Tuesday, March 10, 2009
Mutiny On The Bounty?: Tenth Circuit Holds That Bounty Hunters Are Not State Actors For 4th Amendment Purposes
The recent opinion of the Tenth Circuit in United States v. Poe, 2009 WL 514069 (10th Cir. 2009), addressed a question of first impression in that circuit: Are bounty hunters state actors for Fourth Amendment purposes? According to the Tenth Circuit, they are not.
In Poe, among other things,
a bail bonds company hired five bounty hunters to apprehend Aaron Poe for jumping bail in an Oklahoma state criminal case. The bounty hunters surveilled the home of Kim Wilson, who they believed to be Poe's girlfriend. Around 10:30 p.m., the bounty hunters observed Wilson exit her house and drive away. Two of the bounty hunters, David DeWitt and Lawrence Sanders, followed her to the AutoZone where she worked to question her about Poe. Wilson indicated that Poe was at her home and agreed to return with DeWitt and Sanders....
Upon returning to the house, DeWitt and Sanders staked out the back door.... From their position, DeWitt and Sanders were able to positively identify Poe....[Thereafter,] Sanders went into the home to apprehend Poe, and a struggle ensued. As Sanders wrestled Poe to ground, two pit bulls entered the room and attacked Sanders. Sanders "tased" one of the pit bulls, then both dogs retreated to another room and Poe gave up resisting.
After Poe was subdued, DeWitt observed in plain view in the same room what he believed to be methamphetamine, methamphetamine-related paraphernalia, and a black nine-millimeter pistol. DeWitt emptied the pistol's chamber and removed its magazine, both of which were loaded. Sanders then called the Oklahoma City Police Department.
Officer James Geery of the Oklahoma City Police Department responded to Sanders's call, arriving at Wilson's home shortly after 11:00 p.m. After speaking with the bounty hunters, Officer Geery advised Poe of his Miranda rights. Poe said that he understood his rights, and before Officer Geery asked him another question Poe said, "The dope and the gun are mine."
Because Poe was an overnight guest of Wilson, he had standing to object to the warrantless entry of the bounty hunters into Wilson's home (he also had standing to object to Geery's entry, but Geery was justified in entering in response to Sanders' call). The question was thus whether the bounty hunters were state actors, making the Fourth Amendment and the exclusionary rule applicable, or private actors, making them inapplicable.
The Tenth Circuit properly reached the latter conclusion. It noted that it applies a dual-pronged inquiry to decide if a search by a private individual constitutes state action within the meaning of the Fourth Amendment:
First, we determine "whether the government knew of and acquiesced in the [individual's] intrusive conduct...." Second, we consider "whether the party performing the search intended to assist law enforcement efforts or to further his own ends...." Both prongs must be satisfied considering the totality of the circumstances before the seemingly private search may be deemed a government search."
The problem for Poe was that neither of these prongs were satisfied. First, "Poe d[id] not and c[ould not] assert that the government 'knew of or acquiesced in' the bounty hunters' entry and search of Wilson's home...[because] the police did not become involved until Sanders called them, after he and DeWitt had entered Wilson's house, apprehended Poe, and discovered the firearm, drugs, and paraphernalia." The Tenth Circuit also rejected Poe's argument that "Oklahoma's extensive statutory regulation of the bail bonds industry, coupled with conferring the powers of arrest, conclusively establishe[d] the bondsmen's conduct [wa]s chargeable to the State." Instead, it found that "involvement in the bail bonds industry is insufficient to satisfy this inquiry; we require knowledge of or acquiescence in the challenged search. Because the government agent did not know of the bounty hunters' search until after it was complete, Poe's challenge fails under the first prong of Souza."
The Tenth Circuit also found that Poe could not satisfy the second prong
because the bounty hunters primarily "intended...to further [their] own ends"-their financial stake in Poe's bail-rather than to assist state officials. These bounty hunters were hired to apprehend Poe by the bail bonds company, which was responsible for the bond it posted on Poe's behalf. Poe's argument that law enforcement and the bail bonds industry have a "symbiotic relationship,"...is unpersuasive. We do not inquire if the police benefitted from the private conduct, but if the bounty hunters had a "legitimate, independent motivation" to conduct the search....Financial gain motivated these bounty hunters; they had apprehended Poe and completed the search before calling the police. Indeed, they "would have [conducted the search] even if the police had not responded to [their] call...." Because the bounty hunters did not intend to assist law enforcement, they are not state actors under the second prong.
I was unable to find any other precedent on this issue, but the Tenth Circuit seems to me to have reached the correct conclusion, and law review articles on the issue seem to agree. See, e.g., Jonathan Drimmer, When Man Hunts Man: The Rights and Duties of Bounty Hunters in the American Criminal Justice System, 33 Hous. L. Rev. 731 (1996).