What a Private Investigator Cannot Do

• August 10, 2011
• by Kimberly Faber

Editor’s note: This article is a general description of things that private investigators typically cannot do, and is not intended as a substitute for professional legal advice. Please keep in mind that laws can vary from state to state.

With so many myths associated with private investigators and inaccurate representations in film and television, there are a lot of misconceptions about what these professionals can legally do.

Some investigators must go through intense licensing processes, working under other licensed individuals, logging hours, and taking an exam. Other states require investigators to register. As private citizens who are licensed in some states and unregulated in others, the access to information and tools an investigator has varies from state to state.

Regardless of licensing laws and regulations, there are a few things that private investigators generally cannot do.

Things a Private Investigator Cannot Do

Depending on the state, private investigators generally cannot:

Operate Without a License (If Required in That State)

Some states have extensive licensing laws for private investigators. In California, for example, an investigator must complete 6,000 hours of paid investigative work under a licensed investigator over the course of three years (or fewer hours over a shorter period of time depending on relevant advanced degrees and law enforcement background), get fingerprinted, submit an application packet, and pass the California Private Investigator Examination before they can work as a licensed private investigator.

Impersonate Law Enforcement

In most states, private investigators cannot carry a badge, wear a uniform, or use any logo or phrasing that could imply that the investigator is a police officer or federal official. This prevents private investigators from misleading individuals about their association with government agencies. In some cases, private investigators will wear badges and uniforms that indicate they are private investigators, and they will often work in conjunction with local law enforcement or federal officials.

Break the Law

In addition to limitations on how information can be obtained and other investigation techniques, a private investigator cannot harass a subject, trespass on private property, use bribery, hacking, pretexting (impersonating the individual whose records they are trying to obtain), or other deceitful methods for obtaining information, and cannot break the law on behalf of their client or investigative purposes.

Participate in Unethical Practices

An unethical practice would put an individual in danger, include obtaining information for non-investigative purposes, or using unscrupulous methods. One example would be locating an individual and providing that person's information to a stalker or person who might put that person's safety at risk. Another would be looking up information on former classmates or friends for personal purposes outside of an investigation.

Trespass

A private investigator cannot enter a property, house, or building through illegal means, including breaking and entering. Though trespassing laws vary from state to state, in some jurisdictions the investigator must have permission from the owner before entering a property. Some private investigators in states like Illinois will be allowed an exemption to trespassing laws if they are working as a process server to serve legal documents.

Enter Your Home or Place of Business Without Consent

A private investigator cannot enter your residence or business without consent, and if asked to leave must do so immediately. In line with this, they cannot use forced entry or lock picking to get inside.

Tamper with Mail

Tampering with, opening, or destroying another person’s mail is a federal offense.

Wiretap a Phone Without Consent

According to federal law, private investigators are prohibited from wiretapping, or monitor phone conversations, without consent from at least one of the individuals, depending on the state. 38 states in the United States, as well as the District of Columbia, have statutes that require one party to consent to the recording of a conversation, while the remaining 12 states require consent from all individuals involved in the recording. In many cases, a warrant is required to legally tap a phone, and private investigators will sometimes work with local police enforcement in order to avoid breaking any local or federal laws. You can read more on audio recording consent here: Audio Surveillance Laws by State.

Film a Subject Through a Window to a Private Home

Investigators are generally allowed to film exchanges and interactions that take place in public, but they cannot film the interior of private property through an open window.

Record a Conversation of Which No Party Has Knowledge

Depending on the jurisdiction, in order to legally record a conversation at least one person involved must be aware that they are being recorded. In some states, both parties must be alerted ahead of time. A private investigator can, however, eavesdrop on a conversation that takes place in public or is naturally loud enough to hear.

Place a GPS Tracker on a Vehicle Without Consent

GPS trackers can only be placed on vehicles with the consent of an owner. For example, if a husband wants to put a tracker on the car his wife drives, he can only do so if the car is in his name, not hers. An employer cannot place a GPS tracker on an employee's private car, but they can place a tracker on a company-owned vehicle, provided they have gone through the proper steps of consent.

Hack Into a Social Media or Email Account

Hacking of any sorts just isn't what a private investigator does. Some investigators have software that allows them to access information about profiles, like when photos were posted and pulling data on where the person was at the time, but a private investigator will not attempt to gain access to a social media account that belongs to another person.

Run a License Plate Without Reason

A private investigator cannot run a license plate unless they have a legal reason to do so. This means that a private investigator will generally run a license plate only for investigative purposes (i.e. when attempting to locate a person or conducting a background check) or for future use in a court proceeding.

Run a Credit Check

As a credit report is considered private information, a private investigator must have written consent from the individual in order to run a credit check. If granted consent, a private investigator must also have a legal purpose for running a credit check before doing so.

Obtain Protected Information Without Consent or Legal Purpose

Although they can find the location of the information, which can be helpful in asking for a subpoena, private investigators cannot obtain federally or state protected information without consent of the individual or a subpoena. These restrictions apply to various documents, including:

• Bank Accounts
  A private investigator can identify the location of bank accounts associated with a specific individual, but does not have access to specific information about these accounts. Unless they have obtained permission from the account holder, a private investigator must be granted a formal demand such as a court order to legally access the files.
• Financial Records
  Account-specific information, like transaction history, can't be obtained without either a court order or permission from the card or account holder.
• Phone Records
  Through legitimate investigative methods, an investigator can find out what carrier or person is associated with a given phone number, but because phone records are considered private and protected by both federal and state statutes, a private investigator cannot obtain those records without a court order or subpoena.

Make a Legal Arrest

In the U.S., private investigators are not authorized to make an arrest. However, in some countries (the U.S. and Canada included) certain circumstances allow an individual not associated with law enforcement to make a citizen’s arrest. Some states require written consent for a private investigator to make a specific arrest, while other jurisdictions only authorize citizen’s arrest when the individual is endangering the public, or when a federal offense is witnessed. Citizen's arrests are rare in the investigative field. Some states will allow a private investigator to serve an arrest warrant under special circumstances.

Obtain Cell Phone Records Without a Warrant

An investigator cannot access cell phone records without a warrant or consent of the individual who holds the records. In most instances, a private investigator can get comparable evidence through other methods.

Things a Private Investigator CAN Do

A private investigator can be a tremendous help to your situation, whether you are trying to locate a birth parent, looking for assets, need to conduct a security audit for your company, have an infidelity or missing persons problem and many other issues. For more information on common circumstances in which private investigators are used, check out different types of investigation.

Gather Information on an Individual

Records research is a core aspect of what a private investigator does, and can reveal information that will help you without partaking in unscrupulous practices. Here are some of the pieces of information a private investigator can gather on an individual:

An investigator can also uncover inappropriate relationships and actions, monitor an individual's movements, and give you a better sense of their character, past, and activities.

Gather Information on a Business

While this information isn't always available in every state and circumstance, an investigator can often gather information on a business, including:

When the above information isn't available, often times other investigative tactics such as surveillance and conducting interviews can reveal comparable information.

Locate Sensitive Records

Through use of various databases and checking with record holders, investigators can locate and verify the accuracy of many types of records, including:

• Arrest records
• Birth records
• Bankruptcy records
• Business licenses
• Corporate records
• Court records
• Criminal records
• Death records
• Deeds
• Divorce filings
• Driving records
• Judgment filings
• Lien filings
• Marriage records
• Missing persons records
• Mortgage records
• Probate records
• Professional licenses
• Property records
• Regulatory records
• Sex offender records
• Voter registration

Look Through a Person's Trash

In a trash cover, an investigator can dig through trash to locate discarded items like receipts, phone records, banking and credit card statements, letters, discarded suspicious items, etc.

Sorting through a person's trash hinges on some legal issues, however (i.e. it cannot be conducted on private property, and some municipalities forbid digging through trash).

Conduct Surveillance

A private investigator can conduct a stakeout and tail an individual to track their movements, set up video or audio recordings (depending on the legal restrictions of the state), and monitor an individual's behaviors and day to day activities.

Interview Friends, Family, and Associates

Trained investigators are very good at speaking with known associates (both current and former) to get more information about a person's character, whereabouts, and daily activities.

What to Do If an Investigator is Using Unlawful Methods

In spite of these restrictions, some investigators still obtain information through unlawful methods. Illegally obtained information will be dismissed and unusable in court, so a rogue investigator can greatly hinder your investigation and legal process.

If an investigator you know is violating the law, contact your state's association or licensing board to report the individual. You can see a full list of active private investigator associations here: Private Investigator Associations.