Marijuana at the Border: Customs and Border Protection Misses the (Cole) Memo, Gets Sued

A new lawsuit highlights another wrinkle in the interplay of state and federal marijuana laws: what happens when a medical marijuana patient carrying state-legal cannabis passes through a federal border patrol checkpoint? The answer appears to be “it depends,” and that is exactly why a Deming, New Mexico MMJ patient has brought suit against U.S. Customs and Border Protection to enforce his right to possess marijuana.

The problem for plaintiff Raymundo Marrufo arises when Marrufo travels from his home in Deming, New Mexico, to Las Cruces, New Mexico, to obtain medical cannabis. Both of these towns are near the U.S.-Mexico border, where CBP is on the lookout for illegal activity such as drug smuggling and migrant crossings. The route Marrufo takes along Interstate 10 requires him to pass through a CBP checkpoint, where he is routinely asked whether he is in possession of illegal drugs. Now, because marijuana remains illegal under federal law, Marrufo risks federal drug charges for truthfully answering “yes,” or may be viewed as lying to a federal agent for replying “no.” Not exactly the most palatable of alternatives.

U.S. Border Patrol and Medical MarijuanaThings get complicated when you consider the effect of the 2013 Cole Memo and other federal policies in this circumstance. If Marrufo were attempting to cross between the U.S. and Mexico, it would be clear he was engaging in interstate drug trafficking which is a definite no-no under the Cole Memo and would unquestionably subject him to federal prosecution. But because this particular checkpoint is along Interstate 10 and is completely within New Mexico’s territory, Marrufo’s  interaction with CBP agents falls into a legal gray area. Assuming Marrufo’s use and possession of medical cannabis are otherwise on the up-and-up (i.e., within the permissible limits, Marrufo isn’t driving under the influence, etc.), the Cole Memo should control and Marrufo should be able to disclose that he is in possession of medical cannabis without fearing arrest. Problem is, the Cole Memo issued directives to the United States Attorneys, who are part of the Department of Justice. Customs and Border Protection, however, is a part of the Department of Homeland Security. In other words, CBP didn’t get the memo, and CBP agents may feel they are at liberty to detain medical cannabis patients. For our post on how the U.S. Postal Service also did not get the memo, check out Marijuana Ads in the Mail Are a No Go.

In arguing CBP cannot interfere with his right to possess MMJ, Marrufo also relies on the Rohrabacher-Farr Amendment, which purports to prevent federal prosecution of medical marijuana patients and businesses by eliminating funding for such activity. Setting aside that dubious interpretation of Rohrabacher-Farr, that provision, like the Cole Memo, was aimed squarely at the Department of Justice. So again, border patrol agents on Interstate 10 may be justified in their inquiries, even where they potentially reach activity lawful under New Mexico’s Lynn and Erin Compassionate Use Act. The situation really gets silly when you consider that any federal prosecution would actually be brought by the U.S. attorneys and assistant U.S. attorneys – the very same individuals who, under the Cole Memo and Rohrabacher-Farr, are supposed to be occupying themselves with other, more pressing matters. Local federal officials have toed the party line: according to the Las Cruces Sun-Times, when asked by State Representative Bill McCamley how these checkpoint cases would be handled, the U.S. Attorney’s office in Albuquerque responded that it follows the Cole Memo and does not prosecute MMJ patients with “small amounts” of marijuana.

Despite the apparent futility of a CBP-initiated case against a medical cannabis patient and the Albuquerque U.S. Attorney’s assurances that it would not pursue such cases, the same Sun-Times article reports that agents have indeed stopped MMJ patients and seized their medicine. For this reason, Marrufo filed a federal lawsuit, asking the court to enjoin border agents from taking action against Marrufo and patients like him. Marrufo’s lawyer is quoted as saying Marrufo is being discriminated against because he happens to live near the border. We doubt this assertion will get much traction (under Raich v. Gonzales, there’s no federal right to use or obtain MMJ [read more here]), but a recent federal decision out of California may bolster Marrufo’s Rohrabacher argument.

Still, what Marrufo really needs is assurances from the powers that be within the Department of Homeland Security that CBP will not make an issue out of state-legal medical marijuana possession. Recent events would seem to suggest that Homeland Security has plenty of other, more critical work to do; here’s hoping they agree, and refocus their agents’ energies elsewhere.