State v. Phillip Walker-Brazie & Brandi-Lena Butterfield ( 2021 )

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.
2021 VT 75No. 2019-388
State of Vermont Supreme Court
On Appeal from
v. Superior Court, Orleans Unit,
Criminal Division
Phillip Walker-Brazie & Brandi-Lena Butterfield December Term, 2020
Scot L. Kline, J.
David Tartter, Deputy State’s Attorney, and Spencer Davenport, Law Clerk (On the Brief),
Montpelier, for Plaintiff-Appellee.
James Diaz and Lia Ernst, ACLU Foundation of Vermont, Montpelier, for Defendants-
Appellants.
Matthew Valerio, Defender General, and Dawn Seibert, Appellate Defender, Montpelier,
for Amici Curiae Office of the Defender General and Vermont Association of Criminal
Defense Lawyers.
Benjamin D. Battles, Solicitor General, Montpelier, for Amicus Curiae Attorney General
Thomas J. Donovan, Jr.
Jared Kingsbury Carter, Assistant Professor of Law and Co-Director, Appellate Advocacy
Project, Vermont Law School, South Royalton, for Amicus Curiae Migrant Justice.
PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.
¶ 1. COHEN, J. In this interlocutory appeal, we must decide whether evidence seized
by federal Border Patrol agents during a roving patrol—pursuant to their authority to conduct
warrantless searches under 8 U.S.C. § 1357—is admissible in a state criminal proceeding when that
search does not comply with Article 11 of the Vermont Constitution.1 Defendants Phillip Walker-
Brazie and Brandi-Lena Butterfield argue that because the overwhelming purpose of Vermont’s
exclusionary rule is to protect individual liberty, we should apply the exclusionary rule and suppress
the evidence pursuant to Article 11. We agree, and hold that such evidence is inadmissible in
Vermont criminal proceedings.
I. Facts
¶ 2. The court made the following findings of fact for the purpose of defendants’ motion
to suppress. In August 2018, United States Border Patrol agent Jeffery Vining was on roving patrol
in a marked vehicle about one mile from the Canadian border. He was parked in a “semi-concealed
location” at the intersection of Vermont Route 105 and North Jay Road, which he testified is a
remote area historically used to smuggle people and narcotics across the border. At around 9:45
p.m., he observed a vehicle driving west on Route 105 at an estimated fifty-five miles an hour. The
vehicle slowed down as if it were going to turn onto North Jay Road. Upon seeing Agent Vining’s
vehicle, the vehicle appeared to change course, and drove straight through the intersection.
¶ 3. Agent Vining thought this behavior was suspicious and followed the vehicle. The
vehicle stayed well below the speed limit. Agent Vining thought the driver looked nervous because
she kept checking her mirrors. He looked up the vehicle’s registration and learned that the vehicle’s
owner, Butterfield, had previous “encounters involving narcotics.” Based on this information, he
pulled the vehicle over.
¶ 4. Agent Vining approached the vehicle, identified himself as a Border Patrol agent,
and asked the occupants about their citizenship. Butterfield was in the driver’s seat and Walker-
1
For the purpose of this appeal, we assume that the Border Patrol agents complied with
federal law. See infra, ¶ 10. To the extent defendants contest the court’s findings that the agent
had reasonable suspicion for the stop and probable cause for the search, they are not within the
question certified to this Court.
2
Brazie, whom Agent Vining recognized from previous law enforcement encounters, was in the
passenger seat. Agent Vining smelled a strong odor of “green or unburnt marijuana,” saw numerous
bags in the vehicle—which in his experience were “sometimes used to carry illegal items” across
the border—and thought that the occupants appeared nervous. Although defendants refused to give
Agent Vining consent to search their vehicle, the car was subsequently searched by additional
Border Patrol agents who arrived after the stop. During the search, marijuana and a bag of
hallucinogenic mushrooms were seized.
¶ 5. Border Patrol notified Vermont law enforcement and provided them with the seized
evidence upon their arrival. Based on the evidence, the Orleans County State’s Attorney charged
Walker-Brazie with one count of unlawfully possessing two ounces or more of marijuana, in
violation of 18 V.S.A. § 4230(a)(2), and one count of possessing ten or more doses of a
hallucinogenic drug, in violation of 18 V.S.A. § 4235(b)(2). Butterfield was charged with one count
of possessing marijuana, in violation of 18 V.S.A. § 4230(a)(1).
¶ 6. Defendants filed motions to suppress the evidence the Border Patrol agents seized
during the August 2018 search. They argued that Agent Vining lacked reasonable suspicion
because, among other things, their vehicle did not cross the border and Agent Vining knew, based
on Butterfield’s registration, that Butterfield lived in Vermont. Alternatively, defendants argued
the search violated Article 11 of the Vermont Constitution because the agents did not have a warrant
and there were no exigent circumstances. See State v. Bauder, 2007 VT 16, ¶ 21, 181 Vt. 392, 924
A.2d 38 (explaining that under Article 11, warrantless search of automobile is per se unreasonable
absent showing of exigent circumstances in form of threat either to officer safety or to preservation
of evidence).
¶ 7. In opposition, the State’s Attorney argued that Agent Vining had reasonable
suspicion to believe the vehicle was engaged in illegal activity because defendants were driving
3
suspiciously in an area close to the border that is known for smuggling people and illegal drugs.2
In addition, the State’s Attorney argued that the subsequent search was legal because according to
State v. Rennis, 2014 VT 8, 195 Vt. 492, 90 A.3d 906, and State v. Coburn, 165 Vt. 318, 683 A.2d
1343 (1996), Article 11 does not apply to federal officials exercising exclusive federal authority to
safeguard the border.
¶ 8. Following a hearing, the trial court denied the motion to suppress. The court
concluded that based on United States Supreme Court precedent, Border Patrol agents on roving
patrol must have reasonable suspicion of illegal activity to stop a vehicle. Although the court
acknowledged it was a “close call,” it concluded that Agent Vining had reasonable suspicion
because, among other things, he observed unusual driving in a remote area very close to the border
that has historically been used for smuggling. As to the search, the court concluded that the agents
complied with federal law because they had probable cause for the search and therefore no warrant
was required under the Fourth Amendment. However, the court recognized that this conclusion did
not resolve the issue of whether the Vermont Constitution applied to the use of the evidence in a
Vermont criminal prosecution.
¶ 9. Turning to that issue, and based on our decisions in Rennis and Coburn, the court
reasoned that the Vermont Constitution does not apply to evidence seized by federal officials
pursuant to their exclusive federal authority to safeguard the border and independent of state actors.
The court acknowledged that Coburn and Rennis were factually distinguishable in that the searches
in those cases occurred at an international airport and permanent checkpoint, respectively.
However, it concluded that those decisions governed because the search in this case occurred “so
close to the border” by agents exercising exclusive federal authority to safeguard the border that
2
Because the State is represented in this appeal by two different authorities—the State’s
Attorney and the Attorney General—and because they argue divergent positions, we refer to the
“State’s Attorney” or “Attorney General” rather than “the State” throughout this opinion.
4
the federal interest in securing the border outweighed any state interest. The court determined that
this conclusion was consistent with the “prevailing view” among states that when a search is validly
conducted under federal law, “the law of the state of prosecution will not apply its exclusionary”
rule to suppress the evidence. Finally, the court reasoned that Vermont’s exclusionary rule should
not apply because its primary purpose is to deter illegal police conduct and applying the rule to
evidence lawfully seized under federal law would not deter any illegal conduct, especially when,
as here, there is no evidence in the record of any collusion between federal and state authorities.
¶ 10. Defendants subsequently requested permission to file an interlocutory appeal of two
questions: (1) whether Agent Vining had reasonable suspicion to stop their vehicle, and (2) whether
the evidence gathered by federal agents during the warrantless search, which was illegal under
Article 11, was admissible in a Vermont criminal prosecution. The court denied the motion on the
reasonable-suspicion issue, explaining that because the issue relied on a “factual record for the
appellate court to consider the circumstances surrounding and the reasons for the stop,” the issue
was not a pure question of law appropriate for interlocutory review. On the second issue, however,
the court granted the motion and certified the question of “whether federal border patrol agents
effecting a search of a vehicle very near but not at the border or formal checkpoint must follow
Vermont law and obtain a search warrant before conducting a search of a motor vehicle.”
¶ 11. On appeal, defendants argue that the trial court improperly relied on Coburn and
Rennis because those cases are expressly limited to searches conducted at the border and its
functional equivalent. Defendants submit that the Court should reject the so-called reverse-silver-
platter doctrine and hold that evidence seized in Vermont by federal officials is subject to Article
11 because Vermonters’ expectation of privacy is the same regardless of who conducts the search.3
3
The “reverse-silver-platter doctrine” refers to decisions permitting the admission in state
prosecutions of evidence obtained by federal authorities in a manner that complies with the Fourth
Amendment but not the relevant state constitution. See Commonwealth v. Britton, 229 A.3d 590,
603 (Pa. 2020) (Wecht, J., concurring). The term originates from a line of U.S. Supreme Court
5
Furthermore, based on Vermont’s exclusionary rule, defendants argue that any evidence seized by
federal officials in violation of Article 11 should be suppressed because the purpose of Vermont’s
exclusionary rule is to protect individual liberty.
¶ 12. The State’s Attorney argues that this case is squarely controlled by Coburn and
Rennis, which both hold that the Vermont Constitution is not implicated when federal officials act
pursuant to their exclusive authority to safeguard the border. Federal exclusive authority to
safeguard the border, the State’s Attorney submits, includes roving patrols conducted by Border
Patrol agents “in the shadow of the border.” It suggests, however, that Article 11 would apply to
searches conducted in Vermont outside the “shadow” of the border.
¶ 13. The Defender General, Migrant Justice—a nonprofit focused on the rights of
migrant farmworkers in Vermont—and the Attorney General filed amicus briefs on behalf of
defendants. Like defendants, the Defender General argues that Coburn and Rennis only address
whether the Vermont Constitution applies to searches conducted at the border and its functional
equivalent. The Defender General asserts that applying Coburn and Rennis to searches conducted
in the interior of the state would conflict with a long line of Article 11 cases, which “hold
unequivocally that evidence obtained during search and seizures conducted within the interior of
the state in violation of the Vermont Constitution may not be admitted in state criminal—or even
civil—proceedings.”
¶ 14. Meanwhile, Migrant Justice and the Attorney General expressly ask this Court to
overrule Coburn and Rennis. Migrant Justice argues that Coburn’s underlying rationale—that
Vermont defers to federal law when the federal interest outweighs Vermont’s interest—is no longer
cases holding that evidence obtained by state law enforcement officers in violation of the Fourth
Amendment and handed over to federal law enforcement “on a silver platter” was admissible in
federal criminal proceedings. Lustig v. United States, 338 U.S. 74, 78-79 (1949). The Court later
rejected the federal silver-platter doctrine in Elkins v. United States, 364 U.S. 206, 215 (1960),
holding that federal courts could not permit introduction of evidence obtained in violation of the
Fourth Amendment, no matter the source.
6
practicable in light of the growth of Border Patrol activities in Vermont. Although the Attorney
General concedes that the Vermont Constitution does not apply to federal officers, it submits that
the admissibility of evidence in a criminal proceeding should be governed by the Vermont
Constitution.
¶ 15. This appeal involves a pure question of law, which we review de novo. Bauder,
2007 VT 16, ¶ 9. We conclude that Coburn and Rennis do not govern the admissibility in state
proceedings of evidence gathered during searches, like the one in this case, that take place outside
the context of the border or its functional equivalent. Instead, we hold that searches conducted by
federal border officials on roving patrol on interior Vermont roads are subject to Article 11’s
protections. Because the search in this case did not comply with Article 11, defendants’ motion to
suppress should have been granted.
II. Merits
¶ 16. “The Vermont Constitution is the fundamental charter of our state, and it is this
Court’s duty to enforce the constitution.” State v. Badger, 141 Vt. 430, 448, 450 A.2d 336, 347
(1982). Although the Vermont and federal constitutions share a similar history and purpose, our
constitution is an independent authority and, in many cases, provides greater protection for
individual rights than the federal constitution. Id. This is particularly so in the context of Article
11, the Vermont Constitution’s search-and-seizure provision. See, e.g., State v. Geraw, 173 Vt.
350, 353 n.2, 357-58, 795 A.2d 1219, 1222 n.2, 1225 (2002) (holding police may not secretly record
conversation in suspect’s home without warrant); State v. Savva, 159 Vt. 75, 79, 87-88, 616 A.2d
774, 776, 780-81 (1991) (recognizing higher privacy expectation under Article 11 for closed
containers in vehicle’s interior); State v. Kirchoff, 156 Vt. 1, 10, 587 A.2d 988, 994 (1991) (holding
Article 11 guarantees greater privacy rights in “open fields” than Fourth Amendment).
¶ 17. Article 11 provides:
7
That the people have a right to hold themselves, their houses,
papers, and possessions, free from search or seizure; and therefore
warrants, without oath or affirmation first made, affording sufficient
foundation for them, and whereby by any officer or messenger may
be commanded or required to search suspected places, or to seize any
person or persons, his, her or their property, not particularly
described, are contrary to that right, and ought not to be granted.
Vt. Const. ch. I, art. 11. The core purpose of Article 11 is to protect legitimate expectations of
privacy and dignity from unreasonable intrusions by the government. Savva, 159 Vt. at 87, 616
A.2d at 781 (explaining that “freedom from unreasonable government intrusions into legitimate
expectations of privacy” is “a core value protected by Article 11 jurisprudence”); see also State v.
Bryant, 2008 VT 39, ¶ 36, 183 Vt. 355, 950 A.2d 467 (“The overriding function of Article 11 is to
protect personal privacy and dignity against unwarranted intrusion by the state.”).
¶ 18. “Under the Vermont Constitution, unlike the federal constitution, protection against
warrantless searches extends to automobiles.” State v. Birchard, 2010 VT 57, ¶ 12, 188 Vt. 172, 5
A.3d 879. A warrantless search of an automobile is per se unreasonable under Article 11 unless
there exists probable cause and a showing of exigent circumstances, meaning a threat to officer
safety or to the preservation of evidence. State v. Bauder, 2007 VT 16, ¶¶ 22, 32, 181 Vt. 392, 924
A.2d 38. Absent the requisite showing, evidence gathered as a result of such a search is
inadmissible in a state criminal proceeding. Badger, 141 Vt. at 452-53.
¶ 19. In this case, there is no dispute that if the search of defendants’ vehicle had been
conducted by Vermont law enforcement officials, the resulting evidence would have been excluded.
The question before us is whether the fact that the search was conducted by Border Patrol agents
on roving patrol requires a different result.
¶ 20. We have previously addressed the applicability of Article 11 to the actions of federal
border officials in two cases. In State v. Coburn, United States Customs officers searched the
defendant’s suitcase, which was labeled with the defendant’s name and a Randolph, Vermont,
address, when he arrived at John F. Kennedy International Airport in New York on a direct flight
8
from Jamaica. Upon opening the suitcase, the officers noticed a strong odor of glue, removed the
suitcase liner, and found several bags of marijuana. Federal authorities declined to prosecute and
later transferred the suitcase to the Vermont State Police, who made a controlled delivery to
defendant, then arrested and charged the defendant with possession of marijuana in violation of
state law. The defendant filed a motion to suppress the evidence gathered by the Customs officers,
which the trial court denied. Coburn, 165 Vt. at 320-21, 683 A.2d at 1344.
¶ 21. On appeal, the defendant argued that the search and seizure of his suitcase by federal
and state authorities violated the Fourth Amendment and Article 11. Id. at 324-25, 683 A.2d at
1346-47. We explained that “[s]o long as the evidence seized in a permissible, routine customs
border inspection meets federal standards for such searches . . . it is no violation of the defendant’s
federal constitutional rights if the evidence is later used in a state prosecution.” Id. at 324, 683 A.2d
at 1346 (quotation and alteration omitted). We concluded that admitting the evidence did not
violate the defendant’s federal constitutional rights because routine warrantless searches of persons
and belongings entering the United States at a border crossing without reasonable suspicion or
probable cause are “per se” reasonable under the Fourth Amendment. Id. at 321-22, 683 A.2d at1345 (citing United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985)).
¶ 22. As to Article 11, we recognized as a general principle that “[w]e defer to federal law
where the federal interest in the conduct at issue outweighs Vermont’s interest.” Id. at 325, 683
A.2d at 1347 (citing State v. St. Francis, 151 Vt. 384, 391, 563 A.2d 249, 253 (1989)). We held
that “[w]ith respect to safeguarding the United States border or its functional equivalent . . . the
federal interest is preeminent,” because “[c]ontrol of commerce with foreign nations is an exclusive
federal function under the United States Constitution . . . and ‘[t]he authority of the United States
to search the baggage of arriving international travelers is based on its inherent sovereign authority
to protect its territorial integrity.’ ” Id. (alteration in original) (citing U.S. Const. art. I, § 8, cl. 3,
and quoting Torres v. Puerto Rico, 442 U.S. 465, 472-73 (1979)). Based on this reasoning, we
9
concluded that “the Vermont Constitution does not apply to the conduct of federal government
officials acting under the exclusive authority to safeguard the borders of the United States.” Id. at
325, 683 A.2d at 1347. Because Article 11 did not apply to lawful border searches by Customs
officials, and the subsequent actions of the Vermont State Police did not violate Article 11, we
affirmed the denial of the defendant’s motion to suppress.
¶ 23. We subsequently applied the holding of Coburn in State v. Rennis. In Rennis,
Border Patrol agents stopped the defendant at a permanent checkpoint near the intersection of
interstates 91 and 89, approximately ninety-seven miles south of the Canadian border. 2014 VT 8,
¶ 2. At the checkpoint, the defendant’s vehicle was searched, and a backpack was discovered
containing “two freezer bags with a green leafy substance,” which the defendant admitted was
marijuana. Id. ¶ 5. The agents seized two pounds of marijuana and contacted Immigration and
Customs Enforcement, which declined to prosecute. The agents then transferred the marijuana to
state law enforcement. After the defendant was charged under Vermont law with possession of
marijuana, he filed a motion to suppress the evidence under both the Fourth Amendment and Article
11, which the trial court denied.
¶ 24. On appeal, the defendant conceded that the search complied with the Fourth
Amendment but argued that the evidence should be excluded under Article 11. We affirmed,
explaining that the issue was “squarely controlled” by Coburn because that decision’s “key holding”
was that “the Vermont Constitution does not apply to the conduct of federal government officials
acting under the exclusive federal authority to safeguard the borders of the United States.” Id. ¶¶ 8-
9. Although Coburn involved a search at an international airport—and the search in Rennis
occurred at an immigration checkpoint ninety-seven miles from the border—we reasoned that
Coburn still controlled because “the ‘functional equivalent’ of the U.S. border generally includes
immigration checkpoints, such as those within the parameters listed in United States v. Martinez-
10
Fuerte, 428 U.S. 543 (1976).”4 Id. ¶ 10. We noted that “[f]ederal courts have theoretically validated
such checkpoints up to one hundred air miles from the physical border of the United States.” Id.
(citing Almeida-Sanchez v. United States, 413 U.S. 266, 268 (1973)). Because the constitutionality
of the checkpoint was not at issue, we assumed that the checkpoint met the criteria for the functional
equivalent of the border and concluded that Article 11 did not apply to the Border Patrol agents’
conduct. Id.
¶ 25. Defendants argue that Coburn and Rennis were expressly limited to searches at the
border and its functional equivalent. They maintain that Coburn and Rennis should not be extended
to searches in the interior because federal officials “lose their plenary border search” authority in
the interior. Defendants and amici argue that roving patrols are sufficiently distinct from other
Border Patrol activities in part because officers on roving patrol act more like general law
enforcement officers enforcing state, as opposed to federal, law. Finally, defendants and amici
argue that exempting Border Patrol agents on roving patrol from Article 11 will encourage state
law enforcement to work with federal officers to bypass Article 11 protections. The State’s
Attorney, on the other hand, argues that this case is squarely controlled by Coburn and Rennis—
federal officials were exercising exclusive federal authority to safeguard the border because they
stopped a vehicle, close to the border, based upon reasonable suspicion that the occupants of the
vehicle were involved with smuggling activity.
4
In Martinez-Fuerte, the U.S. Supreme Court explained those parameters as follows:
The Border Patrol believes that to assure effectiveness, a checkpoint
must be (i) distant enough from the border to avoid interference with
traffic in populated areas near the border, (ii) close to the confluence
of two or more significant roads leading away from the border,
(iii) situated in terrain that restricts vehicle passage around the
checkpoint, (iv) on a stretch of highway compatible with safe
operation, and (v) beyond the 25–mile zone in which “border
passes” . . . are valid.
428 U.S. at 553.
11
¶ 26. We agree with defendants that Coburn and Rennis do not control here because the
search in question did not take place at the border or its functional equivalent. Outside of those
areas and within the interior of Vermont, the federal interest we identified in Coburn no longer
outweighs the state interest in protecting the privacy and dignity of Vermont citizens. 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.5
¶ 27. Our conclusion is based on a line of U.S. Supreme Court decisions regarding the
constitutionality of border searches, from which the concept of “the border or its functional
equivalent” derives. In Almeida-Sanchez v. United States, the petitioner, a Mexican citizen holding
a valid work permit, was stopped by Border Patrol agents on a road approximately twenty-five air
miles north of the U.S.-Mexico border. 413 U.S. at 267-68. The Border Patrol agents searched his
car without a warrant or probable cause and found a large quantity of marijuana. The petitioner
was charged and convicted with transporting marijuana. He appealed, arguing that the search of
his vehicle was unconstitutional and the evidence gathered during the search should not have been
admitted as evidence against him.
¶ 28. The Court rejected the government’s argument that the search was constitutional
because the Border Patrol was authorized by 8 U.S.C. § 1357 to make warrantless searches within
a “reasonable distance” from the border, which had been defined by regulation to be “within 100
air miles from any external boundary of the United States.” Id. at 268, 272-73; see also id. at 275
(Powell, J., concurring). The Court recognized that the federal government had the power to
exclude undocumented immigrants from the country, and that it was “without doubt that this power
can be effectuated by routine inspections and searches of individuals or conveyances seeking to
5
Because we conclude that Coburn and Rennis are not controlling, we do not address the
arguments by amici that those cases should be overruled.
12
cross our borders.” Id. at 272 (majority opinion). Without opining on the permissible scope of
such searches, the Court noted that they may take place at the border as well as its “functional
equivalents.” Id. It explained that searches at a permanent checkpoint at the confluence of two
roads extending from the border could qualify as the functional equivalents of border searches. Id.
at 273. Likewise, a search of passengers and cargo arriving by airplane on a nonstop flight from a
different country “would clearly be the functional equivalent of a border search.” Id.
¶ 29. However, the Court concluded that “the search of the petitioner’s automobile by a
roving patrol, on a California road that lies at all points at least 20 miles north of the Mexican
border, was of a wholly different sort.” Id. at 273. In the absence of consent, such a search could
only be conducted if there was probable cause, at least in the absence of a judicial warrant
authorizing random searches by roving patrols in a particular area. Id.; see id. at 284-85 (Powell,
J., concurring). The Court explained that such searches were not justified by the federal
government’s important interest in deterring illegal entry by citizens of other countries, stating that
“[t]he needs of law enforcement stand in constant tension with the Constitution’s protections of the
individual against certain exercises of official power.” Id. at 273 (majority opinion). In concluding,
it quoted the following passage from Carroll v. United States, the Prohibition-era decision that
established the so-called “automobile exception” to the Fourth Amendment’s warrant requirement:
It would be intolerable and unreasonable if a prohibition agent were
authorized to stop every automobile on the chance of finding liquor,
and thus subject all persons lawfully using the highways to the
inconvenience and indignity of such a search. Travelers may be so
stopped in crossing an international boundary because of national
self-protection reasonably requiring one entering the country to
identify himself as entitled to come in, and his belongings as effects
which may be lawfully brought in. But those lawfully within the
country, entitled to use the public highways, have a right to free
passage without interruption or search unless there is known to a
competent official, authorized to search, probable cause for believing
that their vehicles are carrying contraband or illegal merchandise.
Id. at 274-75 (quoting 267 U.S. 132, 153-54 (1925)).
13
¶ 30. Subsequently, in United States v. Brignoni-Ponce, the Court relied on Almeida-
Sanchez to conclude that reasonable suspicion was required for Border Patrol officers on roving
patrols to stop motor vehicles without a warrant. 422 U.S. 873, 884 (1975). The Court rejected the
government’s claim that Border Patrol officers had unfettered discretion to stop vehicles near the
border for questioning, noting that roads near the border carry a large volume of legitimate traffic.
Id. “To approve roving-patrol stops of all vehicles in the border area, without any suspicion that a
particular vehicle is carrying illegal immigrants, would subject the residents of these and other areas
to potentially unlimited interference with their use of the highways, solely at the discretion of
Border Patrol officers.” Id. at 882.
¶ 31. In contrast, the following year, in United States v. Martinez-Fuente, the Court
approved of routine vehicle stops conducted at permanent Border Patrol checkpoints. 428 U.S.
543, 557 (1976). The Court explained that there was a substantial public interest in maintaining
such checkpoints to deter smuggling of non-citizens, and that the intrusion on Fourth Amendment
interests resulting from routine stops at these checkpoints was limited, unlike stops and searches by
roving patrols. Id. at 557-58. It explained that “[r]oving patrols often operate at night on seldom-
traveled roads, and their approach may frighten motorists.” Id. at 558 (quoting United States v.
Ortiz, 422 U.S. 891, 894-95 (1975)). In contrast, it reasoned that motorists were not taken by
surprise by permanent checkpoints and that those checkpoints involved less discretionary
enforcement activity and therefore left less room for abuse and harassment of individuals than
roving-patrol stops. Id. at 559. Accordingly, the Court concluded that the Border Patrol could stop
vehicles for brief questioning at permanent checkpoints without a warrant, though it reaffirmed that
further detention or a search would require consent or probable cause. Id. at 567.
¶ 32. Since Almeida-Sanchez, the Court has not elaborated further on what constitutes the
“functional equivalent” of the U.S. border. But it is clear from that decision and its progeny that
unlike the border itself, an international airport, or a permanent checkpoint, roving patrols near the
14
border are not the functional equivalent of the border for Fourth Amendment purposes. Removed
from the context of the border itself, or a functional equivalent, the government’s interest in
deterring illegal immigration and trafficking, though still important, is counterbalanced by
constitutional protections for individual rights. See Almeida-Sanchez, 413 U.S. at 273.
Accordingly, the Court has determined that when conducting roving patrols, Border Patrol agents
operate under the same federal constitutional constraints as any other law enforcement official when
it comes to stopping and searching vehicles. Id.; see United States v. Singh, 415 F.3d 288, 294 (2d
Cir. 2005) (explaining that “Border Patrol operations along inland routes—not at the border or its
functional equivalent—including . . . roving patrols are held to a higher standard”).
¶ 33. For similar reasons, we conclude that the federal interest in conducting searches of
suspected smugglers during random stops by roving patrols on interior roads, unlike the routine
border stops and inspections addressed in Rennis and Coburn, does not outweigh Vermont’s strong
interest in protecting the privacy and dignity of individuals traveling on the roads of this state.
Although Border Patrol officers are acting pursuant to their authority to safeguard the border during
these patrols, their authority to conduct stops and searches on inland roads—unlike at the border—
is not limitless or exclusive. This context is therefore meaningfully distinct from the situations we
faced in Rennis and Coburn, and we conclude that those decisions do not preclude defendants from
invoking the protection of Article 11 here.
¶ 34. The State’s Attorney argues that the search in this case took place only a mile or so
from the Canadian border, in a wooded area where smuggling can occur, and therefore is essentially
the same as a search by Customs officials at an international airport or by Border Patrol at a
permanent checkpoint. However, the reasonableness of the search is not determined by the distance
to the border, but the nature of the intrusion. As the U.S. Supreme Court explained in Martinez-
Fuerte, individuals traveling across the international border expect to have their persons and
luggage searched; such searches are routine and occur in a controlled and predictable context. 428
15
U.S. at 559. They involve less discretion by officials and therefore are less likely to result in abuse
or harassment. Id. By contrast, roving patrols often occur late at night, on rural roads such as the
one in this case, and may be frightening to drivers. Id. at 558. They also involve greater
enforcement discretion, and therefore possibly greater abuse, by officials. Id. at 558-59; cf. State
v. Sprague, 2003 VT 20, ¶ 19, 175 Vt. 123, 824 A.2d 539 (explaining that allowing law enforcement
officers to order persons to exit vehicles without justification “invites arbitrary, if not
discriminatory, enforcement”). The Court relied on these reasons in concluding that warrantless
searches by roving patrols near the border were unreasonable absent probable cause. Martinez-
Fuente, 428 U.S. at 558-59. For similar reasons, we conclude that the mere physical proximity to
the border of the search in this case does not exempt it from the protections of Article 11.
¶ 35. The State’s Attorney further argues that the Border Patrol agents’ actions were
lawful under federal law, and that in any event, the agents are not subject to Vermont law. Thus,
the State’s Attorney claims, even if Coburn and Rennis do not govern this case, exclusion of the
evidence in a state criminal proceeding is an inappropriate remedy because it will have no deterrent
effect on official misconduct and the public interest in admitting such evidence outweighs any
private interest of defendants. In essence, the State’s Attorney argues that we should recognize a
broad exception to Article 11’s warrant requirement for searches and seizures by federal officials
who are acting pursuant to their lawful authority to safeguard the borders of the United States,
regardless of the context or location in which those searches and seizures take place.6
¶ 36. We agree that our determination that Article 11 applies to the type of search in this
case in no way interferes with federal officials’ ability to exercise their authority to safeguard the
borders. Our decision does not affect the authority of Border Patrol to conduct roving patrols, stop
6
Although the State’s Attorney suggests that patrols within “the shadow of the border”
should be treated like border searches, we see no principled way to distinguish the effects of a
roving patrol that takes place within a mile or two of the border from one that takes place ninety-
nine miles away. Either way, the intrusion on defendants’ privacy is the same.
16
and search vehicles suspected of violating federal immigration laws, or make arrests for those laws.
We also agree that Article 11 does not absolutely prohibit warrantless searches and seizures. State
v. Jewett, 148 Vt. 324, 328, 532 A.2d 958, 960 (1987). However, the circumstances under which
exceptions are permitted “must be jealously and carefully drawn.” Id. (quotation omitted).
¶ 37. Exclusion of the evidence gathered by federal officials in this case is consistent with
the history and purposes of Vermont’s exclusionary rule. As we have explained, 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.” Badger, 141
Vt. at 453, 450 A.2d at 349. While the U.S. Supreme Court has described the federal exclusionary
rule “as a judicially created remedy designed to safeguard Fourth Amendment rights generally
through its deterrent effect, rather than a personal constitutional right of the party aggrieved,”
United States v. Leon, 468 U.S. 897, 906 (1984) (quotation omitted), we have not adopted this
view. See State v. Oakes, 157 Vt. 171, 174, 598 A.2d 119, 121 (1991) (rejecting good-faith
exception to exclusionary rule announced in Leon for searches made in good faith under warrant
later found invalid). Deterrence of official violations is undoubtedly one purpose of Vermont’s
exclusionary rule, but it is not the sole or even primary purpose. See Badger, 141 Vt. at 453.
Instead, we have emphasized that the focus in an exclusionary-rule analysis “should be on the
individual constitutional rights at stake.” State v. Lussier, 171 Vt. 19, 30, 757 A.2d 1017, 1025
(2000).
¶ 38. As discussed above, Article 11 guarantees individuals the right to privacy in their
vehicles and to containers within those vehicles. Birchard, 2010 VT 57, ¶ 12. The search of
defendants’ car was an unreasonable intrusion into this privacy interest, and we have previously
determined that the appropriate remedy for such a violation is exclusion of the evidence that was
gathered. Id.; Savva, 159 Vt. at 87, 616 A.2d at 781. The intrusion into defendants’ privacy was
17
not somehow lessened because the search was conducted by a federal agent. See Elkins v. United
States, 364 U.S. 206, 215 (1960) (“To the victim it matters not whether his constitutional right has
been invaded by a federal agent or by a state officer.”); State v. Davis, 834 P.2d 1008, 1012 (Or.
1992) (explaining that because focus of Oregon’s exclusionary rule is preservation of individual
rights, “[i]n the context of a criminal prosecution, the focus then is on protecting the individual’s
rights vis-à-vis the government, not on deterring or punishing the excessive conduct of any
particular governmental actor, local or otherwise”). The language of Article 11 is broadly
worded—it protects individuals from unreasonable searches or seizures “by any officer or
messenger.” Vt. Const. ch. I, art. 11. In Vermont courts, defendants are generally entitled to the
individual rights guaranteed by the Vermont Constitution, and “the public’s interest in having strict
police control over persons driving on our highways may not be satisfied at the expense of our
constitutional right to be free from unbridled government interference in our lives.” Lussier, 171
Vt. at 32, 757 A.2d at 1026.
¶ 39. Applying the exclusionary rule here also protects the fairness and integrity of the
judicial process. Vermont courts are bound to uphold the Vermont Constitution. See Vt. Const.
ch. II, § 56 (requiring all judicial officers to swear or affirm that they will not “directly or indirectly,
do any act or thing injurious to the Constitution” of Vermont). “Defense of that Constitution
necessarily involves ensuring our criminal trials adhere to its mandates, and those mandates should
not ‘be impaired by judicial sanction of equivocal methods.’ ” Britton, 229 A.3d 590, 613-14
(quoting Byars v. United States, 273 U.S. 28, 33 (1927)). If we were to hold that evidence obtained
in a manner that violates Article 11 is admissible in state criminal proceedings, we “would
necessarily be placing [our] imprimatur of approval on evidence that would otherwise be deemed
illegal, thus compromising the integrity of our courts.” State v. Torres, 262 P.3d 1006, 1019 (Haw.
2011); see also Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting) (“If
18
the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become
a law unto himself; it invites anarchy.”).
¶ 40. Finally, although Border Patrol agents are bound only by the strictures of federal
law, not Article 11, we disagree that our decision will have no deterrent effect whatsoever on official
misconduct. We acknowledge that in this case, there is no evidence of collaboration between
federal and state law enforcement officers to avoid the protections of Article 11. But a decision
from this Court allowing the State to use evidence gathered in violation of the Vermont Constitution
simply because it was gathered by federal law enforcement officers might implicitly encourage
federal officers to engage in searches that Vermont officers cannot, so that Vermont officers will
reciprocate by passing along information regarding immigration violations. Exclusion of the
evidence is necessary “to promote institutional compliance with [Article 11] on the part of law
enforcement agencies generally.” Oakes, 157 Vt. at 180, 598 A.2d at 125.
¶ 41. Our holding is consistent with decisions by courts of other states that utilize a
privacy rationale for their exclusionary rules. See Davis, 834 P.2d at 1012-13 (explaining that focus
on individual protection under Oregon’s exclusionary rule supports exclusion of evidence obtained
in violation of Oregon Constitution, regardless of where obtained or by whom); Torres, 262 P.3d
at 1020 (stating that because Hawaii’s exclusionary rule protects privacy rights of defendant, those
rights must “be given substantial weight when another jurisdiction’s law is involved”); State v.
Cardenas-Alvarez, 2001-NMSC-017, ¶ 18, 130 N.M. 386, 393, 25 P.3d 225, 232 (noting that
purpose of New Mexico exclusionary rule is to protect individual right against unreasonable
searches and seizures, and concluding that evidence obtained by federal officers in violation of that
right must be excluded from state prosecutions). We are unpersuaded by the cases cited by the
State’s Attorney and the trial court to the contrary, because they focus primarily on a deterrence
rationale rather than protecting individual privacy rights. See, e.g., Commonwealth v. Brown, 925
N.E.2d 845, 851 (Mass. 2010); State v. Boyd, 992 A.2d 1071, 1085 (Conn. 2010).
19
¶ 42. We again emphasize that our determination that Article 11 applies to bar the use of
the evidence gathered by the Border Patrol agents in this case does not constrain federal officials’
ability to exercise their authority to safeguard the borders through the use of roving patrols. It will
not affect any prosecution against defendants in federal court. The only effect of our decision is to
prohibit state officials from using evidence found during such patrols in a manner that violates the
state constitution against individuals in state criminal proceedings—a circumstance in which the
federal government has no interest.
¶ 43. The answer to the certified question is that evidence gathered in violation of Article
11 by Border Patrol agents on roving patrol is not admissible in a state criminal proceeding.
Reversed and remanded for further proceedings consistent with this opinion.
FOR THE COURT:
Associate Justice
¶ 44. CARROLL, J., dissenting. The majority holds that evidence independently and
lawfully obtained by federal Border Patrol agents exercising their exclusive authority to safeguard
the U.S. border—and then lawfully turned over to Vermont law enforcement—must be excluded
from Vermont criminal court proceedings because Vermont law enforcement officers presumably
would have needed to obtain a warrant if they, rather than Border Patrol agents, had conducted the
search of defendants’ vehicle. This holding is inconsistent with our controlling precedents, as well
as the caselaw of most other jurisdictions, and does not further the purposes of our exclusionary
rule. Accordingly, I respectfully dissent.
¶ 45. Before examining our relevant caselaw, I emphasize certain undisputed points of
law and fact, which are discussed more fully below. The federal Border Patrol agents acted lawfully
pursuant to federal search-and-seizure law in stopping and searching defendants’ vehicle during a
20
roving patrol within approximately one mile of the U.S. border. For purposes of this appeal, we
presume that reasonable suspicion supported the stop, and that probable cause supported the
search.7 Further, the stop and search of defendants’ vehicle by the federal Border Patrol agents was
conducted independently of Vermont law enforcement officers in furtherance of the agents’
exclusive authority to safeguard the U.S. border. As established in our caselaw, the federal border
agents’ discovery of the evidence vitiated defendants’ possessory interest in the evidence, such that
the transfer of the evidence to Vermont law enforcement officials did not constitute a new search
requiring probable cause or a warrant.
¶ 46. Looking more closely at our relevant caselaw, in State v. Dreibelbis, federal
inspectors at the Derby Line border station discovered two pounds of hashish in the trunk of the
defendant’s vehicle during a routine border inspection. 147 Vt. 98, 511 A.2d 307 (1986). After
federal Customs officials notified the Vermont State Police of the discovery, the state charged the
defendant with a drug offense in Vermont criminal court. In an interlocutory appeal from the trial
court’s denial of his motion to suppress, the defendant argued, in relevant part, that because federal
law did not require probable cause for routine border inspections, in contrast to non-border searches,
the evidence discovered during the border search had to be excluded from the Vermont criminal
court proceedings. Id. at 100, 511 A.2d at 308. We rejected this argument, concluding that “[s]o
long as the evidence seized in a permissible, routine customs border inspection meets federal
standards for such searches . . . it is no violation of the defendant’s constitutional rights if the
evidence is later used in a state prosecution.” Id. (citation omitted).
7
If this case were remanded, defendants could challenge the lawfulness of the stop under
federal law in Vermont criminal court proceedings. Notably, the legal concepts of reasonable
suspicion and probable cause are the same under federal and Vermont law. See State v. Brunella,
2020 VT 109, ¶ 6, ___ Vt. ___, 251 A.3d 550 (citing caselaw from both this Court and U.S.
Supreme Court in defining reasonable suspicion); State v. Quigley, 2005 VT 128, ¶ 25, 179 Vt.
567, 892 A.2d 211 (Dooley, J., concurring) (quoting Maryland v. Pringle, 540 U.S. 366 (2003), for
proposition that probable cause is generally defined as reasonable ground for particularized belief
in guilt of person being searched or seized).
21
¶ 47. Ten years later, in State v. Coburn, we considered whether evidence of drugs
discovered by Customs officials inspecting the belongings of passengers arriving on an
international flight at John F. Kennedy International Airport in New York City was admissible in a
Vermont criminal court proceeding initiated when federal authorities, who were not interested in
prosecuting the defendant under federal law, turned the evidence over to Vermont law enforcement.
165 Vt. 318, 683 A.2d 1343 (1996). We rejected the defendant’s arguments that: (1) the initial
lawful search of his luggage at the airport became unlawful under federal constitutional law when
the luggage was transferred to Vermont and examined by Vermont State Police; and (2) even if
federal law was not violated, evidence recovered during the search was not admissible in the
Vermont criminal court proceeding because the conduct of the Customs officials would not have
passed muster under Article 11 of the Vermont Constitution. Id. Citing United States Supreme
Court precedents, as well as Dreibelbis, we rejected the first argument, concluding that there was
no “second search under the Fourth Amendment” because “the conduct of Vermont police [was] a
continuation of the legal conduct of Customs officials” and that “the transfer of defendant’s luggage
from federal jurisdiction to state jurisdiction for purposes of state prosecution [did] not violate the
Fourth Amendment.” Id. at 323-24, 683 A.2d at 1346.
¶ 48. In rejecting the defendant’s second argument, we reasoned that the federal interest
in safeguarding the U.S. border or its functional equivalent was preeminent. Id. at 325, 683 A.2d
at 1347. We held that “[b]ecause the Vermont Constitution does not apply to the otherwise lawful
conduct of Customs officials, our scrutiny under Chapter I, Article 11 of the Vermont Constitution
is limited to the conduct of the Vermont State Police.” Id. We stated that defendant had failed “to
articulate how his already vitiated possessory interest in his luggage was revived upon transfer from
Customs to the Vermont police” and that because the Vermont police had acted lawfully “under the
Fourth Amendment, using a plain-view rationale,” that conduct was “similarly lawful under the
Vermont Constitution using the same rationale.” Id. at 326, 683 A.2d at 1347.
22
¶ 49. More recently, we reaffirmed our Coburn holding in a case involving drugs
discovered at a fixed checkpoint maintained by the U.S. Border Patrol in Hartford, Vermont, ninety-
seven miles south of the Canadian border. State v. Rennis, 2014 VT 8, 195 Vt. 492, 90 A.3d 906.
We rejected the defendant’s appeal of the denial of his Vermont criminal court motion to suppress
the drugs discovered at the federal checkpoint and turned over to Vermont law enforcement. Id.
¶ 1. The defendant conceded the legality of the border agents’ search under the Fourth Amendment
but challenged the admissibility of the evidence under Article 11 in the Vermont criminal court
proceeding. Assuming without deciding that the federal checkpoint met federal standards and thus
was the functional equivalent of the U.S. border, id. ¶ 10, we cited Dreibelbis for the proposition
that the defendant’s Article 11 challenge applied only to the conduct of the state actors in the case.
Id. ¶ 11. We noted that the defendant had failed to “allege that the Vermont State Police did
anything other than receive the evidence uncovered in the federal search . . . and proceed to use the
evidence in th[e] state prosecution.” Id. ¶ 13. We stated that, like the defendant in Coburn, the
defendant in Rennis failed to explain how his vitiated possessory interest was revived upon transfer
of the evidence to the Vermont police. Id; see also 1 W. LaFave, Search and Seizure: A Treatise
on the Fourth Amendment § 1.5(c), at 247-48 (6th ed. 2020) (“Evidence legally obtained by one
police agency may be made available to other such agencies without a warrant, even for a use
different from that for which it was originally taken.” (citation omitted)).
¶ 50. Further, we explicitly rejected the defendant’s reliance on State v. Cardenas-
Alvarez—the only state case involving a search by border agents on which defendants rely in this
case. 2001-NMSC-017, ¶ 1, 25 P.3d 225 (holding that “the New Mexico Constitution and laws
apply to evidence seized by federal agents at a border patrol checkpoint sixty miles within the State
of New Mexico when that evidence is proffered in state court”).8 We stated that our reasoning in
8
The New Mexico Supreme Court later declined to extend its holding in Cardenas-Alvarez
to an international border checkpoint. State v. Sanchez, 2015-NMSC-018, ¶ 28, 350 P.3d 1169.
23
Coburn precluded the defendant’s argument, which relied on the rationale adopted in Cardenas-
Alvarez, that evidence lawfully seized by federal Border Patrol agents pursuant to federal law in a
manner that would have violated the Vermont Constitution must be suppressed in Vermont criminal
proceedings. Rennis, 2014 VT 8, ¶¶ 14-15 (“Where we have determined that Article 11 does not
apply, it also does not provide the remedy of the exclusionary rule.”); see also State v. Bradley, 719
P.2d 546, 549 (Wash. Ct. App. 1986) (stating that because state law cannot control federal officers’
conduct, several courts “have concluded that evidence lawfully obtained under federal standards by
United States Customs officials is admissible in state court even if the search and seizure would
have violated state law”). We acknowledged that if Vermont law enforcement officers had
conducted the search, they would have had to comply with Article 11, but reaffirmed that a border
search lawfully conducted by federal officers under the Fourth Amendment could not be challenged
under Article 11 in Vermont criminal court proceedings. Rennis, 2014 VT 8, ¶ 16.
¶ 51. In this case, defendants raise essentially the same argument this Court rejected in
Dreibelbis, Coburn, and Rennis—that the evidence discovered during the federal border agents’
independent and lawful search must be excluded in their Vermont criminal court proceedings,
because if the search had been conducted by Vermont law enforcement officers, Vermont law
construing Article 11 of the Vermont Constitution would have presumably required them to obtain
a warrant before conducting the search. Furthermore, defendants’ contention that excluding such
evidence in state court would not interfere with federal interests in safeguarding the border could
also be said for each of our controlling precedents, but it did not dissuade this Court from holding
in those cases that the evidence seized by federal Border Patrol agents was admissible in Vermont
criminal court proceedings.
¶ 52. I find unavailing the efforts of defendants and the majority to distinguish these
precedents on grounds that the stop and search in this case was conducted by federal Border Patrol
24
agents during a roving patrol rather than by federal agents at the border or a permanent checkpoint.9
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 and cannot be challenged under Article 11 unless
Vermont law enforcement was involved in the search. To be sure, federal law requires reasonable
suspicion for stops and probable cause for searches by roving border patrols—as opposed to
searches conducted at the border or its functional equivalent, which are per se reasonable under
federal law. But it is the lawfulness of the federal border agents’ conduct under federal law that
determines the admissibility of any discovered evidence in Vermont criminal court proceedings,
pursuant to our precedents. In this case, the stop and search by the roving federal border patrol was
lawful; therefore, our precedents squarely govern this case.
¶ 53. The U.S. Supreme Court cases upon which the majority relies neither undercut the
reasoning in these controlling precedents nor support the majority’s reversal in this case. Those
cases hold only that stops and searches by roving borders patrols, as opposed to at the border itself
or its functional equivalent, require reasonable suspicion and probable cause or consent,
respectively. See Brignoni-Ponce, 422 U.S. at 884 (holding that border agents on roving patrol, as
9
Roving patrols are one of three statutorily authorized “kinds of inland traffic-checking
operations”—in addition to temporary and permanent checkpoints—aimed principally at
preventing illegal immigration. United States v. Martinez-Fuerte, 428 U.S. 543, 552-53 (1976).
Border patrol agents, however, “are not general guardians of the public peace, as are state or local
police. Their powers to search places and to search and arrest persons are limited by statute.”
United States v. Diamond, 471 F.2d 771, 773 (9th Cir. 1973). They are not authorized under federal
law to enforce state law. See, e.g., United States v. Brignoni-Ponce, 422 U.S. 873, 883 n.8 (1975)
(“Border Patrol agents have no part in enforcing laws that regulate highway use, and their activities
have nothing to do with an inquiry whether motorists and their vehicles are entitled, by virtue of
compliance with laws governing highway usage, to be upon the public highways.”); United States
v. Valdes-Vega, 685 F.3d 1138, 1145 n.6 (9th Cir. 2012) (“Because the Border Patrol Agents who
stopped [defendant] did not have authority to enforce California traffic laws, [defendant’s] violation
of California traffic laws cannot form the sole basis for the vehicle stop.”).
25
opposed to at border or its functional equivalent, require reasonable suspicion to stop vehicles);
Almeida-Sanchez v. United States, 413 U.S. 266, 273 (1973) (holding that search of petitioner’s
vehicle by border agents on roving patrol on California road lying at all points more than twenty
miles from Mexican border required probable cause or consent). As I stated above, the salient point
is that the federal border agents’ stop and search of defendants’ vehicle in this case was presumably
lawful, and therefore evidence derived from the search was admissible in state criminal proceedings
without a determination of whether the search would have required a warrant under our
interpretation of Article 11 if it had been conducted instead by Vermont law enforcement officers.
¶ 54. I find unpersuasive the majority’s attempt to distinguish roving Border Patrol stops
and searches by describing them as random and subject to greater enforcement discretion and thus
abuse. Lawful stops and searches by roving border patrols, as presumably was the case here, are
not random. As noted, stops and searches by roving border patrols must be conducted based on
reasonable suspicion and probable cause, respectively. Nor do I see anything in the record
suggesting that border agents on roving patrols have more discretion to search vehicles than border
agents at the border or at fixed checkpoints.
¶ 55. Notably, the Supreme Court in Brignoni-Ponce cited several factors to be considered
in determining whether a roving border patrol stop was based on reasonable suspicion, the first of
which is proximity to the border. 422 U.S. at 884-85. Given that roving border patrols require
reasonable suspicion and probable cause to stop and search a vehicle for suspected border-related
offenses, I find far-fetched defendants’ hyperbolic warning of roving border patrols stopping and
searching vehicles over much of the state of Vermont. See Almeida-Sanchez, 413 U.S. at 273(concluding that search of petitioner’s vehicle by roving border patrol on California road lying at
all points at least twenty miles from Mexican border violated Fourth Amendment in absence of
probable cause or consent).
26
¶ 56. I also disagree with the majority that admitting the evidence in this case in Vermont
criminal court proceedings would be inconsistent with the purposes of Vermont’s exclusionary rule.
As an initial matter, although deterrence may not be the exclusive or even primary purpose of
Vermont’s exclusionary rule, this Court, like most other courts, have cited the same underlying
purposes for the exclusionary rule: deterrence of official misconduct, preservation of the integrity
of the judicial process, and protection of the individual rights that were violated in collecting the
evidence. See State v. Badger, 141 Vt. 430, 452-53, 450 A.2d 336, 349 (1982) (stating that
introduction of evidence obtained in violation of Vermont Constitution “cannot be admitted at trial
as a matter of state law” because it “eviscerates our most sacred rights, impinges on individual
privacy, perverts our judicial process, distorts any notion of fairness, and encourages official
misconduct”); LaFave, supra, § 1.5(c), at 243 (“The purposes for using the exclusionary rule for
violations of state law . . . are essentially the same as those . . . given for suppression where the
Fourth Amendment is violated: deterrence of the police; the imperative of judicial integrity; and
assuring the people that the government will not profit from lawless behavior.”).
¶ 57. None of these underlying purposes are threatened when federal Border Patrol agents
provide Vermont law enforcement with evidence independently and lawfully seized under federal
law pursuant to the agents’ exercise of their exclusive authority to safeguard the U.S. border. State
v. Gwinner, 796 P.2d 728, 732 n.5 (Wash. Ct. App. 1990) (“[W]hatever the theoretical basis for
invoking the [exclusionary] rule, its applicability depends upon state conduct.”).
¶ 58. The exclusionary rule’s deterrent effect “rests on its tendency to promote
institutional compliance with [constitutional] requirements on the part of law enforcement agencies
generally” rather than “on ‘penalizing’ an individual officer into future conformity with the
Constitution.” State v. Oakes, 157 Vt. 171, 180, 598 A.2d 119, 125 (1991) (quotation omitted).
Institutional compliance with search-and-seizure law by Vermont law enforcement agencies will
not be compromised by admitting in Vermont criminal proceedings evidence lawfully obtained by
27
federal Border Patrol agents independently of any state conduct, as was the case here. 10 See State
v. Allard, 313 A.2d 439, 451 (Me. 1973) (stating that Customs officials turning over lawfully
obtained evidence to state law enforcement “does not promote improper conduct by either local
police or Customs agents”); Commonwealth v. Brown, 925 N.E.2d 845, 851 (Mass. 2010)
(concluding that where federal agents turned over to state law enforcement lawfully obtained
evidence, there was “no unlawful conduct to deter”); State v. Mollica, 554 A.2d 1315, 1328 (N.J.
1989) (concluding that when law enforcement officers of another jurisdiction turn over lawfully
and independently obtained evidence to state officials, “no purpose of deterrence relating to the
conduct of state officials is frustrated, because it is only the conduct of another jurisdiction’s
officials that is involved”); Gwinner, 796 P.2d at 732 (suppressing lawfully obtained evidence from
another jurisdiction “would not deter our state officers from unlawful conduct, since we are not
examining the conduct of state officers”). As the majority itself acknowledges, there is absolutely
no evidence to support its conjecture that admitting the evidence obtained in lawful and independent
searches by federal Border Patrol agents on roving patrols “might implicitly encourage federal
officers to engage in searches that Vermont officers cannot, so that Vermont officers will
reciprocate by passing along information regarding immigration violations.” Ante, ¶ 40.
¶ 59. Nor is the integrity of our judicial process imperiled by admitting in Vermont
criminal court proceedings evidence lawfully and independently obtained by federal border agents
exercising their authority to safeguard the U.S. border, insofar as “there has been no misuse or
perversion of judicial process.” Mollica, 554 A.2d at 1328; see also Brown, 925 N.E.2d at 851
(“Judicial integrity, in turn, is hardly threatened when evidence properly obtained under Federal
10
Because we are assuming for the purposes of this appeal that the Border Patrol agents
complied with federal law, we need not decide whether we would suppress evidence unlawfully
seized by Border Patrol agents on roving patrol under either the Fourth Amendment or Article 11.
See Coburn, 165 Vt. at 325, 638 A.2d at 1347 (holding that the “Vermont Constitution does not
apply to the otherwise lawful conduct” of federal officials “acting under the exclusive authority to
safeguard the borders of the United States” (emphasis added)).
28
law, in a federally run investigation, is admitted as evidence in State courts.”); State v. Ramirez,
895 N.W.2d 884, 897-98 (Iowa 2017) (quoting Brown); LaFave, supra, § 1.5(c), at 248 n.169
(labeling as “bizarre reasoning” statement in State v. Torres, 262 P.3d 1006, 1019 (Haw. 2011),
that admitting in state courts evidence lawfully obtained in another jurisdiction in manner that
would have been constitutionally deficient in receiving state would necessarily be placing those
courts’ “ ‘imprimatur of approval’ ” on such evidence, thereby comprising integrity of judicial
process). To the contrary, the public’s trust in the integrity of the judicial process is likely to be
compromised if we automatically exclude from Vermont criminal court evidence lawfully and
independently obtained by Border Patrol agents—including any evidence potentially connected to
the commission of serious crimes that threaten the safety of the public or particular individuals. See
Brown, 925 N.E.2d at 851 (rigidly applying exclusionary rule when its purposes are not furthered
would “frustrate the public interest in the admission of evidence of criminal activity” to greater
extent than “any incremental protection it might afford”); accord Ramirez, 895 N.W.2d at 897-98;
see Mollica, 554 A.2d at 1327-28 (excluding lawfully obtained evidence from another jurisdiction
would offend principles of federalism and comity “without properly advancing legitimate state
interests”).
¶ 60. As for safeguarding the individual privacy rights protected by Article 11, I reiterate
that in this appeal we presume that the federal Border Patrol agents obtained the subject evidence
after stopping and searching defendants’ vehicle based on reasonable suspicion and probable cause.
Thus, in this case, the only state interest furthered is the presumption that if the search had been
conducted by Vermont law enforcement officers, they would have had to obtain a warrant first. But
excluding the subject evidence in this case would not further the individual privacy interests
outlined in State v. Saava, 159 Vt. 75, 616 A.2d 774 (1991), that militate in favor of requiring a
search warrant for police to conduct an automobile search based on probable cause.
29
¶ 61. While acknowledging that criminal defendants may seek judicial review of police
searches or seizures, we concluded in Saava that “these after-the-fact challenges do not serve Article
11’s purpose of protecting the rights of everyone—law-abiding as well as criminal—by involving
judicial oversight before would-be invasions of privacy.” Id. at 86, 616 A.2d at 780. We stated
that requiring a warrant would spare people the intrusion of “ill-considered searches or at least”
give them “an impartial objective assessment before a search is carried out.” Id. It would also
“bring[] a significant check on law enforcement conduct, because not just fruitful searches will be
on the record, and searches on doubtful grounds may not be attempted at all if authorities know
they must first go before a judicial officer.” Id. at 87, 616 A.2d at 780. Without a warrant, we
reasoned, “police behavior would be subjected to judicial scrutiny only in rare cases, while [d]ay
by day mischief may be done and precedents built up in practice long before the judiciary has an
opportunity to intervene.” Id. (internal quotation marks omitted).
¶ 62. Given the unique posture of federal border area automobile searches conducted by
federal agents in roving patrols, none of these concerns will be mollified by applying Article 11
requirements to these searches so as to exclude in Vermont criminal court evidence lawfully
obtained by federal agents exercising their exclusive authority to safeguard our international border.
No Vermont traveler will avoid being subjected to an automobile stop or search by a roving federal
border patrol as the result of applying Article 11 requirements to these situations. The federal agents
will not seek warrants before lawfully stopping and searching cars based on reasonable suspicion
and probable cause that the suspects are engaged in a federal border crime. Thus, criminals and
law-abiding persons will be in the exact same position—neither will be spared an ill-considered
search or receive an impartial objective assessment by a judicial officer before a search is carried
out. In short, individual privacy interests will be unaffected by excluding the evidence; no
individual will experience greater privacy by excluding the evidence. Moreover, neither the
30
searched individual’s dignity nor the integrity of the judicial process will be negatively impacted
by admitting the lawfully obtained evidence in Vermont criminal proceedings.
¶ 63. Our holding today need not go beyond the facts of this case, which concern lawfully
and independently obtained evidence by federal Border Patrol agents on roving patrol exercising
exclusive federal authority to safeguard the U.S border by stopping and searching vehicles based
on reasonable suspicion and probable cause that a federal crime concerning our international border
has been committed. Many jurisdictions “have concluded that evidence lawfully obtained by
federal officials, under a federal investigation meeting federal standards, may be used in subsequent
state prosecutions even though state law would not have permitted the same type of search.”
Ramirez, 895 N.W.2d at 895 (citing cases); see also LaFave, supra, § 1.5(c), at 248 (stating that
“this approach makes good sense”). But see People v. Griminger, 524 N.E.2d 409, 412 (N.Y. 1988)
(briefly stating that even though search warrant was issued by federal magistrate and executed by
federal agents, defendant should be afforded benefit of state’s search-and-seizure law because he
was being tried for crimes defined by state’s penal laws); State v. Rodriquez, 854 P.2d 399, 403
(Or. 1993) (concluding that although federal agents acted under authority of federal law in
conducting warrantless search of defendant’s apartment, state constitutional protections apply to
evidence prosecutor seeks to use in state prosecution). But in this appeal, we need not consider this
broader category of non-border cases. As to evidence independently and lawfully obtained by
federal agents on roving border patrol based on reasonable suspicion and probable cause, I would
follow our plainly governing precedents.11 Any different scenarios can be addressed later if and
when they are presented to this Court.
11
Because the majority attempts to distinguish Coburn and Rennis, it does not address the
arguments of amici curiae to overrule or limit those cases. Thus, for reasons I need not detail in the
context of this dissent, I would conclude that the holdings in Coburn and Rennis rested on this
Court’s sound understanding of principles of federalism, the limits of the Vermont Constitution,
and the purposes of the exclusionary rule.
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¶ 64. Accordingly, for the reasons stated above, I respectfully dissent from the majority’s
reversal of the criminal division’s order denying defendants’ motion to suppress.
¶ 65. I am authorized to state that Justice Eaton joins this dissent.
Associate Justice
32