4th Circuit judge uses NC case to highlight shifting marijuana law

The newest member of the 4th US Circuit Court of Appeals used a North Carolina case Wednesday to discuss the potential legal impact of shifting attitudes about marijuana.

Judge Nicole Berner offered her commentary in an eight-page concurring opinion in United States v. Carson. Then-President Joe Biden appointed Berner to the 4th Circuit in 2024.

Appellate judges upheld Jermaine Derrick Carson Jr.’s conviction on a federal charge of firearm possession by a felon. The court rejected Carson’s arguments that evidence against him should have been suppressed. That included evidence resulting from Asheville police detective Steven Escobedo frisking Carson during a traffic stop.

Berner supported most of the majority decision. Yet she dedicated much of her concurrence to the link between marijuana and law enforcement searches.

“I agree with my colleagues that our precedent in United States v. Sakyi dictates the outcome of this case,” Berner wrote, citing a 1998 4th Circuit precedent.

“Sakyi created a presumption that a police officer has reasonable suspicion to frisk a suspect for a weapon during a traffic stop when he reasonably suspects that there are illegal drugs in the car,” Berner explained. “Applying this binding precedent, we are left with no choice but to conclude that Escobedo frisking Carson for weapons did not violate Carson’s Fourth Amendment rights because Escobedo reasonably suspected that there was marijuana in the car.”

“The Sakyi presumption rests on a simple premise: ‘where there are drugs, there are almost always guns,’” Berner wrote. “This premise — that an individual who is suspected of being in proximity to illicit drugs is likely carrying a gun — can no longer hold water in this era of widespread marijuana legalization.”

“In the nearly thirty years since Sakyi was decided, the purported nexus between marijuana use and gun possession has become attenuated,” she added. “Indeed, the Government conceded as much at oral argument.”

“The legal landscape around marijuana use, both medical and recreational, has shifted considerably both at the state and federal level,” Berner continued. “Forty-seven states and the District of Columbia now allow the use of marijuana for medical purposes. Twenty-four states, including a number within the Fourth Circuit itself, have legalized recreational marijuana use. Though federal law continues to criminalize marijuana, the federal government ‘has largely tolerated the production and sale of marijuana when done in accord with state law, and it has allowed a multi-billion-dollar marijuana business to develop.’”

“Sakyi relies on an assumption that individuals using and dealing illicit drugs are likely to be carrying guns for protection while engaged in illegal drug transactions,” Berner argued. “Against the backdrop of changes in federal law and widespread state legalization, such safety concerns are now notably absent for many marijuana users. An individual in Maryland, for example, can walk into a dispensary and legally purchase marijuana with no need for the type of protection upon which Sakyi based its nexus analysis.”

Berner highlighted the actions of Asheville police in Carson’s case.

“The facts of this case demonstrate this unassailable attenuation between marijuana use and dangerousness,” the judge wrote. “The officers themselves repeatedly assured Carson and the other occupants of the car that they were ‘not the weed police.’ Indeed, even though marijuana remains unlawful in North Carolina, the Asheville Police Department no longer charges individuals who possess personal use amounts of marijuana. This approach follows the lead of the Department of Justice which directed federal prosecutors to forgo marijuana prosecutions over a decade ago.”

Government prosecutors are now “in the ‘awkward’ position of suggesting that ‘millions of Americans who now regularly use marijuana are categorically and unusually dangerous,’” Berner wrote. “The Supreme Court’s recent decision in United States v. Hemani underscores the need to revisit our presumption. There, the Court held unconstitutional a statute criminalizing firearm possession as applied to occasional marijuana users.”

“The Court explicitly rejected that a link between dangerousness and marijuana use could be sustained in view of the evolving legal and social landscape,” the concurrence continued. “Yet, under the law of our circuit, reasonable suspicion to frisk for weapons continues to be presumed anytime a police officer even so much as detects the smell of marijuana.”

The 4th Circuit’s “approach stands in contrast to decisions from our sister circuits,” Berner argued. A single three-judge 4th Circuit panel could not change that approach.

“Accordingly, we are bound by Sakyi, and I join my colleagues in their carefully reasoned opinion,” Berner wrote. “I write separately to underscore that our current presumption has the practical effect of stripping those who use marijuana, even in states where it has been legalized under state law, and even individuals who simply find themselves in near proximity to others using marijuana, of their Fourth Amendment right against unreasonable search and seizure.”

“As laws and social mores regarding marijuana continue to evolve, this presumption may no longer survive constitutional scrutiny,” Berner added.

“4th Circuit judge uses NC case to highlight shifting marijuana law” was originally published on www.carolinajournal.com.