It smells like pot but it’s not: Hemp farmer sues Portage County over vehicle search

A licensed hemp farmer has filed a $1.25 million federal lawsuit against Portage County and three sheriff’s deputies who searched his vehicle after smelling what they thought was marijuana.

In his complaint, William Lane of Palmyra Township alleges he was wrongfully searched and detained by sheriff’s deputies during a traffic stop in May in Ravenna Township.

Lane said he grows hemp – a non-psychoactive cousin of marijuana –  that is harvested for CBD oil. Consumers use the oil for everything from pain management to anxiety.

Portage County Prosecutor Victor Vigluicci said the lawsuit “has no merit.”

The deputies were on sound legal footing when they searched Lane's vehicle, he said.

Under state law, he said, the odor of marijuana is probable cause for law enforcement officers to search a vehicle.

But Lane believes the search of his vehicle violated his constitutional rights and hopes his federal lawsuit will change state law.

"The probable cause needs to change," Lane said. "You know, you stop at the gas station, they sell CBD there. You buy that so now, all of a sudden, it gives them rights to tear your car apart and do whatever they want?"

What happened during the traffic stop?

According to an incident report the sheriff's office provided, Lane was pulled over for allegedly failing to stop before the painted bar on the pavement beside a stop sign on state Route 14 in the area of Hayes and Industry roads in Ravenna Township at about 9:15 p.m. April 24.

Officers searched the vehicle after detecting the odor of marijuana, and they found "large sums of money," the amount of which was not specified in the report, in the glove compartment, along with a wallet in the center console.

The report said the driver, who is not identified in the report, told deputies that he is a "CBD farmer," but no marijuana or CBD was in the car. The report makes no mention of any marijuana being found.

The incident report says the driver was "extremely upset" and demanded to speak with a supervisor, but the shift supervisor was busy on another call.

In his lawsuit, Lane said he informed the deputies he "legally grows CBD" and the odor, indistinguishable from marijuana, likely permeated his belongings.

The driver was issued a warning for the traffic violation. A search of Portage County court records did not turn up any charges or citations against Lane in connection with the stop.

Portage County Sheriff Bruce Zuchowski and Chief Deputy Ralph Spidalieri did not respond to an email seeking comment.

What is hemp and CBD?

Bryan Levin, a spokesman for the Ohio Department of Agriculture, confirmed that Lane is a licensed hemp cultivator.

According to the Mayo Clinic's website, CBD is shorthand for the chemical cannabidiol. Unlike tetrahydrocannabinol, or THC — the dominant compound in marijuana — it is not psychoactive.

Hemp contains a level of THC that is too low to cause a high.

In prescription form, CBD has been found to be an effective anti-seizure medication and may have other benefits, but more research needs to be done. The increasingly popular non-prescription oil also can be found as an additive in food, beverages and beauty products.

Portage County farmer grows hemp and tomatoes

Lane's property is roughly 15 acres. Besides hemp, he also grows tomatoes. Lane submits "a bunch of reports" yearly to Ohio Department of Agriculture concerning his hemp operation, he said, with ODA typically conducting an onsite inspection at least once a year.

Lane sells the hemp flowers to various licensed processors — some in the area and one in Pennsylvania — who then extract the CBD from them.

The processors then use the CBD in various products, including foods, gummies, lotions, creams and soaps.

Lane, who is also an independent construction contractor, said he decided to get into hemp cultivation after the state legalized it several years ago and it was forecast that it would become a $30 billion industry.

With the recent passage of state Issue 2, Lane said he is now considering expanding into cultivating cannabis for recreational marijuana. He said medical marijuana is not really an option because "big money" has taken over its cultivation, shutting out smaller, local growers.

"I might get licensed for [recreational marijuana] if it's feasible. If not, I'll just keep growing CBD and tomatoes," he said.

Lane also said he does not like marijuana personally. He had some experience with weed in the Marine Corps, enough to know he does not like how it makes him feel.

Hemp and marijuana look the same, have the same odor

Lane said he is not anti-police. A Marine Corps veteran, he has friends who are police officers in Mahoning County, he said, and he once helped perform emergency repairs in the collapsing basement of a retired police chief, with the labor costs paid with some pizza.

"I don't have nothing against cops. They're needed," he said.

Lane’s complaint claims his right of due process and freedom against unreasonable search and seizure as guaranteed in the Fourth and 14th amendments of the U.S. Constitution were violated. It asserts that "the smell of marijuana is indistinguishable from the smell of legal CBD, the supposed odor detected by the officer did not provide probable cause to believe that contraband was present."

The Ohio Attorney General's Office determined in a 2013 law enforcement bulletin posted on its website that the odor of marijuana is probable cause for the search of a home or vehicle.

However, this was before the state legalized hemp in 2019, a complication that other states also have faced. In North Carolina, where hemp cultivation is legal but marijuana is not, a 2019 memo from the State Bureau of Investigation said hemp and marijuana are virtually indistinguishable from each other.

"Hemp and marijuana look the same and have the same odor, both unburned and burned," states the memo. "This makes it impossible for law enforcement to use the appearance of marijuana or the odor of marijuana to develop probable cause for arrest, seizure of the item, or probable cause for a search warrant."

The memo adds that police K-9s also are not able to tell the difference.

More: Portage County Sheriff's Office uses helicopter to find more than 100 marijuana plants

The lawsuit asserts that Lane "sustained economic losses and physical and psychological pain and suffering." It requests a total of at least $1.25 million for economic, compensatory and punitive damages for Lane, as well as attorney fees and other costs for bringing the lawsuit.

County Risk-Sharing Authority, an insurance program of the County Commissioners Association of Ohio, will be representing Portage County and the three deputies named in the lawsuit, Vigluicci said.

"The insurance company and the attorneys will make short work of this claim," Vigluicci said.

Lane acknowledges that the odor of marijuana is legally probable cause but says his aim is to change that law.

"If a federal judge, if they rule that they violated rights, even if they grant me $2, OK," Lane said. "But [if] they rule that they violated rights, now that's not probable cause in the state anymore. Now they actually have to do real police work. Go get the dogs, you know, take all the resources and train dogs for narcotics, and why don't you clean up our streets?"

Reporter Jeff Saunders can be reached at jsaunders@recordpub.com.

This article originally appeared on Record-Courier: Hemp farmer's suit claims Portage sheriff's deputies violated rights