FAMILY LAW,PRIVATE INVESTIGATOR,

& DRUG TESTING

Spencer Investigations LLCDustin E. Grate

dgrate@spencerpinv.com775-691-6527

“Grate” Detections LLC“Mobile Drug Testing”

www.spencerpinv.comwww.gratedetections.com

• NRS 648.012 "Private investigator" defined.

• "Private investigator" means any person who for any consideration engages in business or accepts employment to furnish, or agrees to make or makes any investigation for the purpose of obtaining, information with reference to:

• 1. The identity, habits, conduct, business, occupation, honesty, integrity, credibility, knowledge, trustworthiness, efficiency, loyalty, activity, movement, whereabouts, affiliations, associations, transactions, acts, reputation or character of any person;

• 2. The location, disposition or recovery of lost or stolen property;• 3. The cause or responsibility for fires, libels, losses, accidents or damage or injury to persons

or to property;• 4. Securing evidence to be used before any court, board, officer or investigating committee; or• 5. The prevention, detection and removal of surreptitiously installed devices for eavesdropping

or observation.• (Added to NRS by 1967, 1363; A 1985, 1333)

What Defines A Private Investigator

BENEFITS TO HIRING OF INVESTIGATOR

o The Attorney is not conflicted out and the investigator, who does this

in their regular course of business, can testify as an expert in the area and is able to properly authenticate the information

without the inherent bias that comes along with the Client/Spouse testifying about the information.

o Much more exists than just the information about what the other spouse tweeted that they had for breakfast last Monday- i.e. GEO

Tagging, etc.

o “Location” Functions make it possible to see where the other Spouse was physically located at various dates and times- which could

be vital if it is the other spouse’s weekend with the children, that spouse is not to leave the state without the consent of your

client, yet somehow that spouse checked in two states away at a local diner.

THE DANGERS OF ALLOWING YOUR CLIENT TO DO THE INVESTIGATING o Unless you are very familiar with private investigation work, you could

be putting yourself, your client, and their friends and family in grave danger if you try to do your own private investigation. The reason for this is that you are unlikely to know the art of surveillance or counter- surveillance and are therefore more likely to blow your cover early in the investigation. This exposure could very well lead to greater danger for you when the subject you are trying to follow realizes your presence, especially if the person has criminal experience. 

o It is far more sensible for you to hire the services of a private investigator that has been specially-trained in the art of

undercover and surveillance work. In all likelihood, he or she is in a position and has sufficient experience and resources to go undetected throughout the whole investigation process – something that will be quite impossible for you to achieve.

Social Networking

Ethical Decisions“Poser”

• CLEVELAND, Ohio — An assistant Cuyahoga County prosecutor is defending the actions that led to his firing.

• Aaron Brockler served in the prosecutor’s office for seven years and was working on a murder case. While trying to “break the suspect’s alibi,” he posed on Facebook as the suspect’s ex-girlfriend.

• Former Asst. Cuyahoga County Prosecutor Aaron Brockler• But Cuyahoga County Prosecutor Tim McGinty did not approve of the Facebook tactic and fired

Brockler.• In a statement, McGinty said: “By creating false evidence and lying to witnesses as well as another

prosecutor, Aaron Brockler has damaged the prosecution’s chances in a murder case where a totally innocent man was killed at his work.”

• Brockler told Fox 8 News: “The idea that the prosecution’s case has been damaged is somewhat puzzling to me since the defendant no longer has a viable alibi. Had I not acted as I did or with the swiftness that I did, the case would have been damaged.”

• He continued, “My employer, the Cuyahoga County prosecutor, chose to protect the way the business is one in the court and the technical rules of ethics, and I chose to protect the public.”

• He said his tactics were fairly common in law enforcement• Brockler said he is contemplating legal action against McGinty. The case in question has not yet gone

to trial.

Profiles

• Have your investigator use a profile.• Most investigators will have a profile set up for

“work” purposes.• This does not mean a “fake” profile it is simply

a profile that does not have anything “in it”.• Have your investigator make the “contact” not

the Attorney or the paralegals this can make you a witness or potential “poser” problems.

Freedom of Speech???• The U.S. Supreme Court considered Monday where to draw the line in protecting free speech on social media sites like Facebook.• The Court heard arguments in the case of a Pennslvania man convicted of making threatening statements about his estranged wife and law

enforcement officials.• Anthony Elonis claims he did not intend to frighten anyone, that instead his writings were "therapeutic" and helped him deal with the sadness

of his broken marriage.• Elonis' attorney, John Elwood, told the high court the government must prove he intended to instill fear in others and make them feel

threatened. "If he knows [his wife] is in fear he does not have the right to carry on," Elwood said.• Deputy Solicitor General Michael Dreeben, arguing for the government, told the justices that it does not matter what Elonis intended, only

whether a reasonable person would have felt threatened.• Dreeben said, "We want a standard to hold people accountable." Arguing against the rap defenses, Dreeben argued in the context of rap lyrics,

like those of rapper Eminem, "the clear purpose is entertainment."• READ: Supreme Court's year ahead: rappers, unions, bearded prisoners• The justices questions suggested the case presents a struggle about what is a threat and what is just self-expression.• Chief Justice John Roberts questioned Dreeben using the example of someone who is not yet known as a rapper and therefore has no clear

purpose of entertainment, asking, "What about the budding rapper who is writing his first rap song?"• Justice Samuel Alito commented, "This sounds like a road map for threatening a spouse and getting away with it. So you put it in a rhyme...and

you say I'm an aspiring rap artist and so then you are free from prosecution."• Justice Sonya Sotomayor said, "We've been loathe to create more exceptions to the First Amendment."• Elonis was convicted of threatening to injure another person and sentenced to nearly four years in prison for posting writings such as, "There's

one way to love you but a thousand ways to kill you. I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts."

• Elonis claims he was just writing rap lyrics and venting. He also posted comments about law enforcement, writing, "I've got enough explosives to take care of the state police and the sheriff's department."

• In yet another Facebook posting Elonis writes about making a name for himself by shooting up a local kindergarten class. Elonis wrote, "Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined. And hell hath no fury like a crazy man in a kindergarten class."

• Do you have free speech on social media? 03:34• PLAY VIDEO• The case is Elonis v. United States, 13-983.

1st Amendment

• Who can tell me what 1st amendment is all about….

Freedom of Speech

• In its first case testing the limits of free speech on social media, the Supreme Court showed little interest Monday in extending new protections to people who post messages threatening to kill or hurt others.

• The justices sharply questioned the lawyer for a Pennsylvania man who was sent to prison for posting on Facebook about killing his ex-wife and cutting the throat of an FBI agent who investigated the threat.

• Citing the 1st Amendment, attorney John Elwood said prosecutors should have been required to prove that the messages were not only perceived as threatening, but that his client, Anthony Elonis, intended to scare and intimidate the individuals.

• Elonis, a former amusement park worker, insisted that he did not mean to frighten his ex-wife and that the rants were merely a way to blow off steam.

• None of the justices appeared to agree.• “How does one prove what’s in somebody else’s mind?” asked Justice Ruth Bader Ginsburg, returning to the bench just days after being

hospitalized last week to treat a heart blockage. In this case, she said, a “reasonable person [would] think that the words would put someone in fear.”

• As a legal matter, the case does not turn on the fact that the threats were made on Facebook or the Internet. But the spread of social media has led to an explosion of caustic speech and acerbic criticism that some may see as threatening.

• Most justices appeared to agree with a government lawyer who argued that online threats should to be taken as seriously as other threats.• “You’re accountable for the consequences” of your words, said Deputy Solicitor Gen. Michael Dreeben, noting that it is a federal crime to transmit

“any threat to injure” another person via Internet or telephone.• The case began in 2010 when Elonis turned to his Facebook page after his wife moved out with their two children. Writing in rap-style music lyrics,

he said there were “a thousand ways to kill ya, and I’m not gonna rest until your body is a mess, soaked in blood and dying from all the little cuts.”• When his wife obtained a restraining order from a judge, Elonis returned to his Facebook page, pondering whether the court order was “thick

enough to stop a bullet.”• He also posted messages that spoke of killing an FBI agent who questioned him and of carrying out the “most heinous school shooting” at a

kindergarten.• A jury convicted Elonis for posting threatening messages and a judge upheld the verdict on the grounds that a reasonable person would have seen

the posts as threats.• Chief Justice John G. Roberts Jr. said he was unswayed by that argument. Elonis can claim “it’s therapeutic or it’s art,” but that should not be

enough to escape prosecution, he said.• Victims of domestic violence urged the justices to uphold the conviction. They said women who are stalked or harassed by ex-spouses and others

deserve the protection of the law when threats are made.• Free-speech advocates supported Elonis, saying they worried about giving the government too much power to punish rants and offensive words.• Dreeben, the Justice Department lawyer, said threats to injure, murder or cause mass destruction should be prosecuted and punished as serious

crimes. They cause “fear and disruption to society and to the individuals who are targeted,” he said.• For example, he said people who call in a bomb threat to a school deserve to be prosecuted and should not be allowed to hide behind the excuse

they were drunk or did not intend to be taken seriously. If you “know what you’re doing,” you can be prosecuted for making a threat, he said.• Similarly, he said, when people are arrested for threatening to kill the president, they can be prosecuted if their words sound like a true threat,

regardless of their actual intent. The Secret Service “doesn’t have access to the private intentions of the individual,” he said. “The threat causes the harm.”

Facebook: Take down or leave up?

• A number of recent ethics opinions discuss whether a litigant may change the privacy settings on a social media account to make previously-public social media information private.[i] The most recent is the Florida Bar Association’s Proposed Advisory Opinion 14-1 (2015).Read more: http://nydailyrecord.com/blog/2015/02/02/social-media-law-a-good-second-impression-legal-ethics-and-making-public-social-media-private/#ixzz3RwASXEkc

Investigative Advantage

• In regards to the client taking down his/hers page…

• I will for investigative purposes have the client take down his/her page for multiple reasons…

• What reasons…

• Interviewing subjects that are part of the investigation.

• Possible jurors reviewing Facebook or other social media.

• Possible media on Facebook that could not be favorable to our client.

• The OTHER SIDE…. (government). – They can get it through subpoena, court order etc.• Anybody have any luck with subpoena Facebook for

records?

Rule 3.4

• The relevant portion of ABA Model Rule 3.4(a) states that a lawyer shall not: unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value …Read more: http://nydailyrecord.com/blog/2015/02/02/social-media-law-a-good-second-impression-legal-ethics-and-making-public-social-media-private/#ixzz3RwA9skBK

FaceBook Subpoena

• Contact the legal department at subpoena@facebook.coom

• Fax: 650-644-3229• States in the paperwork– “Requestor’s (i.e. Law Enforcement, Law Office)”• Fight the fight as requesting from the law office as

stated in the paperwork.– Good luck

Defense Rules• Need to have user consent for subpoena (this

makes it much easier to get what we need).• Ask the Government to get them.– Why not make them do all the work. Place a

request to the government to get the Facebook info. They have the power to do so and they probably already have it.

How to get Facebook Info

• You need the info from the pages (Both sides)• Friends list!!!! This is how you get your info.

Many of the friends wont have a private profile go after them.

• Cooperative friends on the other side! Huge asset.

• Photos and comments of both pages can tell you a lot about what your looking for!

What’s out there to use

• Use your investigator they will have many more “tools” and abilities to get what you are looking for.

Interviews and Investigators

• Many law offices want to “save money” or “keep the money” better said.

• DON’T have the attorney’s do the interviews. WHY….– This will or could make them a “witness” in the

case.– Or make the office a witness by having staff do the

interviews.

• Investigators have the tools and the training to get the interviews done.

• Children and interviews. Make sure your investigator has the background in “interviewing kids” or youth.

• Different investigators for different cases. Your not going to want the 60 year old “retired on duty” investigator doing interviews upon teenage kids or youths (they cant relate)

• Sometimes you only get (1) shot at the interview make sure as the attorney’s office your investigator has all the information up front!

Backgrounds and Investigators

• NON REPORTING STATES? Who can tell me what that means?

• Relying on online data bases can get you in a major jam!

• ONLINE data bases is NOT doing DUE DILIGENCE

• Nevada is a NON REPORTING state. We don’t report to ON LINE DATA BASES!

• Our court don’t report to online data bases!!! STOP blowing money and time on online data bases.

• Most of our courts that do “Report” are only a few years and very limited in resources.

• LexisNexis – good resource but still not up to date. Outdated information and old resources.

• Investigators have tools that nobody else has access to as a licensed investigator we have access to tools that are proprietary.

• Investigators have access to the “backdoor” of most courts and are “friends of the courts” with ability to get the information.

What can an investigator get you,Do for you, or find for you!

• How much is your budget?• This unfortunately is a very accurate

statement. • Nothing out there is private!• Bank Accounts, Cell phone records, Owner of

numbers, backgrounds, records, Utility records, Credit Checks, etc… this is an endless list of what can be obtained.

Drug Testing

• I am the owner of “Grate” Detections, llc• Mobile Drug Testing• Urine• Hair• Oral Swabs• Rapid Instant Testing / Lab based Testing

Family Law and Drug Testing

• Have you used Drug Testing in Family Law?• Huge advantage in Drug Testing in Family Law• You can simply have us on site during a hearing.

Ready to have a urine drug test or a hair drug test done on site.

• Most courts will allow the drug test as a “surprise” drug test upon the other side.

• MAKE SURE YOUR SIDE WILL PASS THE DRUG TEST FIRST!!!!!

• Hair v. Urine drug test…– Hair drug test will show “habitual drug use” not

the once a week once a month drug user but the weekly monthly drug user.

– Urine will detect more of the “in the now” drug usage…

– Both have advantages and disadvantages. • Hair shows habitual use and not current last few days

usage.• Urine shows few weeks (on some drugs) and up to 72

hours on most other drug usages.

Why use a mobile drug test v. court based rapid drug test?

• The courts use what is called a rapid drug test that could be an old test, out of date test, and guaranteed to be the cheapest test they could afford.

• Our drug test will be the best on the market and will cover more than just the “top 5 drugs.”

• Court based drug test normally will only give you the “presumptive positive” drug test. KEEP THAT WORD IN MIND!!! PRESUMPTIVE!!

• We had a case that the court did the drug test that came back “presumptive positive” I requested that the test be sent off to the lab for confirmation… yup you guessed it… it came back “NEGATIVE” why….

• Tolerance levels! Labs have a tolerance level that can ONLY be reported as Positive if it is above that level.

• Court presumptive test have a higher tolerance presumptive level cut off… This will cause a “NEGATIVE” test to come back “presumptive positive” when its actually negative.

• CLIENT WALKED! Due to sending it off to lab based confirmation of the drug test! ASK FOR IT to be confirmed by the lab before the judge can make a ruling on the findings based upon “presumptive positive drug test.”!

Medical MarijuanaIn the work place? Family Court?

• Federally illegal all states.• K2 / Spice – legal to buy illegal to consume• State by state law at the time• No way to show under the influence like

alcohol.• Medical Marijuana in the work place.

Digital Technology

• Digital footprints are everywhere– Cell phone – Computers– “I” anything– Android anything– Photos– etc

Cell phones / Computers / I-pads/ Androids – Digital Anything

• Get a cell phone dump!• This can show you everything from calls, text,

emails, web searching… everything done on a cell phone (deleted or not) is normally still there!

• Contact me to get you in touch with our data guy with Great Basin Data Recovery.

• Its there! Just because you cant see it… doesn’t mean its not still there!

Photos

• In discovery you will normally get the “photos” regarding your case.

• Make sure they are bate stamped (so you have a record of them)

• Ask for the Meta data… get a copy of the original photos from the police, veri-pic, sd cards etc. If its digital its our there.

• Meta data will tell you Date, Time, sometimes GPS coordinates can be pulled as well.

#HASHTAG

 THE ENDI am happy to answer any questions you may have now or after you get home. Please don’t hesitate to contact me anytime.

Dustin E. Grate, Lic #632Spencer Investigations1325 Airmotive Way, Suite 209Reno, Nevada 89502Cell: (775) 691-6527Office: (775) 786-7766dgrate@spencerpinv.comwww.spencerpinv.com