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To: Mr. Brian Jett

From: Christopher L Harden

Date: 4/2/2013

RE: Captain Bryant and police agencies

ISSUES

1. Whether the bail bondsman having the police detain the principal until the runner arrives

to assume custody violates the principal’s constitutional rights?

2. Whether while working with the police, does the runner surrendering any evidence

against the principal to the police violate the principal’s constitutional rights?

3. Whether the bail bondsman and runner can be sued for violating the principal’s

constitutional rights?

4. Whether operating with the police to recapture the principal is grounds for suspension or

revocation of the bail bondsman and runner’s license?

SHORT ANSWERS

1. Yes. When the police discover a warrant for the principal’s arrest, the principal must be

given access to legal counsel as soon as possible or else the principal’s constitutional

rights have been violated.

2. Yes. The runner is operating as an agent of the government in concert with the

police and any evidence not obtained by the runner within the meaning of the

Fourth Amendment violates the principal’s constitutional rights.

3. Yes. When a runner is involved in violating the principal’s constitutional rights as an

agent of the government, the bail bondsman and runner can be sued under 42 U.S.C.A. §

1983 (West 1996).

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4. Yes. Operating jointly with the police to capture the principal violates North Carolina

bail bondsman laws and is grounds for suspension or revocation of the bail bondsman

and runner’s license.

FACTS

Captain M. Emmet Bryant, retired, is seeking to become an established bail bondsman

in North Carolina with Harrison Deckard and Edward James Gaff operating as his runners.

To ensure that his bail is not forfeited, Captain Bryant wants the police to surrender custody

of the principal to his runners. In return, any evidence the runners discover will be

surrendered to the police. Captain Bryant would like to know if he can do this.

DISCUSSION

1. Does the bail bondsman having the police detain the principal until the runner

arrives to assume custody violate the principal’s constitutional rights?

Upon discovery of the warrant for the principal’s arrest for failure to appear in

court, the police must take the principal before a judicial official without delay. N.C. Gen.

Stat. § 15A-501(2) (2004). The police must also allow the principal reasonable time and

reasonable opportunity to communicate with his or her counsel and friends. N.C. Gen. Stat. §

15A-501(5) (2004). If the police wait for the runner to arrive and take custody of the

principal, the police cannot promptly and fully preserve the principal’s constitutional rights.

Murray at 536.

2. While working with the police, can the runner surrender any evidence against the

principal to the police without violating the principal’s constitutional rights?

The independent source doctrine allows for the admissibility of evidence of an

unlawful search from an independent source. Murray v. U.S., 487 U.S. 533, 537, 108 S.Ct.

2529, 2533 (1988). Any evidence acquired by the runner from the principal is admissible in

court as long as the runner is not acting in concert with or as an agent of the government.

People v. Houle, 13 Cal.App. 892, 895, 91 Cal.Rptr. 874, 876 (1970). The runner is

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operating as an agent of the government to capture the principal, the independent source

doctrine does not apply, and any evidence must be obtained within the meaning of the Fourth

Amendment. State v. Fleming, 106 N.C.App. 165, 169, 415 S.E. 2d 782, 784. Failure to do

so violates the principal’s constitutional rights. State v. Richardson, 295 N.C. 309, 322, 245

S.E.2d 754, 762 (1978).

3. Can the bail bondsman and runner be sued for violating the principal’s constitutional

rights?

The runner and bail bondsman may face 42 U.S.C.A. § 1983 (West 1996) action if, (1)

a constitutional right is deprived by some government action, and (2) the party charged with

the deprivation is fairly assumed to have acted together with or received some significant aid

from state officials. Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2754

(1982). The runner might claim qualified immunity under § 1983 for operating as a

government agent. Cline v. Binder, 187 F.3d. 628, 631 (4th Cir.1999). Qualified immunity is

impossible if the runner knew that his conduct would violate the principal’s constitutional

rights. Corum v. University of North Carolina Through Bd. of Governors, 330 N.C. 761, 773,

413 S.E.2d 276, 284 (1992). § 1983 allows the principal to seek money damages from the

runner and bail bondsman responsible for violating the principal’s constitutional rights.

Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1962, 1696 (1999).

4. Is operating with the police to recapture the principal grounds for suspension or

revocation of the bail bondsman and runner’s license?

Law enforcement officers are prohibited from operating as sureties on a bail bond

because North Carolina Legislature never intended for police powers and runner privileges to

be interchangeable. N.C. Gen. Stat. § 58-71-105 (1997). The bail bondsman using the police

to assist the runner in capturing the principal gives the runner the advantage of using the

police to capture the principal with or for the runner. Such an association or agreement

violates North Carolina bail bond laws and is grounds for suspension or revocation of the bail

bondsman and runner’s license. N.C. Gen. Stat. § 58-71-80 (13) (2011).

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CONCLUSION

If the runner receives substantial aid from the police to recapture the principal, and

the police receive evidence from the runner’s unlawful search, then the runner and bail

bondsman can be sued civilly under § 1983 (West 1996), and such an association between

the runner and the police is grounds for the suspension or revocation of the bail bondsman

and runner’s license.