Amber Reed and Bryant Green (John Disney/ ALM)
After a Walton County woman discovered that a private investigator hired by her boss’s wife had surreptitiously placed a tracking device under her car in order to trail her, her lawyer was certain a jury would view it as an illegal invasion of privacy.
Not in Cobb County.
After a two-day trial that Atlanta attorney Charles Bachman said devolved into an attempt to “assassinate the character” of plaintiff Melissa Atkins over allegations of an ultimately unproven affair, a Cobb County jury last week cleared Marietta private eye firm TFP Co. of all liability.
Atlanta attorney Bryant Green, lead counsel for TFP and firm principals Eric and Pat Echols, said the case—the first time the issue has been tried in a Georgia court—is a legal green light for private investigators across the state to employ global positioning systems in tracking individuals they have been hired by private clients to follow without fearing litigation or arrest.
“I specifically argued that, given the fact that TFP was defending a claim of adultery in a divorce that their client had a right to obtain evidence in furtherance of that claim,” Green said. In Georgia, adultery remains a misdemeanor criminal offense.
Eric Echols made his name as the private investigator who, beginning in 2008, worked to clear kindergarten teacher Tonya Craft of allegations that she had molested several of her students and her own child . The case—one of several sensational child molestation cases around the country involving teachers or day care providers and their young charges—garnered national media attention before a jury acquitted Craft in 2010. Echols himself faced criminal charges of intimidating witnesses that included Craft’s chief accusers—all of which also eventually were dismissed. Echols and his wife, a paralegal, have done investigative work for a number of local law firms, including Green, who described them as both “ethical and good.”
Bachman says he will likely appeal, although his firm currently has two other suits pending against private investigators in Cobb County, also for secretly installing GPS tracking devices on private vehicles. Atkins, Bachman added, “feels she has done some good, even though we didn’t get the verdict we wanted. We will keep fighting this.”
The jury’s verdict, in essence, gives private investigators a privilege not afforded to Georgia law enforcement officers, who must first obtain a search warrant before attaching a tracking device to an individual’s vehicle absent his or her knowledge or permission, according to the presiding judge in the case in a pretrial order he handed down last September.
Cobb County Superior Court Judge Robert Leonard—while observing that no criminal statute prohibits private investigators such as the Echolses from using a GPS device to track people without their knowledge—also expressed in a rare “point of personal privilege” his concern with defense arguments that, because there is nothing that specifically prohibits the practice, it must be legal.
“From a public policy perspective,” Leonard said in his order, “the problem with [the] defendant’s legal position is that, if correct, anybody can put a GPS tracking device on anyone else’s vehicle and, [as] long as it is done in a public place, it is not a crime and no private cause of action can be maintained.”
Most Georgians, the judge observed, “would be upset to learn that there is no law restricting the use of GPS tracking devices to obtain, compile and potentially disseminate to their detriment a great deal of data about what our citizens are doing. It only takes a little imagination to conjure up what sort of information could be obtained from indisputably private trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the divorce attorney, the by-the-hour motel, the AA meeting, the mosque, synagogue, the gay bar and on and on.” The case, he concluded, “represents a classic situation where our jurisprudence and legislation have not kept up with rapidly-changing technology that is widely available and cheaply obtained.” The judge then invited the Georgia General Assembly “to take up this issue of GPS tracking in a healthy debate and potentially pass legislation that it deems necessary to provide Georgians with property protection of their right to privacy.”
Neither side in the case disputes that Atkins’ claim against TFP (Truth Fact Protect) stemmed from an investigation they undertook on behalf of Walton County resident Michele Lewis, who suspected Atkins of having an affair with Lewis’ husband, Robert Lewis, for whom she worked and with whom she became close friends, according to court records and TFP’s lawyers.
Atkins denied that, before the Lewises filed for divorce in 2013, she and Robert Lewis had engaged in an affair or had any kind of physical relationship. But defense lawyers argued that the duo, at the very least, had engaged in an “emotional affair” that justified Michele Lewis’ decision to hire a private eye. At the time, Atkins’ own marriage was also ending.
The tracking device that Eric Echols attached to Atkins’ car while it was parked at Robert Lewis’ business remained on her vehicle just two days before Atkins’ husband discovered it. She reported it to police, thinking it was a crime to hide the device under her car, her attorney said.
By then, Echols had discovered that the device was failing to transmit and, when he went to retrieve it, that it was missing from Atkin’s vehicle, said Green’s co-counsel, Amber Reed of Atlanta’s Broderick and Reed. Echols also reported the missing device to police, she said, and if one was found, it likely belonged to him.
Reed said that, at the trial, the jury was told that the tracking device had malfunctioned. “We argued that no private information was obtained. The GPS didn’t work; it wasn’t able to transmit any data about where the vehicle was.”
But she also contended that, even if it had functioned, “It was a much less intrusive form of surveillance than, say, if he had followed her for weeks on end.”
Reed and Green also contended that any right to privacy that Atkins might claim did not extend to tracking her vehicle on public roads and in other public places where it could be seen, and ostensibly followed, by anyone. “There is just not a right to privacy” on public thoroughfares, Green said.
Bachman, Atkins’ counsel, said that the private eye firm’s lawyers argued that there wasn’t any actual surveillance because the device was defective and, while there was attempted surveillance, attempted surveillance isn’t a privacy invasion.
He said that his co-counsel talked with jurors after the trial and several indicated that the verdict was influenced by two things—Eric Echols’ testimony that the tracking device had failed and that there was no real surveillance as a result, and “just so much mud being cast” about Atkins’ morals that they kind of lost sight of what the case about.”
“Had it not been for the whole issue of the device not working, I’m not sure the result would have come out the same,” Bachman added. “I don’t think there is any way to suggest the jury’s verdict was a green light to say this was an OK practice.”