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State of Vermont v. Thomas Bogert

February 22, 2013


On Appeal from Superior Court, Franklin Unit, Criminal Division October Term, 2012 A. Gregory Rainville, J. (motions to suppress and dismiss); Mark J. Keller (final judgment)

The opinion of the court was delivered by: Robinson, J.

State v. Bogert (2011-253)

2013 VT 13

Supreme Court

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

¶ 1. 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 re-entry 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 re-entry 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 re-entry 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 re-entry 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 re-entry 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 Statev. Berard, 154 Vt. 306, 576 A.2d 118 (1990). Defendant appeals the trial court's denial of his motion to suppress.

ΒΆ 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 ...

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