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.
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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
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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[A 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
r[Aesidence. 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
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