The American Civil Liberties Union of Vermont is appealing a case to the state’s highest court that will test the limits of Border Patrol’s authority in state criminal cases.
The appeal centers on drug possession charges against two Richford residents, who were arrested after Border Patrol officers stopped them and searched their vehicle in August 2018.
While Border Patrol agents have broad authority to conduct searches under federal law, the Vermont Constitution has stronger protections for individuals’ privacy. The ACLU-VT argues that Border Patrol didn’t comply with state laws when they searched the vehicle, so the evidence they found cannot be used in the state criminal case.
“What we're looking for is a bright line rule that says Vermont prosecutors and courts cannot use evidence against people where that evidence could not have constitutionally been obtained by Vermont officers,” Ernst said.
Border Patrol officers pulled over the car Brandi Lena-Butterfield and Phillip Walker-Brazie were traveling in through Jay late one August evening last year, not far from the northern border.
According to an affidavit by the border agent, while he asked about their citizenship and why they were in the area, he noticed the smell of marijuana. For that and other reasons, including past criminal records, according to court papers, he asked for consent to search the vehicle, which they declined.
The agents eventually proceeded with a search, believing themselves to have sufficient probable cause, and finding less than 5 ounces of marijuana and hallucinogenic mushrooms, according to ACLU-VT. The federal agents contacted Vermont State Police, because, according to an affidavit, they believed the drug quantities violated state law.
While federal law allows Border Patrol to conduct a search based only on probable cause, Vermont law has a higher threshold. In Vermont, law enforcement either must have a warrant, or probable cause with urgent circumstances.
Ernst said it is important for the state to be clear about its constitutional protections in instances when federal authorities are involved.
“We certainly wouldn't want a scenario where federal agents are routinely undertaking stops and searches and seizures that are not permissible under the Vermont Constitution, and nevertheless, turning over that evidence to state prosecutors for prosecution by state courts, without recognizing the fundamentally different and more expansive right that exists under our Constitution,” Ernst said.
The ACLU-VT’s filing comes in the pending criminal case against Walker-Brazie and Lena-Butterfield. In November, a superior court judge in Orleans County ruled in favor of the civil liberties’ group request to file an interlocutory appeal, which allows them to ask for a ruling from the Supreme Court before the lower court case is complete.
Orleans County State’s Attorney Jennifer Barrett, whose office is prosecuting the case against Walker-Brazie and Lena-Butterfield, did not return a request for comment on the ACLU-VT’s appeal Wednesday.
A Customs and Border Protection spokesperson said that the agency doesn’t comment on litigation.
The authority of Border Patrol has been under scrutiny in Vermont after the agency carried out a series of citizenship checkpoints along roadways in the northern part of the state and in neighboring New Hampshire earlier this year. Border Patrol has broad authority to conduct some searches within 100 miles of the border — which Vermont’s congressional delegation has introduced legislation to limit.
The ACLU-VT appeal focuses on the federal agents’ authority in different types of enforcement, called roving patrols, where Border Patrol agents pull motorists over.
Border Patrol agents often work closely with state and local law enforcement. Through Operation Stonegarden, the federal agency bolsters its presence along the border by recruiting local police and sheriffs for shifts. Border Patrol agents also are sometimes involved with state law enforcement operations, which has raised questions in the past.
Earlier this year, the ACLU-VT scored a major victory in a separate case in which the state high court determined that the “faint” smell of marijuana is not sufficient reason for search and seizures.
Ernst sees a need to set clear limits on the evidence that federal agents gather, because federal law is more permissive about when authorities can carry out searches than state law.
“Because of what we're seeing happen in Vermont and elsewhere with Border Patrol, it's particularly important that Vermont asserts its sovereign interest and ensuring that its Constitution and the rights granted therein are protected,” Ernst said.
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