In 2014, an African-American man named Gregory Zullo was pulled over in Vermont after an officer noticed his license tab was partly obscured by snow. At the traffic stop, the officer also noticed a bottle of Visine, an air freshener and a faint smell of marijuana, which has been decriminalized in Vermont. Zullo admitted having smoked marijuana three days’ before.
When Zullo refused permission to search his car, the officer had the vehicle towed to the station and left Zullo to hitchhike eight miles home in the snow.
A search of the car at the station turned up an herb grinder and a small pipe containing marijuana residue. Again, possession and use of marijuana are not criminal offenses in Vermont. The only reason these items would be relevant is if Zullo had been charged with driving while impaired, which he was not.
Zullo sued the state, alleging that the officer had engaged in an unreasonable search and seizure under the Vermont Constitution, which was already known to provide greater protections against illegal searches and seizures than does the federal Fourth Amendment.
Last week, a unanimous Vermont Supreme Court made an historic ruling. First, it determined that the traffic stop was unlawful, as there is nothing illegal under Vermont law about having a partly obstructed vehicle tab.
Second, and more unexpected, the court ruled that individuals can sue the police for unreasonable searches and seizures. Traditionally, the only remedy available after an unreasonable search or seizure has been that any evidence obtained can be suppressed. This may be the first instance in which a state supreme court has ruled that citizens have the right to sue for damages.
That right to sue is not unlimited, of course. It only applies when the officer knew or should have known they were in violation of “clearly established law,” or when they can be shown to have acted in bad faith — defined as “ill will or wrongful motive, including discriminatory animus.”
The ruling that citizens can hold officers to account for bad faith is a very big deal because the U.S. Supreme Court has expressly ruled that an officer’s motives cannot be considered when the officer can point to a neutral pretext for the traffic stop, search or seizure. This ruling is a departure from the Supreme Court precedent, which is only allowed when a state finds that its own constitution offers greater protection than the U.S. Constitution does.
Many states have found their constitutions to be more protective of individual rights than the federal constitution. They and others should consider following Vermont’s example and giving people the right to challenge wrongful and discriminatory searches and seizures.
