[A] man who lost a lawsuit alleging his car was improperly seized in 2014 after police caught the scent of burnt marijuana officially took his fight to the Supreme Court on Monday.
The American Civil Liberties Union filed the appeal on behalf of Gregory Zullo, a black man from Rutland. Police say then-state Trooper Lewis Hatch stopped Zullo’s car because part of the license plate was obscured by snow, and impounded it after smelling marijuana in the vehicle.
The ACLU says police are being dishonest about the reason for pulling him over, and acted illegally in seizing his car, as there was no evidence that he possessed marijuana or was under the influence.
“This case was always about racial profiling from the moment that Trooper Hatch laid his eyes on our client,” Lia Ernst, an ACLU attorney representing Zullo, said during a press conference after filing the appeal.
The appeal notes that a law requiring that registration stickers remain unobstructed was passed after the incident.
Hatch was later dismissed from his job with the state police over a history of conducting “illegal searches,” often against black men, Seven Days reported in 2016.
Ernst said the other issue raised by the case — whether the smell of marijuana is sufficient to suspect criminal activity — would be particularly important to address with the recent passage of a bill legalizing the recreational use of pot.
“The same question will arise in the legalization phase: Does some evidence of marijuana having been present at some time … ever provide enough cause to reasonably believe that there’s a crime currently happening? And our answer is no,” Ernst said.
In the initial decision rejecting Zullo’s lawsuit, Rutland Superior Court Judge Helen Toor took the opposite position.
“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,” her decision read.
Toor noted that the state’s Supreme Court had not come down clearly on the issue, but said the national trend was in favor of the “sniff test” giving probable cause.
After having his car seized, Zullo was left to hitchhike eight miles to his home and pay a $150 tow fee, but police never filed charges in the case.
A video of the police stop was posted to YouTube and has been viewed more than 65,000 times.
Assistant Attorney General Eve Jacobs-Carnahan, who has represented the state in the case, declined to comment on the ACLU’s appeal until she had time to review the latest brief.
Ernst said the state has 21 days to file its own brief responding to the appeal, at which point the ACLU will respond with a closing brief and then leave it to the Supreme Court to schedule oral arguments in the case.
