ALLENTOWN – Lancaster County, its district attorney and police officers assert they did not conduct warrantless raids of businesses selling vaping products last April, raids which those proprietors contend were illegal and contradictory to state laws currently on the books.
Smooth Vape, LLC first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Aug. 4 versus Lancaster County, Pennsylvania, District Attorney Heather L. Adams, Lt. Jeffrey R. Krause and John Does 1-3.
“This suit concerns the warrantless search and seizure of certain hemp-derived products carried by plaintiff Smooth Vape, which products are and have been legally sold for years in Lancaster County and all over Pennsylvania – by Smooth Vape and many others – pursuant to Pennsylvania law and the policies of the Pennsylvania Department of Agriculture,” the suit said.
“The products at issue in this case – derived from hemp and containing various tetrahydrocannabinol isomers known in abbreviated form as ‘delta-8,” ‘delta-10,’ and so forth – have been openly and legally sold in Pennsylvania for years, following certain amendments to Pennsylvania and federal law.”
The amended laws were the state Agriculture Code and the federal Farm Bill, the latter of which removed hemp from the federal schedule of controlled substances.
The suit claimed that despite these changes in the law, Lancaster County District Attorney Adams allegedly directed warrantless raids of Smooth Vape and dozens of other businesses in Lancaster County in April 2023 to seize large quantities of such products, claiming they were Schedule I controlled substances under Pennsylvania law.
The suit added that while Adams gave the order authorizing the raids, the other law enforcement defendants are the individuals who carried them out.
“To plaintiff’s knowledge, Adams is the only District Attorney in the state to take such a position, which flies in the face of the Pennsylvania statutes and the Pennsylvania Department of Agriculture’s policies and public statements on the matter, as described below. The products at issue are legal to possess and sell in Pennsylvania, and defendants therefore lacked any basis for the seizure of such products. Further, even if the products at issue were still controlled substances, the defendants’ warrantless search and seizure as undertaken here violated Smooth Vape’s rights under the Fourth Amendment,” the suit stated.
“Smooth Vape has not only suffered the loss of tens of thousands of dollars’ worth of inventory from the seizure, which is now likely destroyed, but Smooth Vape has suffered and will continue to suffer lost profits and damage to business goodwill unless and until this Court provides relief that protects Smooth Vape from such illegal enforcement by Lancaster County.”
UPDATE
The defendants answered the complaint on Oct. 6, flatly denying that they conducted any warrantless raids in violation of state and federal law.
Rather, they said that according to both the United States Department of Justice’s Federal Drug Enforcement Administration and the Pennsylvania State Police, the confiscated products at issue are illegal under Federal Law and Pennsylvania Law respectively.
The defendant also pointed to a Feb. 13, 2023 letter from Terrence Boos Ph.D., Chief of Drug & Chemical Evaluation Section Diversion Control Division of the United States Department of Justice Federal Drug Enforcement Administration, a letter of April 27, 2022 from Deborah A, Callahan, Director of Scientific Services Division of the Pennsylvania State Police and Power Point from the PSP Bureau of Forensic Services, all of which they say were provided to District Attorney Adams before any action was taken as to plaintiff’s illegal products.
“Plaintiff’s complaint fails to set forth a claim, in whole or in part, upon which relief can be granted. No act or failure to act on the part of answering defendants violated any of plaintiff’s constitutional rights. At all times material hereto, plaintiff was afforded all of the rights, privileges and immunities granted pursuant to the Constitution and laws of the United States and the Commonwealth of Pennsylvania. At no time material hereto did answering defendants act in bad faith or in a willful, wanton, outrageous, reckless and/or malicious manner. Plaintiff suffered no injury or damages as a result of any acts or omissions by answering defendants. Any injury or damage sustained by plaintiff was a direct and proximate result of plaintiff’s and/or a third-party’s conduct,” per the answer’s defenses, in part.
“At all times material hereto, answering defendants’ actions were appropriate under the circumstances and based upon a reasonable, good-faith belief that they were justified under the law. Plaintiff’s claims for punitive damages are limited and/or barred by the applicable state constitution, by the Fourth Amendment to the United States Constitution and by the laws of the United States and the Commonwealth of Pennsylvania. Plaintiffs’ claims are barred in whole or in part by the doctrine of unclean hands. To the extent that federal law and state law are in conflict, this Court should abstain from ruling on the legality of Delta THC products under Pennsylvania law pursuant to the doctrine of abstention. Answering defendants are immune from all or part of the claims set forth in plaintiff’s complaint, including but not limited to, absolute immunity and qualified immunity. At all times material hereto, defendants had probable cause to believe that plaintiff’s actions were in violation of the law.”
Additionally, the defendants said that the plaintiff’s claims are barred by plaintiff’s store being open to the public, by consent and by the plain view doctrine, and additionally that the plaintiff failed to seek an available remedy by appropriately challenging the legality of the products or the seizure at the state court level.
For counts of illegal search and seizure in violation of the Fourth Amendment to the U.S. Constitution, a Monell claim against Lancaster County and a declaratory judgment, the plaintiff is seeking compensatory damages and punitive damages for the violation(s) of plaintiff’s constitutional rights, a declaratory judgment that products derived from Cannabis sativa L. that contain no more than 0.3% delta-9 THC, including products without any delta-9 THC, are not subject to enforcement under the Pennsylvania Controlled Substance Act, reasonable attorneys’ fees and costs and any other relief that the Court deems just and appropriate.
The plaintiff is represented by Jerad Najvar of Najvar Law Firm in Houston, Texas and Tina O. Miller of Comber Miller, in Pittsburgh.
The defendants are represented by David J. MacMain of MacMain Leinhauser, in West Chester.
U.S. District Court for the Eastern District of Pennsylvania case 5:23-cv-03000
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com