OK, Private Investigators, let’s put the bottom line right here at the top.
You are a private citizen. As such you are bound by the same laws as everyone else. A PI license does not grant special privileges nor shield you from legal consequences. Breaking the law can result in the loss of your license, the loss of your business, and the loss of your reputation. It exposes you and your client to law suits and produces evidence that is inadmissible in court. And, of course, none of this is good for word of mouth advertising.
That said, some laws are different from state to state and from country to country. You must take responsibility for learning what laws apply to your location. And it can sure sound enticing to take some of these actions to simplify your job. After all, what is the harm? See paragraph 2.
Three little words: Don’t Do It.
What are some of the most common things that trip up private investigators? Here’s a list.
1) Traffic violations:
There is never justification for endangering others through reckless or careless driving, no matter how exciting it looks in the movies.
2) Trespassing:
While some states do allow you to use a third party property with that owner’s consent to get closer to your subject, check your local laws before trying it. Better yet, look it up now and you will be forewarned.
This does not hold for right-of-ways, which are legal agreements between private parties and are not to be mistaken for public thoroughfares.
And, of course, you may not enter the subject’s property without said subject’s permission.
This includes photography, even from a distance, of private property or persons in the privacy of their own homes.
3) Roping or entrapment:
Roping is close to pretexting, another illegal action. You may not get information from another by legal deception. In other words, no pretending some connection or activity to gain someone’s confidence. This can result in sizable civil damages. This definitely includes impersonating a police officer (this would be pretexting).
Entrapment is when you intentionally make the subject perform an action. This can be very tricky when you are investigating employee theft. You must make sure that the plan and the criminal intent originated entirely with the subject with no encouragement, suggestions or enticement from you. AND the subject must be the one to commit all the essential elements of the crime.
4) Invasion of privacy (This is at the heart of the next few items):
Privacy: “the condition or state of being free from public attention to intrusion or interference with one’s acts or decisions.” (Black’s Law Dictionary)
However, surveillance in a public place is not considered invasion of privacy. BUT…this does not generally include bathrooms, locker rooms, changing rooms, bedrooms, or other areas assumed or considered private.
5) Stalking:
This is defined as unwanted attention to a person by an individual or group.
Each state has differing laws. Make sure you know yours.
Stalking is related to harassment or intimidation.
Cannot be considered surveillance, which may only be covert. No rough shadowing (surveillance that is obvious or indiscreet to the subject and public).
6) Wiretapping without consent:
38 states require consent from at least one party. 12 require it from both.
It generally requires a warrant regardless of consent.
7) Recording a conversation without at least one party’s knowledge:
Another time when state laws can differ. It’s best to know your own thoroughly. It’s possible only one party needs to consent.
You may, however, eavesdrop on a conversation in a public place or when it is loud enough to hear naturally.
8) Obtaining information that is private and protected by state or federal statutes:
You may locate it but you may not look at it*. This includes:
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Banking and financial records.
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Mail tampering.
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Phone records.
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Credit information
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License plate without legal reason and warrant.
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Criminal records i.e. National Criminal Information Center records: These are only accessible by law enforcement agencies.
*Knowing the location may be enough, though, to provide leverage for negotiation or to obtain a search warrant, subpoena, or discovery motion.
Bottom line to the bottom line: You may not break the law on behalf of your client or for investigational purposes. Everything must be aboveboard in order for legal action to stick.
* Image courtesy of FreeDigitalPhotos.net
