This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.
¶ 1. Defendant Patricia Kane appeals the trial court's conclusion that she violated a special probation condition requiring her to abide by electronic monitoring, specifically a global position system (GPS) monitor. On appeal, she claims that the condition was an improper delegation of authority, failed to notify her of the conduct constituting a violation, and violated her constitutional right to travel and her right to be free of unreasonable searches. Defendant also claims that, after the probation revocation hearing, the court improperly imposed defendant's original conditions, including the electronic monitoring condition. We affirm.
¶ 2. Because defendant took her son from his legal custodian and crossed state lines, the State charged her with second degree unlawful restraint under 13 V.S.A. § 2406(a)(3) and custodial interference pursuant to 13 V.S.A. § 2451. An information and accompanying affidavit were filed on January 28, 2014, the same day a warrant was issued for defendant's arrest. Defendant was arrested and arraigned on January 31, 2014. Subsequently, on July 8, 2014, she pled guilty to the custodial interference charge, and the State dismissed the unlawful restraint charge.
¶ 3. After a contested sentencing hearing on October 2, 2014, the court sentenced defendant to two to five years, all suspended, except for one year. Additionally, the court imposed conditions A-S and several special conditions. Those special conditions included Condition 32, which required defendant to "abide by all electronic monitoring as directed by your probation officer," and Conditions 33-35, which directed defendant to stay 500 feet from her son's school and residence, to avoid contacting her son without authorization from the court or the Department for Children and Families (DCF), and to obey all DCF orders. Defendant did not directly appeal these conditions.
¶ 4. After serving the unsuspended portion of her sentence, defendant was released to the community on the probation conditions imposed by the court. Under Condition 32, the Department of Corrections (DOC) required defendant to be electronically monitored using a GPS unit. The GPS unit used to monitor defendant has three components: the first part, the base charging station, connects to a standard electrical outlet and to defendant's telephone landline; the second component, an ankle bracelet, is a small black box that is permanently attached to defendant's ankle with a rubber strap; and the third piece is an XT unit, which must be worn by defendant unless it is being charged. To maintain a charge, the XT unit must be charged in the base charging station for two hours, twice a day, for a total of four hours. While the XT unit is charging, defendant must remain close to the base charging station.
¶ 5. The GPS unit reports defendant's location and any violations either via cellular service or via the base charging station's landline connection. If there is no cellular service—as is true at defendant's home—the GPS unit does not report defendant's location until the XT unit links with the base charging station and the data can be uploaded using the base charging station's landline connection. When defendant commits certain violations, such as remaining out past curfew or allowing the battery to deplete, a text message displays on the XT unit explaining how defendant can fix the issue; for example, the message instructs defendant to return home or to place the XT unit in the charger. Similarly, if defendant disconnects the base charging station's landline connection and cellular service is unavailable in the area, a message indicates that the base charging station and XT unit are unable to connect. Violations such as these are recorded by the 3M Electronic Monitoring Website, and an email alert is sent to a community corrections officer (CCO). CCOs are responsible for managing electronic monitoring and communicating with defendant and her probation officers regarding compliance. Generally, after receiving an email alert, a CCO will contact defendant and attempt to remedy the violation.
¶ 6. Over the course of several months—November 3, 2015, December 31, 2015, and February 2, 2016—the State charged defendant with three violations of probation (VOPs) involving her GPS unit and curfew.
¶ 7. The State's case began with the testimony of defendant's first probation officer. The probation officer testified that the alleged November 2015 violation was based on defendant's failure to charge her XT unit twice daily and, as a result, defendant's failure to abide by all electronic monitoring as directed by the probation officer. Despite the charging requirement and the probation officer's attempts to address the charging problem without filing a VOP, defendant repeatedly and continually failed to charge the XT unit, including a period during which the unit was not charged for forty-eight hours. When questioned about her inability to keep the XT unit charged, defendant variously told the officer that it was not convenient to charge when she travelled, that her rabbit chewed the charger's cord, and that she did not believe that she should be monitored with a GPS unit. Without the GPS unit, the probation officer testified that she could not effectively monitor defendant or ensure that defendant did not violate the condition requiring her to stay five hundred feet from her son's school and residence.
¶ 8. The next witness for the State was the probation officer's supervisor. The supervisor corroborated the probation officer's testimony that keeping the GPS unit charged was an ongoing issue. According to the supervisor, defendant first explained that she could not keep the unit charged because of a defective base charging station, so the probation office provided her with a new unit. The supervisor also reiterated that the electronic monitoring condition, as implemented with a GPS unit, was a necessary condition based on defendant's conviction.
¶ 9. Probationer's CCOs testified to similar effect. The first CCO testified that defendant failed to keep the XT unit charged, despite clear instructions that the unit should be charged twice daily, for two hours at a time. For example, on October 4, 2015, the CCO received an email alert that the XT unit's battery was dead; when the officer contacted defendant, she explained that a rabbit chewed the charger cord and that she was in Newport, Vermont, and unable to get a new charger at that time. Likewise, another CCO testified that, although he had many conversations with defendant about keeping her XT unit charged, a printed report demonstrated multiple instances when the unit was not charged. In general, moreover, all of the CCOs indicated that they never discovered any mechanical issue with the GPS unit when they inspected it.
¶ 10. Defendant's second probation officer testified to the basis for the February 2016 VOP charges, which also involved violating the rules of the electronic monitoring condition. According to this probation officer, defendant failed to comply with the electronic monitoring requirement almost daily. Moreover, like defendant's first officer, the second officer testified that monitoring was required based on the circumstances of defendant's conviction, specifically to ensure that she was not contacting her son.
¶ 11. The second probation officer's testimony was reinforced by another CCO's testimony. This CCO testified that he began monitoring defendant in early January 2016 and, during an eighteen-day period, he noticed ninety-six violations. Primarily, these violations involved disconnecting the base charging station from the telephone landline and plugging only the defendant's home phone into the landline, including a period when the base charging station was disconnected from the landline for sixty-eight hours. According to the CCO, defendant explained that she disconnected the base charging station because the unit periodically made the sound of a fax machine on her home phone and this sound made the phone unusable. But the CCO indicated that he did not find any problem with the phone line or the base charging station when he tested the line.
¶ 12. Defendant, who represented herself at the VOP hearing, did not present any evidence. In her closing arguments, she argued that the electronic monitoring condition was an improper delegation of authority to the probation officers, that the lengthy electronic monitoring period was excessive given that she was a nonviolent offender, and that her probation could not be revoked solely on the basis of the accumulating technical violations, without considering her intent and other behavior during the time period. The State countered by claiming the evidence established defendant had repeated opportunities to comply with the electronic monitoring requirement and continually failed to do so, including a number of lengthy instances when the GPS unit was disconnected. Given the repeated and substantial violations, the State requested that the court revoke probation and require defendant to serve the remainder of her sentence.
¶ 13. In an oral decision from the bench, the court found that defendant violated Condition 32, the electronic monitoring condition. First, the court reiterated its previous conclusion that a legitimate purpose existed for imposing Condition 32 based on the nature of the offense and the need to ensure defendant did not contact her son without permission.
¶ 14. Probationer appealed to this Court. We review a trial court's conclusion that a defendant violated a probation condition in two steps.
¶ 15. On appeal, defendant argues that Condition 32 was an improper delegation of authority to the probation officer, that the condition failed to notify defendant of the conduct constituting a violation, and that Condition 32 violated defendant's constitutional rights because the condition is a warrantless search and unduly burdens defendant's privacy and travel rights. In addition, defendant claims that the court erred when it continued defendant's original conditions, including the electronic monitoring condition, after the probation revocation hearing.
I. Improper Delegation
¶ 16. Defendant's first claim is a collateral attack on Condition 32 and is therefore barred. We have previously held "that a probationer is barred from raising a collateral challenge to a probation condition that he [or she] was charged with violating, where the challenge could have been raised on direct appeal from the sentencing order."
¶ 17. In this case, there was a contested sentencing hearing before the trial court in October 2, 2014. At this hearing, the court had the opportunity to take evidence and to make factual findings to support the conditions of probation, including Condition 32. Defendant did not appeal the condition or the adequacy of the court's findings in support of the condition. Cf.
¶ 18. Now, in this appeal, defendant claims that our precedent renders this condition invalid because Condition 32 allowed "the probation officer to independently establish conditions." In particular, she references a line of cases beginning with
II. Lack of Notice
¶ 19. Defendant's next claim is that she did not have notice of what conduct constituted a violation of Condition 32. This argument is not barred as an improper collateral attack.
¶ 20. "To be charged with violating probation, a defendant must have notice before the initiation of a probation revocation proceeding of what circumstances will constitute a violation of probation."
¶ 21. Here, based on the facts stated on the record, defendant had notice of the probation terms and simply chose not to abide by them. First, defendant signed the probation agreement containing Condition 32. The signed agreement demonstrates defendant knew that she was required to abide by all electronic monitoring as directed by her probation officer.
III. Constitutional Claims
¶ 22. Defendant's third argument is that, as applied,
A. Right to Travel
¶ 23. We conclude that, as applied to defendant, Condition 32 did not limit her right to travel and, as a result, there was no error. Based on the condition's plain language, Condition 32 is not a restriction on travel, but a requirement that she abide by electronic monitoring.
¶ 24. But defendant, as a probationer, had no general right to travel beyond a specified area.
B. Right to be Free of Unreasonable Searches
¶ 25. Defendant claims that Condition 32 was an unreasonable search under the Fourth Amendment of the U.S. Constitution and Article Eleven of the Vermont Constitution. Because our analysis follows slightly different paths, we address defendant's Fourth Amendment and Article Eleven arguments separately.
i. Fourth Amendment
¶ 26. Placing a GPS device on a person's body to track the person's movements is a trespass that constitutes a search under the Fourth Amendment.
¶ 27. In examining defendant's privacy expectations under Fourth Amendment jurisprudence, her status as a probationer is a salient part of the inquiry.
¶ 28. On the other hand, recent federal decisions indicate that the nature of the search— constant GPS monitoring of defendant—may violate even a probationer's diminished expectation of privacy. Viewed under a certain light, for example, "[w]hat the technology yields and records with breathtaking quality and quantity is a highly-detailed profile, not simply of where we go, but by easy inference, of our associations—political, religious, amicable and amorous, to name only a few—and of the pattern of our professional and avocational pursuits."
¶ 29. Given these competing arguments regarding the nature of the search, the State's purpose for continually monitoring defendant warrants careful review under federal precedent. Generally, the U.S. Supreme Court and courts applying U.S. Supreme Court precedent have concluded that the government's dual interests in monitoring probationers—rehabilitation and protecting society from future criminal violations—permits some intrusion into a probationer's privacy that would otherwise violate the Fourth Amendment.
¶ 30. For example, in
¶ 31. In this case, the CCOs and probation officers repeatedly testified that the purpose of Condition 32 was to ensure defendant did not violate the special conditions prohibiting contact with her son. Beyond the State's general interest in rehabilitation and protection, such tracking measures were particularly relevant in this case because the underlying crime was a felony charge of removing a child from his rightful custodian and taking the child across state lines in violation of a court's custody order. Moreover, defendant's status as a probationer and her awareness of the electronic monitoring condition diminished her expectation of privacy. Thus, although we acknowledge that continual GPS monitoring may be particularly intrusive, under these circumstances, we conclude that Condition 32 is reasonable under the Fourth Amendment and that no error occurred in its application. See
ii. Article Eleven
¶ 32. Defendant also invokes Chapter I, Article Eleven of the Vermont Constitution,
¶ 33. GPS monitoring of a probationer is a search that falls within the scope of Article Eleven. See
¶ 34. This Court previously determined that probation supervision is a "special need" that allows the State to depart from the warrant and probable cause requirements.
¶ 35. In
¶ 36. In part, we distinguished these cases based on the different spots a probationer and a furloughed offender occupy along "the continuum of possible punishments."
¶ 37. In this case, although we recognize that defendant is on probation and thus enjoys a greater liberty interest than parolees or furloughees, we do not consider that fact to be dispositive when weighed along with the nature of the search. Defendant agreed to a clear probation condition allowing continual electronic monitoring. The critical distinction from
¶ 38. Moreover, even though defendant's privacy expectations may be stronger than a parolee's or furloughee's, defendant still does not possess privacy expectations equivalent to a person at liberty. At minimum, her ability to remain in the community is tied to her ability to abide by her probation conditions, curtailing her liberty interests and privacy expectations. Other factors further weaken defendant's privacy expectations. First, not only did defendant sign a document indicating that she would be subject to continued electronic monitoring, the court, her probation officers, and her CCOs explained the electronic monitoring condition to her multiple times. This agreement and the subsequent explanations put defendant on notice that she would be subject to electronic monitoring to further the State's rehabilitative and public-protection goals. Further, because the electronic monitoring reasonably related to the State's special need based on defendant's underlying offense, defendant knew that her privacy would be reduced to ensure the State could ascertain her location relative to her son.
¶ 39. Finally, the State's interest in monitoring defendant is strong. Generally, GPS monitoring of probationers allows the State to prevent recidivism and encourages rehabilitation in the community. In the context of this case, the State possesses limited means to ensure that defendant does not violate her conditions. The only means other than a GPS unit that the State could use to ensure defendant's compliance with the conditions are routine checks by probation officers, routine searches of her home, strict curfews and limitations on travel, or direct and continual observation of defendant or her son. Unlike these techniques, which would severely curtail defendant's liberty, the GPS monitoring is narrowly tailored to fit defendant's circumstances while allowing defendant some freedom and autonomy. See
¶ 40. As applied to defendant, we conclude that the warrantless and suspicionless GPS monitoring did not violate Article Eleven. Under these circumstances, defendant's limited privacy rights as a probationer do not outweigh the narrowly tailored condition, the State's strong interest in ensuring defendant's compliance, and the circumscribed nature of the search.
IV. Reimposed Probation Conditions
¶ 41. Defendant's final claim is that, after the court determined defendant violated her probation, the court erred by reimposing the same standard probation conditions and special conditions, including the electronic monitoring condition. Specifically, defendant claims that the reimposed conditions lack a sufficient nexus to her crime, are not narrowly tailored to the crime committed, and are not supported by factual findings.
¶ 42. Properly speaking, the conditions were not reimposed, but merely continued as part of defendant's original sentence. Thus, we conclude that defendant's three challenges to her probation conditions are collateral attacks on the original sentence and are barred.
¶ 43. Moreover, the circumstances here fit within the justifications supporting the collateral attack rule. Defendant had notice and opportunity to respond to the original conditions and did not directly challenge her sentence. See