Friday, June 13, 2014

Taking the "High" Road

State v. Rennis, 2014 VT 8

By Scott R. Williams (with research and assistance from Katia Alcantara, VLS 1L intern).

Today’s case teaches us that Article 11 protections of the Vermont Constitution do not reach the acts of federal government officials operating under federal law in the state of Vermont. In reaching this conclusion, it seems Vermont’s vibrant history of state sovereignty goes out the window.  But I digress.  

Mr. Rennis was driving on Interstate 91 in Hartford, Vermont. The U.S. Border Patrol has established a semi-permanent presence theresome 110 miles away from the nearest U.S. border, but who’s counting those pesky miles as long as we are safe from bad people coming across our borders. State’s rights people will go out of their minds on this case.

At the semi-permanent Federal Border Patrol “checkpoint,” located on a major interstate highway which exists entirely within the State of Vermont, Vermont citizens (and anyone else driving on the road) are forced to stop their cars so that Federal Agents can ask them questions, which include, "where are you from?" "Where were you born? Where are you coming from; where are you going to?"

It all starts sounding a bit like a Diana Ross song.

Here, the black-skinned driver with an accent was asked by the federal agent about his citizenship. Mr. Rennis claimed US citizenship. The agent asked where Rennis was born. Rennis then disclosed that he is a Jamaican-born, legal permanent resident of the U.S. and did not have the required immigration papers with him. 

The agent later claimed he thought he smelled burnt marijuana in the car and bluntly (had to say itit is a marijuana case after all) asked Mr. Rennis to proceed to the ramp to the inspection area. A drug detection dogwhy does border patrol have drug sniffing dogs, you ask? That’s a “highly” debated questionapparently overexcited at the prospect of finding evidence of terrorism, entered the car and barked. 

Having been personally barked at by a drug-detection police dog during a deposition of a police officer, I am pretty sure that barking is not an indication of the possible presence of drugs. This particular dog’s training was that, upon sniffing drugs, he would sit down. In other words, the dog did not act consistently with any training that he had received. 

Of course, there is also a question of why the dog was in the car, but evidently federal law, and the U.S. Constitution, allow border patrol to put their dog in your car if they “think” they smell something. With the “non-alert” of the trained drug dog, the agent asked for, and according to the reported case, was given Mr. Rennis's permission for his car to be searched. Two pounds of marijuana were located in the car. The Border Patrol, per protocol, then contacted Immigration and Customs Enforcement, which would be the logical choice for pursuing criminal charges against a non-citizen, border-related stop involving federally illegal drugs, right? 

However, ICE declined to pursue the matter and so Border Patrol referred it for State prosecution. There was no consideration of a “joint” effort (I know, I’m killing myself with these puns. I’m just too damned witty). 

Mr. Rennis was convicted in Vermont state court of felony possession of marijuana, possibly jeopardizing his permanent-resident status. He appealed his conviction, arguing that, once the feds chose not to prosecute his case, and instead avail themselves of Vermont state prosecution under Vermont state law, that he was entitled to the same protections under the Vermont Constitution that anyone else would receive.  The SCOV says nay.  

The issue is whether evidence that is seized in a federal search at an immigration checkpoint by federal agents operating properly under federal law is suppressible in a state prosecution under state law.  The SCOV says no, deferring to federal law, and finding Article 11 protections afforded to individuals by the Vermont Constitution do not apply to actions taken by federal government officials that are sanctioned under federal constitutional jurisprudence, even where the prosecution of the crime is brought in state court under state law.

This means that, even if the Border Patrol agent’s actions were unconstitutional under the Vermont Constitution, and even though the criminal charge is brought in state court, by a state prosecutor, before a state judge, and where the defendant if convicted will be subject to state corrections oversight, the Vermont Constitution does not apply. This also means that the court will not provide Article 11's exclusionary rule remedy to the otherwise-unconstitutional seizure.

The SCOV comes to this conclusion of deferring to the federal law for two basic reasons: “the federal interest in the conduct at issue outweighs Vermont's interest” and the federal interest in “safeguarding the United States border or its functional equivalent . . . is preeminent.”

The federal interest here, one must assume, is in continuing to have marijuana remain a Schedule 1 controlled substance for federal purposes while states move toward different approaches to the substance, and in prosecuting permanent, non-citizen legal residence for non-violent crimes? One could be “doobie-ous” about such interests. I, however, am not going to get “baked” into that debate.

Coincidentally, the central case the court discusses to use in support of its conclusion is one that similarly dealt with marijuana detected by drug-sniffing dogs, but from luggage in an airplane flying “high” from Jamaica (via Air Jamaica) to the US. That case held that the conduct of federal government officials, acting under exclusive federal authority to safeguard our borders, are not subject to the Vermont Constitution. The defendant in that case similarly failed to show how his “already vitiated possessory interest was revived upon transfer from federal agents to the Vermont police.” The main difference between this case and the other was that here, the U.S. was “safeguarding the United States border” at an immigration checkpoint more than 100 miles away from the border, not a border crossing. The SCOV expands its holding in the pot-in-the-luggage case by reasoning that immigration checkpoints are the “functional equivalent” of the U.S. border. The SCOV comes to this conclusion by adopting the same reasoning from the luggage casethe federal interest in safeguarding the U.S. border is preeminent and outweighs Vermont’s interest. Vermont now has a 100-mile-deep national border that runs pretty much right through the middle (east to west).

The SCOV also does not reach the question of whether the actions were in fact contrary to the state constitution if state law enforcement performed the search and seizure as the federal agents did.

Essentially, the SCOV won’t consider possible state constitutional violations if it is clear that federal agents complied with the U.S. Constitution in searching for or seizing evidence. In other words, anything obtained by federal agents operating under federal law becomes knowledge that can be shared with the state in its prosecution.

The SCOV’s opinion is wanting. The SCOV dismissed the state interest by reasoning that it is outweighed by the federal interest in preserving the safety of our borders, but what exactly is the state interest? Is it the interest of providing additional protection for Vermont’s citizens (and those within its borders) with Article 11 of the Vermont Constitution? If so, it would seem that overcoming such an important interest would demand a better articulated set of state v. federal interests. And what does preserving our borders have to do with state prosecution of individuals for possession of marijuana? ICE declined to prosecute Mr. Rennis; if the SCOV had demanded protections from the state constitution in the state’s prosecution, it would not have interfered with the federal government’s interest in preserving our borders.  

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