The Mn Criminal Defense, Personal Injury & Family Law Blog
Three Key Elements of Marijuana Possession Cases and Drug Crime Lawyers in Brainerd, MN
March 20, 2020
Minnesota peace officers are very aggressive when it comes to marijuana possession arrests. In fact, in 2019, these arrests increased 66 percent, partially due to marijuana edibles from Illinois and other states where recreational pot is legal. Traditional joint and dime bag arrests are very common as well.
Many advocates point to these high arrest figures as proof that Minnesota should legalize pot and focus law enforcement resources elsewhere. But as the 2020 legislative session gets underway, it’s very unlikely that the Republican-controlled Senate will pass a legalization measure.
So for now, POM (possession of marijuana) cases will continue to dominate Crow Wing County criminal court dockets. Fortunately, there are a number of ways for a Brainerd, MN drug crime lawyer to successfully resolve these cases. Most of these resolutions involve one of the three main elements of a POM case, as outlined below.
Produce the Substance
Possession cases always involve physical evidence. An officer can testify that the defendant had a marijuana edible or a joint, but oral testimony is not good enough.
According to the Fourth Amendment, it’s illegal to search private property, like a backpack, and seize contraband, like drugs, unless the officer has a warrant or a narrow exception applies. Drug possession arrests often happen so quickly that officers do not have warrants. So, to produce the alleged illegal substance in court, Crow Wing County prosecutors must normally rely on a search warrant exception. Some examples include:
Consent: Owners or apparent owners can allow peace officers to search property, like a dwelling, car, or cell phone. Usually, consent is a voluntary, affirmative act made at the time of the search. Special rules might apply if the defendant is currently on probation or parole.
Exigent Circumstances: If officers respond to a disturbance call or see an erratically-parked car, they can usually enter the dwelling or car without a warrant and perform a security sweep to make sure the occupants are okay. During this sweep, they can seize any contraband they see in plain view.
Plain View: Drugs and other contraband are in plain view if they are at least partially visible to the naked eye. These seizures are lawful if officers were legally in that place to begin with. So, the traffic stop, DUI roadblock, or whatever must have been legitimate.
The state has the burden of proof on this point. A Brainerd, MN drug crime lawyer need only raise the issue in court and cast doubt on the search’s legality.
Brainerd, MN Drug Crime Lawyers and Proof of Illegality
In many possession cases, legality or the lack thereof is rather easy to establish. For many years, that was the case with leafy marijuana, marijuana edibles, and black-market marijuana vaping cartridges. But then, Congress legalized industrial hemp, and everything changed.
Physically, hemp and marijuana are indistinguishable. They look the same, feel the same, and smell the same. Additionally, they can be used in roughly the same way.
In order to distinguish between legal hemp and illegal marijuana, prosecutors must generally administer a Tetrahydrocannabinol content test. Legally, hemp is marijuana which has a THC content less than .3 percent. If the alleged “marijuana” has a .29999 THC content, legally, it is not marijuana.
These chemical tests are often unavailable, so there may be no such evidence. THC content tests are quite expensive, so many small counties, like Crow Wing County, cannot afford them.
Regarding edibles, some prosecutors try to introduce labels which state the product has the requisite THC content. But a product label is not the best evidence of a product’s content. Therefore, like an officer’s testimony about substance possession, such evidence is usually inadmissible.
The state’s job is not over yet. Even if prosecutors produce the substance and prove it was illegal, they must still prove legal possession. Under Minnesota law, possession is more than proximity. Prosecutors must also establish knowledge and control. Here are some examples that Brainerd, MN drug crime lawyers often deal with.
Assume Tommy is a passenger in Frank’s car. Unbeknownst to Tommy, Frank recently purchased some marijuana edibles in Illinois. Even if the edibles were within Tommy’s reach, he did not legally possess them. He did not know about them.
Let’s change the facts a bit. Now assume Tommy knows about the edibles, but they are locked in Frank’s glove compartment. Even if Tommy was in the passenger’s seat, he did not possess the edibles. He did not control them.
In both these situations, Tommy is presumed innocent until proven guilty beyond a reasonable doubt. So, prosecutors must have overwhelming evidence on all three elements of marijuana possession. Otherwise, the presumption of innocence alone might be enough to acquit Tommy.