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Vermont Supreme Court Rules Marijuana Smell is Not Grounds for Search

Should the smell of pot be grounds for a police search?

by High Times | Updated on 1.10.19

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.

The post Vermont Supreme Court Rules Marijuana Smell is Not Grounds for Search appeared first on High Times.

High Times

Written by High Times

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(44)
  • ManfromNebraska
    Voted Yes
    01/10/2019
    ···

    Sometimes I question the intelligence of the judiciary. We need to remove these liberal judges who continue to degrade our country by supporting bad thinking. Marijuana does nothing to help our country but aids in destroying our country.

    Like (11)
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  • Larry
    Voted No
    01/10/2019
    ···

    This is not objective evidence. And it is a horrible infringement on the rights of Americans to continue with Prohibition.

    Like (8)
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  • Red
    01/11/2019
    ···

    Simply smelling a suspicious odor should NEVER be the basis of seizure. If the presence of paraphernalia is not illegal then should your property still be seized? Our constitution guarantees us due process and these actions bypass it the name of a drug war that has failed for the last half century.

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  • Alan
    Voted Maybe
    01/11/2019
    ···

    If it is legal, then no. If they are under the influence, yes. However, the war on drugs is a war that will never be won and the only ones losing are the people. Because of this war, due process is violated, search and seizures are abused, unconstitutional civil asset forfeiture used and everyone is a suspected criminal.

    Like (2)
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  • jayar
    Voted Yes
    01/10/2019
    ···

    Absolutely, just as should be the smell of alcohol.

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  • eliyak
    Voted No
    01/11/2019
    ···

    The War on Drugs is immoral and ineffective. End it!

    Like (4)
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  • Stewart
    Voted Maybe
    01/11/2019
    ···

    Conflicted. On one hand it shouldn’t warrant a search because it should be FUCKING LEGAL. However driving under the influence of marijuana just like alcohol is illegal and dangerous. If you are pulled over by a police officer and you’re car smells like a dive bar you will be given a sobriety test and have you’re car searched because they have reasonable cause. I suppose that means they should be able to search a vehicle because of a marijuana odor.

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  • Warren
    Voted Yes
    01/10/2019
    ···

    no different than if they smell alcohol

    Like (4)
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  • Christina
    Voted No
    01/10/2019
    ···

    Smelling pot should not warrant a search on its own. The driver needs to be doing something problematic and there should be a reason the police believe they need to search a car. Searching private property should hold a high standard of proof, not “I got a whiff...” Also it is highly likely that many police officers will not implement this law fairly- as is true in the past and present, many will stop more people of color or more people in certain neighborhoods, assuming belonging or not belonging.

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  • Azrael
    Voted No
    01/10/2019
    ···

    About time Make it legal

    Like (3)
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  • Leslie
    Voted No
    01/10/2019
    ···

    STOP INVADING AMERICAN'S PRIVACY

    Like (3)
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  • Curt
    Voted No
    01/11/2019
    ···

    Legalize it in all states!

    Like (3)
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  • Vanessa
    Voted Yes
    01/11/2019
    ···

    Of course. Marijuana has a pungent odor which means it’s probably being used.

    Like (2)
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  • Mary
    Voted No
    01/11/2019
    ···

    No searches without search warrants.

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  • Nancy
    Voted No
    01/10/2019
    ···

    Smoking pot is not a crime, therefore, do not treat its users like criminals! Ever!

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  • NoHedges
    Voted Yes
    01/11/2019
    ···

    Should alcohol smell be? Yes, and it is. 💥Stop forcing a distinction between pot and alcohol, while arguing that no such distinction should exist.

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  • Lee
    Voted Yes
    01/11/2019
    ···

    it's a federal crime. unfuck federal law and you will not have this issue.

    Like (1)
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  • Dan
    Voted Yes
    01/11/2019
    ···

    Marijuana smell is produced by marijuana. This isn’t that hard to understand. You should not be high behind the wheel of a vehicle.

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  • Curtis
    Voted No
    last Wednesday
    ···

    Why should the smell of marijuana constitute a search? Weed is legal and the cop can claim to smell a mysterious odor when there isn’t one.

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  • Reinier
    Voted No
    01/10/2019
    ···

    I get the reasoning behind this but I’m not about to give up my freedoms for this.

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