VT: A mere “home visit” of a probationer is reasonable and it does not include a search of the house

A mere “home visit” of a probationer is reasonable and it does not include a search of the house; merely an entry to look. State v. Levitt, 2016 VT 60, 2016 Vt. LEXIS 58 (May 27, 2016):

[*P31] 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 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.

[*P32] 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 run 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.