(Carolina Journal) – The newest member of the 4th U.S. 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.”
Berner wrote that it has become common, and accepted, that "where there are drugs, there are almost always guns."
“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,” she wrote.
“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 4th 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.’”
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