Last March, according to a
lawsuit filed this month by the ACLU of Vermont, a state
trooper pulled Gregory Zullo over for a nonexistent traffic
infraction, then towed his car away so it could be searched for
evidence of a nonexistent crime.
Trooper Lewis Hatch stopped Zullo, a 21-year-old resident of
Rutland, on Route 7 in Wallingford around 3 p.m. on March 6,
ostensibly because snow partially obscured the registration sticker
on his rear license plate. But as the ACLU points out, that is not
a traffic violation under Vermont law. In fact, the complaint says,
“Mr. Zullo was perfectly obeying all applicable traffic laws when
driving through Wallingford that day.”
After detaining Zullo for an hour and unsuccessfully pressing
him for permission to search the car, Hatch had it towed to the
local state police barracks. Hatch obtained a
search warrant for the car mainly by
claiming to have smelled “the faint odor of burnt marijuana.”
He also mentioned seeing an air freshener and eye drops. In
Vermont, the ACLU argues, such evidence does not constitute
probable cause to believe a search will reveal evidence of a crime,
since possessing up to an ounce of marijuana is no longer a crime
in that state, which last year made it a civil offense.
The search of Zullo’s car discovered a pipe and a grinder. He
was not charged with any offense. He did not get his car back until
about 10 p.m., seven hours after he was stopped. “To add insult to
injury,”
says ACLU of Vermont Executive Director Allen Gilbert, “the
state police made him pay $150 for the tow, as if the situation was
his fault.”
The ACLU is asking a Vermont Superior Court judge to find that
Hatch violated the state constitution’s search-and-seizure restrictions
by stopping Zullo without reasonable suspicion that he had
committed a traffic violation, forcing him out of his car without
reasonable suspicion that he was committing a crime or posed a
danger to others, and towing and searching his car without probable
cause to believe it contained evidence of a crime. Zullo also wants
his $150 back and reimbursement of his legal costs, plus
unspecified damages for the violations of his rights.
The traffic stop was recorded
by a dashcam on Hatch’s SUV, which missed most of the audio because
Hatch did not take the microphone with him went he went over to
Zullo’s car. (See video below.) According to the complaint, Hatch
said he was on the lookout for heroin traffickers but conceded he
did not suspect Zullo of heroin trafficking. While talking to the
trooper, who repeatedly asked for permission to search the car,
Zullo mentioned that he might have smoked marijuana within the
previous two or three days, but not in the car.
When Hatch checked for prior offenses, he found that Zullo had
faced a minor marijuana possession charge in March 2013 that was
dropped six months later. Then Hatch instructed Zullo to exit the
car and informed him for the first time of the official
justification for the stop: the snow on his bumper. The complaint
notes that “Hatch had no difficulty reading Mr. Zullo’s rear
license plate or the validating sticker affixed to the rear
license plate.” It adds that “throughout the entire traffic stop,
[Hatch] did not brush any snow off of the rear bumper of Mr.
Zullo’s car, or take any other measure to uncover the allegedly
obscured validating sticker.”
Zullo agreed to a search of his pockets but continued to
withhold consent for a search of his car. Hatch, who was joined by
another trooper during the stop, persisted, threatening to impound
the car and claiming the police dog in the back of his SUV had
smelled something suspicious. But according to the ACLU, the dog,
which never left the SUV, was not even trained to detect drugs.
Hatch would not let Zullo retrieve his cellphone and money from the
car, and he refused to give him a ride to the state police
barracks, leaving him in the cold on the side of the
road, about eight miles from his home.
While waiting for the tow truck, Hatch placed a telephone call,
beginning around the 32:05 mark on the video. Here are excerpts
from Hatch’s side of that conversation:
I can smell weed, and he won’t allow me to search it, so I’m
just going to take it….First he said last night. Now he’s saying
it was two nights ago….It’s stupid, but whatever; that’s what he
wants to do….Uh, yeah, he had a bunch of snow on his back license
plate. I couldn’t see it. I couldn’t see the registration
sticker….I’m gonna kick him loose. He’s a local Rutland
kid….Yeah, he let me search him. He won’t let me search the car,
and then, you know, he kept wanting to go back to his car. I had to
kinda grab him. And I’m like, “Listen, if you try and go to your
car, I’m going to detain you, so stop trying to get your stuff.”
In Massachusetts, where voters decriminalized marijuana
possession in 2008, the state’s Supreme Judicial Court has followed
the logic urged by the ACLU of Vermont, ruling that a whiff of pot,
whether burned or
fresh, does not by itself justify a car search.
[Thanks to Marc Sandhaus for the tip.]
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