1. Applicable Statutes
A. IOWA CODE ANNOTATED TITLE III. PUBLIC SERVICES AND REGULATION SUBTITLE 1. PUBLIC SAFETY CHAPTER 80A. PRIVATE INVESTIGATIVE AGENCIES AND SECURITY AGENTS 80A.1 – .16A
B. IOWA CODE ANNOTATED TITLE XVI. CRIMINAL LAW AND PROCEDURE SUBTITLE 2. CRIMINAL PROCEDURE CHAPTER 811. PRETRIAL RELEASE—BAIL 811.3, .6 –.9
II. Licensing Requirements for Agents
Iowa has numerous provisions regulating the licensing of the bail enforcement business and bailenforcement agents.
A. IOWA CODE ANNOTATED TITLE III. PUBLIC SERVICES AND REGULATION SUBTITLE 1. PUBLIC SAFETY CHAPTER 80A. PRIVATE INVESTIGATIVE AGENCIES AND SECURITY AGENTS 80A.3. Requires a bail enforcement business to obtain the same license as that for a private detective. The license must be renewed every two years.
B. 80A.4. Sets forth the license requirements. Applications for a license or license renewal must be submitted to the commissioner and no license shall not be issued unless the applicant:
Is eighteen years of age or older.
1. Is not a peace officer.
2. Has never been convicted of a felony or aggravated misdemeanor.
3. Is not addicted to the use of alcohol or a controlled substance.
4. Does not have a history of repeated acts of violence.
5. Is of good moral character and has not been judged guilty of a crime involving moral turpitude.
6. Has not been convicted of a crime described in sections 708.3, 708.4, 708.5, 708.6, 708.8, or 708.9.
7. Has not been convicted of illegally using, carrying or possessing a dangerous weapon.
8. Has not been convicted of fraud.
9. Complies with other qualifications and requirements the commissioner adopts by rule.
9. If the applicant is a corporation, these requirements apply to the president and to each officer, commissioner or employee who is actively involved in the licensed business in Iowa. If the applicant is a partnership or association, the apply to each partner or association member.
10. Each employee of an applicant or licensee shall possess the same qualifications required by this section for a licensee.
C. 80A.5. Requires a licensee fee to be deposited with each application – to be applied if the application is granted and refunded if the application is denied.
The fee for a two-year license for a bail enforcement business is one hundred dollars.
D. 80A.10. Requires each license applicant to submit bond before receiving a license. The applicant must file a surety bond with the department with the Department of Public Safety, in a minimum amount as follows:
1. Five thousand dollars in the case of an agency licensed to conduct only a bail enforcement business, private security business, or a private investigation business.
2. Ten thousand dollars in the case of an agency licensed to conduct more than one type of business licensed under this chapter.
3. The bond shall be issued by a surety company authorized to do business in this state and shall be conditioned on the faithful, lawful, and honest conduct of the applicant and those employed by the applicant in carrying on the business licensed.
4. The bond provides that a person injured by a breach of the conditions of the bond may bring an action on the bond to recover legal damages suffered by reason of the breach. However, the aggregate liability of the surety for all damages shall not exceed the amount of the bond.
5. Bonds issued and filed with the department shall remain in force and effect until the surety has terminated future liability by a written thirty days' notice to the department.
E. 80A.10A. Requires each potential licensee to submit proof of financial responsibility, notwithstanding the minimum bond amount that must be filed in accordance with section 80A.10.
A license shall not be issued unless the applicant furnishes proof acceptable to the commissioner of the applicant's ability to pay for damages resulting from accidents or wrongdoing arising out of the ownership and operation of a bail enforcement business.
F. IOWA CODE ANNOTATED TITLE XV. JUDICIAL BRANCH AND JUDICIAL PROCEDURES SUBTITLE 4.PROBATE—FIDUCIARIES CHAPTER 636. SURETIES--FIDUCIARIES--TRUSTS—INVESTMENTS SURETY COMPANIES 636.11.
An agent for a company authorized to engage in the business of becoming surety upon bonds must be a resident of this state for the purpose of acting on behalf of the surety company with respect to any bond or bail in criminal cases.
III. Notice of Forfeiture
IOWA CODE ANNOTATED TITLE XVI. CRIMINAL LAW AND PROCEDURE SUBTITLE 2. CRIMINAL PROCEDURE CHAPTER 811. PRETRIAL RELEASE—BAIL 811.6. Sets forth provisions on bail forfeiture, including notice requirements.
A. If a defendant fails to appear at the time and place when the defendant's personal appearance is lawfully required, the court must direct an entry of the failure to be made of record, and the undertaking of the defendant's bail, or the money deposited, is thereupon forfeited.
B. As a part of the entry, the court shall direct the sheriff of the county to give ten days' notice in writing to the defendant and the defendant's sureties to appear and show cause, if any, why judgment should not be entered for the amount of bail.
C. If such appearance is not made, judgment shall be entered by the court. If appearance is made, the court shall set the case down for immediate hearing as an ordinary action.
IV. Allotted Time between Forfeiture Declaration and Payment Due Date
A. See above, second paragraph.
B. State v. Costello, 1992, 489 N.W.2d 735.
Purpose of statutory ten-day notice requirement prior to entry of judgment for amount of bail upon forfeiture is to afford surety opportunity to resist entry of judgment, and not to locate and deliver defendant to sheriff.
V. Forfeiture Defenses
A. IOWA CODE ANNOTATED TITLE XVI. CRIMINAL LAW AND PROCEDURESUBTITLE 2. CRIMINAL PROCEDURE CHAPTER 811. PRETRIAL RELEASE—BAIL 811.8. Sets forth a procedure for exonerating a surety through surrender of a defendant.
1. At any time before forfeiture of a bond, the surety may surrender the defendant, or the defendant may surrender, to the officer to whose custody the defendant was committed at the time of giving bail.
2. The officer shall then acknowledge the surrender by a certificate in writing.
3. Upon the filing the certificate of the officer, the court or clerk shall immediately order return of the money deposited to the surety, or order an exoneration of the surety.
B. 811.9. Establishes that the above section (811.8) does not apply in a case where a simple misdemeanor is charged (through a uniform citation) and where the defendant has submitted an unsecured appearance bond or has submitted bail in the form of cash, check, credit card. When a defendant fails to appear such cases, the court shall enter a judgment of forfeiture of the bond or bail, which shall be final upon entry.
C. A number of state cases also clarify a surety’s right to contest forfeiture, and exclude certain excuses.
1. State v. Costello, 1992, 489 N.W.2d 735.
Forfeiture of bail may be avoided only when bondsman shows some reasonable excuse for failing to produce defendant, and, when satisfactory explanation for defendant's failure to appear has been established, court may refuse to enter judgment and may set aside forfeiture.
2. State v. Shell
1951, 45 N.W.2d 851, 242 Iowa 260.
Forfeiture of bail may be avoided only where the bondsmen show some reasonable excuse for failure to produce defendant.
3. State v. Scott
1866, 20 Iowa 63.
The death of the principal two years after a bond was forfeited in a criminal action is no defense to an action against the security on the bond.
A. IOWA CODE ANNOTATED TITLE XVI. CRIMINAL LAW AND PROCEDURESUBTITLE 2. CRIMINAL PROCEDURE CHAPTER 811. PRETRIAL RELEASE—BAIL 811.6 Gives provisions for setting aside forfeiture judgements.
1. Where a forfeiture and judgment have been entered as provided in this section, and the amount of the judgment has been paid to the clerk, the clerk shall hold the money for a period of sixty days from the date of judgment.
2. The court may, upon application, set aside such judgment if, within sixty days from the date thereof, the defendant shall voluntarily surrender to the sheriff of the county, or the defendant's sureties shall, at their own expense, deliver the defendant to the custody of the sheriff.
3. Such judgment shall not be set aside, however, unless as a condition precedent thereto, the defendant and the defendant's sureties shall have paid all costs and expenses incurred in connection therewith.
B. Iowa case law establishes the remission is available, at the discretion of the court.
State v. Kraner, 1879, 50 Iowa 582.The court may, at its discretion, remit the whole or any part of the amount of a bail bond before judgment is entered, if the defendant be surrendered.
VII. Bail Agent’s Arrest Authority
IOWA CODE ANNOTATED TITLE XVI. CRIMINAL LAW AND PROCEDURESUBTITLE 2. CRIMINAL PROCEDURE CHAPTER 811. PRETRIAL RELEASE—BAIL 811.8.Establishes a bail agent’s arrest authority.
A. For the purpose of surrendering the defendant, the surety may at any time arrest the defendant, or, by written authority endorsed on a certified copy, empower a person (subject to meeting the criteria outlined in #2, licensing requirements) of suitable age and discretion to do so.
In making an arrest, the surety or any person empowered by the surety shall possess no more authority than a peace officer would possess in making a lawful arrest.
VIII. Other Noteworthy Provisions
A. IOWA CODE ANNOTATED TITLE III. PUBLIC SERVICES AND REGULATION SUBTITLE 1. PUBLIC SAFETY CHAPTER 80A. PRIVATE INVESTIGATIVE AGENCIES AND SECURITY AGENTS
1. 80A.7. Sets forth provisions requiring identification cards for persons receiving a license to operate in the bail enforcement business.
2. The department shall issue to each licensee and to each employee of the licensee an identification card in a form approved by the commissioner. The application for a permanent identification card shall include a temporary identification card valid for fourteen days from the date of receipt of the application by the applicant.
3. The fee for each identification card is ten dollars.
4. It is unlawful for an agency licensed under this chapter to employ a person to act in the bail enforcement business unless the person has in their immediate possession an identification card.
5. The licensee is responsible for the use of identification cards by the licensee's employees and shall return an employee's card to the department upon termination of the employee's service. Identification cards remain the property of the department.
B. 80A.9. Gives regulations on the use of badges and uniforms by bail enforcement agents. A bail enforcement agent shall not do any of the following:
1. Use a badge or identification card other than one which is in accordance with the laws of the state of origin.
2. Wear a uniform or make a statement that gives the impression that the agent is a peace officer.
C. IOWA CODE ANNOTATED TITLE III. PUBLIC SERVICES AND REGULATION SUBTITLE 1. PUBLIC SAFETY CHAPTER 80A. PRIVATE INVESTIGATIVE AGENCIES AND SECURITY AGENTS 80A.1. Provides definitions of important terms such as "bail enforcement agent" and "bail enforcement business."
1. "Bail enforcement agent:" a person engaged in the bail enforcement business, including in-state licensees and persons whose principal place of business is in a state other than Iowa.
2. "Bail enforcement business:" means the business of taking or attempting to take into custody the principal on a bail bond issued in relation to a criminal proceeding to assure the presence of the defendant at trial, but does not include actions undertaken by a a law enforcement officer in the course of official duties.
D. IOWA CODE ANNOTATED TITLE III. PUBLIC SERVICES AND REGULATION SUBTITLE 1. PUBLIC SAFETY CHAPTER 80A. PRIVATE INVESTIGATIVE AGENCIES AND SECURITY AGENTS 80A.3A.Sets forth requirements for notification of and registration for out-of-state bail enforcement agents with local law enforcement when conducting an undertaking within the state of Iowa.
E. IOWA CODE ANNOTATED TITLE III. PUBLIC SERVICES AND REGULATION SUBTITLE 1. PUBLIC SAFETY CHAPTER 80A. PRIVATE INVESTIGATIVE AGENCIES AND SECURITY AGENTS 80A.16A. Establishes the civil liability of bail enforcement agents to injured third parties.
1. A person other than a defendant who is injured in person or property by the actions of a bail enforcement agent in taking or attempting to take a defendant into custody may bring a civil action for damages against such agent and the bail enforcement business for breach of any applicable standard of care.
2. In such civil actions a judgment shall include an award of treble damages, and recovery of costs and reasonable attorney fees.
F. IOWA CODE ANNOTATED TITLE XVI. CRIMINAL LAW AND PROCEDURE SUBTITLE 2. CRIMINAL PROCEDURE CHAPTER 811. PRETRIAL RELEASE—BAIL 811.3.Establishes the right of a court, clerk, or magistrate to examine the qualifications of a surety, under oath, prior to releasing a prisoner on bail.
IX. Noteworthy State Appellate Decisions
A. STATE of Iowa, Appellee, v. HAWKEYE BAIL BONDS, SURETY, Appellant.
Supreme Court of Iowa.
June 18, 1997.
1. Hawkeye Bail Bonds acted as surety on two bonds posted by Juan Jose Rojas- Cardona (the defendant) in two separate appeals from criminal convictions. After the convictions were affirmed on appeal, the defendant requested and obtained delays in the issuance of the mittimus in each case. When the extended time expired and the defendant did not appear, the court forfeited his bonds. The surety appealed.
2. Hawkeye raises three issues on appeal:
a. Whether the court's delays in the issuance of the mittimus were illegal, thus relieving the surety of its obligation;
b. Whether extending the mittimus improperly modified Hawkeye's obligation; and
c. Whether the defendant's appearance at the August 5, 1994 probation revocation hearing constituted an appearance that would satisfy Hawkeye's obligation.
3. The court concludes that nothing in the statutes prohibited the extension of the time for issuance of the mittimus. The court further concludes that the court's extension of the time for execution of the judgments did not modify the bail bonds so as to relieve Hawkeye of its liability. In the present case, however, the bond required that the defendant surrender himself in execution of the judgment. This never occurred. Although the defendant was in the presence of the court after the appeal on August 5, 1994, the actual execution of his judgment was not set until November 15, 1994. The defendant did not appear, and the terms of the bond were not fulfilled. The court agrees with the district court that the surety remains liable under these appeal bonds. The decision is affirmed.
B. STATE of Iowa, Appellee, v. Phillip McFARLAND, Appellant.
No. 97-1928. Court of Appeals of Iowa
April 30, 1999.,p>
Philip McFarland and Edward Green claimed to be bounty hunters. In March 1997, they allegedly received a tip that Maurecio Gomez had skipped bail and was staying at a mobile home park in Des Moines. On March 18, 1997, sometime between 1:30 and 2:30 a.m., McFarland and Green arrived at the mobile home of Wendell and Sandy Leach. The Leaches and three of their four children were home. McFarland began pounding on the front door of the Leach mobile home. When Wendell Jr. asked what was going on, McFarland broke the front door open and barged into the home. In the process, the door flew open and Wendell Jr. was knocked against a closet. McFarland said he was a bounty hunter and stated he was "looking for some Mexicans." Sandy and Wendell argued with McFarland about his being in their home. McFarland threatened to "smack" Sandy if she did not "shut up." When McFarland realized Gomez was not connected with the Leaches, he apologized, left the home, and went to the trailer next door. McFarland was charged with second-degree burglary.
At trial, McFarland's request for a jury instruction on a citizen's arrest, which he claimed encapsulated his defense, was denied. McFarland was convicted of second- degree burglary and sentenced to an indeterminate ten-year sentence. McFarland appeals.
The court holds the citizen's arrest defense can not be used as an affirmative defense to burglary or assault when unlawful entry or force is used against an innocent third person, who is neither a felon nor a person interfering with the lawful arrest of a felon. Courts from several other states have held the same. The court finds that for these reasons, the trial court did not err in refusing to give the jury instruction.
C. State v. Sellers,/u>,
1977, 258 N.W.2d 292.
Fact that agent who executed bail bonds was not licensed by the State of Iowa did not preclude insurer from being held liable on the bonds.
X. Bounty Hunter Provisions
Bounty Hunters are termed "Bail Enforcement Agents" in Iowa’s statutes. Rules governing such are primarily given above under #2 – Licensing Requirements for Agents. No separate regulations exist for "Bounty Hunters."