[T]he Vermont Supreme Court on Wednesday heard arguments on Wednesday in a lawsuit that may decide the legality of the “sniff test” — whether a state police trooper legally could order the search of a motor vehicle he had pulled over because he caught a whiff of marijuana.
The lawsuit pits the Vermont chapter of the American Civil Liberties Union, representing the driver of the vehicle, Gregory Zullo of Rutland, against the Vermont Attorney General’s Office, backing the actions of the state trooper who pulled him over on a snowy day in March 2014.
While the focus of the case is the validity of the so-called “sniff test” — whether catching a whiff of pot justified the trooper’s seizure of the car — of equal interest has been the subplot that the trooper who initiated the traffic stop that led to the seizure and search of the vehicle was engaging in racial profiling.
Zullo is African-American. He was never charged, and the police search of his vehicle found no evidence of marijuana. The state trooper who made the traffic stop, Lewis Hatch, had a history of questionable searches often involving black men, has since been dismissed from his job with the state police, Seven Days reported in 2016.
The case has attracted a great deal of attention online, with a video of the traffic stop posted on YouTube by the ACLU generating 66,456 views. And the question of the “sniff test” promises to become more pertinent in a month with Vermont set to legalize the possession of up to an ounce of marijuana, starting July 1.
The lawsuit, which the ACLU filed on Zullo’s behalf, was initially thrown out last year by a state trial court judge whose decision to grant the state’s motion for summary judgment amounted to an affirmation of the “sniff test” standard.
The ACLU appealed, and the result was a lively hearing on Wednesday before the Vermont Supreme Court.
The five members of the high court engaged the attorneys on both sides with questions and follow-ups.
Justice Beth Robinson asked Lia Ernst, a staff attorney with the ACLU of Vermont, whether the “whiff of recently burning” marijuana coming from inside a car provides “reasonable suspicion” for a trooper to ask a driver to exit a vehicle to evaluate possible impairment.
No, said Ernst, adding that in this case the trooper had followed the vehicle for some distance before pulling it over. He did not report noticing erratic driving or other telltale signs such as slurred speech or blurred eyes when he spoke to Zullo after pulling him over.
In its appeal, the ACLU specifically challenged police authority to continue using the “sniff test” in light of the 2013 state law decriminalizing possession of an ounce or less of marijuana. Decriminalization reduced the penalty for possession to a civil fine.
Asked by Robinson to address the decriminalization issue, Assistant Attorney General David R. Groff said the decriminalization statute “specifically says that it’s not intended to affect search and seizure” laws.
“What power does the Legislature have to tell us how to interpret the constitutionality of search and seizure,” Justice Robinson quickly shot back.
Groff later said that Lewis Hatch, the state trooper who pulled over Zullo’s vehicle, could smell marijuana coming from the car, but would have had no way of knowing whether there had been less than an ounce, or more than an ounce inside the car.
“He acted properly by taking the car and obtaining a search warrant,” Groff told the high court.
“Did they find marijuana or did they find residue in a pipe?” Robinson asked.
“Any amount of marijuana is illegal,” Groff responded.
“Residue already consumed?” Robinson questioned.
Groff said he wasn’t sure that was a legal question that had been “explicitly” answered.
“Isn’t it, if it has tested positive for THC?” asked Justice Karen Carroll, referring the active ingredient in marijuana.
“I believe that’s the case,” the attorney for the state replied.
In filings with the Vermont Supreme Court, the ACLU laid out some of the background of its case, beginning with the March 2014 traffic stop in Wallingford.
Zullo had just finished work at Pico Ski Resort in Killington and was traveling to Wallingford to visit a friend, according to the ACLU.
“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 continues: “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 ever were filed, according to the lawsuit.
Rutland Judge Helen Toor, in tossing out the case, dismissed the ACLU argument challenging the legality of the “sniff test.”
“Because Trooper Hatch could smell marijuana coming from Zullo’s car, and that smell gave probable cause to seek a warrant,” her decision read, “Trooper Hatch was within his authority to tow and hold Zullo’s car until the warrant issued.”
The judge added that while the state Supreme Court hadn’t ruled clearly on the matter, the national trend was toward allowing probable cause through a “sniff test.”
According to the lawsuit, a reason the trooper cited for stopping Zullo’s vehicle, was that a registration sticker on the back license plate was obscured by snow.
Ernst suggested on Wednesday that in choosing to pull over Zullo’s car, the trooper was engaging in racial profiling.
‘Trooper Hatch pulled him over for something that a) wasn’t even a violation of law, and b) even it were violation of law, it’s next to impossible in Vermont in March to not have some snow on your license plate,” she said.
‘Why did Trooper Hatch pick our client rather than any other car with snow on its license plate, we can draw our own conclusion from that.”
She added the appeal does not include the additional claim of racial profiling because the case before the high court was intended to address specific constitutional issues regarding search and seizure.
At the time of the traffic stop, Ernst told the justices Wednesday, 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.
Groff disputed this, telling the high court that a visible registration sticker was a requirement at the time of the stop.
“Support for this reading comes from the standards for inspecting motor vehicles,” the state’s filing before the high court read. “A violation of the Vermont Periodic Inspection Manual may be a legitimate basis for a traffic stop.”
The filing from the state added, “The manual specifically addresses license plates and registration, requiring the inspector to ‘[i]nspect license plates to see they are securely mounted and are clean and clearly visible.’”
Ernst is asking to have the case reinstated and for a jury eventually to award her client damages for the violations of his constitutional rights.
Asked how much she is seeking in damages, Ernst replied, “Ultimately, it’s up for a jury to decide.” However, she said, the more important point is to keep what happened to her client from happening to others.
Zullo said after the hearing he was happy to have the high court hear his case, and added that he hoped it would provide “some sort of essence of justice.”
He added, “It doesn’t seem fair for Vermont citizens to have to go through this.”
