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In the Supreme Court of the State of Vermont Docket No IN THE SUPREME COURT OF THE STATE OF VERMONT DOCKET NO. 2019-388 STATE OF VERMONT, APPELLEE V. PHILLIP WALKER-BRAZIE & BRANDI LENA-BUTTERFIELD, APPELLANT APPEAL FROM THE SUPERIOR COURT OF VERMONT, CRIMINAL DIVISION ORLEANS COUNTY DOCKETS NO. 555-9-18 Oscr, 558-9-18 Oscr Appellee State of Vermont’s Brief STATE OF VERMONT By: David Tartter Deputy State’s Attorney 110 State Street Montpelier VT 05633-6401 Telephone: 802-828-2891 Fax: 802-828-2881 [email protected] On the brief: Spencer Davenport, law clerk ISSUES PRESENTED Whether this Court has already twice decided that Article 11 has no application to searches conducted by federal government officials acting under the exclusive federal authority to safeguard the borders of the United States and therefore whether the issue on appeal has been squarely decided against the defendants. Whether those precedents should be overruled or can be distinguished. Whether this case also concerns the reverse silver platter doctrine, or Border Patrol activity in the interior of Vermont, or disincentivizing state law enforcement officers, or Vermont officers collaborating or cooperating with the Border Patrol, or with allegations of CBP excesses in other contexts, or with the sufficiency of reasonable suspicion or probable cause here. i TABLE OF CONTENTS Page Issues Presented ............................................................................................................. i Table of Authorities ...................................................................................................... iv Statement of the Case ................................................................................................... 1 Statement of Facts ......................................................................................................... 1 Evidence at the Hearing ........................................................................................... 1 Trial Court Ruling .................................................................................................... 3 Motion for Permission to Appeal .............................................................................. 4 ARGUMENT I. THE ISSUE ON APPEAL HAS BEEN SQUARELY DECIDED AGAINST THE DEFENDANTS IN TWO PRIOR DECISIONS OF THIS COURT. ............................. 5 II. THIS COURT’S PRECEDENTS SHOULD NOT BE OVERRULED AND CANNOT BE DISTINGUISHED. ................................................................................................ 13 A. The Court Employs A Balancing Test To Determine If Article 11 Applies To A Particular Situation ................................................................ .14 B. The Public Interests At Stake Outweigh The Competing Private Interests ......................................................................................................... 15 C. Rennis and Coburn Cannot Be Distinguished. ............................................ 23 III. THIS CASE DOES NOT CONCERN THE MANY OTHER ISSUES RAISED IN THE DEFENDANTS’ AND AMICI’S BRIEFS .......................................................... .25 ii A. This Case Does Not Concern The Reverse Silver Platter Doctrine ............ .25 B. This Case Does Not Concern Border Patrol Activity In The Interior Of Vermont ......................................................................................................... .28 C. This Case Does Not Concern Disincentivizing State Law Enforcement Officers ................................................................................... .30 D. This Case Does Not Concern Vermont Collaborating Or Cooperating With CBP, Nor With Allegations Of CBP Excesses .............. .31 E. This Case Does Not Concern The Sufficiency Of Reasonable Suspicion For The Stop Or Probable Cause For The Search ..................... .33 Conclusion .................................................................................................................... 33 Certificate of Compliance iii TABLE OF AUTHORITIES Cases Page Almeida-Sanchez v. United States, 413 U.S. 266 (1973) ........................................... 28 Commonwealth v. Brown, 925 N.E.2d 845 (Mass. 2010) ........................................... 18 Ortiz v. U.S. Border Patrol, 39 F. Supp. 2d 1321 (D.N.M. 1999), aff'd, 210 F.3d 390 (10th Cir. 2000) ...................................................................................................... 10, 21 People v. Mitchell, 275 Cal. App. 2d 351 (Ct. App. 1969) ......................................... 27 Rowe v. State, 352 S.E.2d 813 (Ga. 1987) ................................................................... 27 State v. Allard, 313 A.2d 439 (Me. 1973) ...................................................................... 8 State v. Bogert, 197 Vt. 610 (2014) ............................................................................. 14 State v. Bradley, 719 P.2d 546 (Wash. 1986) ........................................................ .8, 27 State v. Cardenas-Alvarez, 130 N.M. 386 (2001) ................................................... 8, 26 State v. Clarke, 145 Vt. 547 (1985) ............................................................................. 32 State v. Clinton-Aimable, 2020 VT 30 ........................................................................ 20 State v. Coburn, 165 Vt. 318 (1996) .................................................................. 5, 23, 24 State v. Dreibelbis, 147 Vt. 98 (1986) ........................................................................... 9 State v. Ford, 188 Vt. 17 (2010) .................................................................................. 28 State v. Jewett, 148 Vt. 324 (1987) ............................................................................. 14 State v. Koenig, 202 Vt. 243 (2016) ............................................................................. 14 State v. Lockwood, 160 Vt. 547 (1993) ........................................................................ 15 State v. Lussier, 171 Vt. 19 (2000) .............................................................................. 16 State v. Martin, 184 Vt. 23 (2008) ......................................................................... 14, 21 iv State v. McGuigan, 184 Vt. 441 (2008) ....................................................................... 15 State v. Muhammad, 182 Vt. 556 (2007) .................................................................... 25 State v. Oakes, 157 Vt. 171 (1991) .............................................................................. 16 State v. Patnaude, 140 Vt. 361 (1981) ........................................................................ 32 State v. Platt, 154 Vt. 179 (1990) ................................................................................ 25 State v. Record, 150 Vt. 84 (1988) ............................................................................... 15 State v. Rennis, 195 Vt. 492 (2014) ............................................................. 6 – 8, 23, 24 State v. Sanchez, 350 P.3d 1169 (N.M. 2015) ................................................... 8, 22, 26 State v. Savva, 159 Vt. 75 (1991) .......................................................................... 15, 16 State v. Smith, 399 So. 2d 22 (Fla. Dist. Ct. App. 1981) ............................................ 27 State v. Toone, 823 S.W.2d 744 (Tex. App. 1992), aff'd, 872 S.W.2d 750 (Tex. Crim. App. 1994) .................................................................................................................... 25 State v. Vance, 444 P.3d 1214 (Wash. App.), review denied, 455 P.3d 135 (Wash. 2020) ............................................................................................................................. 27 State v. Welch, 160 Vt. 70 (1992) ................................................................................ 14 State v. Williams, 182 Vt. 578 (2007) ......................................................................... 15 United State v. Martinez-Fuerte, 428 U.S. 543 (1976) ................................................ 7 United States v. Brignoni-Ponce, 422 U.S. 873 (1975) ........................................... 9, 29 United States v. Cardona, 955 F.2d 976 (5th Cir. 1992) ............................................ 30 United States v. Flores-Montano, 541 U.S. 149 (2004) .............................................. 23 United States v. Jones,149 F.3d 364 (5th Cir.1998) .................................................. 30 United States v. Perkins, 166 F. Supp. 2d 1116 (W.D. Tex.), on reconsideration, 177 F. Supp. 2d 570 (W.D. Tex. 2001), aff'd, 352 F.3d 198 (5th Cir. 2003) ...................... 21 United States v. Rubio-Hernandez, 39 F. Supp. 2d 808 (W.D. Tex. 1999) ................. 9 v United States v. Singh, 415 F.3d 288 (2d Cir. 2005) .................................................. 12 Statutes and Rules 19 U.S.C. § 1582 ............................................................................................................. 9 20 V.S.A. § 2222 ............................................................................................................. 9 6 U.S.C.A. § 211 ........................................................................................................... 22 8 U.S.C.A. § 1357 ................................................................................................... 10, 22 U.S. Const. Amend. IV ....................................................................................... 7 – 9, 20 V.R.A.P.
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