RICHFORD – A case involving a Border Patrol agent’s search of a vehicle resulting in drug charges for a pair of Richford residents has become a constitutional question now facing the Vermont Supreme Court.

Oral arguments brought before the court by the American Civil Liberties Union’s (ACLU) Vermont branch and the state of Vermont were heard earlier this week, and an eventual decision now rests with the court.

At the center of the case is the question of whether evidence collected during a warrantless search handled per federal law could be used within Vermont’s state courts, where constitutional protections can be stricter.

What brought a local drug possession case before the Vermont Supreme Court?

Brandi Lena-Butterfield and Phillip Walker-Brazie, both of Richford, were charged with state-level drug crimes in 2018 after a Border Patrol agent pulled the two over near the Town of Jay.

At the time, the agent reported smelling marijuana from Lena-Butterfield and Walker-Brazie’s vehicle, prompting a warrantless search that ultimately uncovered both marijuana and psilocybin mushroom, according to the ACLU’s appeal.

Those drugs were later handed over to the Vermont State Police as evidence, prompting the state to bring state-level criminal drug charges against the two Richford residents.

While the search was handled in accordance with federal law, because Vermont’s constitution provides greater privacy protections against warrantless searches, Lena-Butterfield and Walker-Brazie’s counsel have sought to suppress the drugs as evidence as their trial is heard in state court.

While the trial court initially denied a motion asking for those drugs to not be allowed as evidence due to the state’s stricter requirements for police searches, the ACLU has since appealed the case, arguing those drugs’ use in court runs afoul of Vermont’s constitution.

What are the arguments?

Federal law allows for search and seizure should a law officer have either a warrant or what is known as “probable cause” – essentially, enough evidence that a reasonable person would be able to determine the individual may have committed a crime.

Within Vermont, those standards are tighter, as “probable cause” needs to occur amid pressing circumstances for a warrantless search to occur. Otherwise, law enforcement officers require either consent or a warrant before conducting a search.

For Lena-Butterfield and Walker-Brazie’s case, the ACLU argues the Border Patrol were acting as police within Vermont, and therefore are required to police per Vermont laws rather than federal laws.

Border Patrol’s search, according to the ACLU, represented a violation of Lena-Butterfield and Walker-Brazie’s privacy and property rights guaranteed by Vermont’s constitution.

“Those two were just going home to their house in Richford when they were stopped and searched by border patrol in a manner that is just inconsistent with their Vermont constitutional rights,” the ACLU’s lawyer, Jay Diaz, said during a press conference Tuesday.

Because the drugs were seized during a vehicle search not conducted according to limitations within Vermont’s constitution, the ACLU argues in its appeal the state should not be allowed to use those drugs as evidence while trying Lena-Butterfield and Walker-Brazie.

It was an argument that found support from Vermont’s attorney general, T.J. Donovan, who, breaking with state’s attorneys in nearby Orleans County, told reporters during a press conference Tuesday, “if you get brought into a Vermont state court, law enforcement… has to play by Vermont rules.”

“At a very fundamental level, if Vermonters are prosecuted in Vermont state court, they are entitled to the full protections of the Vermont constitution, which are greater than federal protections, regardless of who arrests them,” Donovan said.

Both Donovan and the Burlington-based organization Migrant Justice, which campaigns on behalf of Vermont’s migrant farm worker population, have filed amicus briefs supporting the ACLU’s appeal.

The state has meanwhile defended Border Patrol’s search of Lena-Butterfield and Walker-Brazie’s vehicle, both due to the stop’s proximity to the U.S. border – reportedly two miles from the border – and due to Border Patrol’s enforcement of federal laws regarding drug trafficking.

As for those drugs’ use as evidence in court, the state is arguing Vermont law enforcement agencies had not conducted the search themselves, and therefore were not violating Vermont’s constitution.

At the time, the Border Patrol agent in question was conducting a “roving patrol” and not acting on behalf of a state law enforcement agency.

What happens next?

The ACLU, on behalf of Lena-Butterfield and Walker-Brazie, are asking the drugs seized during the Border Patrol’s stop be suppressed as evidence during their criminal trial, as the search resulting in their seizure is, according to the ACLU, unconstitutional.

Doing so could ultimately mean that, under Vermont law, U.S. Customs and Border Protection, the federal agency charged with enforcing U.S. border restrictions, would be required to act according to state regulations regarding privacy and property rights while policing Vermont’s interior.

U.S. Customs and Border Protection’s jurisdiction extends 100-miles inland from the border, a range encompassing almost the whole of Vermont.

The Vermont Supreme Court is expected to issue a written decision in the coming months.

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