The Vermont Supreme Court issued a one-two punch against police misconduct on Friday in a landmark case involving privacy rights, racial discrimination, and marijuana. The justices first rendered the state liable for unreasonable searches and seizures—meaning victims of law enforcement overreach can sue the government for monetary damages. They then held that the faint odor of marijuana in a car does not justify its seizure by the state. The decision rests solely on the state constitution and effectively rejects widely criticized U.S. Supreme Court precedent to the contrary. It’s a resounding victory for criminal justice reform in Vermont, one that other state supreme courts should look to in expounding their own state constitution’s protections against law enforcement overreach.
Friday’s decision in Zullo v. Vermont revolves around the 2014 traffic stop of Gregory Zullo, a young black man. Zullo had just finished work and was driving to see a friend when Lewis Hatch, a state trooper, pulled him over. Hatch noticed an air freshener and a bottle of Visine eye drops as he approached the car and asked whether Zullo had consumed marijuana, which had recently been decriminalized. Zullo said he had smoked cannabis three days ago and did not appear intoxicated. Hatch ordered him to exit the car, but did not perform field sobriety tests or deploy the drug-detection dog in his vehicle.
Zullo asked why Hatch had pulled him over. The officer responded that he stopped Zullo because snow partially obscured the registration sticker on his license plate (though not the actual license plate number). He then asked to search the car. When Zullo refused, Hatch had the car towed to the police barracks. Zullo then hitchhiked the eight miles home. A search revealed a metal grinder and small pipe with marijuana residue, which was not a criminal offense. Hatch later claimed that he “smelled a faint odor of burnt marijuana” as he approached the car. Zullo later got his car back after paying a $150 towing fee.
Represented by the American Civil Liberties Union of Vermont, Zullo filed suit against the state. He alleged a violation of his rights under Article 11 of the Vermont Constitution, which protects against unreasonable searches and seizures, and provides stronger safeguards than the Fourth Amendment to the U.S. Constitution. The state argued that Article 11 does not permit plaintiffs to recover monetary damages, and that, regardless, the search and seizure of Zullo’s car was reasonable. In a unanimous opinion, Justice Harold Eaton rejected both claims.
Eaton’s conclusions are both monumental, breathing new life into the right of privacy in Vermont. His decision clarifies that individuals subjected to unlawful searches and seizures may sue the state for compensation, even though the legislature has not expressly permitted such suits since Article 11 is “self-executing.” Eaton wrote that individuals can sue officers who “knew or should have known” that they were violating “clearly established law.” Crucially, Eaton also held that victims can sue officers who “acted in bad faith,” defined as “ill will or wrongful motive, including discriminatory animus.”
This “bad faith” rule is a rightful repudiation of the U.S. Supreme Court. The justices have closed off inquiries into whether an officer pulled over a motorist on the basis of discriminatory animus, so long as he can justify the stop with some neutral pretext. This precedent has been pilloried for permitting racial profiling, and Justice Ruth Bader Ginsburg recently called for its reversal. Luckily, the Vermont Supreme Court, in interpreting the state constitution, is free to go beyond SCOTUS’ interpretation of the federal Fourth Amendment. And from now on, in Vermont, victims of discrimination may sue the state when they believe they were searched or detained due to unlawful animus.
But Eaton wasn’t finished. It turns out that Hatch was wrong to assert that Zullo had broken the law in the first place: At the time of the stop, it was not illegal in Vermont to drive with an occluded registration sticker. In the Fourth Amendment context, the U.S. Supreme Court has ruled that a search is generally not rendered unconstitutional because an officer misunderstood the law. But Eaton did not adopt SCOTUS’ sweeping and dubious reasoning, which lets ignorant cops off the hook. Instead, he drew from Justice Elena Kagan’s concurring opinion, which held that a search is only constitutional if an officer makes a “reasonable mistake” about a “genuinely ambiguous” law. And because the Vermont statute was not ambiguous, Hatch violated Article 11 by pulling over Zullo.
What of Hatch’s decision to tow Zullo’s car to the police barracks? Eaton held that was illegal, too. Again, Hatch justified the seizure by citing the “faint smell” of cannabis, which is decriminalized in Vermont. It is illegal to drive while intoxicated—but, Eaton wrote, a whiff of stale cannabis does not provide probable cause that a motorist is violating the law. While “an overpowering odor of fresh marijuana” may justify a search and seizure, a “faint smell” may not. Nor may such a smell in combination with an air freshener and the presence of Visine, nor an admission by the driver that he consumer cannabis several days ago. None of these facts create probable cause that a criminal offense has taken place in Vermont. And so, under Article 11, they cannot justify a search or seizure.
Eaton ends his opinion by making the subtext of this case explicit. Zullo believes, with good reason, that he was subject to racial profiling, or “implicit discriminatory bias.” Article 11 allows racial minorities to “produce evidence in which a factfinder could find” bias, even if they cannot prove that the officer himself is a flagrant racist. In other words, cops can no longer pull over black drivers because they’re black, then justify the stop on the basis of some trivial or nonexistent infraction.
Why did the Vermont Supreme Court take this leap toward racial justice? It may have to do with this case’s striking facts. Hatch has been fired from the police force, apparently due to a history of illegal stops, and his violation of Zullo’s rights is impossible to rationalize. Multiple studies have confirmed racial disparities in Vermont traffic stops, demonstrating that minorities are more likely to be pulled over. Plenty of other states have similar problems, of course, and other state constitutions have similar guarantees against biased traffic stops. The Vermont Supreme Court refuses to wave away grave injustices by blindly trusting the police. Other state supreme courts—and SCOTUS—should follow Eaton’s lead.