Two men filed a federal lawsuit against a Tunkhannock police officer, alleging they were falsely arrested after the officer mistook legal hemp they were transporting for marijuana.
Hunter Smetana, 21, and Colby Kluk, 23, both of West Wyoming, were charged with possession with intent to deliver a controlled substance and other offenses after Officer Richard Stevens pulled over their vehicle for a traffic violation on March 26.
The lawsuit, filed by Scranton attorney Curt Parkins, says Stevens seized a quantity of suspected marijuana from the vehicle. He filed charges against the men on June 12 after tests of the substance revealed it contained tetrahydrocannabinol, or THC, which produces the “high” of marijuana.
Parkins says the men actually were transporting hemp, which looks and smells like marijuana, for their business, 3BUDS LLC, which sells products containing hemp and cannabidiol, or CBD.
The criminal case marks the second time in a year that a person claiming to possess hemp was charged with drug offenses. In June 2019, Joseph Molitor of Old Forge was arrested after authorities seized purported marijuana he attempted to mail to several customers from the Scranton post office.
As in the Smetana and Kluk case, Molitor alleged police mistakenly believed his product was marijuana because a test detected the presence of THC. The mere presence of THC does not mean a substance is illegal, however.
Under the 2014 and 2018 Farm Bills passed by Congress, hemp and its byproducts are legal as long as the THC level is 0.3% or less, which means it can’t get users “high.” The law defines marijuana as having a THC level of 0.5% or more.
The Lackawanna County district attorney’s office dropped all charges against Molitor in February, court records show. Parkins said he plans to soon file a lawsuit on Molitor’s behalf.
The criminal case against Smetana and Kluk is pending. They are free on $15,000 unsecured bail and face a preliminary hearing July 9 before Magisterial District Judge Carl Smith in Tunkhannock.
In the lawsuit, Smetana and Kluk contend Stevens charged them even though they provided him a copy of lab tests that proved the substance was not marijuana and documentation that showed they obtained the substance from a licensed hemp distributor.
The men also contend they were illegally denied their right to counsel because Stevens and Pennsylvania State Police refused to allow Parkins to be present when they were arraigned at the Tunkhannock police barracks on June 12.
The lawsuit seeks damages on several counts, including false arrest and unlawful seizure. It addition to Stevens, it names as defendants Tunkhannock borough and several unnamed state police employees.