U.S. Border Patrol Agent John Marquissee was driving north on I-91 early in the morning of January 31 when he saw a vehicle, driven by Jennifer Garneau, that drifted within its lane and then swerved across the fog and center lines, according to the findings in Judge Howard VanBenthuysen’s decision released in late September.
Garneau got off the interstate at Exit 27 and pulled into a gas station. Marquissee followed her and activated the emergency lights on his car. He approached her, and, in the subsequent discussion, noticed the smell of alcohol.
Suspecting a DUI, he contacted dispatch and requested they call in Vermont State Police.
A trooper responded and, speaking with Garneau, noticed the smell of marijuana and alcohol on her. She failed field sobriety tests and got a high reading on a preliminary breath test. She was arrested and charged with two counts of DUI, according to the court papers.
St. Johnsbury defense attorney David Sleigh, who represented Garneau, disputed the Border Patrol agent’s authority to make an arrest in the case.
Vermont law requires federal law enforcement officers to have studied state statutes and be certified by the commissioner of the Department of Public Safety in order to enforce Vermont’s criminal code.
Though, according to the judge, the prosecution said they believed Marquissee was certified by the state, no documentation was offered that backed up that claim. The lack of evidence that Marquissee was certified under Vermont law was key in the judge’s decision to dismiss the charges against Garneau.
Sleigh also challenged whether Marquissee, even if he was certified, had authority to make the stop.
David Sleigh. Photo by Andy Duback
VanBenthuysen discussed Sleigh’s argument that a federal agent could not “make a stop based on a mere traffic infraction.” However, the judge went on to say that Marquissee was empowered under Vermont law to make an arrest to prevent the perpetrator of a crime from escaping, one of four reasons federal agents are allowed to act to enforce Vermont’s laws.
Sleigh said the decision was significant for clarifying the limits of Vermont’s statute that governs how federal agents can enforce state law.
“It’s important to note that that certification does not provide Border Patrol officers with authority that’s equal to state authority to enforce state laws and I think that’s the big win for us,” Sleigh said.
The judge did not agree with Sleigh’s argument that a Border Patrol agent does not have the power to arrest someone for offenses less than a felony. Sleigh said the judge’s decision on that point was disappointing, but he plans to continue to raise the issue in future cases.
Orleans County State’s Attorney Jennifer Barrett said Thursday that the judge made “the right decision” because of the lack of documentation to prove Marquissee was certified under Vermont law.
She said that due to an email error, her office did not receive Marquissee’s certification until after the order was issued, but she said they have the document now. She anticipates that her office will likely ask the judge to reopen the case in light of the documentation.
Barrett’s office deals with cases that involve Border Patrol agents “relatively frequently,” she said. The federal agents may come across a small drug possession charge or something similar during their patrols, for instance, she said.
The federal law enforcement support is important in an area of the state that has a sparse police presence. There are not many law enforcement officers in Orleans County, she said.
“It’s really critical that the agencies have a good relationship,” Barrett said.
Barrett said that she does not see the judge’s decision as very significant for defining the limitations of federal agents enforcing Vermont laws.
Sleigh, however, sees the decision as significant in light of an increased presence of federal law enforcement officers along the Canadian border, a trend that he linked to heightened national security after terrorist attacks on September 11, 2001.
As a result, the question of the powers of those officers to be involved with state law enforcement has become a recurring theme, he said.
“The frequency of citizen-border patrol officer contact has just skyrocketed,” Sleigh said.
Sleigh represented a defendant in a 2013 case when an off-duty CBP agent saw a car by the side of the road, stopped to see if the driver was alright, and suspected she was intoxicated. He and another Border Patrol agent detained her by the side of the road for 53 minutes until a trooper arrived. She was eventually charged with driving while intoxicated.
That case was presided over by the same judge, VanBenthuysen, who dismissed the case, citing a lack of evidence that the agents had a reasonable suspicion to justify detaining her.
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