Yeah, so you’ve read the headline. No criminal activity. No charges brought. And a cheap shot fired across the bow of the Fourth Amendment, not to mention Vermont’s own Constitution.
By Tim Cushing @ Tech Dirt
But let’s travel back further to set this up. Twenty-one-year-old Gregory Zullo was supposedly pulled over for having his license plate registration sticker (incidentally) covered by a small amount of snow.
Not a crime. From the ACLU filing [pdf link]:
At all times relevant to this action, it was not a violation of Vermont law to drive a car on which the validation sticker on the rear license plate – but not the numbers and letters of the license plate itself – was touched by snow, leaves, or any other material.
The lawsuit notes that the officer who stated this was the reason he initiated the event spent no further time on that subject. He didn’t bother to brush the snow away from the registration sticker or have Zullo do it, despite the fact that both spent over 30 minutes no more than a few inches away from the offending plate.
Officer Hatch spent most of his time trying to talk Zullo into allowing him to search the vehicle without a warrant. Hatch seemed to be convinced that Zullo was involved with the heroin traffickers he was searching for. Hatch tried everything, including lying.
More than once, the defendant’s employee told Mr. Zullo that Mr. Zullo should consent to a search because the police dog in the back of his truck smelled something.
But the police dog in Hatch’s truck was not a drug detection dog, and, at all times during the encounter between Hatch and Mr. Zullo, the dog remained in the truck with the truck’s windows rolled up.
This isn’t just a mere allegation based on Zullo’s statements to the ACLU. It’s confirmed during the few minutes of actual dialog captured by the dash cam’s mic. (Interestingly [or not, depending on your particular faith in law enforcement], Officer Hatch was wired for sound, but either his body mic wasn’t activated or was buried so far beneath his winter gear it was rendered useless.) At no point does the non-drug dog appear outside the vehicle. About 30 minutes into the recording, Hatch returns to his vehicle to inform his precinct that Zullo wouldn’t agree to warrantless search, so “he’s [Hatch] just going to take it [Zullo’s car].”
During that same call, the defendant’s employee admitted that he did not have a drug detection dog with him, but would have access to one at the state police barracks. App. A at 33:59
As the officers and Zullo waited for the tow truck, they continued to try to get his permission for a search. Zullo held firm, so the cops ditched him miles from home in 20-degree weather.
Mr. Zullo asked Hatch if he could retrieve his money and cell phone from his car, because he did not know how he would get home without either item.
Hatch refused, saying that getting home was “not my problem,” and warned Mr. Zullo that if he attempted to retrieve those items from the car he would be arrested. When Mr. Zullo walked towards his car, Hatch placed his hands on Mr. Zullo to restrain him from reaching the car.
After the tow truck arrived and took Mr. Zullo’s car, Hatch and the second state trooper left the scene, leaving Mr. Zullo stranded on the side of Route 7.
After being seized, Zullo’s car was searched by Officer Hatch using an actual drug dog and an actual warrant [pdf link]. Nothing illegal was uncovered. Hatch found both a pipe and a grinder with “marijuana residue.” Again, no laws were broken by Zullo’s possession of these items.
On June 6, 2013, Governor Shumlin signed the bill, and the relevant parts of the enactment became effective on July 1, 2013. 2013 Vt. Acts & Resolves 669. As a result, at the time of the events giving rise to this suit, Vermont law deemed possession of an ounce or less of marijuana by a person over the age of twenty-one a civil offense, punishable by no more than a fine contestable in the Judicial Bureau. Vt. Stat. Ann. tit. 18, §4230a(b)(1).
Except as otherwise provided in this section, a person 21 years of age or older who possesses one ounce or less of marijuana or five grams or less of hashish or who possesses paraphernalia for marijuana use shall not be penalized or sanctioned in any manner by the State or any of its political subdivisions or denied any right or privilege under State law.
Both the drug angle and the registration sticker angle dead end into a search and seizure based on non-criminal actions. The state does have an out (one that will likely be deployed in its defense against Zully’s lawsuit) that still allows law enforcement to search for marijuana, even if what’s discovered isn’t a criminal amount.
This section is not intended to affect the search and seizure laws afforded to duly authorized law enforcement officers under the laws of this State. Marijuana is contraband pursuant to section 4242 of this title and subject to seizure and forfeiture unless possessed in compliance with chapter 86 of this title (therapeutic use of Cannabis).
But this should have resulted in something better than the response given to Zully when he finally made his way to the precinct to retrieve his vehicle (as well as being told he was responsible for the towing fees).
When Mr. Zullo asked the defendant’s employee why he had to pay for the tow, the defendant’s employee told him that the tow cost was Mr. Zullo’s fault for exercising his rights.
There’s the now-familiar lesson: exercise your rights and cops will make you pay — one way or another — for making their jobs difficult. This was plainly stated by an LAPD member shortly after the situation in Ferguson blew up: be anything but compliant and you’ll be hurting. If you have problems with us steamrolling your rights, sue us. That attitude brings us to this. Another lawsuit filed against a law enforcement agency simply because a police officer couldn’t handle being told, “No.”