By: Bill Morris
Chief Executive Officer
The Meurig Group, LLC
Whether for cheating spouses, rogue teens, or small businesses wanting to track their inventory, the question of hiring a private investigator to employ and monitor a global positioning system in an effort to learn the whereabouts of a vehicle is a routine one. The answer is, well, yes.
Well maybe, it depends on the circumstances.
Perhaps the best place to start is with state and federal law. Let’s start with the Constitution of the United States of America, The Bill of Rights, specifically the Fourth Amendment.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Broadly speaking, the Fourth Amendment protects citizens from prying eyes, especially if those prying eyes belong to a government entity. In short, if a government agency, like the police, wants to track a vehicle via clandestine GPS, said agency must attain a search warrant to do so. The warrant must include very specific details about the vehicle, the owner of the vehicle, and the probable cause for which the GPS is needed to further the investigation or make an arrest.
Private investigators are not law enforcement or government officials. In most states private investigators are licensed through a state licensing agency which sets a minimum standard for entry into the profession. In Texas, for example, a private investigator manager must have three years of experience conducting investigations, pass a state administered comprehensive test regarding private security and investigator laws, and successfully pass a criminal background check before he or she can be deemed a Private Investigator Manager. The Texas Association of Licensed Investigators is a great place to find more information on how to become a private investigator in Texas.
Once licensed, private investigators typically work on the behalf of an individual. A fact which further confuses the issue of employing a GPS device to monitor property, especially covert monitoring.
Laws may vary by state, but for the purposes of this article, Texas law seems most appropriate. Texas Penal Code, Title 4, Chapter 16, Section 16.06 very clearly defines the instances in which a global positioning system can be installed on a vehicle.
(d) It is an affirmative defense to prosecution under this section that the person:
(1) obtained the effective consent of the owner or lessee of the motor vehicle before the electronic or mechanical tracking device was installed;
(2) assisted another whom the person reasonably believed to be a peace officer authorized to install the device in the course of a criminal investigation or pursuant to an order of a court to gather information for a law enforcement agency; or
(3) was a private investigator licensed under Chapter 1702, Occupations Code, who installed the device:
(A) with written consent:
(i) to install the device given by the owner or lessee of the motor vehicle; and
(ii) to enter private residential property, if that entry was necessary to install the device, given by the owner or lessee of the property; or
(B) pursuant to an order of or other authorization from a court to gather information.
So yes, a private investigator in Texas can install a global positioning system on your vehicle but only if you provide written consent for him or her to do so.
Even though a Private Investigator can, should she?
I’d like to point you to section (d) of the Penal Code 16.06 which states: “It is an affirmative defense to prosecution under this section . . .”
This means that a person, including a licensed private investigator, may be charged with an offense under Penal Code Section 16.06, for installing and monitoring a GPS device on a vehicle even with written consent of the owner. Upon trial, the investigator has an “affirmative defense to prosecution” if, and only if, the investigator can prove that the person who solicited her business was the registered owner of the vehicle.
This fact leaves a great deal of things to consider for the client and the private investigator:
- Is the person asking for a GPS monitoring system to be installed on the vehicle the owner listed on the title of the vehicle?
- How can I prove ownership of the vehicle if the vehicle is owned by a bank?
- How will I know if ownership is transferred to another party during my investigation?
- Can a spouse, including a common law spouse, not listed on the title of the vehicle request that a GPS device be installed on a vehicle owned by the couple?
For all of these questions, Occam’s Razor applies. In Texas, ignorance is not a defense to prosecution, so failing to be able to prove beyond doubt that the person requesting the installation and monitoring of a GPS device on a vehicle is the legal owner of the vehicle may result in criminal prosecution of the investigator.
Are GPS systems worth installing on vehicles?
No, and for reasons beyond the criminal liability of having to prove ownership of a vehicle in court should an angry spouse, child, friend, or employee discover the device. GPS devices only tell a person monitoring the device where the vehicle was at a given point in time. Comprehensive investigations tell far more than what street or parking lot the vehicle was in at 2AM on a Wednesday. An investigator skilled in surveillance, photography, videography, and report-writing will tell you who was driving the vehicle and what the person did while he or she was away from the vehicle.
The bottom line is that GPS devices are expensive to install, and more expensive to monitor. Expense, coupled with the legal risks associated with the installation and monitoring of GPS devices simply do not outweigh the reward of being able to point to a dot on a digital map and saying “your car was here.” For you to make a well informed decision, or be successful in court, you really need to be able to say “I have photographic proof of . . .”
THE MEURIG GROUP, LLC (LICENSE NO. A04128001) IS A PRIVATE INVESTIGATION FIRM BASED IN MCALLEN, TEXAS.