State v. Donald Bouchard ( 2020 )

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.
2020 VT 10
No. 2018-347
State of Vermont Supreme Court
On Appeal from
v. Superior Court, Chittenden Unit,
Criminal Division
Donald Bouchard October Term, 2019
Kevin W. Griffin, J.
James Pepper, Deputy State’s Attorney, Montpelier, for Plaintiff-Appellee.
Matthew Valerio, Defender General, and Dawn Seibert, Appellate Defender, Montpelier, for
Defendant-Appellant.
PRESENT: Reiber, C.J., Robinson and Eaton, JJ., and Burgess, J. (Ret.)1 and
Morris, Supr. J. (Ret.), Specially Assigned
¶ 1. ROBINSON, J. Defendant, who pled guilty to two sex offenses, challenges
several special sex-offender probation conditions. We uphold two conditions; strike three
conditions; and strike and remand two conditions for further findings and clarification.
¶ 2. Defendant was convicted of two counts of lewd and lascivious conduct, and one
count of unlawful restraint in the second degree. The offending conduct involved his niece and
nephew. According to the State’s affidavit of probable cause, defendant’s niece alleged that when
defendant hugged her, he would “ ‘grab [her] butt’ and kiss her on the mouth” and would
1
Justice Burgess was present for oral argument but has since recused himself.
sometimes “linger too long.” She reported that defendant would enter her room when he believed
she was asleep and would “play with [her] butt,” including grabbing at and rubbing it, for several
minutes at a time. This behavior began when niece was in “7th or 8th grade,” and stopped an
indeterminate amount of time later, when she “got older” and started rolling over to “get him to
stop.” Defendant’s nephew also reported that defendant would “ ‘grab’ and ‘squeeze’ his ‘butt’
when saying hello,” and had also touched nephew’s thigh and penis over his clothing. Defendant
would grab nephew’s arm and bring him into the bedroom, where he would “wrestle” with him,
cover his mouth, and touch him in “awkward” ways. Defendant put nephew in sexual positions
and touched him through his clothes. This behavior began when nephew was ten years old and
had most recently occurred when nephew was thirteen years old. During his plea colloquy,
defendant admitted that he engaged in some of this behavior to “appeal to [his] passions or sexual
urges.” He does not challenge his convictions or the underlying facts on appeal.
¶ 3. The plea agreement contemplated a total sentence of 118 to 120 months, all
suspended except for thirty days, and a ten-year term of probation. It left the State free to argue
for all special conditions of probation recommended by the Department of Corrections (DOC) in
the presentence investigation report (PSI). The PSI documented defendant’s scores on two
instruments that estimate the risk for sexual recidivism. In one, he fell in the moderate-low risk
group, and in the other, the low risk group. Of individuals scoring similarly on the two instruments,
an average of 2.2% were charged with a new sexual offense within five years of placement in the
community. The PSI recommended a host of special sex-offender conditions to which defendant
objected.
¶ 4. At the sentencing hearing, the court imposed the agreed-upon sentence. The State
presented no evidence in support of any of the contested probation conditions. The trial court
expressed its concern about defendant’s ability to complete the sex-offender treatment program,
and told defendant that “if you don’t complete the program and a violation of probation is filed
2
and your probation is revoked, there is no room in the sentence that you’ve negotiated with your
attorney for any other programming. It really is as close to a flat ten-year sentence as I’ve ever
seen.” The court imposed various probation conditions, including the “sex [-] offender special
conditions of probation” at issue on appeal.
¶ 5. Those conditions are: condition 36, that defendant may not purchase, possess, or
use pornography or erotica, or go into adult sex shops or similar establishments; condition 38, that
upon reasonable suspicion of a probation violation, he must give his probation officer search-and-
seizure privileges to search without a warrant and confiscate “drugs, pornography, erotica, digital
media, computer, or any other item which may constitute a violation of [his] conditions;” condition
40, that he must allow his probation officer to monitor his computer and internet usage, including
through the use of software for monitoring sex offenders; condition 41, that he may not initiate or
maintain contact with persons under the age of eighteen, unless otherwise approved in advance
and in writing by his probation officer; condition 42, that he may not work or volunteer for a
business or organization that primarily provides services to persons under the age of either sixteen
or eighteen;2 condition 31, that he notify his probation officer of a change of contact information
within forty-eight hours; and condition 37, that he may not access or loiter “in places where
children congregate, i.e., parks, playgrounds, schools, etc.,” unless otherwise approved in advance
by his probation officer.
¶ 6. We review the trial court’s imposition of probation conditions for an abuse of
discretion. State v. Lumumba, 2018 VT 40, ¶ 31, 207 Vt. 254, 187 A.3d 353. As set forth more
fully below, we strike the pornography condition because, on the record presented, there is no
evidence that it is reasonably related to defendant’s rehabilitation or necessary for public safety;
2
As explained below in section IV.A, it is not clear whether conditions 41 and 42, relating
to defendant’s contact with minors, apply to minors under the age of eighteen or only those
younger than sixteen. See infra, ¶¶ 29-30.
3
and strike the broad warrantless-search condition and the computer-monitoring condition because
they are not narrowly tailored to promote a balance between the State’s non-law-enforcement goals
and defendant’s privacy rights. We remand the two conditions limiting contact with minors for
clarification as to the age restrictions and the rationale behind them. We uphold the conditions
prohibiting defendant from accessing or loitering in places where children congregate, and
requiring defendant to give his probation officer notice within 48 hours of a change in contact
information.
I. Pornography
¶ 7. Condition 36 provides that defendant “may not purchase, possess or use
pornography or erotica [and] may not go to adult bookstores, sex shops, topless bars, etc.” On
appeal, defendant argues that this condition is neither reasonably related to his rehabilitation nor
necessary for public safety. We agree that this condition is not supported by the evidence presented
by the State, and strike the condition.
¶ 8. While trial courts have broad discretion in imposing probation conditions, see
Lumumba, 2018 VT 40, ¶ 32, they may only impose conditions that are “reasonably necessary to
ensure that the offender will lead a law-abiding life or to assist the offender to do so.” 28 V.S.A.
§ 252(a). Specifically, where a condition prohibits the offender from engaging in otherwise legal
behavior, the condition must be “reasonably related to the offender’s rehabilitation or necessary to
reduce risk to public safety.” Id. § 252(b)(18). In the context of sex-offender special conditions,
we have emphasized that “the statute requires more than the bare recitation that a defendant is a
sex offender and that incursions onto his liberty are justifiable on that basis alone.” State v. Cornell
2016 VT 47, ¶ 7, 202 Vt. 19, 146 A.3d 895; see also Lumumba, 2018 VT 40, ¶ 33.
¶ 9. Our decision in Lumumba, 2018 VT 40, ¶ 37, guides our analysis in this case. In
Lumumba, we struck an identical condition because there was no evidence that it was “reasonably
related to the offender’s rehabilitation or necessary to reduce risk to public safety.” Id. ¶ 32
4
(quoting 28 V.S.A. § 252(b)(18)). We noted that the State had introduced no evidence regarding
the defendant’s individual history or behaviors, but instead relied on general assertions “that this
was a standard condition for sex offenders, and that pornography was seen as a step to
reoffending.” Id. ¶ 36. The State did not provide “competent expert testimony in support of the
blanket assertion that the condition is necessary in all cases involving offenders designated as ‘sex
offenders.’ ” Id.
¶ 10. Likewise, the court in this case made no finding, and the State presented no
evidence, that pornography was related to defendant’s offense, his individual history, or his
behaviors. Nor did the State present any evidence that the condition is generally necessary for the
rehabilitation of all individuals convicted of any crime categorized as a sex offense. See id. ¶ 33
(“[The State] offered no expertise to support the assertion that the conditions were necessary in all
cases involving sex offenders”.). Instead, the court imposed the condition because it is an “integral
part of the treatment program” required pursuant to another condition. The court also explained,
“I want to be as specific as I can for [defendant] to understand that he can’t be doing that
again . . . he’s negotiated a nine-year-and-ten-month to ten-year sentence to serve, and so I want
to be extra careful that he understands what’s going to happen if he violates these conditions.”
¶ 11. The fact that the pornography condition is part of the sex-offender treatment
program defendant is otherwise required to complete is not sufficient to support the condition for
several reasons. First, in Lumumba, we rejected the notion that, absent competent evidence that
the condition is reasonably related to defendant’s rehabilitation, a court can rely on the bare fact
that the probation condition is consistent with a rule of a required sex-offender treatment program
in imposing a condition under § 252(b)(18). See id. ¶ 29. Second, although the court referred to
defendant’s treatment program as “long-term sex-offender treatment,” it did not suggest that
defendant’s treatment would last for the duration of his probation. In imposing the pornography
condition, the court prohibited defendant from engaging in otherwise legal behaviors that were not
5
related to his crime, not only for the period he was in treatment, but for his entire ten-year period
of probation. Without any credible evidence suggesting that such a condition is reasonably related
to defendant’s rehabilitation apart from the treatment program, or necessary to protect the public,
we must strike this condition.3
II. Warrantless Search
¶ 12. Condition 38 requires defendant to “give [his] Probation Officer or designee upon
reasonable suspicion of a violation of probation search and seizure privileges to search without a
warrant and confiscate drugs, pornography, erotica, digital media, computer, or any other item
which may constitute a violation of [his] conditions.” At sentencing, defendant objected that this
condition is “a pretty broad blanket general warrant,” and that “the probation officer would at least
need probable cause to search any of the items.” The State said, “we would request the condition
as written, especially if the court is imposing the pornography condition.” The court added a
reasonable-suspicion requirement to the condition, but otherwise imposed it as proposed. On
appeal, defendant contends that the broad search condition violates Chapter I, Article 11 of the
Vermont Constitution.
¶ 13. We strike condition 38 because Article 11 requires that probation conditions
authorizing warrantless searches like this one be narrowly tailored to promote a State interest
strong enough to outweigh a probationer’s privacy interests; in the absence of a condition
prohibiting adult pornography, the broad warrantless search condition here, even subject to a
“reasonable suspicion” threshold, is not sufficiently narrowly tailored.
3
We note that this decision deals solely with a freestanding probation condition
prohibiting otherwise-lawful conduct. We express no opinion about whether a sex-offender
treatment program, pursuant to a condition requiring such treatment, may include an expectation
that participants abstain from pornography. Nor do we mean to suggest that a probation condition
like condition 36 could never be found to promote rehabilitation or public safety. We simply
conclude in this case that the State has not shown such a nexus.
6
¶ 14. Under Article 11, “the State may depart from the warrant and probable-cause
requirements ‘only in those exceptional circumstances in which special needs, beyond the normal
need for law enforcement, make the warrant and probable-cause requirement impracticable.’ ”
State v. Bogert, 2013 VT 13A, ¶ 17, 197 Vt. 610, 109 A.3d 883 (quoting State v. Berard, 154 Vt.
306, 310-11, 576 A.2d 118, 120-21 (1990)). In such cases, we apply a balancing test “to identify
a standard of reasonableness, other than the traditional one, suitable for the circumstances.” Id.
(quoting Berard, 154 Vt. at 311, 576 A.2d at 121). In particular, if we find a special need for a
warrantless search distinct from a law-enforcement need, we “turn to a balancing of the competing
public and private interests at stake.” Id. (quoting State v. Medina, 2014 VT 69, ¶ 14, 197 Vt. 63,
102 A.3d 661).
¶ 15. That probation conditions serve a special need apart from law enforcement, and
thus satisfy the first condition for an exception to the Article 11 warrant requirement, is well
established. See, e.g., Bogert, 2013 VT 13A, ¶ 18 (“In Lockwood, we recognized that ‘the special
needs of the state in administering probation’ allow a departure from the warrant and probable
cause requirements, and require a balancing of probationers’ rehabilitative needs, concerns for
protection of the community, and probationers’ Article 11 interests.” (quoting State v. Lockwood,
160 Vt. 547, 556, 632 A.2d 655, 661 (1993))). The more substantial question here is whether the
“reasonableness” balancing test supports the condition in this case.
¶ 16. In applying the balancing test in similar cases, we have held the State must
demonstrate that a warrantless incursion on a probationer’s rights is narrowly tailored to promote
the government interests justifying the incursion. Cornell, 2016 VT 47, ¶ 38. Specifically, in
reviewing a warrantless search condition similar to the one at issue here, we concluded that, in
order to satisfy the balancing test, a warrantless search condition must require at least reasonable
suspicion and must be “narrowly tailored to fit the circumstances of the individual probationer.”
7
Lockwood, 160 Vt. at 559, 632 A.2d at 663 (citing Griffin v. Wisconsin, 483 U.S. 868, 875
(1987)).
¶ 17. We have recognized two ways in which a search-and-seizure condition can be
sufficiently narrowly tailored to satisfy Article 11. First, we have found a search condition to be
narrowly tailored where it “authorizes a search only for contraband—that is, items defendant is
prohibited from possessing under the conditions.” Cornell, 2016 VT 47, ¶ 39. Such a condition
may not include as contraband items that a defendant has a legal right to own. Id. ¶ 40 (amending
search-and-seizure condition to remove computers and digital media where defendant was no
longer prohibited from possessing either). Second, we have found that a “broad general search
authorization” was permissible in special circumstances, where the State could show an
extraordinary probationary need for warrantless searches. Id. ¶ 30. Specifically, in Lockwood,
the combination of defendant’s developmental delays and sexual deviancy resulted in “compulsive
sexual behavior without awareness of the consequences of this behavior,” and therefore an
unusually high risk of recidivism. Lockwood, 160 Vt. at 557, 632 A.2d at 662. In that context,
we did not suppress the fruits of a warrantless search, conducted upon reasonable suspicion
pursuant to a relatively broad warrantless search condition. By contrast, in State v. Moses, we
struck a probation condition authorizing a broad warrantless search because the condition was not
“based on findings that set a proper balance between [the] probationer’s privacy rights and the
state’s special needs and [was] not narrowly tailored to reflect that balance.” 159 Vt. 294, 305,
618 A.2d 478, 484 (1992) (noting that “a ‘necessary’ search is not always a reasonable one”).
¶ 18. Here, none of the specific items named in the warrantless-search condition are
contraband. Condition 36 prohibits defendant from accessing pornography and erotica, so if we
had sustained that condition, it might have justified a condition permitting warrantless searches for
those items based upon reasonable suspicion. But because we strike condition 36, pornography is
no longer contraband such that the State has the right to search for it based on reasonable suspicion.
8
See Cornell, 2016 VT 47, ¶ 40 (striking condition authorizing warrantless search for computer and
digital media for same reason). Similarly, there is no condition prohibiting defendant from
possessing legal drugs, and there was no evidence that defendant was at risk of using illegal drugs
such that the State’s interest in promoting defendant’s rehabilitation and public protection
outweigh defendant’s privacy interests. Finally, the court did not impose any conditions
prohibiting defendant from owning a computer or accessing the internet. Because defendant is
permitted to own computers and digital media, these items are not contraband.
¶ 19. If we struck all of the specific targets of a potential warrantless search in condition
38, we would be left with only the residual category of “any other item which may constitute a
violation of [defendant’s] conditions.” The condition would be comparable to the one we struck
in Moses allowing “enforcement of the conditions of probation through ‘search and investigation
without warrant when necessary.’ ” Moses, 159 Vt. at 301, 618 A.2d at 482. Just like the condition
in Moses, the remaining condition would not “provide guidance as to when the probationer may
be searched without a warrant.” Id. at 305, 618 A.2d at 484. Moreover, the State has not presented
any evidence that defendant in this case presents particularly challenging penological needs, like
the probationer in Lockwood, such that the broader search authorization satisfies the balancing
and narrow tailoring requirements of Article 11. As noted above, the PSI reflects that the risk of
defendant committing further sexual offenses is relatively low. For these reasons, we strike
Condition 38 in its entirety.4
4
Because we decide that the condition must be struck on Article 11 grounds, we need not
consider whether 28 V.S.A. § 252 provides an independent basis to strike or limit the condition.
There may be significant overlap between the constitutional balancing test and the statutory
“reasonably necessary” standard; however, we need not decide here whether the statutory and
constitutional analyses will invariably reach the same result.
9
III. Computer Monitoring
¶ 20. Condition 40 provides that defendant “will allow [his] Probation Officer or
designee to monitor [his] computer/internet usage, to include, through the use of specific software
for monitoring sex offenders.” He must also pay for charges associated with the monitoring.5 On
appeal, defendant argues that this condition is unrelated to his rehabilitative needs or public safety,
infringes on his Article 11 and Fourth Amendment privacy rights, and constitutes an unlawful
delegation to the probation officer to choose the monitoring method.
¶ 21. We strike the condition. For the purposes of 28 V.S.A. § 252(a) and Article 11,
defendant’s rehabilitative needs and the need to protect the public may justify some form of
monitoring. But “monitoring” takes a wide range of forms, and the condition here is not
sufficiently well defined and narrowly tailored to comply with § 252(a) and Article 11.6 Because
5
Defendant does not currently own a computer, but the condition will apply if he gets one
in the future.
6
In State v. Cornell, we upheld a monitoring condition like this, but imposed a “reasonable
suspicion” threshold requirement as a prerequisite to the monitoring. 2016 VT 47, ¶ 45. In that
case, the defendant challenged a probation condition that prohibited him from possessing a
computer at his residence and from accessing the internet at his place of employment or anywhere
else unless approved in advance by his probation officer. It also authorized the defendant’s
probation officer to monitor his computer and internet usage, including through the use of specific
software for monitoring sex offenders. We concluded that the prohibition against possessing a
computer and accessing the internet was overbroad and disconnected from the defendant’s original
offense, but kept in place the portion of the challenged condition allowing his probation officer to
monitor his computer and internet usage—adding a “reasonable suspicion” requirement to the
monitoring provision. Id. ¶ 45. We concluded that this amended condition “better reflects a
balance between the State’s substantial interest in supervising defendant’s computer use and
defendant’s privacy rights, which, while reduced on account of his probationary status, were not
all together forfeited” by reason of his conviction. Id. Our decision in Cornell validates the
conclusion that we reach here—that a monitoring condition may in some cases promote
rehabilitation and public safety; it also illustrates that even so, such conditions must be narrowly
tailored—in that case with a “reasonable suspicion” requirement that essentially allowed
“monitoring” of the defendant’s computer and internet use only upon reasonable suspicion.
However, the defendant’s appeal in that case focused on the validity of the restrictions on the
defendant’s computer and internet access; he did not argue, as does defendant in this case, that the
monitoring condition was unduly intrusive or overbroad. Brief of Appellant, State v. Cornell, 2016
VT 47 (No. 2012-400), 2015 WL 6182447, at *31-32. For that reason, Cornell provides limited
guidance for this issue.
10
we have grounded our decision in § 252(a) and Article 11, we need not resolve defendant’s Fourth
Amendment challenge. However, we note that our analysis under state law is consistent with how
many federal courts have analyzed monitoring conditions under federal statutory law and the
Fourth Amendment.
¶ 22. The framework for determining whether the condition complies with § 252(a) and
Article 11 is as set forth above. The condition comports with the statute’s requirements if “the
court in its discretion deems [the condition] reasonably necessary to ensure that [defendant] will
lead a law-abiding life or to assist [him] to do so.” 28 V.S.A. § 252(a). Insofar as the provision
authorizes a warrantless search in the form of computer monitoring, to satisfy Article 11 it must
be narrowly tailored to serve a governmental interest that outweighs the infringement of
defendant’s privacy associated with the monitoring. See supra, ¶ 16. For the purpose of both
analyses, we must understand and evaluate, among other things, the State’s interest in imposing
the condition.
¶ 23. At trial, the State offered two reasons for the condition: first, it is “necessary to
monitor the pornography prohibition,” and second, access to the internet would give defendant
“arguably . . . more access to children than going to parks or places where kids congregate in
person.” The first rationale no longer applies, because we strike the pornography prohibition. But
defendant is prohibited from maintaining contact with children under the age of sixteen (and
perhaps minors under the age of eighteen, as we note in § IV.A below). For that reason, a
computer-monitoring condition tailored to enforcing this prohibition may be reasonably necessary
to ensure that defendant will lead a law-abiding life, 28 V.S.A. § 252(a), and could potentially pass
muster under Article 11.
¶ 24. Whether it does satisfy the respective requirements of § 252(a) and Article 11 will
depend on the strength of the State’s interest compared to the intrusiveness of the condition—a
consideration that will turn in part on how narrowly tailored the condition is. In this case, the
11
government interest in defendant’s rehabilitation and public protection is outweighed by the
intrusion on defendant’s privacy interests. There is no evidence that defendant’s offense was
related to computers or the internet, or that he is at a high risk of violating his conditions of
probation through online activity. The impact of the monitoring condition on defendant’s privacy
interests, on the other hand, could be quite significant. See In re Search Warrant, 2012 VT 102,
¶ 58, 193 Vt. 51, 71 A.3d 1158 (noting that search of personal computer could allow probation
officers access to virtually “every aspect of a citizen’s personal life”). As written, the condition
gives defendant’s probation officer unconstrained access to defendant’s computer, with no
description of the method of monitoring, the scope of the monitoring, or the threshold
requirements, if any, for conducting the monitoring.7
¶ 25. And there’s the rub: “monitoring” could describe a wide range of things, and it is
impossible to tell here how great an invasion of defendant’s privacy the monitoring software would
represent. Evaluating the constitutionality of a computer-monitoring condition “is fundamentally
a question of technology.” United States v. Balon, 384 F.3d 38, 45 (2d Cir. 2004). For instance,
less invasive monitoring techniques could include “software that alerted a probation officer only
when [a probationer] was engaging in impermissible communications.” United States v. Lifshitz,
369 F.3d 173, 192 (2d Cir. 2004). On the other hand, more invasive technology might “record any
and all activity on computers . . . including the capture of keystrokes, application information,
internet use history, email correspondence, and chat conversations.” United States v. Shiraz, 784
Fed.App’x 141, 142 (4th Cir. 2019) (per curiam). The Second Circuit has described in detail how
monitoring programs differ:
[T]he varieties of products and techniques currently available
diverge vastly in their breadth, and in their implications for
7
The court noted that “I think what they’ve generally done is simply put a simple software
program on the computer which actually allows them to see where he’s been going or not going.”
Although the court described its understanding of the monitoring technology used by the DOC,
the condition itself does not specify any particular type of monitoring.
12
computer users’ privacy. . . . First, some monitoring uses software
installed on an individual’s personal computer, whereas other
monitoring relies on records from the Internet Service Provider
(“ISP”), through whom an account user’s requests for information
or e-mails may be routed. The former type of monitoring might be
more conducive to investigating all of a probationer’s computer-
based activities, including those performed locally without
connection to the Internet or any network—such as . . . word
processing activities or [business-related activities]—whereas the
latter would be limited to transmissions mediated by the ISP.
Second, some software focuses attention upon specific types of
unauthorized materials, whereas other kinds monitor all activities
engaged in by the computer user. These distinctions may be
material to determining whether the scope of the monitoring
condition’s infringement on privacy is commensurate with the
‘special needs’ articulated in this case.
Lifshitz, 369 F.3d at 191 (footnotes omitted). In another case, the Second Circuit noted that it was
unclear “whether the monitoring displays in real time on the probation officer’s computer screen
the full content appearing on the user’s screen or merely a log describing that content.” Balon,
384 F.3d at 43. In some cases, monitoring may be completed not by the probation officer, but by
a third-party organization, which notifies the probation officer only if it detects contraband. See
United States v. Browder, 866 F.3d 504, 512 (2d Cir. 2017).
¶ 26. Because the condition here on its face authorizes limitless monitoring of
defendant’s computer and internet use, it is not narrowly tailored to ensure a permissible balance
between the government’s interests and defendant’s privacy rights, and we cannot conclude that it
is “reasonably necessary” to help defendant lead a law-abiding life.8 On its own, “the term
‘monitoring’ is broad, encompassing some methods that are quite intrusive and therefore, perhaps,
problematic.” United States v. Quinzon, 643 F.3d 1266, 1271 (9th Cir. 2011); see also Shiraz, 784
Fed.App’x at 145 (condition allowing monitoring of “any and all activity on computers” lacked
“any tailoring to avoid an overbroad interpretation”). Given the universe of possible computer-
8
As with Condition 36, we need not decide whether the § 252(a) analysis and the Article
11 analysis are coextensive. In this case, the record is too bare, and the condition too broad and
unconstrained, to satisfy either set of requirements if they differ.
13
monitoring techniques, in order to be narrowly tailored to the State’s rehabilitation and public-
protection goals, the condition must specify what digital materials the officer may monitor and
how. This will likely require the State to present evidence about the monitoring process it seeks
to use so that the court can understand the scope of the monitoring; the likelihood of detecting
private information beyond that reasonably subject to the monitoring condition; the extent to which
the technology can be customized to the narrow needs of a particular case; and other factors
impacting the balancing and narrow-tailoring analyses. While the State has demonstrated some
basis for monitoring some of defendant’s online activity, it has not demonstrated a need sufficient
to justify the most intrusive monitoring programs, or that its proposed monitoring is narrowly
tailored to the State’s legitimate needs. And the trial court has not narrowly tailored a condition
consistent with the above requirements. Therefore, the condition runs afoul of § 252(a) and Article
11.9
¶ 27. In light of our analysis under state law, we need not conduct a full Fourth
Amendment analysis of the same monitoring condition; however, we note that our analysis squares
with that of many federal courts applying federal law. Decisions from the Second and Ninth
Circuits convince us that, like Article 11, the Fourth Amendment also requires narrow tailoring in
the context of computer monitoring conditions. See United States v. Sales, 476 F.3d 732, 737 (9th
Cir. 2007) (“A computer monitoring condition in some form may be reasonable. However, to
9
Because we strike the condition on the above grounds, we do not separately address
defendant’s argument that the condition unlawfully delegates authority to the probation officer to
determine the manner and scope of the monitoring. See, e.g., State v. Putnam, 2015 VT 113,
¶¶ 68-73, 200 Vt. 257, 130 A.3d 836 (holding that probation condition that gave probation officer
broad authority to decide whether and what type of counseling or training defendant was required
to undergo amounted to unlawful delegation of authority to probation officer). We note, though,
that a narrowly tailored monitoring condition must identify the target content of the monitoring;
the threshold triggers, if any, to the monitoring; and the scope and limits of the monitoring. For
that reason, a permissible monitoring condition would not leave the method of monitoring to the
officer’s unconstrained discretion, and would not constitute an overbroad delegation of authority
to the probation officer.
14
comply with the Fourth Amendment, it must be narrowly tailored—producing no greater
deprivation of liberty than is reasonably necessary.”); Lifshitz, 369 F.3d at 190 (“We must assess
the necessary scope of the monitoring condition in light of the ‘special needs’ articulated in this
particular case . . . . In order to comply with the requirements of the Fourth Amendment, the
monitoring condition must be narrowly tailored.”); see also Quinzon, 643 F.3d at 1272-74
(interpreting condition to implicitly include narrow-tailoring limitations, including that officer
may only monitor internet-based activities). Just as a broad monitoring authorization is not
narrowly tailored for the purposes of Article 11, it also poses a problem under the Fourth
Amendment. A general monitoring authorization, such as the one present here, “gives no
indication as to what kinds or degrees of monitoring are authorized,” Sales, 476 F.3d at 737, and
therefore may be “overbroad,” Lifshitz, 369 F.3d at 193. Accordingly, our state law analysis,
though grounded in Article 11 and § 252(a), is consistent with at least some federal case law.
IV. Contact with Minors
¶ 28. Conditions 41 and 42 relate to defendant’s contact with minors. Defendant argues
that these conditions are unrelated to his offense, his rehabilitation, or public safety to the extent
they prevent him from being in contact with sixteen- and seventeen-year-olds. He also argues that
the condition relating to his employment or volunteer opportunities is impermissibly vague. As
explained below, the record is not entirely clear as to whether the court did, in fact, impose
conditions restricting defendant’s contact with sixteen- and seventeen-year-olds, and we remand
for clarification. If the court does prohibit defendant from contacting sixteen- and seventeen-year-
olds, it must provide a rationale for restricting otherwise lawful behavior. In any event, we
conclude that the condition concerning employment and volunteering with organizations that
primarily serve underage people is not impermissibly vague.
15
A. Confusion as to Scope of Contact Restrictions
¶ 29. The PSI recommended a restriction prohibiting defendant from initiating or
maintaining contact with people under the age of eighteen, or working or volunteering for an entity
that primarily serves people under the age of eighteen, unless approved in advance by his probation
officer. At the sentencing hearing, as the trial court reviewed the PSI and its recommendations,
defendant’s counsel stated that he “would not object to sixteen. I do object to eighteen.” The court
stated, “I am going to impose eighteen.”
¶ 30. However, in the probation order signed by the court, both conditions restrict
defendant’s contact with children under the age of sixteen. Condition 41 reads that defendant
“may not initiate or maintain contact with males or females under the age of 16, unless otherwise
approved in advance and in writing by your Probation officer or designee. Said contact may
require being accompanied by a responsible adult, approved by your Probation Officer or
designee.” Condition 42 reads that defendant “shall not work or volunteer for any business or
organization that primarily provides services to persons under the age of 16 years, unless otherwise
approved in advance[] by your Probation Officer or designee.”
¶ 31. We cannot fully reach the merits of this argument because there is an inconsistency
in the record with regard to these conditions. Based on the general principle that an oral
pronouncement at sentencing trumps a subsequent written sentencing order in the event of a
conflict, defendant understands the condition to prohibit contact with people under the age of
eighteen. See, e.g., United States v. Washington, 904 F.3d 204, 208 (2d Cir. 2018) (stating that
because defendant must be present at pronouncement of sentence, “after a sentence has been
pronounced, the written judgment may clarify the terms of the spoken sentence, but if there is a
substantive discrepancy between the spoken and written versions of a defendant’s sentence, the
spoken version ordinarily controls.” (citation omitted)); see also United States v. Gagnon, 470 U.S.
522, 526 (1985) (stating that “right to presence is rooted” in Confrontation Clause, but also
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protected by Due Process Clause). But we have some question as to whether the court’s statement
that it was “going to impose eighteen” amounted to an oral pronouncement of sentence on that
condition. And we have not considered whether a prohibition reflected in an oral pronouncement
but not in the written probation order is enforceable in light of our decision in State v. Hemingway,
2014 VT 48, ¶ 11, 196 Vt. 441, 97 A.3d 465 (holding that trial court’s failure to provide defendant
a certificate detailing the conditions of probation rendered the condition unenforceable).
¶ 32. For these reasons, we remand to allow the trial court to clarify these two conditions.
If the trial court intended for the age minimum to be eighteen, it should amend the probation order
accordingly. See V.R.Cr.P. 36 (authorizing trial court to correct clerical mistakes in judgments,
orders or other parts of the record). If it intended for the age minimum to be sixteen, then in the
revised probation order it signs to reflect the deletions required by this decision, it should leave
the conditions intact, as written.
B. Merits of Defendant’s Challenges
¶ 33. If the trial court does correct the order to restrict defendant’s access to all minors
under the age of eighteen, it must state its rationale for doing so. Both condition 41 and condition
42 prohibit defendant from engaging in legal behavior.10 Therefore, under § 252(b)(18), the
condition must be “reasonably related to the offender’s rehabilitation or necessary to reduce risk
to public safety.” It is especially important that the condition be only as restrictive as necessary,
10
Defendant points out that “[t]here is nothing unlawful about [defendant] associating
with or having platonic or even romantic relationships with sixteen- and seventeen-year-old
individuals.” To the extent defendant makes a facial challenge to the condition based on the age
of consent, we reject his argument. It is true that in Vermont, an adult can engage in consensual
sex with sixteen- and seventeen-year-olds in some circumstances. See 13 V.S.A. § 3252(d).
However, such conduct is criminal in circumstances where the minor may be more vulnerable to
coercion: where the minor is entrusted to the adult’s care by law or is a child or grandchild of the
adult. See id. While respecting the autonomy of sixteen- and seventeen-year-olds, this law
protects them by prohibiting conduct by adults that may jeopardize their well-being. On the same
basis, a trial court may prohibit a sex offender from contacting sixteen- and seventeen-year-olds,
when such a condition is reasonably related to their rehabilitation or necessary for public safety.
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since it implicates defendant’s First Amendment right to association. We have noted that “where
fundamental rights are involved, special care should be used to avoid overbroad or vague
restrictions.” State v. Whitchurch, 155 Vt. 134, 137, 577 A.2d 690, 692 (1990). The trial court’s
only explanation for applying this condition to minors under the age of eighteen was that “[u]ntil
he’s involved in active treatment, given his age, I just don’t see it in any way, shape, or form being
appropriate for him having access or contact with sixteen- or seventeen-year-olds at this point.” It
is unclear whether the trial court was basing its decision on defendant’s need for rehabilitation,
concerns about public safety, or a general assessment of propriety of people defendant’s age
associating with sixteen- and seventeen-year-olds. While the trial court may have an adequate
rationale in this case, it must state its rationale explicitly.
¶ 34. In any event, we reject defendant’s argument that condition 42, preventing him
from working for any organization that “primarily provides services to persons under the age of
16 years” (or, per the above discussion, 18 years) unless approved by his probation officer, is
fatally vague and delegates too much authority to the probation officer. When defendant voiced
these concerns at sentencing, the trial court reasoned that the intent of the condition was to prevent
defendant from working at “ABC Daycare” or any workplace that was designed to primarily serve
minors. Defendant now argues that while he is clearly prohibited from working at a daycare, it is
unclear whether he could work at a library, movie theater, supermarket, or fast-food restaurant.
See State v. Rivers, 2005 VT 65, ¶ 13, 178 Vt. 180, 878 A.2d 1070 (listing these locations as places
where children are regularly present). The State responds that the language of the condition puts
defendant on notice of what would constitute a violation. In the State’s view, none of the examples
listed as questionable by the defendant would constitute a violation of probation unless he worked
for a business that specialized in serving minors rather than the general public.
¶ 35. A probation condition must be “precise enough to allow [its] implementation but
not so broad that probation officers are effectively establishing the probationary terms.” State v.
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Putnam, 2015 VT 113, ¶ 64, 200 Vt. 257, 130 A.3d 836. The degree of discretion given to a
probation officer must be “limited in relation to the court’s ability to anticipate the relevant issues
and construct a proper condition.” Id. (quotation omitted).
¶ 36. We agree with the State that this condition on its face adequately puts defendant on
notice as to what would constitute a violation, and does not delegate too much authority to his
probation officer. The court sought to prohibit defendant from working or volunteering for an
organization that served primarily minors, such as daycares or schools. It could not necessarily
produce a list of every such organization, but instead described the critical metric by which
defendant (and his probation officer) can evaluate a prospective employer or volunteer site: does
it primarily serve people under the age of eighteen? If the State seeks to enforce this condition
with respect to an organization that does not clearly fall within this parameter, defendant would be
free to raise an as-applied notice issue at that time, but we conclude that it is not impermissibly
vague on its face. See, e.g., Cornell, 2016 VT 47, ¶¶ 20-22 (holding that condition prohibiting
violent or threatening behavior is not facially invalid but may fail to provide adequate notice as
applied in a particular case).
¶ 37. Moreover, the condition did not grant the probation officer discretion to approve or
veto any position that defendant applied for—only a position with an organization that primarily
serves children. This condition strikes a permissible balance of authority, offering the probation
officer “some degree of flexibility” but not “open-ended authority.” See Putnam, 2015 VT 113,
¶ 64 (quotation omitted).
V. Notification of Changes in Contact Information
¶ 38. Condition 31 requires defendant to “give [his] probation officer [his] home address,
mailing address, telephone number and email address. If any of those change, [defendant] must
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notify his probation officer within 48 hours.”11 At the sentencing hearing, the State argued to
impose a 24-hour window, and defendant argued for a 72-hour window. The court split the
difference and modified the condition to allow a 48-hour window.
¶ 39. On appeal, defendant argues that his homelessness makes compliance with the 48-
hour notification requirement unfeasible. He points out that the trial court stated it did not perceive
a risk from giving defendant 72 hours to notify his probation officer, and that under these
circumstances it was an abuse of discretion to order a 48-hour notification requirement. The State
responds that this Court has upheld 48-hour notification conditions in the past and that the trial
court’s decision in this case was within its discretion.
¶ 40. We upheld a 48-hour notification condition in Putnam, where the defendant had
argued that the condition (as well as several others) were not related to his crime or rehabilitation.
We stated that “[i]mposition of substantially similar conditions relating to the administration of
probation would be within the trial court’s discretion in any case in which probation is ordered.”
2015 VT 113, ¶ 48. This was because “defendant’s probation officer needs to know where
defendant is living and working to understand defendant’s environment, to visit with defendant,
and to identify any impediments to successful rehabilitation.” Id.
¶ 41. Our rationale in Putnam applies here as well. Defendant argues that the
circumstances of his case set it apart from our general proclamations in Putnam. We agree that,
because defendant is homeless, this condition of probation places a high burden on him. However,
his homelessness does not negate the purpose of the condition as we described in Putnam.
Defendant’s probation officer still must know where he is living, visit with him, and identify
impediments to successful rehabilitation. Given the need for a notification condition, we do not
believe that the trial court’s imposition of a requirement that he provide notice of changes within
11
This condition modifies condition B, which imposes the same requirement but with only
a 24-hour window.
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48 hours, when defendant had asked for 72 hours, was an abuse of discretion. We affirm condition
31.
VI. Locations Where Children Congregate
¶ 42. Condition 37 provides that defendant “may not access or loiter in places where
children congregate, i.e., parks, playgrounds, schools, etc., unless otherwise approved, in advance,
by your Probation Officer or designee.”
¶ 43. At the sentencing hearing, defendant objected to “the overbreadth of the condition,”
arguing that “the i.e. and the etcetera do not put him on sufficient notice of what may or may not
be included.” The State responded that if defendant sought an exception, such as entering a school
to vote, “he can talk with his probation officer about that and make arrangements to go,” and that
“there’s no reason for him to be at parks or places where children congregate.” The court imposed
the condition on public-safety grounds, reasoning that “he’s pled guilty to two charges involving
two minor children in this case.” The court noted that the condition “doesn’t mean he has to stay
out of all parks, but if he’s in a park in the children’s playground portion, he absolutely needs to
stay away from that.”
¶ 44. On appeal, defendant argues that this condition was rendered fatally vague when
the trial court stated that the condition “doesn’t mean he has to stay out of all parks.” We disagree,
since the trial court’s restatement of the condition was accurate.
¶ 45. We have previously upheld this condition against facial vagueness challenges. See
State v. Gauthier, 2016 VT 37, ¶ 24, 201 Vt. 543, 145 A.3d 833; Cornell, 2016 VT 47, ¶ 23. We
held that the condition was not overly vague because “the phrase ‘where children congregate’ is
descriptive enough to put a defendant on notice that it includes all places where children are likely
to be found in large numbers.” Cornell, 2016 VT 47, ¶ 24 (quoting Gauthier, 2016 VT 37, ¶ 25).
¶ 46. We reject defendant’s argument that the court’s statements during his sentencing
hearing rendered the otherwise permissible condition impermissibly vague. The trial court’s
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statements during sentencing did not contradict the meaning of the condition, but exactly described
the condition as it has been interpreted by this Court. The trial court stated that defendant did not
have to stay out of all parks, but only the portions of parks where children congregate. This is an
accurate description of condition 37; it does not, for instance, prohibit defendant from accessing a
state park or a dog park. Cf. United States v. Peterson, 248 F.3d 79, 86 (2d Cir. 2001) (noting that
impermissibly vague condition could be read to prohibit access to any park, including
“Yellowstone National Park or . . . an adult gym”); Gauthier, 2016 VT 37, ¶ 26 (comparing vague
Peterson condition to condition at issue here). The instant condition makes clear that it applies to
places where children congregate, and applies to parks only insofar as they fall into that category.
The trial court’s guidance on this point was therefore consistent with the condition and did not
render it impermissibly vague on its face.
We affirm as to conditions 31 and 37; strike and reverse conditions 36, 38, and 40; and
strike and remand conditions 41 and 42 for further action consistent with this opinion.
FOR THE COURT:
Associate Justice
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