State v. Bogert (2011-253)


2013 VT 13


[Filed 22-Feb-2013]


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: 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.



2013 VT 13


No. 2011-253


State of Vermont

Supreme Court




On Appeal from


Superior Court, Franklin Unit,


Criminal Division



Thomas Bogert, Jr.

October Term, 2012





A. Gregory Rainville, J. (motions to suppress and dismiss); Mark J. Keller (final judgment)


Diane C. Wheeler, Franklin County Deputy State’s Attorney, St. Albans, for Plaintiff-Appellee.


Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.



PRESENT:  Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.



¶ 1.             ROBINSON, J.   This case tests the permissibility, under the Vermont Constitution, of a warrantless and suspicionless search of a convicted offender furloughed to his home and subject to a standard condition of a conditional reentry agreement that provides for such searches.  We conclude that the search in this case satisfied the requirements of the Vermont Constitution applicable to offenders on a conditional reentry status and, accordingly, affirm.

¶ 2.             In January 2005, defendant Thomas Bogert pleaded guilty to two counts of possession of child pornography and no contest to one count of aggravated sexual assault and one count of sexual assault.  He was sentenced to a total of three to twenty-three years, eight years to serve, with the balance suspended.  Defendant signed a probation order that included thirty-five conditions.  One of defendant’s special conditions, Condition # 38, said:

You shall not possess or utilize any computer that has [internet] access without prior approval of your PO and supervised by a person approved by your PO.  If your PO approves any use of a computer with internet access as described above, that computer and any related media will be subject to periodic inspection to assure compliance with your conditions of probation. 


¶ 3.             In February 2007, defendant admitted to violating his probation after testing positive for cannabinoids; at the sentencing hearing for the violation of probation (VOP), the court maintained defendant’s probation conditions and added a condition that he not possess any pornography in his home. 

¶ 4.             In July 2007, defendant signed a Terms of Release/Supervision agreement with the Department of Corrections (DOC) allowing him to serve the remainder of the incarcerative portion of his split sentence in the community on a conditional reentry status.  The agreement contained the following standard condition: “I agree to submit my person, place of residence, vehicle or property to a search at any time of the day or night by the department of corrections staff.” 

¶ 5.             In March 2009, two community correctional officers from DOC and a State Trooper conducted a “sex offender compliance check” at defendant’s home and collected evidence from computers that demonstrated a violation of the terms of his conditional release and the terms of his probation.  The DOC took defendant into custody and suspended his conditional reentry status.  In addition, the State issued a probation violation complaint against defendant for violating the probation conditions prohibiting possession or use of a computer with internet access without prior approval and prohibiting possession of any pornography, adult or otherwise. 

¶ 6.             Defendant filed a motion to dismiss the probation violation complaint and a motion to suppress the evidence gathered in the search of defendant’s home.  In particular, defendant sought dismissal of the probation violation complaint on the grounds that the underlying probation conditions were unconstitutionally overbroad, vague, and unrelated to his conviction.  With respect to the suppression issue, defendant argued that the search of his residence was involuntary and unreasonable pursuant to both the United States and Vermont constitutions.  See U.S. Const. amend. IV; Vt. Const. ch. I, art. 11. 

¶ 7.             The court denied the motion to dismiss because it found that it was an impermissible collateral challenge to defendant’s unappealed probation conditions.  See State v. Austin, 165 Vt. 389, 402, 685 A.2d 1076, 1084-85 (1996).  The court also denied defendant’s motion to suppress on the grounds that defendant’s status on conditional reentry made “his residence effectively . . . his prison cell,” and the search pursuant to DOC guidelines complied with the requirements for conducting routine, random, warrantless searches of inmates’ cells.  See  State v. Berard, 154 Vt. 306, 576 A.2d 118 (1990).  Defendant appeals the trial court’s denial of his motion to suppress.

¶ 8.              “On appeal of a motion to suppress, we review the trial court’s legal conclusions de novo and its factual findings for clear error.”  State v. Paro, 2012 VT 53, ¶ 2, ___ Vt. ___, 54 A.3d 516


¶ 9.             First, we consider defendant’s argument under the Fourth Amendment to the U.S. Constitution.  The U.S. Supreme Court has recognized exceptions to the general rule that searches must be undertaken “only pursuant to a warrant (and thus supported by probable cause . . .)” in certain categories of searches in which “special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.”  Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (quotation omitted).  Accordingly, the Court has allowed warrantless, work-related searches by supervisors of government employees’ desks and offices without probable cause and warrantless searches by school officials of some student property without probable cause.  Id.  The Court has also held that “in certain circumstances government investigators conducting searches pursuant to a regulatory scheme need not adhere to the usual warrant or probable-cause requirements as long as their searches meet ‘reasonable legislative or administrative standards.’ ”  Id. (quoting Camara v. Municipal Court, 387 U.S. 523, 538 (1967)).

¶ 10.         In Griffin, the Supreme Court considered a warrantless search of a probationer conducted by probation officials pursuant to an administrative regulation allowing probation officers to search a probationer’s home without a warrant as long as there are “reasonable grounds” to believe contraband is present.  Id. at 870-71.  The Court acknowledged that “[a] State’s operation of a probation system, like its operation of a school, government office or prison, or its supervision of a regulated industry, likewise presents ‘special needs’ beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements.”  Id. at 873-74.  The Court noted that probation was on “a continuum of possible punishments ranging from solitary confinement in a maximum-security facility to a few hours of mandatory community service,” and identified a number of different options between those extremes, “including confinement in a medium- or minimum-security facility, work-release programs, ‘halfway houses,’ and probation—which can itself be more or less confining depending upon the number and severity of restrictions imposed.”  Id. at 874.  The Court recognized that probationers, like parolees, “do not enjoy ‘the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special [probation] restrictions.’ ”  Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 480 (1972)).  Those restrictions are designed to promote the rehabilitative goals of probation, and to ensure that the community is not harmed by the probationer’s being at large—goals that justify the exercise of supervision to ensure compliance with the restrictions.  Id. at 875. 

¶ 11.         Given these considerations, the Court concluded that supervision “is a ‘special need’ of the State permitting a degree of impingement upon privacy that would not be constitutional if applied to the public at large.”  Id.  The Court recognized that a state’s ability to impinge a probationer’s privacy is not unlimited, but relying on a “special-needs” analysis, the Court approved the search that had been conducted by probation officials pursuant to a state regulation that authorized warrantless searches of probationers upon reasonable grounds.  Id. at 880.

¶ 12.         The Court subsequently considered the constitutionality of a warrantless search of a probationer’s home by a law enforcement officer that was not conducted pursuant to a probation supervision scheme as in GriffinUnited States v. Knights, 534 U.S. 112 (2001).  The defendant in Knights had signed a probation condition that required him to “[s]ubmit his . . . person, property, place of residence, vehicle, personal effects, to search at anytime, with or without a search warrant, warrant of arrest or reasonable cause by any probation officer or law enforcement officer.”  Id. at 114.  The Court did not extend the “special needs” rationale relied upon in Griffin, but instead applied a “general Fourth Amendment approach of examining the totality of the circumstances, with the probation condition being a salient circumstance.”  Id. at 118 (quotation and citation omitted).  The Court determined that it was reasonable to conclude that the search condition would further the goals of rehabilitation and protecting society that it had identified in Griffin, and stressed that the clear and unambiguous probation condition “significantly diminished [the defendant’s] reasonable expectation of privacy.”  Id. at 119-20.  Balancing the defendant’s privacy rights against the state’s legitimate interests, the Court concluded that the Fourth Amendment required no more than a reasonable suspicion for a search of the probationer’s home.  Id. at 121.  Because the state undisputedly had reasonable suspicion to support the search, the Court expressly declined to decide the question of whether the probation condition purporting to allow for a suspicionless search was constitutional.  Id. at 120 n. 6.

¶ 13.         Five years later, in Samson v. California, 547 U.S. 843 (2006), the Court considered the constitutionality of a suspicionless search—this time of a parolee.  A police officer stopped the defendant in the street and, knowing him to be on parole, conducted a warrantless search.  Id. at 846-47.  California law required, as a condition of parole, that parolees “agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause.”  Id. at 846 (quotation omitted). 

¶ 14.         The U.S. Supreme Court considered the totality of the circumstances “to determine whether [the] search [was] reasonable within the meaning of the Fourth Amendment.”  Id. at 848.  With respect to the defendant’s interests, the Court said that “on the continuum of state-imposed punishments . . . parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment.”  Id. at 850 (quotation omitted).  The Court explained, “[P]arole is an established variation on imprisonment of convicted criminals.  The essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abide by certain rules during the balance of the sentence.”  Id. (quotation and alteration omitted).  The Court cited the First Circuit favorably for the proposition that “ ‘on the . . . continuum of possible punishments, parole is the stronger medicine; ergo, parolees enjoy even less of the average citizen’s absolute liberty than do probationers.’ ”  Id. (quoting United States v. Cardona, 903 F.2d 60, 63 (1st Cir. 1990)).  Reviewing a litany of restrictions on liberty applicable to parolees outside of custody—from limitation on travel to reporting requirements concerning changes in employment—the Court reasoned that “[t]he extent and reach of these conditions clearly demonstrate that parolees like petitioner have severely diminished expectations of privacy by virtue of their status alone.”  Id. at 852.  The Court pointed to defendant’s acceptance of the search condition as a critical factor and concluded that the defendant “did not have an expectation of privacy that society would recognize as legitimate.”  Id

¶ 15.         On the other side of the balance, the Court found the state had an “overwhelming interest” in supervising parolees because, as demonstrated by the nearly 70% recidivism rate of California parolees, “parolees are more likely to commit future criminal offenses.”  Id. at 853-54 (quotation and alteration omitted).  The Court focused on the state’s interest in “reducing recidivism and thereby promoting reintegration and positive citizenship among probationers and parolees.”  Id. at 853.  The Court accepted that “given the number of inmates the State paroles and its high recidivism rate, a requirement that searches be based on individualized suspicion would undermine the State’s ability to effectively supervise parolees and protect the public from criminal acts by reoffenders” by affording those parolees a greater opportunity to “anticipate searches and conceal criminality.”  Id. at 854.  In light of the above, the Court concluded that the Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee.  Id. at 857.

¶ 16.         In light of Samson, defendant’s federal constitutional claim is doomed to fail.  His Fourth Amendment expectation of privacy, given his conditional reentry status subject to the agreed-upon condition that he submit to a search at any time, is no greater than that of the defendant in Samson, and the State’s supervision goals are no weaker than those of California.  Accordingly, we reject defendant’s Fourth Amendment challenge to the search in this case.


¶ 17.         Two decisions bookend our analysis under Article 11 of the Vermont Constitution.*  At one end of the spectrum is our decision in Berard, 154 Vt. 306, 576 A.2d 118, relied-upon by the trial court in concluding that the search here was appropriate.  In that case, we concluded that a “routine and random warrantless search of a defendant’s prison cell, conducted without probable cause or any quantum of particularized suspicion,” did not violate the defendant’s rights under Article 11.  Id. at 307, 576 A.2d at 119.  At the outset, we reaffirmed that, although “[t]he language of Article Eleven does not expressly limit its protection to ‘unreasonable’ searches and seizures” like the Fourth Amendment to the U.S. Constitution, we have “consistently interpreted Article Eleven as importing the ‘reasonableness’ criterion of the Fourth Amendment.”  Id. at 309, 576 A.2d at 120.  We also made it clear, though, that the requirements of Article 11 do not necessarily track those of the Fourth Amendment.  Id. at 310-11, 576 A.2d at 120-21

¶ 18.         We reviewed the U.S. Supreme Court’s conclusion that “ ‘prisoners have no legitimate expectation of privacy and that the Fourth Amendment’s prohibition on unreasonable searches does not apply in prison cells,’ ” and concluded that the Court had established a “ ‘bright line’ rule” that was based upon “implicit, fixed assumptions about the nature of prison life and prison administration that override the facts of particular cases and remove from the courts the critical job of reviewing the facts.”  Id. at 310, 576 A.2d at 120 (quoting Hudson v. Palmer, 468 U.S. 517, 530 (1984)).  In construing Article 11, in contrast, we emphasized that the drafters of Article 11 “vested responsibility and authority in the judiciary to review and restrain overreaching searches and seizures by the government,” and rejected an approach that would “derogate the central role of the judiciary in Article Eleven jurisprudence.”  Id. (quotation omitted).

¶ 19.         Distinguishing our Article 11 standard from that of the Fourth Amendment, we held that this Court would depart from the warrant and probable-cause requirements “only in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.”  Id. at 310-11, 576 A.2d at 120-21 (quotation and alteration omitted).  In such cases, using a balancing test, we would “then try to identify a standard of reasonableness, other than the traditional one, suitable for the circumstances.”  Id. at 311, 576 A.2d at 121 (quotation omitted).  We cautioned, however, that “[t]he warrant and probable-cause requirements . . . continue to serve as a model in the formulation of [a] new standard.”  Id. (quotation omitted). 

¶ 20.         Considering the specific issue before us in that case—warrantless searches of prison cells—we concluded that the State had met its threshold burden of demonstrating a special need requiring departure from the ordinary warrant requirement.  Id. at 312, 576 A.2d at 121.  We pointed to the objectives in a prison environment of “guarding against drugs and other contraband, like illicit weapons, thwarting escape, and maintaining a sanitary and healthful environment.”  Id. at 312, 576 A.2d at 122.  Turning to the balancing test, we identified three factors central to our analysis of the permissibility of a random search of a prison cell: (1) the establishment of clear, objective guidelines by a high-level administrative official; (2) the requirement that those guidelines be followed by implementing officials; and (3) no systematic singling out of inmates in the absence of probable cause or articulable suspicion.  Id. at 314, 576 A.2d at 122.  Because the State had established that the search was conducted pursuant to a written plan that was not unreasonable and that the plan was followed during the search, and because the defendant did not show any particular pattern of arbitrary conduct or particularized unfairness in the conduct of the search, we concluded that the random search of the inmate’s cell did not violate his “residuum of privacy rights.”  Id. at 313, 317-18, 576 A.2d at 122, 124.

¶ 21.         We applied Article 11 close to the other end of the “continuum of state-imposed punishments” in State v. Lockwood160 Vt. 547, 632 A.2d 655 (1993).  In that case, probation officials who had “reasonable grounds” conducted a warrantless search of the private quarters of an offender.  The defendant’s probation conditions allowed for such a search.  We reviewed the U.S. Supreme Court’s decision in Griffin and concluded that, although the probation officer in Lockwood acted pursuant to a probation condition rather than a state regulation, the Griffin framework applied to our Fourth Amendment and Article 11 analyses because “when probation conditions are supported by the findings and are narrowly tailored to fit the circumstances of the individual probationer[,] probation searches based on reasonable suspicion can have the same indicia of reasonableness as the search upheld in Griffin.”  Id. at 556, 632 A.2d at 661 (quotation and alterations omitted).  In Lockwood, we found that the probation condition in question was supported by the findings—the defendant was uniquely at risk of reoffending given his own history of abuse, his developmental delay, and his demonstrated compulsions.  Id. at 557, 632 A.2d at 662.  We likewise reasoned that the court’s expressed concerns regarding the defendant’s compulsive sexual urges provided sufficient guidance to the officers conducting the search to meet the requirement that the condition be narrowly tailored to fit the circumstances of the individual probationer.  Id. at 558, 632 A.2d at 662.

¶ 22.         Significantly, in Lockwood we noted that the probation condition as actually written—such that it purported to allow a warrantless and suspicionless search of defendant’s home—was invalid.  We concluded that the absence of a “reasonableness” limitation in the probation condition was not objectionable “so long as the decision to search was in fact narrowly and properly made on the basis of reasonable suspicion.”  Id. (quotation and alteration omitted).

¶ 23.         Given that we have previously acknowledged such special needs across the corrections continuum—from incarceration to probation—we have no problem concluding that a special need applies in the context of a convicted sex offender released into the community on conditional reentry. 

¶ 24.         The more difficult question is how to balance the competing state and individual interests in this case.  Is the trial court correct that conditional reentry is sufficiently analogous to actual incarceration that the three-factor test we applied in Berard—a test that does not require individualized reasonable suspicion—strikes the most reasonable balance between individual privacy interests and the State’s own important goals? 

¶ 25.         Is the status of conditional reentry more akin to probation such that reasonable suspicion is a prerequisite to a search?  See Green v. State, 719 N.E.2d 426, 430 (Ind. Ct. App. 1999) (“Generally, work release is . . . more restrictive . . . than probation since work release participants are actually jail inmates who must return to the jail when not working . . . . Nevertheless, an inmate who has been released for work closely resembles a probationer. . . . Therefore, a condition of work release that purports to require a participant to submit to a search or seizure without reasonable suspicion is overly broad.”); People v. Woods, 535 N.W.2d 259, 261 n.2. (Mich. Ct. App. 1995) (“In light of defendant’s status as a prisoner within the [community residential program (CRP)], an argument can be made that his expectation of privacy is even less than that of a probationer or parolee.  However, we believe that placement in the CRP should be found to be analogous to parole; in both situations, the prisoner has demonstrated, through his behavior, that he is not required to remain in prison.”). 

¶ 26.         Or, because it falls between these points on the spectrum, does defendant’s status call for a different analysis altogether?  See  Kopkey v. State, 743 N.E.2d 331, 336-37 (Ind. Ct. App. 2001) (“On the ‘continuum of possible punishments’ . . . in-home detention lies somewhere between incarceration and probation, where as here in-home detention is through a direct commitment to community corrections as opposed to being a condition of probation.”). 

¶ 27.         From the perspective of the State’s interests, it is difficult to distinguish conditional reentry status from probation.  In both settings, the State’s interests in rehabilitation and reduction of recidivism, as well as in public protection, provide the rationale for departing from the ordinary requirement of probable cause and a warrant.  The burden of a reasonable suspicion requirement would seem to weigh equally on the State in the two contexts.  On the other hand, the unique obstacles a “reasonable suspicion” requirement would impose on the State’s efforts to “guard[] against drugs and other contraband, like illicit weapons, thwart[] escape, and maintain[] a sanitary and healthful environment” in a corrections facility are not as clear in a situation in which the offender is at home.  Berard, 154 Vt. at 312, 576 A.2d at 122.

¶ 28.         From the perspective of defendant’s interests and reasonable expectation of privacy, his circumstances, superficially, may look very similar to that of a probationer.  An offender on conditional reentry status may be free to leave home and to work in the community.  Agency of Human Services Department of Corrections Directive 371.15 & Conditional Re-entry, Attachment A, Terms of Release (Mar. 28, 2008), available at policies/rpd/correctional-services-301.550/corr_services.  By the same token, many probationers are subject to the same kinds of restrictions as those on conditional reentry—including drug and alcohol testing, reporting, and controlled travel.  Compare id., with 28 V.S.A. § 252 (providing standard probation conditions).  However, one critical difference distinguishes a probationer (or parolee) from an individual furloughed in a program of conditional reentry:  In contrast to a probationer, an individual on furlough has no statutorily or constitutionally protected right to remain on conditional reentry status, and is subject to reincarceration at the discretion of the Commissioner of Corrections with no due process protections.  See 28 V.S.A. § 808(c) (“The extension of the limits of the place of confinement . . . shall in no way be interpreted as a probation or parole of the offender, but shall constitute solely a permitted extension of the limits of the place of confinement for offenders committed to the custody of the commissioner.”); Conway v. Cumming, 161 Vt. 113, 119, 636 A.2d 735, 738 (1993) (furloughee has no constitutionally-protected liberty interest nor statutorily protected interest in furlough status and Commissioner of Corrections can revoke furlough status without hearing).  In Conway, we described an offender’s status under furlough as most closely resembling “that of an inmate seeking a particular right or status within an institution, rather than that of a parolee,” and we noted that in contrast to a parolee, an individual on furlough is still “in lawful custody” for the purposes of the crime of escape.  Id. at 116 & n.3, 636 A.2d at 737 & n.3 (quotation omitted). 

¶ 29.         Although this distinction speaks to the respective due process rights of individuals on furlough as contrasted with those of probationers or parolees, rather than their respective Article 11 rights, there is a connection:  The scope of an offender’s reasonable expectation of privacy in the home, when he or she can be returned to a correctional facility at the discretion of the Commissioner of Corrections, is not as extensive as that of a probationer.  It would be odd to suggest that an individual on furlough is subject to being seized and returned to prison with no process, but cannot be held to an agreement to conditions of reentry that allow for the lesser intrusion of a random search.  Cf. State v. Wetter, 2011 VT 111, ¶ 11, 190 Vt. 476, 35 A.3d 962 (“[I]n order to invoke Article 11 protection, a person must exhibit an actual (subjective) expectation of privacy that society is prepared to recognize as reasonable.” (quotation omitted)).

¶ 30.         On the basis of these considerations, we conclude that the trial court did not err in applying the framework we articulated in Berard, rather than a reasonable-suspicion standard along the lines of Lockwood

¶ 31.         As noted above, in Berard we considered the establishment of clear, objective guidelines by a high-level administrative official, the requirement that the guidelines be followed, and the absence of singling-out of particular individuals without probable cause or articulable suspicion as critical factors in upholding the random search of an inmate’s cell.  154 Vt. at 314, 576 A.2d at 122.  Defendant argues that even if the Berard framework applies, the trial court failed to determine that the search of defendant’s house was a random compliance check as required, and did not make any finding that defendant was not singled out.

¶ 32.         Defendant raises this argument for the first time on appeal; before the trial court, defendant argued for suppression solely on the legal basis that a search without reasonable suspicion violated Article 11, and did not offer or request an evidentiary hearing on the question of whether the “sex offender compliance check” that gave rise to the disputed search satisfied the criteria we articulated in Berard.  Had defendant argued below that the search also failed to meet the criteria of a permissible random search pursuant to Berard, the trial court would have been prompted to take evidence and to make findings addressing that argument.  This is precisely the reason we do not address arguments on appeal that were not raised below.  Bull v. Pinkham Eng'g Assocs., Inc., 170 Vt. 450, 459, 752 A.2d 26, 33 (2000) (“Contentions not raised or fairly presented to the trial court are not preserved for appeal.”)

















Associate Justice


*  Article 11 states: “That the people have a right to hold themselves, their houses, papers, and possessions, free from search or seizure; and therefore warrants, without oath or affirmation . . . ought not to be granted.”  Vt. Const. ch. I, art. 11.