Colour of Law Question

This issue was addressed in a previous thread by 1 of our most experienced and educated minds of our times. It is entitled "It's 4am..."

This past Thursday night, we had a similar situation:

It's midnight, rural countryside, rolling hills, lush green corn stalks 6' tall, FULL MOON (hint hint), temperature just right..not too cool or hot, clear skies, otherwise a beautiful night.

Our subject was an older male wanted on an FTA charge on an original charge of domestic Violence 3rd (felony county charge). His brother was the c/s. My client and I had already been to the c/s's address a couple of weeks ago. He stated he would try to locate the subj for us. Well he did. He called my client earlier this week with the address we had.

So we roll out...3 of us. We pull up into the subj's gravel driveway (gotta love those) and asume our cover positions...1 at the side, me at the back, and my client at the front door. Radio check...everyone in position...good to go....

knock, knock, knock.....we all know the drill from there. A young pregnant female answers the door. My client begins his gentle way of talking to her, answering her questions, explaining things, etc etc. She stated the subj. wasn't there, yadda yadda yadda....yet she refused us entry. She stated she was calling the Sheriff's dpt. Fine....please do.

So we maintain our positions and wait....and wait....and wait some more....no S.O. So finally I suggested to the client to call dispatch to verify if they had recieved a call from this address....every instinct in us told us the subj was there. So my client did...and guess what ?....no call, no deputy was enroute...until then.

The deputy arrives within minutes of us calling. He approaches the front door and educates the young female that my client did have lawful authority to enter her house..PERIOD.

So enter we did. Standard room by room search....Client maintaining a covering position with the deputy at the front door, myself and my partner clearing the house standard procedure, 1 covering 1 searching. We were at the back of the house when I heard a ruckus at the front.

My partner and I ran to the front. The deputy was still standing at the front door and advised us "he's in there guys" pointing to a front bedroom around a corner. We rounded the corner, still hearing the loud nasty language coming from there, and there was our defendant getting dressed, but verbally assaulting my client.

Once my partner and I came into view, that set him off even more. My client then advised him that he was going to have to put cuffs on him and we were taking him back to jail. Naturally the subj. objected to this information. By this time we had moved into the front living room, back in plain sight of the deputy. When my client reached for the def. to place his cuffs on him, the subj. jerked back, commenting in rather flowery language not repeatable here, that my client wasn't going to cuff him.

All 3 of us knew then we were going to be in for a fight. The subj was pretty stout...average height, but thick in chest and shoulders and in a mean state of mind. Now factor in a pregnant woman, and a 16 yr old son...all standing in the same room with us. Now bear in mind the deputy hasn't moved an inch from his position at the front door this whole time.

So my client, being wise in the way of human psychology (he's been doing this for 14 yrs now), stepped back a couple of feet, continuing to talk to the def. in a calm, yet firm tone. Explaining how things were and the reality of his situation...
"Mr. so and so...you are going to jail..period....now, you can go with us, or you can go with this gentleman here (pointing to the deputy) your choice...but you are under arrest and that's it." the def. replied he wanted to go with the deputy and actually stepped over to him, turning his back to him, and surrendering his hands so the deputy could cuff him.

So then we all escort the "gentleman" out to the deputy's car and stand by while the deputy secures him in his patrol car. The deputy then begins his processes of confirming the subj's ID, warrant, etc. Then the deputy departs, taking our not-so-happy little camper off to his weekend retreat..."The Huntsville Hilton".

So we left as well, moving on to our next contestants, and engaged in our after action critique. Naturally, I began questioning the issue of colour of law. My client explained that when he called dispatch, he advised them that he wasn't calling for our safety, but rather that of the pregnant female. Afterall, she had stated she wanted a deputy out there, but for some reason her phone wasn't able to connect to them, so he was calling on her behalf....

Now, obviously folks...the reason her phone couldn't connect is because she never called them in the first place...they were foolishly thinking that by threatening to call the S.O on us, it would scare us away...well we all know that doesn't work.

So back to the topic issue....is colour of law an issue here ?

1)The subject's REQUESTED the S.O.

2) The def. voluntarily surendered to the DEPUTY (that was a mind game of course).

3) The deputy never got involved until the subj. approached him to be cuffed by him.

Curious to know what others think here.

_________________
River City Associates
Decatur, Al. 35601

Ruffin,
You know my opinion! With the Sheriff present in plain view, entry of the house is illegal with out a search warrant. The fact that he remained outside and disengaged tells me he knew that he couldn't enter the home but mistakenly believed that you could and that his presence was not material to the facts or law. when the defendant, known to all present to be a wanted
fugitive presented himself for arrest or re-arrest to the Deputy, he is duty bound to act. Most states have a criminal charge on the books when a sworn law enforcement officer, in uniform, is presented with a fugitive and refuses to act on the warrant. In Maryland, it is 5 years in jail and up to a $10,000 fine.

When and if this situation repeats itself, and it will, should you become entangled with a knowledgeable Deputy and he refuses to allow you to make entry, ask him to remove himself from view, stand by to keep the peace and do what you do.
This also allows him/her to check credentials, open warrants etc. to satisfy him/herself that you are legitimate and have legal reason to be there.

This happens all of the time but few are aware of the laws that govern this situation. I am prepared to defend my position, because I am equally aware that others will disagree and I never shy away from a good debate! Seriously, this is great fodder for discussion so we all might learn even more regarding situations such as this.

Scott (taking the bait)

_________________
R.E. "Scott" MacLean III

"Leaders are like Eagles, you never see them in a flock, but one at a time"

Chesapeake Group Investigations, Inc.
Chesapeake Bail Bonds
877-574-0500
301-392-1100 (fax)
301-392-1900 (Office)

It does happen frequently here in my AO. In 1 county, the S.O has a completely hands off attitude towards our industry if we call. However, if a registered voter, tax paying, county citizen calls for help, then naturally the S.O responds, usually fairly quickly.

The responding deputy's individual age, experience, and knowledge determines thier demeanor towards us. The usual routine is as follows:

1) They ask us for our ID's and pistol permits. They run us for warrants.

2) They verify the warrant we are attempting to re-apprehend the def. on.

3) If the warrant is verified, and it's thiers, then they will tell us to stand down and they will serve it, taking the def. into custody.

4) If the warrant isn't thiers, or it can't be verified, Then they advise us they cannot assist us; however they can do a "public safety stand by". Typically before they leave the location, they do advise the residents of our lawful authority to execute our *warrants.

*In our state, our bail pieces are entitled "Bondsman's Process". However, in our state statute addressing this document, the descriptive verbage used is "..warrant..". When this document was originally created, it was originally referred to as a "Bondsman's warrant". It is in effect a warrant by all definitions. However, the LEO community objected to this title and requested the state legislature change the title to "Bondsman's Process", which they did. However, they failed to change the verbage in the statute. Additionally, this is a state document, signed by our local clerks of courts or magistrates, and contains the verbage that the bonding company has the right, either themselves or through an agent acting on thier behalf, to arrest the defendant "...ANYWHERE THEY MAY LOCATE HIM IN THE STATE OF ALABAMA...".

Reference: http://www.legislature.state.al.us/Code ... coatoc.htm
Title 15; Chapter 13; Section 15-13-128

_________________
River City Associates
Decatur, Al. 35601

colour of law - a mere semblance of legal right; something done with the apparent authority of law but actually in contravention of law; "the plaintiff claimed that under color of law the officer had deprived him of his civil rights"

I personally don't think it was an issue.
A call was made for assistance, weather it be from you or the female, The officer responded to investigate. The officer will not leave until the situation is resolved one way or the other. The next thing the officer knows is that a fugitive was turning himself in....or that's the way the officers report is worded.

_________________
If the world didn't suck we would all fall off. (Luvonda)
Nobody has power over you that you do not allow them to have. (Scott)
Be careful of the seeds you plant because one day they will be harvested.

Dave
Private Investigator
Licensed by the NYS DOS Division of Licensing

I don't argue points of law about any state other than my own. We can enter a defendant's residence with or without agreement. We can enter a third party residence if we have probable cause to believe the person is there. We have never been denied entry if the person is not there. We often get denied if the person is there. Sometimes when we call for LE standby or assistance they will take charge. Other times they will just stand by and let us do our job unless there is an issue. They will not assist on a revoke as there is no warrant involved.

Sometimes they will ask the person answering the door to enter behind us if we or they feel the person is dangerous. Sometimes they use us to get into a house that they are "interested" in. WE do have the right to enter in many states and unless LEO's decide to take over, they may make contact, but will step back and allow us to go in either with or without them. Sometimes people take offense to our right, but will allow LE to search. One time we were told to leave the property by the apartment manager who had apparently had bad ju-ju with BEA's. We walked across the street and watched. We knew the guy was there, so even after the manager showed up and opened the door for them they couldn't find him. We were on the phone with the person giving us the info and finally called dispatch to relay the info that he was in a crawlspace in the ceiling. That is when they finally found him.

Even standing in the door (for everyone's protection) they can sometimes visually see drugs, paraphenalia, or other illegal items. This gives them probable cause to run everyone in the house and is a major bonus if they can make additional arrests. Since we are always respectful and professional, most respond in kind, and relationships are built.

It is rather funny how many times this happens. James had to go on an apprehension alone one time. He first did a drive-by of the house and saw Mexican males on site. When he checked in with LE he was asked to wait a couple of hours so that the county's SWAT team could assist him. Just so happens this was a meth house where one major bust had already been made. There was another made that day, and James got the defendant . All they needed was to get near enough the house and get a good "whiff" to have probable cause. Most of the inhabitants were also illegal, so they got shipped home .

_________________
Kathy Blackshear
Blackshear Investigations
Blackshear Bail Bonds
Sales Associate, Prepaid Legal Services, Inc.
Walsenburg, CO

Proud Member of the AB Reject Club

That was a good deal. Can't do better than swat back up.

_________________
If the world didn't suck we would all fall off. (Luvonda)
Nobody has power over you that you do not allow them to have. (Scott)
Be careful of the seeds you plant because one day they will be harvested.

Dave
Private Investigator
Licensed by the NYS DOS Division of Licensing

Scott, is this per your state law? Why would the agents not be allowed to enter the house, deputy presence or not?

Our regulations and operations are a lot closer to that described by Kathy and some others. While it differs somewhat from area to area, LEO's in my state rarely have any issue participating in attempted apprehensions when assistance is requested, particularly when there are other factors involved (ie: drugs, other subjects with possible warrants, weapons, etc.) We are also required to contact dispatch if a planned forced entry is going to take place but as a matter of practice we notify every time we go to a residence anyway. I have had officers threaten to arrest me for entering a residence before but after educating them on the applicable laws, they often have no problem standing by or at least standing down so we can proceed. They are, however, certainly restricted from entering themselves unless they can articulate a need (welfare of occupants, drugs/weapons in plain sight, etc.)

I once recovered a defendant in a duplex with 9lbs of marijuana drying in the back rooms. When LE arrived, it took a good 20 minutes of questioning and negotiating before they were able to secure permission from the individual who was actually renting the place to let them in, despite the fact that there were stems and leaves all over the floor directly inside the front door. They certainly did it the right way and ultaimately our defendant was charged with it based on his admissions and they were able to adhere to search and seizure requirements.

Joshua,
It is a civil rights issue. The citizen has every right and expectation to believe that their rights are intact and a search warrant is required to search their house when law enforcement are there. That is the color of law issue. When they are not visible, we proceed as usual per the limits of the law covering bail enforcement. Absent a warrant, and absent LEO seeing a fleeing felon in the house or observing or chasing him/her into the house, they can't make entry. We can to enforce our civil agreement. Therefore, if they are present, the color of law indicates that they can't make entry unless invited in by the residents, without said warrant.

I hope I made this clear, it has been a very long day and I am tired.

Scott

_________________
R.E. "Scott" MacLean III

"Leaders are like Eagles, you never see them in a flock, but one at a time"

Chesapeake Group Investigations, Inc.
Chesapeake Bail Bonds
877-574-0500
301-392-1100 (fax)
301-392-1900 (Office)

I guess I dont think deep enough. I dont see anything but success.

Bad guy goes to jail. Bondsman is off the bond. Everyone else went home safe.

Who gives a hairy rats ass how it happened?

LOL. What Andy said.

_________________
Kathy Blackshear
Blackshear Investigations
Blackshear Bail Bonds
Sales Associate, Prepaid Legal Services, Inc.
Walsenburg, CO

Proud Member of the AB Reject Club