cannabis legalization is central to a new 4th U.S. Circuit Court of Appeals opinion that questions a long-standing assumption linking marijuana to firearm possession. In an eight-page concurrence in United States v. Carson, Judge Nicole Berner said changes in state and federal practice have weakened the rationale that officers may frisk a motorist for weapons simply because they suspect illegal drugs are present.
Berner, a 2024 Biden appointee and the newest member of the 4th Circuit, joined a three-judge panel that upheld Jermaine Derrick Carson Jr.’s federal conviction for unlawful firearm possession by a felon. The court rejected Carson’s request to suppress evidence obtained after Asheville detective Steven Escobedo frisked him during a traffic stop. The majority applied United States v. Sakyi, a 1998 4th Circuit precedent that presumes a police officer has reasonable suspicion to frisk for weapons when the officer reasonably suspects illegal drugs in the vehicle.
Although Berner agreed that Sakyi controls the outcome, she wrote separately to argue that the factual and legal landscape has shifted since 1998. She noted concrete changes: 47 states plus the District of Columbia permit medical cannabis use, and 24 states have legalized recreational sales and possession. Federal enforcement has also evolved, she said, pointing to long-standing Department of Justice guidance that deprioritized marijuana prosecutions in many state-compliant operations and the growth of a multi-billion-dollar regulated market.
“Sakyi rests on a simple premise: ‘where there are drugs, there are almost always guns,’” Berner wrote. “That premise can no longer hold water in this era of widespread marijuana legalization.” She added that the government itself conceded at oral argument that the link between marijuana use and gun possession has weakened.
Berner provided concrete examples from the Carson case to illustrate her point. Officers at the scene repeatedly told occupants they were “not the weed police,” and the Asheville Police Department no longer charges personal-use amounts of marijuana despite state law still criminalizing possession. Based on those facts, Berner argued, the practical effect of the Sakyi presumption is to strip marijuana users—or people merely near users—of Fourth Amendment protections against unreasonable searches and seizures.
She also relied on recent Supreme Court guidance. The concurrence cites United States v. Hemani, in which the Court held unconstitutional a statute criminalizing firearm possession as applied to occasional marijuana users. Berner interpreted Hemani as rejecting an enduring link between marijuana use and dangerousness in light of shifting legal norms.
Under current 4th Circuit law, however, the Sakyi presumption remains binding. A single three-judge panel cannot overrule circuit precedent; only an en banc 4th Circuit or the Supreme Court can. Berner said those courts may need to reassess the presumption, given that state-level legalization and federal prosecutorial practice have altered the relationship between cannabis and public safety in many jurisdictions.
Legal experts said Berner’s concurrence highlights a gap between precedent and present-day enforcement. If courts accept her reasoning, law enforcement would need to show independent facts supporting a reasonable suspicion of dangerousness before conducting a frisk based on marijuana odor or related indicators. That would limit frisks and weapon searches that now occur routinely after officers detect marijuana during traffic stops.
Practical effects could include fewer stop-and-frisk searches triggered solely by the smell of cannabis and greater protection for passengers and drivers in states with legal adult-use markets. In places that permit regulated retail purchases—24 states as Berner noted—an individual can lawfully buy cannabis at a dispensary and possess it in public or private without participating in illicit drug trade that historically prompted armed protection.
Prosecutors and law enforcement advocates have defended the Sakyi approach by pointing to studies and case reports tying illegal drug markets to weapon possession in some contexts. Berner acknowledged those safety concerns historically justified a presumption linking drugs and guns but argued the connection has narrowed specifically with respect to cannabis.
The Carson opinion leaves the legal question unresolved for now. The panel applied existing precedent and affirmed the conviction, but Berner’s concurrence signals a possible path for future challenges. Defense attorneys may cite her reasoning in motions to suppress evidence obtained after marijuana detection, particularly in circuits or states that have legalized cannabis. Conversely, prosecutors may argue that Sakyi still controls until the full 4th Circuit or the Supreme Court rules otherwise.
What happens next could depend on whether parties request en banc review or seek Supreme Court review to address the broader rule. Berner suggested that courts must consider the constitutional impact on millions of Americans who legally use cannabis or who simply are near cannabis use. The immediate practical outcome in Carson remains an affirmed conviction; the broader implications may unfold in later cases that test whether the historical drug-gun presumption survives contemporary legal realities.
United States v. Carson thus serves as a concrete example of how shifting state statutes and federal enforcement priorities intersect with constitutional protections. Berner’s concurrence quantifies those shifts—47 states plus D.C. with medical programs and 24 states with adult-use markets—and asks courts to measure whether a rule created in 1998 still fits the facts of 2024 and beyond.
