Gregory W. Zullo v. State of Vermont

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.
2019 VT 1
No. 2017-284
Gregory W. Zullo Supreme Court
On Appeal from
v. Superior Court, Rutland Unit,
Civil Division
State of Vermont May Term, 2018
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
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.
2
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
1
The superior court briefly summarized the facts and stated that the material facts are
undisputed. Given our resolution of the legal issues presented in this appeal, some of the facts that
are disputed could conceivably impact any assessment of liability or any potential damage remedy.
2
Plaintiff does not make an equal protection claim, but throughout this case he has
intimated that the stop, seizure, and search of his vehicle were the result of implied racial bias and
racial profiling. In one of the amicus curiae briefs aligned with plaintiff, we are asked to consider,
in determining whether and under what circumstances to allow a direct private right of action under
Article 11, numerous studies indicating that implicit racial bias is a real and significant problem,
not only nationally, but also in Vermont. See S. Seguino & N. Brooks, Driving While Black and
Brown in Vermont (January 9, 2017), https://www.uvm.edu/giee/pdfs/SeguinoBrooks_Police
Race_2017.pdf [https://perma.cc/BEA6-6F7V]; S. Seguino & N. Brooks, Racial/Ethnic
Disparities in Traffic Stops: Analysis of Vermont State Police Data, 2010-15 (June 2016),
https://stephanieseguino.weebly.com/uploads/2/3/2/7/23270372/brooks_and_seguino_vsp_2010-
15_final.pdf [https://perma.cc/Z6VW-D7T7]; Inst. on Race and Just., Northeastern Univ.,
Vermont State Police: An Examination of Traffic Stop Data, July 1, 2010—December 31, 2015
(May 24, 2016), http://vsp.vermont.gov/sites/vsp/files/documents/VSPPresentation 05242016.pdf
[https://perma.cc/5UMM-BGJ6]; see also B. Obama, Commentary, The President’s Role in
Advancing Criminal Justice Reform, 130 Harv. L. Rev. 811, 820-21 (“A large body of research
finds that, for similar offenses, members of the African American and Hispanic communities are
more likely to be stopped, searched, arrested, convicted, and sentenced to harsher penalties.”). As
the amicus points out, the Vermont Legislature has recognized the existence of this problem and
taken steps to address it. See 20 V.S.A. § 2366(e)(1) (requiring Vermont law enforcement
agencies to collect roadside stop data, including driver’s race, reason for stop, and outcome of
3
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.
stop); 3 V.S.A. § 168(f)(1)g(2) (establishing panel to “review and provide recommendations to
address systemic racial disparities in statewide systems of criminal and juvenile justice,” and
requiring, among other things, continual review of data collected pursuant to 20 V.S.A.
§ 2366(e)(1) and submission of recommendations for training law enforcement officers and others
“to recognize and address implicit bias”).
3
The superior court noted that the parties disagreed as to whether plaintiff acknowledged
smoking marijuana in the car in the past and that, according to Trooper Hatch, plaintiff equivocated
as to how many days it had been since he smoked marijuana. We do not find that either of these
disputes concern material facts.
4
¶ 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
5
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 evidence
suggesting that plaintiff’s car contained more than one ounce of marijuana. In dismissing this
count, the court relied mainly on the Legislature’s pronouncement that marijuana is still
contraband subject to seizure and forfeiture unless lawfully used for medicinal purposes and that
the decriminalization of less than one ounce of marijuana is “not intended to affect the search and
seizure laws afforded to duly authorized law enforcement officers.” Id. § 4230a(c)(2). Moreover,
the court concluded that the warrant application was not defective merely because it referenced
evidence of a criminal offense rather than evidence of contraband. Following its dismissal of count
four, the court granted plaintiff’s motion to add a fifth count alleging that the search of his car was
unlawful because Trooper Hatch dishonestly stated in his warrant application that he expected to
find evidence of a crime.
6
¶ 12. After the parties completed discovery that included taking the depositions of
plaintiff and Trooper Hatch, they filed cross-motions for summary judgment. The State asserted
that summary judgment should be entered on count one because the stop was lawful and because
the trooper’s actions were protected by qualified immunity. With respect to counts two, three, and
five, the State argued that the totality of the circumstances justified the exit order and the seizure
and search of plaintiff’s vehicle. The State also argued that even if Trooper Hatch erred in
assessing whether reasonable suspicion or probable cause existed to support the exit order and
seizure of plaintiff’s vehicle, either qualified immunity or sovereign immunity barred plaintiff’s
action. Plaintiff responded that the State waived its sovereign immunity, either through the VTCA
or Article 11 itself, and that Trooper’s Hatch’s qualified immunity did not extend to the State.
Plaintiff further argued that none of the statutes or caselaw relied upon by the State provided legal
justification for Trooper Hatch to stop plaintiff, order him to exit his vehicle, or seize and search
his vehicle.
¶ 13. In May 2017, the superior court granted the State’s motion for summary judgment
and denied plaintiff’s cross-motion for summary judgment. The court concluded that: (1) the
VTCA is inapplicable because it concerns only common law torts and because no private analogs
exist for Trooper Hatch’s actions; (2) Article 11 provides an implied private right of action for
damages against the State; and (3) money damages are an appropriate remedy if liability is found
because there is no viable alternative remedy. The court granted the State’s motion for summary
judgment, however, based on its determination that Trooper Hatch’s actions did not violate Article
11. The court concluded that: (1) any mistake of law by Trooper Hatch in stopping plaintiff based
on a partially obscured registration sticker was objectively reasonable and thus did not rise to an
actionable violation of Article 11; (2) the faint smell of burnt marijuana, in combination with the
presence of the air freshener and bottle of Visine, provided Trooper Hatch with reasonable
suspicion to order plaintiff to exit his car; and (3) even though the air freshener and Visine lost
7
their probative value after Trooper Hatch’s concerns about plaintiff’s possible impaired driving
were dispelled, the faint smell of burnt marijuana alone provided probable cause to seize plaintiff’s
car and obtain a warrant to search the car—notwithstanding the fact that possession of less than
one ounce of marijuana was only a civil infraction at the time of the stop.
¶ 14. Plaintiff appeals, arguing that: (1) in assessing whether the stop in this case violated
Article 11, which offers more protection than the Fourth Amendment, this Court should not follow
the U.S. Supreme Court’s recent holding that reasonable suspicion to support a traffic or
investigatory stop may rest upon a police officer’s reasonable mistake of law, see Heien v. N.
Carolina, ___ U.S. ___, 135 S. Ct. 530 (2014); (2) even if this Court were to adopt a Heien-type
analysis, the stop in this instance violated Article 11 because it was not objectively reasonable for
Trooper Hatch to believe that plaintiff had violated a statute requiring number plates to be kept
unobscured with legible letters and numbers; (3) Trooper Hatch ordered plaintiff to exit his car
without reasonable suspicion of criminal activity or any other legal justification, in violation of
Article 11; and (4) there was no probable cause to seize or search plaintiff’s car.4 The Office of
the Defender General raises similar arguments in its amicus curiae brief filed in support of
plaintiff’s appeal. In another amicus curiae brief filed in support of plaintiff’s appeal, the National
Association of Criminal Defense Lawyers (NACDL) and other organizations5 argue that adopting
the holding in Heien would undercut the protections guaranteed by Article 11, as evidenced by
studies indicating that, as the result of implicit racial bias, law enforcement officers are more likely
to mistake the actions of nonwhite individuals as violations of the law.
4
Plaintiff does not challenge on appeal the superior court’s rejection of his claim that
Trooper Hatch misrepresented material facts in his application for a search warrant.
5
The other organizations are Migrant Justice, Vermonters for Criminal Justice Reform,
The Root Social Justice Center, The Peace and Justice Center, local chapters of The National
Association for the Advancement of Colored People, and Justice for All.
8
The State responds that: (1) the superior court was correct in holding that the VTCA does
not grant jurisdiction for plaintiff’s claims; (2) Article 11 does not provide jurisdiction for a private
right of action against the State because the State is protected by its sovereign immunity and
because alternative remedies exist;6 (3) Trooper Hatch’s stop of plaintiff’s car did not violate
Article 11 because it was objectively reasonable for him to believe that plaintiff was in violation
of a motor vehicle law; and (4) notwithstanding the then-existing marijuana decriminalization law,
reasonable suspicion supported the exit order and probable cause supported the seizure and search
of plaintiff’s car. In its amicus curiae brief, the Department of State’s Attorneys and Sheriffs
argues that this Court should follow Heien and hold that traffic stops based on an officer’s
objectively reasonable mistake of law satisfy the reasonable suspicion standard and thus do not
violate Article 11.
II. The Vermont Tort Claims Act and Sovereign Immunity
¶ 15. We first address the State’s argument that no private right of action may be implied
directly under Article 11 because the State has not waived its sovereign immunity to any such
action either under the VTCA or any other legislation. According to the State, Vermont courts
lack jurisdiction over plaintiff’s lawsuit, notwithstanding his claims of constitutional violations,
because plaintiff has failed to identify a statutory waiver of sovereign immunity, which the State
6
Because the State was content with the superior court’s summary judgment ruling in its
favor, it was not required to file a cross-appeal challenging the court’s conclusion that Article 11
provides an implied private right of action seeking money damages for alleged unlawful searches
and seizures. See Huddleston v. Univ. of Vt., 168 Vt. 249, 255, 719 A.2d 415, 419 (1998) (“An
appellee seeking to challenge aspects of a trial court’s decision must file a timely cross-appeal
unless, of course, the party was content with the final order below, leaving it nothing to appeal.”
(citation omitted)); Staruski v. Cont’l Tel. Co. of Vt., 154 Vt. 568, 571 n.3, 581 A.2d 266, 267 n.3
(1990) (noting that appellee was not required to file cross-appeal to preserve its claims on appeal
“since it was content with the final order in the case, namely the JNOV in its favor, and therefore
had nothing in the first instance to appeal”); cf. Stowell v. Action Moving & Storage, Inc., 2007
VT 46, ¶ 7 n.3, 182 Vt. 98, 933 A.2d 1128 (addressing issue on which appellant prevailed at trial
and that appellee was challenging on appeal, despite no cross-appeal, because if appellee prevailed
on issue “we would reach the same result as the superior court with respect to [appellant’s] appeal
issues, but on a different ground”).
9
contends is necessary before he can sue the State for damages.7 The State concurs with the superior
court’s assessment that plaintiff’s constitutional tort claim does not fit within the VTCA’s waiver
provisions, arguing that the Act applies only to ordinary common law torts and that there are no
private analogs for Trooper Hatch’s actions within the scope of his duties. The State argues,
however, that, absent any other legislation explicitly waiving sovereign immunity for
constitutional torts, plaintiff’s suit against the State is barred for lack of jurisdiction.
¶ 16. Plaintiff responds that an explicit legislative waiver of sovereign immunity is not
required to obtain a damages remedy under a self-executing constitutional provision for a violation
of one’s constitutional rights under that provision. Plaintiff agrees with the State and the superior
court that his constitutional tort claim should not proceed through the VTCA because the Act does
not apply to constitutional claims. He also argues, however, that even if the Act applied to his
constitutional claims, it would not bar those claims because common law torts such as unlawful
trespass and false imprisonment provide private analogs for his claims and because the
discretionary function exception in the Act does not apply to unconstitutional or unlawful conduct.
A. The Vermont Tort Claims Act
¶ 17. As noted, the superior court agreed with the State that the VTCA does not govern
plaintiff’s lawsuit for two interrelated reasons: the Act applies only to ordinary common law torts
and only where there is a private analog—in other words, where the cause of action is comparable
7
The State did not make this specific argument below; rather, it argued only that the State
was immune from suit because it had not waived its immunity in the VTCA. In so arguing, the
State noted that this Court had not explicitly addressed the issue of whether the State is entitled to
rely on sovereign immunity in defending claims brought under the Vermont Constitution. The
superior court determined that Article 11 provided a private right of action for damages arising
from violations by the State or its agents and that the VTCA did not apply, but it did not otherwise
address the question of sovereign immunity, thereby intimating that Article 11, of its own force,
impliedly waived the State’s sovereign immunity. We address the State’s argument on appeal
because it is the primary question with respect to whether plaintiff may go forward with his lawsuit.
See My Sister’s Place v. City of Burlington, 139 Vt. 602, 608, 433 A.2d 275, 279 (1981) (stating
that “sovereign immunity is not considered an affirmative defense in Vermont”).
10
to one available against a private citizen. The court rejected plaintiff’s arguments that his lawsuit
was analogous to actions against private individuals for trespass to chattel, false imprisonment,
and invasion of privacy. The court concluded that because the ultimate question—whether
Trooper Hatch acted in conformance with plaintiff’s constitutional rights—turned on purely
governmental functions, his lawsuit could not be treated as analogous to a common law claim
against a private party.
¶ 18. “[T]he primary purpose of the VTCA is to waive sovereign immunity for
recognized causes of action, particularly for common law torts.” See Kennery v. State, 2011 VT
121, ¶ 26, 191 Vt. 44, 38 A.3d 35. First enacted in 1961, the VTCA generally makes the State
liable for injuries, with delineated exceptions, resulting from the negligent or wrongful acts or
omissions of state employees acting within the scope of their employment “under the same
circumstances, in the same manner, and to the same extent as a private person would be liable.”
12 V.S.A. § 5601. The statute does not explicitly address constitutional torts. Cf. J. Friesen, State
Constitutional Law: Litigating Rights, Claims, and Defenses § 8.04[4], at 24 (4th ed. 2006) (citing
state statutes explicitly recognizing compensation for deprivation of constitutional rights); G.
Gildin, Redressing Deprivations of Rights Secured by State Constitutions Outside the Shadow of
the Supreme Court’s Constitutional Remedies Jurisprudence, 115 Penn St. L. Rev. 877, 883-85
(2011) (citing state legislatures that have enacted statutory civil damages action for invasion of
state constitutional rights, and noting that some statutes encompass all state constitutional rights
while others create causes of action only for specifically enumerated rights or for situations in
which public official acts with heightened level of culpability).
¶ 19. The VTCA’s private-analog waiver, which is similar to that contained in the
Federal Tort Claims Act (FTCA),8 “is primarily directed at the ‘ordinary common-law torts.’ ”
8
One notable difference is that the FTCA provides that the government is liable “in the
same manner and to the same extent as a private individual under like circumstances,” 28 U.S.C.
11
Denis Bail Bonds, Inc. v. State, 159 Vt. 481, 485, 622 A.2d 495, 498 (1993). “By maintaining a
link to private causes of action, this approach serves to prevent the government’s waiver of
sovereign immunity from encompassing purely ‘governmental’ functions.” Id. at 485-86, 622
A.2d at 498. Nevertheless, “[t]he purpose of the private-analog provision is not to bar, without
exception, suits claiming injuries based on the breach of duties performed by government
employees performing government services, but rather to place constraints on how creative courts
can be in finding duties where none had previously existed.” Sabia v. State, 164 Vt. 293, 302, 669
A.2d 1187, 1193 (1995). Under the private-analog waiver, the State may be liable if the plaintiff’s
cause of action is comparable to an action maintainable against a private citizen such that the
allegations satisfy the necessary elements of the comparable action. Denis Bail Bonds, 159 Vt. at
486, 622 A.2d at 498.9
¶ 20. Although plaintiff cites false imprisonment and trespass to chattels as private-
analog torts, he does not demonstrate that his “factual allegations satisfy the necessary elements
of a recognized cause of action.” Kane v. Lamothe, 2007 VT 91, ¶ 7, 182 Vt. 241, 936 A.2d 1303;
cf. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 392 (1971) (rejecting “the notion that
the Fourth Amendment proscribes only such conduct as would, if engaged in by private persons,
be condemned by state law”). Nor does he effectively counter the superior court’s point, with
which we agree, that the ultimate question of whether Trooper Hatch acted in compliance with
§ 2674 (emphasis added), while the VTCA makes the State liable “under the same circumstances,
in the same manner, and to the same extent as a private person would be liable,” 12 V.S.A.
§ 5601(a) (emphasis added). The U.S. Supreme Court has explicitly drawn a distinction between
the two highlighted words, stating that “the words ‘like circumstances’ do not restrict a court’s
inquiry to the same circumstances, but require it to look further afield.” United States v. Olson,
546 U.S. 43, 46 (2005) (quotation omitted).
9
We have pointed out that a situation involving a private analog is distinct from one in
which a state employee commits a common law tort “for which the source of their employment is
unconnected to the duty of care”—for example, a traffic accident on the way to a meeting.
Kennery, 2011 VT 121, ¶ 27. Both situations are actionable under the VTCA.
12
plaintiff’s constitutional rights turns on law enforcement responsibilities that have no private
analog. See Dorwart v. Caraway, 2002 MT 240, ¶ 44, 58 P.3d 128 (agreeing with “authorities that
there is a great distinction between wrongs committed by one private individual against another
and wrongs committed under authority of the state”).
¶ 21. Indeed, the limited federal case law under the FTCA suggests that no private analog
exists here. Cf. Casillas v. United States, No. CV 07-395-TUC-DCB (HCE), 2009 WL 735193,
at *11 (D. Ariz. Feb.11, 2009) (“It follows that just as there is no private analog to the act of
applying for a search warrant, there is also no private analog to the investigation leading to the
decision to seek the warrant.”). Given the VTCA’s silence as to constitutional torts and the absence
of any comparable private analog, we conclude that the Act’s statutory waiver of sovereign
immunity against certain civil tort claims does not apply here.
B. Sovereign Immunity
¶ 22. Having determined that the VTCA does not govern plaintiff’s lawsuit, we consider
the State’s argument that Vermont courts lack jurisdiction over constitutional tort claims absent an
express statutory waiver of sovereign immunity. Whether the common law doctrine of sovereign
immunity stands as a bar to constitutional torts absent an explicit legislative waiver is a difficult
question with which few courts have grappled. See Shields v. Gerhart, 155 Vt. 141, 152, 582 A.2d
153, 160 (1990) (“[T]he question of whether sovereign immunity should be a defense to
[constitutionally based tort claims for damages] is itself complex.”); J. Friesen, supra, § 8.02[2],
at 9 (“Where constitutionally based damage suits are allowed, the sparse caselaw is divided on
whether they are completely subject to the state rules that affect other claims against governmental
bodies and their employees, or are exempt from some of them.”).
¶ 23. Although it has a long history, the ancient English common law doctrine that “the
King can do no wrong” is not inviolate. See Levinsky v. Diamond, 151 Vt. 178, 183, 559 A.2d
1073, 1077 (1989) (noting that sovereign immunity is “derived from the concept that ‘the King
13
can do no wrong’ ”), overruled on other grounds by Muzzy v. State, 155 Vt. 279, 281, 583 A.2d
82, 83 (1990); J. Friesen, supra, § 8.03[2], at 12 (“Over the last thirty or forty years, the doctrine
of sovereign immunity has come under attack in the state courts, where in state after state which
had maintained sovereign immunity or municipal immunity as a matter of common law, the
doctrines have been judicially abolished or limited.”).10 Indeed, this Court long ago recognized
that due process violations are an exception to the general principle applying sovereign immunity
absent an explicit legislative waiver. See Denis Bail Bonds, 159 Vt. at 484-85, 622 A.2d at 497
(“Absent due process violations, lawsuits against the state for acts essentially governmental in
nature are barred unless the state waives its sovereign immunity and consents to be sued.”
(emphasis added)); Williams v. State, 156 Vt. 42, 55-56, 589 A.2d 840, 848-49 (1990)
(acknowledging that “due process may require that states entertain suits against them though they
have not consented,” but cautioning that common law sovereign immunity “is not vitiated entirely”
as long as state “comports with due process principles”).
¶ 24. On multiple occasions, this Court has declined to address whether the doctrine of
sovereign immunity bars constitutional torts against the State absent an explicit legislative waiver.
See Stevens v. Stearns, 2003 VT 74, ¶¶ 8-9, 175 Vt. 428, 833 A.2d 835 (declining to address
plaintiffs’ inadequately briefed claim that state was not entitled to sovereign immunity from their
suit seeking damages for state employees’ violation of their Article 11 rights); Shields v. Gerhart,
10
Almost forty years ago, in a case where the plaintiff made “no specific claims of
unconstitutionality,” this Court acknowledged “that many jurisdictions have abolished, and legal
commentators have advocated abolition of, the doctrine of sovereign immunity where created by
judicial decision.” Lomberg v. Crowley, 138 Vt. 420, 424, 415 A.2d 1324, 1327 (1980). The
State relies upon the Court’s pronouncement in Lomberg that “[w]hile not all legislative
enactments concerning a doctrine which may have had a judicial origin will preclude its judicial
abolition, there are instances in which [a] doctrine has such clear legislative recognition, as is the
case at bar, 29 V.S.A. § 1403 [general waiver of sovereign immunity to extent of insurance
coverage], that we are bound to acknowledge its continuance until the legislature mandates
otherwise.” Id. Nothing in this statement precludes this Court from holding that the common law
doctrine of sovereign immunity does not stand as an absolute bar to tort suits seeking damages for
alleged constitutional violations.
14
163 Vt. 219, 237, 658 A.2d 924, 936 (1995) (“Because of our disposition of the merits of plaintiff’s
complaint [seeking damages under Articles 1 and 13 of the Vermont Constitution], we do not need
to decide whether plaintiff’s claims are also barred by the state’s sovereign immunity.”). Although
we did not address in Shields whether the common law doctrine of sovereign immunity was an
absolute bar to damage claims against the State based on alleged constitutional violations, we
emphasized “the preeminence of the Vermont Constitution in our governmental scheme.” Shields,
163 Vt. at 223, 658 A.2d at 927. Noting the truism that a constitution is “the expression of the will
of the people” and thus “stands above legislative or judge-made law,” we stated that “the absence
of legislative enabling statutes cannot be construed to nullify rights provided by the constitution if
those rights are sufficiently specified.” Id.
¶ 25. In a more recent case in which we upheld the liability of a municipality sued for
damages directly under the Common Benefits Clause of the Vermont Constitution, we reiterated
the preeminence of the Vermont Constitution over legislative and judge-made law. See In re Town
Highway No. 20, 2012 VT 17, ¶ 26, 191 Vt. 231, 45 A.3d 54 (stating that Vermont Constitution,
which “is preeminent in our governmental scheme” as “the fundamental charter of our state” and
expression of people’s will, “confers upon the government limited powers while simultaneously
protecting the basic freedoms of the governed”). Although the municipality in that case “invoke[d]
the doctrine of municipal immunity to completely absolve itself from liability, we discern[ed] no
logic or policy purpose in recognizing a constitutional tort derived from our fundamental charter
of rights while simultaneously granting the Town immunity because it was performing a
‘governmental’ function.” Id. ¶ 58. In support of this statement, we quoted the North Carolina
Supreme Court, which provided the following explanation for why it was rejecting the notion that
the common law doctrine of sovereign immunity barred damage claims brought directly under the
state constitution:
15
It would indeed be a fanciful gesture to say on the one hand that
citizens have constitutional individual civil rights that are protected
from encroachment actions by the State, while on the other hand
saying that individuals whose constitutional rights have been
violated by the State cannot sue because of the doctrine of sovereign
immunity.
Corum v. Univ. of N.C., 413 S.E.2d 276, 291 (N.C. 1992); see Shields, 163 Vt. at 223, 658 A.2d
at 928 (“To deprive individuals of a means by which to vindicate their constitutional rights would
negate the will of the people ratifying the constitution, and neither this Court nor the Legislature
has the power to do so.”).
¶ 26. The few state courts that have addressed this issue are divided over whether
sovereign immunity serves as an absolute bar to constitutional torts absent an explicit legislative
waiver. See T. Hunter Jefferson, Constitutional Wrongs and Common Law Principles: The Case
for the Recognition of State Constitutional Tort Actions Against State Governments, 50 Vand. L.
Rev. 1525, 1541-43 (1997) (citing state courts that have accepted or rejected doctrine of sovereign
immunity as bar to constitutional torts, either based on tort claims act or incompatibility of doctrine
with constitutional violations). Compare Corum, 413 S.E.2d at 291-92 (stating that common law
theory of sovereign immunity must yield to constitutional rights and thus “cannot stand as a barrier
to North Carolina citizens who seek to remedy violations of their [constitutional] rights”) with
Figueroa v. State, 604 P.2d 1198, 1206 (Haw. 1979) (“[I]n a suit against the state, there cannot be
a right to money damages without a waiver of sovereign immunity and we regard as unsound the
argument that all substantive rights of necessity create a waiver of sovereign immunity such that
money damages are available.”), and McKenna v. Julian, 763 N.W.2d 384, 390 (Neb. 2009)
(stating that “existence of a self-executing constitutional right does not entail waiver of the state’s
sovereign immunity from suit based upon such a right” and reasoning that self-executing
constitutional provision, absent language implicating sovereign immunity, “merely creates a right
that does not need further legislative action in order to become operable against nonsovereigns”).
16
¶ 27. The Vermont Constitution neither declares the State immune from all damages
stemming from violations of its provisions nor specifies that the State retains any immunity not
expressly waived by the State. Accordingly, in light of the reasoning in our prior caselaw discussed
above, we conclude that the common law doctrine of sovereign immunity is not an absolute
jurisdictional bar to Vermont courts considering constitutional tort actions.
¶ 28. Our conclusion that the common law doctrine of sovereign immunity cannot
jurisdictionally bar suits alleging constitutional torts does not mean that the Legislature lacks
authority to limit or confine such suits in any way. See Bosh v. Cherokee Cty. Bldg. Auth., 2013
OK 9, ¶¶ 14, 23, 305 P.3d 994 (noting that court had previously abrogated sovereign immunity
while acknowledging legislature’s right to enact statutory immunity, but holding that subsequent
tort claims act “cannot be construed as immunizing the state completely from all liability for
violations of the constitutional rights of its citizens”); see also Deal v. Brooks, 2016 OK CIV APP
81, ¶ 4, 389 P.3d 375 (holding that tort claims act “does not immunize [human services
department] from liability for reckless and deliberate acts that deprive a child of her due process
rights while in state custody” (emphasis omitted)). As we discuss below, the Vermont Constitution
requires a meaningful remedy for constitutionally grounded tort violations. Although this Court
is the ultimate arbiter of what constitutes a meaningful remedy, the Legislature may provide and
limit a statutory remedy for constitutionally based tort violations, as long as the remedy provides
meaningful redress for significant violations.
¶ 29. Absent legislation providing a meaningful remedy for constitutional tort violations,
in determining the scope and limits of sovereign immunity, we conclude that the judge-made
doctrine does not supersede the right of the people to seek redress from the State for violations of
fundamental constitutional rights. Invoking absolute sovereign immunity to prevent a remedy for
significant breaches of constitutional rights would undermine the fundamental protections
provided by our state constitution, which exists “to dictate certain boundaries to the government.”
17
J. Friesen, supra, § 8.08[1], at 51 (citing “strong policy argument” that invoking sovereign
immunity for breaches of bill of rights aimed at curtailing government power “would make a
mockery of constitutional democracy”). The theory that one cannot assert a wrong against the
government that created the law upon which the asserted rights depend has no force with respect
to constitutional rights, which “are created by the citizenry to govern the government.” Id. at 52.
¶ 30. We recognize that plaintiff’s action against the State in this case is based on
vicarious rather than direct liability. We note that this is consistent with the legislative policy set
forth in the VTCA. See 12 V.S.A. § 5602(a) (providing that exclusive right of action is against
State for state employees’ acts or omissions within scope of employment that cause injury) 11; see
also 3 V.S.A. § 1101(a) (providing in relevant part that in civil action against state employees
alleging damage or deprivation of rights arising from performance of employees’ official duties,
State is obligated to defend action and provide legal representation on behalf of employees). More
significantly, “the State is appropriately held answerable for the acts of its officers and employees
because it can avoid such misconduct by adequate training and supervision and avoid its repetition
by discharging or disciplining negligent or incompetent employees.” Brown v. State, 674 N.E.2d
1129, 1142-43 (N.Y. 1996); see Bosh, 2013 OK 9, ¶ 32 (noting that problems of federalism which
preclude applying common law doctrine of respondeat superior in § 1983 actions are not present
in actions for violation of state’s constitution); see also C. Pillard, Taking Fiction Seriously: The
Strange Results of Public Officials’ Individual Liability Under Bivens, 88 Geo. L.J. 65, 66, 103-
04 (1999) (arguing that individual liability theory in Bivens was fiction intended to evade
sovereign immunity issues); J. Madden, Bedtime for Bivens: Substituting the United States as
Defendant in Constitutional Tort Suits, 20 Harv. J. on Legis. 469, 473-74 (1983) (noting problems
11
We recognize that the VTCA does not indemnify state employees for gross negligence
or willful misconduct, 12 V.S.A. § 5606(c)(1), but as explained above, the Act does not govern
constitutional tort claims.
18
with constitutional tort cases against individual officers, including lack of financially responsible
defendants, and arguing that government should be responsible for wrongful conduct of its agents).
¶ 31. In short, the common law doctrine of sovereign immunity does not act as a
jurisdictional bar to plaintiff’s civil damage suit against the State alleging that a state officer
deprived him of the protection from government interference guaranteed by Article 11 of the
Vermont Constitution.
III. Implied Private Right of Action Directly Under Article 11
¶ 32. Having determined that the VTCA is inapplicable and that the common law
doctrine of sovereign immunity is not a jurisdictional bar to plaintiff’s lawsuit, we turn to the
question of whether plaintiff may seek damages in an implied action directly under Article 11.
This is an issue of first impression for this Court. See Stevens, 2003 VT 74, ¶¶ 18, 20. We have
established a two-step inquiry to determine whether monetary damages are available directly under
a particular constitutional provision. We must first consider whether the constitutional provision
at issue is self-executing in the sense that it is specific enough to support an action against the state
or state officials absent implementing legislation. Shields, 163 Vt. at 222, 658 A.2d at 927. If that
hurdle is cleared, we must then “determine whether monetary damages are available as a remedy
for a violation” because of the absence of any viable alternative remedy. Id.
A. Self-Executing
¶ 33. As we explained in Shields, a constitutional provision is self-executing if it provides
sufficient direction by which the right at issue might be protected; whereas it is not self-executing
if it merely states a general principle without establishing any basis on which that principle may
be enforced. Id. at 224, 658 A.2d at 928. Thus, “a self-executing provision should do more than
express only general principles; it may describe the right in detail, including the means for its
enjoyment and protection.” Id. “Ordinarily a self-executing provision does not contain a directive
to the legislature for further action.” Id.
19
¶ 34. Under this test, there is little doubt that Article 11 is self-executing. Indeed, search-
and-seizure provisions such as Article 11 are the paradigmatic self-executing provisions. Article
11’s federal counterpart, the Fourth Amendment, is the constitutional provision in which the U.S.
Supreme Court first recognized a direct constitutional damage remedy. See Bivens, 403 U.S. at
397. Search-and-seizure provisions have also been the basis of direct constitutional damage
actions accepted in other jurisdictions. See, e.g., Binette v. Sabo, 710 A.2d 688, 789 (Conn. 1998)
(concluding that search-and-seizure and arrest provisions of Connecticut Constitution afford
private cause of action for money damages); Moresi v. Dep’t of Wildlife & Fisheries, 567 So. 2d
1081, 1092-93 (La. 1990) (concluding that “damages may be obtained by an individual for injuries
or loss” resulting from violation of search-and-seizure provision of Louisiana Constitution);
Dorwart, 2002 MT 240, ¶ 44 (applying test set forth in Shields and concluding that Montana
Constitution’s search-and-seizure provision, among others, is self-executing and may be basis of
direct action for money damages); Brown, 674 N.E.2d at 1137-39 (concluding that state
constitutional search-and-seizure clause is manifestly self-executing and that direct cause of action
to recover damages may be asserted against state for violation of clause); see also Godfrey v. State,
898 N.W.2d 844, 858-60 (Iowa 2017) (providing overview of state supreme court cases finding
state constitutional provisions self-executing for purposes of obtaining money damages).
¶ 35. Insofar as Article 11 unequivocally sets forth a single specific right of the people
to be free from unwarranted searches and seizures of their persons, possessions, and property, that
provision is manifestly self-executing. Cf. Shields, 163 Vt. at 226-27, 658 A.2d at 929-30 (stating
that Article 13 unequivocally sets forth single specific right rather than general principle). Our
extensive case law on Article 11 demonstrates that the right set forth therein is certain and definite
enough to establish rules for the implementation of that right. Cf. Town Highway, 2012 VT 17,
¶ 32 (stating that Common Benefits Clause is certain and definite enough to allow formation of
rules for judicial decision). Moreover, because the right set forth in Article 11 is sufficiently
20
specified, “the absence of a legislative directive supports a conclusion that the provision is self-
executing.” Shields, 163 Vt. at 227, 658 A.2d at 930.
B. Alternative Remedies
¶ 36. Our conclusion that Article 11 is self-executing means that the right set forth therein
does not “need further legislative action to become operative”; however, “[i]t does not necessarily
mean that monetary damages are the proper remedy for a violation.” Id. at 227-28, 658 A.2d at
930. The second part of our inquiry is to determine “if monetary damages are an appropriate
remedy for the constitutional violation.” Town Highway, 2012 VT 17, ¶ 35. “Determining
whether a constitutional tort merits monetary relief . . . necessarily compels a careful inquiry into
the precise nature of the injury alleged and the adequacy of existing remedies to redress it.” Id.
¶ 36. A constitutional damage remedy is most appropriate when “damages must be recognized to
give a plaintiff some remedy.” Shields, 163 Vt. at 233, 658 A.2d at 933. “[T]he law supports civil
damages when an alternative remedy does not meaningfully compensate the injury.” Town
Highway, 2012 VT 17, ¶ 50. Ultimately, the question is whether “compensatory relief is necessary
or appropriate to the vindication of the interest asserted.” Id. ¶ 35 (quotations omitted).
“Historically, damages have been regarded as the ordinary remedy for an invasion of personal
interests in liberty.” Bivens, 403 U.S. at 395.
¶ 37. The standard remedy for an Article 11 violation in a criminal context—the
exclusionary rule—provides no relief to the instant plaintiff, who was not charged with a crime.
The State argues, however, that each of the following remedies is a sufficient alternative to suing
the State for damages: (1) an action against Trooper Hatch pursuant to 42 U.S.C. § 1983;
(2) injunctive relief prohibiting the State from stopping vehicles with covered registration
stickers12 or from issuing exit orders based on suspicion that the driver possessed less than one
12
As discussed below, the relevant statute has since been amended to require that
registration stickers be kept unobscured.
21
ounce of marijuana; (3) administrative relief by way of Vermont Rule of Criminal Procedure 41
or 18 V.S.A. §§ 4241-4248, which provide procedures for reclaiming seized or forfeited property;
(4) an administrative complaint against the individual officer accused of improper conduct; and
(5) the assertion of rights in a criminal proceeding, including filing a motion to suppress, had
plaintiff been criminally charged as result of the incident in question.
¶ 38. We conclude that none of the State’s proffered alternative remedies would provide
meaningful redress to plaintiff for the constitutional transgressions he alleges. Generally, 42
U.S.C. § 1983 “creates a remedy for violations of federal rights committed by persons acting under
color of state law.” Howlett v. Rose, 496 U.S. 356, 358 (1990). A § 1983 action for monetary
damages cannot be maintained against a state, a state agency, or state officials sued in their official
capacity. Id. at 365. One may obtain injunctive relief against state officials in their official
capacity under § 1983, Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 n.10 (1989), but
monetary damages are available against state officials only in their individual capacity, Kentucky
v. Graham, 473 U.S. 159, 165 (1985).
¶ 39. Notwithstanding these impediments, some courts have found § 1983 to be a viable
alternative remedy to a direct private right of action for damages under certain provisions of their
state constitutions. See State v. Heisey, 271 P.3d 1082, 1096-97 (Alaska 2012) (concluding that
§ 1983 is viable alternative remedy because “an alternative remedy need not be an exact match”
and protections against excessive force in state and federal constitutions “are substantially the
same”); Jones v. City of Phila., 890 A.2d 1188, 1212-13 (Pa. Commw. Ct. 2006) (stating that
§ 1983 is viable alternative remedy because state constitutional protection against use of excessive
force is no broader than federal constitutional protection). However, apart from the fact that § 1983
actions seeking damages may be brought only against government officials in their individual
capacity, this Court has construed Article 11 to provide broader protections than the Fourth
Amendment in several contexts, including the context at issue here. See State v. Cunningham,
22
2008 VT 43, ¶ 16, 183 Vt. 401, 954 A.2d 1290 (noting that this Court has “consistently held that
Article 11 provides greater protections than its federal analog, the Fourth Amendment”); State v.
Bauder, 2007 VT 16, ¶ 10, 181 Vt. 392, 924 A.2d 38 (recognizing that both Article 11 and Fourth
Amendment protect against unreasonable government intrusions into legitimate expectations of
privacy, but noting that “we have also long held that our traditional Vermont values of privacy and
individual freedom—embodied in Article 11—may require greater protection than that afforded
by the federal Constitution”); see, e.g., State v. Sprague, 2003 VT 20, ¶¶ 16-20, 175 Vt. 123, 824
A.2d 539 (declining to follow under Article 11 U.S. Supreme Court’s holding in Pennsylvania v.
Mimms, 434 U.S. 106, 111 (1977), that police may order driver to exit vehicle whenever vehicle
has been lawfully stopped); State v. Oakes, 157 Vt. 171, 183-84, 598 A.2d 119, 126-27 (1991)
(declining to follow good-faith exception to exclusionary rule adopted in United States v. Leon,
468 U.S. 897 (1984)). In this case, plaintiff seeks redress under Article 11 for some conduct—for
example, the exit order—that could not have been actionable under the Fourth Amendment. See
Sprague, 2003 VT 20, ¶¶ 16-20.
¶ 40. This Court has followed other courts in inferring a private right of action under
various state constitutional provisions because “[w]hile certain wrongs may find redress under
federal law, we recognize the inherent and independent value in the rights and protections
enshrined in our own constitution.” Town Highway, 2012 VT 17, ¶ 27. As we stated in Town
Highway, “the federal statutory remedy under 42 U.S.C. § 1983 generally ‘creates no impediment
to judicial recognition of a damages remedy’ under the state constitution, as the civil rights statute
is limited to violations of federal law, and the state constitution may protect broader interests than
those under the federal constitution.” Id. ¶ 54 n.6 (quoting Binette, 710 A.2d at 698 n.18); see
Widgeon v. E. Shore Hosp. Ctr., 479 A.2d 921, 929 (Md. 1984) (holding that existence of remedy
under § 1983 “is not a persuasive basis” to defeat claim based on state constitution). Accordingly,
we do not find § 1983 to be an adequate alternative remedy in this case.
23
¶ 41. The State’s reliance on injunctive relief as an alternative remedy is equally
unavailing. As the U.S. Supreme Court noted in Bivens, “damages have been regarded as the
ordinary remedy for an invasion of personal interests in liberty.” 403 U.S. at 395. Indeed, the
ineffectiveness of injunctive relief as a remedy for a past invasion of an individual’s liberty interest
resulting from an unlawful search and seizure was what prompted the Supreme Court to imply a
constitutional damage remedy in Bivens. See id. at 409-10 (Harlan, J., concurring) (“[I]t is
apparent that some form of damages is the only possible remedy for someone in Bivens’ alleged
position. It will be a rare case indeed in which an individual in Bivens’ position will be able to
obviate the harm by securing injunctive relief from any court.”); Brown, 674 N.E.2d at 1141
(stating that injunctive relief was not viable alternative remedy for alleged unconstitutional
seizures because plaintiffs “had no opportunity to obtain injunctive relief before the incidents
described and no ground to support an order enjoining future wrongs”); see also Town Highway,
2012 VT 17, ¶ 86 (Dooley, J., concurring and dissenting) (stating that “deprivation of the
constitutional right to be protected against unreasonable searches could not be undone or remedied
through any . . . means” other than “a monetary award”).
¶ 42. Moreover, we find no merit to the State’s argument that a viable alternative remedy
exists here in the potential to reclaim property under Vermont Rule of Criminal Procedure 41 or
to seek return of forfeited property under 18 V.S.A. §§ 4241-4248. There is no indication that
plaintiff made any claim for seized or forfeited property, which would be the case in many, if not
most, instances involving an unlawful search and seizure. In this case, the extent of plaintiff’s
property loss would have been, at most, a metal grinder and a pipe containing marijuana residue.
Return of such property would hardly provide a meaningful remedy for the alleged violation of his
constitutional rights.
¶ 43. Nor do we find merit in the State’s suggestion that an administrative complaint
would be a viable alternative. If that were the case, no damages claim would ever lie against a
24
public official. Even if a confidential internal affairs investigation resulted in some disciplinary
action against a law enforcement officer, 20 V.S.A. § 1923(d) (providing that records of internal
investigation shall be confidential with specific exceptions), it would offer no remedy to
individuals deprived of their constitutional rights, other than the knowledge that the offending
officer may or may not have been disciplined, which may or may not result in others being spared
a similar deprivation of their rights.
¶ 44. The simple answer to the State’s argument that plaintiff could have filed a motion
to suppress had he been charged with a crime is that he was not—and apparently could not
successfully have been—charged with a crime. “The interest protected by Article 11, like the
Fourth Amendment, is the expectation of the ordinary citizen, who has never engaged in illegal
conduct . . . .” State v. Bryant, 2008 VT 39, ¶ 39, 183 Vt. 355, 950 A.2d 467 (quotation omitted)
(“We protect defendant’s marijuana plots against [warrantless aerial] surveillance so that law-
abiding citizens may relax in their backyards, enjoying a sense of security that they are free from
unreasonable surveillance.”); see United States v. White, 401 U.S. 745, 788 n.24 (1971) (Harlan,
J., dissenting) (reasoning that scope of constitutional protection must reflect “the impact of a
practice on the sense of security that is the true concern of the [Fourth Amendment’s] protection
of privacy”). A constitutional tort action seeking damages may be a necessary remedy for an
innocent person subjected to an unreasonable search and seizure that does not lead to a prosecution
because “criminal process remedies are only effective when the government chooses to invoke its
criminal powers against an individual.” J. Park, The Constitutional Tort Action as Individual
Remedy, 38 Harv. C.R.-C.L. L. Rev. 393, 449 (2003); see Brown, 674 N.E.2d at 1141 (stating that
exclusion of evidence obtained during unconstitutional seizures had no deterrent value because
plaintiffs were “not charged with any crime as the result of their detention”).
¶ 45. Finally, the State does not suggest, and we do not find, a viable alternative remedy
in a potential common law tort action against the allegedly offending officer. Cf. Long v.
25
L’Esperance, 166 Vt. 566, 568, 701 A.2d 1048, 1050 (1997) (“Following his arrest by [state
trooper] on charge of disorderly conduct, plaintiff brought this action alleging unlawful arrest,
false imprisonment, assault, battery, and intentional infliction of emotional distress.” (citation
omitted)). As the U.S. Supreme Court stated in Bivens, “[t]he interests protected by state laws
regulating trespass and the invasion of privacy, and those protected by the Fourth Amendment’s
guarantee against unreasonable searches and seizures, may be inconsistent or even hostile.” 403
U.S. at 394; see Binette, 710 A.2d at 699 (noting “important distinction between the tortious
misconduct of one private citizen toward another, on the one hand, and the violation of a citizen’s
constitutional rights by a police officer, on the other”); Dorwart, 2002 MT 240, ¶ 46 (“Common
law causes of action intended to regulate relationships among and between individuals are not
adequate to redress the type of damage caused by the invasion of constitutional rights.”); Brown,
674 N.E.2d at 1140-41 (stating that plaintiffs’ right to recover damages for alleged constitutional
torts should not be dependent on availability of common law tort actions, which “are heavily
influenced by overriding concerns of adjusting losses and allocating risks, matters that have little
relevance when constitutional rights are at stake”).
¶ 46. In sum, none of the alternative remedies proffered by the State can substitute as a
viable remedy for someone subjected to an allegedly unconstitutional search or seizure, most
particularly in a case like this where plaintiff was not charged with a crime. In addition to
providing a compensatory remedy for particular individuals whose constitutional rights have been
violated by state officials, the adjudication of constitutional torts has played a critical role in
establishing specific constitutional limits on governmental power in a way that could not be
provided by injunctive relief or common law actions. See J. Park, supra, at 396, 450-53. For the
reasons discussed above, we conclude that a private right of action seeking money damages for
violations of Article 11 is available directly under that constitutional provision absent any adequate
alternative legislatively enacted remedy.
26
C. Limiting Principle
¶ 47. The question remains, however, whether this Court should impose any limitations
on this judicially recognized constitutional damage remedy. In Town Highway, we stated that the
caution we raised in Shields about creating a private damage remedy when the Legislature had not
created an alternative civil remedy was “magnified in the context of recognizing a tort remedy
under the broad mandate of Article 7.” 2012 VT 17, ¶ 36. We concluded, therefore, that in
addition to requiring a plaintiff to show the absence of an adequate alternative remedy to vindicate
the interest asserted, it was “necessary and appropriate to establish stringent additional
requirements to obtain monetary relief for a violation of Article 7.” Id. ¶ 37. We held that a
plaintiff alleging a constitutional tort claim pursuant to Article 7, the Common Benefits Clause,
would have to show that: (1) the plaintiff was denied a common benefit; (2) the denial favored
another individual or group over the plaintiff; and (3) the decision to deny the benefit to the
plaintiff not only “was wholly irrational and arbitrary, but also . . . actuated by personal motives
unrelated to the duties of the defendant’s official position, such as ill will, vindictiveness, or
financial gain.” Id. We stated that this last element was necessary to “defer to any reasonable and
just basis supporting a discretionary judgment by a government decisionmaker” and “to bar routine
suits aimed merely at forcing a political body to change its decision, not through representative
politics, but through judicial action.” Id. ¶¶ 37-38 (quotation omitted).
¶ 48. The superior court rejected the State’s argument that any establishment of a
constitutional tort with respect to alleged violations of Article 11 should be limited by stringent
requirements similar to those set forth in Town Highway. The court rejected this argument in a
footnote, summarily stating that recognizing a private right of action under Article 11 would not
result in a flood of litigation for routine law enforcement actions and that there is no need for a
heightened standard of proof to secure damages because Article 11 provides its own standard—
the unreasonable exercise of authority by a state actor. On appeal, plaintiff argues that the superior
27
court correctly rejected a heightened standard for establishing a private damage remedy under
Article 11 and that a qualified immunity limitation is unnecessary to prevent a chilling effect on
law enforcement officers when the State rather than the individual officer is subject to liability.
¶ 49. In considering whether a rigorous standard is appropriate to limit a private damage
remedy directly under Article 11, we first note that the U.S. Supreme Court has applied an
objective qualified immunity limitation on Bivens actions—the constitutional tort progenitor that
itself involved a claim of an unlawful search under the Fourth Amendment. See Butz v.
Economou, 438 U.S. 478, 507 (1978). We recognize that we are not bound by federal law
concerning Bivens actions and that such actions are brought against government officials rather
than the government itself. We also recognize that the U.S. Supreme Court has suggested that
there would be less of a deterrent effect on unlawful government action in a suit brought against a
governmental agency rather than a government official.13 See F.D.I.C. v. Meyer, 510 U.S. 471,
485 (1994). But the U.S. Supreme Court plainly contemplated that a private direct constitutional
damage remedy would not be available every time there was an adjudicated violation of the federal
constitution, irrespective of its nature or impact. See Bivens, 403 U.S. at 410-11 (Harlan, J.,
concurring) (stating that direct constitutional damage remedy should at least be available “for the
most flagrant and patently unjustified sorts of police conduct,” keeping in mind that “the
countervailing interests in efficient law enforcement of course argue for a protective zone with
respect to many types of Fourth Amendment violations”).
13
As noted above, in our view, making the State responsible for the actions of its
employees would deter unlawful conduct by motivating the State to better train its employees and
to discipline or discharge them when the training proved ineffective. See Brown, 674 N.E.2d at
194-95. Moreover, beyond any goals of compensation and deterrence, constitutional tort actions
serve to establish and clarify “constitutional rights that both protect individuals from governmental
injury and regulate the discretion of the government to inflict injury.” J. Park, supra, at 396.
28
¶ 50. State courts are divided on whether to allow the government to assert common law
defenses such as qualified immunity or other limitations in civil rights suits seeking damages for
breaches of state constitutional provisions. G. Gildin, supra, at 902-03. Compare Clea v. Mayor
and City Council of Balt., 541 A.2d 1303, 1314 (Md. 1988) (“To accord immunity to the
responsible government officials, and leave an individual remediless when his constitutional rights
are violated, would be inconsistent with the purposes of the constitutional provisions.”), and
Dorwart, 2002 MT 240, ¶¶ 68-69 (holding that qualified immunity is not applicable to claims
alleging violation of rights guaranteed by state constitution because it would be inconsistent with
constitutional requirement that courts afford remedy for claims recognized by law), with Moresi,
567 So. 2d at 1094 (adopting qualified immunity in action against state officers acting under color
of state law for violations of state constitution), and Spackman v. Bd. of Educ. of the Box Elder
Cty. Sch. Dist., 2000 UT 87, ¶¶ 22-25, 16 P.3d 533 (holding that plaintiff seeking damages for
alleged constitutional tort must establish that there are no existing alternative remedies and that
constitutional violation was flagrant in that it violated clearly established constitutional rights of
which reasonable person would have been aware).
¶ 51. State courts have limited constitutional tort actions in other ways as well. Most
notably, in Martinez v. City of Schenectady, 761 N.E.2d 560 (N.Y. 2001), the New York Court of
Appeals limited the reach of its decision in Brown, in which it had determined that the court of
claims had jurisdiction over a constitutional tort claim seeking damages for unconstitutional
searches. The suit in Brown was a class action brought by nonwhite males who were stopped and
searched by officers investigating a crime, but who were never charged with a crime. A later
constitutional tort case was brought by a plaintiff whose drug conviction had been reversed on
appeal because it was based on evidence obtained pursuant to an invalid search warrant. In that
case, the New York Court of Appeals stated that the constitutional tort remedy it had recognized
in Brown was “not boundless” and that, in addition to proving that their constitutional rights had
29
been violated, claimants had to “establish grounds that entitle[d] them to a damages remedy.”
Martinez, 761 N.E.2d at 563. The court ruled that recognition of a constitutional tort claim under
the circumstances of that case was “neither necessary to effectuate the purposes of the State
constitutional protections plaintiff invokes, nor appropriate to ensure full realization of her rights.”
Id. The court explained that the deterrence objective of the constitutional tort would “be
satisfied . . . by exclusion of the constitutionally challenged evidence,” and that the plaintiff had
failed to show “how money damages [were] appropriate to ensure full realization of her asserted
constitutional rights.” Id. at 564. The court stated that the plaintiff had “not distinguished her case
from that of any criminal defendant who ha[d] been granted suppression, or reversal of a
conviction, based on technical error at the trial level,” and that she had “shown no grounds that
would entitle her to a damage remedy in addition to the substantial benefit she already ha[d]
received from dismissal of the indictment and release from incarceration.” Id.
¶ 52. We conclude that, in the absence of any applicable legislation addressing
constitutional torts, restrictions similar to those imposed in Town Highway are appropriate and
necessary in civil actions seeking damages for violations of Article 11. The principal concerns
that caused us in Town Highway to impose limitations on obtaining damages for claimed
deprivations of common benefits, in violation of Article 7, were the potential flood of litigation
for every alleged constitutional violation and the potential chilling effect on citizens serving on
local boards. 2012 VT 17, ¶¶ 52, 56. We have similar concerns in the context of this case. On a
daily basis, law enforcement officers must make numerous decisions on how to handle interactions
with citizens, particularly motorists. Even with liability falling on the State rather than the
individual officer, a rule that exposes the State to a potential civil damages suit following every
roadside stop, or whenever a motion to suppress is granted, could inhibit law enforcement officers
from taking some effective and constitutionally permissible actions in pursuit of public safety.
This would not be an appropriate result.
30
¶ 53. Accordingly, imposing restrictions akin to qualified immunity is appropriate. See
id. ¶ 57 (stating that imposing restrictions on constitutional torts “serves the equivalent function of
the qualified immunity doctrine” and acts “as a buffer against liability in all but the most egregious
of cases”); see also M. Wells, Civil Recourse, Damages-As-Redress, and Constitutional Torts, 46
Ga. L. Rev. 1003, 1038-39 (2012) (noting that U.S. Supreme Court has justified qualified
immunity “as an accommodation between the social value in compensating the plaintiff and
deterring constitutional violations, on the one hand, and the social need to avoid overdeterrence of
bold and effective official action, on the other”); L. Rosenthal, A Theory of Governmental
Damages Liability: Torts, Constitutional Torts, and Takings, 9 U. Pa. J. Const. L. 797, 800, 856
(2007) (opining that although discretionary and categorical immunities are inappropriate for
constitutional violations, damages-limiting doctrines such as qualified immunity are appropriate
to “protect the interests of the taxpayers and avoid unwarranted reallocation of scarce public
resources”); cf. Anderson v. Creighton, 483 U.S. 635, 643-44 (1987) (rejecting plaintiff’s
argument in Bivens action “that it is inappropriate to give officials alleged to have violated the
Fourth Amendment—and thus necessarily to have unreasonably search or seized—the protection
of a qualified immunity intended only to protect reasonable official action”). Although we have
rejected herein a blanket governmental immunity from constitutional tort actions, we are cognizant
of our need to be cautious when judicially recognizing potential damage liability to be imposed on
another branch of government. See D. Dobbs et al., The Law of Torts § 334, at 331 (2d ed. 2011)
(retaining limited immunity prevents judicial branch from intruding upon functions of legislative
and executive branches through adjudication of tort suits); see also Meyer, 510 U.S. at 486 (“If we
were to recognize a direct action for damages against federal agencies, we would be creating a
potentially enormous financial burden for the Federal Government.”).
¶ 54. With these considerations in mind, we hold that a plaintiff seeking damages against
the State directly under Article 11 based on a law enforcement officer’s alleged violation of that
31
constitutional provision must show that: (1) the officer violated Article 11; (2) there is no
meaningful alternative remedy in the context of that particular case; and (3) the officer either knew
or should have known that the officer was violating clearly established law or the officer acted in
bad faith. Cf. Spackman, 2000 UT 87, ¶ 23 (stating that requiring flagrant conduct “ensures that
a government employee is allowed the ordinary human frailties of forgetfulness, distractibility, or
misjudgment without rendering [him or her]self liable for a constitutional violation” (quotation
omitted)). “A clearly established right is one that is sufficiently clear that every reasonable official
would have understood that what he is doing violates that right.” Mullenix v. Luna, ___ U.S. ___,
___, 136 S. Ct. 305, 308 (2015) (quotation omitted); see Anderson, 483 U.S. at 641 (stating that
relevant question is “whether a reasonable officer could have believed [the] warrantless search to
be lawful, in light of clearly established law and the information the searching officers possessed”).
“This ‘clearly established’ standard protects the balance between vindication of constitutional
rights and government officials’ effective performance of their duties by ensuring that officials can
reasonably anticipate when their conduct may give rise to liability for damages.” Reichle v.
Howards, 566 U.S. 658, 664 (2012) (quotations omitted); see Malley v. Briggs, 475 U.S. 335, 341
(1986) (noting that qualified immunity’s clearly-established-right test protects “all but the plainly
incompetent or those who knowingly violate the law”). On the other hand, bad faith, which may
exist even when the officer’s conduct could be viewed as objectively reasonable, is characterized
by ill will or wrongful motive, including discriminatory animus.
¶ 55. The third element set forth above includes a potential alternative showing of bad
faith that in some instances would require the factfinder to make an objective assessment of the
officer’s subjective motivations. We recognize that the U.S. Supreme Court has abandoned a
subjectively based malice component that would defeat a qualified immunity defense, reasoning
that a judicial inquiry into subjective motivation might entail broad-ranging discovery that is
inherently incompatible with immunity from suit. See Harlow v. Fitzgerald, 457 U.S. 800, 815-
32
18 (1982). We also recognize that plaintiff is suing the State, and that qualified immunity is
generally recognized as a common law defense against government officials. We emphasize,
however, that the third element set forth above, although akin to qualified immunity in some
respects, is not an immunity from suit but rather an element that a plaintiff must prove to obtain
damages in a civil action directly under Article 11 for alleged constitutional violations.
¶ 56. To the extent that the element is similar to qualified immunity, imposing such an
element is appropriate not only for the reasons discussed above, but because a plaintiff’s claims
against the State in such circumstances will generally be derivative of a law enforcement officer’s
actions. Cf. Czechorowski v. State, 2005 VT 40, ¶ 28, 178 Vt. 524, 872 A.2d 883 (mem.) (rejecting
plaintiff’s argument that trial court erred by immunizing State from suit for actions of its
employees because “claims against the State are derivative of the claims against the individual
defendants”). Moreover, we emphasize that although subjective motivation may often have to be
resolved by the factfinder, a plaintiff cannot withstand summary judgment without producing
colorable facts upon which a reasonable jury could find bad faith. Cf. Lee v. Cline, 863 A.2d 297,
312 (Md. 2004) (concluding that there was jury question with regard to malice where officer sought
to search plaintiff’s car without cause or consent, officer unnecessarily and unjustifiably extended
stop for suspected motor vehicle violation in order to obtain canine unit, and officer unjustifiably
labeled plaintiff as uncooperative).
IV. The Alleged Violations
A. The Stop
¶ 57. Having rejected the State’s claim of blanket immunity and established the standard
for evaluating plaintiff’s constitutional tort claim, we now examine each of the alleged Article 11
violations. Plaintiff first challenges Trooper Hatch’s decision to stop his vehicle. The law on
vehicle stops is well-settled. Like the Fourth Amendment, Article 11 “protect[s] citizens against
unreasonable searches and seizures.” State v. Manning, 2015 VT 124, ¶ 11, 200 Vt. 423, 132 A.3d
33
716; see State v. Berard, 154 Vt. 306, 309, 576 A.2d 118, 120 (1990) (noting that Article 11
imports Fourth Amendment’s “reasonableness” standard). The temporary stop of a vehicle is a
seizure subject to Article 11 protection from governmental invasions of privacy. State v. Winters,
2015 VT 116, ¶ 13, 200 Vt. 296, 131 A.2d 186.
¶ 58. Although seizures normally require that a law enforcement officer have probable
cause to believe that the person being seized has engaged in criminal activity, the lesser standard
of reasonable suspicion of either criminal activity or even a minor traffic violation can form the
basis of a valid temporary stop. State v. Tuma, 2013 VT 70, ¶ 8, 194 Vt. 345, 79 A.3d 883 (“[E]ven
a minor traffic infraction can be the basis of a traffic stop.”); see Manning, 2015 VT 124, ¶ 12
(stating that “an officer’s reasonable suspicion of a traffic violation can form the basis for a lawful
stop”); State v. Lussier, 171 Vt. 19, 34, 757 A.2d 1017, 1027 (2000) (“[T]he law is well-settled
that police may stop a vehicle and briefly detain its occupants to investigate a reasonable and
articulable suspicion that a motor vehicle violation is taking place.”). The detention, however,
“must be temporary and last no longer than necessary to effectuate the purpose of the stop,” unless
“an officer gathers additional information providing reasonable suspicion that some other criminal
activity is afoot,” in which case “the officer may extend the detention to investigate that activity.”
Winters, 2015 VT 116, ¶ 14.
¶ 59. “The level of suspicion required for a lawful investigatory stop is considerably less
than a preponderance of the evidence, but it must be more than an inchoate and unparticularized
suspicion or hunch.” State v. Thompson, 175 Vt. 470, 471, 816 A.2d 550, 552 (2002) (mem.)
(quotation omitted). “In determining whether an officer had reasonable suspicion to effectuate a
seizure or extend an investigative detention, we look at the totality of the circumstances.”
Manning, 2015 VT 124, ¶ 14. “In determining the legality of a stop, courts do not attempt to divine
the arresting officer’s actual subjective motivation for making the stop; rather, they consider from
an objective standpoint whether, given all of the circumstances, the officer had a reasonable and
34
articulable suspicion of wrongdoing.” Lussier, 171 Vt. at 23-24, 757 A.2d at 1020; see State v.
Rutter, 2011 VT 13, ¶ 16, 189 Vt. 574, 15 A.3d 132 (mem.) (“We conclude that the protections of
Article 11 do not extend to prohibiting law enforcement officers from stopping motor vehicles
where there is an objectively reasonable suspicion that a motor vehicle violation has occurred,
even if in a particular situation these infractions may appear ‘trivial’ or the officer’s motivation is
suspect.”).
¶ 60. Here, the parties debate whether there actually was a motor vehicle infraction
justifying the stop and, if there was not, whether this Court should adopt under Article 11 the U.S.
Supreme Court’s holding in Heien that a stop based on a law enforcement officer’s objectively
reasonable mistake of law as to whether there was a motor vehicle violation may “rise to the
reasonable suspicion necessary to uphold the seizure under the Fourth Amendment.”14 Heien, ___
14
Regarding the latter argument, plaintiff contends that adopting the Heien holding would
be inconsistent with the broader protection we have established under Article 11, see State v. Pitts,
2009 VT 51, ¶ 19, 186 Vt. 71, 978 A.2d 14 (stating that this Court has construed Article 11 to
provide greater protection than Fourth Amendment and has “regularly invoked this principle to
place reasonable restrictions on the scope of police authority to detain and search citizens”),
particularly with respect to our rejection under Article 11 of the U.S. Supreme Court’s good-faith
exception to the exclusionary rule pursuant to the Fourth Amendment, see State v. Oakes, 157 Vt.
171, 172, 598 A.2d 119, 120 (1991) (declining to adopt holding in United States v. Leon, 468 U.S.
897 (1984)). Plaintiff asserts that this Court has rejected the balancing test that the U.S. Supreme
Court applies in its Fourth Amendment jurisprudence, see State v. Savva, 159 Vt. 75, 85-86, 616
A.2d 774, 780 (1991) (stating that Article 11’s warrant requirement itself reflects “the balance
reached by the constitutional drafters, a balance in which the individual’s interest in privacy
outweighs the burdens imposed on law enforcement”), as exemplified by our rejection of the good-
faith exception to the exclusionary rule. See Oakes, 157 Vt. at 183, 598 A.2d at 126-27 (“We will
not impose such a significant limitation upon our state exclusionary rule on the basis of the [U.S.
Supreme] Court’s cost-benefit analysis in Leon.”). The State responds that the Heien standard for
determining the existence of a reasonable mistake of law—whether there was an objectively
reasonable interpretation of a genuinely ambiguous statute, see Heien, ___ U.S. at ___, 135 S. Ct.
at 541 (Kagan, J., concurring)—is an appropriate standard for determining whether there exists
reasonable suspicion for a stop under Article 11. In support of this contention, the State asserts
that no clear distinction can be drawn between reasonable mistakes of law and fact and that
allowing mistakes of law to justify stops will not have any repercussions distinct from those
resulting from allowing reasonable mistakes of fact to justify stops. See State v. Roberts, 160 Vt.
385, 391, 393, 631 A.2d 835, 839, 840 (1993) (concluding under Article 11 and Fourth
Amendment “that, if the officer had a reasonable belief that the premises had been abandoned, his
entry was lawful even if the premises had not been abandoned”). Courts have noted the difficulty
35
U.S. at ___, 135 U.S. at 534; see id. at 541 (Kagan, J., concurring) (“If the statute is genuinely
ambiguous, such that overturning the officer’s judgment requires hard interpretive work, then the
officer has made a reasonable mistake.”);15 see also State v. Hurley, 2015 VT 46, ¶¶ 19-21, 198
Vt. 552, 117 A.3d 433 (concluding that motor vehicle operator did not violate statute at issue, but
that defendant’s challenge to stop under Fourth Amendment was unavailing because statute was
genuinely ambiguous and thus officer’s misapprehension of statute provided objectively
reasonable basis to allow stop pursuant to holding in Heien). We need not resolve this issue
because, as explained below, we conclude that any mistake of law in this case was not objectively
reasonable under the standard advocated by the State and set forth in Justice Kagan’s concurrence
in Heien.16
¶ 61. The State relies upon the then-current version of 23 V.S.A. § 511 to support
Trooper Hatch’s stop of plaintiff’s vehicle. The statute, titled “Manner of display,” is within the
of distinguishing mistakes of law and fact, see People v. Glick, 203 Cal. App. 3d 796, 801 (Cal.
Ct. App. 1988) (noting that distinction between mistake of fact and mistake of law “is often hard
to draw”), and have at times disagreed as to whether a mistake was one of law or fact. Compare
United States v. Pena-Montes, 589 F.3d 1048, 1054, 1064 (10th Cir. 2009) (majority and dissent
disagree about whether officer’s mistake regarding dealer plates was one of law or fact), with State
v. Horton, 246 P.3d 673, 676-77 (Idaho Ct. App. 2010) (noting that mistakes of fact and law are
inextricably connected and concluding that officer’s mistake regarding repossession plates “was
primarily one of fact, not one of law”).
15
As noted by Justice Sotomayor’s dissent in Heien, all but one of the federal circuit
courts, and five states, had previously “held that police mistakes of law [could not be] a factor in
the reasonableness inquiry.” ___ U.S. at ___ n.1, 135 S. Ct. at 544 n.1.
16
In Lussier, the defendants in separate consolidated cases challenged motor vehicle stops
based on their contention that they had not violated the statutes at issue. We upheld one conviction,
concluding that the State had demonstrated a reasonable and articulable basis for the stop because
the defendant violated the statute, and we reversed the other conviction, concluding that the State
had failed to demonstrate a reasonable and articulable basis for the stop because the defendant did
not violate the statute. Lussier, 171 Vt. at 35-37, 757 A.2d at 1028-29. However, the parties did
not raise, and we did not address, whether the statutes involved were ambiguous or, if they were,
whether the stops could have been justified as long as the officers had an objectively reasonable
basis to believe that violations of motor vehicle laws had occurred—even if they had not occurred.
36
subchapter heading titled, “Display of Number Plates.” At the time of the stop in question in this
case, § 511 provided in its entirety as follows, with the key sentence highlighted:
A motor vehicle operated on a public highway shall have displayed
in a conspicuous place either one or two number plates as the
commissioner of motor vehicles may require. Such number plates
shall be furnished by the commissioner of motor vehicles, showing
the number assigned to such vehicle by the commissioner. If only
one number plate is furnished, the same shall be securely attached
to the rear of the vehicle. If two are furnished, one shall be securely
attached to the rear and one to the front of the vehicle. The number
plates shall be kept entirely unobscured, the numerals and the letters
thereon shall be plainly legible at all times. They shall be kept
horizontal, shall be so fastened as not to swing, excepting however,
there may be installed on a motor truck or truck tractor a device
which would, upon contact with a substantial object, permit the rear
number plate to swing toward the front of the vehicle, provided such
device automatically returns the number plate to its original rigid
position after contact is released, and the ground clearance of the
lower edges thereof shall be established by the commissioner
pursuant to the provisions of chapter 25 of Title 3. A person shall
not operate a motor vehicle unless the number plates are displayed
as provided in this section.
23 V.S.A. § 511 (2014) (emphasis added).
¶ 62. We enforce unambiguous statutes according to their plain language to effectuate
legislative intent, without the need to resort to legislative history. State v. Porter, 2012 VT 97,
¶ 10, 192 Vt. 601, 70 A.3d 915. The plain language of the former § 511 provided that the
identifying numerals and letters of a license plate had to remain “entirely unobscured” so that
vehicles could be readily identified. See Tuma, 2013 VT 70, ¶ 12 (stating that “all of the mandates
of § 511 governing the manner of display of license plates are related to visibility and readability
of the plate”); see also 23 V.S.A. § 304(b)(2)(B) (“[T]he primary purpose of motor vehicle number
plates is vehicle identification.”); Martin v. State, 2003 VT 14, ¶ 43, 175 Vt. 80, 819 A.2d 742
(Johnson, J., dissenting) (“[T]he stated goal of Vermont in issuing . . . license plates . . . is to aid
in vehicle identification.”). Thus, under the former § 511, a license plate was not obscured unless
the identifying numerals and letters were obscured. Although a registration sticker contains small
37
numbers and letters and is affixed to a corner of the plate, those numbers and letters do not serve
the purpose of identifying the vehicle. Hence, an obscured registration sticker did not violate the
former § 511.
¶ 63. Our decision in Tuma is instructive in this regard. There, relying on § 511’s
requirement that number plates “be kept horizontal,” a police officer stopped the defendant’s
vehicle based on his observation that one side of the front license plate was one to two inches
below the other side. Without finding the need to examine § 511’s legislative history, we upheld
the trial court’s grant of the defendant’s motion challenging the legality of the stop, holding that
“a proper reading of the statute” is “that a license plate ceases to be ‘horizontal’ when the angle of
the license makes it difficult for a person with normal vision to read it.” Tuma, 2013 VT 70,
¶¶ 12, 14. Because the prosecution had failed to present any evidence that the numerals or letters
on the plate were not legible as the result of the plate’s positioning, it could not show that the
officer had reason to suspect that the defendant had violated § 511, which was aimed at ensuring
the visibility and readability of number plates. Id. ¶¶ 8, 15.
¶ 64. The same is true here. Even if we were to adopt the Heien concurrence allowing
seizures based on a law enforcement officer’s objectively reasonable mistake as to the meaning of
a genuinely ambiguous statute, it would not benefit the State in this case because the statute at
issue is not genuinely ambiguous, and thus the State cannot show that Trooper Hatch had an
objectively reasonable basis for concluding that plaintiff had violated the statute.17
17
The majority in Heien did not set forth a standard for determining whether a law
enforcement officer’s mistaken interpretation of a law was objectively reasonable, but the
concurrence emphasized that, to pass constitutional muster, the mistake would have to be one of
those rare instances where the statute was “genuinely ambiguous, such that overturning the
officer’s judgment [would] require[] hard interpretive work.” Heien, ___ U.S. at ___, 135 S. Ct.
at 541 (Kagan, J., concurring). Since then, other courts, including this Court, have referred to the
standard espoused in the Heien concurrence. See Hurley, 2015 VT 46, ¶¶ 16, 20 (acknowledging
that broad interpretation of statutes to support reasonable basis for motor vehicle stops could
impinge on driver’s constitutional privacy interests, and emphasizing high bar Heien concurrence
set for determining when motor vehicle stops can be predicated on objectively reasonable mistake
38
¶ 65. Our conclusion is supported by the Legislature’s enactment of the 2014
Amendment to § 511, which plainly created a new statutory obligation by requiring that
registration stickers be unobstructed. See Doe v. Vt. Office of Health Access, 2012 VT 15A, ¶ 26,
191 Vt. 517, 54 A.3d 474 (“We presume that the Legislature intended to change the meaning of a
statute when it amends it, but we will recognize clarification of the law where the circumstances
clearly indicate it was intended.” (quotation omitted)). In relevant part, § 511 was amended in
2014 as follows:
(a) . . . . The number plates shall be kept entirely unobscured, and
the numerals and the letters thereon shall be plainly legible at all
times.
....
(b) A registration validation sticker shall be unobstructed, and shall
be affixed as follows:
....
(c) A person shall not operate a motor vehicle unless number plates
and a validation sticker are displayed as provided in this section.
2013, No. 189 (Adj. Sess.), § 4.
¶ 66. Thus, there were three changes to § 511. First, the word “and” was inserted
between the two clauses of section (a)—thereby indicating that henceforth keeping the number
plates entirely unobscured is an additional requirement and not merely tied to the purpose of
keeping the number plates’ letters and numbers legible to allow identification of vehicles. Id.
Second, section (b) was added to require that validation stickers be unobstructed. And third, the
phrase “and a validation sticker” was added to the last sentence of § 511, thereby indicating that
henceforth a person operating a motor vehicle must display as provided a validation sticker in
addition to number plates. Id. These three changes complement each other and demonstrate that
of law pursuant to Fourth Amendment); see also State v. Dopslaf, 2015-NMCA-098, ¶¶ 16-17,
356 P.3d 559 (referring to standard set forth in Heien concurrence in determining that officer’s
stop of defendant’s vehicle was based on objectively reasonable mistake of law).
39
the Legislature amended § 511 to add the requirement that registration stickers be displayed and
kept unobscured, thus making the failure to display an unobscured validation sticker a motor
vehicle violation.
¶ 67. The State points to the then-current version of 23 V.S.A. § 305(c), which at the time
of the stop in question provided, in relevant part, that “no plate is valid for the second and
succeeding years unless the [registration] sticker is affixed to the rear plate in the manner
prescribed by the Commissioner.” The same act that amended § 511 amended § 305(c) to remove
the words “for the second and succeeding years” and add the phrase “in section 511 of this title.”
2013 No. 189 (Adj. Sess.), § 3. Nothing in the plain language of the then-current version of
§ 305(c) provided Trooper Hatch with a reasonably objective belief that plaintiff was in violation
of a motor vehicle law when he stopped plaintiff’s vehicle.18
18
Relying on Thompson, 175 Vt. at 471-72, 816 A.2d at 552-53, the State also cites the
state inspection manual as requiring inspectors to ensure that the registration sticker is
unobstructed. See Vermont Periodic Inspection Manual, at CAR 1.2, http://dmv.vermont.gov
/sites/dmv/files/documents/DMV-VN112-Vehicle_Inspection_Manual.pdf [https://perma.cc/SM
K2-GDJS]. The State does not indicate that the cited portion of the manual was in place at the
time of the incident in question. In any event, the State’s reliance on Thompson is unavailing. In
the cases consolidated in Thompson, the defendants were stopped because in one case the vehicle
was missing a bumper and in the other case a side rearview mirror. Because the inspection manual
required that any car manufactured with a bumper or a rearview mirror must have them to pass
inspection, and the officers who stopped the vehicles could not tell at night whether the vehicles
had current inspection stickers, we concluded that the stops were supported by a reasonable and
articulable suspicion that a motor vehicle violation had occurred. Id. at 472, 816 A.2d at 553. In
so ruling, we emphasized that the vehicles in their condition would not have passed inspection. Id.
Here, in contrast, the undisputed facts indicate that, at best from the perspective of the State,
plaintiff had a visible registration sticker affixed to his vehicle’s rear plate at the time of the stop,
but that it was partially covered by snow temporarily because of the weather. This is not a situation
where the officer had an objectively reasonable basis to assume that plaintiff was driving a vehicle
that could not pass inspection or that posed a public safety hazard. We decline to extend our
reasoning in Thompson beyond situations where observed violations of the inspection manual give
rise to a reasonable suspicion that a vehicle is being operated without a valid inspection sticker—
which was not the case here. Cf. Hurley, 2015 VT 46, ¶ 17 (rejecting broad interpretation of motor
vehicle statute that “would significantly reduce the personal liberty of drivers, and passengers, on
Vermont’s highways by subjecting a substantial proportion of them to police stops without any
commensurate benefit to public safety”).
40
¶ 68. Accordingly, we conclude that Trooper Hatch’s stop of plaintiff’s vehicle violated
Article 11 because it was not supported by a reasonable and articulable suspicion that plaintiff had
committed a motor vehicle violation. Although our inquiry would most likely end at this point if
this were an appeal from a criminal conviction or a civil suspension violation, in which the fruits
of any illegal stop would be suppressed, in this civil constitutional tort action against the State, we
must examine plaintiff’s other allegations that his Article 11 rights were violated during the
incident in question. See Townes v. City of New York, 176 F.3d 138, 145 (2d Cir. 1999) (stating
that “[t]he fruit of the poisonous tree doctrine is an evidentiary rule that operates in the context of
criminal procedure” and “has generally been held to apply only in criminal trials” (quotation
omitted)).
¶ 69. As the Second Circuit reasoned in Townes, § 1983 actions alleging constitutional
torts are analogous to common law actions aimed at compensation, and thus they generally employ
the principle of proximate cause to determine damages; whereas, the fruit of the poisonous tree
doctrine disregards traditional causation analysis to serve the objective of deterring unlawful police
conduct by creating an incentive for state actors to respect suspects’ constitutional rights. Id. at
145-46. Because “[t]he fruit of the poisonous tree doctrine is not available to elongate the chain
of causation,” id. at 146, and “constitutional tort liability . . . is limited to the kind of injury that
[the constitutional right at issue] was designed to prevent,” id. at 148 (quotation omitted, alteration
in original), “police-civilian interactions [are] discrete links that must be analyzed largely
independent of what came before or after; damages are tied tightly to the specific right associated
with each link and tend not to expand into other stages of the interactions.” Willis v. Mullins, No.
1:04-CV-6542 AWI BAM, 2017 WL 3208714, at *4 (E.D. Cal. July 28, 2017); see also Foster v.
Land, No. 2:16-cv-45 RLM, 2017 WL 6805319, at *5 (N.D. Ind. Nov. 16, 2017) (stating “that
because the ‘fruit of the poisonous tree’ rationale doesn’t apply in suits for constitutional torts,
lack of probable cause to stop and search doesn’t affect the reasonableness of an ensuing arrest,”
41
and, “[b]y the same reasoning, an unreasonable stop, if found by the jury, wouldn’t affect [the
officer’s] entitlement to immunity from any constitutional claim arising from the arrest or from
the seizure and inventory search of the automobile”).
¶ 70. Because a jury could determine that one or more of the alleged Article 11 violations
does not satisfy the elements for seeking damages to remedy the alleged violations, we must
examine each of the alleged violations.
B. The Exit Order
¶ 71. Plaintiff also argues that his Article 11 rights were violated when Trooper Hatch
ordered him to exit his car. In Sprague, this Court held that an exit order following a traffic stop
offends Article 11 unless “the objective facts and circumstances would support a reasonable
suspicion that the safety of the officer, or of others, was at risk or that a crime has been committed.”
2003 VT 20, ¶ 16. We declined to adopt under Article 11 the U.S. Supreme Court’s determination
pursuant to the Fourth Amendment that police officers could automatically order a driver to exit a
vehicle following a routine traffic stop, which we believed would “invite[] arbitrary, if not
discriminatory, enforcement.” Id. ¶¶ 1, 19 (explicitly rejecting U.S. Supreme Court’s majority
holding in Pennsylvania v. Mimms, 434 U.S. 106 (1977)); see Mimms, 434 U.S. at 122 (Stevens,
J., dissenting) (stating that majority holding would subject some citizens to indignity of exit orders,
but not “others—perhaps those with more expensive cars, or different bumper stickers, or
different-colored skin”). We concluded that requiring an objective justification for exit orders
recognized the need to ensure the safety of law enforcement officers while enforcing “the
constitutional imperative of requiring individualized, accountable decision-making for every
governmental intrusion upon personal liberties.” Sprague, 2003 VT 20, ¶ 16.
¶ 72. Here, nothing in the record suggests that Trooper Hatch feared for his safety or the
safety of others—and the State makes no such argument. Thus, to pass muster under Article 11,
the exit order must have been based on reasonable suspicion of criminal wrongdoing, which must
42
arise from “specific and articulable facts” rather than an “inchoate and unparticularized suspicion
or hunch.” See State v. Alexander, 2016 VT 19, ¶ 21, 201 Vt. 329, 139 A.3d 574 (quotations
omitted); see also Cunningham, 2008 VT 43, ¶ 40 (“[A]ny expansion of the stop into a drug
investigation require[s] a reasonable, articulable, suspicion that defendant was committing a drug-
related crime.”). We look to the totality of the circumstances to determine if an officer had an
objective reasonable suspicion of criminal wrongdoing. Manning, 2015 VT 124, ¶ 14.
¶ 73. In this case, the superior court concluded that the faint odor of burnt marijuana,
along with what appeared to be masking paraphernalia—a bottle of Visine eyedrops and an air
freshener—justified the exit order based on the officer’s reasonable suspicion that plaintiff had
additional contraband on his person or in the car.19
¶ 74. We agree that, in and of itself, the exit order was lawful, but not on the basis relied
upon by the superior court. Operating a motor vehicle while under the influence of alcohol or “any
other drug” was a criminal offense at the time of the stop and remains so. 23 V.S.A. § 1201(a)(2)-
19
With respect to the exit order and the seizure and search of plaintiff’s vehicle, the parties
extensively debate the significance of the fact that at the time of the stop adult possession of less
than one ounce of marijuana was not a crime but rather a civil violation subject only to a fine.
Compare 18 V.S.A. § 4230a(a)-(b) (2017), with 2017, No. 86 (Adj. Sess.), § 4 (amending § 4230a
to remove all criminal and civil penalties for adult possession of one ounce or less of marijuana).
Plaintiff contends that Article 11 does not permit exit orders for suspected civil violations and that,
in this case, Trooper Hatch had no objectively reasonable suspicion that plaintiff had in his
possession more than one ounce of marijuana. On that basis, plaintiff seeks to distinguish State v.
Ford, where we upheld an exit order based in part on the odor of marijuana emanating from the
vehicle. 2007 VT 107, ¶¶ 2, 8, 182 Vt. 421, 940 A.2d 687 (upholding legality of exit order where
police officer received anonymous tip that woman and bald man had been using illegal drugs while
driving on interstate and police smelled odor of marijuana upon approaching parked vehicle). The
State counters that, in decriminalizing marijuana, the Legislature explicitly provided that it did not
“intend[] to affect the search and seizure laws afforded to duly authorized law enforcement
officers” and that marijuana remained contraband pursuant to 18 V.S.A. § 4242 “subject to seizure
and forfeiture” unless possessed lawfully for therapeutic use. Id. § 4230a(c)(2) (2017). In this
instance these statutes do not inform our determination of whether the exit order and seizure of
plaintiff’s vehicle violated Article 11.
43
(3);20 see 18 V.S.A. § 4230a(c)(1) (2017) (stating that section decriminalizing adult possession of
less than one ounce of marijuana “does not exempt any person from arrest or prosecution for being
under the influence of marijuana while operating a vehicle of any kind and shall not be construed
to repeal or modify existing laws or policies concerning the operation of vehicles of any kind while
under the influence of marijuana”); see also 2017, No. 86 (Adj. Sess.), § 4 (deleting § 4230a(c)(1)
but adding equivalent language in § 4230a(b)(2)). Trooper Hatch indicated that he detected the
faint odor of burnt marijuana when he approached plaintiff’s car after stopping plaintiff. He also
observed items that, although they have perfectly common and legal uses, he knew from his
experience in law enforcement to be used to mask the effects of marijuana use. In his deposition
testimony, Trooper Hatch indicated that the faint odor of burnt marijuana emanating from
plaintiff’s car and the redness of plaintiff’s eyes21 aroused his suspicion that plaintiff was driving
while impaired, but he agreed that his suspicion of plaintiff’s impaired driving dissipated during
the course of his discussions with plaintiff. Although it is not entirely clear from the record when
Trooper Hatch’s suspicion of impairment dissipated, that may have occurred following the exit
order, as the superior court suggested in its decision.
¶ 75. We conclude that the faint smell of burnt marijuana, in conjunction with the
trooper’s observations of items that may be used to mask the effects of smoking marijuana,
provided the trooper with an articulable and reasonable basis to order plaintiff to exit his vehicle
to determine whether plaintiff was driving impaired. Cf. State v. Young, 2010 VT 97, ¶ 21, 189
20
In 2014, after the instant stop occurred, the Legislature amended § 1201(a)(3) by
deleting the phrase, “to a degree which renders the person incapable of driving safely,” which had
followed the words, “and any other drug.” See 2013, No. 169 (Adj. Sess.), § 1. This fact has no
impact on our analysis.
21
Neither Trooper Hatch in his application for a search warrant, nor the State in its
statement of undisputed facts, indicated that the trooper observed redness in plaintiff’s eyes
following the stop.
44
Vt. 37, 12 A.3d 510 (concluding that “the strong smell of alcohol and defendant’s slurred speech
are sufficient indicia of driving under the influence to allow the officer to go further and initiate
field sobriety exercises”); State v. Santimore, 2009 VT 104, ¶ 8, 186 Vt. 638, 987 A.2d 332 (mem.)
(“Indicia of intoxication, such as an officer’s detection of the odor of alcohol emanating from a
driver as well as observation of a driver’s watery and bloodshot eyes, are sufficient to establish
reasonable suspicion of DUI.”); State v. Mara, 2009 VT 96A, 186 Vt. 389, 987 A.2d 939
(concluding that police officer was justified in ordering defendant to exit vehicle after defendant
admitted to having drunk alcohol and officer detected odor of alcohol and observed defendant’s
bloodshot and watery eyes). In so concluding, we acknowledge that Trooper Hatch did not observe
any indication of erratic driving on plaintiff’s part. Moreover, we acknowledge that Trooper Hatch
admitted in his deposition testimony that he did not ask plaintiff to engage in any field dexterity
exercises after plaintiff exited his vehicle. Although these facts could conceivably inform a
factfinder’s determination as to the existence of bad faith in the overall interaction between
plaintiff and Officer Hatch, cf. State v. Goff, 239 P.3d 467, 471 (Kan. Ct. App. 2010) (“The trial
court had to have found the officer’s testimony that he smelled marijuana was credible to have
found the officer had probable cause.”), we conclude that, from an objective viewpoint, there was
a reasonable basis to support the exit order under our Article 11 jurisprudence. Accordingly, the
exit order does not support a claim of damages.
C. The Seizure and Search of Plaintiff’s Vehicle
¶ 76. The subsequent seizure and search of plaintiff’s vehicle, which had to be supported
by probable cause rather than the less-rigorous standard of reasonable suspicion, is another matter,
however. See State v. Platt, 154 Vt. 179, 184, 574 A.2d 789, 792 (1990) (requiring, pursuant to
Article 11, probable cause and exigent circumstances to support warrantless seizure of car
followed by post-seizure search pursuant to warrant). “The finding of probable cause is a
decidedly fact-specific determination, turning on whether the particular circumstances establish a
45
nexus between the crime, the suspect, and the place to be searched.” State v. Bauder, 2007 VT 16,
¶ 25, 181 Vt. 392, 924 A.2d 38 (quotation omitted). “The concept of probable cause is a practical,
nontechnical one that we evaluate in a common sense manner” based on “the totality of the
circumstances.” State v. Guzman, 2008 VT 116, ¶ 11, 184 Vt. 518, 965 A.2d 544 (quotation
omitted); see People v. Zuniga, 2016 CO 52, ¶ 16, 372 P.3d 1052 (“[T]he totality of the
circumstances test for probable cause is an all-things-considered approach that calls for
consideration of any and all facts that a reasonable person would consider relevant to a police
officer’s belief that contraband or evidence of a crime is present.” (quotation omitted)).
¶ 77. We now examine the facts upon which Trooper Hatch relied to seize plaintiff’s
vehicle. Following his exit order, Trooper Hatch found no incriminating evidence resulting from
the consented search of plaintiff’s person. Further, as noted, any suspicions that the trooper may
have had about plaintiff driving while impaired had been allayed. Nonetheless, Trooper Hatch
elected to seize plaintiff’s vehicle and tow it to the Rutland state police barracks based on his
original detection of a faint odor of burnt marijuana, the presence of the air freshener and the bottle
of Visine in plaintiff’s vehicle, and plaintiff’s acknowledgment that he had smoked marijuana in
the past few days. With the trooper’s concerns about impaired driving dispelled and his attention
turned to possible possession of marijuana, we agree with the superior court that the presence of
the air freshener and the Visine in the vehicle, as well as plaintiff’s acknowledgment of prior
marijuana use by him sometime in the last few days, lost their probative value. Air fresheners and
eye drops, though they can be used to mask the effects of marijuana use, are commonplace items
ubiquitously used by persons who do not use marijuana, and their presence in the car did not
indicate the presence of marijuana. Nor does the fact that plaintiff smoked marijuana in the past
indicate the presence of marijuana in the vehicle at the time of the stop.
¶ 78. Thus, as the superior court acknowledged, we are left only with the faint odor of
burnt marijuana as a justification for the vehicle’s seizure and subsequent search. The court
46
concluded that that was enough. We disagree. We have concluded “that the odor of marijuana,
detected by a trained and experienced police officer, can provide a reasonable basis to believe that
marijuana is present,” but also “that the odor alone may not always be sufficient [to provide
probable cause] to arrest an individual.” Guzman, 2008 VT 116, ¶ 14 (noting caution by other
courts that “the odor of marijuana will not always produce probable cause to search or to arrest,”
but rather is one factor “within the context of the entire factual situation” under which “the grounds
for probable cause must be examined”); see Zuniga, 2016 CO 52, ¶ 23 (“[T]he odor of marijuana
is relevant to the totality of the circumstances test and can contribute to a probable cause
determination.”).
¶ 79. In Guzman, a police officer stopped the defendant for speeding and, following the
stop, “detected the distinct odor of marijuana coming from defendant’s vehicle.” 2008 VT 116,
¶ 2. The defendant acted very nervous “and was sweating, fidgeting, and moving his hands around
the vehicle,” which caused the officer to be concerned that the defendant had a weapon. Id.
Following an exit order, the officer smelled the odor of marijuana on the defendant’s person and,
after patting him down, found, among other things, a packet of fresh marijuana and cocaine. We
concluded that the search was permissible incident to an arrest supported by probable cause “given
the odor of marijuana from the car, followed by the stronger odor of marijuana that [the officer]
detected coming from defendant’s person—the only individual present, combined with the
officer’s other observations of defendant’s suspicious conduct.” Id. ¶ 15.
¶ 80. In another case in which we considered the odor of marijuana as a factor in
determining whether probable cause existed, State v. Senna, 2013 VT 67, 194 Vt. 283, 79 A.3d
45, police officers investigating a complaint about a screaming child arrived at the house where
the child was located and noted the odor of fresh marijuana, which got stronger as the officers
approached the door. Upon learning from the defendant’s neighbors that the defendant and his
partner were using heroin and selling marijuana out of their residence, the officers obtained a
47
warrant to search the residence. We considered “whether, in light of Vermont’s ‘medical
marijuana’ law, the smell of fresh marijuana outside the entry to a home can be a factor supporting
a finding of probable cause to search the house.” Id. ¶ 9. We concluded that, notwithstanding the
small possibility that someone in the residence was a registered medical patient immune from
prosecution, “the trial court properly considered the odor of fresh marijuana emanating from
defendant’s home in assessing probable cause to search his residence.” Id. ¶ 16; see State v.
Greenslit, 151 Vt. 225, 228, 559 A.2d 672, 674 (1989) (concluding that odor of burning marijuana
emanating from vehicle, along with contemporaneous presence of smoke, made it reasonable “for
the officer to infer that the smell and smoke were related and together more likely than not
indicated a criminal transaction”).
¶ 81. In short, our caselaw has made it clear that an odor of marijuana is a factor, but not
necessarily a determinative factor, as to whether probable cause exists. See Guzman, 2008 VT
116, ¶¶ 13-14 (agreeing with courts that treat odor of marijuana as factor in totality-of-
circumstances test rather than those courts concluding that odor of marijuana alone can provide
probable cause to believe that marijuana is nearby).22 The weight of that factor in determining
22
In Guzman, we quoted a Massachusetts court for the proposition that most other courts
considering the question of when the odor of marijuana is sufficient to support probable cause
“agree that ‘the odor of marijuana is sufficiently distinctive that it alone can supply probable cause
to believe that marijuana is nearby.’ ” Guzman, 2008 VT 116, ¶ 13 (quoting Commonwealth v.
Garden, 883 N.E.2d 905, 910 (Mass. 2008)). But see Commonwealth v. Rodriguez, 37 N.E.3d
611, 618 (Mass. 2015) (“Garden’s conclusion that the odor of marijuana alone creates probable
cause to believe that the drug is still present is insufficiently nuanced, because it fails to account
for the significant possibility that the odor of burnt marijuana may be present on a person or in a
vehicle, but the drug itself is not.”). In fact, many, if not most, courts concluding that the odor of
marijuana created probable cause to support a search have also relied on other accompanying
factors, such as the suspect’s extreme nervousness or admissions or other visible signs of marijuana
use or possession, to support their probable cause determination. See, e.g., People v. Waxler, 224
Cal. App. 4th 712, 725 (Cal. Ct. App. 2014) (holding that “a law enforcement officer may search
a vehicle pursuant to the automobile exception to the warrant requirement where the officer smells
burnt marijuana and sees burnt marijuana in the defendant’s car”); Brown v. State, 715 S.E.2d 802,
805 (Ga. Ct. App. 2011) (concluding that smell of marijuana in car, in addition to flakes of
marijuana on floorboards of car and suspect’s visible agitation, gave officer probable cause to
believe vehicle contained contraband); see also A. Levinson Ben-Yosef, Annotation, Validity of
48
whether probable cause exists generally depends not only the nature and strength of the odor and
other factors accompanying the odor, but also how those factors relate to the offense being
investigated. While adjectives assessing the strength of an odor may be subjective and unhelpful
at times in assessing whether probable cause exists, see Commissioner v. Overmyer, 11 N.E.3d
1054, 1059 (Mass. 2014) (stating that “characterizations of odors as strong or weak are inherently
subjective”), the faint smell of burnt marijuana 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.
¶ 82. Given the circumstances of this case and considering our relevant caselaw
examined above, we conclude that Officer Hatch’s seizure of plaintiff’s vehicle violated plaintiff’s
rights under Article 11. The seizure, aimed at immobilizing plaintiff’s vehicle while the officer
sought a search warrant, was essentially based solely on the trooper’s initial detection of the faint
odor of burnt marijuana, which did not, in and of itself, create a fair probability that marijuana
would be found in the vehicle. The other factors posited by the State—the presence of an air
freshener and a bottle of Visine, in addition to plaintiff’s statement that he had smoked marijuana
in the past few days—did not add any probative evidence to establish probable cause to support
the seizure.
¶ 83. In its March 2015 order dismissing plaintiff’s count alleging that the information
supplied by Trooper Hatch did not support the search warrant, the superior court concluded that
the probable existence of any amount of marijuana supported the issuance of a warrant to search
for contraband. Plaintiff briefly argues on appeal that the court failed to consider whether issuance
of the search warrant was unreasonable under the circumstances of this case and that, even if a
Warrantless Search of Motor Vehicle Based on Odor of Marijuana—State Cases, 114 A.L.R. 5th
173 (2003) (collecting cases in which courts found or did not find probable cause for warrantless
searches based on odor of marijuana and other factors); E. Lauzon, Annotation, Odor Detectable
by Unaided Person as Furnishing Probable Cause for Search Warrant, 106 A.L.R. 5th 397 (2003)
(collecting cases in which courts found or did not find probable cause to support issuance of search
warrant).
49
warrant could be issued for a suspected civil violation, the search could not stand because the
preceding seizures were illegal. The critical difference between the seizure of plaintiff’s vehicle
and the issuance of the search warrant was Officer Hatch’s statement in his warrant application, in
addition to the other bases he alleged for seeking the warrant, that a dog certified to detect the
presence of narcotics, including marijuana, had alerted twice on the trunk of plaintiff’s vehicle at
the police barracks. This unchallenged statement, in addition to the other indicia of drug use
discussed above, established probable cause to issue the warrant. Accordingly, the issuance of the
warrant does not constitute a basis for damages pursuant to plaintiff’s lawsuit.
V. Summary
¶ 84. In sum, we conclude that a direct private right of action for damages based on
alleged flagrant violations of Article 11 is available against the State. The common law doctrine
of sovereign immunity does not preclude such an action, even though the VTCA is not applicable.
A plaintiff must show either a violation of clearly established law, which the actor knew or should
have known he or she was violating, or bad faith, which may take the form of discriminatory
animus. In this particular case, we conclude that the stop and seizure of plaintiff’s car constituted
violations of Article 11. Accordingly, we reverse the superior court’s summary judgment ruling
in favor of the State. Because the parties heretofore have not had the opportunity to address the
elements of a direct action under Article 11 as established in this opinion, we remand the matter
to give them an opportunity to file renewed motions for summary judgment, if they so choose. We
make no pronouncement at this juncture as to whether the facts of this case are sufficient or
insufficient to survive a renewed motion for summary judgment.23
23
The State notes in its brief that plaintiff did not make an equal protection claim or allege
racial discrimination in its complaint. Although plaintiff has consistently suggested throughout
these proceedings that Trooper Hatch’s stated reasons for his actions were driven by implicit
discriminatory bias, he has made no equal protection claim under the Common Benefits Clause
and cannot do so on remand. He may, however, in the context of his Article 11 claim, seek to
50
The superior court’s dismissal of plaintiff’s count 4 in its March 10, 2015 decision and its
grant of summary judgment to the State in its May 10, 2017 decision are reversed; the matter is
remanded for further proceedings consistent with this opinion.
FOR THE COURT:
Associate Justice
demonstrate that he can produce evidence in which a factfinder could find bad faith in the form of
discriminatory bias, which is one of the elements established in this opinion for such a claim.
51