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.
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.
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.
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.