State v. Phillip Walker-Brazie & Brandi-Lena Butterfield

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: 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 75 No. 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, …

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