Bonding Agent’s Power Has Limits

Introduction – In a recent Colorado Criminal Appeal – The Colorado Supreme Court set limits on the so called “bonding agent privilege.” The Supreme Court said bounty hunters could not pose as police and break into a private home of someone suspected of jumping bail.

In Oram v. People Colorado Supreme Court — May 16, 2011 two bounty hunters pretended they were cops to gain entry into the home of someone suspected of jumping bail. Seeking to arrest a John Vigil, the house the two bounty hunters broke into belonged to their target’s brother,

The target had not lived there since the early ‘80’s according to the Court. Working without a photo or other measure to identify the bond jumper, they arrested an innocent man – Joe Martinez.

Later it was determined that their target was actually in jail.

At trial, each asserted the common law defense of Bonding Agent Privilege. The trial court gave a version of the Bonding Agent Privilege, and a jury found each guilty of burglary and felony menacing.

The common law defense of Bonding Agent Privilege does not exist in Colorado. Bonding agents do not have the right to make entry into a private residence without consent.

The Court rejected the law from other states, and held that the bond person privilege does not survive because the Colorado statute granting bond agents the authority to arrest does not grant bond agents authority to break-and-enter homes.

“Section 16-4-108(1)(c), C.R.S. (2010), gives a bonding agent authority to seize and surrender a principal. This section, however, merely states that “a surety may seize and surrender the defendant” and, unlike the dicta in Taylor, does not give further instruction as to how the bonding agent may do so.

Further, the General Assembly has never stated that the right of a surety to seize the defendant is an affirmative defense. See generally §§ 18-1-501 to -505, C.R.S. (2010) (principals of criminal culpability); §§ 18-1-701 to -710, C.R.S. (2010) (justification and exemptions from criminal responsibility); §§ 18-1-801 to -805, C.R.S. (2010) (responsibility).

Thus, based on section 18-1-103(1)’s requirement that all defenses to defined offenses must be codified in the Colorado Revised Statutes, the common law bonding agent’s privilege has not survived and has been abrogated by the General Assembly in the general provisions of the criminal code and the burglary statutes….”

The Colorado General Assembly clearly stated that the relevant consent is that of the victim, not of some third party. See A.D. Store Co. v. Exec. Dir. of Dep?t of Revenue, 19 P.3d 680, 682 (Colo. 2001) (acknowledging that when the legislature specifically includes one thing in a statute, it implies the exclusion of another); see also State v. Mathis,509 S.E.2d 155, 161 (N.C. 1998) (holding that when the bonding agent is seeking the principal in the home of a third party where the principal does not reside, the bonding agent must first obtain consent from the homeowner to enter the premises).