SCOV Law Blog: Probation violation appealed on grounds that GPS monitoring violates rights

Editor’s note: This piece from the SCOV Law Blog is by Eric Fanning

State v. Kane 2017 VT 36

Gavel

Creative Commons photo by walknboston via Flickr

What we have here, folks, is a violation of probation appeal. Probation is a court-imposed criminal sentence where the convicted offender is released into the community instead of going to jail. Virtually all probationers have to abide by certain conditions while serving their sentence. If the probationer violates those conditions or fails to regularly check in with their probation officer, they get a complimentary extended stay at the Big House, courtesy of the State.

Defendant/appellant Patricia Kane pleaded guilty to custodial interference (she took her son from his legal custodian and crossed state lines). She was sentenced to two to five years, all suspended except for one year. After serving the unsuspended portion of her sentence in prison, she was released on probation. As a condition of her probation, Kane was required to stay 500 feet away from her son’s school and home, avoid contacting him without authorization from the court or the Department for Children and Families (DCF), and to obey all DCF orders. She was also required under Condition 32 to submit to electronic monitoring as directed by her probation officer.

Under Condition 32, the Department of Corrections (DOC) required Kane to wear a GPS unit. One of the components needs to be charged twice a day for two hours at a time or else it loses juice and the signal is lost. The details of the alleged violation of probation aren’t terribly important here, but basically, the State says Kane willfully disregarded Condition 32 by doing such a terrible job of keeping the GPS unit charged. Kane claims the charging station made her phone unusable, and that it made weird fax machine-like sounds, and so she had to unplug it to make phone calls. At her probation revocation hearing, State put on evidence that the unit was disconnected on multiple occasions for lengthy periods of time, and that this, along with the testimony of her corrections officers, was enough to conclude that she was willfully disrupting her GPS monitoring. The criminal division found that Kane did willfully violate her conditions of probation.

Because of the violation of probation, Kane faced a modified sentence including an additional six months in jail. She appeals, arguing (1) Condition 32 was an improper delegation of authority to the probation officer, (2) it failed to notify her of the conduct constituting a violation, and (3) it violated her constitutional right to travel and her right to be free of unreasonable searches.

Kane is in trouble from the get-go. Her first argument is that Condition 32, by its plain language, gives too much discretion to the DOC about how to monitor her. SCOV holds that her first claim is barred because it is a collateral attack on Condition 32 that goes to its facial validity (as opposed to how it is applied). As a matter of procedure, if you wish to appeal the validity of a court’s decision — like a condition of probation, you are supposed to raise an objection or appeal when the decision is made otherwise you lose the opportunity to raise the issue on appeal later. SCOV notes that Kane had opportunities to challenge the validity of Condition 32 at sentencing, but she never did. Therefore, this is an impermissible collateral attack, and her first argument is out the window.

Kane’s second argument is not barred from collateral attack because it’s not a facial challenge. It goes to lack of notice, and SCOV says that this is allowed. However, Kane did not raise this issue at sentencing either, so SCOV only reviews for plain error. Plain error exists where “the error is obvious and strikes at the heart of defendant’s constitutional rights or results in a miscarriage of justice.” This is a tough nut to crack.

SCOV is pretty clear on this one. “We conclude no error occurred here, let alone plain error.” Kane claims she had no notice about what would constitute a violation of probation. SCOV says this argument doesn’t stick because she signed the probation agreement, indicating that she was aware that she was required to abide by electronic monitoring as directed by her probation officer (the law presumes that if you sign something, you are aware of what the document says and you agree to its terms). Also Kane had moved to modify or vacate this very condition — so SCOV reasons that she must have known what she wanted modified or taken out. On top of all of this, she had gotten direction repeatedly from her probation officers about her conditions of probation, including Condition 32. So, Kane can’t show plain error regarding ineffective notice, and SCOV remains unpersuaded.

As was the case with her ineffective notice claim, SCOV reviews her constitutional claims for plain error because she did not raise the issue on direct appeal. This is an “as-applied” challenge to the probation condition also, so it’s allowed to be attacked collaterally. Nevertheless, the trial court’s decision will stand absent evidence of plain error.

The SCOV refuses to reverse the trial court because the actual privacy intrusion (GPS monitoring) is not as invasive as other surveillance methods, and the State had a legitimate interest in tracking her movement.

 

Kane claims that Condition 32 violated her state and federal constitutional rights to travel, privacy and to be free from unreasonable searches and seizures. SCOV looks at the travel issue first, and then analyzes the search and seizure (including privacy) issue separately under the U.S. and Vermont constitutions.

SCOV is not persuaded by Kane’s contention that Condition 32 limited her right to travel. There is no prohibition on travel in the plain language of the condition, and that’s where SCOV looks first. SCOV finds no constructive prohibition on Kane’s travel either because there was nothing in the record showing that her travel was actually restricted. There was, on the other hand, testimony from one of her corrections officers that her GPS unit specifically allowed her to travel, as long as it remained charged. The deal basically was that as long as Kane didn’t go within 500 feet of her son’s school or home, they didn’t care where she went, but they needed to know where she went so they could be sure she wasn’t at his school or home.

The irony here is that another probation condition actually restricted Kane’s right to travel. That condition stated that she could not leave the state without her probation officer’s permission. So in effect whatever right to travel Kane claims to have been undermined by Condition 32 didn’t exist to begin with.

SCOV wraps the privacy argument in with the unreasonable searches and seizures argument because GPS monitoring constitutes a “search” under the Fourth Amendment and Article 11, so what we’re talking about is whether or not there was a reasonable basis for the state’s intrusion into Kane’s privacy. SCOV uses a “totality of the circumstances” approach here and they refuse to reverse the trial court because the actual privacy intrusion (GPS monitoring) is not as invasive as other surveillance methods, and the State had a legitimate interest in tracking her movement.

Due to the nature of Kane’s crime the State sought to ensure that while out on probation, she did not have unauthorized contact with her son, so to that end they needed to know where she was. The other piece of this constitutional pie is that, as a probationer, she has less of an expectation of privacy than other folks. Practically speaking what this means is that the government tracking her movement is not as suspect as, say, the government tracking my movement or your movement (assuming, dear reader, you are also not on probation).

As I’ve already noted, Kane also invokes Article 11 of the Vermont Constitution. Article 11 basically does what the Fourth Amendment does, however sometimes its protections exceed the Fourth Amendment’s. SCOV doesn’t think so in this case. In reviewing Article 11 problems, SCOV first asks if there’s a “special need” that exists that justifies departing from the warrant and probable cause requirement of the Fourth Amendment. If that “special need” exists, then they apply a balancing test to determine the reasonableness of the State’s action. SCOV says a special need exists and that GPS monitoring in her case is reasonable basically for the same reasons they gave for shooting down her Fourth Amendment claim: she doesn’t have same expectation of privacy as citizens at full liberty, and the GPS requirement is narrowly tailored towards a legitimate state interest.

Finally, Kane appeals that reimposition of her standard probation conditions and special probation conditions. SCOV says that these conditions were not reimposed, but merely continued as part of her original sentence, and, by the way, this is a collateral attack and it’s barred.

SCOV affirms.

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