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January 30, 2015

Marijuana Regulation in Airports: From Ticketing to the No-High Zone

One of the highlights of the October 2014 Section meeting in Denver was “Reefer Madness: Recreational and Medical Cannabis Issues for Local Government Lawyers,” a panel moderated by Dwight H. Merriam with a special guest appearance by D. Scott Martinez, City Attorney, City and County of Denver. Although 21 states and the District of Columbia make cannabis legal as a matter of state and district law for medical use, and Colorado and Washington State permit recreational use, it is still a violation of federal law to cultivate, dispense, possess, and use cannabis. The panel considered the planning, regulation, leasing, conveyancing, property management, financing, banking, and ethical issues raised by this legal conundrum.

Another aspect to consider is the regulation of marijuana at our nation’s airports. The federal government, which considers marijuana a Schedule 1 substance without any accepted medical use, oversees the aviation industry and regulates the secure areas of airports. All passengers must pass through federal screening to reach a plane. Stuck in the middle between the federal classification of marijuana as a drug and state laws relaxing prohibitions on possession is the Transportation Security Agency (TSA) and its security officers. The mission of the TSA is not to screen for drugs but to “Protect the Nation’s transportation systems to ensure freedom of movement for people and commerce.”1 The focus of TSA activities is to look for security threats. When contraband is found—which, under the circumstances, includes marijuana—the TSA often refers the case to local authorities, but could also refer the case to federal authorities.

In state and local jurisdictions where medical or recreational marijuana is legal, there is a dearth of regulation by the governing bodies of airports concerning how to treat the traveling public found with marijuana. Even if there is regulation, it is often conflicting. Sometimes such regulation depends on the language of measures that caused marijuana to be legalized. This article reviews the TSA authority and policy concerning marijuana discovered at airports, various airport policies and regulations, anecdotal reports by the media, and the limited case law on the subject. The conclusion: airports located in jurisdictions that have either legalized recreational or medical marijuana should clearly articulate policies concerning marijuana possession at their facilities and post those regulations.

The Evolving Position of the U.S. Department of Justice (DOJ)

The federal government has classified marijuana as a Schedule 1 substance, which means that it currently has no accepted medical use and a high potential for abuse.2 Federal law enforcement officers would be required to investigate any incident in which marijuana is present. On August 29, 2013, Deputy Attorney General James M. Cole published a Guidance Memorandum for all United States Attorneys regarding marijuana enforcement.3 In that memorandum, he reaffirmed that marijuana is a controlled substance and illegal under federal law despite state legalization. He indicated that United States Attorneys should focus their efforts on eight priorities, including three that have been cited to justify banning marijuana at airports in jurisdictions where it is otherwise legal. 4 These three priorities are: (1) “Preventing the diversion of marijuana from states where it is legal under state law in some form to other states”; (2) “Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity”; and (3) “Preventing marijuana possession or use on federal property.”

These priorities are of direct interest to airports and airport operators. The implications of the first priority are obvious. The federal government has decided to focus on preventing the transportation of marijuana from a jurisdiction where it is legal to a place where it is not: clearly, this could be accomplished through air travel. The priority relating to preventing marijuana possession on federal property is more nuanced, but likely also triggered. Arguably, all TSA security checkpoints are federal property and certainly passing marijuana through the scanners would be passing it through federal property. Therefore, the possession of marijuana would fall under a priority enforcement category promulgated by the DOJ. As a result, the possession of marijuana at a commercial airport would trigger multiple Department of Justice enforcement priorities.

TSA Security Officers at Security Checkpoints Are Not Law Enforcement Officers

Most courts have concluded that TSA screeners at checkpoints are not law enforcement officers.5 They do not have the authority to arrest. They do not have the authority to seize an item. When a prohibited item is found, they give the passenger the option of disposing of the item, leaving the item, or abandoning the item.6 When they discover potential criminal activity, TSA security screeners refer the matter to other law enforcement officers who may be federal or local (including state), or both.

This understanding of the limited authority of TSA screeners underscores TSA’s policy on marijuana activity:

TSA security officers do not search for marijuana or other drugs. In the event a substance that appears to be marijuana is observed during security screening, TSA will refer the matter to a law enforcement officer.

Whether or not marijuana is considered legal under local law is not relevant to TSA screening because TSA is governed by federal law. Federal law provides no basis to treat medical marijuana any differently than non-medical marijuana.

Even if an item is generally permitted, it may be subject to additional screening or not allowed through the checkpoint if it triggers an alarm during the screening process, appears to have been tampered with, or poses other security concerns. The final decision rests with TSA on whether to allow any items on the plane.7

Although I have not been able to find any cases in which TSA referred a marijuana matter to federal enforcement authorities in a state that has legalized marijuana, that is certainly a possibility. Such a referral would likely meet the DOJ enforcement priorities discussed above and trigger prosecution. Regardless, there are a number of incidents in which TSA referred the matter to local law enforcement and the passenger was arrested,8 forced to abandon the marijuana,9 or allowed to proceed with his or her travels.10 The TSA and police reaction depends on a number of factors but the most prominent appears to be the wording of the initiative that made marijuana legal in that jurisdiction.

Federal Aviation Authority (FAA) Grant Assurances and Regulations

When airports receive funds from the FAA for airport development, the purchase of property, or other matters, the airports are required to make assurances to the FAA.11 Many of these “grant assurances” relate to operations at the airport or various contractual matters; some also relate to civil rights.

Although FAA grant assurances do not explicitly ban possession of marijuana at airports by the traveling public, there are general requirements that airports comply with federal law. The grant assurances do require workplaces to be drug free. FAA regulations ban the carriage of narcotic drugs, marijuana, and depressant or stimulant drugs or substances in a civil aircraft within the knowledge of the operator, but that ban does not apply if the drugs are authorized by or under any federal or state statute or by any federal or state agency.12 Airlines have refused to carry passengers who have declared marijuana in their possession.13

Selected Airport Policies

1. Colorado

Colorado has legalized medical marijuana and recreational marijuana.14 But Amendment 64 to the Colorado Constitution (2012) does not prevent “a person, employer, school, hospital, detention facility, corporation or any other entity who occupies, owns or controls a property from prohibiting or otherwise regulating the possession, consumption, use, display, transfer, distribution, sale, transportation, or growing of marijuana on or in that property.” Colo. Const. art. XVIII, § 16. This provision has been used as justification for airports around Colorado to ban marijuana possession and create amnesty programs.

The Colorado Attorney General advised airports in Colorado to ban marijuana, and Denver and Colorado Springs have followed suit.15 Denver International Airport was the first facility to ban possession of marijuana following the legalization of cannabis under Amendment 64. Denver International Airport enacted a rule that prohibited possession, consumption, use, display, transfer, distribution, sale, transportation, or growth of marijuana on any of the property owned by the airport.16 The airport posted signs on the doors highlighting the ban and noting that violators could be fined up to $999.17

Colorado Springs followed, also promulgating a rule to prohibit marijuana. As justification for the rule, the Colorado Springs Department of Aviation cited the DOJ Memorandum Regarding Marijuana Enforcement, FAA Grant Assurances, TSA, FAA, and airline rules.18 Following adoption of the rule, the Colorado Springs Airport installed amnesty boxes. Passengers at Colorado Springs can leave marijuana in their vehicles. Amnesty boxes are available for passengers who bring marijuana into the airport facilities and do not want to fly with it and do not want to miss their flights. They provide an opportunity for passengers to remove the marijuana from their possession without penalty.

Telluride Regional Airport took a different approach and installed signs advising that anyone boarding a flight with marijuana risks prosecution under federal law.19

2. Washington State

Washington State has legalized both recreational and medical marijuana. Washington’s proposition legalizing recreational marijuana does not state explicitly that local jurisdictions have the authority to ban marijuana.20 Despite this lack of explicit authority, Spokane International Airport has taken a different approach and determined that it will confiscate any amount of marijuana found at its checkpoints. The airport spokesman indicated the reason for the policy was twofold: to not jeopardize future federal grants and to comply with the requirements of Federal Grant Assurances.21

Although Seattle-Tacoma International Airport has not banned marijuana, the Seattle Post-Intelligencer warned travelers that if they possess marijuana there is nowhere that they can legally go with it by air.22

3. California: Medical Marijuana

Airport marijuana policies become more complicated away from states that have legalized recreational use. In California, San Francisco police “allow card-holding medical marijuana patients to carry up to 8 oz when traveling.”23 San Jose police will not arrest or cite passengers found to be traveling with medical marijuana but prepare a report and pass it along to federal authorities.24

4. Hawaii: Medical Marijuana

Perhaps the most significant case involving a medical marijuana arrest occurred at Kona International Airport in Hawaii. Geoffrey Woodhall was travelling intrastate, from Kona to Honolulu, when TSA found he was in possession of 2.12 grams of marijuana at the airport security checkpoint.25 The TSA agent referred the matter to a Hawaii County Police Department Officer. Mr. Woodhall had a valid medical marijuana certificate from the State of Hawaii.26 Under Hawaii’s statutes authorizing medical marijuana, the possession and transportation of medical marijuana is permitted as a “medical use,” but the “medical use” of marijuana is prohibited in other places open to the public.27 The parties stipulated that Mr. Woodhall’s use was a medical use of marijuana and that the Kona International Airport was a public place.

The case went to trial only on the legal issue of whether medical marijuana can be transported in a place open to the public. The state argued that the prohibition of transportation of marijuana in public places should be strictly construed. The trial court agreed and convicted Mr. Woodhall of promoting a detrimental drug in the third degree. Mr. Woodhall appealed to the Intermediate Court of Appeals and it affirmed Mr. Woodhall’s conviction. The Supreme Court of Hawaii reversed and found that strict compliance with the medical marijuana statute was difficult because of poor wording and internal inconsistencies. As a result, the court applied the rule of lenity by construing the marijuana statute against the state and overturned Mr. Woodhall’s conviction.28 Note that in this case TSA referred the matter to local police and that Mr. Woodhall was travelling intrastate.


Airports located in states that have legalized marijuana (either medical, recreational, or both) face a dilemma when it comes to establishing clear regulations for possession and use of marijuana. The federal government considers marijuana a Schedule 1 substance and has identified eight priorities for the enforcement of marijuana, three of which touch possession at airports. The FAA requires airports that receive federal funding to enter into grant assurances that may require enforcement of federal laws. Once passengers go aboard a civil aircraft, the FAA prohibits the operation of the aircraft with knowledge that marijuana is carried in the aircraft unless authorized by federal or state statute or by a federal or state agency. This regulation has not been tested for legal medical or recreational marijuana.

At the same time, airports must balance their state and local concerns. Colorado’s Constitutional Amendment, which allowed recreational use of marijuana, clearly allowed local jurisdictions to ban marijuana in airports. Denver and Colorado Springs took advantage of that authority. Telluride Airport did not and provides warnings to its passengers. Washington State does not give the airports or local governments clear authority to ban marijuana.29 Spokane International Airport decided not to risk adverse federal reaction and banned marijuana anyway. Seattle-Tacoma International Airport has not banned marijuana but has advised its passengers that there is nowhere to go.

Once the passengers go aboard a civilian aircraft in possession of marijuana, the passengers have violated federal law. And that may be the bottom line: airports can ban marijuana and by doing so they may be actually doing their passengers a service because as soon as passengers board their flight, they return to the “no high” zone.


1. Transportation Security Administration, Mission (July 23, 2014), available at

2. See 21 U.S.C.A. § 812.

3. Memorandum from James M. Cole, Deputy Attorney General to All United States Attorneys (Aug. 29, 2013), available at resources/3052013829132756857467.pdf.

4. Possession of Marijuana in Passenger Terminal Facility and Air Operations Area (AOA) Prohibited, Jan. 10, 2014, available at

5. Corbett v. Transp. Sec. Admin., 968 F. Supp. 2d 1171, 1183 (S.D. Fla. 2012), aff’d, No. 13-14053, 2014 WL 2503772 (11th Cir. June 4, 2014) (“Several courts have addressed whether TSA agents are “investigative or law enforcement officers” for purposes of Section 2680(h), and the prevailing conclusion is that they are not.”).

6. Welch v. Huntleigh USA Corp., No. 04-663 KI, 2005 WL 1864296 (D. Or. Aug. 4, 2005).

7. Transportation Security Administration, Search Results for Medical Marijuana (no date), available at

8. State v. Woodhall, 301 P.3d 607, 609 (Haw. 2013).

9. Harriet Baskas, Marijuana at Airports: Colo., Wash. Adjust to New Laws, USA Today, June 20, 2014,

10. Mike Rosenberg, Medical Marijuana Patients Can Travel with Pot from SFO, Other Bay Area Airports, San Jose Mercury News, Oct. 21, 2009, http://www.

11. FAA, Grant Assurances (Obligations),

12. 14 C.F.R. § 91.19.

13. Delta Grounds Man over Legal Pot Stash, St. Petersburg Times¸ Aug. 17, 2001,

14. In the 2012 general election, Colorado voters approved Colorado Constitutional Amendment 64. Sladek v. City of Colorado Springs, No. 13-CV-02165-PAB-MEH, 2014 WL 86819 (D. Colo. Jan. 9, 2014).

15. Monica Mendoza, No Carry-on for Bags of Marijuana at Colorado Springs Airport, The Gazette, Jan. 9, 2014,

16. Denver International Airport, 30 Conduct of Persons Using the Airport,

17. Correction: Rethinking Pot-Pot on a Plane Story, A.P., Feb. 6, 2014, http://

18. Colorado Springs Airport,

19. Collin McRann Airport Clarifies Marijuana Rules, Telluride Daily Planet, Apr. 6, 2014,

20. Jake Ellison, Answered: Your Questions About Legal Marijuana . . . , Seattle Post-Intelligencer, July 7, 2014,

21. Jeff Humphrey, Airport Police Declare SIA a No-High Zone, KXLY, Jan. 14, 2013,

22. Answered: Is Marijuana Allowed in Sea-Tac Airport . . . , Seattle Post-Intelligencer, Jan. 22, 2014,

23. Rosenberg, supra note 10.

24. Id.

25. Nancy Cook Lauer, Medical Pot Conviction Overturned, Haw. Trib.-Herald, June 4, 2013,

26. Woodhall, 301 P.3d at 611.

27. Id.

28. Id. at 618.

29. See Washington Initiative Measure No. 502 (app. Nov. 6, 2012; eff. Dec. 6, 2012).