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Orleans County prosecutors split with AG’s office on Border Patrol case

Published: Dec. 15, 2020 at 3:52 PM EST
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MONTPELIER, Vt. (WCAX) - Can evidence seized by federal authorities during a warrantless search be used in state court? The Vermont Supreme Court heard oral arguments Tuesday in a case involving a Vermont couple who were charged with possession of marijuana and psychedelic mushrooms during a stop in the town of Jay in August of 2018.

In State v. Walker-Brazie & Lena-Butterfield, the ACLU argues that Vermont prosecutor’s use of evidence obtained by Border Patrol in an unconsented drug search violated the couple’s rights under the Vermont Constitution.

The agents acted lawfully because they only needed probable cause to conduct a search. But the ACLU’s Jay Diaz say Vermont’s Constitution requires a court-ordered warrant to search a vehicle. “Vehicle searches on the roadside in Vermont require a warrant before a search is done. That’s a line in the sand that Vermont has drawn,” he said.“ This case involves the question whether Vermont’s Constitution will remain a prime factor in Vermont courts.”

Orleans County Deputy State’s Attorney David Tartter says the evidence should be allowed because no state authorities violated the couple’s rights. “The state had nothing to do with the search. We were not present, we did not know about it, we didn’t initiate it,” he said.

But the state’s top prosecutor, Attorney General TJ Donovan does not agree with his fellow prosecutors. He filed a brief in support of the couple. “This is about fairness in this case. It was not a border stop. It was on a road that Vermonters travel every single day,” he said. Donovan says the Border Patrol didn’t do anything wrong, but he says the federal agency should then prosecute in federal court, not at the state level. “If it’s going to be going into state court, let’s follow the Vermont rules, which as we know affords Vermonters greater protections.”

A ruling is expected to come in the next few months.

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