Courts & Corrections

SCOV Law Blog: The incredible vanishing Constitution

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Editor’s note: This piece from the SCOV Law Blog is by David Rangaviz.

State v. Bogert, 2013 VT 13
On its face, the Bill of Rights is absolute.

“The people” have the right to assemble, keep and bear arms, and be free from unreasonable searches. “The accused” enjoy rights to a speedy and public trial, an impartial jury, to be confronted with the witnesses against them, and to have the assistance of counsel.

Other provisions are mandatory prohibitions on government action. Congress “shall make no law” establishing a religion, prohibiting its free exercise, or abridging the freedom of speech. Cruel and unusual punishments “shall not” be inflicted.

As applied, however, the Constitution is rife with exceptions.

For example, the rights of expression and privacy of public school students have been substantially circumscribed to ensure that their exercise does not undermine the school’s educational mission. The constitutional rights of military personnel are similarly limited out of deference to the needs of the military. Even in its recent decision announcing a robust Second Amendment individual right to possess a firearm, the Supreme Court was careful to cabin its ruling to avoid bestowing this same right on either felons or the mentally ill.

As certain of these examples demonstrate, the creation of exceptions is not necessarily a bad thing.

And in a constitutional democracy, it is inevitable. In the immortal words of former Chief Justice John Marshall, “we must never forget that it is a constitution we are expounding.” In other words, the Constitution is not meant to read like the 200,000 pages of the United States Code — detailing the contours of each right described therein. Ambiguity is the Constitution’s virtue, not its vice.

With all that said, here’s my point: Because the exceptions do not exist on the face of constitutional provisions, it is for the courts, not the Legislature or executive, to carve out the exceptions in the process of “expounding” their meaning. And, for better or worse, courts read exceptions into facially-absolute constitutional rights all the time.

SCOV does just that in today’s case.

The facts are simple. In 2005, defendant pleaded guilty to two counts of child pornography possession. Upon his release on conditional re-entry (i.e., furlough), defendant signed a standard condition of release allowing for warrantless and suspicionless searches of his “person, place of residence, vehicle or property … at any time of the day or night by the department of corrections staff.”

Basically, he signed away his Fourth Amendment rights.

Invoking the power of this condition, officers conducted a search and found evidence that defendant had violated his release terms by using a computer with Internet access without permission and by possessing pornography (“adult or otherwise”). The State suspended his furlough and threw him back in jail.

Was the search valid? Can the state conduct random searches of furloughees? Can the state force the surrender of a fundamental constitutional right as a boilerplate condition of parole?

So the furloughee is treated like a prisoner who happens to occupy a different venue; their home is their prison. Their constitutional rights do not expand simply because they’ve walked out the prison gate. They are nominally “free” only by the largesse of the state. Legally, they’re still prisoners.

In a unanimous opinion, the SCOV concludes that the state can make furloughees submit to random, suspicionless searches. Furthermore, this practice does not violate the Fourth Amendment.

To understand what SCOV is doing here, some brief Fourth Amendment background is in order.

The text of the Fourth Amendment reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

So, just looking at its text, the Fourth Amendment requires two things: (1) all searches must be reasonable and (2) warrants must be supported by probable cause.

As interpreted by the Supreme Court, these inquiries have functionally merged. Searches are now presumed reasonable if conducted pursuant to a warrant — the government writes out the reasons it would like to search and the evidence supporting the search, and a judge must sign off. For the judge to agree, probable cause must exist.

The converse is also true. Without a warrant supported by probable cause, a search is presumptively unreasonable.

Although this general rule still holds true, the Supreme Court has carved out numerous exceptions to the text’s warrant requirement: Police can search your trash; they can search your person and car while they arrest you; they can search in “exigent” circumstances; and so on and so on.

Another exception, applied here, is for the “special needs” of law enforcement. When such “special needs” exist, police can dispense with the warrant requirement and proceed to a search. In the past, such special needs have included eliminating the threat of drunk drivers, ensuring the health or safety of workers, and maintaining border integrity — in short, pretty much anything other than solving crimes (which is about as “ordinary” a need of law enforcement as there is).

To recap: Under the Fourth Amendment, officers must have a warrant and probable cause to search, but don’t necessarily need either if a search falls into an exception, one of which is the “special needs” exception. Got it?

Here, SCOV concludes that the search of a furloughee falls into the special needs exception. The responsibility of supervising furloughees is a sufficient special need to permit warrantless searches.

But that does not end the case. SCOV still needs to decide the “more difficult question” of “how to balance the competing state and individual interests in this case.” What should the precise requirements be for a furloughee search?

In answering this question, SCOV discusses two lines of cases from different criminal justice contexts.

In the first, prison officials are permitted to search prisoners without a warrant and without cause. In prison, you can be searched at any time for no reason at all.

In the second, probation officers can search probationers without a warrant, but must have “reasonable suspicion” — more than “no suspicion” but less than “probable cause.” When you’re on probation, your probation officer can search you without a warrant, but needs at least reasonable suspicion to do so.

This case, according to SCOV, falls somewhere in the middle. So SCOV must decide: Is a search of a furloughee more like a search of a prisoner or a search of a probationer? Should law enforcement need “reasonable suspicion” to search like they do for probation searches?

According to SCOV, a search of a furloughee is more like a search of a prisoner, and thus no suspicion at all is necessary.

SCOV hinges its decision on the scope of the furloughee’s right to release on furlough. As furlough has been established by the Vermont Legislature and treated by SCOV in past cases, the furloughee has absolutely no right to his status as a furloughee. The state can throw him back in jail for any reason, and he has no due process rights to his release status.

How can an individual have a right to protection from searches while out on furlough when they have no right to their continued release at all?

They can’t! As SCOV says: “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 oddly incongruous, by SCOV’s estimation, if the prisoner could be thrown in jail on a whim but couldn’t also be searched on a whim.

So the furloughee is treated like a prisoner who happens to occupy a different venue; their home is their prison. Their constitutional rights do not expand simply because they’ve walked out the prison gate. They are nominally “free” only by the largesse of the state. Legally, they’re still prisoners.

And that’s how SCOV decides today’s case.

Just notice how far afield we’ve gotten from the text of the Fourth Amendment. Feel free to flip back to it. Do you see terms like:

• Reasonable suspicion?

• Special needs of law enforcement?

• Expectation of privacy?

(Spoiler alert … they aren’t there.)

So whenever anybody tells you that judges are mere umpires calling balls and strikes, or blindly apply the law like some rote exercise, remind them that it is a constitution they are expounding — absolute but ambiguous, written on faded parchment but constantly being reinterpreted.

In the next month, SCOV will hear a case presenting the question of whether an individual merely charged, but not yet convicted, of a crime can be subject to a DNA swab search. (Here’s an article I co-authored about the case for the Vermont Bar Journal.) The individual’s DNA will then be run through criminal databases, catalogued, and kept. The State is arguing that the search falls under the “special needs” exception, the very same exception invoked here.

The meaning of the constitution may change yet again.

That’s the problem with all of these exceptions: they have a tendency to expand during the expounding.

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  • Frank Davis

    The fifth and fourteeth amendment provide the courts with the constitutional power to deprive persons of life, liberty and property after due process. The Bill of Rights is not shrinking. A completed conviction, by trial or plea, provides the government with the power to deprive a criminal of the right to bear arms, to make any searches reasonable while under the scope of corrections’ supervision, the right to limit association with other persons who have been convicted and so on. By failing to look at the 5th and 14th, the author is assuming “absolute rights” are being diminished that have not existed since at least 1791.

  • Dave Rangaviz

    Frank – Sorry you didn’t like the post. I was simply trying to make (what I thought was) a pretty uncontroversial point that courts read exceptions into constitutional provisions all the time, despite the facially-absolute nature of the text. Because of the difference between the text and how its interpreted, it is disingenuous to simply say that courts blindly “apply” the law or “discern” its meaning. There is more to it than that.

    This obviously has happened since the founding (which is why I thought the point was so uncontroversial). And, as I said in the post, isn’t always a bad thing. I don’t even think SCOV was necessarily wrong in this case.

    This process of carving out exceptions is typically done without citation to the due process clause of either the Fifth or Fourteenth Amendments. I’ve never seen a decision in which a court has determined the scope of a constitutional exception by reference to the DPC (unless the exception at issue was to the DPC itself). Anyway, here the DPC is particularly irrelevant since the furloughee has absolutely no due process rights (which SCOV used as the basis for its Fourth Amendment decision).

    Thanks for reading.

  • Luci Stephens

    Enjoyed reading the piece… Furlough is a statutory legal status that applies only to offenders sentenced to time to serve, i.e. incarceration. Offender did not have a constitutional right to furlough, rather, had the right to be considered for furlough. In order to be granted furlough, offender had to meet all of the established requirements, including signing a furlough agreement (effectively a contract) allowing warrantless search. Furlough itself is not a right under law. To keep granted furlough, offender must uphold his/her part of the contract. In this case, offender committed a material breach of his contractual obligations, lost his furlough – all determined through the applicable APA process.

    • Dave Rangaviz

      Luci – Absolutely true, and well said (perhaps better than SCOV itself).

      I guess my final stance on this is, given how the VT furlough system operates (as you accurately describe), SCOV’s decision is correct. But I have to question whether the system, in which furloughees have no due process rights, is fair. People have to choose between signing away their DPC and Fourth Amendment rights or staying in prison … talk about a contract of adhesion!

      If the inmate has met all the requirements of release on furlough, perhaps there should be some reduced amount of process that the state must adhere to before that person can be thrown back in jail?

      If we give the furloughee due process rights, even at a reduced level, this would alter SCOV’s Fourth Amendment analysis, which hinges almost entirely on the absence of due process rights.

      And you are certainly correct that the defendant here violated the terms of his furlough. But the legal question presented is whether the term allowing suspicionless and warrantless searches is constitutional. His guilt or innocence shouldn’t affect our assessment of that question, because the legal conclusion (i.e., such searches are permissible) now applies to the guilty and innocent alike.

  • Luci Stephens

    Interesting discussion, Dan. Furloughees do absolutely have due process rights relative to a granted furlough. Furlough cannot be revoked without due process, which has been spelled out through the APA process. There’s a direct line from VT Statutes to the due process accorded furloughees. The questions raised about 4th and 15th amendment rights seem to me to be answered by that due process accorded furloughees and the State’s responsibilities and interests in public safety vs. the rights and needs of furloughees. Another compelling point for me is that furloughees who are revoked through due process are found in violation of their status. Status violation is not a criminal offense, so furloughees revoked through existing due process are not convicted of any new offense; they continue to serve their existing sentence. Consequently, this process is not a question of guilt or innocence, because those terms apply to criminal offenses.

    A question I asked myself long ago was ‘Is it fair to offer a furlough in exchange for agreeing to waive what we view as basic constitutional rights?’ My answer ‘Oh, those rights were already taken by due process of law when the offender was given a sentence to serve. This furlough agreement is a reiteration of that fact’. Thanks for replying to my thoughts!

  • David Bresett

    The prison system is a sham, period. That prisoners have know rights is a known fact. It’s set up that way for jails to make money. That this has never changed proves a stacked deck not only for the prisoners, but also his or her families rights are denied. That lawyers are called to argue for the rights of people and mostly ignored is very scary. We are worse than most third world countries in this argument, and our legislatures do nothing to exact any change to this bocus system of so called justice.