By Carolina Journal
A new judge on the 4th US Circuit Court of Appeals used a North Carolina firearms case to question a legal assumption tying marijuana to guns. Judge Nicole Berner, appointed to the court by then-President Joe Biden in 2024, laid out her reasoning Wednesday in an eight-page concurring opinion in United States v. Carson.
The panel upheld Jermaine Derrick Carson Jr.'s federal conviction for firearm possession by a felon, rejecting his bid to suppress evidence gathered when Asheville police detective Steven Escobedo frisked him during a traffic stop. Berner agreed with most of the majority's reasoning but devoted much of her writing to the intersection of marijuana enforcement and search law.
She said the outcome was compelled by United States v. Sakyi, a 1998 4th Circuit precedent presuming officers have reasonable suspicion to frisk for weapons whenever they reasonably suspect drugs are present in a vehicle. That presumption, Berner wrote, rests on the idea that "where there are drugs, there are almost always guns" — a premise she said "can no longer hold water in this era of widespread marijuana legalization."
Berner noted the government conceded at oral argument that the marijuana-gun link has weakened over nearly three decades. She pointed out that 47 states and Washington, D.C. now permit medical marijuana, 24 states have legalized recreational use — including several within the 4th Circuit — and the federal government has tolerated a state-compliant marijuana industry worth billions despite ongoing federal prohibition. She cited Maryland, where residents can legally buy marijuana at dispensaries without needing protection.
In Carson's case, officers assured him they were "not the weed police," and Asheville police no longer charge people for personal-use marijuana amounts, mirroring a Justice Department directive from over a decade ago to deprioritize such prosecutions. Berner wrote that prosecutors are now in the "awkward" position of arguing millions of regular marijuana users are inherently dangerous, and pointed to the Supreme Court's decision in United States v. Hemani, which struck down a firearm-possession statute as applied to occasional marijuana users and rejected the dangerousness link.
Bound by circuit precedent, Berner joined the majority while warning that the Sakyi presumption "strip[s]" marijuana users, even in legal states, of Fourth Amendment protection against unreasonable search. "As laws and social mores regarding marijuana continue to evolve, this presumption may no longer survive constitutional scrutiny," she wrote.