A fictitious memo at Weft and Wright, P.L.L.C. that predicts the outcome of Capt. Bryant’s plan to have the police detain any captured bail jumper so that Capt. Bryant’s runners can assume custody and prevent loss of the bail bond money.

1. 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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2. 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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3. 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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4. 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.
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