concurring in part and dissenting in part.
In this opinion, the majority concedes that the right of a surety to seize his or her principal is not absolute. In fact, the majority emphasizes that a surety has no authority to enter the residence of a third party in which the principal does not himself reside in order to retake the principal. However, the majority holds that if the principal him*517self resides in the home of a third party, the surety is authorized to break and enter the home to search for and apprehend the principal. While I have reservations regarding this holding, the weight of authority supports the majority opinion on this issue. Thus, I concur with the majority that defendants were entitled to appropriate instructions on the charges of breaking and entering and injury to real property.
However, the majority also holds that “sureties or their agents may use such force as is reasonably necessary to overcome the resistance of a third party who attempts to impede their privileged capture of their principal.” For the following reasons, I disagree with this statement, and therefore, I respectfully dissent from that portion of the majority opinion which holds that the jury should have been so instructed as to the charge of assault.
The issue of the use of force by sureties and bondsmen is one of first impression for this Court. The majority cites State v. Lingerfelt, 109 N.C. 775, 14 S.E. 75 (1891), for the proposition that the common law of North Carolina “has always recognized the sweeping powers of sureties, or bail bondsmen who act as their agents, to apprehend the principal and use whatever force is reasonably necessary in the process.” However, the sole issue addressed by the Court in Lingerfelt was whether the defendants had the right to arrest their principal. Id. at 776, 14 S.E. at 76. In Lingerfelt, the Court did not decide or remark on the issue of the use of force by a surety, and to the extent that the facts of that case suggest anything about the use of force, it is that the defendants had the right to defend against the violent resistance of their principal.
In this case, the majority states that “the contract between the surety and the principal authorizes the surety to exercise certain powers as to the principal.” I agree. As the majority explains, it is by virtue of this consent that the surety has the right to enter the principal’s residence to search for and apprehend him, even in cases where the principal shares the residence of others. However, the majority then summarily concludes that “sureties or their agents may use such force as is reasonably necessary to overcome the resistance of a third party who attempts to impede their privileged capture of their principal,” citing only secondary authority on the law of arrests. I strongly disagree with this conclusion.
The source of a surety’s power is the contractual agreement by which the surety guarantees the principal’s bail and the principal *518agrees to submit to the “custody” of his surety. As the majority notes, the surety’s and bondsman’s right to “arrest” the principal is the right to apprehend, seize, or recapture the principal. It is from this right that the surety or his agent gains the implied right to use reasonably necessary force against the principal to effect his recapture. Without this implied right to use force against the principal, the right to seize or apprehend would be meaningless in the face of resistance. However, the majority makes an unsupported leap from this implied right to use force against the principal to the conclusion that the surety or bondsman is therefore privileged to use force against a third party to effect a seizure of the principal. If the right of the surety to retake his principal arises from a private contract, there is no basis for the surety, or bondsman acting as his agent, to interfere with the rights of any third party. The principal cannot consent to the breaking and entering of another’s home where he does not reside, nor can he consent to the use of force against one who is not a party to the agreement.
In this case, Mr. Tankersley’s implied consent, by virtue of the bond contract, gave defendants the right to break and enter his residence to search for him. However, Tankersley could not consent to defendants’ use of force against Mrs. Nelson or anyone else in the course of exercising that right. No principal may give consent to a surety to assault a third party. See State v. Portnoy, 43 Wash. App. 455, 466, 718 P.2d 805, 811 (dismissing the defendant’s argument, the court stated that “Portnoy offers no authority for the proposition that the bondsman may sweep from his path all third parties who he thinks are blocking his search for his client, without liability to the criminal law”), review denied, 106 Wash. 2d 1013 (1986).
Furthermore, as the majority correctly notes, a bail bondsman is not a law enforcement officer. Thus, the right of a surety or bondsman to use force to effect a seizure of the principal is not the same as the right of a law enforcement officer to use force in making a criminal arrest. By statute in North Carolina, police officers have been given the authority to use reasonable force in an arrest situation against a third person or against the person being arrested. N.C.G.S. § 15A-401(d) (1997). Private citizens may assist in or effect an arrest, and thus become privileged to use reasonable force, only when specifically requested to do so by law enforcement officers. N.C.G.S. § 15A-405 (1997). A surety or bail bondsman has no greater general power of arrest than any other private citizen. While sureties are given specific statutory authority to “arrest” their principal, N.C.G.S. *519§ 58-71-30 (1994), the General Statutes contain no express authority for the surety to use force to do so.
The majority, while distinguishing the term “arrest” as used in the context of surety and principal from its traditional meaning as used in the criminal law, nonetheless relies on the general law of arrest applicable to peace officers and private citizens to justify the right of the surety to use force to overcome the resistance of a third party in the course of apprehending a principal. As noted above, however, the power of sureties or bondsmen to arrest their principal is specifically granted by statute and is not the same as the power of arrest given to those acting in a law enforcement capacity. Therefore, the law of arrest, as stated by 5 Am. Jur. 2d Arrest § 116 (1995) and quoted by the majority, is simply inapplicable to this situation.1
This Court should not recognize a right of bail bondsmen to use force against third parties where none is expressly given by statute. To do so is to invite breaches of the peace and needless injury. It is for this reason that the common law power of a citizen to arrest has been abrogated and is now wholly defined by statute. See N.C.G.S. § 15A-404 (1997) (allowing detention only, as opposed to arrest; official commentary states that “ [t]he notion of a private citizen ‘arresting’ another . . . had led persons at times to act without authority and at times to place themselves or others in unjustified danger.”); State v. Mobley, 240 N.C. 476, 83 S.E.2d 100 (1954) (noting that the power of arrest without warrant is entirely defined and limited by statute). Prohibiting bondsmen from using force against third parties will not deprive them of the seizure of their principal. Such a rule merely requires a surety or bondsman to obtain the assistance of law enforcement rather than resort to self-help measures against third parties. As the facts of this case show, defendants ultimately did find it necessary to seek the assistance of law enforcement officers to apprehend Mr. Tankersley.
In summary, I agree with the majority’s conclusion that defendants were entitled to jury instructions defining the authority of bail bondsmen to break and enter the home of their principal. For the above-stated reasons, however, I do not believe that defendant Mathis was entitled to an instruction that says a bondsman may use force to overcome the resistance of a third party in order to *520gain entry. Therefore, I would hold that defendants are entitled to a new trial only on the charges of breaking and entering and injury to property.
Justice Whichard joins in this concurring and dissenting opinion.. In fact, the introduction to the article cited by the majority notes that the topic of the power of bail bond sureties to arrest their principal is treated elsewhere. See 8A Am. Jur. 2d Bail and Recognizance (1997) for specific treatment.