Blast from the Past

"Okay. But NOT if they're on furlough."

State v. Bogert, 2013 VT 13A

By Andrew Delaney

Here’s a blast from the past. Sometimes an opinion ends up in our we’ll-get-to-it-soon pile and languishes there for several years. That’s sorta what happened with this one.

The first time we wrote about this case was in March of 2013. We’re going to play spot the differences. Luckily, it’s an 11-pager and it shouldn’t take too long.

A brief synopsis of the previous opinion is in order. Mr. Bogert pleaded guilty to two counts of possession of child pornography and no contest to two counts of sexual assault. One of his probation conditions included warrantless searches. He signed off on the conditions. As our previous summary puts it: “Basically, he signed away his Fourth Amendment rights.” He served some time and was released on furlough. When a warrantless search turned up evidence of violations of his conditions, he got in hot water and ended up back in jail. He appealed his violations, arguing that the search violated his Vermont and federal constitutional right to be free from unreasonable searches and seizures. The SCOV concluded that the State can make furloughees submit to random, suspicionless searches under a “special needs”—that of effectively supervising furoughees—exception to the warrant requirement. Neither the Vermont nor federal Constitution was violated.

Mr. Bogert files a motion for reargument and the SCOV grants it. The analysis remains largely the same. Semantically, the first difference is that this version mentions the federal Constitution in the introductory paragraph. In the old version, only the Vermont Constitution was mentioned.

This really is a distinction without much weight. If a search doesn’t violate the Vermont Constitution, it’s explicitly implied that it doesn’t violate the federal Constitution—this is because in constitutional law a state’s constitution can provide greater protections than the federal counterpart, but it can never provide lesser protections. There’s something to talk about at parties. If you're a dork. Or a lawyer. To-may-toe, to-mah-to.

In this new version, the SCOV spends a little more time discussing the reasoning behind Mr. Bogert’s sentence before getting to the warrantless-search condition.

The federal claim analysis has virtually no difference from the previous opinion, so I’m not going to walk through it.

The Vermont analysis differs a bit. Whereas the old opinion seemed a bit more sympathetic to Mr. Bogert’s situation, the new opinion notes that as a furloughee, Mr. Bogert is basically a prisoner in his own home. Because of “the clarity of the conditions agreed to by defendant, their nexus to the State's goals and defendant's legitimate expectation of privacy, and defendant's status on conditional reentry,” his privacy interest is “quite weak,” and the State’s special interest in effectively supervising furloughees overrides it.

In the newer version, the SCOV is clear that this reasoning does not mean that a furloughee’s privacy rights fly out the window. There have to be clear guidelines, the guidelines have to be followed, and searches can’t be arbitrary—there’s an element of reasonableness to it no matter what.

So nothing really changes, but perhaps we get a little more clarity. I’d imagine that filing for reargument, having the motion granted, and not having anything really change is like what my mom used to call “winning the booby prize.”