VT: Roving CBP patrol stop one mile from Canadian border violated state const. even though probably not 4A

A roving border patrol stop a mile from the Canadian border led to state charges against defendant. The court holds the state constitution was violated even if the Fourth Amendment was not, and the evidence should be suppressed. State v. Walker-Brazie, 2021 VT 75, 2021 Vt. LEXIS 98 (Sept. 24, 2021):

¶ 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 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.

¶ 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 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).

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