September 24, 2021

Vermont prosecutors cannot use evidence obtained by Border Patrol in searches that violate Vermonters’ state constitutional rights

MONTPELIER – The Vermont Supreme Court issued its ruling 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 on Route 105 in Jay, Vermont.

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.’”

ACLU of Vermont General Counsel Jay Diaz: “This critically important ruling means that local police and prosecutors cannot use Border Patrol to do an end run around Vermont’s Constitution. Nor should they — Border Patrol is a notorious rogue agency with no respect for human rights or the rule of law. The strong privacy and dignity protections embedded in our state constitution are a source of state pride and the Court’s decision reaffirms and expands those rights. We are thankful to our clients for asserting their rights on behalf of all Vermonters, and we are grateful that those rights were vindicated today.”

The Court noted that Vermont’s constitution provides “greater protection for individual rights than the federal constitution,” and that “The core purpose of Article 11 is to protect legitimate-expectations of privacy and dignity from unreasonable intrusions by the government.”  The Court further noted that its decision is consistent with a series of U.S. Supreme Court precedents addressing the constitutionality of border searches, and that “the federal interest in conducting searches of suspected smugglers during random stops by roving patrols on interior roads…does not outweigh Vermont’s strong interest in protecting the privacy and dignity of individuals traveling on the roads of this state.”

Finally, the Court highlighted the importance of deterrence, reasoning that “allowing the State to use evidence gathered in violation of the Vermont Constitution simply because it was gathered by federal law enforcement officers might implicitly encourage federal officers to engage in searches that Vermont officers cannot, so that Vermont officers will reciprocate by passing along information regarding immigration violations.” The ACLU asserts that, given Border Patrol’s notorious culture and history of abuse, this ruling and its deterrent effect are particularly significant for protecting Vermonters’ civil liberties from government overreach.

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 argued that Vermont’s constitutional protections apply to searches in Vermont — whether conducted by federal agents or local police — and that the evidence discovered in a manner that violates the Vermont Constitution cannot, therefore, be used in a state prosecution.

Brandi Lena-Butterfield, Phillip Walker-Brazie, and the ACLU of Vermont are grateful to the Vermont Attorney General, Vermont Defender General, and Vermont Law School’s Appellate Advocacy Clinic for their amicus support in this case.

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: