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What a Private Investigator Cannot Do

  • August 10, 2011
  • by PInow Staff

private investigator cannot doEditor’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.  As laws vary from state to state, please check with your local law enforcement before conducting an investigation.

With so many myths associated with private investigators, there are a lot of misconceptions about what these professionals can legally do, but as private citizens, they have no more rights or privileges than the average citizen.

Depending on the state, private investigators generally cannot:

  • Impersonate law enforcement.  In most countries, 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.
  • Make a legal arrest.  In the United States, private investigators are not authorized to make an arrest.  However, in some countries, Canada and the United States included, certain circumstances can arise in which an individual not associated with law enforcement can make a citizen’s arrest, depending on the situation.  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. 
  • Wiretap a phone without consent.  According to federal law, private investigators are prohibited from wiretapping, or monitor phone conversations, without consent from one of the individuals.  Thirty-eight 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.
  • 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.
  • Trespass.  Private investigators cannot enter a property, house, or building through illegal means, including breaking and entering.  Though trespassing laws very from state to state, in some jurisdictions the investigator must have permission from the owner before entering a property.
  • Tamper with mail.  Tampering with, opening, or destroying another person’s mail is a federal offense.
  • 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 or for future use in a court proceeding.
  • 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:  Though a private investigator can identify the location of bank accounts associated with a specific individual, they do 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, subpoena, or search warrant to legally access the files.
    • Phone Records:  As with bank accounts, a private investigator does not have access to private phone records without a subpoena.  They can, through legitimate investigative methods, 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. 
    • Credit Checks:  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.
    • Criminal Records and Court Documents: Though they are able to inquire about the existence of criminal records and court documents through legal investigative methods, access to those records is strictly limited to law enforcement professionals.
  • Act unlawfully or immorally.  In addition to limitations on obtaining information 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.

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. 

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