The highest court in Vermont is now due to rule in a case involving whether simply smelling weed constitutes sufficient legal grounds to search drivers and seize their vehicles. Back in 2014, Vermont officers claimed that Greg Zullo was driving with a partially snow-obscured license plate. After pulling him over, a state trooper smelt cannabis and wanted to search his car, but Zullo refused.
In response, the officer seized the vehicle and towed it away, leaving Zullo freezing in the dead of winter at least eight miles from home. The trooper, Lewis Hatch, already paid for the illegal stop with his job, and in a letter written to Hatch five months before firing him, Public Safety Commissioner Keith Flynn relied on Hatch’s long history of conducting illegal searches to say the following to him:
“You have again placed your personal pursuit of drug detection above all else, including your duty to follow orders and your duty to properly and thoroughly document the objective legal justification for your actions.”
Now, with the case about to set a statewide precedent, the Vermont Supreme Court must decide whether there was cause for the stop in the first place and if the simple aroma of fine weed can justify a police search. The case also considers race. Representing Zullo, an African-American, his advocates from ACLU of Vermont are arguing that the stop was, at least to some degree, motivated by his skin color.
In Vermont, a license plate obscured by snow is not a severe enough violation to warrant officers pulling drivers over, and studies, including some conducted in Vermont; find black men particularly more likely than anyone else to be searched by officers after a traffic stop. Zullo’s ACLU attorney representative, Lia Ernst, told the VTDigger website back in May:
“We question why the officer chose 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.” Mark Davis, a Seven Days reporter who has been closely monitoring the case, told Vermont Public Radio that the ex-trooper, Hatch, had a history that appears to target black men in disproportionate numbers.
Zullo, who at the time of the stop was just 21-years old, had to fork out a $150 towing fee. According to the lawsuit, after eventually searching the car, officers found only a grinder and a pipe allegedly containing marijuana residue. However, Zullo never received a ticket and was never charged with a committing a crime.
After initially filing the suit, the Superior Court ruled against Zullo. Judge Helen Toor wrote that just the smell of marijuana, the so-called ‘sniff test,’ does actually constitute sufficient probable cause to search vehicles. She wrote, “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 weed supports probable cause.”
However, the ACLU responded by appealing the case to the state Supreme Court. In a 1982 traffic stop opinion, U.S. Supreme Court Justice, Sandra Day O’Connor, established the “plain smell doctrine.” The police person smelt marijuana on the driver, and subsequently searched his vehicle to find marijuana hidden in the trunk. However, it did not establish this doctrine nationwide.
Courts left the decision to adopt or dismiss the doctrine to individual states. Many chose to use the smell of marijuana to justify probable cause. However, many explicitly rejected it, including Montana and Michigan. However, as laws continue to change throughout the states, more and more are beginning to question the rule.
For example, a recent appeals court in Colorado held that smelling weed alone is not enough to warrant a vehicle inspection. Similar opinions have come out of California and Arizona courts, although the Arizona Supreme Court overturned a lower court’s ruling in July 2016, and in doing so, reaffirmed that state troopers could search vehicles because of smell alone.
We can only expect a ruling in the Vermont case sometime next year.