We have all seen the movies or television shows where the private investigator is sitting in his car outside the soon to be ex-spouse’s house snapping photos, but is it legal? Is the information obtained admissible in court?
First, you want to hire a reputable private investigator. Arkansas requires that all private investigators have a valid license issued by the Arkansas State Police Regulating Services Division. It is a Class 1 misdemeanor to do the work of a PI in Arkansas without a license.
Private investigators can and cannot do the following in Arkansas:
- Wiretapping – Intercepting or recording any wire, oral, cellular or cordless phone conversation is illegal in Arkansas, unless the person recording is a party to the conversation, or one of the parties to the conversation has given prior consent. This means that if you are one of the people taking part in the conversation, it can be recorded because one person (you) has consented to the recording. Therefore, if you are not taking part in the conversation (at least one of the people in the conversation must know about and consent to the recording) you cannot legally record the conversation. Of course, you want to make sure all federal laws pertaining to the The Electronic Communications Privacy Act are being followed as well. Refer to our previous blog for more details regarding the ECPA.
- Stake Out – A private investigator is not allowed to trespass on private property, but is allowed to be on public property. That is why the PI is on the other side of the road in the movies. The private investigator must follow any loitering laws posted as well. Of course, private investigators are never allowed to break in to homes or cars to check for evidence---even if they are unlocked.
- Nonconsensual Pictures – Pictures taken out in public where any passerby can see the subject are legal because there is no expectation of privacy. If the subject is behind closed doors, in their own backyard, or anywhere else they do not reasonable expect to be observed are illegal even if the pictures can be taken from public property. This includes using drones to fly overhead.
- Following – There is nothing illegal about driving in the same direction as someone else as long as traffic laws are observed. Anti-harassment laws must be considered as well. Arkansas Code 5-71-208 specifies that it is considered harassment if a person follows another in or about a public place; a person cannot remain present outside that person’s school, place or employment, vehicle, other place occupied by the person being followed, or residence for no purpose other than to harass, alarm or annoy. As long as the private investigator is not bothering, alarming or annoying the individual, it is legal. In general, it is also illegal to place a GPS tracking device on the subject’s vehicle.
- Gather Information – Information obtained from searching social media accounts, court records, any business information available from the secretary of state’s office and paid subscription private data sources such as LexisNexis are legal. Breaking into social media accounts accessing credit reports without permission (even if the information such as social security numbers or account information was obtained legally) is not legal. Going through someone’s desk drawers or car is considered to be breaking in; therefore, it is not legal.
- Pretending to be Someone Else – Pretending to be someone else like the exterminator or an old high school friend is the oldest trick in the book and perfectly legal. It is, however, illegal to impersonate an official law enforcement or a public official. A private investigator cannot impersonate someone to obtain financial or phone records from a service provider.
All that being said, a private investigator can help your case as long as all laws are followed. In many cases, we would advise a client to enlist the services of a private investigator. Contact Keven Hickey Law Partners to help you determine if this is the right move for you and your case. Furthermore, we will work with your private investigator to assure the information obtained is admissible in court. There are many decisions to be made when going through a divorce or custody case, we will be there for you every step of the way.