Crime and Justice

Vermont Supreme Court weighs case that focuses on Border Patrol’s authority

Supreme Court building
Vermont Supreme Court building in Montpelier is closed during the pandemic; justices are hearing cases on video calls. Photo by Mike Dougherty/VTDigger

A case that tests the limits of U.S. Border Patrol authority in the state courts is now in the hands of the Vermont Supreme Court.

The five justices heard video arguments Tuesday in an appeal that focuses on drug possession charges against two Richford residents stopped in August 2018.

The Richford residents are challenging the legality of a warrantless search conducted by Border Patrol agents who had pulled over their vehicle about 2 miles from the Canadian border and found the drugs, which led to state-level criminal charges. 

Jay Diaz, senior staff attorney with the ACLU of Vermont, told the court that federal law gives Border Patrol officers broad authority to conduct searches, but Vermont’s Constitution provides stronger protections for individuals’ privacy.

The Border Patrol search didn’t comply with those state protections, Diaz added, and as a result the evidence seized cannot be used in a state-level criminal prosecution. 

“When Vermonters are dropping the kids off at school or going to the grocery store or the doctor’s office or church, or even court,” Diaz told the justices, “they shouldn’t by virtue of leaving their house and driving the car have diminished rights, no matter where they are in the state.”

Federal law permits Border Patrol searches based only on probable cause. Vermont has a higher standard, calling for a warrant, or probable cause with urgent circumstances.

In the case argued Tuesday, Border Patrol agents conducting a “roving patrol” stopped the vehicle Brandi Lena-Butterfield and Phillip Walker-Brazie were driving on the evening of Aug. 12, 2018, as they were heading west on Route 105 in Jay.

A Border Patrol officer stated in an affidavit that he asked Lena-Butterfield and Walker-Brazie about their citizenship and why they were in that area not far from the Canadian border. The agent also wrote that he noticed the smell of marijuana. 

As a result of that and other reasons, including criminal records, the agent asked for consent to conduct a search of the vehicle, but the two refused to grant it, court records state. 

Eventually, agents proceeded with the search, believing they had probable cause to proceed, and found less than 5 ounces of marijuana and hallucinogenic mushrooms.

The agents then contacted Vermont State Police, as they believed the amounts violated state law. Charges against the two were brought by the Orleans County State’s Attorney’s Office. 

Diaz, speaking after the hearing, said it is important to establish that the protections provided in Vermont’s Constitution be the “North Star” for actions in state courts.

He said the federal agents could have brought the Richford residents’ case to federal prosecutors, “and the federal prosecutors could do what they want with it. Instead, it is a Vermont state prosecution in a Vermont state court and they expect their rights to apply, and we believe they should.”  

David Tartter, a deputy state’s attorney, argued the case on behalf of the Orleans County State’s Attorney’s Office.

In his argument and a written statement, he said the federal authorities acted within the law in conducting the search, since they were not far from the border and were investigating a possible federal crime: drug smuggling.

As a result, he said, there was no need for them to seek a state warrant to conduct the search.

The Vermont Defender General’s Office, the Vermont Attorney’s General Office and the advocacy organization Migrant Justice filed briefs supporting the ACLU’s position. 

“If Vermonters are prosecuted in Vermont state court, they are entitled to the full protections of the Vermont Constitution, which are greater than the federal protections, regardless of who arrests them,” Vermont Attorney General TJ Donovan said after Tuesday’s hearing. 

“At a very basic level,” he said, “if you get brought into court in Vermont, into a Vermont state court, law enforcement — who have the burden — have to play by the Vermont rules.” 

The Attorney General’s Office took the unusual step of opposing the Orleans County State’s Attorney’s Office.

The Vermont Supreme Court is expected to issue a written opinion in the case, though how long it will take is not known. 

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Alan J. Keays

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