State News
August 23, 2017

Suit over police use of “sniff test” goes to Vt. top court

By Alan J. Keays, VTDigger

A lawsuit over a traffic stop in Wallingford and subsequent vehicle search that police justified based on a whiff of marijuana is heading to the Vermont Supreme Court.

The Vermont chapter of the American Civil Liberties Union (ACLU) sued the state in 2014 on behalf of Gregory Zullo of Rutland, alleging a state trooper improperly pulled over, searched and impounded his vehicle.

The video of the traffic stop, posted on YouTube by the ACLU, has had more than 63,000 views.
A judge earlier this year granted summary judgment to the state, throwing out the lawsuit. Now the ACLU is appealing to the state’s highest court on Zullo’s behalf.

Formal arguments have not been filed in the appeal. However, the ACLU did submit a “docketing statement” to the Vermont Supreme Court on Friday afternoon, Aug. 19, briefly highlighting issues in the case.

“In March 2014, Plaintiff Gregory Zullo, an African-American Vermonter, was stopped in his car by then-state Trooper Lewis Hatch without lawful cause. Subsequent to the stop, Hatch ordered Mr. Zullo to exit his car based on the alleged faint odor of burnt marijuana,” the filing reads.

“Hatch seized Mr. Zullo unnecessarily for an hour and had Mr. Zullo’s car towed to the barracks for a search, which revealed no contraband. To retrieve his car, Mr. Zullo walked and hitch-hiked eight miles home through sub-freezing temperatures, waited several hours at the barracks, and was forced to pay a $150 fee.”

No criminal charges were ever filed, according to the lawsuit.

Hatch has since been dismissed from his job with the state police, Seven Days reported last year, and he appealed to the Vermont Labor Relations Board. The status of that appeal was not immediately available. Zullo’s lawsuit names only the state as a defendant and not Hatch.

The issues raised in the appeal, says the ACLU filing, center on the reasoning for the stop and whether the faint smell of marijuana warranted a search of the vehicle.

“From the beginning, Greg’s motivation and goal has always been making sure nobody else goes through what he had to go through,” Lia Ernst, an attorney for the ACLU of Vermont who represents Zullo, said Friday.

“We’re going to keep pushing this issue, to ensure whether it’s through the court or through the Statehouse, that these sort of pretextual stops cease to be the norm here in Vermont.”

Assistant Attorney General Eve Jacobs-Carnahan, who has represented the state in the case, could not be reached for comment Friday.

According to the lawsuit, a registration sticker on the back license plate that the trooper said was obscured by snow was cited as a reason for stopping Zullo’s vehicle in March 2014 on Route 7 in Wallingford.

Ernst suggested Friday that racial profiling may have been a reason for the stop.

“We believe that the circumstances of the stop make it hard to find another reason,” she said. “When the alleged reason for the stop is something that nearly every vehicle driving in Vermont in winter would be in the same condition, we have to ask why stop this vehicle and not some other vehicle.”

At the time of the traffic stop, Ernst said Friday, having an obscured validation sticker was not a violation. That law has since changed, and the sticker must now be visible, along with the digits and letters on the plate.

One of the questions raised in the appeal, according to the ACLU’s filing with the Vermont Supreme Court, is whether a “reasonable mistake of law, to the extent one exists in this case, can reasonably justify a traffic stop” under the Vermont Constitution.

Ernst said Friday of that issue, “That is a question that has not been answered by the Vermont Supreme Court.”

In addition to issues surrounding the traffic stop, the ACLU’s appeal challenges 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,” Judge Helen Toor wrote in granting summary judgment to the state and throwing out the case.

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 was issued.

The ACLU, in its filing Friday, asks that the appeal be heard by the entire five-member court and not fast-tracked and decided by a three-member panel.

“(T)he issue of whether an officer or court can treat someone believed to possess a decriminalized amount of marijuana as a criminal is an issue of substantial public interest,” the filing says.

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