Updated at 3:21 p.m.
Evidence seized by federal border patrol agents in a manner that violates the Vermont Constitution cannot be used in state prosecutions, the Vermont Supreme Court ruled in a 3-2 decision.
The court issued its ruling Friday in an appeal brought by the American Civil Liberties Union of Vermont, on behalf of a Richford couple who were charged with possession of drugs following a warrantless search of their vehicle in 2018 by border patrol agents in Jay.
Associate Justice William Cohen authored the majority opinion and was joined by Chief Justice Paul Reiber and Associate Justice Beth Robinson.
“The intrusion into defendants’ privacy was not somehow lessened because the search was conducted by a federal agent,” the court ruled, adding that “such evidence ‘eviscerates our most sacred rights, impinges on individual privacy, perverts our judicial process, distorts any notion of fairness, and encourages official misconduct.’”
Associate Justice Karen Carroll authored the dissent, and was joined by Associate Justice Harold Eaton Jr. The justices argued the ruling was inconsistent with court precedent and case law of other jurisdictions.
Vermont’s constitution requires that officers have a warrant to search a vehicle, unless the officer has either consent or probable cause plus urgent circumstances.
The ACLU argued that these constitutional protections apply to searches whether they are conducted by federal agents or by local authorities.
“In this case,” the court stated, “there is no dispute that if the search of defendants’ vehicle had been conducted by Vermont law enforcement officials, the resulting evidence would have been excluded.”
Vermont Attorney General TJ Donovan filed an amicus brief in the case supporting the defendants and said in a statement Friday he applauded the court’s decision.
“The Vermont Constitution protects Vermonters regardless of federal government involvement,” Donovan said.
The Richford couple, Brandi Lena-Butterfield and Phillip Walker-Brazie, were charged with possession of marijuana and psilocybin mushrooms by the Orleans County State’s Attorney’s Office after evidence from their vehicle was turned over to state police.
U.S. Customs and Border Protection officer Jeffery Vining pulled the vehicle over after first seeing it drive by on Route 105 about a mile from the Canadian Border. Vining testified that the area has historically been used to smuggle people and drugs across the border.
In the appeal, the state’s attorney argued the case was controlled by previous Vermont Supreme Court cases that hold the state’s constitution is not implicated when federal officials act pursuant to their “exclusive authority” to safeguard the border.
But the court stated Friday its decision is consistent with a series of U.S. Supreme Court precedents addressing the constitutionality of border searches.
“The federal interest in conducting searches of suspected smugglers during random stops by roving patrols on interior roads,” it ruled, “does not outweigh Vermont’s strong interest in protecting the privacy and dignity of individuals traveling on the roads of this state.”
The ACLU of Vermont said Friday the ruling is “significant for protecting Vermonters’ civil liberties from government overreach.”
Jay Diaz, the organization’s general counsel, said in an interview the ruling closes a loophole that could have allowed state and local law enforcement to circumvent the Vermont Constitution by collaborating with federal agencies.
The court noted this could implicitly encourage federal officers to engage in searches Vermont officers cannot, in exchange for Vermont officers passing along information about immigration violations.
To be sure, the court stated there is no evidence that happened in this case.
“There can be no question,” Diaz said, “that whatever Border Patrol does to our friends and neighbors in Vermont, our state constitutional rights will remain supreme.”