WHAT CAN A BONDSMAN DO TO RECOVER THE DEFENDANT?
Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.
State v. Burhans, 89 P.3d 629 (Kan. 2004).
This case answers the following question:
How much privilege is a bail bondsman granted after being requested to leave a property?
The issue in this case is whether Burhans had privilege to reenter premises after being asked to leave where the bailee did not live at the property, had not been observed there, and no evidence of his presence was observed there. Under the common law, a bail bondsman has a right to enter property which he or she reasonable believes serves as the principal’s residence and to arrest the principal; a bail bondsman also has a right to use such force there as is reasonably necessary to overcome the resistance of a third party who attempts to impede the principal’s recapture.
In this case, Burhans, a bail bondsman, was convicted of criminal trespass in an attempt to apprehend Michael Austin (“Austin”). Burhans attempted to enter a house that was listed as Austin’s address on an application in the bail bond paperwork. The house was actually owned by Williams, Austin’s sister, and her husband. Burhans did not have the real bond, nor did he consult a title or utility bills to verify the address as Austin’s. Upon arrival at the house, Burhans attempted to enter the premises on the pretense of installing a house security system. After announcing his real intent, Burhans was asked to leave by Williams, and Williams pushed Burhans out the door when Burhan refused to leave. Burhans returned to his vehicle, called the police to ask for a courtesy standby, and was refused the courtesy standby. Burhans then began to walk up the driveway with a can of mace and a handgun. Burhan was again told to leave the premises, and Williams called the police. The district court convicted Burhans of criminal trespass.
Under the common law, a bail bondsman has a right to enter property which he or she reasonable believes serves as the principal’s residence and to arrest the principal; a bail bondsman also has a right to use such force there as is reasonably necessary to overcome the resistance of a third party who attempts to impede the principal’s recapture. In determining whether the bail bondsman privilege was a sufficient excuse for Burhans reentry of the premises after being asked to leave, the Court looked to case law from other jurisdictions. The court found it compelling that Burhans had no evidence of Austin’s presence on the premises and had been unable to confirm Austin lived at the premises. Therefore, the bondsman privilege did not protect Burhan’s conduct in this case.
Further, Burhans due process rights to notice that his conduct was criminal was not violated because the trespass statute has been in effect for decades, and the court was unable to find case law from any jurisdiction that would have justified Burhan’s conduct in this case. Ignorance or mistake of fact or law is not generally a defense.
The Supreme Court of Kansas affirmed the conviction of the lower court. The bail bondsman’s privilege did not cover the conduct of Burhans in this case. For these reasons, Burhans was correctly convicted of criminal trespass.