Traveling has always come with complications. Our By The Way Concierge column will take your travel dilemmas to the experts to help you navigate the new normal. Want to see your question answered? Submit it here.
You’re flying from a state where marijuana is legal to a state where marijuana is legal. You think that means you’re in the clear, but you’d be wrong. No matter your departure and arrival destinations, it’s still illegal to fly with marijuana.
That’s because marijuana possession still remains illegal under federal law, and when you fly, federal agencies are in charge.
The Transportation Security Administration is in charge of security, while the Federal Aviation Administration controls the airways. Then, if you’re entering the country from abroad, there’s Customs and Border Protection.
They enforce federal laws, and “at the federal level, it remains criminal to possess any amount of cannabis, even for medical purposes,” says Brett Schuman, a partner at Goodwin law firm and co-chair of its cannabis practice. (There’s a caveat: Cannabis is legal if it contains no more than 0.3 percent THC on a dry weight basis.)
So it’s illegal to bring marijuana — including joints and edibles — through airport security, fly with it or go through customs and immigration with it in your checked or carry-on bag, even if you’re flying between two places where it’s legal.
However, that doesn’t mean you’re going to federal prison if TSA finds weed in your bag.
“TSA has been clear that its focus is on security for us, the passengers, and not drugs,” says Shawn Hauser, a partner at the national cannabis law firm Vicente Sederberg LLP and co-chair of the firm’s Hemp and Cannabinoids Department.
I’ve spoken to TSA several times on the topic, and its policy is straightforward: “TSA is not searching for marijuana or other drugs,” TSA spokesperson Lisa Farbstein said in an email. “And keep in mind, the TSA canines are trained to detect explosive odors, not drugs.”
If TSA officers find marijuana or other drugs during a routine screening process, they’re supposed to notify local law enforcement, which makes the final call.
That final call can vary. If you’re in a state where marijuana is legal, local law enforcement probably won’t respond to airport calls if it’s found. And if they do, Hauser says, they wouldn’t arrest someone who’s in compliance with state law. (For example, authorities at LAX can’t arrest you for having some cannabis if it’s within the legal amount California allows.)
During routine screening, @TSA officers at @JFKairport came across a checked bag filled with 30 bags of marijuana last week, each weighing about 3 lbs. TSA isn't looking for drugs, but when TSA comes across them, police are notified. Port Authority Police arrested the traveler. pic.twitter.com/DygHhycLHx— Lisa Farbstein, TSA Spokesperson (@TSA_Northeast) November 28, 2022
TSA may only confiscate marijuana, tell you to throw it away or “they may ask you to put it in an amnesty box or even take it to your car,” Hauser says. Some airports prohibit marijuana possession on their property and can fine passengers caught breaking the rule.
Then again, “this is not written down anywhere, but individual TSA officers could exercise discretion to not report you at all,” Schuman says.
You can run into more significant consequences if you’re carrying larger amounts of weed or traveling through a state that remains staunchly anti-cannabis, such as Idaho, Nebraska or Texas, Schuman says.
In anti-pot states, it’s often other authorities — not TSA — that find marijuana and charge travelers.
CBP has been known to find marijuana in passengers’ luggage, sometimes with the help of drug-detecting K-9s, which can result in fines, criminal charges or losing your Global Entry membership.
There are also extreme cases of authorities finding travelers carrying large amounts of weed. In Arkansas, detectives and their drug-detecting dogs found about 180 pounds of marijuana in a lawyer’s luggage at the Little Rock airport last year.
That same month in Tennessee, a drug dog employed by the Drug Enforcement Administration and local detectives found 12 bags of marijuana in luggage at the Memphis airport, leading to the detainment of the bag’s owner, a search warrant for his house and, later, criminal charges, FOX13 Memphis reported. In December, two Spirit Airlines travelers in Nashville were booked into the Metro jail and charged with felony drug possession after a K-9 unit found 18 pounds of marijuana in their luggage at the airport.
It’s “pretty rare” to see everyday travelers face legal consequences for small amounts, Hauser says, despite having a client detained at an airport in a state where weed is illegal, who then went through “a simple court proceeding that was quickly resolved.”
Schuman has the same opinion. He’s not aware of the “average Jane or average Joe traveling through an airport with a pre-roll or package of gummies” who has spent any time in jail.
But even though TSA isn’t looking for your pot, “the top-line answer has to be: This remains federally illegal,” Schuman said.
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