On September 24, 2021, we celebrated a major victory for police and prosecutor accountability when the Vermont Supreme Court ruled in our favor on behalf of a Vermont couple couple who were prosecuted following an August 2018 “roving patrol” stop by a U.S. Border Patrol agent in Jay, Vermont. 

In State v. Walker-Brazie & Lena-Butterfield, the Court was asked to determine whether a person can be convicted on state charges based on evidence federal agents obtained in a manner that violated the protections afforded by Article 11 of the Vermont Constitution.

Specifically, the Court ruled that “where federal border officials on roving patrol obtain evidence in a manner that violates Article 11, that evidence may not be introduced at trial in a state criminal proceeding” because “[t]he intrusion into defendants’ privacy was not somehow lessened because the search was conducted by a federal agent,” and “such evidence ‘eviscerates our most sacred rights, impinges on individual privacy, perverts our judicial process, distorts any notion of fairness, and encourages official misconduct.’”

On August 12, 2018, Brandi Lena-Butterfield and Phillip Walker-Brazie were driving west on Vermont Route 105 toward their home in Richford when Border Patrol Agent Jeffrey Vining stopped the couple’s vehicle and asked to search it. The couple refused to consent to a search. Without obtaining a warrant and over the couple’s objections, the agent ordered them from the car and conducted a search. The resulting evidence, less than 5 ounces of marijuana and mushrooms, was turned over to a Vermont State Trooper, and Ms. Lena-Butterfield and Mr. Walker-Brazie were subsequently charged with possession by the Orleans County State’s Attorney’s office.

The ACLU contends that the search would have violated Vermont’s Constitution if conducted by a state official, and therefore the evidence cannot be used in a state prosecution. Vermont’s Constitution requires that to search a vehicle without a warrant, an officer must have either consent or probable cause plus urgent circumstances—neither of which were present in this case. The Border Patrol claims authority to conduct “roving patrol” vehicle stops and searches in the interior of the country, but those stops must be based on “reasonable suspicion” of an immigration violation, and searches require “probable cause.”

The case arose at a time when Border Patrol was expanding interior enforcement operations in Vermont and regionally, including multiple interior vehicle checkpoints in Vermont and New Hampshire this year. Additionally, the ACLU has objected to Border Patrol boarding buses and interrogating passengers and has sued under the Freedom of Information Act to shed light on these and other interior enforcement operations by federal agents operating throughout northern New England.

In 2018, the ACLU of New Hampshire successfully represented 16 individuals who were prosecuted in state court based on evidence obtained from a Border Patrol interior checkpoint on I-93. A New Hampshire court granted motions to suppress evidence on the grounds that its seizure was illegal under state law.

The Vermont Supreme Court heard oral argument in this case on December 15, 2020. You can watch the argument here.