Two Vermont residents challenge legality of warrantless search by Border Patrol in Vermont state court

On August 12, 2018, Brandi Lena-Butterfield and Phillip Walker-Brazie were stopped by Border Patrol agents conducting a “roving patrol” in a Vermont town near the Canadian border. The agents asked for consent to conduct a search of the vehicle, which Lena-Butterfield and Walker-Brazie denied. The agents then conducted a search of the vehicle anyway, believing they had probable cause to proceed, and encountered small amounts of marijuana and hallucinogenic mushrooms that they believed to be in excess of state limits. They called the Vermont State Police, and charges were bought against both individuals by the Orleans County State’s Attorney’s Office.

Vermont’s constitution provides stronger protections for individual privacy than federal law and calls for a warrant or probable cause with urgent circumstances in order for law enforcement to conduct searches. As the Border Patrol agents did not comply with Vermont state protections, counsel for plaintiffs argue that the evidence seized cannot be used in state-level criminal prosecution.

The ACLU-VT is appealing the criminal charges against Walker-Brazie and Lena-Butterfield to the Vermont Supreme Court. In November 2019, a superior court judge in Orleans County ruled in favor of ACLU-VT’s request to file an interlocutory appeal, which allows them to ask for a ruling from the Supreme Court before the lower court case is complete. The justices heard arguments on December 15, 2020.


Counsel: American Civil Liberties Union of Vermont

Contact: Jay Diaz | ACLU-VT

Mireles v. Riano, et al.

Mireles v. United States Customs and Border Protection Agent Riano in his individual capacity and the United States of America, No. 1:13-cv-00197 (S.D. Tex., filed Oct. 21, 2013)

Laura Mireles brought this lawsuit against the United States and a CBP officer for violations of her Fourth Amendment rights as well as Texas state law after the officer used unwarranted force and physical abuse before arresting her without any justification at the U.S.-Mexico border.

Ms. Mireles is small in stature, approximately 5’1” tall and 100 pounds, and has a visible malformation of her hands and feet. She has worked at a store on the U.S. side of an international bridge in Brownsville, near the CBP inspection station, since 2005. On November 5, 2012, Ms. Mireles crossed to the Mexican side of the bridge for roughly 15 minutes to pick up keys to lock the store. After she closed the store, CBP Officer Riano stopped Ms. Mireles and searched her car. Ms. Mireles did not interfere with the search and no illegal items were found. Yet the officer became agitated and reacted violently when Ms. Mireles asked him about his search of her handbag. He grabbed her with both hands and threw her onto the ground with such force that her jeans ripped open at the knee and she suffered a large knee wound as well as several cuts and abrasions on her elbows; the officer put his full weight—roughly double that of her own—on Ms. Mireles’s small frame and handcuffed her so tightly that the fire department later had to be summoned to cut the handcuffs from her wrists. Ms. Mireles, who was understandably confused, scared, and crying, asked the agent to explain what was happening. He responded by threatening to hit her if she didn’t “shut up.” After being treated by paramedics for her injuries, Ms. Mireles was released from custody without being charged with an offense.

Ms. Mireles first filed a formal administrative complaint with CBP in March 2013, seeking damages for the serious harm she suffered as a result of Officer Riano’s unlawful actions. That complaint was denied a little more than a month later without explanation. Ms. Mireles subsequently filed suit in federal district court, alleging claims against the United States under the Federal Tort Claims Act (FTCA) and constitutional claims against Officer Riano pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

The United States moved to dismiss, arguing that it had not waived sovereign immunity under the FTCA based on the customs-duty exception set forth in 28 U.S.C. § 2860(c). Officer Riano sought dismissal based on qualified immunity. Adopting the Magistrate Judge’s Report and Recommendation, the Court found that it lacked jurisdiction to consider the FTCA claims because the United States has not waived sovereign immunity under the customs-duty exception for “[a]ny claim arising in respect of …the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer.” 28 U.S.C. § 2860(c), The Court denied Officer Riano’s Motion to Dismiss, finding that Riano had “violated Mireles’s established constitutional rights,” and was thus not entitled to qualified immunity.

On May 3, 2016, the district court stayed the case pending the outcome of Simmons v. Himmelreich, a Supreme Court case dealing with whether the dismissal of a claim against the U.S. on the basis of an FTCA exception effectively bars separate Bivens actions against individual federal employees because of the FTCA’s judgment bar provision. The Supreme Court unanimously held in June 2016 that the FTCA’s judgment bar provision does not apply, and thus does not affect the claims against the individual defendants. On July 29, 2016, a magistrate judge issued a report and recommendation finding Defendant Riano was not entitled to qualified immunity and recommending the denial of his motion for summary judgment. On September 15, 2016, the court adopted the report and recommendation, and in October of 2016, the parties stipulated to dismiss the case.


Counsel: ACLU of Texas | Law Office of Gilberto Hinojosa & Associates, P.C. | University of Texas School of Law Civil Rights Clinic

ContactTom Hargis | ACLU of Texas | 832.291.4776 | (press)
Edgar Saldivar | ACLU of Texas | (legal)