As a private investigator located in Austin and San Antonio, I’m often asked to do things that I just can’t do even as a private investigator. See below ten things that a private investigator just can’t do.
(1) A private investigator cannot get phone records. Phone records are confidential and protected from viewing by others except by the owner of the account. If you happen to have a phone number, I can often look it up in our database and tell you the owner and address the phone number belongs to. If you want another party’s phone records, you would do much better by having your attorney subpoena them.
(2) A private investigator cannot secretly record another person’s conversation unless: (A) We are a part of that conversation or; (B) The conversation is in a public place and is so loud that myself and others can’t help but overhear.
(3) A private investigator (nor anybody else) cannot legally place a GPS tracker on a vehicle unless we are authorized to do so by the owner of that vehicle. Although the law is a little muddy when it comes to a married couple and what’s considered community property, I go by who is listed on the title of the vehicle.
(4) A private investigator cannot use a flying drone for surveillance in Texas (Boy, do I get this question a lot). The way the Texas law is written, even if a hobbyist were to accidentally capture an image of a person on video, the law mandates that you either get the person’s permission or you must immediately destroy that part of the tape. Additionally, you cannot lawfully fly a drone for surveillance reasons on private property (property that you don’t own) – state property is ok. There are some exceptions to this rule for agricultural reasons. Additionally, surveillance by drone cannot be used in a court setting. The Texas legislature is quite serious when it comes to privacy.
(5) A private investigator cannot put spyware on someone else’s computer or phone. Anything involving breaking a password is also illegal unless we have a court order allowing us to do so or with permission by the owner. Again, this issue becomes a bit muddy when dealing with community property.
(6) A private investigator cannot break into a locked phone (another frequent question). Aside from the legal aspects, a private investigator does not have the ability or know-how to perform this work. Some of you might remember that the NSA asked Apple to write software to allow them to access a terrorist’s phone. Believe me, if the NSA with an unlimited budget and with all the cyber professionals at their disposal are unable to break into a phone, a private investigator won’t stand a chance.
(7) A private investigator cannot speak directly to an individual represented by an attorney during the course of a lawsuit on your behalf. The rule says that we have to go through his or her attorney. This means that I can’t trick a party to a suit to incriminate their self.
(8) A private investigator cannot use entrapment as a ploy. For example, let’s say we are investigating a person who has filed an insurance claim for a bad back. I can’t show up at someone’s house and “accidentally” drop a handful of change on their porch and then record the claimant bending over to pick up the change. Now it is fair game to videotape the individual picking up things in their yard or loading items in their car by their own volition.
(9) Private investigators can’t take cases on consignment. At least I won’t. Private investigators are not the paparazzi. Our pay is not dependent on” if we get the picture.” Some states actually have laws against this. I’m not sure if the State of Texas has such a law but certainly, this will fall back to the trial judge if it goes to court. Here’s the deal – a consignment destroys our credibility. The reason these other states have laws against it is because the state legislature realized that basing a private investigator’s pay solely on capturing an event gives the investigator a lot of reasons to fabricate the evidence in order to get paid. Simply put, we must maintain an image of neutrality and report on things we are a witness to.
(10) A private investigator cannot simply submit a report or pictures to the court, nor can you (I suppose this is possible if all the parties to the suit agree to this but this is unlikely). In order to submit a report and/or pictures to the court, a private investigator will have to attend court to “prove up” their evidence. The other party has every right to ask questions of the investigator under oath to determine if the evidence was properly obtained. Actually, the report or pictures are there to supplement the investigator’s testimony (with the investigator’s testimony as the main evidence), therefore giving the investigator credibility, and not the other way around. (This legal concept is often misunderstood by the public – now you know!)