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As the number of states authorizing the use of cannabis for medical and recreational use increases—at last count, 33 states and the District of Columbia have authorized the use of medical marijuana, and 10 of those states have also authorized recreational or adult-use marijuana—a major question arises: What are the legal restrictions around traveling with cannabis? Despite the increasing legalization of marijuana use at the state level, it remains a federally illegal, Schedule I–controlled substance under the Controlled Substances Act. Because of this conflict that currently exists between federal and state laws, individuals need to understand how, when and where they can travel with state-authorized cannabis.
The considerations and risks of traveling with authorized cannabis depend on both the destination and the mode of transportation.
Destination is the first thing to consider when traveling with authorized cannabis. It is important to understand the laws of the state where the individual will be traveling, whether simply passing through or as the final destination. The simple fact remains that, because of its federally illegal status, authorized cannabis cannot be transported across state lines. This is true even if the destination state has a similar marijuana program as the departure state (e.g., California and Nevada, which have both authorized medical and recreational marijuana). Despite the similarity between the laws of the departure and destination states, crossing a state line with cannabis can lead to myriad legal problems. Interstate travel falls under federal law, and thus transporting authorized cannabis across state lines is still considered a federal offense, regardless of the laws of departure and destination states. The federal government can charge an individual with drug trafficking if authorized cannabis is transported across state lines.
Similarly, attempting to transport authorized cannabis across international borders (e.g., between the United States and Canada) could lead to serious legal repercussions such as an arrest, fines and/or imprisonment. Even if you are a medical-marijuana cardholder in your home state, if you are caught with marijuana in your possession at the border, you could be detained by either American or Canadian border officials.
Furthermore, and as you might expect based on the discussion above, authorization to use cannabis in one state does not grant authorization to use cannabis in another state. Consider the following hypothetical scenario: Maryland has authorized the use of cannabis for certain medical conditions. If you have properly obtained a medical-cannabis card and are thus authorized to possess and use medical cannabis in that state but plan to go to South Carolina on vacation, be aware that the Palmetto State has not authorized the use of cannabis for any reason. Accordingly, South Carolina law enforcement could arrest you for bringing and/or using cannabis in the state.
Even though an individual may lawfully travel within a state (i.e., intrastate travel) that has marijuana-authorization laws on its books, certain locations within that same state will still be off-limits for marijuana possession and use. Notably, it is illegal to bring marijuana onto federally owned property. Examples of federal property include national parks, post offices, federal buildings, military installations and any type of land owned by the federal government. For example, while Colorado has authorized use of cannabis for both medical and recreational purposes, it is illegal to possess cannabis in Rocky Mountain National Park, as the park is federal property.
If you travel with authorized cannabis, one important reminder is to always carry your medical-cannabis card with you. This could help if you are questioned about possessing marijuana (assuming you are in an authorized state and location to have the substance in your possession). It is also important to be conscious of how much cannabis you have in your possession. State laws generally restrict the amount of authorized cannabis you are allowed to possess. It is critical to recognize the limits for your home state and also the limits of your destination state if you plan to purchase and are authorized to do so.
Another consideration is the exact location of your destination. Although a state may have authorized the use of cannabis, it is important to use common sense in planning where you will use the cannabis. There is a big difference between public and private property, and different places will have different regulations. It is worth noting that many state parks will have rules about whether or not you can use cannabis on park property. It is therefore important to learn about the cannabis rules of any particular destination that will be a part of your travels.
As for private property, it is again important to know the rules about the establishment where you are staying. For instance, many hotels do not allow either the possession of cannabis or any type of smoking in guest rooms. Because a hotel is considered private property, the property owners are allowed to adopt and enforce their own drug-possession and -consumption regulations. While breaking the hotel’s rules might not land you in jail (assuming state and local laws do not restrict the activity), a hotel could remove you from its property for failure to comply with its policies.
Your method of travel is also an important component when considering the legal ramifications of traveling with authorized cannabis. Whether transporting cannabis in a vehicle or attempting to bring it on an airplane, there are many things to prepare for and consider. Once again, research and knowledge of state and local laws and regulations are key to help mitigate risk.
First and foremost, driving under the influence of any type of cannabis is illegal, regardless of whether you are authorized to possess it and use it in the first place.
For intrastate driving with cannabis, many states have open-container prohibition laws that are similar to open-container laws relating to alcoholic beverages. For example, Colorado law states that a person in the passenger area of the vehicle may not have an open cannabis container. An open cannabis container is described as a receptacle or cannabis accessory that has a broken seal or whose contents have been partially removed. A violation of Colorado’s law could also be found to have occurred if police observe any type of evidence that cannabis has been consumed in the vehicle. Another example of a state statute is that of Illinois, which states that a driver can only transport cannabis in a sealed and tamper-evident medical container.
It is important to know the traffic laws of the state in which the cannabis will be transported. The safest way to transport cannabis is in a sealed, tamper-proof container in the trunk of your car or in the closed glove compartment.
Although there have been some confusing remarks made by the Transportation Security Administration (TSA), one thing is clear: It is illegal to board an airplane with any kind of cannabis, authorized or otherwise. All secure areas of an airport and an airplane, once the door is sealed, are under the jurisdiction of federal law. The secure area of an airport is usually considered the area past the TSA screening section. Regardless of your destination, since marijuana possession is a violation of federal law, it is illegal to possess cannabis in either carry-on or checked luggage. This also includes air travel in a state where cannabis is authorized, even if the flight will not leave that state (e.g., a flight from San Francisco to Los Angeles). Again, this is because the airport and the airplane itself fall under the jurisdiction of the federal government.
Some of the confusion about flying with cannabis stems from statements made by the TSA itself. The TSA is not considered a drug-enforcement agency, and its agents do not have the authority to make drug-related arrests. One spokesperson for the TSA stated in an interview with the New York Times last year that the focus of the agency is “on terrorism and security threats to the aircraft and its passengers.” This means that the TSA is not specifically looking for drugs or contraband but rather for items that could harm the passengers of the plane, including explosives and weapons. This is also the same for TSA K9 units. The dogs sniff for explosive components, not for drugs. Nevertheless, if a TSA agent finds cannabis on a passenger or in a passenger’s luggage, that passenger will be detained and the agent will refer the matter to local law enforcement. A local law-enforcement officer will then carry out state or local law. If the individual is authorized to possess the cannabis, they will usually be asked to either dispose of it or take it home, as the TSA will not permit the cannabis through the checkpoint once it is discovered.
Even though the TSA is not specifically looking for cannabis, there is significant legal risk in attempting to travel with cannabis on an airplane. If an individual is caught in possession of cannabis, even with a medical card, the individual could face punishment under federal law. Furthermore, the TSA has the ability to turn away passengers if they appear under the influence of drugs or alcohol.
In sum, there are many factors to consider when traveling with authorized recreational or medical cannabis. The destination and mode of travel, how the cannabis is stored, federal laws and the state and local laws of the destination state, and the rules of the owner of the private property where you will be staying are just some of the important issues to contemplate.
Jonathan Havens and Adam Fayne are co-chairs of the cannabis law practice at Saul Ewing Arnstein & Lehr LLP in Baltimore and Chicago, respectively. Havens and Fayne counsel state cannabis-license applicants and awardees, ancillary service and product providers, investors, management companies and various other entities that are affected by federal and state marijuana laws, such as higher-education institutions. Havens and Fayne would like to thank former summer associate Matthew Allison for his invaluable research and significant contributions to this article.
This feature was published in the December 2018 issue ofHigh Times magazine, subscribe right here.
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