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Court: Vermont pair stopped near border can’t be prosecuted

September 24, 2021 GMT

The state Supreme Court ruled Friday that a Vermont couple cannot be prosecuted in state court for drug violations with evidence seized by a U.S. Border Patrol agent.

The court, in a 3-2 decision, said the federal law used by the Border Patrol agent to search the Vermont car after it was stopped during a roving patrol just south of the Canadian border in August 2018 did not comply with the state constitutional guarantee against unreasonable searches.

“Evidence obtained in violation of the Vermont Constitution may not be admitted at trial in a state prosecution because such evidence ‘eviscerates our most sacred rights, impinges on individual privacy, perverts our judicial process, distorts any notion of fairness, and encourages official misconduct,’” said the majority decision, written by Justice William Cohen, who was citing an earlier case.

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The decision sends the criminal cases against Brandi-Lena Butterfield and Phillip Walker-Brazie, both of Richford, back to the lower court for reconsideration.

The Vermont chapter of the American Civil Liberties Union, which argued the case before the Supreme Court, said it was an important decision protecting Vermonters’ rights.

“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,” Vermont ACLU General Counsel Jay Diaz said in a statement.

Orleans County State’s Attorney Jennifer Barrett, whose office prosecuted the case, did not immediately return a message Friday seeking comment.

Ryan Brissette, a spokesman for U.S. Customs and Border Protection, said Friday the agency was reviewing the decision and would have no comment at this time.

Vermont Attorney General T.J. Donovan, whose office supported the defendants in the case, said the decision shows “the Vermont Constitution protects Vermonters regardless of federal government involvement.”

The case began in August 2018 when U.S. Border Patrol agent Jeffery Vining, who was conducting a roving patrol on Vermont Route 105 in the town of Jay just south of the Canadian border, saw a vehicle he considered to be suspicious.

Vining stopped the car, which was being driven by Butterfield. Walker-Brazie was a passenger.

The agent allegedly smelled unburned marijuana. He asked for permission to search the vehicle, which was denied. The car was then searched by additional Border Patrol agents using a federal law that allows warrantless searches near the border.

The search discovered marijuana and hallucinogenic mushrooms. The border agents called the Vermont State Police. The couple was charged with state drug crimes.

Butterfield and Walker-Brazie moved to suppress the evidence seized from their car because their vehicle did not cross the border and Vining knew, based on Butterfield’s registration, that Butterfield lived in Vermont.

The Orleans County State’s Attorney argued the search was legal. The trial court agreed, saying Vining had reasonable suspicion because he observed unusual activity in an area close to the border that has historically been used for smuggling.

In a dissent, Supreme Court Justice Karen Carroll and Harold Eaton said the agent acted properly and the majority decision was “inconsistent with our controlling precedents, as well as the caselaw of most other jurisdictions.”