The Incredible Vanishing Constitution!

By David Rangaviz

State v. Bogert, 2013 VT 13

On its face, the Bill of Rights is absolute.

“The people” have the right to assemble, keep and bear arms, and be free from unreasonable searches.  “The accused” enjoy rights to a speedy and public trial, an impartial jury, to be confronted with the witnesses against them, and to have the assistance of counsel.

Other provisions are mandatory prohibitions on government action.  Congress “shall make no law” establishing a religion, prohibiting its free exercise, or abridging the freedom of speech.  Cruel and unusual punishments “shall not” be inflicted.

As applied, however, the Constitution is rife with exceptions.

For example, the rights of expression and privacy of public school students have been substantially circumscribed to ensure that their exercise does not undermine the school’s educational mission.  The constitutional rights of military personnel are similarly limited out of deference to the needs of the military.  Even in its recent decision announcing a robust Second Amendment individual right to possess a firearm, the Supreme Court was careful to cabin its ruling to avoid bestowing this same right on either felons or the mentally ill.

As certain of these examples demonstrate, the creation of exceptions is not necessarily a bad thing.

And in a constitutional democracy, it is inevitable.  In the immortal words of former Chief Justice John Marshall, “we must never forget that it is a constitution we are expounding.”  In other words, the Constitution is not meant to read like the 200,000 pages of the United States Code—detailing the contours of each right described therein.  Ambiguity is the Constitution’s virtue, not its vice.

With all that said, here’s my point: Because the exceptions do not exist on the face of constitutional provisions, it is for the courts, not the legislature or executive, to carve out the exceptions in the process of “expounding” their meaning.  And, for better or worse, courts read exceptions into facially-absolute constitutional rights all the time.

SCOV does just that in today’s case.

The facts are simple.  In 2005, Defendant pleaded guilty to two counts of child pornography possession.  Upon his release on conditional re-entry (i.e., furlough), Defendant signed a standard condition of release allowing for warrantless and suspicionless searches of his “person, place of residence, vehicle or property . . . at any time of the day or night by the department of corrections staff.”

Basically, he signed away his Fourth Amendment rights.

Invoking the power of this condition, officers conducted a search and found evidence that Defendant had violated his release terms by using a computer with internet access without permission and by possessing pornography (“adult or otherwise”).  The State suspended his furlough and threw him back in jail.

Was the search valid?  Can the state conduct random searches of furloughees?  Can the state force the surrender of a fundamental constitutional right as a boilerplate condition of a furlough?

In a unanimous opinion the SCOV concludes that the state can make furloughees submit to random, suspicionless searches.  Furthermore, this practice does not violate the Fourth Amendment.

To understand what SCOV is doing here, some brief Fourth Amendment background is in order.

The text of the Fourth Amendment reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

So, just looking at its text, the Fourth Amendment requires two things: (1) all searches must be reasonable and (2) warrants must be supported by probable cause.

As interpreted by the SCOTUS, these inquiries have functionally merged.  Searches are now presumed reasonable if conducted pursuant to a warrant—the government writes out the reasons it would like to search and the evidence supporting the search, and a judge must sign off.  For the judge to agree, probable cause must exist. 

The converse is also true.  Without a warrant supported by probable cause, a search is presumptively unreasonable.

Although this general rule still holds true, the Supreme Court has carved out numerous exceptions to the text’s warrant requirement: Police can search your trash; they can search your person and car while they arrest you; they can search in “exigent” circumstances; and so on and so on.

Another exception, applied here, is for the “special needs” of law enforcement.  When such “special needs” exist, police can dispense with the warrant requirement and proceed to a search.  In the past, such special needs have included eliminating the threat of drunk drivers, ensuring the health or safety of workers, and maintaining border integrity—in short, pretty much any police activity other than solving crimes (which is about as “ordinary” a need of law enforcement as there is).

To recap: Under the Fourth Amendment, officers must have a warrant and probable cause to search, but they don’t necessarily need either if a search falls into an exception, one of which is the “special needs” exception.  Got it?

Here, SCOV concludes that the search of a furloughee falls into the special needs exception.  The responsibility of supervising furloughees is a sufficient special need to permit warrantless searches.

But that does not end the case.  SCOV still needs to decide the “more difficult question” of “how to balance the competing state and individual interests in this case.”  What should the precise requirements be for a furloughee search?

In answering this question, SCOV discusses two lines of cases from different criminal justice contexts.

In the first, prison officials are permitted to search prisoners without a warrant and without cause.  In prison, you can be searched at any time for no reason at all. 

In the second, probation officers can search probationers without a warrant, but must have “reasonable suspicion”—more than “no suspicion” but less than “probable cause.”  When you’re on probation, your probation officer can search you without a warrant, but needs at least reasonable suspicion to do so.

This case, according to SCOV, falls somewhere in the middle.  So SCOV must decide: Is a search of a furloughee more like a search of a prisoner or a search of a probationer?  Should law enforcement need “reasonable suspicion” to search like they do for probation searches?

According to SCOV, a search of a furloughee is more like a search of a prisoner, and thus no suspicion at all is necessary.   

SCOV hinges its decision on the scope of the furloughee’s right to release on furlough.  The concept of a “furlough” was established by the Vermont Legislature through statute. In past cases, the SCOV has ruled that a furloughee has absolutely no right to his status as a furloughee.  The state can throw him back in jail for any reason, and he has no due process rights to his release status.

The question is simply this: How can an individual have a right to protection from searches while out on furlough when they have no right to their continued release at all?

They can’t!  As SCOV says: “the scope of an offender’s reasonable expectation of privacy in the home, when he or she can be returned to a correctional facility at the discretion of the Commissioner of Corrections, is not as extensive as that of a probationer.”  It would be oddly incongruous, by the SCOV’s estimation, if the prisoner could be thrown in jail on a whim but couldn’t also be searched on a whim.

So the furloughee is treated like a prisoner who happens to occupy a different venue; their home is their prison.  Their constitutional rights do not expand simply because they’ve walked out the prison gate.  They are nominally “free” only by the largesse of the state.  Legally, they’re still prisoners.

And that’s how SCOV decides today’s case.

Just notice how far afield we’ve gotten from the text of the Fourth Amendment.  Feel free to flip back to it.  Do you see terms like:

Reasonable suspicion?

Special needs of law enforcement?

Expectation of privacy?

(Spoiler alert . . . they aren’t there.)

So whenever anybody tells you that judges are mere umpires calling balls and strikes, or simple factotums blindly applying the law like some rote exercise, remind them that it is a constitution they are expounding—absolute but ambiguous, written on faded parchment but constantly being reinterpreted and stretched over new situations.

In the next month, SCOV will hear a case presenting the question of whether an individual merely charged, but not yet convicted, of a crime can be subject to a DNA swab search.  (Here’s an article I co-authored about the case for the Vermont Bar Journal.)  The individual’s DNA will then be run through criminal databases, catalogued, and kept.  The State is arguing that the search falls under the “special needs” exception, the very same exception invoked here.

The meaning of the constitution may change yet again.

That’s the problem with all of these exceptions: they have a tendency to expand during the expounding.