Ask a Weed Lawyer: What if the TSA Finds my Weed?

Pack light, friends.

John Bussman is a criminal defense attorney in Orange County, California. He is an expert on marijuana law, a member of the NORML Legal Committee, and a longtime supporter of drug policy reform.

Q: What happens if I get caught with weed by TSA? And are those dogs sniffing for it?

We all know by now, the TSA does not need a warrant or your permission to search your bags when you travel by air. Your right to privacy varies depending on the circumstances. To determine whether or not a search is permissible, courts will weigh the government’s “need to know” against the degree to which a search intrudes upon your “reasonable expectation of privacy.” In air travel, both of those considerations weigh heavily in the government’s favor. Federal agents have a compelling need to search bags for bombs, and nobody “reasonably” expects that their bags are private anymore.

The Transportation Security Administration is specifically charged with protecting the nation’s transportation systems against terrorist attacks. They are not responsible for drug interdiction, customs enforcement, or other general law-enforcement tasks. According to its website, “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.” 

The airport is a dangerous place to possess drugs. The government is watching and it's sifting through your stuff.

So the TSA is not looking for weed, but they may turn it over to local police if they find it. Or they might steal it. Are you going to complain to a supervisor?

Also, keep in mind that some agencies are specifically looking for drugs at the airport. Aside from the TSA, you may encounter the DEA, Customs Enforcement, airport police and other local law enforcement. They may have dogs, and those dogs may be sniffing for drugs.

The moral of the story is that the airport is a dangerous place to possess drugs. The government is watching, and it's sifting through your stuff. Even it isn’t looking for your weed, its agents are likely to find it and make it disappear.

In the olden days, it was pretty safe to tuck your contraband into the elastic of your underwear, as long as you didn’t wrap it in aluminum foil, ala Damien Stoudamire. Today, full-body scanners are inspecting your bits for anomalies. In the eyes of the TSA, any unidentified items in your crotch are potentially plastique explosives. Hiding contraband on your person is obviously not advisable when passing through airport security.

“A friend of mine” always removes his weed from any hard container and wraps it in multiple soft, plastic baggies to avoid smell and x-rays. He stuffs the baggie into the toe of a shoe in the bottom of a checked bag, then he stuffs the shoe with dirty socks. Nobody is digging dirty socks out of a shoe in the bottom of a checked bag. Or so he assures himself.