Summary
The Vermont Supreme Court held that a warrantless, suspicionless search of a convicted sex offender's home while he was on conditional reentry status did not violate Article 11 of the Vermont Constitution. Applying the framework for random searches established in State v. Berard, the court concluded that conditional reentry more closely resembles incarceration than probation and affirmed the denial of the defendant's motion to suppress. The court did not reach the defendant's argument that the search was not conducted as a permissible random compliance check because that argument was not preserved below.
Topics
Practice areas
Questions Presented
- Whether the warrantless and suspicionless search of Bogert's home violated the Fourth Amendment to the United States Constitution.
- Whether the search violated Article 11 of the Vermont Constitution.
- Whether the Article 11 framework governing routine, random searches of prison cells applies to a person released into the community on conditional reentry status.
- Whether Bogert could challenge on appeal the absence of findings that the search was random and did not single him out when he had not raised that argument in the trial court.
Holdings
- The warrantless search did not violate the Fourth Amendment because Bogert's conditional reentry status and agreed-upon search condition substantially diminished his reasonable expectation of privacy, and the State's supervision and public-protection interests justified the search.
- Under Article 11 of the Vermont Constitution, the Berard framework for routine, random, warrantless prison-cell searches, rather than the reasonable-suspicion standard associated with probation searches in Lockwood, applies to searches of an offender's home while the offender is on conditional reentry status.
- The court would not consider Bogert's argument that the search failed the Berard requirements because he did not raise that argument in the trial court or request an evidentiary hearing.
Key quotations
“We conclude that the search in this case satisfied the requirements of the Vermont Constitution applicable to offenders on a conditional reentry status and, accordingly, affirm.” (¶ 1)
“On the basis of these considerations, we conclude that the trial court did not err in applying the framework we articulated in Berard, rather than a reasonable-suspicion standard along the lines of Lockwood.” (¶ 30)
Factual background
Bogert was serving the remainder of the incarcerative portion of a split sentence in the community on conditional reentry status. His signed Terms of Release/Supervision agreement authorized DOC staff to search his person, residence, vehicle, or property at any time. DOC officers and a state trooper conducted a sex-offender compliance check at his home and seized computer-related evidence showing violations of his conditional-release and probation terms.
Procedural history
Bogert pleaded guilty or no contest to multiple sexual-offense charges and received a split sentence and probation conditions regulating computer and pornography access. After a DOC compliance search uncovered evidence of violations, he moved to suppress the evidence and dismiss the probation-violation complaint. The Superior Court denied both motions, concluding that the search was permissible under the prison-cell-search framework of State v. Berard and that the dismissal motion was an impermissible collateral challenge to unappealed probation conditions. The Vermont Supreme Court considered only the suppression appeal and affirmed.