Trespassing rules are fairly clear when it comes to private property, and most PIs understand that they’re likely breaking the law if they sneak around a home or jump a fence. But commercial privacy laws can feel blurry. Is it illegal to go where customers go in a business and surveil them? Can you trespass in a lobby or parking lot? Does it matter who owns the space?
Let’s clear up some of the questions about commercial trespassing, what to avoid, and tips on staying within the law.
Businesses Can Be Open to the Public
While privacy and trespassing laws may vary by state, as a general rule there are two types of businesses. One type offers public accommodations, which means they’re open to the public so that potential customers can walk onto their property and explore their offerings. We see this all the time for businesses like restaurants, malls, theaters, hotels, and so on. In these cases, PIs can legally go where other customers can go, as long as they don’t break the law by trying to steal information, etc.
Even for public-facing businesses, there are areas of the businesses that are typically off-limits to the public. A common example is the kitchen in a restaurant – customers aren’t allowed to just walk into the kitchen in most situations. If a private investigator tries to go into an area where the public isn’t allowed, they could be guilty of trespassing, and this may lead to charges.
Some Businesses Aren’t Open to the Public at All
Other types of businesses are not open to the public, and people cannot just wander in without running into trouble. Most offices, for example, may have a small reception area but the majority of the offices are closed to the public unless they are specifically invited. There may also be studios that are hard at work on a project and are closed to the public and, indeed, very protective of their proprietary information.
In situations like these, entering the business property at all can be an act of trespassing, and may be dealt with accordingly. If you want access to company grounds like these, you’ll need to get consent from the owner of the business or someone in a similar position of authority.
Businesses Can Order PIs Off Their Property
Businesses have their limits, and they also have the right to not only refuse service in many cases, but also to order people off their property. Here is a Nationwide and Insight Service lawsuit that includes a case where a private investigator was charged for entering a dentist’s office under false pretenses. When the PI refused to leave, trespassing was also added to the claim.
But false pretenses aren’t the only thing that PIs need to consider. They may risk getting kicked out for different kinds of behavior. A frequent example is trying to interview other customers or staff, or similar activities that can disrupt people and drive away potential business. In this case, the business has the right to refuse entry, and trespassing charges often have an “interfere with business” definition that makes them applicable here.
Public Entry Doesn’t Apply During Off Hours
It’s common sense but needs to be mentioned. Just because the public is allowed inside a shop to browse during daylight hours does not mean it’s alright to walk into the same store when it’s closed. This isn’t just trespassing; it could also lead to burglary charges if a private investigator tries it on their own. The same is true of trying to stay on the premises as the business is closing – courts aren’t impressed by this trick.
Trespassing Can Lead to Many Kinds of Consequences
Trespassing laws not only vary by state but can also vary by degree. Many cases of casual trespassing count as infractions, which usually result in a small fine. More serious criminal trespass can be counted as a misdemeanor, and if trespassing occurred alongside other crimes, it may even be a felony.
Trespassing can also be cited in lawsuits, as seen in the example above. Here, the goal isn’t to prove criminal charges, but to show a civil court that the PI was acting illegally, and that the business deserves payment for damages caused, like loss of business.
If You’re Working for an Employer, Get Written Permission
Companies hire private investigators for many reasons. Often, PIs need access to company devices, security footage, and the ability to interview employees. That often means needing to work on company property. To avoid any issues, PIs should ask for written permission to be on company grounds. This can save a lot of time and ensures that PIs obey the law.
It’s usually easy to avoid trespassing if you put yourself in the position of the business and consider what they would allow or not allow for the average customer. Businesses with public areas can be places where PIs can gather information, observe people, and work on leads. However, the non-public places in businesses are still off-limits, and businesses have the ability to show a PI the door and charge them with trespassing if they don’t leave. If this presents a problem, work on getting permission for a specific interview or search before arriving at the business.
Source: El Dorado Insurance Agency, Inc.