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Tuesday, May 21, 2024 | Back issues
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Leave the Pot at Home if Driving Through Kansas

(CN) - Marijuana possession charges hold in Kansas, even against those caught passing through after buying the herb legally in another state, the Kansas Court of Appeals ruled.

Troy Cooper legally purchased medical marijuana in his home state of Colorado, then traveled with it to Kansas, intending to stay for several weeks visiting family.

While he was in Kansas, a police officer stopped Cooper and charged him with misdemeanor possession of marijuana, but the court in Ellsworth tossed the charge after finding that the prosecution interfered with Cooper's right to interstate travel.

The attorney general brought the matter to the Kansas Court of Appeals, seeking review of "a question reserved," or, whether state law criminalizing marijuana can be enforced when the drug was legally obtained in another state.

This kind of review does not affect the outcome of Cooper's case and Cooper did not submit a brief in response to the state's arguments.

"Based on the state's briefing, we respond to the question reserved this way: The Privilege or Immunities Clause of the Fourteenth Amendment does not bar the enforcement of Kansas criminal statutes prohibiting possession of marijuana against someone traveling through or staying temporarily in this state even though that individual possesses the marijuana in conformity with another state's law allowing its use and possession for medical purposes," Judge Gordon Atcheson wrote for a three-judge panel. "In those circumstances, the right to lawfully possess the marijuana rests on state law and, therefore, is outside the scope of the clause."

The court noted that the constitutional right to interstate travel includes the right to travel to and become resident of another state, where the new resident must be "treated like other citizens of that state." This right is protected by the privileges or immunities clause of the U.S. Constitution.

"Whatever the scope of that aspect of the constitutional right to travel, it was factually inapposite in Cooper's case," Atcheson wrote. "Based on the stipulated facts, he indisputably intended to be in Kansas only briefly. In turn, the question reserved does not embrace the right of a citizen to travel to and become a permanent resident of Kansas. And, therefore, our response to the question reserved doesn't encompass that right. To the extent the district court might have relied on that component of the right to travel in ruling for Cooper, its reliance would have been misplaced based on the facts."

The right to interstate travel also grants citizens the right to "be treated as a welcome visitor rather than an unfriendly alien when temporarily" in another state, according to the Supreme Court's decision in Saenz v. Roe, but the court placed this right outside the privileges or immunities clause.

"We express no opinion on other constitutional rights or protections that conceivably might afford a defense to a person prosecuted under the Kansas Criminal Code for possessing marijuana obtained legally through another state's laws permitting its use as medication," Atcheson concluded.

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