Colorado Courts Limit Authority of Bounty Hunters

Introduction – The Colorado Bounty Hunter

Every state, including Colorado, has legal authority over the execution of the bounty hunters that practice within the state. Some states, such as Colorado, poorly define or even fail to effectively regulate the authority and the extent of the bounty hunter’s professional “reach.”

Many of the states grant broad authority to bounty hunters – such as the gold standard of entering a fugitive’s private property without an arrest warrant to make an arrest of a fugitive.

Other states either have completely banned “bounty hunting” or may severely restrict the practice of bounty hunting (Florida, Illinois, Kentucky, North Carolina, Oregon, South Carolina, Wisconsin).

Local Laws Control Bounty Hunter’s Authority

Bounty Hunters are controlled by the laws in the jurisdiction in which they practice whether they are licensed in the state or not. For example, if a fugitive is pursued from one state to another state, or from one neighboring city or county to another within the same state, the bounty hunter’s authority is controlled by the laws of the authority of the location where they find themselves as they pursue their targets.

Bounty hunters must follow the laws of the location where the case takes them. Because these laws will from state to state, bounty hunters are constantly on notice and must know the laws of the jurisdiction in which they practice. They are not permitted to remain willfully ignorant of the laws that govern the ground where a fugitive may land.

In light of this reality, this article will attempt to add some clarity to the present state of Colorado’s laws regulating limits on Colorado’s bail recovery agents.

The act of pursuing and arresting a fugitive is described under Colorado law as “bail recovery.” The preferred term for these professionals is not bounty hunter, it is a “bail recovery agent,” bail agency enforcer, bail enforcement agent, bail agent, recovery agent, bail recovery agent, or fugitive recovery agent.

Bail Recovery – Defined

“Bail recovery” means actions taken by a person other than a peace officer to apprehend an individual or take an individual into custody because of the failure of such individual to comply with bail bond requirements.

While many states are in the process of abolishing the private sector-based bail-bond system in favor of the many methods of ensuring the appearance of those accused of crimes, Colorado has chosen to continue to permit the enforcement of bail bond contracts.

Under a bail-bond system such as Colorado’s system, after most are arrested for a crime, a Colorado judge will release the accused for court dates on some form of bond to insure the defendant’s appearance.

In the most serious cases, the Court will require the accused to provide cash – “bail” – as a guaranty to secure the defendant’s attendance for their scheduled court appearances. While there have been many changes to the bail bond system over the past few years – the system has many flaws.

Bail can be, and often is, in the thousands of dollars for serious charges. The bail amount is most often well beyond the reach of the person arrested. As an example of the large amounts of bail set in Colorado immediately below is the “standard bail bond schedule” (presumed bail) used by the courts in Colorado Springs:

Felony Class 1 – No bond
Felony Class 2 – $50,000
Felony Class 3 – $10,000
Felony Class 4 – $3,000
Felony Class 5 – $2,000
Felony Class 6 – $1,000

Misdemeanor 1 – $800
Misdemeanor 2 – $500
Misdemeanor 3 – $300

Drug Felony 1 – $50,000
Drug Felony 2 – $10,000
Drug Felony 3 – $2,000
Drug Felony 4 – $1,000
Drug Misdemeanor 1 – $700
Drug Misdemeanor 2 – $400

Driving Under the Influence (DUI) – $1,000
Driving While Ability Impaired (DWAI) – $800
Driving Under Restraint (DUR) – $1,000
DUR alcohol-related – $3,000
Petty offenses – $100

When a person cannot afford the bail set by the Court, they are forced to contract with a bail bonds agent, who offers to pay the bond, usually for 10% of the “face amount” of the bond. The bond is then “posted” to satisfy the Court order, the accused is set free.

If a defendant then “skips bail” or otherwise misses a court date, the bail bond agent is contractually bound to the court to pay the entire amount of the bail bond to the state unless the “fugitive” can be located, arrested, and returned to the jurisdiction involved.

Enter the Bounty Hunter – “Bail Recovery Agent”

Most bail bonds businesses retain bounty hunters to pursue these fugitives. Bail recovery agents are retained to locate, arrest, and transport the “bail skipper” back to court so that the bail bond agent is released from the obligation to pay the face amount of the bond. For that service, the bounty hunter is paid a percentage of the original bail bond face amount of between 10 and 20 percent.

While Colorado Requires Some Training and Licensing, there is Little Clarity on the Exact Search and Arrest Powers of Bail Recovery Agents

Colorado’s bounty hunters are licensed and regulated by the Insurance Division of the Department of Regulatory Agencies (DORA) under 12-7-105.5. While the requirements to become a Colorado Bail Recovery Agent and a mechanism to respond to complaints about their conduct exists at the state level and is monitored by DORA, there are no specific regulations that control the search and seizure practices of bounty hunters under Colorado law.

So…. How Far Can a Bounty Hunter Go to Arrest a Fugitive of Justice?

This key question, what are the precise authority of the bounty hunter, underlies almost all of the controversy surrounding the bail recovery “system.”

As noted, in Colorado, other than training and licensing, there is no clear legislation that describes the limits on the authority of bounty hunters. Without statutes to help guide the courts, Colorado judges have historically been forced to turn to what is called the “common law” to clarify the Colorado bounty hunters’ authority.

At the point of this writing (2021), a single case People v. Oram, decided by the Colorado Supreme Court in 2011, has had the most impact in this area of law. As described below, the Colorado Supreme Court in the Oram case created more problems than it solved.

To Understand the State of Colorado’s Laws Regarding Bounty Hunters One Must First Understand the Common Law – the Historic Source of The Boutny Hunter’s Authority

There is no question that Colorado, like all states that maintain a private sector bail bonding system, has a demonstrable need to locate and return bail bond fugitives for its criminal justice system.

Bounty hunting is very old. It is a vestige of common law that was created during the Middle Ages. Bounty hunters in the United States have relied on two decisions for the source of their authority in the field – Nicolls v. Ingersoll and Taylor v. Taintor.

Nicolls v. Ingersoll, 7 Johns. (N.Y.) 145 (1810)

This need for broad powers for bounty hunters was first recognized in the 1810 case of Nicolls v. Ingersoll. The Nicolls case is often cited as having granted massively broad powers to bounty hunters.

Facts of Nicolls: Nicolls was released on a commercial bail bond and fled the state. His bail bondsman retained a bounty hunter who located Nicolls and broke Nicoll’s s home at midnight to make the arrest.

The Court held that bounty hunters require “broad authority” to apprehend bail jumpers and therefore dismissed Nicoll’s claims of trespass, assault, and false imprisonment…. finding – that a degree of force in the process such as breaking down a fugitive’s door, was necessary and was legally permissible behavior.

Nicolls v. Ingersoll established the bail bondsman’s rights were independent of government authority and they were permitted to arrest a bail bond fugitive at any time before or after a scheduled court appearance.

Taylor v. Taintor 83 U.S. (16 Wall.) 366 (1873)

Sixty-three years later, in 1873, the United States Supreme Court expanded further on Nicolls in Taylor v. Taintor.

The Taylor Court expounded on the relative rights of the parties and the Court issued this amazing statement:

“‘The bail have their principal on a string, and may pull the string whenever they please, and render him in their discharge.’

The Court said that “no right of the state was involved” nor was any judicial process necessary for the bail to assert his “dominion” over the principal and that a bounty hunter was allowed to, if necessary, break and enter his principal’s home to arrest him.

After Taylor, bounty hunters could pursue and extradite fugitives across state boundaries, break and enter into a fugitive’s home, and use all necessary force in effecting an arrest. In fact, the contractual right of the “bounty agent’s privilege” announced in Taylor is almost always written into the bond agreement of today’s bail bond contracts.

Colorado’s Bail “Exoneration” Law

Colorado’s bail “exoneration statute,” Section 16-4-108(1)(c), while recognizing the bonding agent’s authority to seize a “principal” (the fugitive), does not prescribe how the bail agent may exercise his or her power, how that power can be exercised, to seize that principal.

When the fugitive is “holed up” in a house, section 16-4-108(1)(c) does not answer the question of whether a bounty hunter has lawful authority to enter and remain in the residence.

Under Colorado’s exoneration statute, a surety (bail agent) shall be exonerated from a bail bond when the defendant is surrendered “into custody at any time before a judgment has been entered against the sureties for forfeiture of the bond,” and a ” surety may seize and surrender the defendant to the sheriff of the county wherein the bond is taken.” 16-4-108(1)(c).

Historically, since Colorado statutes provided no guidance to the courts, the common law was the source of the grant of very broad seizure powers to Colorado bail agents

The Colorado Oram Decisions – Two Oram Cases – Oram I and II – Impact the Rights Of Bounty Hunters

The Two Oram Cases – Oram I and Oram II

There are two Oram cases – the Colorado Court of Appeals decision in 2009 People vs. Oram (Oram 1) which reaffirmed the rights of the bounty hunter under common law – and the Colorado Supreme Court 2011 decision Oram vs. People (Oram II), which reversed key findings in the Court of Appeals case and permanently removed the common law bounty agents privilege.

In 2009, the Oram decision of the Colorado Court of Appeals held that:

Although we agree that the bonding agent’s privilege language in Taylor is dicta, we conclude that the common law bonding agent’s privilege exists in Colorado.

Two years later, with the waive of a judicial wand, the broad powers of the “bonding agent’s privilege” as outlined in the common law case of Taylor and adopted in Colorado for over 138 years, was removed with these words:

We hold that the common law bonding agent’s privilege does not exist in Colorado and that there is sufficient evidence that Oram and Weinstein knew that their entry into the home was unlawful to sustain charges of second-degree burglary.

In both of these appellate cases, Jason Richard Oram, appealed his conviction for second-degree burglary and felony menacing based on the common law bonding agent’s privilege. While the Court of Appeals decision found that there was a common-law bonding agent’s privilege in Colorado, it held that the privilege did not justify Oram’s entry into the home at issue and affirmed the trial court’s verdict.

Colorado Bail Recovery Agent’s Authority AFTER Oram I

Before the Oram decisions, Colorado, like many states, adopted and followed the language in the Taylor decision regarding the surety’s right to seize a principal under common law:

When bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment. Whenever they choose to do so, they may seize him and deliver him up in their discharge; and if that cannot be done at once, they may imprison him until it can be done.

They may exercise their rights in person or by an agent. They may pursue him into another State; may arrest him on the Sabbath; and, if necessary, may break and enter his house for that purpose. The seizure is not made by virtue of new process. None is needed. It is likened to the rearrest by the sheriff of an escaping prisoner.Taylor v. Taintor 83 U.S. (16 Wall.) 366 (1873)

As noted above, that all changed in Oram II.

Colorado Bail Recovery Agent’s Authority AFTER Oram II

While the Colorado Supreme Court affirmed Oram’s conviction based on the sufficiency of the evidence (there was insufficient evidence that Oram knew that entering the private residence in question was illegal on the charge of burglary) they removed the affirmative defense of the bondsman’s privilege.

With these words: “[W]e hold that the common law bonding agent’s privilege does not survive in Colorado…” the Colorado Supreme Court removed the primary defense relied upon by bounty hunter when they are charged with criminal acts when they act to arrest fugitives.

What follows is the syllogistic reasoning of the Colorado Supreme Court in Oram II.

• In Colorado, the common law remains valid and in effect unless it is repealed by the General Assembly.
• Colorado statutes govern the construction and punishment of all defined crimes, as well as the construction and the application of any defense to a prosecution for such an offense. All affirmative defenses to crimes must therefore be defined by the General Assembly in the Colorado Revised Statutes.
• The Colorado Supreme Court found that the general provisions of the criminal code, which include the crime of burglary (in Oram that was the primary charge) “necessarily implid that the General Assembly intended to abolish the common law bonding agent’s privilege.”
• Since there are no statutes in Colorado that create the common law bonding agent’s privilege as an affirmative defense, (poof )- it can no longer exist at law.

What is Left After Oram II? – the Defense of Consent

Oram argued that he was also entitled to the defense of consent as an affirmative defense to burglary. He argued that the signed bail bond agreement authorized him to enter the residence in question and that common law and the private contractual right written into the bail bonding contract both entitled him to enter the home in question.

The Court turned to foundational “black letter law” in Colorado – that only one who has a possessory or ownership interests in a property may consent to the entry of that property. The fugitive sought in the Oram case, (Vigil), was in fact obligated under the bail bond contract to consent to the entry of his home, but did not legally have a possessory or ownership interest in the home in question and therefore could not consent to the entry (even if he listed that address as his residence).

Vigil had not resided at the location in question for many years and therefore did not have the authority to consent to entry of the residence and lacked the authority to consent to Oram’s entry to make the arrest.

The express consent to enter the fugitive’s home without a warrant – written into nearly every bail bond contract – only applies to the fugitive’s home, and NOT to the homes of third parties where he or she may be staying.

Summary and Conclusion – We Are Left With Uncertainty

After Oram II, the Colorado bail recovery agent’s authority is in serious question.

However, some things remain unchanged. A bail recovery agent relying on the bail bond contract doesn’t need a warrant and can enter a fugitive’s private property to make an arrest.

On the other hand, as in Oram, bail recovery agents must carefully establish that the fugitive actually has a possessory interest in the property. The bail recovery agent cannot “willy nilly enter the homes of friends, family members, or strangers to search for that fugitive without the consent of the homeowner.”

As one court wrote: a bondsman “may not sweep from his path all third parties who he thinks are blocking his search for his client, without liability to the criminal law.”

There is no question that bonding agents perform an important function in returning fugitives before the law and it is well understood and accepted that the profession of the bail bondsman is clearly dangerous. But these agents do not possess unfettered power and are subject to the same criminal laws, such as burglary, assault, kidnaping, and all other crimes –  that apply to all private citizens.

Unchecked Power to Revoke a Bond

On a side note, the right of a bail bondsman in Colorado to revoke a bail bond is without meaningful controls – as I have written in other articles. A Colorado bail agent can revoke a bail bond “contract” at any time and for any reason.. or for no reason and surrender the defendant to the court.

The need for legislation to help define the authority of bail recovery agents and to protect those forced to use a private bail bonds agent from the unfair and arbitrary acts of the bail agent, is patent.

The bail recovery agent must have clear guidelines to protect them from being charged with crimes for only performing their job. Clarity is not only key to the fair treatment of the bail recovery agent, but protections must also be legislatively created for the person forced to post bail, who, because of an antiquated and anachronistic private bail bond system, is forced to sign a one-sided contract waiving their rights to privacy and to due process – a person who has been convicted of nothing and who is presumed innocent.

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ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at hmsteinberg@hotmail.com – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge of Colorado Criminal Law and his 38 plus years of experience in the courtrooms of Colorado may give him the edge you need to properly defend your case.