A trespassing charge against a bounty hunter who broke into a Bibb County woman's home through the doggy door to arrest a fugitive is headed to Georgia's Supreme Court next week.
Last year, Georgia Court of Appeals threw out the criminal trespass charge against David Lamar Hunter.
But Bibb County prosecutors have appealed that ruling to the state's highest court.
According to the court summary of the case, Harper was working as a bail-recovery agent for a professional bondsman.
In 2014, the court says, he visited Tina McDaniel's house in search of fugitive Stephen Jeffrey Collier, who had defaulted on his bond.
Finding the doors locked, the court says, Harper entered the home through a doggy door, damaging the door.
McDaniel says she was changing clothes in her bedroom when she heard her daughter scream and found Harper holding Collier to the floor.
When she asked who he was, Harper reportedly told her "Houston County," leading McDaniel to think he was a police officer.
As he took Collier away, the court says, Harper told her, she "might want to get your door fixed."
McDaniel called police, and the next day Harper was charged with two counts of criminal trespass.
He was convicted and sentenced to 90 days in jail with probation and fines.
Harper's lawyer argues that under Georgia law, a bounty hunter has the right to enter a private home to arrest a fugitive and "may break open the door of any house where the offender is concealed."
The appeals court agreed, finding that since the homeowner had not given Harper "express notice" not to enter the home, he was not guilty of trespassing.
Harper's lawyer also argue that the unlocked pet door also gave him the right to enter the home: "Express notice is required and the 'doggy door' is not express notice."
The court is scheduled to hear the case Monday in Atlanta.
Here is the court's summary of the case:
THE STATE V. HARPER (S17G0199)
State prosecutors are appealing a Georgia Court of Appeals decision that reversed a criminal trespass conviction against a bail recovery agent who broke into a woman’s home to arrest a man.
FACTS: In March 2014, David Lamar Harper was working as a bail recovery agent for a professional bondsman in Bibb County when he entered Tina McDaniel’s locked home without her knowledge or permission. According to briefs filed in the case, the house was locked and Harper entered through a pet door, damaging it in the process. He claimed he was searching for a wanted fugitive defendant, Stephen Jeffrey Collier, whose bond was in default. At the time Harper entered the home, McDaniel was changing clothes in her bedroom when she heard her daughter scream. She found Harper holding Collier to the floor while handcuffing him. When she asked Harper who he was, he said he was “Houston County,” leading her to believe he was a Houston County police officer. Harper never identified himself as a bail recovery agent. Collier did not live at McDaniel’s house but was there that day to work on a vehicle. As Harper left with Collier, planning to turn him over to state custody, he told McDaniel that she “might need to get your door fixed.”
The next day, McDaniel reported the intrusion to police, and Harper was arrested and charged with two counts of criminal trespass under Georgia Code § 16-7-21 (a) and (b) (2). Subsection (a) of the statute says that, “A person commits the offense of criminal trespass when he or she intentionally damages any property of another without consent of that other person and the damage thereto is $500 or less….” Subsection (b) (2) states that a person commits criminal trespass when he or she enters without authority the premises of another person after receiving “notice from the owner” that “such entry is forbidden.” Following trial, the jury convicted Harper of both counts of criminal trespass, and he was sentenced to 90 days in jail followed by 21 months on probation and a fine of $1,750. Representing himself “pro se,” Harper appealed to the Court of Appeals. That Court upheld the conviction under § 16-7-21 (a) for the damage he did to the door. But the intermediate appellate court reversed his conviction under § 16-7-21(b) (2) for entering the locked residence without permission. The appellate court ruled that the statute requires “express notice” that the entry was forbidden, and here, “because the homeowner had not given Harper express notice not to enter, Harper could not be guilty.” The State now appeals to the Georgia Supreme Court.
ARGUMENTS: The Office of the Solicitor General in Macon, representing the State, argues the Court of Appeals decision “ignores the plain language and intent” of § 16-7-21(b) (2) by reading an additional element requiring express notice into the statute. This “stands against strong public policy regarding the sanctity of a person’s home, and makes it an outlier of comparable law,” the attorneys argue in briefs. The Court of Appeals held that to be found guilty of violating the statute, there needs to be proof that the accused entered without having received express notice that the entry was forbidden, and that the home’s locked door was insufficient notice. “If one’s home is their castle, then breaching the castle by means of entry through a locked door ought to be a trespass by any definition,” the attorneys argue. “You can ask any child what a locked door means and they will tell you that it means you cannot go in.” The cases on which the Court of Appeals depends deal with entry into places that were not locked, the attorneys point out. By locking the door to her residence, McDaniel, like any homeowner, “places any and all trespassers on reasonable and explicit notice that entry is prohibited.” This decision “demonstrates a fundamental confusion between reasonable and explicit notice and the express notice required by the Court of Appeals.” “Reasonable and explicit” means “leaving no question as to the meaning or intent.” “Express,” on the other hand, means “directly, firmly, and explicitly stated,” and requires the additional element of stating that entry is forbidden instead of recognizing that reasonable and explicit notice can be provided in several forms, such as a home’s locked door. Courts in other states “recognize that locked doors provide notice that entry is forbidden.”
Harper’s attorney argues that Harper was authorized to enter McDaniel’s home to apprehend a fugitive. “The American system of bail, and the right of bounty hunters to search for and arrest criminal defendants, descends directly from the English common law,” the attorney argues in briefs. “Bail recovery agents also enjoy broader arrest powers than ordinary citizens making a ‘citizen’s arrest,’ and it is these powers of apprehension that provide Mr. Harper with the authority that precludes any criminal trespass charge in this case.” In Georgia, two statutes support the proposition that bail bondsmen have the authority to enter property to seize a defendant: Georgia Code § 17-6-58 (d), which states that bail bond recovery agents are liable for civil damages only for entering the wrong property; and § 17-4-3, which states that an officer “may break open the door of any house where the offender is concealed.” Under § 17-6-58 (d), a bail recovery agent is not liable for property damage occurring when he has entered the right property, as Harper did. “Mr. Harper respectfully submits that under Georgia law, he cannot be criminally liable for trespass when he has entered a property on which the fugitive defendant is actually concealed and apprehends that fugitive there.” And, under § 17-4-3, bail recovery agents are authorized to enter “any house” where a fugitive is concealed. Nothing in the statute limits the authority to make an arrest to the residence of the person being apprehended. Other states, such as Washington, Ohio and Alabama, have recognized “a bail recovery agent’s common law authority to enter third-party residences to apprehend fugitives concealed inside,” Harper’s attorney argues. Also, the State failed to prove that Harper acted “knowingly” with the required criminal intent to prove criminal trespass. “Even if Harper did not actually have the legal right to enter McDaniel’s garage, he plainly and reasonably believed he was acting under his authority as a bail bondsman to apprehend a concealed fugitive,” his attorney argues. Finally, the pet door “did not constitute sufficient notice that Harper’s entry was forbidden. Express notice is required and the ‘doggy door’ is not express notice.” In its 1983 decision in Rayburn v. State, the Georgia Supreme Court ruled that, “Notice is an essential element of the offense of criminal trespass, and must be proven by the State beyond a reasonable doubt at trial.”
Attorneys for Appellant (State): Rebecca Grist, Solicitor-General, Sharell Lewis, Chief Asst. S.G., Donyale Leslie, Asst, S.G.
Attorney for Appellee (Harper): Andrew Hall