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. The police-informant has made arrangements to buy marijuana from a person selling. Police then meet in a nearby staging location ahead of time, for a final huddle.
All the police officers involved as well as the informant who will be making the buy prepare there. Police search the informant to ensure and document that she has no illegal substances or money in possession. Then, police generally give the informant cash money with recorded serial numbers.
After that, unmarked, undercover police officers may park in a vehicle near the transaction site; 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.
Is illegal marijuana sale in Minnesota, a felony?
In 2023 we do have legal marijuana.
Medical: 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.
Hemp: And hemp is legal to sell and possess in Minnesota. Though growing, sale and manufacture of hemp products is now regulated.
Low-THC “Nonintoxicating cannabinoids:” The 2022 legislature created the legal category of “nonintoxicating cannabinoids,” hemp products with low-THC levels, usually edibles and drinks.
Adult-Use Cannabis: In 2023, the legislature made significant reforms to Minnesota marijuana laws. These include the presumptive legalization of marijuana, and changes in the “illegal cannabis” sale crimes. The new law sets up a regulatory system for legal sales of certain cannabis products. But it also provides for lawful personal use, possession, and home growing. And while it explicitly authorizes gifting, it remains silent on some topics. We’ll dive into some of these here.
Prosecutions for sales of “illegal cannabis” are less common than prosecutions for possession.
Before August 2023, all illegal marijuana sale prosecutions in Minnesota state court were felony prosecutions. But after that, the rules on marijuana sales changed.
Since August 2023, “illegal cannabis” sales crime changes include increased weight thresholds, and new exceptions for home grows and “sales for no remuneration” between adults (gift or passing the pipe.)
Illegal Cannabis Sales Crime charges were deleted from the First Degree to Fifth Degree “Controlled Substance Crime” statutes.
But in 2023 now we have Minnesota Statutes Section 152.0264 “Cannabis Sale Crimes,” First through Fourth Degrees. First Degree has the most severe penalty provision; while Fourth Degree has the least.
Five factors: severity levels of Controlled Substance Crime
- Possession vs. sale
- Type of Cannabis or Product
- Special Location
- Under Age 18
Weight is the main factor in determining severity level. And cases involving special locations and persons under age 18 are rare.
Weight thresholds for “cannabis flower” sales crimes:
- 2 ounces or more, plus to minor 36 months younger or priors: 1st Degree, 5 year Felony
- Two ounces or more, plus special location* or priors: 2nd Degree, Gross Misdemeanor
- 2 ounces or more: 3rd Degree, Misdemeanor
- Not more than 2 ounces: 4th Degree, Petty Misdemeanor
- Any measurable amount: to a minor: 2nd Degree, Gross Misdemeanor
*Special locations – in a school zone, park zone, public housing zone, or drug treatment facility.
Weight thresholds for “cannabis concentrate” or edible cannabis products or lower-potency hemp edibles with a 800 milligrams or less of tetrahydrocannabinol illegal sales:
- Eight grams or more, plus to minor 36 months younger & priors: 1st Degree, 5 year Felony
- 8 grams or more, plus special location* or priors: 2nd Degree, Gross Misdemeanor
- 8 grams or more: 3rd Degree, Misdemeanor
- Not more than eight grams: 4th Degree, Petty Misdemeanor
- Any measurable amount: to a minor: 2nd Degree, Gross Misdemeanor
Sale of Immature Cannabis Plants
Is the sale of immature cannabis plants a crime, under the new 2023 cannabis reform law?
Apparently not. The state cannot prosecute a person criminally unless a statute gives notice of criminal penalties for the proscribed conduct. But the 2023 cannabis reform law does not do that, in relation to the sale of immature cannabis plants.
Minnesota’s new cannabis law includes terms that make no sense. It says “immature cannabis plants” repeatedly, but defines “cannabis plant” as “genus Cannabis … growing … & has a Delta-9-THC concentration of more than 0.3%.” Problem? Immature plants have less than 0.3% THC. Therefore, an immature cannabis plant cannot be an illegal “cannabis plant,” under this law.
“‘Cannabis plant’ means all parts of the plant of the genus Cannabis that is growing or has not been harvested and has a delta-9 tetrahydrocannabinol concentration of more than 0.3 percent on a dry weight basis.”Minn. Stat. §342.01, subd. 19
So, under the statutory definition of “cannabis plant,” the statutes’ repeated references to “immature cannabis plant” refer to something that does not exist.
“Sale for No Remuneration” is leg-speak for “Gift”
Minnesota marijuana laws: Minnesota Statutes contain the language “sale of cannabis for no remuneration.” See, Minnesota Statutes Section 152.0264 (2023), making this legal between adults. Most people find that language confusing.
Translated into plain English; it means to give away or make a gift of a marijuana.” But 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.
Minnesota Statutes Section 342.09 PERSONAL ADULT USE OF CANNABIS (2023),Minn. Stat. § 342.09, Subd. 1
Subdivision 1. Personal adult use, possession, and transportation of cannabis flower and cannabinoid products.
(a) An individual 21 years of age or older may: …
(6) give for no remuneration to an individual who is at least 21 years of age:
(i) two ounces or less of adult-use cannabis flower;
(ii) eight grams or less of adult-use cannabis concentrate; or
(iii) an edible cannabis product or lower-potency hemp edible infused with 800 milligrams
or less of tetrahydrocannabinol; and
(b) Except as provided in paragraph (c), an individual may not: …
(7) give for no remuneration cannabis flower, cannabis products, lower-potency hemp
edibles, or hemp-derived consumer products to an individual under 21 years of age;
(8) give for no remuneration cannabis flower or cannabis products as a sample or
promotional gift if the giver is in the business of selling goods or services;
Check out our: in-depth articles on Minnesota marijuana laws.
Sentencing Entrapment: Marijuana Sale Crimes
Sentencing entrapment is not a complete legal defense but it is a partial 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. Police want a bigger bust out of the informant. So the informant pressures the seller for a much larger quantity than they ever have sold before.
No predisposition: The seller may have only sold single ounces of marijuana; but the police informant manipulates 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 also result in a lesser-included offense conviction.
Defenses: marijuana sale
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.
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. Identity of the alleged illegal cannabis can be an issue in some cases.
All the defenses available in criminal prosecutions generally should also be available in a marijuana sales case.
In addition, some marijuana sale cases could have defenses unique to special marijuana cases, such as the Minnesota Constitutional defense under the “Products of Home or Garden” clause, Art. 13, Sec. 7.
At trial, the government lawyer has the burden of bringing in evidence to support each and every element of the charges. A reasonable doubt about any one of them means a not-guilty verdict.
And, 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: We the People
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 no matter what. And the jury can acquit even when they believe the person did do what is alleged.
Many 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. And this is the foundation of democracy.