ALLENTOWN – Lancaster County has been dismissed from litigation asserting that its district attorney and police officers conducted warrantless raids of businesses selling vape 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, 2023 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.”
The defendants answered the complaint on Oct. 6, 2023, 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.
The defendants filed a motion for judgment on the pleadings on Dec. 22, 2023, feeling that the plaintiff’s claims must be dismissed on their face for their invalidity.
“Due to the illegality under both federal and state law, of the complained-about seized products, and the manner in which the products were searched and seized, as described in plaintiff’s complaint, plaintiff’s claims against Lancaster County, Lancaster County District Attorney Adams and Detective (Retired) Jeffrey Krause all fail as a matter of law, and thus judgment must be entered for all defendants. Indeed, plaintiff’s complaint itself asserts facts that support a legally valid search and seizure, thus invalidating plaintiff’s claim of a constitutional violation,” the motion stated, in part.
“Due to the lack of a constitutional violation, plaintiff’s Monell claim therefore fails. Furthermore, plaintiff’s complaint fails to allege facts that suggest District Attorney Adams’ absolute immunity or Detective Krause’s qualified immunity should be breached. In the alternative, this Court should abstain from deciding the remaining claims until a state court can rule on the legality of the products, or plaintiff follows the proper procedure for remedying the alleged injury in a state court proceeding.”
The motion said that case law authorized the defendants to conduct the searches in question, the defendants had the consent of the businesses to conduct the searches and the product were seen in plain view of an officer, all of which served to negate the plaintiff’s claims of constitutional rights violations.
“It is undisputed that Detective Krause and the LCDTF officers entered plaintiff’s store, which is open to the public, during regular business hours, after the store had opened for business. Consistent with established case law, Detective Krause and the officers conducted a lawful search and seizure when the illegal products were seen on plaintiff’s shelves, for sale, for which plaintiff cannot claim an expectation of a right to privacy in the products. Therefore, plaintiff’s claim of an illegal search and seizure fails as a matter of law,” the motion said.
“Per plaintiff’s complaint, Detective Krause seized the illegal Delta THC products in plain view and with the consent of plaintiff’s manager, satisfying two separate exceptions to the Fourth Amendment’s warrant requirement. For the foregoing reasons, being that Delta 8, Delta 10, and Delta 9 THC (over 0.3% dry-weight) are illegal under federal and state law, Detective Krause entered plaintiff’s business while it was open to the public, and the complained-about items were in plain view, seized with the consent of plaintiff’s manager, there was no violation of plaintiff’s constitutional rights. Therefore, this Court must enter judgment for defendants on plaintiff’s claim for an illegal search and seizure.”
The motion further argued that defendants Adams and Krause were entitled to qualified immunity, as their actions were performed in the course of their official duties and based upon information that a reasonable person would have known.
UPDATE
In a March 5 memorandum opinion, U.S. District Court for the Eastern District of Pennsylvania Judge Chad F. Kenney partially granted the defendants’ motion for judgment on the pleadings.
Kenney denied the motion as to the illegal search and seizure count against defendants Adams, Krause and John Does 1-3, but granted it as to the Monell count levied against Lancaster County and dismissed both it and the County from the case.
“A preliminary review of the facts supports Smooth Vape’s claim that consent was not freely and voluntarily given. On the morning of April 18, 2023, defendant Krause and John Does 1-3 entered Smooth Vape under color of the memo from defendant Adams, District Attorney of Lancaster County, which directed the officers to seize all products in plain view that contained Delta-8 THC or Delta-10 THC. Defendant Adams’s memo warned that if Smooth Vape’s Owner or Manager did not cooperate fully with the Lancaster County Drug Task Force, charges could be filed. ‘Cooperation’ included the ‘immediate surrender to law enforcement of…illegal products from the establishment, on or off site, and ceasing of any future sales of such products,” Kenney said.
“Smooth Vape contends that defendant Krause did not ask Smooth Vape Owner Dolan, Employee Barto or Assistant Manager Stoneburner for consent to search the store or seize any products. Instead, defendant Krause and the officers provided Smooth Vape with an ultimatum – the officers would either seize the products or shut down the store, preventing Smooth Vape from selling any merchandise, including non-hemp products. Smooth Vape believed that if they interfered with the officers’ plans, the officers would close the entire store. There was no choice but to permit the officers to proceed with their plans. Smooth Vape also alleges that defendants forced Stoneburner to sign the Consent to Search form and that she felt that she had no choice but to sign. Smooth Vape avers that if the officers had not threatened to shut down the store, Stoneburner would not have signed the form.”
Kenney continued, “Smooth Vape’s allegations raise a judiciable dispute of fact as to whether consent was freely and voluntarily given, and not as the result of duress or coercion, express or implied, such that defendant may claim an exception to the Fourth Amendment’s search warrant requirement. The Court finds that Smooth Vape has pled sufficient facts to state a plausible claim that because consent was not voluntarily and freely given, defendants engaged in an unconstitutional search and seizure of Smooth Vape and their merchandise.”
Kenney added the defendants, to this point, have not shown qualified immunity to be an applicable defense in this matter – using the two-pronged inquiry: 1) Do the facts alleged by plaintiff show a violation of a constitutional right and 2) If the plaintiff has satisfied the first step, was the right at issue clearly established at the time of the defendant’s alleged misconduct?
In the circumstances at issue, Kenney found that, with respect to prong 1, Smooth Vape “has pled facts to support their claim that, in view of the events on April 18, 2023, defendants violated a constitutional right – the Fourth Amendment’s warrant requirement – that was clearly established at the time of defendants’ raid.”
“The second prong of the analysis asks if the right at issue was clearly established at the time of a defendant’s alleged misconduct. Defendants aver that ‘any reasonable officer’ would ‘reasonably believe’ that they had probable cause to search and seize Smooth Vape’s Delta THC products and that defendants would have been derelict in their duties had they not complied with defendant Adams’s orders. Defendants further assert that defendant Krause is entitled to qualified immunity because ‘it was not clearly established that Detective Krause was not authorized to follow the directions of District Attorney Adams by seizing plaintiff’s products.’ Smooth Vape responds, however, that under the factual circumstances of April 18, 2023, ‘no reasonable officer’ such as defendant Krause ‘[could] rely on coercion or misrepresentation of legal authority to avoid the warrant requirement’ or negate any claimed consent,” Kenney said.
“The Court finds that defendants have not adequately set forth facts and relevant case law to counter Smooth Vape’s framing of the constitutionality of defendants’ conduct on April 18, 2023. That is, defendant has not shown that the right at issue – the Fourth Amendment’s warrant requirement – was not, in fact, clearly established at the time of the raid, such that qualified immunity could apply to defendants. In sum, the Court finds that defendants have failed to effectively formulate their claim to qualified immunity as an affirmative defense. Accordingly, the Court reserves judgment on whether qualified immunity applies to defendants Krause, and possibly Adams, until after discovery and upon dispositive motion.”
For counts of illegal search and seizure in violation of the Fourth Amendment to the U.S. Constitution 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