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BEWARE OF THE BORDERLINE: Legal Cannabis Under Border Patrol Attack

By: Tom Domek

This is a cautionary tale.

Drive with cannabis near the U.S.-Mexico border in states where pot is legal, and risk the possibility of arrest.

On the border between Mexico and several American states, from Texas to California, the U.S. Border Patrol has an unmistakable presence. From highway checkpoints and hilltop surveillance to the frequency of cruisers on patrol, this federal agency is highly visible, highly mobile and unceasingly on the job. Their mission is undoubtedly important; their workday often dangerous.

But when it comes to cannabis in states where medical and recreational marijuana is legal, the Border Patrol appear out of sync. With voter-approved measures legalizing cannabis in California, Arizona and New Mexico, one might assume they’d be safe from arrest while traveling with cannabis and cannabis products. Of course, everyone knows it’s dangerous to assume. Why? Well, it can make an ass out of u and me.

Jokes aside, there is in fact real danger of arrest in border regions. The same can be said for regions up north, between the United States and Canada, where the Border Patrol occupy the borderline.

So where’s the rub? Just this. In that wide ribbon of land north of Mexico, where the U.S. Border Patrol carries so much influence, federal and state laws with regard to cannabis clash like acid rock and country western music. The simple explanation? The federal government still lists marijuana as a Schedule I drug—it lives on the same list as heroin and cocaine.

The feds regulate drugs, including marijuana, through the Controlled Substances Act (CSA). The CSA interprets Schedule I drugs as those that are highly addictive, and hold no medical value. The Act provides no wiggle room—recreational pot, medical pot—there’s no practical difference. And that’s exactly how the Border Patrol views marijuana, regardless of legalization efforts in border states.

The Border Patrol’s Perspective 

Daniel Hernandez is a Border Patrol agent and public affairs officer in the Tucson, AZ, sector office. He cites the federal responsibilities that he and other agents pledge to uphold: “Our duty is to enforce the laws on the books. Federal law trumps state and local laws with regard to illegal substances.”

While Hernandez does concede that each inspection and potential seizure may be mitigated by the circumstances surrounding the incident, including the quantity and type of substances encountered, he wishes no ambiguity. “Possession is a federal crime. We advise people not to have [cannabis] in their possession…and everyone is subject to inspection.”

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“Your state-sanctioned medical marijuana card ain’t no match for the U.S. Border Patrol.”

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Consider the well-publicized case of 50-something Raymundo Marrufo of Deming, New Mexico. Late in 2015, Marrufo filed an injunction against U.S. Customs and Border Protection to enforce his right to possess state-legal medical marijuana.

In 2007, New Mexico approved medical marijuana. Marrufo would travel 22 miles between Deming and Las Cruces to fill his prescription for cannabis, which treated his PTSD. Along the route, Marrufo passed through a Border Patrol checkpoint. There, the agent’s question was one which provided no easy answer: “Do you have any illegal drugs in your possession?”

On the one hand, if Marrufo admitted to having pot in his car, he’d risk a drug trafficking felony. On the other hand, if he denied having pot in his possession, he was subject to arrest for lying to a federal agent.

Marrufo’s contention was that the Border Patrol questioning his right to carry state-legal medical marijuana violated his rights, based on the Rohrabacher-Farr Amendment, a pivotal marijuana reform bill passed by Congress in 2014. The Amendment was meant to end federal medical cannabis raids, arrests, criminal prosecutions and civil-asset forfeiture lawsuits. Marrufo asked for a permanent injunction requiring the Border Patrol to cease questioning citizens about medical marijuana in states where medical cannabis is legal.

The United States District Court for the District of New Mexico took up Marrufo’s case in April of 2016. Unfortunately for the plaintiff, the Court ruled against Marrufo. The Court stated that “the Rohrabacher-Farr Amendment expressly applies to the Department of Justice, while the Border Patrol is under the Department of Homeland Security.”

Tough luck for Marrufo and the thousands of others who are within their rights to possess cannabis in legalized states.

Bottom line on the borderline? Be careful what you transport. Your state-sanctioned medical marijuana card ain’t no match for the U.S. Border Patrol.

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