If the Transportation Security Administration catches you with pot while you are flying from one jurisdiction that allows medical or recreational use of marijuana to another, you might not only escape arrest but get to keep your cannabis. Then again, you might not.
That is the conclusion of a recent Lawyers.com post by Aaron Kase, who notes that the TSA typically refers cases involving small amounts of marijuana to local police, who decide what action to take. If you are a California patient with a doctor's recommendation flying from San Francisco to L.A., or a Denver resident flying to Seattle, that could mean no action at all, since you are not violating any state laws. So although airport security is controlled by the federal government, which continues to treat marijuana as contraband, that does not mean you can never fly with pot, even when your stash is discovered. The TSA, while noting that marijuana is still prohibited by federal law, says it has no particular interest in your pot and "will refer the matter to a law enforcement officer," adding that "the final decision rests with TSA on whether to allow any items on the plane."
Attorney Keith Stroup, founder of the National Organization for the Reform of Marijuana Laws, tells Kase:
I hear reports from people flying from one medical use site to another or flying from one part of California to another, and they generally report that if they carry their authorization, they simply show the letter and are sent on their way and are allowed to keep their medicine. The same policy should apply Colorado to Washington or Washington to Colorado.
Should is not will, of course. Kase cautions that "not all states reciprocate medical use authorizations," while Stroup warns that "if you get the wrong TSA agent and he wants to be a pain, he can arrest you." For what it's worth, possession of cannabis in an airport does not seem to fall under any of the eight "enforcement priorities" identified by Deputy Attorney General James Cole in his August 29 memo on marijuana enforcement, provided you are not traveling to a state where marijuana is illegal.