Vermont's Top Court: Smelling "Burnt" Pot Not Valid Excuse For Search

By Paul Gaita 01/21/19

The Vermont Supreme Court's ruling will prevent future rulings against motorists for similar reasons.

a marijuana leaf inside of a car

A Vermont resident won his case against police who seized his vehicle after smelling "burnt cannabis" when the state's Supreme Court ruled that the odor of marijuana does not constitute a valid reason to conduct a search.

The Vermont Supreme Court ruled in favor of the American Civil Liberties Union (ACLU), which sued the state over a 2014 incident in which state police pulled over Gregory Zullo for a registration sticker issue and then seized his car without his consent after detecting the scent of burnt marijuana.

As High Times noted, the Supreme Court's ruling will prevent future rulings against motorists for similar reasons, though Vermont drivers can still face search and seizure if a smell of fresh marijuana is detected.

Zullo was pulled over while driving in 2014 by state trooper Lewish Hatch, who claimed that snow was covering Zullo’s vehicle registration sticker. The trooper stated that a smell of "burnt cannabis" prompted him to request a search of Zullo's car; though Zullo refused, police towed and searched the car and found a glass pipe with cannabis residue.

Though Vermont law does not deem the paraphernalia a criminal or civil offense, Zullo's car was impounded. 

The Vermont chapter of the ACLU union took up Zullo's case and filed suit against the state of Vermont for violation of his rights against unlawful search and seizure.

The ACLU also alleged that Zullo, an African-American, had been stopped due to racial profiling – an issue that had been alleged in regard to Hatch, who lost his job in 2016, on several prior occasions.

After hearing both the ACLU and state attorneys' arguments, the Vermont Supreme Court ruled in Zullo's favor. Associate Justice Harold E. Eaton Jr. wrote in a 50-page ruling that an "odor of marijuana is a factor, but not necessarily a determinative factor, as to whether probable cause exists.” Justice Eaton Jr. also noted that a smell of burnt cannabis would be "far less" indicative of the presence of marijuana than the potent smell of fresh marijuana. 

The Supreme Court also ruled that the incident allowed for Zullo to pursue damages based on violation of his civil rights. Zullo has not indicated whether he intends to pursue civil action against the state of Vermont, but as High Times noted, the most positive aspect of the ruling is that it makes a clear case for preventing the scent of burnt marijuana as probable cause for a search.

However, the scent of fresh cannabis and driving under the influence of cannabis, in the state of Vermont, remain cause for search, seizure and possible arrest.

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Paul Gaita lives in Los Angeles. He has contributed to the Los Angeles Times, Variety, LA Weekly, and The Los Angeles Beat, among many other publications and websites.