State v. Moses

Annotate this Case
 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, 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.


                                 No. 91-117


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 1, Windham Circuit

 Diane Moses                                  November Term, 1991


 Arthur J. O'Dea, J.

 Christopher C. Moll, Chittenden County Deputy State's Attorney,
   Brattleboro, for plaintiff-appellee

 Charles Martin of Martin & Paolini, Barre, for defendant-appellant


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      DOOLEY, J.   Defendant challenges her probationary sentence, which was
 imposed after a plea of no contest, contending that five special conditions
 of probation included in the sentence are not reasonably related to the
 crimes committed or are unnecessarily restrictive.  Although challenged on
 similar grounds, each of the five conditions presents a separate inquiry.
 Two of the challenged conditions are reasonably related to ensuring that
 defendant avoids future criminal activity; those conditions are affirmed.
 We hold that the remaining three special conditions are overbroad and
 unnecessarily restrictive; they are reversed and the case remanded.
      The state's charges in this case are set forth in the affidavit of the
 investigating officer.  Defendant took an elderly woman into her home and
 confined her for a period of almost fifteen months.  During this time,
 defendant forced the woman to turn over her pension income to defendant.
 She physically abused the woman on numerous occasions and, on at least one
 occasion, sexually abused her.  She was aided in this abuse by her boyfriend
 and other men.
      Defendant was arrested and subsequently pleaded no contest to kid-
 napping, one count of elderly abuse, and two counts of assault.  She was
 sentenced to ten to twenty years on the felony kidnapping charge and zero to
 six months on each of the remaining charges.  All the sentences were
 suspended except for six months to serve, and defendant was placed on
 probation.  In addition to certain standard conditions, the trial court
 imposed the following special conditions:
         18. You shall reside where your Probation Officer
             directs;
         23. You shall not open, maintain, or possess any
             materials for a checking account;
         24. You shall not receive as [a] representative payee[,]
             nor in any other manner[,] monies belonging to
             another person than yourself;
         25. You shall not associate with any person prohibited
             by your probation officer;
         26. [You] must consent in writing to all inspections and
             enforcement of these conditions, including search
             and investigation without warrant when necessary.
      At sentencing, defendant objected to these special conditions, arguing
 that each of the conditions either bears no reasonable relation to the crime
 committed, is unnecessarily restrictive, or fails to place defendant on
 sufficient notice of what conduct violates the terms of probation.  This
 latter problem, defendant argued, is the result of the probation officer's
 unlimited discretion to determine the conditions.  The court, noting that
 defendant has a history of taking elderly people into her home to prey upon
 them, overruled the objections and expressed a "very deep and a very abiding
 concern" for the safety of others in support of the imposition of special
 conditions.  Defendant subsequently filed a motion for correction and
 modification of sentence, which the trial court denied without hearing.
      Vermont law authorizes a sentencing court to set probation conditions
 that reasonably relate to the crime committed or that aid the probationer in
 avoiding criminal conduct.  28 V.S.A. { 252(b)(13); see State v. Whitchurch,
 155 Vt. 134, 137, 577 A.2d 690, 692 (1990) (citation omitted); State v.
 Mace, 154 Vt. 430, 435, 578 A.2d 104, 107 (1990).  We further stated in
 Whitchurch that probation conditions "`should not be unduly restrictive of
 the probationer's liberty or autonomy.'"  155 Vt. at 137, 577 A.2d  at 692
 (quoting American Bar Association, Standards for Criminal Justice 2d { 18-
 2.3(e)).  Although the trial court has discretion in determining appropriate
 conditions of probation, we are required to find error where, applying
 proper legal standards, discretion has been exercised to a clearly
 unreasonable extent.  See State v. Goodrich, 151 Vt. 367, 375, 564 A.2d 1346, 1351 (1989).
      Two of the conditions imposed by the trial court satisfy the Vermont
 standards on probation conditions.  The condition that defendant not receive
 monies as a representative payee (condition 24) is clearly related to her
 criminal activities.  The record establishes that defendant's desire to
 control the funds of her elderly victims was one of the primary motivating
 forces of her behavior.  Curtailing her ability to handle monies in a
 representative capacity is closely linked to eliminating the conduct for
 which defendant has been placed on probation.  Thus, this restriction is
 proper.
      The condition that defendant not associate with any person prohibited
 by her probation officer (condition 25) is an acceptable term of probation
 in the proper case.  The American Bar Association Standards for Criminal
 Justice 2d { 18-2.3(f)(vii) authorize conditions that restrict a probationer
 from "consorting with specified types of people."  See also Weissman,
 Constitutional Primer on Modern Probation Conditions, 8 N. Eng. J. on Prison
 L. 367, 376 (1982) ("associational restrictions supported by evidence of
 reasonable relationship to crime prevention will be upheld").  Where the
 potential class of victims is broad -- and individual associations are not
 always foreseeable or easily subject to prior approval -- the condition
 necessarily must retain a degree of flexibility to facilitate its proper
 implementation.
      The special condition restricting defendant's freedom of association is
 reasonably related to the underlying offenses, in which the victim suffered
 abuse at the hands of both defendant and her male companion.  The condition
 is intended to prevent defendant from associating with individuals who might
 induce her to take advantage of weak, frail people of the type she has
 previously abused, as well as such vulnerable potential victims.
 Imposition of this probation condition is within the reasonable discretion
 of the trial court.
      The three remaining challenged probation conditions are overbroad and
 excessively restrictive and, as such, are clearly unreasonable extensions of
 judicial discretion.  First, condition 23, which prohibits defendant from
 maintaining a checking account, does not meet the Whitchurch requirement
 that a probation restriction be reasonably related to the crime, nor does it
 satisfy the requirement that the restriction not be "unduly restrictive" of
 defendant's autonomy.  As the Second Circuit Court of Appeals has explained
 in describing a standard similar to ours:
         [A] condition is related to the goals of probation if it
         is designed, in light of the crime committed, to promote
         the probationer's rehabilitation and to insure the
         protection of the public.  A condition is reasonable if
         it is not unnecessarily harsh or excessive in achieving
         these goals . . . .  [C]onditions that restrict a
         probationer's freedom must be especially fine-tuned.

 United States v. Tolla, 781 F.2d 29, 34 (2d Cir. 1986) (emphasis in
 original) (citations omitted); see also Higdon v. United States, 627 F.2d 893, 897 (9th Cir. 1980) (otherwise permissible condition of probation is
 invalid if negative impact on probationer is "substantially greater than is
 necessary to carry out [its] purposes").
      This restriction is hardly "fine-tuned" to accomplish its purpose.  It
 is so indirectly related to the conduct to be prevented that it can only
 have a minor impact.  Defendant can maintain a savings account or enlist the
 aid of third parties with checking accounts.  She will have to establish a
 relationship with some business, bank or person to cash checks because her
 income is likely to come by check.  It is not clear why that business, bank
 or person would refuse to cash third-party checks.
      On the other hand, the lack of a checking account is a serious impedi-
 ment to conducting a normal and desirable economic life.  Everyday chores
 like paying a utility bill become far more difficult without a checking
 account.  Before depriving a probationer of this basic tool of economic
 interaction, a sentencing court should ensure that the measure is closely
 linked to the conduct to be regulated.  Given the highly attenuated
 connection of this restriction with defendant's criminal activity, we cannot
 conclude that the condition is reasonable.
      It takes little creativity to see that other restrictions would provide
 much more public protection, with less imposition on defendant's legitimate
 needs.  For example, defendant could be required to provide check returns to
 the probation officer to demonstrate that she has not engaged in the type of
 conduct for which she has been convicted.  It is no coincidence that the
 only reported cases involving a no-checking-account probation condition
 relate to defendants who have been convicted of passing bad checks. (FN1) See,
 e.g., People v. Burden, 205 Cal. App. 3d 1277, 1281, 253 Cal. Rptr. 130, 132
 (1988); Wood v. State, 378 So. 2d 110, 110-11 (Fla. Dist. Ct. App. 1980);
 State v. Petroff, 757 P.2d 759, 760 (Mont. 1988).  This kind of
 restriction, as imposed in this case, is far from the fine-tuning our law
 requires.
      A second condition, that defendant "reside where [her] Probation
 Officer directs (condition 18)," suffers from different, but related,
 defects.  We agree with the trial court that the circumstances of this case
 warrant a restriction on defendant's residence, or on those with whom she
 may reside.  Although such a condition is not itemized in the authorizing
 statute, 28 V.S.A. { 252(b), the condition is "reasonably related to . . .
 [defendant's] rehabilitation."  28 V.S.A. { 252(b)(13).  Rather than
 fashioning a specific restriction relating to defendant's choice of
 residence, however, the court turned over to a probation officer the
 complete power to determine defendant's residence, with no guiding
 standards.  Under this condition, the probation officer can require
 defendant to live in a specific place, within or without the State of
 Vermont, for reasons unrelated to rehabilitation or the prevention of
 further criminal offenses.
      It is improper for the court to delegate the power to impose probation
 conditions to a probation officer.  See American Bar Association, Standards
 for Criminal Justice 2d { 18-2.3(c)(ii) ("Probation officers should have
 authority to implement judicially prescribed conditions, but the conditions
 must be sufficiently precise so that probation officers do not in fact
 establish them.").  We have not analyzed probation condition issues in terms
 of whether a delegation of power to impose them is proper, but we have
 enforced conditions where probation officers are given discretion to
 implement conditions imposed by the court.  See, e.g., State v. Sanborn, 155
 Vt. 430, 432-35, 584 A.2d 1148, 1149-52 (1990) (probation revoked for breach
 of condition that defendant "participate fully in any program to which you
 may be referred by the court or your probation officer").  Delegation of the
 implementation of probation conditions is necessary to require a defendant
 to participate in rehabilitative programs appropriate to the defendant's
 needs at a particular time in the probation period.  Similarly, the
 condition in this case restricting defendant's freedom of association
 delegates to her probation officer only the power to properly implement the
 condition.  The court cannot at sentencing fully determine what associations
 the probationer will develop in the future.
      Condition 18 goes beyond implementation.  In effect, it gives open-
 ended authority to the probation officer to create any location-of-residence
 probation condition the officer deems appropriate.  It is this type of
 wholesale delegation that other courts have struck down.  See In re T.L.D.,
 586 So. 2d 1294, 1294 (Fla. Dist. Ct. App. 1991) ("trial court reversibly
 errs when it delegates judicial responsibility to a probation officer");
 McDonald v. State, 442 S.W.2d 386, 387 (Tex. Crim. App. 1969) (condition
 that probationer "remain within the confines specified by the Probation
 Officer" invalid because it enabled the officer to determine a condition of
 probation and alter it from time to time at his discretion without the
 approval of the court).  Like the checking account provision considered
 above, this condition is unduly restrictive of the probationer's liberty and
 autonomy and is not fine-tuned to the specific rehabilitative and preven-
 tative goals applicable to this case.  The court is capable of creating more
 precise standards to guide the probation officer in imposing restrictions on
 defendant's residence.  Unlike interpersonal contact, which is intimately
 connected with associational rights, the changing of one's residence is not
 an incident of daily life; there is no reason why the court cannot
 anticipate the relevant issues and construct a proper condition.  This is
 not an instance where the court must authorize a probation officer to use
 substantial discretionary power to implement the probation condition.
      Further, we are disinclined to uphold an overbroad delegation to the
 probation officer simply because defendant can seek court intervention if
 she finds the officer's requirements oppressive.  Under this rationale, the
 court could leave all conditions to the probation officer.  It puts the
 court in the position of refereeing disputes between the probationer and the
 officer with no guiding standards to ensure that its decisions are not
 arbitrary.  Such an approach depends for fairness on the probationer coming
 forward to challenge decisions of a person who has a great deal of power
 over her life.  To avoid these consequences, the Legislature placed the
 power to impose probation conditions on the court, and not on the
 corrections department and its employees.  We should not ignore that
 legislative direction.
      The final special probation condition, requiring defendant to consent
 in writing to enforcement of the conditions of probation through "search and
 investigation without warrant when necessary (condition 26)," presents two
 issues.  The first is whether defendant can challenge this condition on
 direct appeal of her sentence or, alternatively, must wait until a
 warrantless search actually occurs.  If defendant's challenge survives this
 threshold inquiry, we then must address the merits of her claim.  We hold
 that defendant's direct appeal of this probation condition is proper, and
 that the condition itself is overbroad and violates defendant's Fourth
 Amendment rights.
      For four reasons, a challenge to this condition is appropriate on
 direct appeal of defendant's sentence.  First, the mere presence of the
 condition invades defendant's privacy to such an extent that she may change
 her activities due to the fear that she may be the subject of a search at
 any time and for any reason.  This invasion of privacy is sufficient to
 warrant judicial review of the probation condition.  See Commonwealth v.
 LaFrance, 402 Mass. 789, 791 n.3, 525 N.E.2d 379, 381 n.3 (1988) (threat of
 unlawful search at any time and place is enough to warrant judicial review).
      Second, defendant may not be able to challenge the condition by an
 alternative means.  Although we have not ruled on the question, many courts
 have concluded that an evidentiary exclusionary rule should not apply, at
 least in some circumstances, in probation revocation proceedings.  See,
 e.g., Payne v. Robinson, 207 Conn. 565, 572, 541 A.2d 504, 507 (1988)
 (collecting cases); State v. Martinez, 811 P.2d 205, 210 n.6 (Utah App.
 1991) (listing cases).  If defendant is denied a remedy now, she may be left
 without a remedy altogether; the ability to challenge the probation
 condition following an unlawful warrantless search would be essentially
 worthless if the evidence obtained thereby remains admissible in a later
 probation revocation proceeding against her.
      Third, this condition is imposed so that defendant will consent to
 waiver of her Fourth Amendment rights in return for the opportunity to avoid
 incarceration.  See People v. Bravo, 43 Cal. 3d 600, 608, 738 P.2d 336, 341,
 238 Cal. Rptr. 282, 287, cert. denied, 485 U.S. 904 (1987).  Again, we have
 not ruled on the question, but many courts have held that such a waiver is
 complete and the probationer retains no enforceable Fourth Amendment
 rights.  See 4 W. LaFave, Search and Seizure { 10.10(b), at 133 (2d ed.
 1987).  As in the second point above, the failure to recognize now the
 potential impact of this condition may mean that defendant is put in the
 position of permanently forfeiting the right of review of the search
 condition.  It is preferable to avoid an improper result based on an unfair
 waiver by allowing review now.
      Fourth, this is a recurring policy question that can be resolved at
 this time.  We see a need, because of the applicability of this issue to
 other probationers, to provide guidance to sentencing courts and state law
 enforcement and corrections officials.  It would be decidedly more
 difficult to address the issue in the context of enforcement proceedings.
 As discussed below, the failure to resolve it now may make the condition
 unusable.  It is better that we narrow an overbroad condition at the outset,
 rather than face the issue after the State has relied on the condition in
 conducting a search.  We agree with the reasoning of the Hawaii Supreme
 Court, which addressed a similar question:
         [I]f more than a few probationers are in constant
         jeopardy of being divested by judicial fiat of statutory
         and constitutional protection that should rightfully be
         theirs, our supervisory duty would render the prevention
         of such error obligatory, though the prudential rules
         [of judicial self-governance] may counsel against the
         consideration of this appeal.

 State v. Fields, 686 P.2d 1379, 1387 (1984).  We therefore proceed to an
 assessment of the merits of defendant's challenge to this probation
 condition.
      The condition allowing warrantless searches is too broad and must be
 narrowed to meet constitutional requirements.  The leading case under the
 United States Constitution is Griffin v. Wisconsin, 483 U.S. 868 (1987),
 where the criminal defendant-probationer challenged the admission of
 evidence obtained by the state in a warrantless search of his home.  The
 United States Supreme Court upheld admission of the evidence because the
 search was conducted pursuant to a valid state statute.  The statute
 authorized searches where the parole officer had "reasonable grounds" to
 believe a violation of probation conditions had occurred, and articulated
 factors to be considered in making such a determination.  Id. at 872-80.
 Initially, the Court noted that, regardless of any probation condition that
 authorizes warrantless searches, the Fourth Amendment prohibition against
 unreasonable searches applies to probationers.  Id.  In assessing the
 reasonableness of the state statutory scheme, the Court balanced the privacy
 rights of probationers against the "special needs" of the state in the
 probation context.  Based on a probationer's reduced expectation of privacy
 and the legitimate concerns of the state in law enforcement, the Court
 concluded that the statutory scheme permitting warrantless searches of a
 probationer's property was reasonable under the Fourth Amendment. (FN2)
      It is important to emphasize that the Court in Griffin did not embrace
 the "new principle of law" adopted by the Wisconsin Supreme Court that any
 warrantless search is valid if based on "reasonable grounds."  Id. at 872.
 Instead, it upheld the search because "it was conducted pursuant to a valid
 regulation governing probationers," that is, the statute set standards for
 probationer searches, which were reasonable under the Fourth Amendment.  Id.
 at 880.  A number of state courts, following Griffin, have upheld searches
 on a similar basis.  See, e.g., State v. Burke, 766 P.2d 254, 256-57 (Mont.
 1988) (probation consent search made without warrant was permissible because
 based on "reasonable cause" standard of administrative rules); Commonwealth
 v. Green, 405 Pa. Super. 24, 33-35, 591 A.2d 1079, 1084-85, cert. denied,
 112 S. Ct. 1571 (1991) (approving search, on less than probable cause,
 conducted in compliance with accepted parole office practice and
 procedure).
      In contrast to the Wisconsin law discussed in Griffin, Vermont has no
 statutory scheme regulating warrantless probation searches.  In the absence
 of legislative direction regarding the grounds for these searches, some
 courts, following the Griffin rationale, have permitted sentencing judges to
 make careful findings establishing the Fourth Amendment reasonableness of
 particular search conditions imposed on specific probationers.  See, e.g.,
 United States v. Schoenrock, 868 F.2d 289, 292-93 (8th Cir. 1989).  Under
 this approach, the key factor is whether the conditions are supported by
 the findings and are narrowly tailored to fit the circumstances of the
 individual probationer.  Id. at 293; see also United States v. Giannetta,
 909 F.2d 571, 575 (1st Cir. 1990) (just as statute in Griffin provided
 guidance and constraints that rendered probationary searches reasonable,
 sentencing judge may provide similar function by narrowly tailoring "the
 need for and scope of any probation search conditions" to individual case).
 In this context, probation searches based on reasonable suspicion can have
 the same indicia of reasonableness as the search upheld in Griffin.
 Giannetta, 909 F.2d  at 575.
      Condition 26 does not provide guidance as to when the probationer may
 be searched without a warrant.  Under the Fourth Amendment, a "necessary"
 search is not always a reasonable one.  The condition is not based on
 findings that set a proper balance between probationer's privacy rights and
 the state's special needs and is not narrowly tailored to reflect that
 balance.  We therefore remand probation condition 26 to the district court
 to draft a condition complying with this opinion.
      Although there are no definitive factual findings because of the plea
 of nolo contendere, there is no doubt that the crimes committed by defendant
 were especially heinous.  The nature of the crimes are a primary
 consideration in determining whether probation is appropriate and in
 fashioning probation conditions if probation is warranted.  The purpose of
 the conditions is not, however, to punish defendant for the heinousness of
 the crime.  Even where the criminal acts are this outrageous, we must ensure
 that probation is used to rehabilitate defendant and protect society.  As we
 have detailed, the conditions here go beyond these legitimate purposes.  We
 are confident that on remand, the trial court can fashion appropriate
 conditions to meet the proper goals of probation within the standards we
 have outlined.
      Affirmed in part and reversed in part, and remanded.



                                         FOR THE COURT:




                                         Associate Justice


FN1.    At sentencing, the trial court learned that defendant had passed bad
 checks as a teenager.  That conduct is now so remote that the court did not
 rely on it in establishing the probation condition.  It is not relevant to
 the question before us.

FN2.    The Court declined to discuss whether it agreed with Wisconsin's
 definition of "reasonable grounds," noting that it was bound by the state's
 interpretation.  It focused its analysis on the validity of the Wisconsin
 statute, not on the application of the statute to the facts of the case.
 483 U.S.  at 875.


------------------------------------------------------------------------------
                               Concurring and Dissenting

 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, 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.


                                 No. 91-117


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 1, Windham Circuit

 Diane Moses                                  November Term, 1991


 Arthur J. O'Dea, J.

 Christopher C. Moll, Chittenden County Deputy State's Attorney,
   Brattleboro, for plaintiff-appellee

 Charles Martin of Martin & Paolini, Barre, for defendant-appellant


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      ALLEN, C.J., concurring and dissenting.   I agree with the Court that
 conditions 24 and 25 should be upheld and that condition 26 should be
 struck and remanded to be rewritten.  I join Justice Morse's dissent on
 conditions 18 and 23, however, which I believe should be affirmed for the
 reasons he states.




                                  Frederic W. Allen, Chief Justice

-------------------------------------------------------------------------------
                                 Concurring and Dissenting
                    

 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, 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.


                                 No. 91-117


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 1, Windham Circuit

 Diane Moses                                  November Term, 1991


 Arthur J. O'Dea, J.

 Christopher C. Moll, Chittenden County Deputy State's Attorney,
   Brattleboro, for plaintiff-appellee

 Charles Martin of Martin & Paolini, Barre, for defendant-appellant


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      MORSE, J., concurring and dissenting.   I agree with the Court
 upholding conditions 24 and 25 and striking condition 26, although I would
 not remand to allow the trial court to redraft it.  I disagree with the
 extent of the Court's "fine-tuning" of conditions 18 and 23, because I
 believe it unnecessarily restricts the trial court's discretion in
 fashioning conditions of probation and departs from our usual standard of
 review.
      The no-checking-account condition (condition 23) is viewed as "so
 indirectly related to the conduct to be prevented that it can only have a
 minor impact," and consequently not "reasonably related" to probationer's
 crimes and is "'unduly restrictive' of [her] autonomy."  This is, of course,
 a matter of judgment, in which different judges could reasonably disagree.
 That is why the law gives the trial judge, who was there on the scene,
 deference in making the judgment.  See State v. Bubar, 146 Vt. 398, 405, 505 A.2d 1197, 1202 (1985) (trial court given "great discretion in setting
 conditions of probation").  The trial court's decision must not be reversed
 on appeal unless there is no rational support for it or, in words more
 familiar, an abuse of discretion.  An abuse of discretion is not established
 because we disagree with the judgment.  If reasonable judges could differ
 over a discretionary choice, it cannot be an abuse of discretion.  A
 decision is an abuse of discretion when it is so far out of line that no
 reasonable jurist could agree with it.  As Judge, now Justice, John Paul
 Stevens once wrote about discretion in making sentencing decisions:
             There are . . . matters -- such as the sentencing
           decision -- in which the choice of alternatives is left
           to the trial judge, not because the decision is of
           little importance, but rather because the factors which
           may properly influence his decision are so numerous,
           variable and subtle that the fashioning of rigid rules
           would be more likely to impair his ability to deal
           fairly with a particular problem than to lead to a just
           result.

 United States v. McCoy, 517 F.2d 41, 44 (7th Cir. 1975).
       A probationary sentence is one point on a continuum of possible
 punishments, the most restrictive being incarceration.  A probationer's
 liberty is by definition restrictively conditioned because the probationer,
 having been convicted of criminal behavior, is subject to controls designed
 to rehabilitate her.  28 V.S.A. {{ 252(a) (condition must be "reasonably
 necessary to ensure that the offender will lead a law-abiding life or to
 assist [her] to do so"), 252(b)(13) (conditions permitted if "reasonably
 related to . . . rehabilitation").  A condition of probation is valid if it
 reasonably relates to the crime committed.  State v. Whitchurch, 155 Vt.
 134, 137, 577 A.2d 690, 692 (1990).  Defendant bears the burden of proving
 that a court abused its discretion in imposing a probation condition.
      In deciding that the trial court abused its discretion in ordering
 condition 23, the Court points out ways defendant might circumvent the lack
 of a checking account in order to cash her ill-gotten third-party checks and
 laments the "serious impediment" the lack of a checking account will have on
 her daily living.  Lest we forget, the inconvenience of incarceration is far
 more onerous than probation.  Although the Court's reasoning might persuade
 a sentencing court to avoid imposing that particular probation condition in
 the first instance, it is not so persuasive that I would overrule the trial
 court.
      The record establishes the relationship between defendant's abuse of
 checking accounts and her criminal behavior.  Because banks are reluctant to
 cash third-party checks for people without accounts, a checking account
 facilitates cashing the checks of others.  Consequently, condition 23 makes
 it more difficult for defendant to negotiate checks she might get from
 potential victims.  This condition is not unnecessarily restrictive; one out
 of four American families does not maintain a checking account.  Federal
 Reserve Bulletin 5 (Jan. 1992).
      The Court's attempt to distinguish cases upholding conditions similar
 to condition 23 on the ground that in those cases the defendant was
 convicted of passing bad checks is weak.  Here defendant preyed on a large
 number of frail and mentally retarded people receiving and cashing their
 disability checks.  That defendant was not convicted of passing a worthless
 check drawn on her own account, a misdemeanor, does not alleviate the threat
 posed by a defendant who kidnapped, abused, and assaulted people who
 provided her with the opportunity to part them from their money -- a form of
 check robbery.  As the trial court stated:
           I have a very deep and a very abiding concern for the
           safety of others as [to your] using checks, or receiving
           monies that belong to other people . . . [and] about who
           you take in to live with you, because . . . you're not
           taking in fallen birds or wounded people out of
           generosity. . . .  You're taking in people . . . so that
           you can get at their money. . . .  That's what I have to
           protect other people from, and that's what I have to
           protect you from.

      The Court goes on to show how much more creative it is than the trial
 court by pointing out various alternative conditions.  That, however, is not
 our job.  We have a limited scope of review and, except to see that the
 outer permissible limits set by the Legislature are not exceeded, we are not
 to substitute our choices for those of the trial court.  Here, the Court
 has set inner limits of its own choosing that are not required by any
 statutory or constitutional authority.
      As to condition 18, the Court agrees that a condition restricting
 defendant's place of residence is appropriate.  Such a condition is designed
 to protect the community by restricting defendant's living options to
 minimize her opportunity to mistreat vulnerable people in the future.  See
 State v. Mace, 154 Vt. 430, 436, 578 A.2d 104, 108 (1990) (liberty may be
 restricted "so long as the conditions have a reasonable nexus with
 rehabilitation of the defendant and protection of the public").  Here, the
 evidence supported a need to control defendant's residence as part of
 restructuring her life to prevent future criminality.
      The Court's objection to condition 18 is that it lacks the specificity
 required to give defendant fair notice and provides no guidelines for a
 probation officer to determine what places are suitable for her as a
 residence.  Defendant could not violate condition 18, however, unless she
 resided in a place other than as directed by her probation officer.  State
 v. Peck, 149 Vt. 617, 619-20, 547 A.2d 1329, 1331 (1988) (fair notice may be
 provided by probation officer's instructions and directions).
[A      The Court's concern with the lack of guidelines for the residence
 condition is unfounded.  A probation condition should be understood in a
 reasonable way without requiring painstaking qualifiers to safeguard against
 an errant probation officer.  Any probation condition can be unreasonably
 supervised, and a probationer may petition the court for relief if that
 should happen.  The potential for abuse should not be presumed at the
 outset, and a probationer must demonstrate that a condition is prejudicial
 in fact, not merely in her imagination.
      The Court says that the rationale supporting the court's ability to
 intervene would also necessarily allow the probation officer to set all
 conditions.  It does not follow, however, that the sentencing court must so
 fine-tune the details of the conditions that nothing is left to a probation
 officer's discretion.  After all, unlike most judges, probation officers are
 specifically trained, experienced professionals whose daily activity is
 largely devoted to supervising criminal offenders.  Further, the
 unpredictability of future circumstances and the multifarious factual
 considerations that resist discrete characterization of criminal behavior
 and sentencing needs militate in favor of some degree of flexibility in
 fashioning probation conditions.
      My final concern with the exactitude the Court requires is the added
 appellate burden it will assuredly produce.  When a defendant is dis-
 satisfied with the degree of fine-tuning of a condition, today's decision
 does not require defendant to inform the sentencing court beyond an
 unspecific objection to the condition in its entirety.  Defendant here
 simply objected to the conditions and had no suggestions whatsoever as to
 how to fine-tune them.
      The last condition -- consent to searches, warrantless or not -- is not
 a condition that makes any sense, and I agree it should be struck.  I would
 not, however, remand to the trial court to redraft it to comply with
 Griffin v. Wisconsin.  The authority to search a probationer's person,
 premises, or possessions is governed by the Fourth Amendment and Article 11,
 which apply to everyone in Vermont.  Such doctrines as "special needs,"
 e.g., State v. Berard, 154 Vt. 306, 312, 576 A.2d 118, 121 (1990) ("special
 needs" justify warrantless searches in prison), or exigent circumstances --
 not a person's status as a probationer -- support a warrantless search
 under proper circumstances.  Such a search is valid under constitutional
 analysis, not because a probationer signed away the constitutional right.
 Although one may voluntarily relinquish constitutional rights, a probationer
 in no sense consents within the true meaning of that term.
      Nor do I find the approach approved here either workable or authorized
 by Griffin.  In Berard, we upheld a random search of prison cells, which
 officers conducted under clear, objective administrative guidelines and
 which was not arbitrarily directed against an individual prisoner.  Id. at
 314, 576 A.2d  at 122.  This approach is consistent with Griffin, allowing a
 search pursuant to a policy, which was itself found reasonable under
 constitutional standards.  The Berard approach offers individuals some
 protection from harassment because the policy and standards must be
 articulated in advance and applied equally to all.  See id. at 314, 576 A.2d 
 at 122-23 (guidelines "serve as basis to determine if prison policy in
 practice generally matches its theory, or whether corrections officials
 consistently and purposefully exercise prison cell searches for purposes
 beyond" asserted need for prison security).
      In contrast, what the Court proposes today is not that the Legislature
 or an administrative agency set standards for all probationary searches, but
 that a judge set specific standards for a single probationer in findings and
 conditions that are an awkward cross between making probation policy and
 issuing search warrants.  This function differs from that of a judge issuing
 a search warrant, neutrally reviewing specific facts and determining whether
 there is sufficient reason to permit a specific search under universal
 standards.  Rather, the Court's opinion calls on judges to draft
 hypothetical search warrants, identifying in advance what searches of an
 individual will be reasonable and how and when they may be conducted.  The
 Court's formulation is not only impractical, asking judges to anticipate
 future circumstances, but also unjust, making reasonableness a sliding scale
 rather than a uniform standard for all probationers.  I do not envy trial
 judges performing this task.
      I respectfully dissent.



                                         Associate Justice

------------------------------------------------------------------------------
                           Concurring and Dissenting

 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, 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.


                         No. 91-117


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 1, Windham Circuit

 Diane Moses                                  November Term, 1991


 Arthur J. O'Dea, J.

 Christopher C. Moll, Chittenden County Deputy State's Attorney,
   Brattleboro, for plaintiff-appellee

 Charles Martin of Martin & Paolini, Barre, for defendant-appellant


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      JOHNSON, J., concurring and dissenting.   I agree with the Court's
 decision to  uphold conditions 24 and 25 and strike conditions 18, 23, and
 26.  I agree, however, with Justice Morse's reasoning that condition 26
 should not be remanded.




                               Denise R. Johnson, Associate Justice