By Alan J. Keays, VTDigger
RUTLAND — A Vermont judge has rejected a Rutland man’s challenge to the “sniff test,” ruling the smell of marijuana alone does provide probable cause for police to search a vehicle.
“Vermont’s decriminalization statute explicitly states that it leaves unchanged marijuana’s ability to furnish probable cause. The national consensus is that the mere smell of marijuana supports probable cause,” Judge Helen Toor wrote in a recent ruling in a lawsuit in Rutland Superior Court.
“The court must presume that the Legislature knew what the status quo was when deciding to maintain it,” the judge added. “It is beyond the province of this court to challenge that decision.”
The ruling stems from a 2014 lawsuit brought by the Vermont chapter of the American Civil Liberties Union on behalf of Greg Zullo, of Rutland. The suit alleged a state police trooper improperly impounded and searched Zullo’s vehicle, leaving him in Wallingford, eight miles from his home. The video of the traffic stop can be seen on YouTube.
Zullo was also left to pay a $150 tow fee after his car was impounded in Wallingford and taken to the state police barracks in Rutland to be searched. No criminal charges were ever filed against Zullo.
The judge, in her ruling issued this month, granted summary judgment to the state, tossing out the lawsuit.
“We are evaluating our options at this point,” Lia Ernst, an attorney for the ACLU of Vermont who represented Zullo, said Thursday, May 18. Those options include appealing the decision to the Vermont Supreme Court, she said.
“We’re disappointed in the outcome, of course,” Ernst added. “We think that Mr. Zullo had really strong claims and that he had provided sufficient evidence to support those claims to allow them to go to a jury.”
Assistant Attorney General Eve Jacobs-Carnahan, who represented the state, said that she was pleased with the judge’s ruling.
“The court ruled in favor of the state because it found that the trooper had probable cause to order the driver out of the car, to seize the car, and to search for marijuana,” Jacobs-Carnahan said.
The ACLU of Vermont also asked the judge to grant summary judgment in favor of its client, which was denied as part of the ruling.
“Both parties submitted motions for summary judgment on very similar fact patterns,” the judge wrote in a footnote to her decision. “There are disputes of fact regarding some details of certain claims. Those facts are not material to the outcome here.”
Zullo’s lawsuit challenged whether police could continue to use a “sniff test” after the state in 2013 decriminalized possession of an ounce or less of marijuana. Possession of that amount carries a civil fine.
“The Vermont Supreme Court has not squarely held that the smell of marijuana, alone, gives probable cause to support a warrant. However, the national trend has been to hold that it does,” Toor wrote in her ruling.
The judge added, “Because Trooper Hatch could smell marijuana coming from Zullo’s car, and that smell gave probable cause to seek a warrant, Trooper Hatch was within his authority to tow and hold Zullo’s car until the warrant issued.”
The lawsuit revolves around a March 2014 traffic stop as Zullo was driving through Wallingford and was pulled over by then-Trooper Lewis Hatch of the Vermont State Police. The reason cited for the stop, according to the lawsuit, was that the back bumper of Zullo’s vehicle had snow on it, making it hard to read part of the validation sticker on the license plate.
Hatch has since been dismissed from his job, Seven Days reported last year, and he has an appeal pending before the Vermont Labor Relations Board. Zullo’s lawsuit names only the state as a defendant and not Hatch.
According to the lawsuit, the trooper said that around Zullo’s car he could smell a faint odor of burnt marijuana. Zullo did tell Hatch, according to the lawsuit, that he smoked marijuana within the previous two or three days.
Zullo agreed to a search of his person, which yielded no evidence, court records state. Also, the judge’s ruling stated the conversation between Hatch and Zullo “dispelled suspicion” that Zullo was under the influence of marijuana at the time of the stop.
Zullo refused to allow a search of the vehicle. Police impounded the vehicle, towing it to the state police barracks in Rutland, and obtained a search warrant. Inside the vehicle, according to the lawsuit, police found a grinder and a pipe that police said contained marijuana residue.
After the vehicle was impounded, the lawsuit said, Zullo was left on the side of the road and he had to hitchhike the eight miles from Wallingford to his home in Rutland.
“For reasons that are unclear, Trooper Hatch did not deploy his drug canine to search the car at the roadside stop, although the dog was in his patrol car,” the judge added in another footnote to her ruling.
Toor’s decision says Hatch offered to drive Zullo to a nearby gas station, and Hatch also asserted that he offered to drive Zullo to the state police barracks. Zullo disputes that claim of a ride to the barracks, court records state.
Ernst said Zullo did not accept a ride to the gas station because without his cellphone and wallet there was no benefit in going there. “The trooper wouldn’t let him retrieve his cellphone or his wallet from the car,” the attorney added.
Ernst suggested Thursday that racial profiling may have been a factor in the stop. Zullo is African-American. She said many cars in Vermont on that winter day would have had snow on their license plates that could have obscured a registration sticker.
“We question why the officer choose this particular car to pull over when almost every single car would have been in the same situation. The one difference that stands out is Greg’s race,” Ernst said.
Police seen from a review mirror.