State v. Owen Cornell

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@vermont.gov 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.
2016 VT 47
No. 2015-100
State of Vermont Supreme Court
On Appeal from
v. Superior Court, Bennington Unit,
Criminal Division
Owen Cornell January Term, 2016
David A. Howard, J.
Erica A. Marthage, Bennington County State’s Attorney, and Christina Rainville, Chief Deputy
State’s Attorney, Bennington, for Plaintiff-Appellee.
Matthew F. Valerio, Defender General, and Rebecca Turner, Appellate Defender, Montpelier,
for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. DOOLEY, J. Defendant, a convicted sex offender, appeals the imposition of six
probation conditions ordered by the sentencing court. Defendant contends four of the
conditions—that he reside or work where his probation officer approves, attend counseling
programs ordered by his probation officer, refrain from violent and threatening behavior, and
avoid areas where children congregate—have already been deemed unlawful by this Court and
should be struck down. He further argues that the remaining two conditions—giving his
probation officer warrantless search and seizure privileges and banning home computer and
internet usage—impose unduly restrictive and invasive terms that infringe upon defendant’s
liberty, privacy, and autonomy rights. We agree with defendant as to the residence and
employment, counseling, search and seizure, and home computer and internet use conditions,
and remand to the sentencing court for further justification, amendment, or elimination. We
affirm the imposition of the conditions prohibiting violent or threatening behavior and restricting
access to areas where children congregate.
¶ 2. Defendant was convicted of lewd and lascivious behavior with a twelve year old
boy in 2013 and sentenced to two to six years in prison, with all suspended except for twenty
months with credit for time served. The court also imposed multiple probation conditions.
Defendant appealed these conditions to this Court, arguing that the “boilerplate” restrictions
were not sufficiently individualized, violated his due process rights on account of their vagueness
and ambiguity, impermissibly delegated court authority to his probation officer, and were unduly
restrictive and invasive in violation of substantive due process. State v. Cornell, 2014 VT 82,
¶ 1, 197 Vt. 294, 103 A.3d 469. Although defendant had already raised these issues at the trial
court level in response to a limited remand from this Court, the court did not address them,
stating its authority was “limited to clarifying the conditions it had already imposed” and
advising that defendant’s remedy “lies in his appeal.” Id. ¶¶ 1, 5. However, we determined that
the motion to reconsider the imposed conditions was properly before the court and remanded in
order that the court could “resolve defendant’s challenges.” Id. ¶ 1.
¶ 3. On remand, the court took testimony from defendant’s probation officer and
considered defendant’s supplemental filings, in which he proposed alternative conditions. On
January 26, 2015, the court issued an order replacing the probation conditions that had been
previously ordered. The order imposed twenty-one probation conditions, including, over
defendant’s objections, the following:
8. If the probation officer or the court orders you to go to any
counseling or traiing (sic) program, you must do so. You must
participate to the reasonable satisfaction of the probation officer.
...
2
10. Violent or threatening behavior or conduct is not allowed at
any time.
...
15. You shall not purchase, possess, or use pornography or
erotica of minor children. You may not access or loiter or go to
places where children are known to congregate, including parks,
playgrounds, elementary, or high school grounds, unless approved
in advance by your probation officer or designee.
16. You are required to give your probation officer or designee
search and seizure privileges to search without a warrant and
confiscate if necessary illegal drugs, pornography or erotica of
minor children, digital media, computers, or any other item which
may constitute a violation of your probation terms.
...
18. You must not own or possess a computer at your residence
and you may not access the internet at your place of employment
or anywhere else unless approved in advance by your probation
officer or designee. You will allow your probation officer or
designee to monitor your computer/internet usage, including
through the use of specific software for monitoring sex offenders.
You will also pay any reasonable charge associated with this.
19. You shall reside/work where your probation officer or
designee approves.
¶ 4. On March 4, 2015, the court conducted a third hearing and made oral findings in
support of the January 2015 probation order. Defendant’s timely appeal, filed after the court’s
findings and probation conditions were issued, followed.
¶ 5. On appeal,1 defendant argues (1) that conditions 8, 10, 15, and 19 have already
been deemed unlawful and should not have been imposed; and (2) that conditions 16 and 18
impermissibly infringe on defendant’s liberty, privacy, and autonomy rights, as guaranteed by
1
In its brief to this Court, the State has asked us to take judicial notice of the November
13, 2015 Decision of Violation of Probation. We deny this request. The circumstances
addressed in that decision are based on alleged facts that were not before the trial court at
sentencing and as such, are immaterial to this appeal.
3
the United States and Vermont Constitutions, and were imposed without connection to
defendant’s offense or rehabilitation.2
¶ 6. A sentencing court has authority to establish probation conditions that are
reasonably related to the crime committed and have been deemed necessary to “ensure that the
offender will lead a law-abiding life.” 28 V.S.A. § 252(a). Probation conditions may not be
“unduly restrictive of the probationer’s liberty or autonomy.” State v. Whitchurch, 155 Vt. 134,
137, 577 A.2d 690, 692 (1990) (quotation omitted). “Although the trial court has discretion in
determining appropriate conditions of probation, we are required to find error where . . .
discretion has been exercised to a clearly unreasonable extent.” State v. Moses, 159 Vt. 294,
297, 618 A.2d 478, 480 (1992) (citation omitted).
¶ 7. Before considering defendant’s specific challenges, we make one general
observation. At sentencing, the State repeatedly took the position that the probation conditions
were necessary for all sex offenders and had been developed and drafted specifically for this
purpose. The witness that the State provided, however, was a local probation officer who
apparently had no part in formulating the conditions and was not an expert on the State’s
general-need proposition. His testimony often fell back on the general proposition that a
condition was needed because defendant is a sex offender, with no attempt to tie the specific
condition to defendant’s individual circumstances and no support for the general proposition.
We note here the language of 28 V.S.A. § 252(b)(18): a court “shall not impose a condition
prohibiting the offender from engaging in any legal behavior unless the condition is reasonably
related to the offender’s rehabilitation or necessary to reduce risk to public safety.” (emphasis
2
Defendant’s third argument, that the sentencing court failed to meet the requirements of
28 V.S.A. § 252(c), was withdrawn after the court signed the January 27, 2015 probation order,
rendering the issue moot.
4
added). At a minimum therefore, the statute requires more than the bare recitation that a
defendant is a sex offender and that incursions onto his liberty are justifiable on that basis alone.
¶ 8. We can quickly address condition 19 and so consider it first. Defendant
challenges a condition that states “[Y]ou shall reside/work where your probation officer or
designee approves,” on the grounds that this issue has already been determined by State v.
Freeman, 2013 VT 25, 193 Vt. 454, 70 A.3d 1008. In that case, we held that the imposition of a
near-identical condition3 “[w]ithout any findings indicating the necessity of such a broad
condition in this particular case” was plain error. Id. ¶ 17. Defendant argues that the sentencing
court’s findings in this instance were insufficient to justify the imposition of this broad condition.
We agree.
¶ 9. Although the State distinguishes this case from Freeman on the grounds that the
court in this instance made “specific findings” to justify the condition, we believe the findings,
and the evidence on which they were made, are so sparse as to be effectively absent. Here, there
was evidence from defendant’s probation officer and findings based on that evidence. In the
hearing on probation conditions held December 3, 2014, defendant’s probation officer testified
that condition 9 was necessary because officers “want to make sure [defendant is not living] near
a school, a daycare center, where minors might be present” and ensure that “he’s not working at
a place . . . like a video shop or something like that or . . . a toy store or places which mainly is a
theme for children.” In a March 4, 2015 hearing held specifically to permit the court to “put on
the record its reasoning and explanation for probation conditions that it had imposed,” the trial
judge proffered the following to justify condition 19:
[W]e feel that’s appropriate as long as it’s kind of understood that
there’s sort of a reasonable [intent] to that. That a probation
officer could not just randomly, without any reasonable grounds
3
Condition 40 in Freeman stated “Def shall reside/work where PO or designee approves.
Def shall not change residence/employment without prior permission of PO or designee.” 2013
VT 25, ¶ 6.
5
say someone couldn’t work somewhere or reside somewhere, but
with the reasonableness standard, assume that it would be
important to be able to restrict residence so that it would not be in a
situation where minors might be easily contacted.
And work, . . . that there has to be some ability for the probation
officer to decide that some work that might involve youthful
children or something could be restricted.
¶ 10. We deem these findings insufficient under Freeman for two reasons. First, the
trial judge’s statements constrain the condition only insofar as they impose a general—and
assumedly pre-existing—reasonableness requirement; they do not reflect a narrow tailoring,
based on specific facts about defendant’s history, offense, or future risk, that indicates the need
for such a broad condition “in this particular case.” Freeman, 2013 VT 25, ¶ 17 (emphasis
added). The recent case of State v. Campbell demonstrates this point in addressing essentially
the same condition with respect to place of employment. 2015 VT 50, __ Vt. __, 120 A.3d 1148.
In that case, the trial judge, based on reasoning similar to that of the trial judge in this case,
added to the condition that approval not be unreasonably withheld. We held that the
reasonableness requirement was not enough to save the condition because “it does nothing to
appropriately guide defendant’s probation officer’s decision-making process as it relates to
defendant’s proposed locations of employment.” Id. ¶ 29. We found it was not sufficiently
“fine-tuned to the specific rehabilitative and preventative goals” in the case. Id. (quotation
omitted). To the extent that the trial judge’s remarks added a general reasonableness
requirement, it is not sufficient under Campbell.
¶ 11. Second, we find the deficiency in the evidence and the findings to be similar. The
probation officer testified that the concern about the place of defendant’s employment or
residence was whether the location was close to areas where significant number of children will
be. Rather than seeking a probation condition related to the specific concern and related to this
defendant, the proposed condition was broad and general, apparently sought for all sex offenders
6
irrespective of the nature of the criminal conduct. The trial court’s acceptance of the proposed
condition again relied on the rationale that the condition had to keep defendant away from
children but did not explain why such a broad and general grant of control to the probation
officer was justified.
¶ 12. The evidence and rationale in this case is far different, and much weaker, than the
evidence and rationale in the one decision that has found adequate justification for a broad
approval requirement for residence location, State v. Petitt, 2014 VT 98, 197 Vt. 403, 104 A.3d
85. In Petitt, the trial court found that defendant would do best if he was supervised and
working. For this reason, the condition was designed to ensure that, unless he was unable to do
so, defendant lived with his parents. Id. ¶ 19. We concluded that the residence requirement was
“sufficiently fine-tuned to the specific rehabilitative and preventative goals” in the case. Id.
¶ 13. While we acknowledge the State’s argument that it would be unfair to expect a
court to “predict all of the possible risks that can develop,” and craft an itemized list of
prohibited places of residence or work accordingly, we also recognize that where fundamental
rights are involved, “special care should be used to avoid overbroad or vague restrictions.”
Whitchurch, 155 Vt. at 137, 577 A.2d at 692 (citation omitted). As we concluded in Campbell,
2015 VT 50, ¶ 26, we find here that the court could craft a narrower condition that anticipated
future issues while still providing flexibility. Indeed, the three other conditions that the court
imposed dealing with contact with children4 demonstrated that reality. We therefore strike
condition 19 and remand the matter for additional justification, revision, or removal.
¶ 14. We turn next to condition 8, which requires a defendant to attend any counseling
or training program ordered by their probation officer or the court. Defendant argues that this
4
The three are conditions 15, 16, and 21. They state that defendant cannot go to places
where children are known to congregate, cannot have contact with males under the age of
sixteen, and cannot work or volunteer for any organization that primarily provides services to
persons under the age of sixteen.
7
Court has already decided this question in State v. Putnam, ruling such a condition unlawful on
the grounds that it delegated impermissible “open-ended authority” from the trial court to a
probation officer. 2015 VT 113, ¶ 71, __ Vt. __, 130 A.3d 836 (quotation omitted). We agree
and remand.
¶ 15. In Putnam, we considered an identically-worded probation condition imposed
upon a defendant convicted of disorderly conduct and grossly negligent operation. Id. ¶¶ 1, 26.
We concluded that imposition of the condition amounted to plain error, as it constituted an
“overbroad delegation of authority not supported by findings.” Id. ¶ 70. Such a delegation
deprived defendant of a “substantial right” and impugned the integrity of the judicial process by
affording probation officers “complete discretion” in deciding which programs a defendant
would be required to attend. Id. ¶¶ 73, 70. Moreover, we noted that while the court had made
particularized findings regarding the defendant’s counseling needs—and accordingly, had
imposed a separate condition requiring participation in mental health counselling and anger
management—there were no comparable findings justifying granting an officer “unfettered
discretion” to order other counseling or training. Id. ¶¶ 70, 71. Finally, we noted that several of
our sister states and federal courts had similarly concluded that such a condition “run[s] afoul of
separation-of-powers principles.” Id. ¶ 72 (citing cases Eighth and Eleventh Circuits and
Supreme Courts of South Dakota and Florida).
¶ 16. In this case, the court imposed two conditions related to sex offender treatment.
Condition 11 required defendant to “successfully enroll, participate in, and complete a
program/treatment for sex offenders as directed by your probation officer or designee and as
approved by the Department of Corrections and assume the cost of your treatment.” Condition
12 required defendant to “participate fully in the Vermont Treatment Program for Sexual
Abusers during the course of your unsuspended sentence. Failure to complete such program
while incarcerated may result in a violation of your probation.” The probation officer testified
8
that the broad language of condition 85 was intentional to give flexibility to respond to unknown
challenges:
[I]t’s written in a way [that is] not specific to any particular thing.
It’s anything that could happen along the way. We may ask an
individual to do some screening and—for substance abuse—but
then we find out the screener says no, it needs to be, you know, we
can’t, you know, we need to have the flexibility and latitude to
address their risk need areas, and this allows us to do that.
¶ 17. The trial judge recognized the presence of the other conditions and that defendant
had already completed most of them, but imposed the broad general delegation condition in case
defendant failed in rehabilitation. Again, the justification for condition 8 was based on the fact
that defendant was a sex offender:
The several conditions about counseling or programming; we
realize Mr. Cornell has actually done most of those, but we still
find them appropriate were there to be any issues of his faltering in
his efforts. That sex offenders fall into a fairly special category of
counseling. That has been shown to be successful in trying to
reduce any reoffending.
¶ 18. The trial court already had adequate remedies if defendant failed in completing
the sex offender treatment programs. While it is permissible under Putnam to delegate authority
to a probation officer to select among a pre-determined list of programming options relevant to a
defendant’s particular needs—for example, substance abuse counseling or anger management—
we cannot approve a delegation of “full authority” to impose counseling or training purely on the
grounds that defendant may falter in his commitment to pre-existing programming. Putnam,
2015 VT 113, ¶ 72. A court that has failed to identify any particular counseling or training needs
cannot categorically impose such a requirement upon all sex offenders. See, e.g., State v.
Lockwood, 160 Vt. 547, 558, 632 A.2d 655, 662 (1993) (observing that probation conditions
must be “narrowly tailored to fit the circumstances of the individual probationer” (quotation
5
Although referred to in the January 27, 2015 order as condition 8, the condition had
previously been listed as condition K, and is described accordingly in the transcript of the
January 8 hearing.
9
omitted)). Accordingly, we remand to the trial court to either 1) revise the language of condition
8 to constrain and guide a probation officer’s implementation of the condition or 2) strike it
entirely.
¶ 19. Third, we consider condition 10, which precludes any “violent or threatening
behavior.” Defendant contends this condition also constitutes an impermissible delegation of
court authority to the probation officer. Specifically, defendant argues that because his probation
officer has interpreted the condition to grant the power to impose no-contact conditions for
adults,6 the condition infringes upon his substantive due process and First Amendment rights
“relating to personal liberties, speech, and associations.” Additionally, defendant maintains the
trial court’s findings regarding this broadly worded condition were purely “conclusory,” as the
trial judge justified the imposition of condition 10 by stating it was “one of the essence of being
on probation.” We disagree and affirm.
¶ 20. Although defendant claims that identically worded conditions have been
“repeatedly struck down by this Court,” we have never specifically deemed a condition
prohibiting violent and threatening behavior to be, in and of itself, unlawful. For example, in
State v. Sanville, we reversed a revocation of a defendant’s probation for a violation of an
identical condition. 2011 VT 34, 189 Vt. 626, 22 A.3d 450 (mem.). We concluded that where
defendant was “mouthy and obnoxious” in “expressing his displeasure at a perceived injustice,
id. ¶ 10, the condition “failed to thoroughly apprise [the] defendant of the conduct prohibited.”
Id. ¶ 1. We did not, however, rule that the condition was prima facie invalid; indeed, we noted
6
This interpretation stems from an incident related by defendant’s probation officer to
the sentencing court. A police officer telephoned the probation officer to inform him he had
received a complaint from a high school classmate of defendant who had complained that
defendant “went on his mother’s computer on some sort of Facebook site, and tried to get in
touch with her, and she felt threatened by that” because she has a one-year old child and was
aware defendant was on the sex offender registry. Under the auspices of condition 10, the officer
gave defendant a verbal warning that his conduct constituted threatening behavior and alerted
him that if he tried to contact the woman again, he would “impose a different type of
punishment.”
10
that violent, as opposed to threatening, behavior may be “more self-evident,” and rejected only
the proposition that the language could fairly warn a probationer that he “must curb his tongue in
any heated exchange or risk further incarceration,” a proposition that would “stretch its meaning
impermissibly.” Id. ¶¶ 9, 10. Further, in the concurrence in State v. Johnstone, 2013 VT 57,
¶¶ 16-17, 194 Vt. 230, 75 A.3d 642, which relied upon Sanville to find that an identical
probation condition provided inadequate notice to a probationer who was “mouthing off” to his
girlfriend, it was noted that this condition has been “challenged primarily” in cases involving
behavior that is “primarily or exclusively speech.” Id. ¶ 20 (Dooley, J., concurring). As this
standard form condition is not imposed or authorized by statute, but instead is “entirely within
the control of the judiciary,” the concurrence called for its amendment to “eliminate the
interpretation questions” that have dogged its enforcement. Id. ¶ 19, 22 (Dooley, J., concurring).
¶ 21. Given our case law, we cannot say that condition 10 is an illegal infringement
upon due process and First Amendment rights requiring invalidation. The condition includes no
delegation of authority to the probation officer, and the court remains the final arbiter of its
meaning. We find that the incident testified to by the probation officer and highlighted by
defendant does not support invalidation of the condition. Although the incident involved only
attempted contact via a social media website—in other words, oral, rather than physical,
contact—the officer “did not file a violation of probation complaint against Mr. Cornell” but
instead gave him a verbal warning, and stated that if he “[did] it again, then [he] would impose a
different type of punishment.” Such circumstances are therefore distinguishable from those of
Sanville and Johnstone, where the defendants’ probation officers filed violation of probation
(VOP) complaints against them following the incidents of alleged threatening behavior.
Sanville, 2011 VT 34, ¶ 3; Johnstone, 2013 VT 57, ¶¶ 3-5.
¶ 22. Although we must affirm the validity of the condition, we continue to recognize
that the wording of the condition has frequently caused it to be narrowly interpreted to ensure
11
that the probationer has fair warning of its meaning. In affirming this condition on its face, we
do not mean to suggest that the State could pursue a violation of this condition on the basis of the
type of conduct for which defendant’s probation officer threatened punishment. We ask trial
judges to clarify this probation condition by incorporating language that “anticipates the
interpretation difficulties and defines more specifically the coverage of the condition.”
Johnstone, 2013 VT 57, ¶ 21 (Dooley, J., concurring).
¶ 23. The final condition defendant challenges on the grounds that it has already been
deemed unlawful is condition 15, which provides “You may not access or loiter or go to places
where children are known to congregate, including parks, playgrounds, elementary and high
school grounds, unless approved in advance by your probation officer or designee.” Defendant
argues that condition 15 is “similar and legally indistinguishable” to that struck down in State v.
Rivers, 2005 VT 65, 178 Vt. 180, 878 A.2d 1070, and so should be invalidated for impermissible
vagueness. We disagree and affirm.
¶ 24. We have recently addressed whether the language “where children congregate” is
overly vague and fails to put defendants on notice as to what acts may amount to probation
violations. See State v. Gauthier, 2016 VT 37, __ Vt. __, __ A.3d __.7 Although Gauthier arose
in a different context, in a probation revocation proceeding, the rationale for the decision is
applicable here:
There is no merit to defendant’s argument that the language
“where children congregate” is overly vague . . . . To satisfy due
process, a defendant must have notice of what acts may amount to
a violation of probation. In interpreting terms of probation, this
Court looks to the common understanding of the language used.
Congregate is commonly used to mean to “come together in a
group or crowd.” As other courts have found, the phrase “where
children congregate” is descriptive enough to put a defendant on
7
The Gauthier condition read: “You may not access or loiter in places where children
congregate, i.e., parks, playgrounds, schools, etc., unless otherwise approved, in advance, by
your probation officer or designee.” Gauthier, 2016 VT 37, ¶ 20. We do not believe that the
small differences in wording change the applicability of the analysis.
12
notice that it includes all places where children are likely to be
found in large numbers. And, as the trial court found here, the fair
is a place where children are known to gather in large numbers,
especially at the time defendant attended.
We are not persuaded by the cases defendant cites to support his
lack-of-notice argument because the language of the conditions in
the other cases differs in significant ways from the language in this
case. In several of the cases cited by defendant the phrase “where
children congregate” follows, rather than precedes, the list of
places, and for that reason courts have found that the condition
failed to provide clear instruction as to what places must be
avoided. For example, in United States v. Peterson, 248 F.3d 79,
86 (2d Cir. 2001), the court concluded that a condition prohibiting
the defendant from “being on any school grounds, child care
center, playground, park, recreational facility or in any area in
which children are likely to congregate” was overly broad because
it was unclear if the phrase “area in which children are likely to
congregate” applied only to “any area,” and could be read to
prohibit access to any park, even if it was not a place children were
likely to congregate. In another case cited by defendant, the
condition prohibited lingering, loitering, or spending time at
locations where children were “present.” Ellis v. State, 470 S.E.2d
495, 496 (Ga. Ct. App. 1996). The court there concluded this
condition lacked specificity because it could be applied to prohibit
the defendant “from shopping at virtually any store.” Id.
The condition in this case does not suffer from either of these
infirmities. The list of illustrative places follows the operative
phrase “where children congregate,” and therefore provides a
sufficient limitation on the places to be avoided. Further, the
condition at issue prohibits defendant from accessing or loitering
in places where children congregate as opposed to where they are
simply present.
Id. ¶¶ 25-27 (citations omitted).
¶ 25. As we noted at the outset, defendant relies on the holding in State v. Rivers,
arguing that we essentially decided the issue in that case. In Rivers, the language of the
condition was different, prohibiting the defendant from having contact with children. 2005 VT
65, ¶ 1. The trial court interpreted the condition as prohibiting defendant from coming into
“close physical proximity” with minors, such that defendant was determined to have violated his
probation by standing near children in lines for rides at a fair. Id. We reversed, concluding that
13
a proximity-equals-contact rule could not be practically extended to a case involving neither a
specified individual nor a private location and held the no-contact condition overbroad and
unduly restrictive “as applied” by the trial court. Id. ¶¶ 13, 9. We would go well beyond the
rationale in Rivers to apply it to the wholly-different condition in this case.
¶ 26. Finally, we recognize that in contemplating this condition, the trial court relied
upon relevant testimony from defendant’s probation officer. At the December 3, 2014 hearing,
the officer noted the direct relationship between the condition and defendant’s crime of sexual
contact with a thirteen-year old boy. The officer further noted that because defendant has no
children, he has no particular need to access areas where children congregate, although he
nevertheless retains the ability to request permission from a probation officer for any extenuating
or unforeseen circumstances. The court reiterated these principles in its March 4 hearing, finding
that condition 15 was appropriate for deterrence and rehabilitation “based on [defendant’s]
specific offense.” Therefore, for the foregoing reasons, and mindful of the fact that conditions of
probation are “read to exclude inadvertent violations,” we conclude that condition 15 is not
unconstitutionally vague and affirm. MacMillen, 544 F.3d at 76.
¶ 27. We turn now to those conditions defendant argues impermissibly infringe upon
his liberty, privacy, and autonomy. Defendant challenges condition 16, which requires him to
give his probation officer search and seizure privileges to search without a warrant and
confiscate “if necessary, drugs, pornography or erotica of minor children, digital media,
computers or any other items which may constitute a violation of your probation terms.” The
specific authority to confiscate “computers” is apparently linked to condition 18, which prohibits
defendant from owning or possessing a computer at his residence. The validity of that condition
is considered below.
¶ 28. Defendant alleges that the search and seizure condition infringes on his rights
under the Fourth Amendment of the United States Constitution and Article 11 of the Vermont
14
Constitution and bears no connection to his offense or rehabilitation. In particular, defendant
argues that the condition is unnecessarily restrictive given the trial court’s lack of findings to
support the condition and reversion to a “categorical approach to probation conditions,” under
which the trial judge relied upon a generalization that those charged with defendant’s “type of
offense” often inappropriately use computers and other such devices even though defendant’s
offense did not involve the use of a computer. We conclude that the condition is impermissible
in the absence of any requirement of reasonable suspicion and remand so that the trial court may
amend condition 16 accordingly.
¶ 29. We first considered the issue of a probationer’s rights with respect to search and
seizure in State v. Moses, 159 Vt. 294, 618 A.2d 478 (1992). In that case, the probation
condition obligated a defendant to “consent in writing to all inspections and enforcement of [the
probation] conditions, including search and investigation without warrant when necessary.” Id.
at 296, 618 A.2d at 480. Relying upon the United States Supreme Court decision in Griffin v.
Wisconsin, 483 U.S. 868 (1987), we held that a warrantless search of defendant’s premises was
permissible if based on standards that were reasonable under the Fourth Amendment. Id. at 304,
618 A.2d at 484. We discussed cases that had imposed a reasonable suspicion requirement as the
standard for judging a search of a probationer’s premises. As to the condition now before us, we
held that because the condition neither provided guidance as to when a probationer may be
searched without a warrant, nor was “based on findings that set a proper balance between
probationer’s privacy rights and the state’s special needs [nor] . . . [was] . . . narrowly tailored to
reflect that balance,” the condition was invalid and remanded for the trial court to fashion an
appropriate condition. Id. at 305, 618 A.2d at 484. We noted that “[t]he nature of the crimes are
a primary consideration . . . in fashioning probation conditions.” Id.
¶ 30. The issue arose again in Lockwood, where the defendant had been convicted of
sex offenses involving children. Probation officers searched the defendant’s residence without a
15
warrant and found evidence of his obsession with children. Lockwood, 160 Vt. at 549, 632 A.2d
at 657. Relying on Moses, we ruled that the officers could conduct a warrantless search based on
reasonable suspicion.8 Id. at 557-58, 632 A.2d at 626. We noted that “[i]deally, the probation
condition itself will limit the search to the specific requirements for the supervision of the
particular defendant.” Id. at 557, 632 A.2d at 661. We held, however, that the risk of recidivism
was high in the defendant’s case because the “dual nature of his condition”: developmental
delays and sexual deviancy, which “supported a broad general search authorization.” Id. This
circumstance and the focus on the defendant’s compulsive sex urges satisfied the narrow
tailoring requirement of Moses. Id. at 558, 632 A.2d at 662. Although the probation condition
did not contain a reasonable suspicion requirement, we held that reasonable suspicion was
present and this justified the search. Id.
¶ 31. We considered the same issues under Chapter I, Article 11 of the Vermont
Constitution in Lockwood, where we essentially adopted the same standard for Article 11
compliance. In that case, we held that “if a probation term provides for warrantless searches and
the terms of probation are narrowly tailored to fit the circumstances of the individual
probationer, the Griffin ‘reasonable grounds’ standard strikes the proper balance between
probationer privacy rights and public protection concerns.” Id. at 559, 632 A.2d at 663.
¶ 32. The United States Supreme Court considered a comparable probation condition in
United States v. Knights, 534 U.S. 112 (2001). The high court ruled that a search pursuant to a
“common” probation condition, requiring a drug offender to “ ‘[s]ubmit his . . . person, property,
place of residence, vehicle, personal effects, to search at anytime, with or without a search
8
As in Moses, the probation condition in Lockwood was phrased in a way that arguably
meant that defendant waived his right to contest any search, and the trial court rejected
defendant’s challenge on the waiver theory. We rejected that rationale, stating “[W]e do not rely
on defendant’s consent to his probation terms. Even when a probationer signs a blanket
condition agreeing to future searches, he may continue to enjoy residual privacy rights deserving
some constitutional protection.” Lockwood, 160 Vt. at 556, 632 A.2d at 661.
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warrant, warrant of arrest, or reasonable cause by any probation officer or law officer’ ” and
“supported by reasonable suspicion” satisfied the Fourth Amendment. Id. at 114, 116, 122. The
search in Knights was conducted by a law enforcement officer, not a probation officer, and for
the purpose of finding evidence of a new and different crime, not a probation violation. Id. at
114. The Supreme Court employed its general Fourth Amendment approach of considering the
“totality of the circumstances” and concluded that the probation search condition was a “salient
circumstance.” Id. at 118. The high court stressed that the defendant’s status as a probationer
informs both aspects of the Fourth Amendment’s reasonableness analysis: balancing individual
privacy expectations against legitimate governmental interests. Id. at 119. As an individual
convicted of a drug crime who had been “unambiguously informed” of the search condition in
his probation order, the defendant had a “diminished . . . reasonable expectation of privacy.” Id.
at 119, 120. Similarly, as it was conducted under the terms of the condition, the search promoted
legitimate governmental interests through furthering the goals of probation: “rehabilitation and
protecting society from future criminal violations.” Id. at 119. The Supreme Court thus
concluded that the balance of those considerations “requires no more than reasonable suspicion”
to conduct a warrantless search of a defendant supported by a condition of probation. Id. at 121.
The degree of suspicion required involves a calculation of “when there is a sufficiently high
probability that criminal conduct is occurring to make the intrusion on the individual’s privacy
interest reasonable.” Id. In a footnote, the Supreme Court added that while the terms of the
probation condition permitted a search without any individualized suspicion, they “[did] not
decide” whether the condition so eliminated reasonable expectations of privacy or constituted
consent that a suspicionless search would have also been constitutional. Id. at 120 n.6.
¶ 33. On a point important to our decision here, the United States Supreme Court
specifically rejected the lower court decision that under Griffin the search had to be for
probationary purposes. Id. at 120. Rather, it held that “[w]hen an officer has reasonable
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suspicion that a probationer subject to a search condition is engaged in criminal activity, there is
enough likelihood that criminal conduct is occurring that an intrusion on the probationer’s
significantly diminished privacy interests is reasonable.” Id. at 121.
¶ 34. Five years later, the high court relied on Knights to find constitutional
California’s requirement that all parolees be subject to suspicionless searches in Samson v.
California, 547 U.S. 843, 846 (2006). In conducting the reasonableness analysis, the Samson
Court noted that parolees have “severely diminished expectations of privacy,” id. at 851, because
parole is “more akin to imprisonment” than probation. Id. at 850. The court contrasted these
reduced expectations with California’s “substantial” interest in reducing recidivism and
promoting community integration for parolees, an interest undergirded by significant empirical
evidence regarding the 68-70% recidivism rate among California’s parolee population. Id. at
853. The court concluded that there was little fear the decision would provide peace officers a
“blanket grant of discretion,” noting that California law prohibits “ ‘arbitrary, capricious, or
harassing searches,’ ” id. at 856 (citation omitted), and reasoning that the imposition of a
reasonable suspicion requirement, in a population highly susceptible to reoffending, would
afford parolees “greater opportunity to anticipate searches and conceal criminality.” Id. at 854.
¶ 35. We recently evaluated the effect of Samson on the search of a furloughed sex
offender who was subject to a provision of a conditional reentry agreement that authorized a
suspicionless search of the home. State v. Bogert, 2013 VT 13A, 197 Vt. 610, 109 A.3d 883.
Based on a number of factors, we held that Samson controlled the validity of the search under the
Fourth Amendment because the defendant’s furlough status meant that his expectation of privacy
was no greater than that of a parolee in Samson, and the State’s supervision goals were no
weaker than California’s in Samson. Id. ¶ 16. In reaching this decision, however, we noted that
Samson was based on the conclusion that parolees have fewer expectations of privacy than
probationers. Id. ¶ 14.
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¶ 36. Samson distinguished Knights on the basis of the lesser expectation of privacy
and higher risks of recidivism of parolees. Nevertheless, some courts have authorized
suspicionless searches for probationers as well as parolees. See, e.g., People v. Douglas, 193
Cal. Rptr. 3d 79, 85 (Cal. Ct. App. 2015), as modified on denial of reh’g (Oct. 19, 2015), review
denied (Jan. 20, 2016) (“Suspicionless searches are lawful in California for both probationers
and parolees, so long as they are not conducted arbitrarily, capriciously, or for harassment.”);
State v. Vanderkolk, 32 N.E.3d 775, 779 (Ind. 2015) (finding parole and probation to be
sufficiently similar that reasonable suspicion is not required for search of probationer as long as
probation condition puts defendant on notice that suspicionless searches are authorized). We do
not join these courts in this extension of Samson, and continue to hold that reasonable suspicion
for search and seizure imposed on probationers is required by the Fourth Amendment.
¶ 37. While the above paragraphs describe the state of the law with respect to the
Fourth Amendment, we still must address the effect of Article 11. Although we addressed the
effect of the state constitutional provision in Bogert, the context was entirely different. The
question in Bogert was whether the State could search the computer of a convicted sex offender
who was on furlough status. 2013 VT 13A, ¶ 2. No prior decision controlled that issue. Based
on a number of factors that undermined any reasonable expectation of privacy for a person in
defendant’s status, we held that reasonable suspicion was not required. Id. ¶¶ 20-24.
¶ 38. In this case, however, we do have relevant Article 11 precedent: State v.
Lockwood. In Lockwood, we held that Article 11 allowed a warrantless search of a probationer.
Lockwood, 160 Vt. at 559, 632 A.2d at 663. We concluded that “if a probation term provides for
warrantless searches and the terms of probation are narrowly tailored to fit the circumstances of
the individual probationer, the Griffin “reasonable grounds” standard strikes the proper balance
between probationer privacy rights and public protection concerns.” Id. To the extent that
narrow tailoring was a requirement of Griffin, it was clearly eliminated for the purposes of the
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Fourth Amendment in Knights, which ruled that law enforcement may search a probationer’s
home for evidence of any crime, whether or not related to the crime for which defendant was
convicted and placed on probation. Knights, 534 U.S. at 121. Under Lockwood however,
Article 11 continues to require the State to demonstrate both a special need sufficient to justify
an incursion on probationer’s rights and narrow tailoring.
¶ 39. The probation condition before us is an example of narrow tailoring. It authorizes
a search only for contraband—that is, items defendant is prohibited from possessing under the
conditions. Thus, we conclude that, in concept, condition 16 meets the requirements of
Lockwood and complies with Article 11. Because of this ruling, we need not go further and
define the requirements of narrow tailoring in more detail.
¶ 40. Notwithstanding this conclusion, we also find that probation condition 16 needs
amendment in three respects. First, as we hold in the following section of this opinion, condition
18 goes too far in prohibiting defendant from possessing a computer and accessing the Internet.
Supra, ¶¶ 41-45. As a result, we cannot consider either a computer or digital media to be
contraband, such that the State has the right to search for these items on reasonable suspicion that
they are in defendant’s possession. Second, condition 16 should be redrafted to eliminate the
specification that the State’s search powers are based on some kind of waiver by defendant. As
we held in Lockwood, we do not base a loss of privacy rights on a theory of waiver and the
condition should not support that theory. Finally, condition 16 should state explicitly that the
State’s search rights are dependent on its having reasonable suspicion that evidence of a violation
of probation conditions would be found—for example, that the search would find evidence that
defendant has bought, possessed, or used a regulated drug, without a prescription, in violation of
probation condition 9. We recognize that the requirement of reasonable suspicion is implied so
that a search based on reasonable suspicion is valid even if the probation condition does not say
so explicitly. Nevertheless, the condition should clearly state the constitutional requirement to
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make the probationer aware of his or her rights and the State representatives aware of the
limitation of its power.
¶ 41. Finally, we consider condition 18, which prohibits defendant from owning a
computer in his home or accessing the Internet without approval of his probation officer. Where
computer usage is allowed, the condition goes on to authorize the probation officer to monitor
usage, including employing specific software for monitoring sex offenders, and to require
defendant to pay any reasonable charges associated with monitoring. Defendant urges that
“without evidence that [defendant’s] offense involved the use of a computer or the internet,” the
condition is unconstitutionally overbroad and fails to meet Vermont’s individualized sentencing
requirements. Defendant argues that the court is bound to impose only “fine-tuned” conditions
that do not impermissibly restrict liberty, autonomy, and privacy rights. We agree.
¶ 42. We begin by observing that the federal circuit courts have generally evaluated the
permissibility of comparable probation conditions in light of whether a defendant’s offense
involved the use of computer technology. For example, in United States v. Perazza-Mercado, the
First Circuit struck down a total ban of the defendant’s use of the Internet at home, but limited its
decision to a “narrow set of circumstances: where the defendant has no history of impermissible
internet use and the internet was not an instrumentality of the offense of conviction.” 553 F.3d
65, 69 (1st Cir. 2009). The panel noted its accord with other courts:
Our sister circuits have upheld broad restrictions on internet
access as a condition of supervised release where (1) the defendant
used the internet in the underlying offense; (2) the defendant had a
history of improperly using the internet to engage in illegal
conduct; or (3) particular and identifiable characteristics of the
defendant suggested that such a restriction was warranted . . . .
Conversely, in cases where there is an insufficient nexus with a
defendant’s conduct or characteristics, courts have vacated
supervised release conditions restricting internet access. For
example, in United States v. Freeman, 316 F.3d 386 (3d Cir.
2003), “there was nothing in the record to suggest that defendant
had used the internet to contact young children” or solicit
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inappropriate sexual contact. Id. at 392. Accordingly, the court
found that a restriction forbidding defendant from owning a
computer or accessing the internet without the approval of his
probation officer was “overly broad.” Id.
Id. at 70-71 (citations omitted).
¶ 43. We agree with the reasoning of the federal courts and hold that a condition that
imposes a ban on computer or internet usage subject to approval by a probation officer, where
the defendant did not actually employ a computer in the commission of the offense, and where
no other evidence supports a restriction on a defendant’s access to the internet, constitutes a
“greater deprivation of liberty than is reasonably necessary to deter illegal conduct and protect
the public.” United States v. Love, 593 F.3d 1, 12 (D.C. Cir. 2010) (quotations omitted). We do
not see a sufficient justification for such a sweeping restriction, which would render nearly all
the activities of life incalculably difficult in the modern age, when such a condition “would not
have prevented the crime of which [a defendant] was convicted.” United States v. Barsumyan,
517 F.3d 1154, 1161 n.12 (9th Cir. 2008).
¶ 44. In this case, the trial court openly acknowledged the lack of fit between condition
18 and defendant’s particular circumstances:
[W]e understand that the offense didn’t involve the use of a
computer or such, but we found from the testimony that there
would be concern that the type of offense can lead to the
inappropriate use of such material and devices. So it goes to
deterrence as well as to some degree, rehabilitation.
¶ 45. While we acknowledge the comments from defendant’s probation officer that
such a condition may be salient because of the vast number of child pornography sites and the
flexibility this affords officers—indeed, the officer noted he was “not even sure if [they] would
always . . . keep this [ban] in place” and anticipated transitioning to simple monitoring—we
cannot allow such an overbroad condition of probation to stand when disconnected from the
original offense. We therefore strike the first sentence of condition 18, while leaving intact the
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requirement that defendant, upon reasonable suspicion, must allow his probation officer to
monitor his computer and internet usage and pay any associated charges. See United States v.
Stergios, 659 F.3d 127, 134 (1st Cir. 2011) (upholding condition requiring defendant to submit to
unannounced examinations of his computer and other devices “when his probation officer has a
reasonable suspicion of contraband evidence or that [defendant] has violated a condition of
supervision”); United States v. Herndon, 501 F.3d 683, 691 (6th Cir. 2007) (noting that where
probationer had agreed to condition consenting to officer checking his computer or software for
internet activity, officer “required no more than reasonable suspicion to conduct a check of
[defendant’s] computer.”). We note the State is free to seek modifications to this condition if
they can demonstrate defendant has misused internet technology in any way. However, in the
absence of any such evidence, we believe this amended condition better reflects a balance
between the State’s substantial interest in supervising defendant’s computer use and defendant’s
privacy rights, which, while reduced on account of his probationary status, were not all together
forfeited “by reason of [his] conviction.” Bell v. Wolfish, 441 U.S. 520, 545 (1979).
Affirmed as to conditions 10 and 15. Remanded as to conditions 8, 19, 16, and 18 for
proceedings consistent with this opinion.
FOR THE COURT:
Associate Justice
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