Vermont’s attorney general is backing the American Civil Liberties Union of Vermont in a state Supreme Court case that tests the limits of federal border authorities’ powers in state criminal cases.
Attorney General TJ Donovan’s office filed a friend-of-the-court brief last week supporting the ACLU’s appeal in a 2018 drug possession case that stems from a vehicle search Border Patrol agents carried out late one August evening.
The civil liberties group argues the evidence that the border agents found when they searched the car that Brandi Lena-Butterfield and Phillip Walker-Brazie were traveling in should not be admissible in a state drug case, because the federal officers used a looser standard to conduct the search than is required under Vermont’s Constitution.
In an interview, Donovan said federal officers need to comply with Vermont’s higher threshold for searches if the case is going to proceed in a Vermont state court.
“If you’re going to follow federal procedure, then go with the federal court,” Donovan said. “If you’re going to go to Vermont state court, you’ve got to follow the Vermont state rules, which apply the greater protection.”
A Border Patrol agent on a roving patrol stopped Lena-Butterfield and Walker-Brazie in Jay one night as they were driving to their home in Richford, according to court filings. As the agent asked about their citizenship, he smelled marijuana, the affidavit states.
He asked for consent to search the car, which the two declined. But the agents proceeded because they believed they had sufficient probable cause. Inside the car, they found 6.5 ounces of marijuana and a sandwich bag of hallucinogenic mushrooms, according to court papers. The federal agents contacted Vermont State Police, because, according to their affidavit, they believed the drug quantities violated state law.
Under federal law, the Border Patrol can search a vehicle based only if they have a probable cause. However, Vermont’s Constitution has a higher threshold: Law enforcement must have either a warrant, or probable cause with urgent circumstances.
The ACLU-VT filed the appeal in the criminal case, which is being prosecuted by the Orleans County state’s attorney’s office, in December.
This week, the attorney general’s office weighed in on the side of the civil liberties group — taking the unusual step of opposing a county prosecutor’s office. Donovan said that, in this case, he disagrees with Orleans County State’s Attorney Jennifer Barrett.
People who are arrested by federal agents and prosecuted in Vermont’s court system shouldn’t have fewer protections than people who are arrested by state law enforcement agents, he said.
“That’s not fair, it’s not consistent, and it frankly doesn’t make a lot of sense,” he said.
In his brief, the state’s top prosecutor urges the high court to require that evidence seized by a federal officer be excluded from criminal prosecution at the state level if the officer didn’t abide by Vermont’s constitutional requirements.
“The federal government may lawfully exercise the authority given to it by Congress and the federal Constitution, regardless of a state court’s conclusion regarding the strength of its interest,” the attorney general’s brief states. “But the Vermont Constitution controls the conduct of a state criminal proceeding, even if there was federal involvement in the underlying investigation. And a defendant in state court should be free to invoke the state constitution to challenge the evidence the state intends to use to secure a conviction.”
Barrett, whose office is prosecuting Walker-Brazie and Lena-Butterfield, declined comment at this time.
The Border Patrol’s authority has been under scrutiny nationally since the agency was linked to federal law enforcement response to protests in Portland, Oregon, and in the region.
The federal agency has expanded search powers up to 100 miles from the Canadian border, and a series of immigration checkpoints it set up at significant distances from the international boundary in recent years has raised hackles of residents, civil rights groups and residents. Last week, ACLU-VT joined chapters in New Hampshire and Maine to file a lawsuit challenging the use of immigration checkpoints.
ACLU-VT staff attorney Jay Diaz said the group is grateful for the support of the Attorney General’s Office in the case.
“We think, given Border Patrol’s lawlessness, as we’ve seen across the country, it certainly doesn’t make sense that we would, you know, encourage them to continue to make these stops so that our prosecutors can do an end run around the Vermont Constitution,” he said.
If the ACLU-VT doesn’t win the case, Diaz said he hopes for legislative action to clarify the limits of federal agents’ authorities in state cases.
Defender General Matt Valerio, whose office has also filed a brief supporting the ACLU’s position, said the issue at stake is “straightforward.”
“It’s a state’s rights versus federal Constitution issue,” Valerio said.
In many other states, the state constitution mirrors the federal Constitution, he said. But Vermont’s laws provide more protection.
“This case just gives us an opportunity to at least define the boundary in the state arena,” he said.
According to Valerio, it’s “extraordinarily rare” for the Attorney General’s Office to weigh in on a case in opposition to a county state’s attorney. But the defender general said that, while he was a bit surprised, Donovan’s position is consistent “with what TJ Donovan has done in the past in choosing state’s rights over federal intervention in these cases.”
Read the story on VTDigger here: AG backs ACLU’s Supreme Court appeal on limits of Border Patrol’s authority.