Marijuana Sale Felony

Most of marijuana sales prosecutions result from police “controlled buys.”

Police controlled-buy stings

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, police generally give the informant cash money with recorded serial numbers.

leaf-usa-flag-sm Marijuana Sale Felony crimes in Minnesota

Marijuana Sale Felony crimes in Minnesota

After that, unmarked, undercover police officers may park in a vehicle near the site of the transaction, well before the appointed time.  They conduct visual surveillance.

And police may also video or audio record the events.  The informant may wear a wireless transmitter.  Other, uniformed police in marked police cars may be within striking distance.

Then, around the appointed time the informant meets the seller and conducts the transaction.  Police watch and record it for corroboration.

After the sale, police sometimes arrest the suspected seller immediately.  Other times they don’t.  Why wait?  After an arrest, the informant’s identity becomes known in the affected community, rendering the informant useless to police.

Evidence less than a controlled buy is weak by comparison.

Any illegal marijuana sale in Minnesota is a felony

Illegal alcohol sales

Illegal alcohol sales

In 2019 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.

And hemp is legal to sell and possess in Minnesota.  Though growing and manufacture of hemp products is regulated.

Prosecutions sales of illegal marijuana are less common than prosecutions for 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 define Minnesota Controlled Substance Crimes severity levels using four factors:

  1. Possession vs. sale
  2. Weight
  3. Special Location
  4. 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 marijuana laws:  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.

You can also check out our in-depth articles on Minnesota marijuana laws.

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 police informant must manipulate the seller to find six kilos to sell.  The seller had no predisposition to sell kilos, only ounces; but the government (its agent, the informant) caused the more severe level crime.  The law calls this 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.


Thomas Gallagher, Minnesota Marijuana Attorney

Thomas Gallagher, Minnesota Marijuana Attorney

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.  A judge will hear defense motions to suppress unreliable, illegal evidence at the Contested Omnibus Hearing.

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.

At trial, 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.

Jury power

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.

Gallagher Criminal Defense logo smMany call this jury nullification because the jury can veto or nullify laws it views as oppressive or unjust, with its verdict.   This is an example of 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