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A few days ago, NBA star D’Angelo Russell was caught by the TSA (Transportation Security Administration) with marijuana in his bag. Coincidentally, a publication by the TSA a few days earlier clarified that “TSA officers DO NOT search for marijuana,” but you’ll always be in trouble if they find any, as they are required to notify law enforcement. “This includes items that are used for medicinal purposes,” the post added.
What this teaches us is that anyone can and will be treated like a criminal for possessing marijuana, even if they live in a state where it is legal and even if they have a prescription for it. But that isn’t limited to travel by airplane; transporting cannabis across state or national borders is still a crime, no matter what the context is.
Federal Law Supersedes State Law
Some states have explicitly forbidden the import or export of marijuana products: Oregon, Nevada and California, for instance, make it a crime under state law. However, even when state laws don’t ban interstate transport of cannabis, federal law does. If one travels between two states where recreational marijuana is completely legal, the mere act of crossing the state line between them could land someone in hot water.
A crime that crosses state lines immediately falls under the sole jurisdiction of the federal government. In theory, this is meant to uphold the Fifth Amendment, which ensures that one person cannot be prosecuted twice for the same crime; if a crime took place in two states, rather than letting both states prosecute the criminal independently, the federal government takes precedence and is the only entity prosecuting them. This is complicated when it comes to marijuana, however. Marijuana is still a federally banned Schedule I drug, so transporting it is a crime in the eyes of the federal government, even if it is legal in all states involved.
Even within a state where marijuana is legal, people in possession of it can be in serious legal trouble, especially if they live within 100 miles of a land or coastal border. The ACLU estimates that “about 200 million people” live in the “border zone,” where Border Patrol agents are active. The Border Patrol’s main mission is to look for illegal immigrants; in practice, however, they use their powers to search for drugs or generally enforce federal law. They are allowed to lead interrogations and search private vehicles without needing a warrant. Nearly every day, the Customs and Border Protection agency announces the seizure of marijuana on U.S. soil, even if it wasn’t imported from another country.
“The federal government has the authority to charge any person using, selling or possessing marijuana,” explains Jason Luczak, attorney at Gimbel, Reilly, Guerin & Brown. “Due to the Constitution’s Supremacy Clause, if a state law conflicts with federal law, the federal law takes precedent. That means if you legally purchase marijuana from a recreational store in Colorado, you may still be subject to a federal prosecution; the decision to prosecute is left to the discretion of the federal government.”
A few weeks ago, the Border Patrol made its stance very clear in a media release following the seizure of a small amount of marijuana in possession of a man with an expired medical marijuana card: “Although Maine has very strict marijuana possession guidelines, marijuana possession is still against federal law,” said Houlton Sector chief patrol agent Jason Owens. “When our agents become aware of a federal law violation, they have a duty to act and will continue to do so.”
While it is unlikely that federal agents would search the vehicle of someone in possession of marijuana without probable cause—be it while crossing state lines or within a state where it is legal—this situation is unsafe for all cannabis users. Until the U.S. legalizes cannabis on the federal level, anyone who uses it recreationally or for medical purposes is at risk of potential federal prosecution.
