State v. Bogert
| Decision Date | 22 February 2013 |
| Docket Number | No. 2011-253,2011-253 |
| Citation | 2013 VT 13 |
| Parties | State of Vermont v. Thomas Bogert, Jr. |
| Court | Vermont Supreme Court |
NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.
Supreme Court On Appeal from Superior Court, Franklin Unit, Criminal Division October Term, 2012
A. Gregory Rainville, J. (motions to suppress and dismiss); Mark J. Keller (final judgment)
Diane C. Wheeler, Franklin County Deputy State's Attorney, St. Albans, for Plaintiff-Appellee.
Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.
¶ 1. This case tests the permissibility, under the Vermont Constitution, of a warrantless and suspicionless search of a convicted offender furloughed to his home and subject to a standard condition of a conditional reentry agreement that provides for such searches. We conclude that the search in this case satisfied the requirements of the Vermont Constitution applicable to offenders on a conditional reentry status and, accordingly, affirm.
¶ 2. In January 2005, defendant Thomas Bogert pleaded guilty to two counts of possession of child pornography and no contest to one count of aggravated sexual assault and one count of sexual assault. He was sentenced to a total of three to twenty-three years, eight years to serve, with the balance suspended. Defendant signed a probation order that included thirty-five conditions. One of defendant's special conditions, Condition # 38, said:
You shall not possess or utilize any computer that has [internet] access without prior approval of your PO and supervised by a person approved by your PO. If your PO approves any use of a computer with internet access as described above, that computer and any related media will be subject to periodic inspection to assure compliance with your conditions of probation.
¶ 3. In February 2007, defendant admitted to violating his probation after testing positive for cannabinoids; at the sentencing hearing for the violation of probation (VOP), the court maintained defendant's probation conditions and added a condition that he not possess any pornography in his home.
¶ 4. In July 2007, defendant signed a Terms of Release/Supervision agreement with the Department of Corrections (DOC) allowing him to serve the remainder of the incarcerative portion of his split sentence in the community on a conditional reentry status. The agreement contained the following standard condition: "I agree to submit my person, place of residence, vehicle or property to a search at any time of the day or night by the department of corrections staff."
¶ 5. In March 2009, two community correctional officers from DOC and a State Trooper conducted a "sex offender compliance check" at defendant's home and collected evidence from computers that demonstrated a violation of the terms of his conditional release and the terms of his probation. The DOC took defendant into custody and suspended his conditional reentry status. In addition, the State issued a probation violation complaint against defendant for violating the probation conditions prohibiting possession or use of a computer with internet access without prior approval and prohibiting possession of any pornography, adult or otherwise.
¶ 6. Defendant filed a motion to dismiss the probation violation complaint and a motion to suppress the evidence gathered in the search of defendant's home. In particular, defendant sought dismissal of the probation violation complaint on the grounds that the underlying probation conditions were unconstitutionally overbroad, vague, and unrelated to his conviction. With respect to the suppression issue, defendant argued that the search of his residence was involuntary and unreasonable pursuant to both the United States and Vermont constitutions. See U.S. Const. amend. IV; Vt. Const. ch. I, art. 11.
¶ 7. The court denied the motion to dismiss because it found that it was an impermissible collateral challenge to defendant's unappealed probation conditions. See State v. Austin, 165 Vt. 389, 402, 685 A.2d 1076, 1084-85 (1996). The court also denied defendant's motion to suppress on the grounds that defendant's status on conditional reentry made "his residence effectively . . . his prison cell," and the search pursuant to DOC guidelines complied with the requirements for conducting routine, random, warrantless searches of inmates' cells. See State v. Berard, 154 Vt. 306, 576 A.2d 118 (1990). Defendant appeals the trial court's denial of his motion to suppress.
¶ 8. "On appeal of a motion to suppress, we review the trial court's legal conclusions de novo and its factual findings for clear error." State v. Paro, 2012 VT 53, ¶ 2, ___ Vt. ___, 54 A.3d 516.
¶ 9. First, we consider defendant's argument under the Fourth Amendment to the U.S. Constitution. The U.S. Supreme Court has recognized exceptions to the general rule that searches must be undertaken "only pursuant to a warrant (and thus supported by probable cause . . .)" in certain categories of searches in which "special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable." Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (quotation omitted). Accordingly, the Court has allowed warrantless, work-related searches by supervisors of government employees' desks and offices without probable cause and warrantless searches by school officials of some student property without probable cause. Id. The Court has also held that "in certain circumstances government investigators conducting searches pursuant to a regulatory scheme need not adhere to the usual warrant or probable-cause requirements as long as their searches meet ‘reasonable legislative or administrative standards.' " Id. (quoting Camara v. Municipal Court, 387 U.S. 523, 538 (1967)).
¶ 10. In Griffin, the Supreme Court considered a warrantless search of a probationer conducted by probation officials pursuant to an administrative regulation allowing probation officers to search a probationer's home without a warrant as long as there are "reasonable grounds" to believe contraband is present. Id. at 870-71. The Court acknowledged that "[a] State's operation of a probation system, like its operation of a school, government office or prison, or its supervision of a regulated industry, likewise presents ‘special needs' beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements." Id. at 873-74. The Court noted that probation was on "a continuum of possible punishments ranging from solitary confinement in a maximum-security facility to a few hours of mandatory community service," and identified a number of different options between those extremes, "including confinement in a medium- or minimum-security facility, work-release programs, ‘halfway houses,' and probation—which can itself be more or less confining depending upon the number and severity of restrictions imposed." Id. at 874. The Court recognized that probationers, like parolees, "do not enjoy ‘the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special [probation] restrictions.' " Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 480 (1972)). Those restrictions are designed to promote the rehabilitative goals of probation, and to ensure that the community is not harmed by the probationer's being at large—goals that justify the exercise of supervision to ensure compliance with the restrictions. Id. at 875.
¶ 11. Given these considerations, the Court concluded that supervision "is a ‘special need' of the State permitting a degree of impingement upon privacy that would not be constitutional if applied to the public at large." Id. The Court recognized that a state's ability to impinge a probationer's privacy is not unlimited, but relying on a "special-needs" analysis, the Court approved the search that had been conducted by probation officials pursuant to a state regulation that authorized warrantless searches of probationers upon reasonable grounds. Id. at 880.
¶ 12. The Court subsequently considered the constitutionality of a warrantless search of a probationer's home by a law enforcement officer that was not conducted pursuant to a probation supervision scheme as in Griffin. United States v. Knights, 534 U.S. 112 (2001). The defendant in Knights had signed a probation condition that required him to "[s]ubmit his . . . person, property, place of residence, vehicle, personal effects, to search at anytime, with or without a search warrant, warrant of arrest or reasonable cause by any probation officer or law enforcement officer." Id. at 114. The Court did not extend the "special needs" rationale relied upon in Griffin, but instead applied a "general Fourth Amendment approach of examining the totality of the circumstances, with the probation condition being a salient circumstance." Id. at 118 (quotation and citation omitted). The Court determined that it was reasonable to conclude that the search condition would further the goals of rehabilitation and protecting society that it had identified in Griffin, and stressed that the clear and unambiguous probation condition "significantly diminished [the defendant's] reasonable expectation of privacy." Id. at 119-20. Balancing the defendant's privacy rights against the state's legitimate interests, the Court concluded that the Fourth Amendment required no more than a reasonable suspicion for a search of the probationer's home. Id. at 121. Because the state undisputedly had...
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