Medical marijuana from Colorado illegal in Kansas, court rules: More fuel for profiling?

Several of our posts about alleged profiling of cars from Colorado due to the state's marijuana laws have focused on Kansas. One involved Westword contributor Britt Chester, who was rousted there during a cross-country trip -- and another featured a Kansas attorney who encouraged Coloradans to ditch their weed before driving over the border.

One more incentive to do so? A court ruling establishing that Colorado medical marijuana remains illegal in Kansas. Details and the complete ruling below.

The case, heard by the Kansas Court of Appeals, which released its ruling on Friday, is officially entitled State of Kansas v. Troy James Cooper.

The decision was written by Judge G. Gordon Atcheson. Here's how he synopsizes the facts of the case:

As a resident of Colorado, Cooper lawfully obtained medical marijuana there. Cooper came to Kansas with his medical marijuana and intended to stay here for several weeks visiting family and friends before returning to Colorado. A law enforcement officer stopped Cooper in Ellsworth County and found him to have the prescribed medical marijuana. The State charged Cooper with simple possession of marijuana, a misdemeanor.... The district court acquitted Cooper on the grounds the prosecution contravened protections afforded him under the Privileges or Immunities Clause of the Fourteenth Amendment and impermissibly interfered with his constitutional right to interstate travel.

The Kansas Attorney General appealed this ruling, presenting the Court of Appeals with a question stated thusly by Atcheson: "Does the Privileges or Immunities Clause of the Fourteenth Amendment preclude Kansas from enforcing its statutes criminalizing the possession of marijuana against a Colorado resident in this state with marijuana lawfully obtained under the laws of that state?"

In his view, the answer to this question "must be in the negative."

Atcheson acknowledges that "legalized medical marijuana is becoming more prevalent" not only in Colorado but elsewhere, pointing out that "according to one clearinghouse, eighteen states and the District of Columbia have authorized the use of marijuana for medical purposes.... As more states permit the use of medical marijuana, more people may be traveling through Kansas with their medication."

After weighing rulings in previous rulings seen as related to this one, the court determines that "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 the individual possesses the marijuana in conformity with another state's law allowing its use and possession for medical purposes. In those circumstances, the right to lawfully possess the marijuana rests on state law and, therefore, is outside the scope of the Clause."

In his opinion, Atcheson stresses that the ruling is "a narrow one had has nothing to say about other constitutional grounds that might bar such prosecution," adding, "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."

In other words, the court doesn't preclude the possibility of another argument against such an arrest being upheld. But the judges didn't buy this one.

Continue for more about Colorado medical marijuana in Kansas, including the court's ruling. In an article about the ruling, the Witchita Eagle notes that Kansas Representative Gail Finney, a medical marijuana proponent, was critical of it. An excerpt:

She said if the state wants to continue to enforce the marijuana law, it should put warning signs at the border on I-70 to let motorists passing through know that they can be prosecuted if they bring their legally purchased marijuana into the state.

"These are law-abiding citizens in their mind, until they get into the land of Kansas," Finney said.

This observation mirrors ones shared with us by Cal Williams, an attorney based in Colby, Kansas, who noted that he and Colorado lawyer Leonard Frieling have talked about erecting a marijuana-related billboard on Interstate 70. Williams imagines it saying something like, "'Stop and get rid of this. Don't come into Kansas with it. You can go to prison on less than an ounce.'"

Added Frieling, "I imagine an electronic billboard like those speedometer signs that tell you how fast you're going -- 36 miles per hour, or whatever. But this one would say, 'You are crossing the state line in eight minutes. Would you like to stay with us for the next five years?'"

Such an extended stint isn't beyond the realm of possibility. "As little as 25 grams can be a felony in Kansas," Williams said. "There's a range from 25 grams to 450 grams, and even for someone with no record, a conviction could carry 46 to 51 months in a penitentiary."

No telling at this point if the court's decision will lead to more profiling of Colorado cars in Kansas. But it certainly offers nothing that might dissuade law enforcers from doing so.

Look below to read the ruling in Kansas v. Cooper.

State vs. Cooper - Mar. 15, 2013

More from our Marijuana archive: "Marijuana profiling: Coloradans should ditch weed before state line, says Kansas attorney."