State v. Willy Levitt , 202 Vt. 193 ( 2016 )

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.
2016 VT 60
No. 2015-164
State of Vermont Supreme Court
On Appeal from
v. Superior Court, Chittenden Unit,
Criminal Division
Willy Levitt March Term, 2016
Michael S. Kupersmith, J.
Thomas J. Donovan, Jr., Chittenden County State’s Attorney, and Pamela Hall Johnson,
Deputy State’s Attorney, Burlington, for Plaintiff-Appellee.
Matthew F. Valerio, Defender General, and Marshall Pahl, Appellate Defender, Montpelier, for
Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. DOOLEY, J. Defendant was convicted of simple assault in a jury trial in
December 2014 and placed on probation. He requests that this Court reverse his conviction and
remand for a new trial because the trial court improperly defined reasonable doubt for the jury,
thus lowering the standard of proof. In the alternative, he raises three arguments regarding his
probation conditions: (1) that they were unlawfully imposed on the grounds that the sentencing
court mistakenly believed they were “standard”; (2) that the court failed to inform defendant of
the content of the conditions at sentencing; and (3) that the imposed individual conditions were
overbroad and vague, impermissibly delegated court authority to his probation officer, were
unrelated to his offense, rehabilitation, or public safety, and were not supported by factual
findings. We affirm defendant’s conviction and conditions H, J, and L, but remand on condition
I and strike all the other complained-of conditions.
¶ 2. Defendant was tried for simple assault in a jury trial on December 15, 2014,
stemming from an incident at a protest at Vermont Gas headquarters in May 2014. In charging
the jury, the trial judge informed the jurors that the State was obligated to prove defendant’s guilt
beyond a reasonable doubt, stating that:
Few things in life are absolutely certain. To say that you believe
something beyond a reasonable doubt is to say that you are
convinced of it with great certainty. But proof beyond a
reasonable doubt does not require you to be absolutely or 100
percent certain. A reasonable doubt may arise from the evidence
or from the lack of evidence.
Defendant did not object to this instruction.
¶ 3. The jury returned a guilty verdict. Defendant was sentenced in a hearing on
March 13, 2015. The state argued for fourteen days of incarceration, while the defense requested
a fine or suspended sentence. No evidence was presented, and no mention of probation was
made. Ultimately, the court imposed a sentence of three to six months, suspended but for twenty
days of work crew, and a $300 fine and a surcharge. The court also placed defendant on
probation, imposing—without naming or describing—“standard conditions A through N, and
also condition P”, which are as follows:
A. You shall notify your probation officer within 48 hours if you
are arrested or given a citation for a new offense.
B. You must not be convicted of another crime.
C. You must regularly work at a job or look for work, if your
probation officer tells you to do so. You must get job training if
your probation officer tells you to do.
D. You must regularly work at a community service job if the
court orders you to do so.
E. You must support your dependents and meet other family
responsibilities.
F. You must meet with your probation officer or designee
whenever he/she tells you to do so.
G. If you change your address or move, you must tell your
probation officer within two days.
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H. If you change or lose your job, you must tell your probation
officer within two days.
I. You cannot leave the State without written permission from
your probation officer.
J. Upon request, and without delay, you must allow the probation
officer to visit you wherever you are staying.
K. If the probation officer or the court orders you to go to any
counseling or training program, you must do so. You must
participate to the satisfaction of your probation officer.
L. You must not buy, have or use any regulated drugs unless they
are prescribed by a doctor.
M. Your probation officer or any other person authorized by your
probation officer can require you to have random urinalysis
testing.
N. Violent or threatening behavior is not allowed at any time.
P. You shall not drink alcoholic beverages to the extent they
interfere with your employment or the welfare of your family,
yourself, or any other person. You must submit to any
alcosensor test or any other alcohol test when your probation
officer or their designee tells you to do so.
Defendant did not raise any objections to these conditions at sentencing. The probation order
also included condition 31, which stated “Standard conditions A-N and P apply [;] Condition N
is amended to include verbal, written, or electronic threats of personal injury or property damage
are not permitted.” The court also added conditions preventing defendant from having contact
with a VT Gas Systems communications coordinator—the complainant in the criminal case—
and from going on VT Gas Systems’ property. This timely appeal followed.
¶ 4. On appeal, defendant makes four primary arguments: (1) the trial court committed
structural error by defining “reasonable doubt” for the jury as it did and, as a result, diminished
the constitutional burden of proof; (2) the conditions the trial court imposed because they are
“standard” were erroneously imposed because they are not standard, but discretionary; (3)
because the trial court announced it was imposing standard conditions without informing
defendant as to the content of those conditions, defendant was deprived of his right to be present
at his sentencing and; (4) probation conditions C, D, E, H, I, J, K, L, M, and P are overbroad and
vague, impermissibly delegated the court’s authority to sentence to the probation officer, are
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unrelated to the conduct for which defendant was convicted, are not related to the legitimate
goals of sentencing, and are not supported by factual findings. In response to the defendant’s
challenges to specific conditions, the State concedes that conditions C, D, E, K, M, and P may be
struck, leaving in issue conditions H, I, J, and L. We affirm defendant’s conviction and
conditions H, J, and L, but remand condition I, strike those conditions the State has agreed to
eliminate, and order condition 31 to be amended accordingly.
¶ 5. First, we consider defendant’s argument that in endeavoring to define the phrase
“beyond a reasonable doubt” for the jury as meaning convinced “with great certainty” the trial
court diminished the State’s burden of proof under In re Winship, 397 U.S. 358, 364 (1970),
which observes that the “government cannot adjudge [a defendant] . . . guilty of a criminal
offense without convincing a proper factfinder of his guilt with utmost certainty.” This language
in Winship was part of the explanation of why due process requires a beyond-a-reasonable-doubt
standard of proof in juvenile delinquency cases; it did not require that the term “utmost
certainty” be part of jury instructions. Defendant argues, however, that it applies to jury
instructions and by using the words “great certainty” rather than “utmost certainty” the court
committed structural error, mandating automatic reversal of his conviction. We disagree and
affirm defendant’s conviction.
¶ 6. In order to preserve an objection to jury instructions, a criminal defendant must
object “before the jury retires to consider its verdict, stating distinctly the matter to which he
objects and the grounds of his objection.” V.R.Cr.P. 30; see State v. Hinchcliffe, 2009 VT 111,
¶ 33, 186 Vt. 487, 987 A.2d 988 (noting purpose of Rule 30 is “to give the trial court one last
opportunity to avoid an error” (quotation omitted)); State v. Wheelock, 158 Vt. 302, 306, 609
A.2d 972, 975 (1992) (noting that “failure to object to an instruction after it is given to the jury is

Defendant has not challenged Condition 31. We amend it because the first sentence of
the condition purports to state which of the lettered conditions apply.
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considered a waiver of any error even if the substance of the objection is made known before the
jury charge.”). Where a defendant fails “to comply with Rule 30, we review only for plain
error.” State v. Vuley, 2013 VT 9, ¶ 40, 193 Vt. 622, 70 A.3d 940. In reviewing a jury
instruction for plain error, we determine whether the alleged error “would result in a miscarriage
of justice,” considering whether there was an error, whether the error was obvious, whether the
error affected substantial rights and resulted in prejudice to defendant, and whether the error
“seriously affects the fairness, integrity, or public reputation of judicial proceedings.” State v.
Herrick, 2011 VT 94, ¶ 18, 190 Vt. 292, 30 A.3d 1285. In determining whether there was a
miscarriage of justice, we look at “the record evidence as a whole.” Id.
¶ 7. Here, it is undisputed that defendant failed to object to the reasonable doubt
instruction after it was read to the jury, so we review the instruction for plain error.
¶ 8. The U.S. Constitution “neither prohibits trial courts from defining reasonable
doubt nor requires them to do so as a matter of course.” Victor v. Nebraska, 511 U.S. 1, 5
(1994). As long as the trial court “instructs the jury on the necessity that the defendant’s guilt be
proved beyond a reasonable doubt, . . . the Constitution does not require that any particular form
of words be used in advising the jury of the government’s burden of proof.” Id. (citation
omitted). Instead, the reviewing court must determine whether, “taken as a whole, the
instructions . . . correctly convey the concept of reasonable doubt to the jury.” Id. (some
alterations and quotation omitted); accord Herrick, 2011 VT 94, ¶ 18.
¶ 9. We have not yet considered the relationship of the Winship language to our
criminal jury instructions in a precedential opinion. See State v. Brandt, No. 2011-109, 2012
WL 5974987 at *2 (Vt. Sept. 26, 2012) (unpub. mem.), https://www.vermontjudiciary.org/UPEO
2011Present/eo11-109.pdf (considering identical jury instructions and finding no error because
“reference to ‘great certainty’ did not diminish the [reasonable doubt] instruction or introduce a
lower standard of proof” and jurors were “sufficiently informed . . . of the correct burden of
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proof to apply.”). Our precedential opinions are, however, instructive in considering defendant’s
argument. Of primary importance is State v. Francis, 151 Vt. 296, 561 A.2d 392 (1989), where
we considered a jury instruction defining reasonable doubt as a “doubt for which you can assign
a reason” and doubt “that reasonable people like yourselves would not hesitate to act on [] in
matters of personal importance in your own life.” Id. at 302, 561 A.2d at 395. Although
defendant objected to the instruction and we strongly discouraged the use of such descriptions
because they were “potentially misleading,” we held that “[o]ur disapproval of the language . . .
is not so strong as to cause us to hold one or both to be reversible error.” Id., 561 A.2d at 396.
¶ 10. In State v. Blake, we considered the level of certainty required for reliance on
expert testimony, and we upheld a defendant’s driving under the influence conviction despite the
defendant’s argument that because the State failed to prove he was under the influence, he should
have been acquitted. 151 Vt. 235, 237, 559 A.2d 676, 677 (1989). We held that, at best, the
testimony of the defense expert showed that the calculation of the State’s expert witness “was
not an absolute certainty” and absolute certainty was not required for the jury to find guilt
beyond a reasonable doubt. Id.; see also State v. Thomas, 152 Vt. 315, 320, 565 A.2d 1335,
1337 (1989) (holding that “degrees of uncertainty could be weighed by the jury in determining
whether the State had met its burden of proof” (citing Blake, 151 Vt. at 237, 559 A.2d at 677-
78)).
¶ 11. Our review of caselaw from other jurisdictions indicates that our sister states and
the federal courts have declined to accord the phrase “utmost certainty” talismanic significance.
For example, in Christmas v. State, the Mississippi Supreme Court considered the defendant’s
argument that his instruction on reasonable doubt—which stated that “[t]he Court instructs the
jury that to be convinced beyond a reasonable doubt, you must be convinced with utmost
certainty”—was improperly refused by the trial court. 700 So. 2d 262, 269 n.7 (Miss. 1997).
Relying on Winship, the defendant asserted that the U.S. Supreme Court “view[s] ‘reasonable
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doubt’ as meaning ‘with utmost certainty,’ ” such that his instruction was “the correct statement
of law.” Id. at 269.
¶ 12. The Mississippi Supreme Court affirmed. They considered the language of the
reasonable doubt instruction provided to the jury:
The law presumes every person charged with a crime to be
innocent. This presumption places upon the State the burden of
proving beyond a reasonable doubt each and every element of the
crime charged. If you are not convinced from the evidence beyond
a reasonable doubt that [the defendant] is guilty of each and every
element of the crime charged, you cannot return a verdict of guilt
to the charge.
A reasonable doubt may arise from the evidence, lack of
evidence, weight of the evidence, or sufficiency of the evidence,
but if it arises it is you (sic) sworn duty to return a verdict of not
guilty to the charge.
Id. at 270 n.9. The Court emphasized that “jury instructions are not viewed in isolation, but as a
whole” and that reversal of a conviction is unwarranted if the jury was “fully and fairly
instructed by other instructions.” Id. at 269. By considering the “total instructions given,” the
Court determined that the trial court’s directive was permissible. Id. at 270; accord State v.
Antwine, 743 S.W.2d 51, 62-63 (Mo. 1987) (en banc) (rejecting defendant’s contention that use
of “firmly convinced” in reasonable doubt instruction violates Winship as language is valid
“when it is considered in context,” has been “employed in federal and state courts alike,” and
properly assists lay jurors in their understanding of “beyond a reasonable doubt”); State v.
Butler, 543 A.2d 270, 278 (Conn. 1988) (affirming that reasonable doubt instructions do not
require use of terms “moral certainty,” “near certainty,” or “utmost certainty”); Wilson v. State,
967 P.2d 98, 100 (Ala. Ct. App. 1998) (rejecting defendant’s claim that judge should have
instructed jury that proof beyond reasonable doubt requires proof to the utmost certainty because
“the cases are virtually unanimous that ‘proof beyond a reasonable doubt’ need not be ‘proof to
an absolute certainty’ ”).
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¶ 13. Mindful of the need to consider jury instructions as a whole, we evaluate the
court’s language within the context it was applied:
A few things in life are absolutely certain. To say that you
believe something beyond a reasonable doubt is to say you’re
convinced of it with great certainty. But proof beyond a
reasonable doubt does not require you to be absolutely or 100
percent certain. A reasonable doubt may arise from the evidence
or from the lack of evidence.
...
You must find the Defendant not guilty when you have a
reasonable doubt, even if you believe he is probably guilty. You
may find him guilty only if you have no reasonable doubt.
You need not be able to articulate or to voice an explanation for
your doubt, and the doubt which you have as an individual need
not be the same doubt held by your fellow jurors. Under no
circumstances may a guilty verdict be based upon conjecture or
suspicion.
Looking at the charge to the jury as a whole, we cannot find the instructions to be sufficiently
misleading to be reversible error; any potential diminishment of the State’s burden is balanced by
the trial court’s emphasis upon the presumption of innocence afforded to defendant, the repeated
references to the reasonable doubt standard without further attempts to define the term, and the
weight jurors should attach to any doubt they feel, even if it cannot be articulated. Under Francis
and Blake, and in light of the decisions from other jurisdictions, we conclude that the instructions
as a whole do not violate the Winship standard, even if we were to hold that the language in that
decision was intended to control jury instructions. Because we find no error, we necessarily find
no plain error.
¶ 14. Although we do not find reversible error, we continue our observation that
attempting to define reasonable doubt is a “hazardous undertaking,” and continue to discourage
trial judges from trying such an explanation. Francis, 151 Vt. at 302, 561 A.2d at 396. In a
different context, with a different instruction, and where defendant has made a cogent objection
to the language, a definitional explanation may be error.
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¶ 15. Next, we turn to defendant’s argument that the trial court imposed all fifteen
probation conditions in error. Defendant notes that 28 V.S.A. § 252(a) requires only one
condition in a simple assault case—permitting revocation of probation if the defendant is
convicted of another offense during the probationary period, represented here in condition B.
Because the trial court made no findings demonstrating the other fifteen conditions were related
to rehabilitation or public safety, id. § 252(b)(18), defendant suggests they were imposed only
because the trial court mistakenly believed them to be “standard,” rather than discretionary. We
disagree.
¶ 16. If defendant has preserved an objection in the trial court, “we review the
imposition of particular probation conditions . . . under an abuse-of-discretion standard.” State v.
Putnam, 2015 VT 113, ¶ 44, __ Vt.__, 130 A.3d 836 (quotation omitted). In such a case, we
will not reverse the trial court’s imposition of conditions unless the court’s “discretion has been
exercised to a clearly unreasonable extent.” State v. Moses, 159 Vt. 294, 297, 618 A.2d 478, 480
(1992). In the absence of an objection, we review only for plain error. State v. Gauthier, 2016
VT 37, ¶ 10, __ Vt. __, __ A.3d __.
¶ 17. State v. Putnam has fully answered defendant’s argument. In Putnam, the trial
court orally imposed the “standard conditions of probation,” A through S, “with two exceptions”
and with several additional conditions appended to the probation order. 2015 VT 113, ¶ 26. In
response to the defendant’s assertion that the trial court had erred, as “the only truly ‘standard’
condition is the one providing” revocation of probation if a defendant is convicted of another
offense, we noted that such conditions are standard “in the sense that they appear in an internal
judiciary probation order template, as well as a standard plea agreement form generated by the
Court Administrator.” Id. ¶ 32. We recognized that the label “standard conditions” does not
reflect a determination that every condition is “presumptively valid” or that the package may be
“applied in every case”; nevertheless, we did not find the label sufficient to invalidate a battery
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of probation conditions by itself. Id. We affirm here that the mere fact the trial court used the
term “standard” in an administrative, or even colloquial, sense does not support an inference that
the court imposed conditions out of a mistaken belief they were mandatory.
¶ 18. We reach the same conclusion regarding the absence of specific findings in the
trial court’s decision. As in this case, the Putnam defendant argued that the court was “required
to make particularized findings as to each condition.” Id. ¶ 45. We rejected this narrow
interpretation of § 252, holding that in determining whether a court acted within its discretion in
imposing conditions, “we have not required the sentencing court to make specific findings
regarding each condition, but have looked to whether the record supports the court’s exercise of
its discretion.” Id. To that end, we must examine the record available to the trial court regarding
each complained-of condition and so decline at this stage to strike the conditions on the ground
they were all erroneously imposed.
¶ 19. Defendant’s third argument is that because the trial court referred “only in a
cryptic manner” to the probation conditions, without even “hint[ing] at their content,” defendant
was deprived of the right to be present at his sentencing as required by Vermont Rule of
Criminal Procedure 43(a). Relying on a federal decision under the similar federal rule, United
States v. Sepulveda-Contreras, 466 F.3d 166, 171 (1st Cir. 2006), defendant argues that the effect
of this violation is that the specific condition challenges he makes on appeal must be evaluated as
if they were preserved in the trial court rather than under a plain error standard. He argues that
this remedy is appropriate since he was unable to object to probation conditions at sentencing
because he was unaware of the substance of the conditions. The State has not opposed the
adoption of this remedy in this case, arguing instead that the challenged conditions are valid,
lying within the discretion of the trial court. In view of the State’s position, we will review for
abuse of discretion and not employ a plain error standard of review. We do not, however, decide
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whether the sentencing in this case violated Rule 43(a) or the appropriate remedy if we found
such a violation.
¶ 20. Finally, we turn to defendant’s argument that the probation conditions imposed by
the court are overbroad; have no relationship to defendant’s offense, rehabilitation, or to public
safety; or impermissibly delegate court authority to a probation officer. As we stated in the
introduction, we consider the validity of only conditions H, I, J, and L. See, supra, ¶ 4.
¶ 21. A trial court has “broad statutory authority” to place a defendant on probation.
State v. Nelson, 170 Vt. 125, 128, 742 A.2d 1248, 1250 (1999). In imposing conditions of
probation, however, a court must, in its discretion, impose only such conditions as 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). Furthermore, a probationary condition that prohibits the
probationer from engaging in legal behavior is valid only if it “is reasonably related to the
offender’s rehabilitation or necessary to reduce risk to public safety.” Id. § 252(b)(16); see
Putnam, 2015 VT 113, ¶ 38 (“[A] probation condition that restricts otherwise lawful conduct
must be reasonably related to a defendant’s particular characteristics.”); Moses, 159 Vt. at 298,
618 A.2d at 480 (“A condition is reasonable if it is not unnecessarily harsh or excessive in
achieving these goals [of rehabilitation and public protection] . . . . Conditions that restrict a
probationer’s freedom must be especially fine-tuned.” (internal alterations omitted) (citing
United States v. Tolla, 781 F.2d 29, 34 (2d Cir. 1986))).
¶ 22. We consider each of the disputed conditions in turn. We begin with conditions H
and I, which state that defendant must tell his probation officer within two days if he changes or
loses his job and that defendant cannot leave Vermont without written permission from his
probation officer. Defendant argues these conditions are overbroad, unrelated to his offense or
rehabilitation, and impermissibly delegate the court’s sentencing authority to his probation
officer. In particular, he notes condition I provides no “substantive guidance” about the
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circumstances under which permission should be granted or denied but gives his probation
officer “unfettered authority” to restrict his right to travel.
¶ 23. We note that condition H is a mere notification requirement that neither impinges
on any fundamental freedom nor permits a probation officer to wield any kind of discretion.
Instead, as directed by 28 V.S.A. § 252(a), condition H is directly related to the “supervision of
defendant by his probation officer to assist defendant in leading a law-abiding life.” Putnam,
2015 VT 113, ¶ 48 (noting that trial court “could reasonably conclude that defendant’s probation
officer needs to know where defendant is . . . working to understand defendant’s environment, to
visit with defendant, and to identify any impediments to successful rehabilitation”). Because
condition H is a “basic, administrative requirement[] that [is] necessary to supervised release,”
United States v. Thomas, 299 F.3d 150, 155 (2d Cir. 2002), it does not burden defendant, unduly
restrict protected freedoms, or delegate sentencing authority to a probation officer—we affirm its
imposition.
¶ 24. Our past decisions have not considered condition I, which prohibits the
probationer from leaving Vermont without the approval of his probation officer. Similar
conditions have, however, been considered in other jurisdictions. See, e.g., United States v.
Llantada, 815 F.3d 679, 683 (10th Cir. 2016) (concluding condition preventing probationer from
leaving judicial district of court without permission of court or probation officer is valid);
Pelland v. Rhode Island, 317 F. Supp. 2d 86, 91 (D.R.I. 2004) (agreeing with Federal appellate
courts in Seventh and Ninth Circuits and United States District Court for Eastern District of New
York that restrictions on interstate travel by probationers are valid; “probationers and parolees
have no constitutionally protected right to interstate travel for the balance of their sentences”);
People v. Roth, 397 N.W.2d 196, 197 (Mich. App. 1986) (“A condition of probation restricting
defendant’s right to travel may be imposed without violation of the constitution.”); State v.
Moody, 148 P.3d 662, 668 (Mont. 2006) (upholding requirement that probationer obtain written
12
permission before leaving assigned district); State v. Stewart, 713 N.W.2d 165, 169 (Wis. Ct.
App. 2006) (“Geographical limitations, while restricting a defendant’s rights to travel and
associate, are not per se unconstitutional.”). Defendant makes two arguments in challenging this
condition.
¶ 25. The first is that the condition imposes an unconstitutional restriction on his right
to travel interstate. The above decisions are reflective of the overwhelming weight of authority
that a probationer convicted of a crime loses the right to travel outside the district of the
sentencing court. As an example, in delineating its reasoning, the court in Llantada stated:
. . . [w]e reject [the probationer’s] argument that the condition is an
unreasonable or unnecessary limitation on his right to travel. [The
probationer] points to no federal case with such a holding, and the
government provides ample reasons for limiting a person on
supervised release to a single judicial district. For example,
probation officers have an easier time contacting and speaking
with an offender if he is limited to a single area. In addition, such
a restriction acts as a deterrent to criminal conduct, which
comports with the policy goals of federal sentencing law. Finally,
the restriction can be lifted by a parole officer upon request by the
parolee.
815 F.3d at 683 (citation omitted). In upholding a travel restriction in State v. Moody, the
Montana Supreme Court said the restriction will allow the probation officer to “effectively keep
track of [probationer’s] whereabouts in order to ensure that she remains on course with
treatment.” 148 P.3d at 668. We join our sister states and the federal courts in concluding that a
condition restricting defendant’s ability to travel beyond a specified area, such as the jurisdiction
of a court or the state, is valid on its face. In so doing, we note that the condition as written is in
fact less restrictive than those in many other jurisdictions—which, as demonstrated above, often
restrict defendants to judicial districts or counties. See, e.g., id. at 668 (judicial district); Roth,
397 N.W.2d at 197 (county).
¶ 26. Defendant’s second challenge to this condition is based on the delegation to the
probation officer to decide whether defendant can travel out of state. On the one hand, a
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permission authorization helps to mitigate the severity of a location or travel restriction. See
United States v. Watson, 582 F.3d 974, 984 (9th Cir. 2009) (upholding geographic restriction
because fact probationer can obtain permission from officer “helps to mitigate the severity of the
limitation”). On the other hand, in the absence of standards for the exercise of the permission
authorization, the probation officer can grant or deny a request to travel for any reason. In
general, “the court may not delegate the power to impose probation conditions to a probation
officer.” Gauthier, 2016 VT 37, ¶ 28. “The court may, however, give probation officers
discretion in the implementation of a probation condition.” Id.
¶ 27. The interplay of these conflicting policies is demonstrated in State v. Moses in a
context relevant to the case before us. Moses involved two probation conditions that gave
discretion to a probation officer. One condition required the probationer to live where the
probation officer directs. The other required the probationer not to associate with any person
prohibited by the probation officer. We upheld the latter condition because it was related to the
underlying crime and “where the potential class of victims is broad—and individual associations
are not always foreseeable or easily subject to prior approval—the condition necessarily must
retain a degree of flexibility to facilitate its proper implementation.” Moses, 159 Vt. at 298, 618
A.2d at 480. We disallowed the former condition because “the court turned over to a probation
officer the complete power to determine defendant’s residence, with no guiding standards.” Id.
at 300, 618 A.2d at 481. We concluded that under the condition “the probation officer can
require defendant to live in a specific place, within or without the State of Vermont, for reasons
unrelated to rehabilitation or the prevention of further criminal offenses.” Id. We concluded that
the court could create appropriate standards to govern the action of the probation officer and
remanded for that purpose. Id. at 301, 618 A.2d at 482.
¶ 28. Although the out-of-state travel condition has aspects of both conditions in
Moses, we conclude that it is closer to the condition that gave the power to the probation officer
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to determine where defendant could reside. There are no standards for the exercise of probation
officer discretion in the condition and no context is provided by the offense for which defendant
was convicted. Unlike the circumstances behind the locational condition in Moses, the reasons
why defendant would need to travel outside of Vermont are predictable, and defendant can give
prior notice of the time of the travel, destination, and reason for it. Thus, we believe that
standards can be created even though they may, in turn, accord substantial discretion to the
probation officer in making the decision. We remand for the trial court to add standards to the
condition.
¶ 29. Next, we consider condition J, which requires defendant to “upon request, and
without delay” allow his probation officer to visit him wherever he is staying. Defendant argues
that his offense had nothing to do with his home and that allowing an officer to visit would not
serve any permissible purpose. Furthermore, he notes that labelling a mandatory, suspicionless
entry of a probation officer into defendant’s home a “visit” appears to be an “attempt to
circumvent the Fourth Amendment and Article 11” of the Vermont Constitution. We disagree
and affirm.
¶ 30. We begin by noting that the home visit is a virtually universal condition of state
and federal probation. See, e.g., Wyman v. James, 400 U.S. 309, 317 (1971) (holding that
required caseworker visits to homes of welfare recipients is not search in the “traditional criminal
law context”); United States v. Munoz, 812 F.3d 809, 821-22 (10th Cir. 2016) (upholding
condition that requires defendant to permit probation officer to visit him or her at any time at
home or elsewhere); United States v. Reyes, 283 F.3d 446, 460 (2d Cir. 2002) (holding that the
“probable cause requirements of the Fourth Amendment do not apply to a federal probation
officer conducting a home visit—a far less invasive form of supervision than a search—pursuant
to a convicted offender’s conditions of supervised release”); Comm. v. LaFrance, 525 N.E.2d
379, 383 (Mass. 1988) (contrasting warrantless searches with the “traditional right to visit and
15
meet with probationers”); Grubbs v. State, 373 So. 2d 905, 908 (Fla. 1979) (“All authorities agree
that the probationary supervisor has the authority to visit the probationer’s home or place of
employment without the necessity of a warrant”). By and large, courts have affirmed that such
visits fulfill an administrative, rather than investigatory, function, and noted that if probation
officers were tasked with showing reasonable suspicion of criminal activity before visiting a
probationer at his home, “supervision would become effectively impossible.” United States v.
LeBlanc, 490 F.3d 361, 369 (5th Cir. 2007).
¶ 31. There is one decision that considers the validity of a home visit condition under a
state constitution. In Moody, the Montana Supreme Court considered a challenge by a defendant
convicted of assault on a police officer, driving while intoxicated, and driving without insurance
that a probation condition requiring her to keep her home “open and available for the probation .
. . officer to visit” violated Article II, Section 11 of the Montana Constitution. 148 P.3d at 666.
The defendant argued that a home visit is a search and a mandatory visit would violate her right
to be free from unreasonable search and seizure. Id. at 665. The Montana high court applied
three factors to determine whether a visit constitutes a search: (1) the defendant’s reasonable
expectation of privacy; (2) whether society recognizes that expectation as objectively reasonable
and; (3) the nature of the State’s intrusion. Id. at 666. In evaluating the first factor, the court
determined that a convicted felon cannot have an actual expectation of privacy that would
preclude home visits when she is “granted probation on a clearly expressed condition, of which
she is ‘unambiguously’ aware, that she make her home open and available for the probation
officer to visit.” Id. To the second, the court concluded that even if such an expectation were to
exist, it would be unreasonable, as home visits properly ensure felons are abiding by conditions
of probation, thereby addressing the pervasive problem of recidivism. Id. Finally, to the third
factor, the court reasoned that the visits are not intrusive but are merely a “commonly imposed
condition of probation which allow the probation officer to determine whether [a probationer] is
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abiding by the conditions of probation and thus serve to protect the safety and welfare of
society.” Id. at 666. The court held that home visits do not qualify as searches, id. at 667; rather,
they “operate as an important check on a probationer’s rehabilitation efforts.” Id. at 665.
However, the court cautioned that because visits are not searches, officers “may not open
drawers, cabinets, closets or the like or rummage through a probationer’s belongings.” Id. at
667.
¶ 32. Although defendant’s conviction here is for a misdemeanor, we are persuaded by
the reasoning of the state and federal courts that have considered the question that a home visit is
not a search and a home-visit requirement does not afoul of the Vermont or Federal Constitution
search and seizure provisions. A home-visit condition is a legitimate tool of probation
administration and is valid. We uphold probation condition J. We want to be clear, however,
that we are ruling only on the validity of the condition and not on the use of any evidence a
probation officer may acquire while engaged in a home visit. Any issues in the latter category
are beyond the scope of this opinion.
¶ 33. Finally, defendant argues condition L, which states that he must not buy, have, or
use any regulated drugs unless prescribed by a doctor, has no relationship to his offense,
rehabilitation, or public safety. Defendant complains that there was no evidence that his offense
had “anything to do with drugs or alcohol”, that substance abuse is a “problem” for defendant, or
even that he “uses drugs or alcohol at all.” The State responds that Putnam upheld the identical
condition in a case where there was no relationship between the conviction and the conduct
prohibited by the condition.
¶ 34. We agree with the State. Putnam considered the same condition and held:
A condition that forbids criminal conduct is valid. See State v.
Whitchurch, 155 Vt. at 137, 577 A.2d at 692 (explaining that
probation condition is valid unless it has no relationship to
underlying crime, relates to conduct which is not itself criminal,
and requires or forbids conduct that is not reasonably related to
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future criminality). There was no abuse of discretion insofar as the
purchase, possession, or use of regulated drugs is unlawful unless
specifically authorized by law. See 18 V.S.A. § 4205 (prohibiting
person from manufacturing, possessing, selling, prescribing,
administering, dispensing, or compounding any regulated drug
except as authorized). While there are particular circumstances in
which an individual may possess regulated drugs, see id. § 4203,
these are limited and there is no evidence to show that they relate
to defendant's situation. Because the condition precludes conduct
that is criminal, the trial court was not required to find a reasonable
relationship between defendant's conviction and the condition.
2015 VT 113, ¶ 56. We cannot distinguish this case from Putnam. Accordingly, we uphold
condition L.
Affirmed as to defendant’s conviction and conditions H, J, and L. Conditions C, D, E, K,
M, and P are stricken. Condition I is remanded to add an appropriate standard for exercise of the
probation officer’s discretion. Condition 31 is remanded to be amended consistent with this
opinion.
FOR THE COURT:
Associate Justice
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