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Vermont ruling says scent of burnt marijuana is not probable cause for search, seizure

Gregory Zullo, center, at the Vermont Supreme Court in May 2018.
Gregory Zullo, center, at the Vermont Supreme Court in May 2018.(Henry Epp/Vermont Public Radio)

The faint scent of burnt marijuana is no longer justification for a police officer in Vermont to search or seize a person’s property, according to a Vermont Supreme Court ruling earlier this month that activists say is a “step toward eliminating racial disparities.”

The marijuana decision was part of a larger ruling on Jan. 4 that took a closer look at violations of the Vermont Constitution, determining the state can be held liable for violations surrounding the search and seizure of private property. It also determined that people can seek damages from any governmental agency that violates that search-and-seizure provision.

The case centered around Gregory Zullo, an African-American man from Rutland, Vt., who was pulled over in a traffic stop in March 2014. Zullo, who was 21 at the time, was driving in Wallingford when Vermont state Trooper Lewis Hatch stopped him because he said his registration sticker was partially covered with snow. Hatch reportedly smelled a faint odor of burnt marijuana, asked Zullo to exit the vehicle, and ultimately seized his car.

Driving without a registration sticker was not a traffic violation in Vermont at the time, though that has since changed.

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Zullo exited his car when he was asked, but Hatch did not ask him to take a field sobriety test before requesting to search him. Zullo consented to that, too, but nothing was found.

Hatch then asked to search Zullo’s car, telling him the car would be towed to the State Police barracks if he did not agree. Zullo refused. The ruling said Hatch declined to give Zullo a ride to his Rutland home, but offered to drop him off “at a nearby gas station or call someone to pick him up.”

“Plaintiff declined these offers, and he wound up walking and hitchhiking to his home eight miles away,” the ruling states.

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“It shouldn’t have happened to me,” Zullo said in a phone interview Sunday.

Zullo said he wasn’t even initially told why he was pulled over, but he did feel he was being treated differently because of the color of his skin.

“I know not everybody would be asked out of the car, and they wouldn’t be searched like I was,” he said.

At the barracks, troopers found a metal grinder and a small pipe with marijuana residue inside the vehicle’s trunk. “No evidence of a criminal offense” was found.

“I felt so defeated,” Zullo said. “There was nothing immediately I could do.”

Vermont decriminalized small amounts of marijuana — under an ounce — in 2013, and as of July, adults in Vermont are allowed to possess and grow marijuana.

The court determined the seizure of Zullo’s car violated his constitutional rights and that “the trooper’s initial detection of the faint odor of burnt marijuana . . . did not, in and of itself, create a fair probability that marijuana would be found in the vehicle.”

The American Civil Liberties Union of Vermont, which represented Zullo, called the case a “landmark ruling.”

Lia Ernst, who argued the case in May, said the ruling is one less hook officers can use to justify “invasive searches.”

“Officers have enormous discretion, and different officers are going to exercise it differently,” she said. “What this case says is you don’t get to exercise that discretion based solely on the faint scent of burnt marijuana.”

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In many cases, Ernst said, officers use their discretion in ways that disproportionately harm people of color, and cases like these can only work to decrease discriminatory searches and seizures.

“Anything that places restraint on officer discretion is going to . . . help people of color,” she said.

Zullo said the “whole reason” he pursued the case was so “nobody else would have to go through the same kind of things” he did, particularly the next generation of people who will be “ostracized because of what they look like.”

With the Vermont Supreme Court’s decision, the case will now go back to the lower court for further proceedings.

“I didn’t think we would get this far, and the fact that we did is really humbling,” Zullo said. “I didn’t think I would be able to do something to the extent of what this would mean for the entire state.”

In Massachusetts, a similar decision was reached in 2011, when the state’s highest court ruled that the odor of marijuana smoke alone was not enough to order someone to get out of their parked car. A 2014 case determined officers could no longer rely on the scent of unburnt marijuana as probable cause to search a car.

On the other hand, a ruling from the state Supreme Judicial Court on Monday determined that if an officer observes behavior indicating the driver is under the influence and the car smells like marijuana, an arrest is justifiable. The ruling also stated that officers can search the vehicle for “evidence pertaining to the offense of operating a motor vehicle while under the influence.”

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Michael Cutler, a Northampton lawyer who wrote an amicus brief on behalf of the National Organization for the Reform of Marijuana Laws in the 2014 case, said that the “heart of these cases” is that the smell of marijuana can’t be equated with possessing an illegal amount of the substance.

“In order to have probable cause to believe that a crime has been committed, you’ve got to demonstrate that a greater amount of cannabis [is in a person’s possession],” he said. “You’ve got to have probable cause to believe a crime has been committed, not that a civil infraction has been committed.”

As far as what’s next for Vermont, Cutler said prosecutors and law enforcement officials would be wise to look at Massachusetts court cases and determine how they want to move forward to avoid similar lawsuits in the future.

“Prudent lawyers and more particularly, prudent prosecutors, should be able to look at where Massachusetts went and predict where Vermont is going and help train Vermont law enforcement not make the same mistake that state law enforcement made in Massachusetts,” he said.


Felicia Gans can be reached at felicia.gans@globe.com. Follow her on Twitter @FeliciaGans.