Gregory W. Zullo v. State of Vermont
205 A.3d 466
Vt.2019Background
- On March 6, 2014, Vermont State Trooper Hatch stopped Gregory Zullo’s vehicle after observing a registration sticker partially obscured by snow; Hatch later claimed a faint odor of burnt marijuana when approaching the car.
- Hatch ordered Zullo out of the vehicle, asked for and inspected his license/registration, requested consent to search Zullo’s person (consented; nothing found), then requested consent to search the car (refused). Hatch arranged for the car to be towed and obtained a warrant later that evening; a drug dog alerted and a warrant search found drug paraphernalia but no evidence of a crime.
- Zullo sued the State under Article 11 of the Vermont Constitution seeking declaratory relief and money damages for (1) unlawful stop, (2) unlawful exit order, (3) unlawful seizure of the car, and (4) unlawful search.
- The superior court held (a) VTCA did not apply, (b) Article 11 allows an implied damage action, but (c) the stop, exit order, seizure, and search did not violate Article 11; it granted summary judgment for the State. Zullo appealed.
- The Vermont Supreme Court considered: whether Article 11 supports a private damages remedy; whether VTCA or sovereign immunity bars suit; appropriate limits on damages actions versus state liability; and whether Trooper Hatch’s stop, exit order, seizure, and search violated Article 11.
Issues
| Issue | Zullo's Argument | State's Argument | Held |
|---|---|---|---|
| Whether Article 11 implies a private right to money damages | Article 11 is self-executing and damages are necessary because no adequate alternative remedy exists | No private damages remedy absent explicit legislative waiver (VTCA); sovereign immunity bars such suits | Article 11 is self-executing; an implied private damages action exists where no meaningful alternative remedy is available |
| Whether VTCA or sovereign immunity bars Zullo’s suit | VTCA doesn’t apply to constitutional torts; constitutional self-execution waives immunity | VTCA/private-analog requirement and sovereign immunity preclude suit against the State absent explicit waiver | VTCA does not apply; common-law sovereign immunity is not an absolute bar to Article 11 damages claims against the State |
| What limits apply to Article 11 damages actions against the State | No heightened standard; imposing qualified-immunity-like limitation is unnecessary when State (not individual) is defendant | Court should limit liability (e.g., qualified-immunity-type protections) to avoid chilling policing | Court permits damages only if officer violated Article 11 and either knew or should have known he violated clearly established law or acted in bad faith; absence of meaningful alternative remedy is required |
| Whether stop, exit order, seizure, and search violated Article 11 on these facts | Stop, seizure, and search were unlawful; exit order unlawful because no reasonable suspicion of crime | Stop reasonable (obscured registration sticker); exit order and subsequent seizure/search supported by marijuana odor and other observations; qualified immunity/sovereign immunity apply | Stop violated Article 11 (statute unambiguous; sticker-obscured-by-snow did not make plate "entirely unobscured"); exit order lawful (reasonable suspicion of DUI based on faint marijuana odor + items); seizure of car unlawful (faint odor alone insufficient for probable cause); warrant and subsequent search were supported by drug-dog alerts and did not themselves support damages |
Key Cases Cited
- Bivens v. Six Unknown Named Agents, 403 U.S. 388 (U.S. 1971) (recognized direct federal constitutional damages action for unreasonable searches and seizures)
- Heien v. North Carolina, 574 U.S. 54 (U.S. 2014) (officer’s objectively reasonable mistake of law can sometimes support reasonable suspicion for Fourth Amendment stop)
- Shields v. Gerhart, 658 A.2d 924 (Vt. 1995) (test for a state constitutional provision being self-executing and for availability of money damages)
- In re Town Highway No. 20, 45 A.3d 54 (Vt. 2012) (recognized limited damages remedy under state constitution and imposed stringent elements to obtain damages)
- Denis Bail Bonds, Inc. v. State, 622 A.2d 495 (Vt. 1993) (VTCA private-analog requirement and limits on waiving sovereign immunity)
- State v. Guzman, 965 A.2d 544 (Vt. 2008) (odor of marijuana is a relevant factor in probable-cause analysis but not automatically dispositive)
- State v. Sprague, 824 A.2d 539 (Vt. 2003) (under Article 11, officer must have reasonable, articulable suspicion of danger or crime to order driver out of vehicle)
- State v. Platt, 574 A.2d 789 (Vt. 1990) (warrantless seizure of automobile requires probable cause and exigent circumstances)
- State v. Bauder, 924 A.2d 38 (Vt. 2007) (Article 11 may provide greater protection than the Fourth Amendment; probable-cause and privacy analyses)
- Brown v. State, 674 N.E.2d 1129 (N.Y. 1996) (state-constitutional search-and-seizure clause is self-executing and can support direct damages action)