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Court: Out-of-state pot illegal in Kansas

TOPEKA, Kan. (AP) -- Marijuana that someone obtained legally elsewhere is still illegal in Kansas, and a person who brings it into the state can be prosecuted under Kansas law, the state Court of Appeals has ruled.

The decision came in the case of a Troy James Cooper, a Colorado man who was stopped in central Kansas by a state trooper and found to possess a small amount of marijuana he had been doctor-recommended in his home state.

It was the first time the state Court of Appeals had been asked to consider whether Kansas could prosecute someone for possessing medical marijuana legally recommended in another state, The Kansas City Star reported (http://bit.ly/10SW2Iw ).

The decision issued by the court Friday won't change the outcome of Cooper's case. A trial judge acquitted him of a misdemeanor charge of possessing marijuana, and trying him again would constitute double jeopardy, according to Paul Kasper, the attorney who represented Cooper.

But the ruling will provide guidance to law enforcement and trial courts in the future as more states legalize the medical or recreational use of marijuana, said Kansas Attorney General Derek Schmidt.

"Law enforcement officers may continue to enforce Kansas laws against certain drugs, even if those products are legal in other states," Schmidt said.

Cooper brought the medical marijuana from Colorado into Kansas when he visited relatives in Ellsworth County in 2011. The marijuana was found during a routine traffic stop, and prosecutors charged him with a misdemeanor under Kansas law.

A judge acquitted Cooper, finding under the 14th Amendment to the U.S. Constitution that prosecuting him "impermissibly interfered with his constitutional right to interstate travel," according to the appeals court ruling.

Schmidt's office appealed the acquittal, and the higher court agreed to hear the case because of the growing prevalence of medical marijuana.

"As more states permit the use of medical marijuana, more people may be traveling through Kansas with their medication," the court noted. "That suggests the question could be of some broad interest."

The state argued that the clause in question protects only federal rights and noted that there is no exception in federal drug laws for medicinal marijuana.

In its ruling, the appeals court agreed that the specific clause did not bar Kansas from applying state law.

But the court noted that the ruling was based only on that one narrow question and "has nothing to say about other constitutional grounds that might bar such a prosecution."

Kansas Solicitor General Stephen McAllister, a law professor at the University of Kansas, said the state thought it was an important question to have answered.

Although Cooper's case involved a small amount of marijuana, the situation could apply to any number of others in which a person who violated Kansas law could argue, "You can't touch me. I'm legal back home," McAllister said.

"It becomes a tricky problem once you open that door," he said.