Law Life: Private eye escapes liability for GPS tracking

By Pat Murphy The Daily Record Newswire Mike Hammer surely could have avoided innumerable black eyes had he had the benefit of a GPS device to track suspects from a safe distance. Then again, it's hard to picture Mickey Spillane's cynical private detective enduring the tedium of a lawsuit for invasion of privacy. One real-life private detective in New Jersey not only endured but prevailed in a lawsuit brought by a wayward husband who complained that a GPS device was used to track his movements. The private detective is Richard Leonard, who runs Innovative Investigations, Inc. in Haddon Heights, New Jersey. In 2007, Leonard was hired by the wife of Kenneth Villanova to investigate her suspicions of marital infidelity. Tracking Villanova's movements was going to be problematic because he was a Gloucester County Sheriff's officer whose instincts were attuned to unwelcome surveillance. Indeed, Villanova allegedly had an Innovative Investigations surveillance team rousted by fellow police officers when one day he detected that he was being followed. To solve this problem, Leonard allegedly suggested that Mrs. Villanova place a GPS tracking device in the family's GMC Yukon-Denali, which her husband typically drove. Mrs. Villanova thereupon purchased a GPS device over the Internet and placed it in the glove compartment of the Denali. The device tracked the vehicle's movements from approximately July 14, 2007 to August 24, 2007. Now, it's important to note that the tracking information from the device was obtained not by Leonard but by Mrs. Villanova through reports on the Internet from the GPS provider. Although Mrs. Villanova presumably passed some of the tracking information along to the private investigator, the record in this regard is rather sketchy. What we do know is that, two weeks after the device was installed, Leonard was able to observe Villanova pull into the driveway of a home and observe a woman who was definitely not Mrs. Villanova get in the Denali. Alas, the Villanovas were headed for divorce. In the divorce case, the use of the GPS device was disclosed and Kenneth Villanova wanted to assert a claim for invasion of privacy against his wife. The family court judge wouldn't allow that and the privacy claim against Mrs. Villanova was later waived under the terms of the divorce settlement. However, Villanova still wanted to sue Leonard and Innovative Investigations for invasion of privacy based on the private eye's suggestion to Mrs. Villanova that she get the GPS device. Last week, the New Jersey Appellate Division ended the lawsuit against the private investigator, concluding that Villanova couldn't show that the GPS device intruded on his privacy. As noted above, the evidence documenting the information gleaned from the GPS device was in some respect rather raw and incomplete. This proved to be a fatal flaw in Villanova's lawsuit. According to the court, in order to prove that the use of the GPS device violated his privacy rights under state law, Villanova had to prove that he was tracked when he drove the Denali into an area outside of public view. Because the tracking information contained in the court record did not show with precision that Villanova had indeed been tracked into an area of privacy or seclusion, his case was over. "We hold that the placement of a GPS device in plaintiff's vehicle without his knowledge, but in the absence of evidence that he drove the vehicle into a private or secluded location that was out of public view and in which he had a legitimate expectation of privacy, does not constitute the tort of invasion of privacy," the court said. (Villanova v. Innovative Investigations) Now, this decision is causing quite a stir across the country, with some reports suggesting that it's now open season on the use of GPS devices against cheating spouses. But a careful reading of the court's decision discloses that this is not the case. The court doesn't say that GPS tracking in this circumstance never amounts to an invasion of privacy. The case was decided on summary judgment. Villanova's lawsuit was tossed because the GPS data in the record was insufficient to show that he was tracked into an area in which he had a reasonable expectation of privacy. This doesn't foreclose a future plaintiff from proving his case by presenting a more precise analysis of the GPS data. So private investigators in New Jersey and elsewhere should not take too much solace in the win just handed to Leonard and Innovative Investigations. Published: Thu, Jul 14, 2011