Vt. Supreme Court sides with VLS Appellate Advocacy Project in Border Patrol case

Vermont Supreme Court. Photo by Royalbroil, CC BY-SA 4.0.

By Forum Staff

The two-year-old Vermont Law School Appellate Advocacy Project notched its first major victory Friday, as the Vermont Supreme Court ruled that evidence obtained by federal agents in violation of the state’s constitution could not be used in state criminal proceedings.

In State v. Walker-Brazie, defendants Brandi Lena-Butterfield and Phillip Walker-Brazie were driving home on Route 105 near Jay in August 2018 when a U.S. Border Patrol agent stopped them and asked to search their vehicle. Without a warrant or the couple’s consent, the federal agent ordered Lena-Butterfield and Walker-Brazie out of their vehicle and conducted a search, which discovered less than five ounces of marijuana and psilocybin mushrooms. Border Patrol handed over the evidence to the Vermont State Police, and the Orleans County State’s Attorney’s office charged Lena-Butterfield and Walker-Brazie with possession.

Although the Fourth Amendment guarantees against unreasonable searches and seizures, federal regulations grant Border Patrol broad authority to conduct “roving patrol” vehicle stops within 100 miles of any external U.S. boundary. Nearly two in three people live within this 100-mile border zone, which embraces most of Vermont.

Border Patrol has ramped up its operations in Vermont and New Hampshire in recent years. In 2019, the agency operated a controversial immigration checkpoint on I-89 near Lebanon and boarded, drawing condemnation from Vermont’s congressional delegation as well as the VLS Student Bar Association. Two years earlier, Border Patrol boarded a Greyhound bus in White River Junction in search of passengers without immigration documentation.

The ACLU of Vermont brought an appeal on behalf of Lena-Butterfield and Walker-Brazie and argued that the search violated Article 11 of the Vermont Constitution, which requires an officer conducting a warrantless search to have either consent or probable cause plus urgent circumstances. Because the federal agent in Walker-Brazie had neither, the ACLU contended, the search would have violated Article 11, and therefore could not be used in a state prosecution.

Students with the Appellate Advocacy Project helped prepare an amicus brief on behalf of the Burlington-based immigrants rights nonprofit Migrant Justice, which you can read here.

The Court concluded “that the federal interest in conducting searches of suspected smugglers during random stops by roving patrols on interior roads … does not outweigh Vermont’s strong interest in protecting the privacy and dignity of individuals traveling on the roads of this state.”

Evidence obtained in violation of the Vermont Constitution may not be admitted at trial in a state prosecution, the Court ruled, “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.”

Justice William Cohen, J.D. ’84, wrote the opinion in State v. Walker-Brazie, to which Chief Justice Paul L. Reiber and Justice Beth Robinson concurred. The Court’s other two VLS alumni, Justices Harold E. Eaton, Jr. and Karen R. Carroll, dissented.

In a statement, Lena-Butterfield and Walker-Brazie thanked the Appellate Advocacy Project for their amicus support.

Launched by Profs. Catherine Fregosi and Jared Carter in fall 2019 with help from eight students, the Appellate Advocacy Project aims to provide pro se litigants and advocacy organizations with pro bono representation in appellate proceedings.

“Today the rights of all Vermonters were vindicated when the Vermont Supreme Court said no to evidence obtained by federal agents without a warrant,” Prof. Carter said in a post.

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