Vermont Supreme Court Hears Arguments in ACLU Case on Vermonters’ Constitutional Rights in Border Patrol Searches

Court to decide whether Vermont prosecutors can use evidence obtained by Border Patrol in an unconsented search


December 15, 2020

MONTPELIER – The Vermont Supreme Court heard oral arguments today in an appeal brought by ACLU of Vermont on behalf of a Vermont couple who were charged with possession of marijuana and psilocybin mushrooms, following a warrantless search by Border Patrol agents during an August 2018 “roving patrol” stop in Jay, Vermont.

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 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.

Vermont’s Constitution requires a warrant to search a vehicle, unless the officer has either consent or probable cause plus urgent circumstances — neither of which were present in this case. The ACLU contends that Vermont’s constitutional protections apply to searches in Vermont — whether conducted by federal agents or local police — and that the evidence therefore cannot be used in a state prosecution.

ACLU of Vermont Senior Staff Attorney Jay Diaz: “When local police and prosecutors can go around Vermont’s Constitution, we are ceding the constitutional rights of our people and sovereignty of our state to a dangerous rogue agency that regularly violates civil rights and liberties. Our clients’ vehicle was searched in Vermont and Vermont prosecutors seek to use the resulting evidence in a Vermont Court. The Vermont Constitution should apply. The strong privacy and dignity protections valued by Vermonters are embedded in our state constitution, and they must be vindicated in our courts to have any value at all.”

Vermont Attorney General T.J. Donovan: “Vermonters are entitled to the full protections under the Vermont Constitution, regardless of which law enforcement agency is involved,” said Attorney General T.J. Donovan. “Federal government involvement does not diminish or erode the protections afforded to Vermonters under the Vermont Constitution.”

The Vermont Supreme Court will determine whether Vermont prosecutors can use evidence obtained by Border Patrol in an unconsented search that violated the couple’s rights under the Vermont Constitution.

A recording of the hearing is available on the Vermont Judiciary's YouTube channel.

A recording of the press briefing is available here.

More information and case documents are available at: