private Investigator had become with their information. But there are literally hundreds of examples like this where Private Investigators have shared a little too much on the Internet.

We all remember the Baby Lisa Irwin Case, and one Private Investigator’s attempt to grab some attention by proclaiming how he was working this case, then “backpedaling” and stating that he was blogging this case as an “Investigative Journalist”, right? Look at all of the information and inferences one could make from that situation. First, the question comes to mind; why wouldn’t anyone actually hire him to work this case? Second, one has to wonder was this Private Investigator using his fee based, proprietary databases to cull information on this case, while he was clearly not working as a hired Private Investigator conducting a Private Investigation? Third, was it appropriate to share the results of his investigation with the public, while the Police were conducting an investigation into the disappearance of this infant, if he was not hired by anyone to conduct this investigation? It is one thing to conduct an investigation as a hired Private Investigator where you have an obligation to your client to investigate the case and keep the information that you gather confidential; it is entirely another thing to possibly interfere with a Police investigation by conducting an investigation for the sake of blogging about your findings for a little media attention. And to this day, this Private Investigator has put himself in the unenviable position of not being able to prove that he did one single thing that helped in locating this child; the only thing he did do was make himself look like an attention starved, low-rent Private Investigator that would do anything for a little media attention.

RMRI, Inc. works a good deal of very sensitive cases that go to court and can be “life altering” to our clients if certain critical information were to come out about our cases. RMRI, Inc. has a few hard and fast rules and protocols about how we conduct business and what we choose to let the public know about our business. First, the ONLY time we are working a case is when we have a paying client, we don’t work cases for free in the hopes of getting some media attention. In all cases that go to court, we enter into a contract with the client. If the case is something simple, where a contract is not necessary (such as: serving a summons) we get an email acknowledgement or an on-line acknowledgement that we are working for the client and that the client expects any information we find in the course of doing our work to remain confidential. We NEVER speak to anyone outside of the client and our team members about an active and ongoing case. Even after a case is completely finished we have a ninety (90) day wait time before we can even acknowledge that we had any involvement with the case whatsoever, and then after that ninety (90) days we can not mention anything that identifies the case we can just speak in general terms about the case.  Our approach is quite simple; “we don’t want attention, we want to be paid”. We liken our work to that of any other job, we “punch in” and work, we “punch out” and go home, and we collect our pay. We work to make a living, not for glamour and fame.

While it is true that you can find RMRI, Inc.’s company name in certain publications for attorneys and certain news papers and magazines, what you wont find is any specific information about cases we work, such as names, dates, and specific locations. While you might see a mentioning of cases on our website, what you will not see is any specific mentioning of the details of these cases unless they are over seven (7) years old. While you might see a Facebook Page for RMRI, Inc., what you won’t see is any mention of a case we are working. We make tremendous efforts and take great pains at RMRI, Inc. not to blur the lines between advertising and giving out even a hint of information about our clients and our cases. RMRI, Inc. is not so desperate for attention that we are willing to forsake our client’s privacy for some media attention.

RMRI, Inc. is made up of two (2) licensed Private Investigators, one (1) Pending Licensed Private Investigator, one (1) Process Server, two (2) Technical Consultants qualified as Expert Witnesses, and one (1) Secretary and all of our staff have committed to keeping all case and client data at RMRI, Inc. confidential. Each member is well aware that intentionally “leaking” case and/or client information outside of the confines of RMRI, Inc. is grounds for termination and possible civil action.

In Summary

A Private Investigator’s ability to keep his or her case and client information is paramount. Confidentiality in the Private Investigation Business is a justified expectation of the client. A successful and confident Private Investigator feels no need to boast about their cases or their clients. Confidentiality is the hallmark of any successful Private investigation Business. If you don’t understand confidentiality, you don’t understand the Private Investigation Business!

Missouri PI Licensing Law, The Missouri Supreme Court; What It All Means

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First of all, as much as it pains me to preface this post like I must, it is important to make it clear that no profession is without it’s ignorant, mis-informed, and downright stupid people. And the Private Investigator Profession is just like any other profession; it has its share of “Dipsticks”. What amazes me is the number of Private Investigators that can not correctly interpret a court’s ruling. While it is true that these rulings can generally only go one of two ways, there is much to be gleaned from reading these rulings in their entirety. It is shameful to have to admit that some Private Investigators don’t understand the value of reading these rulings in their entirety.

As we all know, I have been fighting a very lengthy battle with the state of Missouri in regards to the way it has set up the licensing statutes for Private Investigators. This week I lost my case in the Missouri Supreme Court; here is the opinion: Missouri Supreme Court Opinion_SC91741. Some Private Investigators believe that this means that I no longer have a Private Investigator’s License. Well, those Private Investigators should probably stick to Mystery Shopping and not ever try their hand at REAL P.I. work; because they seem to have less of an understanding of the law than the average consumer. So, let me clarify for the “Dipsticks”. My case in the Missouri Supreme Court was a completely separate case from my appeal to the Adminsitrative Hearing Commission, which granted my license over a year ago; as we can see below:

And this can be easily searched at this link: Missouri Professional License Search. My case in the Missouri Supreme Court had nothing to do with trying to obtain my PI License, as there was no need since I already had my PI License since 01/12/2011 as we can see above on my PI License Information Sheet, certificate, and actual license. Now again, for the “Dipstick Private Investigators” that believe this was a license denial; you have just shown the world how ignorant you are.

Now, let us dive into the actual ruling from the Missouri Supreme Court. There was nothing “bad” about the court’s ruling. The Justices used perfect logic in their ruling. I am not so sure that they completely considered the full implications of this statute that they were considering, but their logic was in fact perfect. The ruling was not harmful to me in any way, and as a matter of fact it was actually PROTECTIVE of every license holder in the state of Missouri and myself. Because the ruling set forth a clarification, and perhaps even a warning to any professional licensing board that might try to take away a person’s professional license. Read the language:

B. Procedural Due Process Claims:

Because professional licenses are considered to be “property” for the purposes of the Fourteenth Amendment, procedural due process is required before the government may deprive anyone of his or her professional license. See Stone v. Missouri Dept. of Health and Senior Serv., 350 S.W.3d 14, 27 (Mo. banc 2011). On the other hand, because no one has a property interest in a mere unilateral expectation, see Daniels v. Bd. of Curators of Lincoln Univ., 51 S.W.3d 1, 6 (Mo. App. 2001), due process generally is not required before the denial of a new application for professional licensure.

Effectively this language indicates that when I first applied for a Missouri State Private Investigator’s License, I did not have a protected property interest because I did not currently hold that state license, all I had was an idea that I might be issued a Private Investigator’s License. But this language also strongly suggests that now that I have had a Private Investigator’s License since 01/12/2011 that I effectively have a “protected property interest” under the Fourteenth Amendment, that can not be taken away from me without procedural due process.

Furthermore, when one looks at the ruling even closer one can see that I actually raise a valid point, and the court even admits that I raise a valid point, again read the language:

The crux of Gurley’s argument is that subdivision (9) lacks a commercial element. Thus, Gurley argues that “private investigator business” includes numerous First Amendment-protected activities performed every day by most American citizens. He focuses especially on subdivision (9)(b), arguing that anyone who uses a social networking website to locate a former classmate or to search for a potential romantic partner is “making [an] investigation for the purpose of obtaining information pertaining to … [t]he identity … whereabouts … 8or character of [a] person.”

Gurley also argues that the definition of “private investigator business” describes the work of any political volunteer conducting opposition research, any freelance reporter and any author. 8

Gurley is quite right that requiring prior government approval before engaging in so many speech-related activities by uncompensated volunteers would raise serious constitutional questions. But the Court need not confront those questions. “[T]he first step in overbreadth analysis is to construe the challenged statute.” Stevens, 130 S. Ct. at 1587. “The primary rule of statutory interpretation is to ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider the words in their plain and ordinary meaning.” S. Metro. Fire Prot. Dist. v. City of Lee’s Summit, 278 S.W.3d 659, 666 (Mo. banc 2009) (internal quotation marks and citations omitted). That being said, “[i]t is presumed that the General Assembly would not pass laws in violation of the constitution.” Planned Parenthood of Kansas v. Nixon, 220 S.W.3d 732, 742 (Mo. banc 2007). For this reason, “[a] narrowing construction is the preferred remedy in First Amendment cases.” Id. at 741. “In determining claims of overbreadth, our construction of the statute is definitive and we are obliged to give it a construction which will render it valid, if possible.” Pollard v. Bd. of Police Comm’rs, 665 S.W.2d 333, 341 (Mo. banc 1984).

8 An even more troubling possibility would be that licensure might be required for members of religious congregations volunteering to investigate candidates for leadership and other positions.

In essence, my argument certainly is not being viewed as frivolous or meaningless; it simply raises questions that the court feels are not necessary to address at this time. The court does not advocate that the issue I bring could never happen, the court just simply states that this issue has not happened yet and so at this point in time it is purely speculative. All and all, I believe the Missouri Supreme Court made a logical conclusion that I can live with. The Missouri Supreme Court’s ruling certainly did not damage, harm, or hurt me in any way.

I think that there is one issue here that should be understood. There are many Private Investigators out there that are not very fond of me, and that is okay because I don’t care about anyone’s fondness. Some of these Private Investigators seem to derive a pleasure out of what they ignorantly believe is a failure for me, and that is okay too because I really enjoy watching ignorant people show just how ignorant they are. But here is a point for them to consider, and they may have already considered it, which is why they are not too fond of me. Could you have taken a case all the way to your state Supreme Court? Do you have the resources and finances to take a case to the highest court in your state? Could you deal with the stress and financial hardship of having your bsuiness shut down for ten months, and then turn around and revive your business after you open it back up ten months later? Could you stand such a loss and still come back? It is not for the faint of heart. It takes a certain kind of person to be able to do what I have done. It was not easy, and most people could not do it; most people would have thrown their hands up and gave up a long time ago. Me? I still have plenty of fight left. I have not been worn down. I adopted two mottos a long time ago that I try to live my life by; I believe there is a simple three word motto that every person should live their life by. It is an old British SAS Motto, which simply says “Who Dares, Wins”! I am a Risk Taker by nature, and always have been. That is the true spirit of the Entrepreneur, which is what most of us strive to be but very few know how to be. I have fought battles and won some and lost some; but I have never been afraid to step up and fight for what I believe to be right. I also live my life by this motto: “Illegitimi Non Carborundum”; meaning “Don’t Let The Bastards Grind You Down”! Thus far, I am still standing. I am still here, fighting the good fight and I would not have it any other way!

It would not be right to take credit for winning my license at the Administrative Hearing Commission and getting this case to the Missouri Supreme Court by myself. I had two of the very best attorneys that I have ever had the pleasure of handing a case for me: Jay and Randall Barnes. Also, I think it is worth mentioning that every attorney and every Judge that I dealt with in this case, the State Attorneys, Judge Paul Wilson, and Commissioner Nimrod Chapel were all very professional and civil, they treated me with dignity and were very respectful to me. They have all honored their profession in my eyes.

For those of you that like to read my blog, and are fans of my blog, thank you for taking the time to read this post. For those of you reading this because you thought I failed here, perhaps now you will see how ignorant you really are. But, the chances are that you are ignorant about your own ignorance. Stupid people simply do not believe that they are stupid…

The Criminal Defense Investigator’s Adversarial Role!

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Often times I am asked if it bothers me that “I help to put criminals back on the street”? I get asked this questions in various forms, sometimes “harshly”, sometimes in intelligent debate and/or conversation. I understand that this question is usually a “non-malicious question”; yet I can’t seem to get over the implications that this question makes about the person asking it….

First; let us consider this question: “does it bother you that you help put criminals back on the street”? When you consider this question carefully you can only assume that the person asking this question believes that the defendant in a criminal case is guilty before he or she has ever had their day in court. The logic of this question is that if I work a case as a Criminal Defense Investigator; for a Defendant that is accused of a crime, I am assisting a guilty person in trying to get away with this crime. So; when you think about the person asking the question, you begin to see a person that does not seem to believe in the presumption of innocence, the concept of “innocent until proven guilty”, and the practice of giving a person accused of a crime due process. Of course that person’s views would change considerably if that person was charged with a crime.  The correct philosophy in our current Judicial system is that a person accused and charged with a crime is completely innocent of said crime until they are convicted in a court of law; or at least that is supposed to be the way criminals cases are viewed by our current Judicial System…….. Yes; the questions we ask can often tell much about us….

Second; I think it is important to get into the process of Justice. Our Justice System is designed to be adversarial; the Prosecution and the Defense are adversaries in criminal cases. Both sides are supposed to work hard to prove their opposing theories in a criminal case. Both sides will use various tools that are at their disposal; Investigators, Expert Witnesses, Technology, etc., etc. in trying to prove their case. The hopes are that through this adversarial process, and the hard work that both sides have to do in this adversarial process, the truth will come out; and justice can be served.

Third; I think it is important to define the role of the Criminal Defense Investigator. In a criminal case the Criminal Defense Investigator first and foremost must remain dispassionate, and emotionally detached from the case; no good can come from a biased Investigator in a criminal case. It is important to remember that the quest is for truth and justice, not for a “win”. The Criminal Defense Investigator will assist the Defense Attorney in building his or her case by gathering evidence that will allow the Defense Attorney to accurately assess and evaluate their case. The Criminal Defense Investigator knows that he or she is simply a “tool” that the Defense Attorney has chosen to use in a very delicate process, with very serious consequences. So, it is imperative for the Criminal Defense Investigator to be dispassionate, emotionally detached, and yet also able take his or her job VERY seriously.

Having made these three points, I want to answer the question we are confronting here very bluntly. “Does it bother you that you help put criminals back on the street”? My answer is a resounding NO! Because in a criminal case without a fair process, where the rules and protocols are not strictly adhered to; there is no justice. Even if one guilty man goes free due to poor, inadequate, or dishonest work on behalf of the Prosecution it is the lesser of two evils when you consider that the alternative threatens the very fabric of a fair and impartial Justice System (the term “Prosecution” in this article includes the Investigators, Expert Witnesses, and anyone else working on the side of the Prosecution). The long term effect of the adversarial system used in our current Judicial System is that everybody gets better at their jobs; good Defense Attorneys challenge Prosecutors to be better and vise versa; good Criminal Defense Investigators challenge Law Enforcement Investigators to be better Investigators and vise versa.  I should also mention that I believe it is better to let one hundred guilty people go free than it is to imprison just one innocent man. We can always bring a person to court, but we can never get the years back that an innocent person spends in prison.

Rick.

Written by Rick Gurley

June 28, 2009 at 9:56 AM

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