Felony Sales Marijuana

Most sales of marijuana cases that involve allegations of actual sale (as opposed to some legal fiction “sale”), are police “controlled buys.”  In a controlled buy, police have an informant working for them who has made arrangements to buy marijuana from a person selling.  Police meet in a nearby staging location ahead of time, for a final huddle with all the police officers involved as well as the informant who will be making the buy.  They will search the informant to ensure and document that he or she has no illegal substances or money in possession.  Then, they will generally give the informant cash money that has been photocopied or otherwise identified (i.e., serial numbers).

leaf-usa-flag-smAfter that, unmarked, undercover police officers may park in a vehicle near the site of the transaction, well before the appointed time.  They will conduct visual surveillance, and may also record events via video camera and-or audio record from the wireless transmitter being worn by the informant.  Other police officers, including uniformed police in marked police cars may be staged within striking distance.

Then, around the appointed time the informant meets the seller and conducts the transaction.  Typically it is being watched and recorded by police for corroboration.

After the sale, police sometimes arrest the suspected seller immediately.  Other times they don’t.  Why wait?  Once an arrest for sales is made, typically the informant’s identity will be exposed and known widely within the affected community, rendering the informant useless to police after that.

Any alleged sale case with less evidence than that is weak by comparison.

Any sale of illegal marijuana in Minnesota is a felony. 

In 2018 we do have legal marijuana within Minnesota’s legal Medical Marijuana Program, authorized by Minnesota Statutes and administered by the Minnesota Department of Health. Marijuana sales within the controls and limits of that program to authorized program participants are, of course, legal – dormant federal law to the contrary notwithstanding.

Prosecutions for illegal sales of marijuana are relatively rare, compared to the far more common prosecutions for illegal possession.  Also rare, relative to far more common Minnesota state court prosecutions, are federal prosecutions of marijuana sales cases in United States District Court, which usually involve multi-defendant conspiracy allegations.

While all illegal sales of marijuana prosecutions in Minnesota state court are felony prosecutions, most of these include charges with levels of severity from First Degree to Fifth Degree “Controlled Substance Crime.”  First Degree has the most severe penalty provision; while Fifth Degree has the least.

The statutes defining Minnesota Controlled Substance Crimes base severity levels on three factors:

  1. Weight
  2. Special Location
  3. Under Age 18

Weight is by far the main factor in determining severity level, since cases involving special locations and persons under age 18 are rare.

Weight thresholds for marijuana sales crimes (excluding location and under 18)

  • 25 kilos or more: First Degree
  • 10 kilos or more: Second Degree
  • 5 kilos or more: Third Degree
  • Any measurable amount: Fifth Degree

Under Age 18 – sells to person under 18 or conspires with a person under 18 to sell

  • Any measurable amount: Third Degree

Special locations – in a school zone, park zone, public housing zone, or drug treatment facility

  • 5 kilos or more: Second Degree.
  • Any measurable amount: Fourth degree.

Minnesota Statutes contain the language “sale of ‘a small amount of marijuana’ for no remuneration.”  Most people find that language confusing at first.  Translated into plain English, it means to give away or make a gift of a “small amount of marijuana” (42.5 grams or less).  It’s a confusing phrase because it implies that a gift is somehow a sale – though of course a gift is by definition not a sale.  A sale is a trade of something for something else of value, usually money.

Sentencing Entrapment

Sentencing entrapment is not a complete legal defense but it is a defense in a common situation.  In most sales cases, police use informants.  Informants are often under heavy pressure by police to provide actionable information.  These threats sometimes motivate the informant to pass the pressure along to a seller, to one way or another cause the seller to sell a much larger quantity than they ever have before.  The seller may have sold single ounces of marijuana, but the informant has managed to manipulate the seller to find six kilos to sell.  In that situation, the seller was not predisposed to sell kilos, only ounces; but the government (its agent the informant) caused the more severe level crime.  This is called sentencing entrapment.  It can result in acquittal of a more serious charge based on a larger amount, but may result in a lesser-included offense conviction.


Defense to a marijuana sale case will largely depend upon the nature of the evidence in the particular case.   Some defenses relate to the illegal collection of evidence by police.  Sometimes illegal evidence is unreliable, other times it is the result of dangerous government abuses.  Defenses at trial will vary depending upon the prosecution theory as well as the defense theory of the case.  All the defenses available in criminal prosecutions generally should also be available in a marijuana sales case. The government lawyer has the burden of bringing in evidence to support each and every element of the crime charged.  A reasonable doubt about any one of them means a not-guilty verdict.  In addition, the defense can raise one or more affirmative defenses.  One example could be an affirmative defense under the Minnesota Constitution’s Freedom of Religious Conscience clause, Art. 1, Sec. 16.

In the end, however, the jury has the last word, or the last two words: “Not-Guilty.”  All legal authorities agree, some with regret, that the jury has the power to acquit an accused person even when they believe the person did do what is alleged.  Sometimes this is called jury nullification because the jury can veto or nullify laws it views as oppressive or unjust, with its verdict.   Sometimes this is referred to as jury power.  Another related term is jury lenity.

Question about a Minnesota Marijauna Defense case?  You can call Minneapolis Marijuana Lawyer Thomas C. Gallagher at 612 333-1500