Estimated reading time: 10 minutes
Prosecutors file marijuana grow criminal charges in Minnesota courts. So it pays to know the law. And here marijuana grow defense attorney Thomas Gallagher provides an overview of Minnesota criminal marijuana home grow laws for individuals without a commercial license, including defense of criminal grow charges.
Marijuana Grow Cases
Most marijuana growing prosecutions historically have been in State court, not federal. One reason? Marijuana is safer than other drugs. And the majority of the United States population has tried it at least once.
But now in Minnesota, we have a “safe harbor” Castle-Law consistent with our Minnesota Constitutional right to sell what we grow at home without a license.
A valued plant through history, humans cultivated the cannabis plant for thousands of years. Since before history, people grew the cannabis as fiber and food (Hemp) and as a psychoactive agent (Marijuana). All over the world people have used cannabis. Yet historically, adult-use marijuana was dominant mostly in warm climate zones.
For example, George Washington grew Cannabis on his farm. There was no such thing as a criminal law prohibiting Marijuana or Cannabis.
“Make the most of the Indian hemp seed, and sow it everywhere!”
George Washington, Note to gardener, 1794 “Writings of George Washington” Vol. 33, p. 270
Until the 1930s in the United States, that is. Now, in the 21st Century, our nation may be coming to its senses.
In August 2023, a new marijuana partial legalization law (“Prohibition lite”) took effect in Minnesota. It includes:
- Use of marijuana legalized;
- Rescheduling to Schedule 3 (full legalization requires descheduling);
- Possession by adults still a Prohibition crime, but at higher weight thresholds;
- Legalizing home grow of up to four mature plants.
Criminal Prohibition: Grow laws
Minnesota State Statutes still provide for criminal penalties for marijuana.
And most of these drug prosecutions are under Minnesota Statutes Chapter 152, titled “Drugs, Controlled Substances.” But the 2023 legislature both partly reformed Chapter 152, and added new Chapter 342, “Regulation of Adult-Use Cannabis.”
For most of the Prohibition era in Minnesota, if you possessed growing marijuana, the government could prosecute you for possessing it. Only with evidence of an actual sale; could the government prosecute for criminal sale of the “malum prohibitum.” (Sale of a “controlled substance” carries a more severe sentence, than criminal possession.) Then later, Minnesota Statutes allowed the government to prosecute a person growing for “sale” even where there was no actual sale, under a convoluted series of statutory definitions.
But effective August 1, 2023, Minnesota Statutes Chapter 152 has a new category of cannabis crimes: “Cannabis Cultivation Crimes.” (It still has the “Criminal Sale” of Marijuana and “Criminal Possession” categories.)
Marijuana Grow Laws 2023
The 2023 Minnesota statutes amendment eliminated number of “plants” from Minnesota Statutes § 152.021, subd. 2 , First Degree Controlled Substance Crime – Possession, and Minnesota Statutes § 152.022, subd. 2 , Second Degree Controlled Substance Crime – Possession. (Previously, the Third Degree through Fifth Degree criminal statutes made no mention of “plants.”)
Number of Plants
And effective August 1, 2023, the new “Cannabis Cultivation Crimes” category is in Minnesota Statutes § 152.0265:
“Subdivision 1. Cultivation of cannabis in the first degree. A person is guilty of cultivation of cannabis in the first degree and may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both, if the person unlawfully cultivates more than 23 cannabis plants.
Subd. 2. Cultivation of cannabis in the second degree. A person is guilty of cultivation of cannabis in the second degree and may be sentenced to imprisonment for not more than 364 days or to payment of a fine of not more than $3,000, or both, if the person unlawfully cultivates more than 16 cannabis plants but not more than 23 cannabis plants.”
Minn. Stat. §152.0265 (2023)
So cultivating more than 23 plants is a Felony.
And cultivating more than 16 plants is a Gross Misdemeanor.
Chapter 152 has no special definition of “cultivation,” so the common meaning should apply. Worth noting however, is the definition in Chapter 342:
Subd. 27. “Cultivation” means any activity involving the planting, growing, harvesting, drying, curing, grading, or trimming of cannabis plants, cannabis flower, hemp plants, or hemp plant parts.
Minn. Stat. §342.01, Subd. 27 (2023)
Crimes based on numbers of plants have been a problem for the courts. This issue has plagued federal cases for years.
What is a “plant?”
In this case, effective August 1, 2023, Minnesota Statutes Chapter 152 has a special definition of “Cannabis plant:”
“Subd. 28. ‘Cannabis plant’ has the meaning given in section 342.01, subdivision 19.”
Minn. Stat. §152.01, Subd. 28
And here is the Section 342.01 definition:
“Subd. 19. ‘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 (2023)
One thing for certain is that a rootless clone is not a plant, since it is not “growing.”
But using the number of plants as a measure of severity makes little sense. It’s not good public policy. We should delete it from the law. If there is one, any limit should be changed to a square-footage area limit, as elsewhere in the new law.
Cannabis Castle-Doctrine: Marijuana Grow
In our culture, we value our natural rights to be free from government interference in our lives. We naturally defend these more vigorously when it comes to our personal spaces: our bodies and our homes. And courts have affirmed our enhanced right to privacy within our homes. So have legislatures.
Here is a great historical example. The Alaska Supreme Court became the first—and only—state or federal court to announce a constitutional privacy right that protects our liberty interest, in marijuana use and possession.
“…we conclude that no adequate justification for the state’s intrusion into the citizen’s right to privacy by its prohibition of possession of marijuana by an adult for personal consumption in the home has been shown. The privacy of the individual’s home cannot be breached absent a persuasive showing of a close and substantial relationship of the intrusion to a legitimate governmental interest. Here, mere scientific doubts will not suffice. The state must demonstrate a need based on proof that the public health or welfare will in fact suffer if the controls are not applied.” Ravin v. State, 537 P.2d 494 (Alaska 1975).
“How many plants can I grow at my residence?”
In Minnesota Statutes § 342.09 “Personal Adult Use of Cannabis,” the legislature has carved out a legal safe harbor from criminal prosecution for home grow:
“Subd. 2. Home cultivation of cannabis for personal adult use. Up to eight cannabis plants, with no more than four being mature, flowering plants may be grown at a single residence, including the curtilage or yard, without a license to cultivate cannabis issued under this chapter provided that cultivation takes place at the primary residence of an individual 21 years of age or older and in an enclosed, locked space that is not open to public view.”
Minn. Stat. §342.09, Subd. 2
In addition to the “cultivation” and “plants” issues, this provision introduces the ideas of:
- mature, flowering plants (up to four) vs total number of “cannabis plants” (eight)
- primary residence, including curtilage or yard
- of individual 21 years or older
- enclosed, locked space, not open to public view
Criminal “Possession” Quantity Limits in Your Home
The 2023 amendments also recognize your enhanced privacy rights in your home, by modifying criminal possession quantity thresholds there.
Though knowing possession of more than two pounds of “cannabis flower” is a felony anywhere in Minnesota, up to two pounds is not a crime to possess in “the person’s residence.” Effective August 1, 2023. See, Minnesota Statutes §152.0263 (2023).
What is “cannabis flower?”
“Subd. 16. “Cannabis flower” means the harvested flower, bud, leaves, and stems of a cannabis plant. Cannabis flower includes adult-use cannabis flower and medical cannabis flower. Cannabis flower does not include cannabis seed, hemp plant parts, or hemp-derived consumer products.”
Minn. Stat. §342.01, Subd. 16 (2023)
“Can I grow more than two pounds of marijuana in my home?”
Yes, as long as it’s still growing on the plant. When we read the definition of “cannabis flower,” we can see that is applies to “harvested” cannabis only. Therefore the two-pound weight limit on possession (at your own residence), would not apply to still growing cannabis.
But no more than two pounds in home, once harvested. So toss the trim! Attorney Thomas Gallagher’s past cases include many where police used the weight of trim; trash that had not yet been removed or destroyed. That can easily be avoided.
The practical implications are:
- Up to eight cannabis plants, four being mature, flowering plants lawful to grow at an adult’s single residence.
- No more than two pounds of harvested “cannabis flower” in home.
- So best practice: destroy or discard plant material no longer on the growing plant in excess of two pounds in the home, immediately.
- Indoors, unless available outdoor enclosed, locked space, not open to public view.
Pay attention to the Minnesota Statutes to avoid trouble with the government. But in the meantime, marijuana grow defense attorney Thomas Gallagher works hard to defend the innocent people caught up in these criminal prosecutions.
“Making Concentrate at Home With Cannabis I Grow?”
Some ask “Can I legally make cannabis concentrate in my own residence, with cannabis I’ve grown there?” The new statute addresses that:
“Home extraction of cannabis concentrate by use of volatile solvent prohibited. No person may use a volatile solvent to separate or extract cannabis concentrate or hemp concentrate without a cannabis microbusiness, cannabis mezzobusiness, cannabis manufacturer, medical cannabis processor, or lower-potency hemp edible manufacturer license issued under this chapter.”
Minn. Stat. §342.09, Subd. 3 (2023)
So, two Prohibition rules appear here:
- Home Extraction by use of volatile solvents prohibited.
- Possession of eight – sixteen grams (any source) of concentrate is a petty misdemeanor; 16 grams and up carries criminal penalties (misdemeanor to felony, depending upon weight).
“Can I Sell Cannabis I Grow at Home?”
The 2023 Minnesota Statutes on Cannabis appear to require a license before a person can lawfully sell marijuana or cannabis or its products. A license is also generally required to cultivate or grow it.
But a safe-harbor law carves out legal protection for persons 21 and older growing a small number of plants in their own home, without a license. This is detailed above.
We also see an older, more powerful law protecting a person’s legal right to sell the products of the farm or garden, provided the person lives at that farm or garden. This is Article 13, Section 7, of the Minnesota Constitution – the “Products of Farm or Garden” clause.
The Minnesota Supreme Court has interpreted this Constitutional Right in court decisions, discussed in our article here: Minnesota Constitution: After Legalization. The Court seems to have said that this constitutional right does not permit the sale of products of the home farm or garden, when those products are illegal or unsafe. So, if the products are safe and lawful otherwise, the fact that the seller has no license cannot be a reason for prosecution.
The Minnesota legislature may take up this issue and pass legislation that would more clearly define this right. But, this legal issue is new (due to recent legalization of small home grows), and untested. Therefore, relying upon this right could be risky, for now.
Cannabis is the Plant – marijuana grow
Hemp is legal, so we must remember that marijuana comes from the same cannabis plant. And though hemp is now legal to possess, the state regulates growing hemp. (And “regulation” is civil, not criminal, law.)
But “Marijuana” & “Hemp” are Legal Categories
Source vs product: The difference between hemp and marijuana is the THC level in the plant. But on July 1, 2019, Minnesota laws changed. They now define hemp by THC level in the products of the plant as well.
Identification of the alleged marijuana is a burden for the prosecuting attorney. And if they can’t prove it’s illegal with evidence, the defendant is not-guilty.
The 2023 reforms mark a shift in terminology in Minnesota Statutes generally, away from “marijuana” and replacing that term with “illegal cannabis.” This, to distinguish “illegal cannabis” from legalized, regulated cannabis.
Minnesota law now essentially addresses three legal categories of the cannabis plant:
- Medical
- Hemp
- Illegal vs. regulated cannabis
Prohibition of possession increases usage
Cannabis Prohibition still reigns in Minnesota, though at a reduced level. Laws criminalizing marijuana or cannabis possession are Prohibition laws.
And of course, as economist Milton Friedman pointed out; curtailing supply increases the price where demand is strong. Then the price increases lead to increases in supply. And so the cycle has gone for decades. And that is why the marijuana usage rate in the United States increased from a small cultural niche in 1934, to a now near-universal social experience. But as the government “war” on marijuana imports raged, a funny thing happened. Economist Milton Friedman was right: marijuana became the number one cash crop in United States agriculture.
Jury power: marijuana grow
And the People on the Jury have the power of Jury Nullification. The jury can acquit anyone of criminal charges based on a law that that the Jury finds to be nonsense.
Conscience of the community: And even one juror can veto the law. One lone dissenter on the juror has the power to stop a “guilty” verdict. Why? Because a verdict in a criminal case must be unanimous. Just one can hang a jury verdict, to obstruct injustice.
The framers continued this jury power to be a check and balance on government power. The jury’s power limits the power of the elites in the legislative, executive and judicial branches. If the judge won’t dismiss a prosecution based on the marijuana grow laws, the jury still can.
Question? Call Attorney Thomas Gallagher, 612 333-1500
When the government charges a person with a marijuana grow crime, we will defend against them, using all of a our rights to an effective defense, as well as issues specific to cannabis grow cases.
For example, if police base a search warrant or arrest on a claim of odor, we can attack that. Since August 1, 2023, marijuana use and growing in the home, is legal in Minnesota. So if we can infer that odor of cannabis means that cannabis may have been present, that should not be evidence of a crime since those are now legal activities. See: Can Odor of Marijuana be Probable Cause?
Marijuana Grow Defense Attorney Thomas C Gallagher helps people busted for growing in the new era of Prohibition lite. You are welcome to call Attorney Thomas Gallagher with questions.
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