Appeals Court: Legal Colorado marijuana still a no-no in Kansas

You can still get busted for possession of pot in Kansas, even if you got it legally in another state, the Kansas Court of Appeals ruled Friday.

The court took up the question of whether out-of-state marijuana can be legally possessed here because it’s likely to come up more and more often, now that 18 states and the District of Columbia have legalized it for medicinal use.

Voters in two states, Colorado and Washington, passed initiatives in November legalizing pot for recreational use as well.

The ruling comes in response to a case in which a Colorado man was acquitted of possession of marijuana because he had obtained the pot legally under a doctor’s prescription, which has been allowed in Colorado since 2000.

The defendant, Troy James Cooper – who lawfully used marijuana under a doctor’s prescription in his home state – was acquitted of a possession charge after he was arrested in Ellsworth County. Cooper was visiting family and friends and the marijuana was found during a routine traffic stop.

The trial court acquitted Cooper on the grounds that the prosecution violated his constitutional protections under the Privileges and Immunities Clause of the 14th Amendment and impermissibly infringed on his right to travel from state to state.

The state Attorney General’s office took the case to the Court of Appeals as a “question reserved.” The process is used as a way to get a higher court to rule on a legal question of broad statewide interest to offer guidance for future arrests and prosecutions.

It doesn’t affect the outcome of the trial case, so Cooper is still off the hook as far as his charges go. Lawyers from the Attorney General’s office were the only ones to file briefs in the Appeals Court case.

Based on their argument, the appellate court ruled: “The Privileges 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 that individual possesses 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 (federal) clause.”

However, the Appeals Court did caution that its ruling was narrowly applied to the 14th Amendment question.

“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 legally through another state’s laws permitting its use as a medication,” said the opinion written by Judge G. Gordon Atcheson.