Vermont Supreme Court Rules Marijuana Smell is Not Grounds for Search

Justice Harold E. Eaton Jr. has set a crucial legal precedent across Vermont.
Vermont Supreme Court Rules Marijuana Smell is Not Grounds for Search
Lisa F. Young/ Shutterstock

January is already shaking out to be a big month for court rulings on the civil and criminal liabilities people should or shouldn’t face over the smell of cannabis. On the heels of a federal judge’s dismissal of a racketeering lawsuit against a smelly cannabis farmer, the Vermont Supreme Court has ruled that certain marijuana odors are not grounds for a search of persons or seizure of property. The important ruling creates a binding legal precedent across all courts in Vermont and comes at the end of a lengthy lawsuit by the Vermont ACLU.

2014 ACLU Lawsuit Ends with Vermont Supreme Court Ruling in Favor of Driver

Simple cannabis possession has been decriminalized in Vermont since 2013. And in 2018, Vermont became the ninth state to legalize cannabis for adult use. But in March 2014, a Vermont state trooper pulled over Rultand resident Greg Zullo and ended up seizing his vehicle when Zullo refused to consent to a search. The officer asked to conduct the search after reportedly smelling “burnt cannabis” inside the vehicle. The trooper said he pulled Zullo over because snow was covering his car’s registration sticker.

Zullo consented to a search of his person. But police had to tow his vehicle in order to be able to search it legally. During that search, police found only a grinder and a glass pipe with cannabis residue. Neither items constituted a criminal or civil offense under Vermont law. But Zullo’s refusal to consent to a search of his car resulted in the seizure of his property anyway. Zullo, a black man who was 21 in 2014, took his case to the Vermont American Civil Liberties Union, which sued the State of Vermont over the search and seizure.

Last Friday, the Vermont Supreme Court ruled in the ACLU’s favor. Associate Justice Harold E. Eaton Jr. ruled that the state trooper was wrong to seize Zullo’s vehicle after saying he smelled burnt cannabis. Furthermore, Justice Eaton Jr. ruled that the smell of burnt cannabis cannot constitute legal grounds for searches and seizures. Throughout the proceedings, Vermont had tried to argue that it was immune from such lawsuits. State attorneys tried the case though a number of statutes involving reasonable suspicion and probable cause.

Vermont Supreme Court Sets Crucial Precedent Against Searches Initiated Because of Cannabis Odors

Ultimately, however, the state Supreme Court ruled that “an odor of marijuana is a factor, but not necessarily a determinative factor, as to whether probable cause exists.” In other words, just smelling burnt cannabis doesn’t amount to a valid reason to search a person’s car. And that’s because the (slight) smell of burnt cannabis “is far less probative as to whether a car contains marijuana than, say, an overpowering odor of fresh marijuana emanating from the trunk of a car,” Justice Eaton Jr. wrote.

Furthermore, the Supreme Court’s ruling clears the way for Zullo to seek damages and restitution. In the Summary of his 50-page ruling, Justice Eaton Jr. wrote that “a direct private right of action for damages based on alleged flagrant violations” of Zullo’s civil rights is available against the state. No word yet, however, on whether or not Zullo will pursue further action against Vermont.

Importantly, Justice Eaton Jr.’s ruling sets a significant and crucial legal precedent for courts across Vermont. A Supreme Court ruling means that no lower court can use the smell of burnt marijuana as cause for initiating a search. Vermont residents can still face searches and seizures over the smell of fresh cannabis, however. And driving under the influence of cannabis remains a criminal offense.

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