State of Vermont v. Patricia Kane
No. 2016-137
Supreme Court
2017 VT 36
On Appeal from Superior Court, Bennington Unit, Criminal Division. November Term, 2016. David A. Howard, J.
Alexander Burke, Bennington County Deputy State‘s Attorney, Bennington, for Plaintiff-Appellee.
Charles S. Martin of Martin & Associates, Barre, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. SKOGLUND, J. Defendant Patricia Kane appeals the trial court‘s conclusion that she violated a special probation condition requiring her to abide by electronic monitoring, specifically a global position system (GPS) monitor. On appeal, she claims thаt the condition was an improper delegation of authority, failed to notify her of the conduct constituting a violation, and violated her constitutional right to travel and her right to be free of unreasonable searches. Defendant also claims that, after the probation revocation hearing, the court improperly imposed defendant‘s original conditions, including the electronic monitoring condition. We affirm.
¶ 2. Because defendant took her son from his legal custodian and crossed state lines, the State charged her with second degree unlawful restraint under
¶ 3. After a contested sentencing hearing on October 2, 2014, the court sentenced defendant to two to five years, all suspended, except for one year. Additionally, the court imposed conditions A-S and several special conditions. Those special conditions included Condition 32, which required defendant to “abide by all electronic monitoring as directed by your probation officer,” and Conditions 33-35, which directed defendant to stay 500 feet from her son‘s school and residence, to avoid contacting her son without authorization from the court or the Department for Children and Families (DCF), and to obey all DCF orders. Defendant did not directly appeal these conditions.
¶ 4. After serving the unsuspended portion of her sentence, defendant was released to the community on the probation conditions imposed by the court. Under Condition 32, the Dеpartment of Corrections (DOC) required defendant to be electronically monitored using a GPS unit. The GPS unit used to monitor defendant has three components: the first part, the base charging station, connects to a standard electrical outlet and to defendant‘s telephone landline; the second component, an ankle bracelet, is a small black box that is permanently attached to defendant‘s ankle with a rubber strap; and the third piece is an XT unit, which must be worn by defendant unless it is being charged. To maintain a charge, the XT unit must be charged in the base charging station for two hours, twice a day, for a total of four hours. While the XT unit is charging, defendant must remain close to the base charging station.
¶ 5. The GPS unit reports defendant‘s location and any violations either via cellular service or via the base charging station‘s landline connection. If there is no cellular service—as is true at defendant‘s home—the GPS unit does not report defendant‘s location until the XT unit
¶ 6. Over the course of several months—November 3, 2015, December 31, 2015, and February 2, 2016—the State charged defendant with three violations of probation (VOPs) involving her GPS unit and curfew.1 A VOP revocation hearing on these three VOPs began on March 31, 2016.2
¶ 7. The State‘s case began with the testimony of defendant‘s first probation officer. The probation officer testified that the alleged November 2015 violation was based on defendant‘s failure to charge her XT unit twice daily and, as a result, defendant‘s failure to abide by all electronic monitoring as directed by the probation officer. Despite the charging requirement and
¶ 8. The next witness for the State was the probation officer‘s supervisor. The supervisor corroborated the probаtion officer‘s testimony that keeping the GPS unit charged was an ongoing issue. According to the supervisor, defendant first explained that she could not keep the unit charged because of a defective base charging station, so the probation office provided her with a new unit. The supervisor also reiterated that the electronic monitoring condition, as implemented with a GPS unit, was a necessary condition based on defendant‘s conviction.
¶ 9. Probationer‘s CCOs testified to similar effect. The first CCO testified that defendant failed to keep the XT unit charged, despite clear instructions that the unit should be charged twice daily, for two hours at a time. For example, on October 4, 2015, the CCO received an email alert that the XT unit‘s battery was dead; when the officer contacted defendant, she explained that a rabbit chewed the charger cord and that she was in Newport, Vermont, and unable to get a new charger at that time. Likewise, another CCO testified that, although he had many conversations with defendant about keeping her XT unit charged, a printed report demonstrated multiple instances when the unit was not charged. In general, moreover, all of the CCOs indicated that they never discovered any mechanical issue with the GPS unit when they inspected it.
¶ 10. Defendant‘s second probation officer testified to the basis for the February 2016 VOP charges, which also involved violating the rules of the electronic monitoring condition.
¶ 11. The second probation officer‘s testimony was reinforced by another CCO‘s testimony. This CCO testified that he began monitoring defendant in early January 2016 and, during an eighteen-day period, he noticed ninety-six violations. Primarily, these violations involved disconnecting the base charging station from the telephone landline and plugging only the defendant‘s home phone into the landline, including a period when the base charging station was disconnected from the landline for sixty-eight hours. According to the CCO, defendant explained that she disconnected the base charging station because the unit periodically made the sound of a fax machine on her home phone and this sound made the phone unusable. But the CCO indicated that he did not find any problem with the phone line or the base charging station when he tested thе line.
¶ 12. Defendant, who represented herself at the VOP hearing, did not present any evidence. In her closing arguments, she argued that the electronic monitoring condition was an improper delegation of authority to the probation officers, that the lengthy electronic monitoring period was excessive given that she was a nonviolent offender, and that her probation could not be revoked solely on the basis of the accumulating technical violations, without considering her intent and other behavior during the time period. The State countered by claiming the evidence established defendant had repeated opportunities to comply with the electronic monitoring requirement and continually failed to do so, including a number of lengthy instances when the GPS unit was disconnected. Given the repeated and substantial violations, the State requested that the court revoke probation and require defendant to serve the remainder of her sentence.
¶ 14. Probationer appealed to this Court. We review a trial court‘s conclusion that a defendant violated а probation condition in two steps. State v. Bostwick, 2014 VT 97, ¶ 11, 197 Vt. 345, 103 A.3d 476. First, we “examine the trial court‘s factual findings” and will “uphold them if supported by credible evidence.” Id. (quotation omitted). Next, we look to the trial court‘s legal conclusions, affirming them if they are “reasonably supported by the findings and [do] not constitute an erroneous interpretation of the law.” Id. (quotation omitted).
¶ 15. On appeal, defendant argues that Condition 32 was an improper delegation of authority to the probation officer, that the condition failed to notify defendant of the conduct constituting a violation, and that Condition 32 violated defendant‘s constitutional rights because the condition is a warrantless search and unduly burdens defendant‘s privacy and travel rights. In addition, defendant claims that the court erred when it continued defendant‘s original conditions, including the electronic monitoring condition, after the prоbation revocation hearing.
I. Improper Delegation
¶ 16. Defendant‘s first claim is a collateral attack on Condition 32 and is therefore barred. We have previously held “that a probationer is barred from raising a collateral challenge to a probation condition that he [or she] was charged with violating, where the challenge could have been raised on direct appeal from the sentencing order.” State v. Austin, 165 Vt. 389, 401, 685 A.2d 1076, 1084 (1996).
¶ 17. In this case, there was a contested sentencing hearing before the trial court in October 2, 2014. At this hearing, the court had the opportunity to take evidence and to make factual findings to support the conditions of probation, including Condition 32. Defendant did not appeal the condition or the adequacy of the court‘s findings in support of the condition. Cf. State v. Lucas, 2015 VT 92, ¶ 14, 200 Vt. 239, 129 A.3d 646 (noting that by failing to appeal potentially
¶ 18. Now, in this appeal, defendant claims that our precedent renders this condition invalid because Condition 32 allowed “the probation officer to independently establish conditions.” In particular, she references a line of cases beginning with State v. Moses that distinguish between permissible conditions, which provide probation officers with the authority to imрlement conditions, and impermissible conditions, which give probation officers open-ended authority to create probation conditions. 159 Vt. 294, 300, 618 A.2d 478, 482 (1992). By its language, however, this argument is a facial challenge to the imposition of Condition 32, and thus is barred as a collateral attack on the condition.5 Austin, 165 Vt. at 402, 685 A.2d at 1085; see also State v. Gauthier, 2016 VT 37, ¶ 13, — Vt. —, 145 A.3d 833 (“[D]efendant may not collaterally attack the conditions on a basis that could have been brought in a direct appeal.“)
¶ 19. Defendant‘s next claim is that she did not have notice of what conduct constituted a violation of Condition 32. This argument is not barred as an improper collateral attack. Gauthier, 2016 VT 37, ¶ 16 (“To the extent defendant‘s argument is about lack of notice, it is not an impermissible collateral challenge.” (quotation omitted)). Because defendant did not raise her ineffective notice claim below, however, we review the clаim for plain error. Id. “Plain error exists only in extraordinary situations where the error is obvious and strikes at the heart of defendant‘s constitutional rights or results in a miscarriage of justice.” Lucas, 2015 VT 92, ¶ 9 (quotation and alteration omitted). We conclude no error occurred here, let alone plain error.
¶ 20. “To be charged with violating probation, a defendant must have notice before the initiation of a probation revocation proceeding of what circumstances will constitute a violation of probation.” State v. Sanville, 2011 VT 34, ¶ 8, 189 Vt. 626, 22 A.3d 450 (quotation omitted) (mem.). To satisfy this due process requirement, offenders must be “given a certificate explicitly setting forth the conditions upon which he or she is being released.”
¶ 21. Here, based on the facts stated on the record, defendant had notice of the probation terms and simply chose not to abide by them. First, defendant signed the probation agreement containing Condition 32. The signed agreement demonstrates defendant knew that she was required to abide by all electronic monitoring as directed by her probation officer. Id. at 620, 547 A.2d at 1331. Similarly, defendant‘s multiple motions to modify her conditions or to vacate Condition 32 further evince her knowledge of Condition 32‘s requirements. And finally, although Condition 32 did not specifically require defendant to keep the GPS unit charged or to keep the unit plugged into her landline, these precise requirements were not only implied by the condition‘s
III. Constitutional Claims
¶ 22. Defendant‘s third argument is that, as applied,6 Condition 32 infringes on three of her state and federal constitutional rights: the right to travel; the right to privacy; and the right to be free from unreasonable searches and seizures. Defendant did not raise any of these arguments
A. Right to Travel
¶ 23. We conclude that, as applied to defendant, Condition 32 did not limit her right to travel and, as a result, there was no error. Based on the condition‘s plain language, Condition 32 is not a restriction on travel, but a requirement that she abide by electronic monitoring. State v. Galanes, 2015 VT 80, ¶ 13, 199 Vt. 456, 124 A.3d 800 (“When interpreting the language of a probation condition, we look first to the plain and ordinary meaning of the terms.“). Thus, defendant‘s travel claim rests on two assumptions allegedly implied in Condition 32: that, by traveling, defendant will be unable to charge her GPS unit or locate a landline if the unit is out of cell range and that, as a result, she is prohibited from travelling locally or internationally because travel will violate Condition 32.
¶ 24. But defendant, as a probationer, had no general right to travel beyond a specified area. State v. Levitt, 2016 VT 60, ¶ 25, 148 A.3d 204. Here, another of defendant‘s conditions—Condition I—already prohibited defendant from leaving the state without her probation officer‘s permission. More important, the record is devoid of any evidence suggesting that Condition 32 actually prevented defendant from traveling either in state or out of state. Rather, one of the CCOs testified that electronic monitoring specifically allowed defendant to travel, as long as the GPS unit remained charged. The concerns surrounding the GPS unit did not arise from defendant‘s travel, but from the inability to locate defendant when she traveled, if the GPS unit was not charged. Absent the ability to locate defendant, defendant‘s probation officers could not ensure that defendant would not violate the other special conditions prohibiting contact with her son or
B. Right to be Free of Unreasonable Searches
¶ 25. Defendant claims that Condition 32 was an unreasonable search under the Fourth Amendment of the U.S. Constitution and Article Eleven of the Vermont Constitution. Because our analysis follows slightly different paths, wе address defendant‘s Fourth Amendment and Article Eleven arguments separately.
i. Fourth Amendment
¶ 26. Placing a GPS device on a person‘s body to track the person‘s movements is a trespass that constitutes a search under the Fourth Amendment.7 See Grady v. North Carolina, — U.S. —, 135 S. Ct. 1368, 1370 (2015) (per curiam) (“[A] State also conducts a search when it attaches a device to a person‘s body, without consent, for the purpose of tracking that individual‘s movements.“).8 Whether or not a search is reasonable under the Fourth Amendment depends “on the one hand, the degree to which it intrudes upon an individual‘s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” United States v. Knights, 534 U.S. 112, 119 (2001) (quotation omitted); see also Grady, 135 S. Ct. at 1371 (“The Fourth Amendment prohibits only unreasonable searches. The reasonableness of a search depends on the totality of the circumstances, including the nature and purpose of the search and the extent to which the search intrudes upon reasonable privacy expectations.“).
¶ 28. On the other hand, recent federal decisions indicate that the nature of the search—constant GPS monitoring of defendant—may violate even a probationer‘s diminished expectation of privacy. Viewed under a certain light, for example, “[w]hat the technology yields and records with breathtaking quality and quantity is a highly-detailed profile, not simply of where we go, but by easy inference, of our associations—political, religious, amicable and amorous, to name only a few—and of the pattern of our professional and avocational pursuits.” United States v. Lambus, No. 15-CR-382, 2016 WL 7422299, at *15 (E.D.N.Y. Dec. 22, 2016) (quotation omitted). Under a different light, howеver, GPS monitoring is less invasive than surveillance techniques previously found to seriously infringe on privacy, such as “following [a person] around, peeking through his bedroom window, trailing him as he walks to the drug store or the local Starbucks, videotaping his every move, and through such snooping learning . . . whether he is a weekly church goer, a heavy
¶ 29. Given these competing arguments regarding the nature of the search, the State‘s purpose for continually monitoring defendant warrants careful review under federal precedent. Generally, the U.S. Supreme Court and courts applying U.S. Supreme Court precedent have concluded that the government‘s dual interests in monitoring probationers—rehabilitation and protecting society from future criminal violations—permits some intrusion into a probationer‘s privacy that would otherwise violate the Fourth Amendment. Knights, 534 U.S. at 591; Samson, 547 U.S. at 853 (“[T]his Court has repeatedly acknowledged that a State‘s interests in reducing recidivism and thereby promoting reintegration and positive citizenship among probationers and parolees warrant privacy intrusions that would not otherwise be tolerated under the Fourth Amendment.“). In the case of GPS monitoring, the particular question is whether the purpose of the search was to gather evidence for a new criminal investigation or, instead, to implement a legitimate probation-related objective.
¶ 30. For example, in United States v. Lambus, a federal case following Grady, the government used GPS data gathered from a parolee‘s ankle bracelet as probable cause for several wiretap applications. 2016 WL 7422299, at *2. The district court found this purpose to be particularly troubling, noting that the government cannot use “a parolee as a sort of fly paper, trailing him around the community for years, trolling for criminals.” Id. at *13. As a result, the court concluded that the government‘s shifting purpose—from monitoring the parolee to gathering evidence—significantly lessened the government‘s legitimate interests in the monitoring. Id. at *15. But in another case following Grady, the Seventh Circuit upheld a state requirement that offenders convicted of serious child sex offenses wear GPS units for the rest of their lives. Belleau, 811 F.3d at 937. Along with determining the search was “less intrusive than a conventional search,” the court noted that the main objective of the monitoring was not producing evidence for
¶ 31. In this case, the CCOs and probation officers repeatedly testified that the purpose of Condition 32 was to ensure defendant did not violate the special conditions prohibiting contact with her son. Beyond the State‘s general intеrest in rehabilitation and protection, such tracking measures were particularly relevant in this case because the underlying crime was a felony charge of removing a child from his rightful custodian and taking the child across state lines in violation of a court‘s custody order. Moreover, defendant‘s status as a probationer and her awareness of the electronic monitoring condition diminished her expectation of privacy. Thus, although we acknowledge that continual GPS monitoring may be particularly intrusive, under these circumstances, we conclude that Condition 32 is reasonable under the Fourth Amendment and that no error occurred in its application. See United States v. Miller, 530 F. App‘x 335, 338 (5th Cir. 2013) (“In light of [defendant‘s] background, any impairments of [defendant‘s] privacy due to the GPS monitoring are outweighed by the condition‘s benefits. These include effective verification of compliance with the other conditions of supervised release, deterrence of future crimes, and protection of the public.“).
ii. Article Eleven
¶ 32. Defendant also invokes Chapter I, Article Eleven of the Vermont Constitution,9 to support her claim that Condition 32 is an unreasonable infringement on her privacy rights. Although this Court has concluded that Article Eleven “provides its own independent protection that in many circumstances exceeds the protection available from its federal counterpart,” in this
¶ 33. GPS monitoring of a probationer is a search that falls within the scope of Article Eleven. See Grady, 135 S. Ct. at 1370; Mapp v. Ohio, 367 U.S. 643 (1961) (fully incorporating Fourth Amendment against States). In Vermont, unlike the federal balancing test, to conduct the GPS monitoring at issue here, the State must first establish a “special need” that justifies departing from the warrant and probable cause requirement. Bogert, 2013 VT 13A, ¶ 17; see also State v. Berard, 154 Vt. 306, 310-11, 576 A.2d 118, 120-21 (1990) (“Whatever the evolving federal standard, when interpreting Article Eleven, this Court will abandon the warrant and probable-cause requirements, which constitute the standard of reasonableness . . . , only in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable” (quotation and alteration omitted)).10 If such a special need exists, “we apply a balancing test to identify a standard of reasonableness, other than the traditional one, suitable for the circumstances.” Bogert, 2013 VT 13A, ¶ 17.
¶ 34. This Court previously determined that probation supervision is a “special need” that allows the State to depart from the warrant and probable cause requirements. State v. Lockwood, 160 Vt. 547, 558-59, 632 A.2d 655, 662-63 (1993). Thus, the crux of our analysis involves balancing defendant‘s “rehabilitative needs, concerns for protection of the community, and [defendant‘s] Article 11 interests” to identify the standard of reasonableness applicable under the circumstances. Bogert, 2013 VT 13A, ¶ 18; see also State v. Moses, 159 Vt. 294, 305, 618 A.2d 478
¶ 35. In Lockwood, after weighing the probationer‘s privacy rights against public protection concerns, we held that a search of a probationеr‘s home pursuant to a probation condition providing for warrantless searches was valid because the probation officers had “reasonable grounds” for the search. Id. at 559, 632 A.2d at 663 (“[I]f a probation term provides for warrantless searches and the terms of probation are narrowly tailored to fit the circumstances of the individual probationer, the . . . ‘reasonable grounds’ standard strikes the proper balance between probationer privacy rights and public protection concerns.“). In Bogert, by comparison, we upheld a search of a furloughed offender‘s home and computer without a warrant and without reasonable suspicion. 2013 VT 13A, ¶ 26.
¶ 36. In part, we distinguished these cases based on the different spots a probationer and a furloughed offender occupy along “the continuum of possible punishments.” Id. ¶ 21 n.4 (quotation omitted). In Bogert, for example, we determined that the State‘s interests in rehabilitation and public protection outweighed the furloughed offender‘s privacy expectations based on several factors. Id. ¶ 26. We acknowledged that “many of the factors identified . . . may also apply in the context of individuals on probation,” but we concluded that furloughed offenders were subject to even “stronger medicine” than parolees or probationers and that, as a result, Lockwood‘s reasonable ground standard did not apply. Id. ¶ 26 n.4; see also State v. Cornell, 2016 VT 47, ¶ 35, — Vt. —, 146 A.3d 895 (“[P]arolees have fewer expectations of privacy than probationers.“).
¶ 38. Moreover, even though defendant‘s privacy expectations may be stronger than a parolee‘s or furloughee‘s, defendant still does not possess privacy expectations equivalent to a person at liberty. At minimum, her ability to remain in the community is tied to her ability to abide by her probation conditions, curtailing her liberty interests and privacy expectations. Other factors further weaken defendant‘s privacy expectations. First, not only did defendant sign a document indicating that she would be subjеct to continued electronic monitoring, the court, her probation officers, and her CCOs explained the electronic monitoring condition to her multiple times. This agreement and the subsequent explanations put defendant on notice that she would be subject to
¶ 39. Finally, the State‘s interest in monitoring defendant is strong. Generally, GPS monitoring of probationers allows the State to prevent recidivism and encourages rehabilitation in the community. In the context of this case, the State possesses limited means to ensure that defendant does not violate her conditions. The only means other than a GPS unit that the State could use to ensure defendant‘s compliance with the conditions are routine checks by probation officers, routine searches of her home, strict curfews and limitations on travel, or direct and continual observation of defendant or her son. Unlike these techniques, which would severely curtail defendant‘s liberty, the GPS monitoring is narrowly tailored to fit defendant‘s circumstances while allowing defendant some freedom and autonomy. See Lockwood, 160 Vt. at 558, 632 A.2d at 662; Moses, 159 Vt. at 305, 618 A.2d at 484.
¶ 40. As applied to defendant, we conclude that the warrantless and suspicionless GPS monitoring did not violate Article Eleven. Under these circumstances, defendant‘s limited privacy rights as a probationer do not outweigh the narrowly tailored condition, the State‘s strong interest in ensuring defendant‘s compliance, and the circumscribed nature of the search.
IV. Reimposed Probation Conditions
¶ 41. Defendant‘s final claim is that, after the court determined defendant violated her probation, the court erred by reimposing the same standard probation conditions and special conditions, including the electronic monitoring condition. Specifically, defendant claims that the reimposed conditions lack a sufficient nexus to her crime, are not narrowly tailored to the crime committed, and are not supported by factual findings.
¶ 43. Moreover, the circumstances here fit within the justifications supporting the collateral attack rule. Defendant had notice and opportunity to respond to the original conditions and did not directly challenge her sentence. See Austin, 165 Vt. at 401, 685 A.2d at 1084. After the opportunity to appeal passed, the sentence and conditions were final. Defendant could not then privately determine that the sentencing order was incorrect and refuse to abide by the conditions. See United States v. Stine, 646 F.2d 839, 846 (3d Cir. 1981) (“Probationers are convicted offenders who have been given a second chance to demonstrate that they are capable of living in the community as law-abiding citizens. To allow them to make an independent determination of
Affirmed.
FOR THE COURT:
Associate Justice
Notes
[Condition 32] was a reasonable and necessary one on the specific facts of defendant‘s case. Considering her conviction was for taking her son out-of-state, keeping track of her movements is necessary for the proper supervision of her case. . . . This [] eliminates the need for even more restrictive conditions, such as strict curfews or strict limitations on travel over all. The condition is reasonable in that it is not unnecessarily harsh or excessive in achieving these goals. . . . [And e]ven if it were to be determined that the 4th Amendment applies here, the court finds this GPS condition is not an unreasonable search under that protection considering the above need for it.