MONTPELIER, Vt. (WFFF) — The Vermont Supreme Court heard oral arguments Tuesday in a case that has the ACLU of Vermont and Vermont Attorney General TJ Donovan asking questions.
The ACLU of Vermont had filed an appeal on behalf of a Richford couple charged with possession of marijuana and psilocybin mushrooms, claiming their rights under the Vermont Constitution were violated when Border Patrol agents searched their vehicle without a warrant.
The incident occurred on August 12, 2018. The couple was pulled over driving west on Vermont Route 105. A Border Patrol agent allegedly stopped the vehicle and asked to search it, the couple said no, and without a warrant, the agent ordered them from their car and searched. They were charged with possession of marijuana and psilocybin mushrooms. ACLU Senior Staff Attorney Jay Diaz questioned the validity of that evidence in a State trial.
“Border Patrol could have sent it to the Federal prosecutor, and the Federal prosecutor can do what they want with it, but instead it is a Vermont prosecution in a Vermont State court and they expect their rights to apply,” Diaz said.
The Vermont Constitution requires a warrant to search a vehicle unless the officer has either consent or probable cause with urgent circumstances.
A.G. Donovan said the agents had neither, therefore the evidence can’t be used in a state prosecution.
“If Vermonters are prosecuted in Vermont State court, they are entitled to the full protections of the Vermont Constitution, which are greater than the Federal protections, regardless of who arrests them,” Donovan said.
Orleans County prosecutors argued Tuesday that the evidence should be considered valid in a State trial because it wasn’t Vermont authorities that appeared to violate the couple’s rights. They also believe that Border Patrol handled the situation within the law. AG Donovan agreed, but said it doesn’t change the situation.
“We’re just saying if this was a Vermont law enforcement official, they would have to get a warrant, and if it’s going to go into Vermont court, it shouldn’t matter who makes the stop, or who makes the arrest,” Donovan said. “You don’t get less rights because you live in Franklin, Orleans or Essex County than people who live in Chittenden or Washington County.”
The Vermont Supreme Court will weigh in on the case, but that likely won’t come until early next year.
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