Mixed Messages

Relentless federal officials question medical marijuana at airports and Border Patrol checkpoints

Lt. Tim Taylor, of the Tucson Airport Authority, works in a no-man's land, caught between a state where marijuana will soon be legal for medical use, and a federal government that still calls possession a crime.

Subsequently, travelers who pass through our local airport with legally purchased pot may face interrogations and flight-missing delays.

The Tucson International Airport is but one flashpoint where state and federal laws collide. Even in the 15 states with medical-marijuana laws, citizens can still be yanked from their federally subsidized housing, denied federal unemployment benefits and badgered at U.S. Border Patrol checkpoints.

That saga is about to unfold in Arizona, as the law passed by voters in November takes effect. And just because you soon may legally carry your stash here, don't expect a friendly nod from the feds. Just ask Nico Melendez, a spokesman for the federal Transportation Security Administration. They're the folks who check your luggage and pat you down before you're allowed on a plane.

"The TSA policy is the same as the federal government policy," says Melendez. "We're not looking for illegal drugs. We're not looking for drugs at all. We're looking for prohibited items and things that are a threat to civil aviation. If we come across drugs—be it marijuana, methamphetamine, cocaine or anything else—we'll report it to local law enforcement, and they make the determination as to what happens next."

Which brings us back to Lt. Taylor and his certified peace officers with the Tucson Airport Authority. When a marijuana carrier is flagged by the TSA, "our officers respond and complete an investigation," Taylor says. "They determine if probable cause exists for an arrest for possession, or if the medical marijuana meets all the criteria. If it does, then the passenger continues on."

But Taylor won't describe what information passengers need to move smoothly through the process. "We don't really share how we research validation," he says—nor will he say how long passengers might be held. "It will take as long as the investigation takes. It depends upon too many variables for me to tell you that."

There seem to be so many variables that Lt. Taylor can't tell us much of anything about what people might expect when traveling through the airport with medicinal pot. When we asked him whether such situations had already occurred under Arizona's newly minted law, the lieutenant said he didn't have time to "research" the matter. (We later contacted his colleague, TAA Sgt. Dennis Lee, who quickly confirmed that no such encounters had yet happened.)

Taylor did tell us this: Don't think you're home free when you're on your plane with your prescribed stash. Why? Because his staff has already phoned ahead to your destination, alerting them that a pot-packing passenger is slated for arrival. And if that destination happens not to have its own medical-marijuana law, you might find yourself relaxing in the nearest pokey instead of a Holiday Inn.

All of which makes Robert Raich see red. That's hardly surprising, considering that the Oakland, Calif., attorney has worked on two successful cases before the U.S. Supreme Court regarding medical-marijuana laws. He says policies vary widely at airports across the country.

"But if those officials are doing what's correct, and the (medical marijuana) patient is a legal patient under state law, they're supposed to give the medicine back to the patient and let them go."

Raich also finds it telling that the Tucson Airport Authority won't release its protocol for gauging passengers who travel with medical marijuana. He says that's because they probably don't have a protocol. "I think what you're seeing is that the local authorities don't know what to do, so they're making it up on the fly."

The U.S. Border Patrol seems struck by similar confusion, as it sends mixed messages about how people with medical marijuana will be handled at checkpoints. Just two months after voters passed Arizona's marijuana law, Border Patrol spokeswoman Colleen Agle told the Nogales International that those caught with medical marijuana at her agency's checkpoints would face the consequences.

"Federal law still prohibits the possession of marijuana, so we're going to continue enforcing the federal law," Agle said. "Any possession, whether it's a small amount or a giant bundle, is still illegal under federal law. ... It's an arrest-able charge."

But Victor Brabble, a spokesman for the Arizona Joint Field Command of U.S. Customs and Border Protection (the parent agency of the Border Patrol), offers a different assessment.

"While possessing medical marijuana is a crime under federal law," he says, "the deputy (U.S.) attorney general has stated that federal resources should not be used to prosecute individuals who are in clear and unambiguous compliance with existing state laws providing for the use of marijuana."

There is, however, a caveat: If agents think you're involved in illicit behavior, such as money-laundering or the unlawful possession of firearms, then "it is much more likely that case will be accepted for prosecution," Brabble says. "In other words, if we believe the person to be involved in other illegal actions, then all bets are off."

How all this shakes out remains to be seen. But it's a fair bet to say that anyone passing through a checkpoint who gets a sniffer-dog barking will most certainly be delayed—whether or not their pot is legal.

That "special" treatment of law-abiding citizens leaves Robert Raich incensed. "It's absolutely outrageous," he says, "and an indication to me that Barack Obama is losing control of the government. He stated as a candidate that medical-marijuana patients would not be subject to harassment by the federal government. His spokespeople have confirmed that since he got elected. Attorney General Eric Holder also made statements after the inauguration that the new policy was that (those patients) would not be subject to harassment."

That sounds good on paper, says Raich. "But what we've seen is that agents of other branches of the government don't even care about that."

For proof, he says, we need look no further than California, where there's been a medical-marijuana law on the books since 1996—and where Border Patrol agents continue tormenting legal-cannabis patients at checkpoints.

"They've never prosecuted them, but they detain them every time and steal their medicine every time. The Border Patrol so far has been absolutely intransigent about following the policy as stated by the White House."

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