Federal Judge Questions Marijuana Frisk Rule in Legalization Era

A federal appeals judge has signaled that one of the rules police lean on most during traffic stops — the presumption that a whiff of marijuana is enough to pat someone down for a weapon — may no longer hold up under the Constitution now that most of the country has legalized cannabis in some form.

The signal came from Judge Nicole Berner of the Fourth Circuit Court of Appeals, in a concurring opinion issued July 8, 2026 in United States v. Carson. The court upheld the conviction of Jermaine Derrick Carson Jr., who was found with a loaded handgun after Asheville, North Carolina police frisked him during a late-night traffic stop. Berner agreed the frisk was lawful under existing precedent. But she wrote separately to argue that the precedent rests on an assumption that no longer matches reality.

The assumption under fire

The rule traces to a 1998 Fourth Circuit decision, United States v. Sakyi, which held that once an officer reasonably suspects drugs are in a car, the officer may order the occupants out and pat them down for weapons. It rested on a blunt premise the court borrowed from an earlier case: where there are drugs, there are almost always guns.

That premise, Berner wrote, “can no longer hold water in this era of widespread marijuana legalization.” In the nearly 30 years since the Sakyi ruling, she argued, the link between marijuana and the danger of an armed drug deal has grown thin — a point she said the government itself conceded at oral argument.

She pointed to how much has changed. Forty-seven states and Washington, D.C. now allow medical marijuana, and 24 states have legalized it for adults, including states inside the Fourth Circuit. The federal government has tolerated a multibillion-dollar cannabis industry, and this year it moved certain FDA-approved marijuana products out of the most restrictive drug category. Roughly 64 million Americans reported using cannabis in the past year. Someone in Maryland, Berner noted, can walk into a licensed dispensary and buy marijuana legally — hardly the armed-dealer profile the Sakyi rule was written to address.

From the Second Amendment to the Fourth

Berner’s concurrence lands weeks after the U.S. Supreme Court’s June 2026 decision in United States v. Hemani, which held that the government cannot automatically strip someone of the right to own a gun simply because they use marijuana. That ruling turned on the Second Amendment and the right to keep and bear arms.

The Carson concurrence pushes the same logic into a different corner of the Constitution — the Fourth Amendment’s protection against unreasonable searches. If marijuana users can’t be treated as categorically dangerous for the purpose of owning a gun, Berner reasoned, it is hard to justify treating them as presumptively armed and dangerous for the purpose of being searched. The Supreme Court, she noted, rejected the idea that dangerousness could be inferred from marijuana use alone — yet in her circuit, the mere smell of marijuana still gives officers an automatic basis to frisk.

The reach extends beyond people who use cannabis. Berner warned that the current rule strips “those who use marijuana…of their Fourth Amendment right against unreasonable search and seizure,” and sweeps in anyone who simply happens to be near someone else’s marijuana.

That collision between cannabis laws and firearm and search rights has been building across the country. Maryland lawmakers have moved to protect medical patients’ gun rights; a Pennsylvania veteran is suing over a carry ban tied to an old marijuana conviction; and Hawaii data has shown medical marijuana as the leading reason for gun-permit denials.

Why it stops short, and what to watch

For now, nothing about the Carson decision changes the law. Berner agreed with the outcome and joined most of the majority opinion; the frisk stood, and Carson’s conviction was affirmed. A three-judge panel cannot overturn its own court’s precedent — only the full Fourth Circuit sitting together, or the Supreme Court, can do that. Berner was explicit that she and her colleagues were bound by the Sakyi rule.

What she offered instead was an invitation to revisit it. She noted that other federal appeals courts already take a narrower view: some limit the drugs-and-guns presumption to suspected trafficking rather than personal use, and others treat it as just one factor among many. That kind of split between circuits is often what prompts the Supreme Court to weigh in.

The Fourth Circuit spans states on both sides of the divide, from Maryland, where anyone can buy cannabis at a licensed dispensary, to North Carolina, where it remains illegal. Across all of them, the practical rule has not moved: the smell of marijuana can still justify a search. What changed is that a federal appellate judge has now formally questioned whether that rule can survive.