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Vermont’s Supreme Court to Consider Cannabis ‘Sniff Test’

August 25, 2017
(kali9/iStock)
Vermont’s highest court is set to consider a case involving whether the simple smell of cannabis constitutes legal grounds to search and seize a driver’s vehicle.
In 2014, police in Vermont pulled over driver Greg Zullo, claiming his license plate was partially obscured by snow. After approaching Zullo’s car, a state trooper claimed he could smell cannabis and asked to search the vehicle. Zullo refused. So the trooper seized the car and towed it—leaving Zullo stranded eight miles from home in the dead of winter.

The stop has already cost trooper Lewis Hatch his job. “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 objective legal justification for your actions,” Public Safety Commissioner Keith Flynn wrote in a letter to Hatch five months before the officer was fired, relying on documents indicating Hatch had a history of conducting illegal searches.

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Now, in a case that could set sweeping precedent statewide, the Vermont Supreme Court will consider whether the stop was warranted—and whether the simple smell of cannabis can justify a search.

The case also turns on race. The ACLU of Vermont is representing Zullo, who is black, and argues the traffic stop was motivated at least in part by the color of his skin. A snow-obscured license plate isn’t a violation that allows officers to pull over a driver in Vermont, and studies—including some out of Vermont—have found that black men in particular are more likely than others to be searched after traffic stops.

“We question why the officer choose 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,” Lia Ernst, an ACLU attorney representing Zullo, told the website VTDigger in May. And Mark Davis, a reporter at Seven Days who’s been following the case, told Vermont Public Radio that Hatch, the former trooper, appeared to have a history of disproportionately targeting black men.

 

 

Zullo, who was 21 at the time of the stop, was left to pay a $150 towing fee. When authorities eventually searched the vehicle, according to the lawsuit, they found a grinder and a pipe that police said contained cannabis residue. Zullo was never ticketed or charged with a crime.

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After the suit was initially filed, Superior Court Judge Helen Toor ruled against Zullo, writing that the smell of cannabis alone—a so-called sniff test—does indeed provide probable cause to search a vehicle. “Vermont’s decriminalization statute explicitly states that it leaves unchanged marijuana’s ability to furnish probable cause,” she wrote. “The national consensus is that the mere smell of marijuana supports probable cause.”

In response, the ACLU appealed the case to the state Supreme Court.

US Supreme Court Justice Sandra Day O’Connor established the “plain smell doctrine” in a 1982 opinion involving a traffic stop. The officer smelled cannabis on the driver, which led to a search of his car and the discovery of cannabis in the trunk.

O’Connor’s opinion in that 1982 case, United States v. Haley, didn’t establish the plain small doctrine nationwide. The court left it open to each state to adopt or dismiss the doctrine.

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In many states, court precedent has indeed maintained that the smell of cannabis suffices as probable cause. Others, including Michigan and Montana, have expressly rejected it.

And as laws change, more states are beginning to second-guess the rule. In Colorado, for example, an appeals court recently held that the smell of cannabis alone isn’t enough to justify a vehicle search. Courts in Arizona and California have issued similar opinions, although in July 2016 the Arizona Supreme Court overturned a lower court’s opinion and reaffirmed that smell alone could justify a search in that state.

A ruling in the Vermont case isn’t expected until at least next year.

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Ben Adlin

Ben Adlin is a senior editor at Leafly who specializes in politics and the law. Follow him on Twitter: @badlin

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  • Sandy Fields

    Lone adult (white) female driver’s (I was in a rented Crown Victoria) are also profiled in AZ. The Barney Fife hwy patrol requested k9 when I refused search. No legitimate reason for pulling me over other than “I fit the profile” of a drug runner. he actually said that!

    • Raymond Bell

      Cops suck

  • familyguy

    Police are just given too many petty reason for stopping people and in far too many cases given the benefit of the doubt. Evidence planting is almost never questioned and it seems that their body cams are conveniently off whenever it suites them best. Always assume your life is in danger when stopped by an officer because I can assure you he is not stopping you because he wants to help. The laws and courts of this country are never fair for a average citizen. The over used line about putting their lives on the line is about the biggest line of baloney fed to everyone in the nation. No one has forced them to take this job and the individual wanting these jobs know that the legal and illegal benefits of the job are tremendous including a get out nail free for every situation cops are never or seldom convicted of any crimes including murder. The only time officers are in danger is because they create the situations themselves.

    • Legalize420

      I want to say this is precisely how I feel. When you take a job or pisition that supports danger, your taking it with full knowledge and reason. Ask ANYONE. They will agree they didn’t get injured because they WANTED to. THE HERO portrayal in just about anything is honestly bullshit IMO. These people are in the positions for the exact benefits familyguy mentions. If they didn’t give them, I guarantee just about every cop and person in power over others would quit if they we’re taken away. Everything familyguy says here is correct. They wouldn’t be in that line of work if it wasn’t for the benefits. They even admit to it. They know full well everything about what they are doing and why.

      In response to article,

      In MA anyway I do no not believe this can happen though I will admit I have no knowledge of if it does or does not. I don’t remember it being legal though to my knowledge to search plainly over smell.
      We ALL know that HONESTLY every single stop that involves smell is either morally, or biasly done. I mean I know I reek of cannabis all the time(I’m a medical patient I know it doesn’t matter though) and I’ve never been searched but laws are different here so maybe it’s just me. In reality though while I am an ardent and very outspoken user and supporter of cannabis, I feel honestly smell should never lead to search as it shouldn’t matter one way or the other as it’s just a smelly plant such as those who have lots of lavandeer or other plants with essential oils naturally in them, so does cannabis. It’s just a fact. Anyone with the plants or oils is gonna smell like them. Cannabis is the easiest known psychoactive plant to detect(because of it’s terpines) and we all know this, so of course if the person likes the rewards they will accept then “danger” involved. That does not constitute being
      If this is reversed it will be very sad.

      Point is, cannabis stops in generial are biasly done and if it weren’t what was in it for them they wouldn’t be there. All of this is sad to hear especially in New England. If a bill doesn’t explicitly ban smell though I guess it could realistically be considered in that state but again as familyguy said…these guys do what they do with knowledge of what they do. If the rewards weren’t there, they wouldn’t accept the risk and smell alone is not nor should ever be enough to justify a search.

  • picomanning

    When I was in high school we learned that burning Lipton tea would smell just like pot.

  • MV 1967

    All laws regarding Cannabis should be totally repealed, all non-violent prisoners released. Humanity is very lost in BS.

  • Kristofor Gullickson

    No way……it will never hold up…….That is like saying everyone “Sniffer” is exactly the same……Too many variables to consider, way to many…….It should be challenger right away……..Look up Robinson v California……..This way a landmark Supreme Court ruling that should be applicable here, if not then and other reference deriving from Robinson v California should apply as well……..Please take note and look it up)) 😉🌠💌