Memorandum of Law
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Memorandum of Law

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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......

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.

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  • 1. To: Mr. Brian JettFrom: Christopher L HardenDate: 4/2/2013RE: Captain Bryant and police agencies ISSUES1. 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 ANSWERS1. 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). 1
  • 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 theprincipal 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 2
  • 3. operating as an agent of the government to capture the principal, the independent sourcedoctrine does not apply, and any evidence must be obtained within the meaning of the FourthAmendment. State v. Fleming, 106 N.C.App. 165, 169, 415 S.E. 2d 782, 784. Failure to doso violates the principal’s constitutional rights. State v. Richardson, 295 N.C. 309, 322, 245S.E.2d 754, 762 (1978).3. Can the bail bondsman and runner be sued for violating the principal’s constitutionalrights? 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 withthe deprivation is fairly assumed to have acted together with or received some significant aidfrom 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 agovernment agent. Cline v. Binder, 187 F.3d. 628, 631 (4th Cir.1999). Qualified immunity isimpossible if the runner knew that his conduct would violate the principal’s constitutionalrights. 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 therunner 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 orrevocation of the bail bondsman and runner’s license? Law enforcement officers are prohibited from operating as sureties on a bail bondbecause North Carolina Legislature never intended for police powers and runner privileges tobe interchangeable. N.C. Gen. Stat. § 58-71-105 (1997). The bail bondsman using the policeto assist the runner in capturing the principal gives the runner the advantage of using thepolice to capture the principal with or for the runner. Such an association or agreementviolates North Carolina bail bond laws and is grounds for suspension or revocation of the bailbondsman and runner’s license. N.C. Gen. Stat. § 58-71-80 (13) (2011). 3
  • 4. CONCLUSION If the runner receives substantial aid from the police to recapture the principal, andthe police receive evidence from the runner’s unlawful search, then the runner and bailbondsman can be sued civilly under § 1983 (West 1996), and such an association betweenthe runner and the police is grounds for the suspension or revocation of the bail bondsmanand runner’s license. 4