Zullo v. State, No. 2017-284

Docket NºNo. 2017-284
Citation2019 VT 1
Case DateJanuary 04, 2019
CourtUnited States State Supreme Court of Vermont

2019 VT 1

Gregory W. Zullo
v.
State of Vermont

No. 2017-284

Supreme Court of Vermont

May Term, 2018
January 4, 2019


NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Rutland Unit, Civil Division

Helen M. Toor, J.

Lia Ernst and James Diaz, ACLU Foundation of Vermont, Montpelier, for Plaintiff-Appellant.

Thomas J. Donovan, Jr., Attorney General, and Eve Jacobs-Carnahan and David R. Groff, Assistant Attorneys General, Montpelier, for Defendant-Appellee.

Matthew Valerio, Defender General, and Rebecca Turner, Appellate Defender, Montpelier, for Amicus Curiae Office of the Defender General.

Jeffrey T. Dickson of Dickson Law Office, PLLC, Burlington, Lindsay A. Lewis, New York, New York, and Dahlia Mignouna and Chad I. Golder of Munger, Tolles & Olson LLP, Washington D.C., for Amici Curiae National Association of Criminal Defense Lawyers, et al.

David Tartter, Deputy State's Attorney, Montpelier, for Amicus Curiae Department of State's Attorneys and Sheriffs.

PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

¶ 1. EATON, J. In this civil rights action against the State of Vermont, plaintiff seeks declaratory relief and money damages for alleged violations of Article 11 of the Vermont Constitution arising from the stop, seizure, and search of his vehicle. The civil division of the superior court granted summary judgment to the State, concluding that although damages may be

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obtained in an implied private right of action directly under Article 11, in this case neither the stop, the exit order, nor the seizure and search of plaintiff's vehicle violated Article 11's constraints against governmental searches and seizures.

¶ 2. At issue in this appeal is: (1) whether Article 11 provides a self-executing right of action for damages; (2) whether the Vermont Tort Claims Act (VTCA) governs any such action and, if not, whether the common law doctrine of sovereign immunity shields the State from liability; (3) if the action is neither governed by the VTCA nor barred by sovereign immunity, whether this Court should impose any limitations on obtaining damages against the State; and (4) assuming a damage remedy exists and plaintiff can potentially overcome any other barriers to obtaining damages against the State, whether the stop, exit order, and/or seizure and search of plaintiff's vehicle violated plaintiff's rights under Article 11, thereby entitling him to seek such relief.

¶ 3. We conclude that an implied private right of action for damages is available directly under Article 11, that the VTCA does not apply to plaintiff's suit alleging a constitutional tort, and that the common law doctrine of sovereign immunity does not bar such an action against the State, but that damages may be obtained only upon a showing that a law enforcement officer acting within the scope of the officer's duties either acted with bad faith or knew or should have known that those actions violated clearly established law. We further conclude that although the exit order would not have violated Article 11 had the initial stop been lawful, both the stop and the warrantless seizure of plaintiff's vehicle violated Article 11. In light of our resolution of the legal issues before us, we reverse the superior court's grant of summary judgment in favor of the State, as well as its dismissal of one of plaintiff's counts in an earlier decision, and we remand the matter for further proceedings consistent with this opinion. As explained below, the parties are not precluded from submitting renewed motions for summary judgment based on the law established in this opinion.

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I. Facts and Procedural History
A. Facts

¶ 4. "Summary judgment is proper only where the material undisputed facts show that the moving party is entitled to judgment as a matter of law." Morisseau v. Hannaford Bros., 2016 VT 17, ¶ 12, 201 Vt. 313, 141 A.3d 745. Accordingly, "[t]he nonmoving party is entitled to all reasonable doubts and inferences" regarding those facts. Id. (quotation omitted). "In determining whether there is a genuine issue of material fact, we will accept as true the allegations made in opposition to the motion . . . so long as they are supported by affidavits or other evidentiary material." Id. (quotation omitted). With this standard in mind, we summarize the relevant facts as follows.1

¶ 5. On the afternoon of March 6, 2014, plaintiff, a twenty-one-year-old African-American2 male, had just finished his work shift at his place of employment in the Town of

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Killington and was driving alone in the Town of Wallingford to see a friend. Lewis Hatch, a state trooper, was on duty in a marked state police vehicle. Trooper Hatch was in his vehicle at a Wallingford gas station when plaintiff drove by. The trooper pulled out of the station and followed plaintiff through Wallingford. He activated his vehicle's emergency blue lights and stopped plaintiff shortly after three o'clock in the afternoon.

¶ 6. Because the microphone in Trooper Hatch's shirt was either not working or not turned on, his interactions with plaintiff outside the range of the recording system in the trooper's vehicle were not recorded. Following the stop, Trooper Hatch approached the passenger-side window of plaintiff's car and asked plaintiff to provide his driver's license and registration. Plaintiff did so and explained to the trooper that he was coming from his work; plaintiff declined, however, to answer the trooper's questions as to where he was going. The trooper stated in his warrant application that he smelled a faint odor of burnt marijuana as he approached plaintiff's car, but during his interaction with plaintiff he did not deploy the drug-detection dog he had in his vehicle. Trooper Hatch observed an air freshener affixed to the center air vent in plaintiff's car and a small bottle of Visine in the car's center console. In response to the trooper's questioning, plaintiff told the trooper that he had smoked marijuana three days prior to the stop.3 Any initial suspicion Trooper Hatch had that plaintiff was driving while impaired was quickly dispelled during the trooper's questioning of plaintiff.

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¶ 7. Trooper Hatch ordered plaintiff to exit his car, but did not ask plaintiff to perform any field sobriety exercises. At some point after ordering plaintiff out of his car, in response to plaintiff's inquiry, the trooper told plaintiff for the first time that he had stopped him because there was snow partially obscuring the registration sticker affixed to his car's license plate. Plaintiff consented to Trooper Hatch's request that he submit to a search of his person, which did not reveal any evidence of contraband or a crime. Trooper Hatch then read plaintiff a consent card, advising him that if he did not agree to have his car searched, the car would be towed to the state police barracks while the trooper applied for a search warrant. Plaintiff refused to consent to a search of his car. Approximately twenty minutes after the initial stop, Trooper Hatch radioed for a tow truck.

¶ 8. Trooper Hatch declined to give plaintiff a ride to his home in Rutland, but he offered to drop plaintiff off at a nearby gas station or call someone to pick him up. Plaintiff declined these offers, and he wound up walking and hitchhiking to his home eight miles away. After arriving at the Rutland police barracks, Trooper Hatch applied for a search warrant, which was issued at approximately seven o'clock in the evening. At the barracks, a certified drug detection dog alerted twice on the trunk of plaintiff's vehicle. A search was completed at seven-thirty in the evening. The search turned up a metal grinder and a small pipe with residue later identified as marijuana, but no evidence of a criminal offense. Plaintiff's vehicle was not released to plaintiff until approximately ten o'clock in the evening after he paid the required $150 towing fee.

B. Procedural History

¶ 9. In September 2014, plaintiff filed suit against the State, alleging four counts of violations of Article 11 of the Vermont Constitution: (1) an unlawful traffic stop without reasonable suspicion of any traffic violation; (2) an unlawful exit order without reasonable suspicion of danger or the commission of a crime; (3) an unlawful seizure of his car without probable cause; and (4) an unlawful search of his car without probable cause. He sought a

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declaration that Trooper Hatch's actions were illegal, an award of damages for the violations of his rights, and an award of costs.

¶ 10. In November 2014, the State filed a motion to dismiss counts two, three, and four, but not count one. In March 2015, the superior court denied the State's motion as to counts two and three, but it granted the motion as to count four concerning the alleged unlawful search. The court concluded that the alleged facts with respect to counts two and three concerning the exit order and seizure of plaintiff's car were sufficient to overcome the State's motion to dismiss. See Samis v. Samis, 2011 VT 21, ¶ 9, 189 Vt. 434, 22 A.3d 444 ("A motion to dismiss should be granted only when it is beyond doubt that there exist no facts or circumstances that would entitle the nonmoving party to relief.").

¶ 11. As for count four, the court stated that the key question was the meaning of Vermont's then-recent law decriminalizing the possession of less than one ounce of marijuana, see 18 V.S.A. § 4230a(a), 2013 No. 194 (Adj. Sess.), § 13 (effective June 17, 2014), insofar as plaintiff alleged that the search warrant was issued even though Trooper Hatch failed to cite any...

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