Crime & Courts

March 15, 2013

Appeals Court: Legal Colorado marijuana still against law 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.

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 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 three-judge appellate panel sided with state prosecutors, who pursued the case in order to get a higher court to rule that they can enforce Kansas’ possession law in future cases.

The judges said they decided to take on the question of whether out-of-state marijuana can be legally possessed here because it’s likely to come up 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.

Rep. Gail Finney, D-Wichita, said the court’s decision is “not good.”

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.

Finney has been pushing for Kansas to change the law to allow medical marijuana, because proponents say it is useful for relieving the debilitating side effects of chemotherapy.

Finney said she understands why people would want that, having gone through five months of intravenous chemotherapy for the autoimmune disease lupus in 2008. She continues to take oral maintenance doses of the drugs.

The defendant in the court case, Troy James Cooper, lawfully purchased and used marijuana under a doctor’s prescription in his home state, court records said.

Cooper was visiting family and friends in Kansas, and the marijuana was found during a routine traffic stop in Ellsworth County.

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 Kansas 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.

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.

Finney said recent polls show that more than seven out of 10 Americans support allowing medical marijuana.

She said with those kinds of numbers behind it, she’s dismayed that her bill hasn’t even advanced to the point of being heard by a legislative committee.

“I think it’s terrible the people’s rights are being denied … and that the Kansas Legislature doesn’t even find the time to even talk about it,” she said. “I just think that is shameful.”

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