Subject: State v. Mathis, 349 N.C. 503, 509 S.E. 2d
155 (1998)
The North Carolina Supreme Court has recently decided a case of major importance to bail agents. The decision is favorable to bail agents, but should be read with some caution.
Facts:
William Tankersley signed a bail bond with Marie's Bail Bonding Company. Tankersley later failed to appear in court, and the bond was ordered forfeited. Charles Mathis and Barak Williamson, employees of the bonding company, were told to find and apprehend the principal (Tankersley). They went to Tankerley's residence, where he lived with his mother, aunt, and her children. Upon arrival, the bondsmen were told by the aunt that Tankersley was not home; hours later, Charles Mathis received a call indicating that Tankersley was home. Mathis and Williamson re-arrived and observed Tankersley's car just outside of the residence. Tankersley's mother answered the door, and the bondsmen identified themselves and told her they were there to arrest her son. The mother indicated that Tankersley was not home and refused to allow the bondsmen to enter. She blocked the door and attempted to stop the bondsmen from entering. That attempt failed, and Mathis and Williamson searched that house. Tankersley's mother called the police; they arrived, arrested Tankersley, and turned him over to the bondsmen.
The principal's mother later complained that she was injured, and the door damaged, when the bondsmen entered. Mathis and Williamson were charged with breaking and entering and Mathis was charged with assault on a female. Although requested to do so by Mathis and Williamson, the trial court judge refused to instruct the jury on the statutory and common authority of a bail bondsmen to arrest Tankersley. This omission was critical to the case because the jury was not allowed to consider the bondsmens' defense that their entry and use of force was justified. The bondsmen were found guilty and they appealed to the North Carolina Court of Appeals.
The Court of Appeals decided that the trial court erred and ordered a new trial (126 N.C. App. 688, 486 S.E. 2d 475 (1997). The Court reasoned that the case and statutory law has long recognized the authority of the surety to arrest and surrender the principal, although only reasonable and necessary force is allowed to accomplish the apprehension (486 S.E. at 477). The Court of Appeals also ruled that reasonable and necessary force may be used against a third party who is intentionally impeding the recapture of the principal (Id.). Thus, decided the Court of Appeals, the jury should have been allowed to consider both the authority of the bail bondsmen to break and enter a principal's home to make an apprehension and whether reasonable and necessary force was used in the attempt to recapture the principal.
The State appealed the decision of the Court of Appeals to the North Carolina Supreme Court.
Issue:
May bail bondsmen, under appropriate circumstances, break into a principal's residence and use force against an obstructing third party when searching for the principal?
Decision:
The North Carolina Supreme Court affirmed the decision of the Court of Appeals. A new trial was ordered for Mathis and Williamson.
Discussion:
Our Supreme Court reviewed the law of bail and concluded that both the common law (the ancient law of England) , case law, and North Carolina statutes authorize a bondsmen to enter a principal's residence with force, if necessary: "the statutory right of arrest granted to surety does not change-but simply codifies a part of-- the common law powers of sureties that have always been recognized in our state." 509 S.E. 2d. at 161. According to the Court, the power to apprehend the principal exists whether the principal lives alone or resides with third persons.
The Court stressed, however, that the contract between the surety and the principal does not extend to cases where the principal is in the residence of a third party but the principal does not reside at that location. In such cases entry may only be made with the consent of the homeowner or with a search warrant. 509 S.E. 2d at 161. The Supreme Court also decided that the surety "may use such force as is reasonably necessary to overcome the resistance of a third party who attempts to impede their privileged capture of their principal." 509 S.E. 2d at 162.
Bondsmen should be cautioned that although a new trial was ordered, the North Carolina Supreme Court did not "clear" Mathis and Williamson of the charges. Should the case go forward, a jury must decide whether the entry was justified and whether the use of force was reasonable. The decision emphasizes, however, that the judge must inform the jury of the rights of bondsmen to enter and use force in appropriate circumstances.
As you can tell, this is a complex area of the law. Bondsmen, like all citizens, must act reasonably in the performance of their duties. Failure to do so may result in criminal and/or civil liability. Law enforcement officers are urged to review this decision when deciding what, if any, assistance should be given to bondsmen and how to respond in similar situations as illustrated in the facts of this case.