Since the start of 2019, the United States had found itself in an unprecedented situation. More than half of the 50 states now allow some level of legal marijuana use. It’s a stoner’s paradise if there ever was one right? Well, not exactly. Take for instance the issue of flying. Or, more precisely, flying with marijuana. Let’s say you head to our lovely airport in Denver to grab a flight to LA for a weekend of fun in the sun. You’ve got the 1 ounce of cannabis that you’re allowed to carry according to Colorado law in your bag, along with rolling papers, glass pipes and other peripherals you picked up legally at your local head shop. And you’re flying to another state where recreational use of weed is also legally permitted. No problem, right? Wrong.
Where the Law Meets THE LAW
What many people in Colorado and elsewhere are quickly discovering is that state law and federal law are two entirely different, often incompatible, animals. And that, in any case where the two come into conflict, a little ditty called the Supremacy Clause kicks in. What’s a “Supremacy Clause” you ask? It’s actually that part of the US Constitution (Article VI to be exact) that states that the laws of the federal government are “…the supreme Law of the Land; and the Judges in every State shall be bound thereby…”
The Supremacy Clause is like an offer you can’t refuse. There is no wiggle room, there are no exceptions. Federal law (the law of the United States) trumps state law every time. What does this have to do with weed on airplanes? Well, aviation in the US is regulated and overseen by the federal government. That means that as soon as you hit the security checkpoint at the airport your state law has no sway. The TSA folks that pat you down and the DEA agents standing in the shadows behind them are all federal employees empowered to enforce federal law. And according to federal law marijuana is a Schedule 1 controlled substance.
Welcome to the Legal Jungle
While cannabis reform has spread across the US like smoke through bong water in the past decade all of that enlightened legislation has been enacted at the state and local level. As far as your Uncle Sam is concerned weed still kills and that is that. As such we now have the somewhat surreal situation where your home state may allow you to legally carry an ounce of weed and partake at your leisure, but if you walk through airport security with that weed you’ll attract more negative attention than someone wearing a MAGA hat at Denver University.
Airport Security: The Undiscovered Country
If you attempt to go through airport security with cannabis, a vaporizer or just about anything else you picked up at the headshop or pipe shop you can expect that the representatives of the federal government you encounter will be none too pleased. If you’re lucky they’ll simply give you a disapproving look and confiscate your stuff. However, even if TSA are in a forgiving mood the other federal agents working for the Drug Enforcement Agency may not be. In large part whether you walk away from such an encounter depends in large part on who discovers what you’re carrying.
- TSA – The official position on the Transportation Security Administration is that they are there to help prevent a repeat of September 11, 2001. They’re not there to make drug busts or lecture people on the evils of pot. If a TSA officer finds your stash during a pat down or whatever it’s likely they’ll just toss it in the trash. Or they may, if they’re having a bad day, alert DEA.
- DEA – Agents of the Drug Enforcement Agency tend to be hard-bitten, world weary types. They are not known for being forgiving. So if a DEA agent is the one who finds weed in your bag or on your person things could get very dicey. Especially if you are carrying more than the amount that is legally allowed in your state or you are attempting to fly with your weed to a state where marijuana is still illegal.
Can They Search Your Bag for Pot Without a Warrant?
Yes. That’s because, although the 4th amendment protects citizens from unreasonable searches and seizures, that protection comes with a huge asterisk attached. In legal terms a person is only protected from such searches if they have “a reasonable expectation of privacy”. This means DEA can’t just knock down the door to your house and search it because in your home you enjoy that “reasonable expectation of privacy”. The minute you set foot in the airport, however, you forfeit that expectation of privacy. So they can search you and your bag to their heart’s content.
The Bottom Line
As long as you aren’t carrying more weed than is legally allowed in your state when it is discovered at the airport, or you aren’t trying to take it to a state where pot is still illegal, chances are good that TSA or even DEA will let you off with some harsh words and maybe a warning. However, keep in mind that they are under no obligation to be lenient with you. So do yourself a favor and leave the weed or high quality cannabis-related items that you picked up at 710 Pipes at home in Northglenn next time you head to the airport.