A legal user of medical marijuana from another state can be prosecuted, in some cases, for possessing the drug in Kansas, the state appeals court ruled Friday.
By TONY RIZZO
The Kansas City Star
It was the first time the Kansas Court of Appeals had been asked to consider the question, which comes as more states approve the use of marijuana for medical uses.
A Kansas trooper who stopped Colorado resident Troy James Cooper in Ellsworth County in 2011 found that Cooper possessed a small amount of marijuana, which had been prescribed legally in Colorado.
Prosecutors charged Cooper with misdemeanor possession.
A judge acquitted Cooper, citing a clause in the 14th Amendment to the U.S. Constitution. The judge found that prosecuting Cooper “impermissibly interfered with his constitutional right to interstate travel,” according to Friday’s appeals court ruling.
The attorney general’s office asked the appeals court to consider the issue. The appeals court said it took the case with “trepidation” because it only heard from the state and not from the attorneys for Cooper, who had been acquitted.
But the court agreed to hear the case because of the growing prevalence of medical marijuana.
“As more states permit the use of medical marijuana, more people may be traveling through Kansas with their medication,” the court noted. “That suggests the question could be of some broad interest.”
The state argued that the clause in question protects only federal rights and noted that there is no exception in federal drug laws for medicinal marijuana.
In its ruling, the appeals court agreed that the specific clause did not bar Kansas from applying state law.
But the court noted that the ruling was based only on that one narrow question and “has nothing to say about other constitutional grounds that might bar such a prosecution.”
Because Cooper was acquitted, retrying him would constitute double jeopardy, according to Paul Kasper, the attorney who represented Cooper.
Kansas Solicitor General Stephen McAllister, a law professor at the University of Kansas, said the state thought it was an important question to have answered.
Although Cooper’s case involved a small amount of marijuana, the situation could apply to any number of others in which a person who violated Kansas law could argue, “You can’t touch me. I’m legal back home,” McAllister said.
“It becomes a tricky problem once you open that door,” he said.
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