This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40
On Appeal from Superior Court, Franklin Unit, Criminal Division. A. Gregory Rainville, J. (motions to suppress and dismiss); Mark J. Keller (final judgment).
William H. Sorrell, Attorney General, and John Treadwell, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.
Dawn Matthews, Prisoners' Rights Office, Montpelier, for Defendant-Appellant.
Present: Reiber, C.J., Dooley, Skoglund, Robinson and Crawford, JJ.
[¶1] This case tests the permissibility, under the Vermont Constitution, of a warrantless and suspicionless search of a convicted sex 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 Federal and Vermont constitutions and, accordingly, affirm.
[¶2] In January 2005, defendant Thomas Bogert, Jr. pleaded guilty to two counts of possession of child pornography, no contest to one count of aggravated sexual assault, and no contest to one count of sexual assault. On the two sexual-assault charges, defendant was sentenced concurrently to a minimum of three years and a maximum of fifteen years, all suspended, and was placed on probation subject to a series of conditions. On the two possession charges, defendant was sentenced to zero-to-four years each, to run consecutively both with each other and with the sexual-assault sentences. The expectation underlying this two-track sentence was that defendant would serve the sentences for the child pornography charges on conditional-reentry status so that he could secure treatment in the community in connection with those charges, and that after his completion of those sentences -- totaling up to eight years -- he would remain on probation for some period. Defendant signed a probation order that included thirty-five conditions. One condition prohibited defendant from possessing child pornography, and another special condition, Condition # 38, provided:
You shall not possess or utilize any computer that has [internet] access without prior approval by your [probation officer] 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 in connection with the sexual-assault charges after testing positive for cannabinoids. At the sentencing hearing for the violation of probation (VOP), the court maintained defendant's existing probation conditions and added a condition that he not possess any pornography in his home. His conditions already prohibited him from possessing child pornography. Defendant signed and agreed to the special conditions of probation and did not appeal the terms of his probation.
[¶4] In July 2007, defendant signed a terms of release/supervision agreement with the Department of Corrections (DOC) in connection with his serving 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 bye the department of corrections staff." Defendant at this point was subject to a dual status -- serving his sentence in the community on the possession charges and on probation for the sexual-assault charges -- and was subject to the conditions of both the probation agreement and the conditional-reentry agreement.
[¶5] In March 2009, two community correctional officers from DOC and a state trooper conducted a " sex-offender compliance check" at defendant's home. They collected evidence from computers that demonstrated a violation of the terms of defendant's conditional release and the terms of his probation. DOC took defendant into custody and suspended his conditional-reentry status. In addition, the State issued a probation-violation complaint against defendant for violation of the probation conditions prohibiting possession or use of a computer with internet access without prior approval and prohibiting possession of pornography.
[¶6] Defendant filed motions to dismiss the probation-violation complaint and to suppress the evidence gathered in the search of his home. Defendant argued that the underlying probation conditions prohibiting him from possessing pornography and authorizing warrantless searches were unconstitutionally overbroad and vague, and lacked a sufficient nexus to his conviction. With respect to the suppression issue, defendant argued that the search of his residence was involuntary and ...