State v. Patricia Kane , 2017 Vt. LEXIS 56 ( 2017 )


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    2017 VT 36
    No. 2016-137
    State of Vermont                                                 Supreme Court
    On Appeal from
    v.                                                            Superior Court, Bennington Unit,
    Criminal Division
    Patricia Kane                                                    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 that 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 13 V.S.A. § 2406(a)(3) and custodial
    interference pursuant to 13 V.S.A. § 2451. An information and accompanying affidavit were filed
    on January 28, 2014, the same day a warrant was issued for defendant’s arrest. Defendant was
    arrested and arraigned on January 31, 2014. Subsequently, on July 8, 2014, she pled guilty to the
    custodial interference charge, and the State dismissed the unlawful restraint charge.
    ¶ 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
    Department 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
    2
    links with the base charging station and the data can be uploaded using the base charging station’s
    landline connection. When defendant commits certain violations, such as remaining out past
    curfew or allowing the battery to deplete, a text message displays on the XT unit explaining how
    defendant can fix the issue; for example, the message instructs defendant to return home or to place
    the XT unit in the charger. Similarly, if defendant disconnects the base charging station’s landline
    connection and cellular service is unavailable in the area, a message indicates that the base
    charging station and XT unit are unable to connect. Violations such as these are recorded by the
    3M Electronic Monitoring Website, and an email alert is sent to a community corrections officer
    (CCO). CCOs are responsible for managing electronic monitoring and communicating with
    defendant and her probation officers regarding compliance. Generally, after receiving an email
    alert, a CCO will contact defendant and attempt to remedy the violation.
    ¶ 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
    1
    Previously, on March 25, 2015, defendant was charged with a VOP involving a different
    issue; defendant admitted to this violation on June 10, 2015, and her original probation conditions
    were reimposed.
    2
    On July 6, 2015, the State charged defendant with a VOP based on new criminal conduct.
    While this VOP charge was pending, the State charged defendant with the three VOPs involving
    her GPS unit. Because the July 6, 2015 VOP charge was based on new criminal conduct that had
    not been resolved, the merits of the March 31, 2016 VOP hearing were limited to allegations that
    defendant violated Condition 32—the electronic monitoring condition—and did not involve
    claims of new criminal behavior.
    3
    the probation officer’s attempts to address the charging problem without filing a VOP, defendant
    repeatedly and continually failed to charge the XT unit, including a period during which the unit
    was not charged for forty-eight hours. When questioned about her inability to keep the XT unit
    charged, defendant variously told the officer that it was not convenient to charge when she
    travelled, that her rabbit chewed the charger’s cord, and that she did not believe that she should be
    monitored with a GPS unit. Without the GPS unit, the probation officer testified that she could
    not effectively monitor defendant or ensure that defendant did not violate the condition requiring
    her to stay five hundred feet from her son’s school and residence.
    ¶ 8.    The next witness for the State was the probation officer’s supervisor.           The
    supervisor corroborated the probation 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.
    4
    According to this probation officer, defendant failed to comply with the electronic monitoring
    requirement almost daily. Moreover, like defendant’s first officer, the second officer testified that
    monitoring was required based on the circumstances of defendant’s conviction, specifically to
    ensure that she was not contacting her son.
    ¶ 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 the 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.
    5
    ¶ 13.   In an oral decision from the bench, the court found that defendant violated
    Condition 32, the electronic monitoring condition.        First, the court reiterated its previous
    conclusion that a legitimate purpose existed for imposing Condition 32 based on the nature of the
    offense and the need to ensure defendant did not contact her son without permission.3 The court
    found that credible and convincing evidence established that defendant violated this valid
    condition by willfully failing to abide by the monitoring requirements, including a number of times
    when the GPS unit was not working for lengthy periods of time. The court acknowledged that
    some instances when the GPS unit malfunctioned did not appear to be defendant’s fault. The court
    further concluded, however, that the length of time the GPS unit was unconnected could not be
    credibly attributed to a phone call or to a mistakenly charged battery, and instead demonstrated
    that defendant willfully chose not to abide by Condition 32. After finding defendant violated her
    probation conditions,4 the court revoked her probation but did not impose the full remaining
    sentence. Instead, given the facts of the underlying charge and defendant’s lack of criminal history,
    the court split defendant’s sentence again, so that the modified sentence imposed was two to five
    years, all suspended, except for eighteen months with credit for time served. In addition, the court
    3
    The court had reached this conclusion in a November 20, 2015 decision denying
    defendant’s motion to vacate Condition 32. In that decision, the court found that
    [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.
    4
    The record indicates that court found only two violations, but does not reflect the court’s
    determination regarding the third violation.
    6
    continued the same probation conditions as defendant’s original sentence, including the electronic
    monitoring condition.
    ¶ 14.   Probationer appealed to this Court. We review a trial court’s conclusion that a
    defendant violated a 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 probation 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
    7
    broad probation condition, defendant gave up ability to challenge adequacy of findings). Further,
    defendant filed multiple motions to modify her sentence, which the court denied, and most recently
    filed a motion to vacate Condition 32. As described above, on November 20, 2015, the court
    denied defendant’s motion to vacate, reiterating that Condition 32 was reasonable and necessary
    based on the specific facts of the case. Again, defendant did not appeal this determination. Thus,
    defendant has had several opportunities to challenge the validity of the condition. See 
    Austin, 165 Vt. at 402
    , 685 A.2d at 1085.
    ¶ 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
    implement 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.”)
    5
    To the limited extent that defendant argues her probation officer exceeded the scope of
    Condition 32 when implementing the electronic monitoring condition, we do not agree. Condition
    32 indicates that defendant “must abide by all electronic monitoring as directed by [her] probation
    officer.” The plain language of this condition gives the probation officer the authority to direct
    defendant’s electronic monitoring, and defendant did not abide by the officer’s directions,
    including the officer’s requirement that the GPS unit remained charged. Cf. State v. Bostwick,
    
    2014 VT 97
    , ¶ 19, 
    197 Vt. 345
    , 
    103 A.3d 476
    (reversing violation finding where probation officer’s
    direction was “nonexistent”).
    8
    II. Lack of Notice
    ¶ 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 claim 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.” 28 V.S.A. § 252(c). But we
    have also held that fair notice may be “provided by the instructions and directions given to
    defendant by his or her probation officer,” as well as the probation agreement. State v. Peck, 
    149 Vt. 617
    , 619-20, 
    547 A.2d 1329
    , 1331 (1988).
    ¶ 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
    9
    focus on electronic monitoring, but explicitly conveyed to defendant on numerous occasions by
    her probation officers and CCOs, prior to the State filing the VOP charges. The directions provided
    by her probation officers and CCOs sufficiently warned defendant of the conduct that would cause
    a violation. See 
    id. at 619-20,
    547 A.2d at 1331 (affirming violation of condition requiring
    participation in counseling “as directed by his probation officer” where defendant did not complete
    counseling); see also State v. Emery, 
    156 Vt. 364
    , 373, 
    593 A.2d 77
    , 82 (1991) (upholding
    violation of condition when “defendant received a general warning from the text of his probation
    agreement that he would be required to complete any rehabilitation program chosen by his
    probation officer” and later received more specific instructions from his probation officer). Under
    these circumstances, we conclude that defendant had notice of the conduct giving rise to a
    violation, and that the court did not err when it determined that defendant knowingly failed to
    abide by Condition 32.
    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
    6
    Defendant also claims that Condition 32 is facially invalid. But, like defendant’s
    improper delegation claim, her argument that Condition 32 is facially unconstitutional is barred as
    a collateral attack on a probation condition. In State v. Austin, during his probation revocation
    hearing, the defendant raised, for the first time, a constitutional challenge to a urinalysis condition
    on the basis that the condition infringed on his right to be free from unreasonable searches and
    seizures. 
    165 Vt. 389
    , 401, 
    685 A.2d 1076
    , 1084 (1996). Because “the [constitutional] challenge
    could have been raised on direct appeal from the sentencing order,” we concluded that the
    defendant’s challenge was barred. Id. at 
    402, 685 A.2d at 1085
    . But we also noted in Austin that
    this bar was limited to “only those circumstances where, as here, the probationer could have raised
    a facial challenge to the condition’s constitutionality at the time the condition was imposed.” 
    Id. at 401
    n.3, 685 A.2d at 1084 
    n.3; see also State v. Galanes, 
    2015 VT 80
    , ¶ 9 n.5, 
    199 Vt. 456
    , 
    124 A.3d 800
    (“The prohibition applies only where the probationer is making a facial challenge to the
    condition. To the extent defendant here is making a constitutional challenge, it is an as-applied
    challenge not prohibited by Austin.”). Thus, we address defendant’s as applied challenge, but do
    not consider her facial challenge.
    10
    below; therefore, we review her constitutional claims for plain error. State v. Gleason, 
    154 Vt. 205
    , 211, 
    576 A.2d 1246
    , 1249 (1990) (concluding that, where defendant failed to raise
    constitutional argument during revocation hearing, “the trial court’s decision will stand unless the
    revocation of defendant’s probation for the violation of [the special condition] constitutes plain
    error”).
    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
    11
    coming within five hundred feet of his home or school. Therefore, because defendant did not have
    a right to travel and Condition 32 did not actually restrict defendant’s travel, there was no error.
    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, we 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.”).
    7
    The Fourth Amendment states: “The right of the people to be secure in their persons,
    houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and
    no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and
    particularly describing the place to be searched, and the persons or things to be seized.” U.S.
    Const. amend. IV.
    8
    Because we conclude the search was reasonable under the Fourth Amendment, we do
    not address whether defendant’s acceptance of the probation conditions constituted a waiver of her
    Fourth Amendment rights. See United States v. Knights, 
    534 U.S. 112
    , 118 (2001).
    12
    ¶ 27.   In examining defendant’s privacy expectations under Fourth Amendment
    jurisprudence, her status as a probationer is a salient part of the inquiry. 
    Knights, 534 U.S. at 119
    .
    This is because probationers do not possess the absolute liberty enjoyed by law-abiding citizens.
    
    Id. Instead, probation
    is “one point . . . on a continuum of possible punishments ranging from
    solitary confinement in a maximum-security facility to a few hours of mandatory community
    service.” Griffin v. Wisconsin, 
    483 U.S. 868
    , 874 (1987). Thus, because of the probation
    restrictions imposed on defendant, such as conditions A-S and the special conditions, defendant
    had a diminished expectation of privacy. That privacy expectation was further reduced by the text
    of Condition 32, which clearly warned defendant that she would be subject to electronic
    monitoring when she agreed to the condition, and by the CCOs repeated reminders that defendant
    must abide by the condition. See 
    Knights, 534 U.S. at 119
    -120; Samson v. California, 
    547 U.S. 843
    , 852 (2006) (“[Parolee] signed an order submitting to the condition and thus was
    unambiguously aware of it.” (citation omitted)).
    ¶ 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, however, 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
    13
    drinker, a regular at the gym, an unfaithful husband.” Belleau v. Wall, 
    811 F.3d 929
    , 935 (7th Cir.
    2016).
    ¶ 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
    14
    law enforcement purposes, but deterring future offenses. 
    Id. at 935,
    937; see also United States v.
    Porter, 
    555 F. Supp. 2d 341
    , 345 (E.D.N.Y. 2008) (upholding condition in part because “GPS
    condition is reasonably related to the objectives of sentencing”).
    ¶ 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 interest 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
    9
    Article Eleven states: “That the people have a right to hold themselves, their houses,
    papers, and possessions, free from search or seizure; and therefore warrants, without oath or
    affirmation . . . ought not to be granted.” Vt. Const. ch. I, art. 11.
    15
    case, Article Eleven does not mandate a different result than the Fourth Amendment. State v.
    Bogert, 
    2013 VT 13A
    , ¶ 17, 
    197 Vt. 610
    , 
    109 A.3d 883
    (quotation omitted).
    ¶ 33.   GPS monitoring of a probationer is a search that falls within the scope of Article
    Eleven. See Grady, __ U.S. __, 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
    10
    This “special need” analysis arose from federal case law; specifically, Griffin v.
    Wisconsin established that probation supervision was a “special need” that made the warrant
    requirement impracticable and justified replacing the “probable cause” standard with a “reasonable
    grounds” standard. 
    483 U.S. 868
    , 875-76 (1987). Although the U.S. Supreme Court has shifted
    away from the “special need” framework in favor of a “totality of the circumstances” standard, see
    Grady, __ U.S. __, 135 S. Ct. at 1370, Vermont continues to follow the Griffin framework.
    
    16 A.2d 478
    , 484 (1992) (remanding so that condition is based on “findings that set a proper balance
    between probationer’s privacy rights and the state’s special needs and is [] narrowly tailored to
    reflect that balance”). In particular, the resolution of this balancing hinges on the weight given
    defendant’s status as a probationer as compared to the nature of the privacy intrusion. And two
    cases guide the outcome: State v. Lockwood and State v. Bogert.
    ¶ 35.   In Lockwood, after weighing the probationer’s privacy rights against public
    protection concerns, we held that a search of a probationer’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.”).
    17
    ¶ 37.   In this case, although we recognize that defendant is on probation and thus enjoys
    a greater liberty interest than parolees or furloughees, we do not consider that fact to be dispositive
    when weighed along with the nature of the search. Defendant agreed to a clear probation condition
    allowing continual electronic monitoring. The critical distinction from Lockwood and Bogert is
    that this condition did not authorize warrantless searches of defendant’s home or possessions.
    Because a person has a heightened expectation of privacy in his or her home, Article Eleven affords
    a special sanctity to the home. See State v. Bryant, 
    2008 VT 39
    , ¶ 12, 
    183 Vt. 355
    , 
    950 A.2d 467
    (“We have often noted the significance of the home as a repository of heightened privacy
    expectations, and have deemed those heightened expectations legitimate.” (citation omitted)). As
    a result, warrantless searches of the home are particularly offensive. State v. Blow, 
    157 Vt. 513
    ,
    519, 
    602 A.2d 552
    , 556 (1991). By comparison, the GPS monitoring defendant is subject to is
    neither a physical search of her home and possessions nor a particularly intrusive technological
    search. For example, although defendant must continually wear the GPS unit, the unit only
    periodically uses the landline to report defendant’s presence in her house, it does not continually
    report defendant’s physical position in her home, record her conversations, or examine her
    possessions for contraband.      Cf. 
    id. at 519-20,
    602 A.2d at 556 (holding that monitoring
    defendant’s conversation with electronic audio transmitter violated Article Eleven).
    ¶ 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 subject 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
    18
    electronic monitoring to further the State’s rehabilitative and public-protection goals. Further,
    because the electronic monitoring reasonably related to the State’s special need based on
    defendant’s underlying offense, defendant knew that her privacy would be reduced to ensure the
    State could ascertain her location relative to her son.
    ¶ 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.
    19
    ¶ 42.   Properly speaking, the conditions were not reimposed, but merely continued as part
    of defendant’s original sentence. Thus, we conclude that defendant’s three challenges to her
    probation conditions are collateral attacks on the original sentence and are barred. 
    Austin, 165 Vt. at 401
    , 685 A.2d at 1084. Under 28 V.S.A. § 304(b)(5), a trial court may “[c]ontinue the
    probationer on the existing sentence, but require the probationer to serve any portion of the
    sentence.” In this case, after determining defendant violated her probation, the trial court required
    defendant to serve an additional portion of her sentence, but maintained her original probation
    conditions. As such, defendant’s “challenge could have been raised on direct appeal from the
    sentencing order” and is now barred. 
    Austin, 165 Vt. at 401
    , 685 A.2d at 1084. This is particularly
    true here, where defendant’s three facial claims could have been brought in the original
    proceedings,11 the court imposed no new conditions after the probation revocation hearing,12 and,
    as detailed above, defendant filed multiple motions to modify her conditions.
    ¶ 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
    11
    As discussed above, defendant is not prohibited from bringing a challenge to conditions
    as applied. State v. Rickert, 
    164 Vt. 602
    , 603, 
    665 A.2d 887
    , 888 (1995) (mem.) (reaching
    constitutional challenges on appeal from revocation order); see also United States v. Beech-Nut
    Nutrition Corp., 
    925 F.2d 604
    , 607 (2d Cir. 1991) (reaching due process challenge “upon
    application of the conditions”).
    12
    We do not determine whether the collateral attack bar applies to new conditions imposed
    after a probation revocation hearing.
    20
    which judicial orders to follow and which to ignore is simply inconsistent with the premises of
    probation.”). After accepting the conditions with her original sentence, defendant could not
    facially challenge their continuation as part of her sentence.
    Affirmed.
    FOR THE COURT:
    Associate Justice
    21