Marijuana Sale Defenses – California Health and Safety Code Section 11360

Motion to Suppress Evidence-Penal Code Section 1538.5

A defendant can file a motion to suppress evidence whenever it is believed that evidence was taken from your person or property unlawfully. The general theory behind a motion to suppress is that the prosecution should not benefit from evidence that law enforcement took from you illegally. There are many legal grounds for bringing a successful motion to suppress evidence motion. If your motion to suppress evidence is successful then this means that the illegally seized evidence will not be able to be used against you in court. This normally results in the criminal charges against you being dismissed.

Awareness or Knowledge of Controlled Substance

The defendant cannot be found guilty for sale of marijuana if the defendant was not aware of the substance’s presence and that it was in fact marijuana.

Never Sold

The defendant cannot be found guilty for sales of marijuana if the defendant never sold marijuana. However, the defendant may still face other charges, like possession of marijuana and offering to sell marijuana. See California Health and Safety Code Section 11357, 11360(a).

No Intention of Selling

The defendant cannot be found guilty of offering to sell marijuana if the defendant never offered to sell marijuana. Also, the defendant cannot be found guilty if the defendant, in making the offer, never had the intention of selling marijuana.

Entrapment

Entrapment can be used as a defense when the conduct of the police officer induced a normally law-abiding person to commit the crime that he or she is charged with. Entrapment is a very difficult defense. The level of conduct by the officer must be sufficiently coercive that it would be difficult for a reasonable person to refuse.

For example, in People v. Barraza, 23 Cal. 3d 675 (1979), the California Supreme Court has ruled that entrapment occurs when the defendant committed a crime only because of the police officer’s threats to commit the crime.

In this case, the defendant was a recovering heroin addict who sold heroin to an undercover cop. The only reason the defendant committed this crime was because 1) the undercover officer called him repeatedly at work; 2) he was afraid he would lose his job if the officer kept calling, so he agreed to meet with her, and 3) during the meeting, which lasted more than an hour, the officer pressured him relentlessly until he was overcome and gave in to the pressure. The police officer’s pressure was found to be so coercive that a reasonable person would find it difficult to refuse. The defendant’s conviction was reversed.

Entrapment does not result just because officers created a situation which made it possible for the defendant to commit the crime. For example, if the officers set up a car with the door opened and the key is in the ignition, and you decide to take the car and drive off you likely will not be able to raise a successful entrapment defense. This is because the prosecution will be able to show that you had “criminal intent to steal.” The prosecutor will argue that a normally law-abiding person would have resisted stealing the car under this factual situation.