According to a recent opinion issued by Arizona Attorney General Mark Brnovich, third-party contractors who operate photo enforcement systems in Arizona must be registered private investigators. This is a reversal of an opinion issued by the Attorney General’s office in 2010 when Terry Goddard was the Attorney General.
The Argument:
A.R.S. § 32-2401(16)(b) defines a private investigator as a person who collects evidence to be used in the trial of civil or criminal cases. Various cities and towns in Arizona contract with private companies like American Traffic Solutions or Redflex to collect photographs, videos, and other evidence to be used in court to prosecute traffic violations. These private companies are then collecting evidence to be used at trial in civil and criminal cases, and therefore acting as private investigators.
A.R.S. § 32-2411(A) states that “a person shall not act . . . as a private investigator . . . unless the person is registered as a private investigator . . . ” These private companies and their employees that are collecting evidence for use at civil and criminal trials are not currently registered private investigators.
A.R.S. § 32-2411(B) provides that a person who knowingly acts as a private investigator but is not registered as a private investigator is guilty of a class 1 misdemeanor.
Because it is a crime to collect evidence for use at at trial without being a registered private investigator (or falling under one of the exceptions which do not apply here), the evidence collected by these private companies for use at photo enforcement trials was collected illegally.
The Implications:
Now that the Attorney General has issued this opinion, the third-party contractors who operate photo enforcement systems have been put on notice that they are violating Arizona law. This has caused most cities and towns that have photo enforcement devices to stop issuing new tickets, but many are still processing tickets issue prior to the opinion.
The opinion of the Attorney General is a good basis for the argument that any evidence collected through the commission of a crime (collected illegally by a person acting as a private investigator without being a registered private investigator) should be excluded at trail. If that evidence is excluded, the prosecutor has nothing left to prove their case because there are no eyewitnesses in photo enforcement cases.
Not surprisingly, the third-party photo enforcement contractors are moving to become registered private investigators.
The Attorney General’s opinion is still new, and we are looking forward to seeing how it impacts existing photo enforcement cases and the future of photo enforcement in Arizona. The Scottsdale City Court, for example, has been dismissing photo enforcement cases just before trial following the issuance of the Attorney General’s opinion.