This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40
On Appeal from Superior Court, Windsor Unit, Criminal Division. M. Kathleen Manley, J. (motion to suppress); Theresa S. DiMauro, J. (final judgment).
William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.
Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.
Present: Reiber, C.J., Dooley, Skoglund and Robinson, JJ., and Crawford, Supr. J., Specially Assigned.
[¶1] Defendant appeals the decision of the superior court, which held that evidence seized by federal border patrol agents in compliance with the Federal Constitution and federal border patrol policies may not be suppressed based on an alleged violation of Article 11 of the Vermont Constitution when offered by the State in a state prosecution. We affirm.
[¶2] The facts of this case are not in dispute. The U.S. Border Patrol maintains a checkpoint in Hartford, Vermont, south of the intersection of highways I-91 and I-89 and approximately ninety-seven miles south of the Canadian border. The purpose of the checkpoint, as stated by the trial court, is " to locate and apprehend individuals and/or contraband that have entered the country illegally." When operational, the checkpoint consists of a " primary inspection," through which all vehicles on I-91 South must pass and occupants must answer questions about their citizenship, and a secondary inspection site in an adjoining rest area, to which vehicles may be diverted for a longer inspection based on what occurred during the primary inspection.
[¶3] Defendant, travelling south on I-91, was stopped at the primary inspection site. The Border Patrol agent on duty asked him about his citizenship, and defendant responded that he was a U.S. citizen. On hearing defendant's accent, the agent asked defendant where he was born, and defendant said he was born in Jamaica. The agent again asked defendant about his citizenship, and defendant said he was a citizen of Jamaica, but a legal permanent resident of the United States. Defendant did not have his immigration papers with him, which is a misdemeanor under federal law. 8 U.S.C. § 1304(e). The agent also thought he smelled burnt marijuana in the vehicle and asked defendant if he had been smoking marijuana or if there was any marijuana in the car. Defendant said no. Based on this interaction, the agent asked defendant to pull his car onto the ramp of the rest area leading to the secondary inspection site.
[¶4] On the ramp leading to the rest area, another agent with a trained drug-detection dog ran the dog around the car, and the dog did not alert. Defendant got out of his car. The dog entered the car and began to bark. This conduct was apparently contrary to its trained drug-alert response, which was to sit down. During the dog sniff, defendant admitted to the dog handler that he had smoked marijuana in the car.
[¶5] Defendant was told to drive further into the rest area, to the secondary inspection point. The original ...