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Vermont Supreme Court: Miranda Warning Not Necessary When Probation Officer Questions Probationer about Criminal Activity

By Christopher Zoukis

The Vermont Supreme Court has ruled that a person on "furlough," a heightened version of parole in Vermont, has no right to a Miranda warning prior to questioning by a probation officer in his home about conduct that constitutes a crime.

John Powers was on community furlough at the highest level of supervision following a conviction for forcible sexual assault on a 13-year-old girl. While on furlough, Powers allegedly drilled holes in his wall to view his teenaged neighbor in her bedroom. Powers' probation officer came to his home, and upon finding the holes, began questioning him. Powers admitted making the holes and using them to spy on his minor neighbor. He was taken to the DOC office for processing for violation of furlough.

While at the DOC office, Powers was held in wrist and leg restraints. His probation officer started a second "conversation" in which Powers further incriminated himself. Powers was charged with 13 counts of voyeurism and one count of stalking.

At trial, Powers moved to suppress both sets of statements as violative of the Constitution. Powers argued that he was in custody at the time of the statements and as such, should have been provided a Miranda warning. The trial court agreed and suppressed both sets of statements. The state appealed.

The Vermont Supreme Court reversed the trial court's decision to suppress the statements. The court specifically held that the first set of statements required no Miranda warning and thus should not have been suppressed. The court applied a two-part analysis of the circumstances, prescribed by the United States Supreme Court, in order to conclude that Powers was not in custody.

The first step of the custody inquiry was "to ascertain whether, in light of the objective circumstances of the interrogation, a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave." The court found that because the initial interrogation was in Powers' home, Powers was not restrained, and the state could not revoke Powers' furlough even if he were to exercise his Fifth Amendment privilege, a reasonable person would have felt at liberty to terminate the interview.

This conclusion strains credulity. As the dissenting opinion observed, Powers knew that his furlough status could be revoked if he failed to truthfully answer his probation officer's questions. Powers was not there voluntarily, but at the officer's command. Indeed, the officer testified that he would not have allowed Powers to leave had he tried. No reasonable person could conclude that he could have terminated the interview.

The second step of the custody inquiry involved ascertaining whether "[t]he relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda." Here, the court reiterated that the statements were made in Powers' home, not the station house. The court also highlighted the conversational nature of the first set of statements in determining that they did not require a Miranda warning.

"This is not a case . . . where a defendant was confronted by evidence against him, accused of a crime, and told that the interrogating police officer believed that defendant was guilty," wrote the court.

The court also relied heavily on what it believed the nature of the relationship between probationer and probation officer to be -- one not "founded on fear, intimidation, or authoritarianism, but on trust, openness, and the commonly held goal of restoring the defendant to useful and productive citizenship."

"Treating probation officers as law enforcement officers primarily motivated to secure convictions for crimes and required to give Miranda warnings to those they supervise erects a substantial barrier to the development of forthright, open communication between probation officers and those they supervise," noted the court.

While the court's statement about the relationship between probationer and probation officer is certainly aspirational, it is not reflective of reality. In practice, this relationship is adversarial, not cooperative. As such, the court missed the mark when it made such distinction between a probation officer and a police officer.

The court did not reach the same conclusions when analyzing the second set of statements, however. Instead, the court found that "the evidence available shows factors that support a conclusion that defendant was in custody for Miranda purposes." These factors included the confessions already made by Powers, the accusations made by a police officer, Powers' arrest on probation violation charges, and the location of the interview. Because the court found it impossible to say, as a matter of law, that Powers was in custody for purposes of Miranda, the case was remanded to the trial court for further proceedings.

Case:  State of Vermont v. Powers, Vermont Supreme Court, Case No. 2015-076, 2016 VT 110 (September 2015).

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Related legal case

State of Vermont v. Powers