Patricia Kane’s attorney acknowledged a setback for his client but praised the decision for defining how the state should use recent technology to monitor those in the criminal justice system.
Paraphrasing the astronaut Neil Armstrong, lawyer Charles Martin, of Martin & Associates of Barre, said the decision “was a small step back for Patricia Kane, but a giant step forward [concerning] the use of this technology.”
The 21-page decision was “a good one to set boundaries in the use of technological advancements in monitoring, and how far the government can go,” Martin said. “[The justices] really dug into this.”
In January 2014, Kane took her son, then 12, from foster care in Sunderland to New Hampshire, triggering an Amber Alert. She was found shortly after the alert was issued and arrested.
Kane, now 53, pleaded guilty to custodial interference in 2014 and was sentenced to two to five years in prison, with all but one year suspended.
In 2016, her probation officer said she had violated four of her conditions of release, and she was ordered held without bail pending a probation revocation hearing. One of the violations involved failing to continually use or maintain a global positioning system device required under terms of her probation.
In her appeal to the Supreme Court, Kane disputed the Superior Court judge’s conclusion that she had violated the GPS monitoring condition. Through her attorney, Kane claimed 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,” according to the Supreme Court’s decision denying the appeal.
The decision, issued Friday, notes that among special conditions imposed at Kane’s sentencing was one that “required defendant to ‘abide by all electronic monitoring as directed by your probation officer.’”
She also was required to remain at least 500 away from her son’s school and residence.
According to the decision, “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 [a tracking] unit, which must be worn by defendant unless it is being charged.”
Community corrections officers monitoring the GPS unit used by Kane recorded three violations of probation from Nov. 3, 2015, through Feb. 2, 2016. During her subsequent violation of probation hearings, probation officer testimony cited her failure to keep the GPS unit charged as “an ongoing issue.”
They also rejected an argument that Kane did not have adequate notice of what constituted a violation of her probation conditions. “Here, based on the facts stated on the record, defendant had notice of the probation terms and simply chose not to abide by them,” the decision states, referring to her signature on the probation agreement with the conditions, and on instruction provided by probation officers in how to maintain the GPS equipment.
The appeal also raised issues of whether her state or federal constitutional rights to privacy, to travel and to be free from unreasonable searches were violated.
The probationary condition did, in fact, allow Kane to travel “as long as the GPS unit remained charged,” the decision states.
Concerning search and seizure arguments, the court, citing case law, noted that, “In the case of GPS monitoring, the particular question is whether the purpose of the search was to gather evidence for a new criminal investigation or, instead, to implement a legitimate probation-related objective.”
In this case, the decision states, probation officers said the purpose of the monitoring was to ensure Kane did not violate conditions concerning contact with her son.
The decision also states that the Vermont Supreme Court “has previously determined that probation supervision is a ‘special need’ that allows the State to depart from the warrant and probable cause requirements.”
However, the decision says that in each case concerning privacy rights, factors including where the person is in the criminal justice process could be considered in determining a possible rights violation.
Compared with some other conditions that might have been imposed on Kane, “the GPS monitoring is narrowly tailored to fit defendant’s circumstances while allowing defendant some freedom and autonomy,” the decision states.
An earlier Kane appeal, also argued by Martin, won a favorable Supreme Court decision in December.
The court found Kane met revised state statutory criteria for certain probationers having a presumed right to seek conditions of release at a violation hearing, which was not allowed during her hearing in 2016. The former criteria allowed a probationer to initially be held without right to bail.
Martin said Friday he has yet another appeal on Kane’s behalf before the Supreme Court, this one arguing that the state did not originally have proper jurisdiction to place her son in state custody. The family had been living in France, and that country had placed the boy in a form of custody, Martin said. Vermont took him into foster care after his arrival here.
Kane initially lost custody of her son after the death of her husband in France, where the family had lived for many years, a family member told the Bennington Banner in 2014.
If Vermont’s jurisdiction is successfully challenged, Martin said, that would affect Kane’s conviction for custodial interference.
The attorney said his firm has a contract with the defender general’s office to represent clients when needed, and the firm was assigned to represent Kane, who remains on probation.