U.S. Customs Gears Up For Ontario’s Legalization Of Pot

Photo Credit: Mark Mulville

By now, anyone who travels from Canada to Buffalo knows the humdrum questions that await them at the border.

What is your citizenship? Where do you live?

Now imagine adding this question: Have you ever smoked marijuana?

While it’s rarely asked by Customs officers, it is asked on occasion and now there’s an expectation it may get asked even more because of Ontario’s legalization of pot.

“Is it a line of questioning that can be asked of people now? Sure it is,” said Aaron Bowker of U.S. Customs and Border Protection in Buffalo. “But do I think it’s going to drastically change the line of questioning most often used? No I don’t.”

Customs officers on both sides of the border have wide discretion on what to ask and, if they suspect a traveler possesses marijuana or is driving while impaired, they can inquire about past or current drug use.

With the legalization of pot coming later this summer to Ontario, it’s no secret Customs is preparing for the prospect of Canadian and U.S. residents trying to bring it over the area’s bridges.

For Canadians, the risk is particularly acute. If they’re asked a question about drug use, they can lie, a potential crime; tell the truth, admitting to another potential crime of trying to sneak it into the U.S.; or refuse to answer.

They can also be denied entry and, in a worse-case scenario, be banned for life from the U.S.

“It has always been a potential hazard for Canadians,” said Matthew Kolken, a Buffalo immigration attorney, “And as a result of the legalization of marijuana in Ontario, it’s likely it will be seized upon even more.”

With the legalization, there is also an expectation that cross-border marijuana arrests will rise, although immigration lawyers expect the increase to be minimal.

Most people, they say, are savvy enough to know that, even if you buy marijuana legally in Ontario, you can’t bring it back to the U.S.

“While we understand people may go up there and use it, our message is do not bring it back and do not drive while impaired,” Bowker said.

Like Kolken, David R. Adelman, a criminal defense and immigration lawyer, thinks legalization will result in a slight uptick in arrests. There are always going to be “naive” people who think that because they bought their pot legally, it must be OK to bring it home, he said.

Adelman also expects more and more travelers to face questions about their marijuana use, but said they understand an admission about marijuana use does not mean they should be turned away.

“The standard is whether you’re a drug addict, not whether you’ve ever tried marijuana,” he said.

More and more, lawyers are advising U.S. clients about the risk of using credit or debit cards to buy marijuana online or at a store in Ontario. They also are warning them against mentioning their marijuana use on social media.

The federal government, they claim, has been known to monitor social media for information on drug smuggling.

U.S. Customs officials began preparing for legalization five months ago, and Bowker said they’re prepared for Day One, which is now expected in July or August.

He said Customs officials on both sides of the border are working together to insure a smooth transition to the new era of lawful Canadian pot. But in realty, he said, there will be no changes in how Customs enforces the law.

No increase in staffing. No changes in the questions officers may ask. And no profiling of travelers, he said.

What officers will do, he said, is read body language. They also have drug-sniffing dogs when the need arises.

“Officers are looking for red flags, and sometimes it’s not just one red flag; sometimes it’s three or four red flags,” Bowker said.

Kolken said travelers should be prepared to tell the truth if they’re asked about past or current marijuana use. He also thinks they should expect to be profiled.

“Try driving up to the booth in your ‘Steal Your Face’ Grateful Dead T-shirt and see if you’re not diverted to a secondary inspection,” he said.

Sometimes, it doesn’t take a Grateful Dead T-shirt.

On a Monday morning in mid-May, a 77-year-old man from Canada was arrested and accused of trying to bring 104 pounds of marijuana across the Peace Bridge into Buffalo.

Customs officers said vacuum-sealed bags of pot were discovered during an initial inspection of Nereo Fogazzi’s vehicle, and that a second inspection revealed even more bags hidden in the spare-tire wheel well of his trunk. They estimated the street value at $300,000.

It’s not clear what red flag the Customs officer noticed when Fogazzi pulled up, but he is accused of trying to smuggle his pot across the border in hockey bags.

Fogazzi is the type of cross-border traveler Customs is targeting.

When it comes to drugs, Bowker will tell you that high-amount, distribution-type drug seizures are at the top of Customs and Border Protection’s list of priorities.

That is not to say, of course, that they will turn a blind eye to travelers possessing small amounts of marijuana or driving while impaired. They also don’t make an exception for medical marijuana users.

“It’s the law,” said Bowker. “We don’t get involved in politics. Our job is to enforce the law on the books.”

Western New York’s border crossings are not the first venues where marijuana legalization and federal law have butted heads. It also happened in Colorado, California and every other state that legalized pot.

And yet, Adelman admits he and a lot of other criminal defense lawyers find themselves scratching their heads.

“It might be a lofty goal to make everyone a teetotaler,” he said, “but the fact is, a large portion of the population is going to use it.”