Border patrol officers can search Vermonters' cars without a warrant under their special federal authority to conduct "roving" patrols within 100 miles of the U.S. border. But, as of Friday, evidence they collect during the controversial searches can no longer be used to prosecute crimes in state courts, a narrow majority of the Vermont Supreme Court ruled.

Civil liberties advocates, as well as the Vermont Attorney General's Office, celebrated the 3-2 decision as a significant check on U.S. Customs and Border Patrol's broad enforcement authority throughout most of Vermont.

"Border Patrol is a notorious rogue agency with no respect for human rights or the rule of law," said ACLU of Vermont staff attorney Jay Diaz , whose organization represented the appellants. "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." The case considered by the high court involved two Richford residents who were pulled over by a Border Patrol agent in 2018 about a mile from the U.S.-Canada border along Route 105.

Agent Jeffrey Vining was on a so-called "roving patrol" assignment at the time and was parked in a remote area that is sometimes used to smuggle contraband across the border. He pulled over the vehicle because the driver seemed nervous and the car's owner had previous "encounters involving narcotics," court records state.
Vining then smelled marijuana and sought to search the car, but the occupants, Brandi Lena-Butterfield and Phillip Walker-Brazie, did not consent.

Under state law, an officer would be required to obtain a judicial warrant to proceed with a motor vehicle search, absent exigent circumstances. Federal law, however, allows Border Patrol agents to conduct a search on probable cause alone.

The subsequent search turned up a small amount of marijuana and hallucinogenic mushrooms, which agents turned over to Vermont law enforcement. Based on that evidence, the Orleans County State’s Attorney charged the occupants with several counts of drug possession.

The defendants sought to suppress the evidence on the grounds that the search, while legal under federal law, was not legal under the stricter protections of the Vermont Constitution, pointing out that the evidence would not be admissible if gathered by a state trooper or local police officer. The trial judge disagreed, and they appealed. The Vermont Defender General's office, the immigrant-rights group Migrant Justice and the Vermont Attorney General's office filed briefs in support of the appeal.
The Vermont Supreme Court has previously ruled on similar cases where the search occurred at formal checkpoints, including an airport or border crossing. Siding with the Richford couple, justices Beth Robinson, Paul Reiber and William Cohen concluded that "roving" patrols within the state are distinct from border searches. In such situations, the state's search and seizure protections, as outlined in Article 11 of the Vermont State Constitution, must also be considered.

"Within the interior of Vermont, the federal interest ...  no longer outweighs the state interest in protecting the privacy and dignity of Vermont citizens,"Cohen wrote for the majority. "We therefore hold 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."

The justices further mused that federal officials would otherwise have an incentive "to engage in searches that Vermont officers cannot, so that Vermont officers will reciprocate by passing along information regarding immigration violations."

In a dissenting opinion, penned by Associate Justice Karen Carroll, she and Associate Justice Harold Eaton  wrote that "there is absolutely no evidence" to support the majority's view that Border Patrol agents exploit or abuse their expanded authority.

They also dismissed as "farfetched" the appellants' argument that the searches could be a problem all across the state as, "given that roving border patrols require reasonable suspicion and probable cause to stop and search a vehicle for suspected border-related offenses."

Most significantly, they were unpersuaded by the majority's distinction between roving patrols and traditional checkpoints.

"The legal principle established in these precedents is that when searches are lawfully conducted under federal law by federal border agents exercising their exclusive authority to safeguard the U.S. border, evidence derived from those searches and turned over to Vermont law enforcement officials is admissible in Vermont criminal proceedings," they wrote.

Read the full opinion here: