Growing Marijuana in Minnesota
Prosecutors file marijuana grow criminal charges in both federal and state courts. And here, marijuana grow defense attorney Thomas Gallagher provides an overview of Minnesota criminal marijuana home grow laws for individuals without a commercial license.
Marijuana Grow Cases
Most marijuana growing prosecutions historically have been in State court, not federal. One reason? If harmful to health at all, marijuana is safer than other drugs. And not only that — the majority of the United States population has tried it at least once.
In addition, many United States Presidents smoked marijuana. And later we elected them to the highest public office.
Two Americas: So while some go to the White House; others go to the jailhouse.
But now in Minnesota, we have “safe harbor” Castle Law consistent with our Minnesota Constitutional right to sell what we grow at home without a license.
Valued plant through history
Humans used the cannabis plant for thousands of years. Since before the dawn of 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 mainly in the warmer climate areas.
All American: In fact, George Washington himself 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. And we may soon End Prohibition again, and Re-Legalize Marijuana.
Partial-Legalization Law of 2023
In August 2023, a new marijuana partial legalization law 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 threshold;
- Legalizing home grow of up to four mature plants.
Criminal Prohibition of Marijuana: Grow laws
Minnesota State Statutes still provide for criminal penalties when sought by the government, for marijuana.
And most of these drug prosecutions are under Minnesota Statutes Chapter 152, titled “Drugs, Controlled Substances.” But the 2023 legislature both made reforms to 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” in Minnesota carries a more severe sentence, than “criminal possession.”) Then later, Minnesota Statutes allowed the government to prosecute a person growing for “sale” even where 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” and “Criminal Possession” categories.)
2023 Marijuana Grow Laws
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:
Minn. Stat. §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 one year 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.”
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.
“How many plants can I grow at my residence in Minnesota?”
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 Own 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 own 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 the 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 solvent 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 the 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 2024 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
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 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:
- Illegal vs. regulated cannabis
Prohibition increases usage
Cannabis Prohibition still reigns in Minnesota, though at a reduced level. Laws criminalizing marijuana or cannabis 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.
Blaming the victim for the law’s harms
In past decades Prohibitionist propaganda asserted that buying marijuana in the underground economy was like supporting terrorism overseas. 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 (and still is).
It is easy to grow. The government’s drug wars against The People are a complete and unmitigated failure. The government just won’t admit it, yet.
Power of the jury: 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 adopted 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.
Defending people from government’s marijuana Prohibition
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.
Marijuana Grow Defense Attorney Thomas C Gallagher helps people busted for growing in the last days of Prohibition.