State v. Steinhour

 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, 111 State Street, Montpelier, Vermont 05602 of any errors in order
 that corrections may be made before this opinion goes to press.


                                 No. 91-096


 State of Vermont                             Supreme Court

      v.                                      On Appeal from
                                              District Court of Vermont,
 Linwood Steinhour                            Unit No. 2, Franklin Circuit

                                              February Term, 1992


 George T. Costes, J.

 James A. Hughes, Franklin County Deputy State's Attorney, St. Albans, for
   plaintiff-appellee

 E.M. Allen, Defender General, and William A. Nelson, Appellate Defender,
   Montpelier, for defendant-appellant


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



      MORSE, J.   Defendant appeals a judgment revoking his probation based
 on admissions of drug use he made to his probation officer.  He claims these
 statements should not have been used against him because they were compelled
 in violation of his privilege against self-incrimination.  We affirm.
      Defendant was convicted of lewd and lascivious conduct with a child,
 sentenced to 1-5 years, suspended, and placed on probation with conditions.
 The conditions included requirements that defendant report to his probation
 officer as the officer required, that he participate in any program to which
 his probation officer referred him, and that he not "purchase, possess or
 consume regulated drugs."  The probation form advised that if he violated
 any of the conditions, he could "be brought before the court to be further
 dealt with according to law."
      During a routine meeting to review his probationary status, the
 probation officer asked defendant if he had been abstaining from drugs and
 "would [he] come clean" if given a urinanalysis test.  Defendant responded
 by admitting he had smoked marijuana.  At a subsequent meeting, defendant
 told the probation officer that he had been using marijuana "once a week to
 once a month," and at a later meeting when asked about his drug use, he told
 his probation officer that he had been smoking between one and two joints a
 day.  The court revoked defendant's probation on this evidence.
      Defendant does not claim a failure to warn him of his privilege
 against self-incrimination under Miranda.  Rather, he maintains that the
 circumstances supported a reasonable belief that an assertion of the
 privilege would itself be a ground to revoke probation, which rendered his
 confessions involuntary.  Assuming defendant's probationary status required
 him to answer the officer's questions and a refusal to answer them under a
 claim of privilege against self-incrimination could be a ground to revoke
 probation, we conclude defendant's answers did not violate his privilege
 against self-incrimination under either the Fifth Amendment (FN1) or the 
 Vermont Constitution. (FN2)
      We recognize that the existence of the privilege in these circumstances
 compels a defendant to choose between three alternatives: answering truth-
 fully or falsely or remaining silent.  If defendant is guilty of conduct
 which is a violation of probation, whether it is the conduct admitted in his
 answers to the probation officer's questions or other conduct, his answers
 are relevant and may be used against him in the revocation hearing.  That is
 because defendant is not being compelled to give statements to be used
 against him in a criminal proceeding.
      Defendant relies on a case decided by the United States Supreme Court,
 Minnesota v. Murphy, for the proposition that:
           The general rule that the privilege must be claimed
         when self-incrimination is threatened has . . . been
         deemed inapplicable in cases where the assertion of the
         privilege is penalized so as to "foreclos[e] a free
         choice to remain silent, and . . . compe[l] . . .
         incriminating testimony."

 465 U.S. 420, 434 (1983) (quoting Garner v. United States, 424 U.S. 648,
 661 (1976).  In Murphy, as here, a probationer made incriminating admissions
 during a meeting with his probation officer without asserting his privilege
 to remain silent.
      Defendant, however, misconstrues the impact of Murphy when he takes it
 a step further and asserts that the "compelled" statements cannot be used in
 a noncriminal proceeding.  Murphy involved a claim of "waiver" of the privi-
 lege by the probationer's  failure to assert the privilege when questioned
 by a probation officer.  Murphy is readily distinguished because there the
 state sought to introduce defendant's statements in a criminal proceeding,
 namely, his prosecution for first-degree murder.  Simply put, the privilege
 does not prevent compelled testimony of the sort elicited here to be used in
 a probation revocation proceeding.
      Nor does the potential that the State might prosecute defendant on drug
 charges, and seek to use his admitted drug consumption against him, change
 the nature of this case.  The State did not criminally charge him and if it
 had done so, a motion to suppress would stand squarely in both the Fifth
 Amendment and Article 10.  As stated in Murphy:
           There is thus a substantial basis in our cases for
           concluding that if the State, either expressly or by
           implication, asserts that invocation of the privilege
           would lead to revocation of probation, it would have
           created the classic penalty situation, the failure to
           assert the privilege would be excused, and the
           probationer's answers would be deemed compelled and
           inadmissible in a criminal prosecution.

 Id. at 435 (emphasis added).
      If answers to a probation officer's legitimate questions are subject to
 the privilege against self-incrimination in a revocation proceeding, a core
 purpose of probation would be undermined.  Such a view has been expressly
 rejected.  "[A] state may validly insist on answers to even incriminating
 questions and hence sensibly administer its probation system, as long as it
 recognizes that the required answers may not be used in a criminal
 proceeding and thus eliminates the threat of incrimination."  Id. at 436
 n.7; see also, Asherman v. Meachum, 60 U.S.L.W. 2566 (2d Cir. Feb. 13,
 1992) (No. 90-2530) (administrative revocation of convicted defendant's
 supervised home release following his refusal to answer questions that might
 tend to incriminate but that are relevant to proper exercise of
 administrative authority does not violate Fifth Amendment privilege against
 compelled self-incrimination).  We are not faced with overreaching behavior
 by authorities to extract information from a probationer and need not
 address in this case conduct that may be so offensive as to violate due
 process.
      Conceding that the State may compel answers to relevant questions about
 conditions of probation, defendant contends that the State is required to
 advise the probationer that his answers will not be used against him in a
 criminal proceeding.  A failure to comply with this requirement, however,
 will be relevant only when the State seeks to use the statements in a
 criminal proceeding.  It does not follow that what the State is precluded
 from doing in a hypothetical case not before us somehow taints the
 procedure in this case.  The purpose of a probation officer's questions
 about the probationer's behavior related to and affecting his probation is
 ordinarily not aimed at ferreting out evidence to support an additional
 criminal prosecution.  To require a probation officer to explicitly assure a
 probationer that any statements made will not be used against a probationer
 in a criminal proceeding to make them admissible in a revocation proceeding
 is an overtechnical use of the law for no apparent purpose.
      Affirmed.


                                    FOR THE COURT:



                                    _______________________________________
                                    Associate Justice





FN1.       "No person . . . shall be compelled in any criminal case to be a
 witness against himself."  U.S. Const. amend. V.

FN2.        "[I]n all prosecutions for criminal offenses, a person [cannot] be
 compelled to give evidence against himself."  Vt. Const. ch. I, art. 10.