Dear Festival Lawyer, 

What are the laws regarding flying between states with legal weed?

– KR

I chose this question for this week’s ATFL column because it’s a really good way to talk about your rights when making any festival trip that involves travel by plane. And it's particularly timely, because more and more states are on the road to decriminalization and legalization. As I always remind festival-goers, when you enter an airport, you are basically entering a “4th Amendment Free Zone.” That’s because, due to the danger of terrorism on planes, courts have long permitted searches without a search warrant or even “probable cause.” Courts call this type of search an “administrative” search, or sometimes refer to it as the “Airport and Courthouse” search warrant exception.

Originally, these types of searches were supposed to be “limited” and to be “no more intrusive or intensive than necessary, in light of current technology, to detect weapons or explosives and confined in good faith to that purpose.”

As often happens, once this 4th Amendment exception got started, it has grown larger every year. Recent courts have focused on the high danger of terrorism and found that legally the 4th Amendment does not even really apply at airports. The legal argument is that basically you could have avoided any search by choosing not to fly.

Sound familiar? Well, it should. This is basically the same argument that people constantly make about searches as you enter a festival. Many people assume that because your ticket says “you agree to be searched as a condition of entry” that festivals are also “4th Amendment Free Zones.” In fact, I named the belief that festival-goers have no legal rights one of the “Top Five Legal Urban Myths” that festies need to quit spreading. 

So far however, no court has ruled that this “Airport and Courthouse" exception to the 4th Amendment applies to music festivals. Courts have consistently found that patrons still have 4th Amendment rights at festivals and even maintain some limited rights at festival entrance searches. 

And that’s a good thing. Why? Because really bad things happen when you take away all 4th Amendment protections and give a private security company unlimited discretion to search people.

Don’t believe me? Well for one thing, the TSA is insanely expensive, costing the taxpayers about $7 billion a year. For another, the TSA is terrible at its job. In June of this year, the acting director of the TSA was reassigned after TSA agents missed 95% of guns and bombs that were brought in during a security test. Yikes.

The good news is that giving unlimited discretion to TSA agents hasn’t led to them abusing that authority. JUST KIDDING! There are entire websites devoted to just documenting TSA’s scandals and abuses.

But at least over the years the TSA has caught lots of terrorists so it was totally worth it :-/ Again, I’m being tongue-in-cheek. There is no real evidence that their work is anything other than “security theater.” So bear in mind what a nightmare the TSA is when considering flying with legal cannabis. A good starting point for your research is to review the TSA guidelines on flying with cannabis.

The TSA website says the following on the subject of medical marijuana:

Whether or not marijuana is considered “medical marijuana” under local law is not relevant to TSA screening because TSA is governed by federal law and federal law provides no basis to treat medical marijuana any differently than non-medical marijuana.

Unfortunately, that is a correct statement of the law. When you enter an airport you are under federal jurisdiction – and cannabis legalization hasn’t changed on a federal level. Marijuana is still considered a “Schedule 1” controlled substance by the DEA. That’s right.... the feds still consider cannabis as the legal equivalent of heroin.

On the other hand, the TSA’s website also explains their limited role in searching for medical marijuana:

TSA security officers do not search for marijuana or other drugs. In the event a substance that appears to be marijuana is observed during security screening, TSA will refer the matter to a law enforcement officer.

As I mentioned above, the TSA isn’t really supposed to be searching for drugs in the first place. Their legal authority is to be searching for weapons and explosives. Also, TSA are not law enforcement officers. TSA agents don’t have the authority to seize an item. When a prohibited item is found, they basically tell the passenger to dispose or abandon the item. When they discover potential criminal activity, TSA security screeners are supposed to refer the matter to local law enforcement officers or, in some cases, to federal authorities.

That means for the most part this issue is left specifically up to the individual TSA agent and the local police at that particular airport. Therefore, in addition to reviewing the TSA website on this topic you should check with your local airport to see if they have local guidelines or policies.

The following is a list of airports that have announced an official policy on legal marijuana:

California: Police at both Oakland Airport and SFO have official policies allowing card-holding medical marijuana patients to carry up to 8 ounces when traveling. The San Jose Police Department states that it does not arrest or cite passengers with medical marijuana at San Jose International and does not seize their drugs. The department does, however, write a report and leave open the possibility it could send this report to federal authorities who determine whether to file charges. Most other airports in California do not allow patients to bring medicinal cannabis on flights.

Colorado: Despite full state legalization, the two largest Colorado airports (Denver and Colorado Springs) currently prohibit passengers from flying with cannabis. Denver Airport states that violators face a $999 fine if caught with marijuana. The Colorado Springs Airport prohibits cannabis. However, just like Coachella, Colorado Springs airport provides “amnesty boxes,” where passengers can anonymously discard their cannabis before boarding a flight without facing any further consequences. 

Hawaii: A big medical marijuana case took place at Kona International Airport when a medical marijuana patient brought his cannabis into the airport for a flight to Honolulu. TSA agents found the item and turned him over to the local police. Ultimately, the patient had his case thrown out, but only after a lengthy legal battle.

Oregon: Portland International Airport (PDX) is an amazing airport. In fact, the airport has such a cult following in Portland, that the airport’s carpet was named the grand marshal of the city’s Starlight Parade. PDX recently declared that it would allow transportation of cannabis on intrastate flights. A TSA agent finding marijuana is supposed to alert local law enforcement, but only for the purpose of verifying that the person is of age, is carrying a legally allowed amount (less than an ounce) and is not flying out of state. If so, you are legally free to board your flight.    

Washington: Currently, Seattle-Tacoma International Airport (SEA) warns passengers about boarding planes with cannabis for destinations where cannabis is illegal. Neither SEA or Spokane have adopted an official policy on intrastate travel. It seems likely that both airports will ultimately do something similar to PDX, in other words, prohibit out-of-state transport but allow intrastate travel as long as the passenger is of age and is carrying a legally allowable amount.   

As the above tangle of cases and differing opinions shows, this is an area where you will really need to do your homework and make a personal call as to your comfort level in taking a chance by flying with cannabis.

Remember that if cannabis is found, you are at the almost complete discretion of the individual TSA agent who found it. On the one hand, in 2011, TSA agents at Denver International Airport found bags of weed in rapper Freddie Gibbs’ luggage and simply left him a note reading “C’mon son.”

On the other hand, this is the same agency that grabbed Morrissey’s junk.  So who knows how they will handle any situation.

Got a question for the Festival Lawyer? Email him at askthefestivallawyer@fest300.com

Disclaimer: Although the Festival Lawyer is a lawyer he is not YOUR lawyer. The ATFL column gives general information about legal topics, NOT legal advice. The law is complex, varies a great deal from state to state, and each factual situation is different. Also, “The Festival Lawyer” is a fictional character. Think of the Festival Lawyer more like a legal spirit guide, encouraging you to educate and inform yourself.