Search and Seizure

Vermont Cop Pulls Car Over for Nonexistent Traffic Violation, Tows It to Search for Evidence of Nonexistent Crime

|


ACLU of Vermont

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. In his application for a warrant to search the car, Hatch claimed to have smelled "the faint odor of burnt marijuana coming from within the vehicle." He also mentioned seeing an air freshener and eye drops in the car, and he reported that a drug-sniffing dog at the state police barracks "alerted twice on the trunk," then "climbed up on the hood." 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.

Hatch reported that he found a pipe and a grinder in Zullo's car, both containing "marijuana residue." (Did he find them in the trunk, to which the dog supposedly alerted? Hatch did not say.) Zullo was not charged with any offense, since there was none to charge him with. But 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 admitted that he might have smoked marijuana within the previous two or three days.

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. 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."  

Hatch is right: This situation is stupid, but not for the reasons he thinks. Hatch was dismayed that Zullo obstinately insisted the cops stay out of his car and that he bizarrely seemed to think he had a right to his own possessions. To Hatch's mind, people who want to avoid the inconvenience and indignity that Zullo suffered should simply cooperate by waiving their constitutional rights. Or to put it another way: If you don't want your car towed, do what I tell you.

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.]