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Attorney David Sloane of Fort Worth specializes in marijuana possession cases.
Attorney David Sloane of Fort Worth specializes in marijuana possession cases.
Brian Maschino

Bringing Back Some Pot Edibles From Colorado? Texas Has a Nasty Surprise for You.

Mary Jane preferred animals to people “10 out of 10 times,” she says. She grew up in southern Louisiana, a place of winding swampland roads where family ties run deep. She studied wildlife management with a focus in aquaculture at Louisiana State University. Louisiana Department of Wildlife and Fisheries agents were her heroes. Their efforts to rescue wildlife and save the coast from the oil spilled after the Deepwater Horizon drilling rig exploded in 2010 inspired her to seek the degree. She dreamed of joining the National Park Service.

Then she met the Wichita Falls police officer on the side of U.S. Highway 287, near the Wichita County Courthouse and jail, where she’d spend the night and her dream would fade.

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Family was part of the reason Jane (a pseudonym) headed to Colorado in July 2017 with two friends from Dallas. They had planned it as a vacation until her mother received a cancer diagnosis. Chemotherapy treatments left Jane's mother nervous and ill. Some friends in Denver had told her about THC and CBD-infused chocolate bars, gummies and lollipops. The delta-9-tetrahydrocannabinol (THC), which causes marijuana's high, relieves pain and nausea and is reputed to treat seizures and reduce anxiety and paranoia.

For Jane’s mother, marijuana would help her regain her appetite and keep up her strength for chemo. It would become her spinach, her magic ring.

To the Wichita Falls police K-9 unit, it was a felony.

Under Texas law, possession of up to 4 ounces of marijuana plant is a misdemeanor. Extract the hash or resin from the same amount of plant, however, and possession is a felony. Wax, resin, oil, “vape pen” cartridges similar to those used in electronic cigarettes — having of any of them is a felony.

Despite countless warnings on websites by Texas criminal defense lawyers about the danger of hauling back innocent-looking gummy bears, cookies or chocolates, countless Texans are loading up on marijuana extracts in Colorado, where they’re legal, and heading cross country into Texas and the waiting arms of law enforcement. As one defense lawyer put it, imagine U.S. 287 as an Alaskan salmon stream in a nature documentary. Now picture a bear slapping leaping salmon out of that stream.

Mary Jane and her friends were salmon.

Since the sweets were infused with cannabis extract, the penalty for possession is similar to being caught with crack-cocaine, PCP or heroin. According to 1989’s Texas Controlled Substances Act, a single THC-infused gummy bear weighing less than 4 grams could send a person to prison for 180 days up to 2 years (or 2 to 5 years of probation). A small bag of THC-infused cookies could be considered more than 4 grams but less than 400 grams, which kicks the penalty up a notch to a second-degree felony and a possible 20-year stint in prison. Life in prison could await anyone caught with more than 400 grams or an 80-ounce bag of THC-infused gummy bears, which weighs about 2,200 grams.

Like many other Texans who go to Colorado for the novelty of THC-infused sweets, Jane had no idea the severity of the charge that awaited when she returned with them in the trunk of her car. “I was trying to find something that wouldn’t be too scary for her as far as a medicinal remedy for anything she had been going through,” she says.

Instead Jane found herself standing before a Wichita County judge in a room full of the accused, begging for leniency.

***
Sloane maps arrests made along the northern border of Texas.
Sloane maps arrests made along the northern border of Texas.
Brian Maschino

Ever since Colorado legalized marijuana, Texans have been making the trek north to experience the Rocky Mountain High and bring back THC-infused souvenirs for family and friends. CBD doughnuts, lemonade, muffins, Rice Krispies treats, the list goes on. Some of the more popular cannabis strains come from producers like Love’s Oven and BlueKudu in Denver. Wana gummies is one of the top-selling edibles in Colorado, and CannaPunch is one of the more popular THC-infused vegan and organic drinkables, all-natural and gluten- and soy-free.

Jail free? No.

Once travelers cross into Texas, many are finding themselves watching helplessly while county sheriff deputies and K-9 units tear apart their cars. It’s a downward spiral into fear and paranoia where the only thing you can hear is the voice in your head: “Please don’t find it. Please don’t find it. Please don’t find it. Fuuuuck!”

Prosecutors in North Texas and the Texas Panhandle have seen an increase in the number of people facing felony charges for THC-infused souvenirs from Colorado, says Shannon Edmonds, a staff attorney at Texas District & County Attorneys Association in Austin.

About 156 miles northwest of Dallas along the Red River, Wichita County also has seen an increase in Texas cannabis tourists like Jane and her friends bringing back large quantities of THC-infused edibles and vape pen cartridges, says Deputy Melvin Joyner, the PIO for the Wichita County Sheriff’s Office.

Joyner doesn’t have an issue with people who have medical cards in states where it’s legal. It’s only when they cross the border into Texas that trouble comes. “I think they know what they’re doing [when they bring back THC-infused souvenirs],” he says.

Since Oklahoma voters legalized medical marijuana this summer, some Red River border sheriffs like Wilbarger County’s Bill Price seem to fear the cannabis tourism will expand. He plans to step up criminal patrols and narcotics investigations. His neighbor over in Wichita County, Sheriff David Duke, on the other hand, doesn’t plan to do anything different. His office already has a two-man highway interdiction team. “If we stop any vehicle from Oklahoma, we’ll treat it as any other,” he told a local television news program in June shortly after Oklahoma voters passed medical marijuana legislation.

Not all Texas cannabis tourists are risking felony charges to bring back THC-infused edibles and vape cartridges just for relaxation after a long workday. Some go out of medical necessity. Many chronic pain sufferers like Texas veterans make the trek north either because they want something less dangerous than the anxiety and pain medication they’re prescribed or they’re unable to get enough of the prescription medication because of new restrictions on opioid painkillers. One chronic pain patient told the Observer he had picked up some THC-infused gummies and chanced returning with them despite the possible second-degree felony charge because his opioid medication was no longer working. When he devoured the candy, he could finally eat.

At the Texas District & County Attorneys Association, Edmonds says he has been hearing from some prosecutors who think the way edibles are being charged “is over-the-top.” Some would be open to a change in marijuana laws in Texas, he says.

They’re not alone. Gov. Greg Abbott, a firm opponent of legalization, claimed during a Sept. 28 debate with Democratic challenger Lupe Valdez that he is open to talking with the Legislature about making low-level marijuana possession a Class C misdemeanor instead of a Class B. “More recently I’ve had discussions with veterans as well as parents of autistic children and others who make a very strong, compelling case about legalization of medical marijuana,” Abbott told the moderator. “I have seen, however, in other states that authorized that, abuses take place that raise concerns. So, I’m still not convinced yet.

“However, one thing I don’t want to see is jails stockpiled with people who have possession of [a] small amount of marijuana.”

This change in the law wouldn’t help people like Jane who risked bringing back THC-infused edibles and cannabis oil. Edmonds says he isn’t sure how lawmakers could address low-level possession of THC.

Law enforcement determines the penalty for marijuana flower (aka, bud) and concentrate based on the weight of the illegal product. Edmonds says the problem is that it’s too difficult for crime labs to reverse engineer how an edible was made or to break open a cannabis oil cartridge and weigh the liquid. It was a similar problem that he says lawmakers faced in the late ’80s when crack was the craze. Dealers were cutting cocaine with baking soda. State lawmakers figured that determining how much was cocaine and how much was baking soda would be difficult, so they allowed law enforcement to use the total combined weight to determine the charge and penalty range for possession.

Fast-forward 40 years, and 19-year-old Jacob Lavaro, a stay-at-home son, was baking pot brownies and selling them to his friends for $25 each in Williamson County about 40 miles north of Austin. When Lavaro got busted, Edmonds says, authorities found two batches of brownies, and Lavaro’s family discovered their son could be facing life in prison.

In Lavaro’s case, the state crime lab was able to reverse engineer the 660 grams of pot brownie mixture and discovered only 2.5 grams of marijuana extract in the brownie batch. That would have dropped his charge to a lesser felony if he hadn’t also been caught with 145 grams of hash oil in a separate jar, some THC-infused cookies and 16 ounces of marijuana flower.

Williamson County First District Attorney Mark Brunner offered Lavaro a plea deal to a lesser felony charge that included no jail time if Lavaro stayed out of trouble. “If this was just some college kid experimenting in his friend’s Easy-Bake Oven, with a reefer’s worth of pot and a bunch of brownies, that’d be different,” Brunner told the New York Post in August 2014. “This man was trying to run a business, allegedly.”

Lavaro pleaded guilty a few months later to second-degree felony possession of THC and received seven years’ probation.

Edmonds says most prosecutors aren’t going to send someone to prison for life simply for having pot brownies. Like law enforcement officers, state prosecutors can use their discretion to determine what happens to people like Lavaro and Jane, unlike federal prosecutors who are required to seek mandatory minimums for low-level
drug offenses.

***
Sloane outfitted a retired police cruiser as the NORML patrol car.
Sloane outfitted a retired police cruiser as the NORML patrol car.
Brian Maschino

Texas cannabis defense attorney David Sloane first noticed an uptick in people getting arrested for possession of THC-infused edibles about a year after Colorado and Washington legalized marijuana for recreational purposes in 2012. Marijuana sweets and its liquid form were a new market and a novelty for out-of-state tourists. Sloane was at the National Organization for the Reform of Marijuana Laws (NORML) conference in Denver in 2013, when he’d first encountered people smoking cannabis dabs, a THC-infused concentrate, out of a vape pen. “You could be standing next to a police officer, and they wouldn’t have a clue that it was cannabis,” he says. “These last three years, they have gotten wise to the concentrates and edibles.”

A Dallas native, Sloane used to be a cop. He worked for the Tarrant County Sheriff’s Office for more than a decade. He reached the rank of lieutenant, trained his fellow officers and, as he points out on Sloanelaw.com, developed a strong background in crime scene analysis and criminal investigations. As a sheriff’s deputy patrolling the Fort Worth area, he arrested people he would later defend. Even a small amount of marijuana plant can land a defendant a hefty fine and 180 days in jail. A couple of ounces sends them away for a year. More than 4 ounces can fall anywhere between two to 20 years or five to life, depending on the weight of marijuana.

The possession arrests bothered Sloane. “These were good people,” he says. “They didn’t seem like criminals.”

Sloane had always been fascinated with the law, but wearing a badge wasn’t his childhood dream. Shortly after he graduated from Skyline High School in the late ’70s, a college guidance counselor convinced him that there were too many lawyers. Joining the force was the closest he could get to the law. A decade would pass before he decided to turn in his badge and pick up a law degree from Oklahoma City University School of Law.

He joined the marijuana advocacy group NORML’s national legislative committee, became involved in the movement to reform marijuana laws and began defending possession of marijuana cases.

The market for defense lawyers in Texas is booming, even as other states move to legalize cannabis. The FBI reports that Texas leads the nation in arrests for possession of marijuana, with 12 percent of the more than 500,000 marijuana possession arrests nationwide in 2016. Nationwide between 2001 and 2010, 8.2 million people were arrested on marijuana charges; 88 percent of those people had small amounts.

“No changes in the law for marijuana possession for more than 30 years,” Sloane says. “There hasn’t been any change. We’re seeing a reduction in the severity in the punishment in some places and other places act like they do, depending on where you are.”

***

The arrests are concentrated near the northern border of Texas.
The arrests are concentrated near the northern border of Texas.
Brian Maschino

Jane was driving the speed limit when she reached Wichita Falls with her friends in a rental car. Her blonde hair was disheveled, and she wasn’t dressed her best, wearing a tie-dye T-shirt.

It was an early Friday evening, and they were heading back to Dallas from Colorado. They’d been on the road for several hours and loaded themselves with THC-infused goodies like many who partake of what’s become known as the “cannabis tourism” industry in the states where it’s legal. Cruising about 75 mph, they hit a 60 mph zone known by locals as a speed trap. A Wichita Falls police K-9 unit was parked in the median, waiting like a bear perched on a rock in the rapids.

Red and blue lights appeared in their rearview mirror. They pulled over.

The rental car smelled of marijuana, and the officer asked if they were carrying. Like many people in that predicament, Jane told him no. Soon they found themselves standing on the side of the road as more police cars pulled up. Then the search for marijuana began.

Marijuana isn’t hard to find if it’s not triple-bagged in heavy plastic. The smell of Colorado weed is rank. An officer simply needs to follow his canine partner’s nose. In this case, it led to the trunk. The friends had stocked up. They had vape pen cartridges, THC-infused edibles such as chocolates, gummies and suckers, joints and liquid THC to top it off. The total weight of THC equaled 392 grams, which meant a possible 20-year stint in prison for each of them.

Standing on the side of the road, Jane and her best friend were in tears. The officer read them their Miranda rights, handcuffed all three and took them to jail. Since she was charged with felony possession, Jane’s bail was set at $10,000. It was her first criminal offense.

She bonded out the next day and hired Sloane to defend her. She’d seen one of his green billboards along the side of the interstate on her way home from Colorado. They’re hard to miss. “Cannabis Defense” is written in bold green lettering, and a state trooper and his K-9 partner peek over the top of the billboard.

On his website, Sloane discusses “highway interdictions” along Interstate 40 and along U.S. 287 and civil forfeiture, which he says police use to keep traveler's cash, and writes, “Unsuspecting tourists are the target of highway interdiction, unaware their THC-infused drinks and edibles from Colorado would constitute a felony charge. Because the THC is not measured and simply the entire item is weighed. These felonies can get very serious.”

***

Sloane's name placard is made from hemp.
Sloane's name placard is made from hemp.
Brian Maschino

For a decade now, Sloane has become more like a traveling salesman than a defense attorney. He travels across the state to defend clients facing marijuana charges in places like Childress, Palo Pinto and Wichita counties and mostly finds himself making the trek up and down the U.S. 287 corridor and over to U.S. 82 and Interstates 27 and 40 in West Texas. He’s on the road at least three times a week and recently bought and restored a tour bus to save on hotel expenses.

Like a salesman, he attempts to strike deals with prosecutors to get clients like Jane pretrial diversion and their records expunged if possible. Most are good people who, he says, simply got caught with a substance that is legal in some form in 31 states and the District of Columbia.

Sloane barters with prosecutors because his clients don’t often give him much to defend. Most people arrested for possession, he says, allow police to search their car. “They’ve got it down to an art form, profiling people, asking trick questions,” he says. “They [his clients] are a babe in the woods.”

It’s not always an unhappy ending for people when they do allow police to search their car. Sloane points out that law enforcement officers can use their discretion with misdemeanor cases, like someone's being caught with a joint.

For cases like Jane’s, THC-infused edibles or vape products are different matters. “Most [officers] don't feel they [have discretion] when it comes to a felony, regardless of how they feel [about edibles],” Sloane says. “I’ve never heard of a case where the officer had let somebody go.”

The part of Texas where a person gets caught with cannabis products matters. Anyone caught in Austin or Dallas, Sloane says, has a chance to score pretrial diversion. In a city like Cleburne south of Fort Worth, they’re screwed, he says. The prosecutor there, Dale Hanna, still enforces the marijuana law as he did when he took the oath of office in 1979.

A few weeks before Jane’s arrest, Hanna convicted Erica Tucker, a 33-year-old mother of five, and her husband on five counts of felony child endangerment after Tucker admitted to smoking marijuana to control her epileptic seizures. She claimed she could no longer afford her prescription drugs. Her infant had tested positive for a trace amount of cannabis, as Tucker had been smoking while breastfeeding. She says Hanna charged her for each of her five children.

“I’m not a bad person and don’t neglect our children, so we were crushed,” Tucker told the Observer in a Jan. 23, 2017, article.

Sloane didn’t defend Tucker. (She said she couldn’t afford him.) But he’s dealt with all kinds of cases involving edibles with punishments that seemed asinine. For example, he made a pretrial diversion deal for one college kid in Childress who got caught with cannabis edibles, but he wasn’t able to get the kid’s Honda Accord back from police. It was confiscated as part of civil forfeiture since it was used in a drug crime. “Why the fuck would they need a college kid’s car?” he asks.

The Observer reached out to the Childress County District Attorney’s Office and tried to speak with the investigator about marijuana trafficking and cannabis edibles, but he hung up on us as soon as we mentioned it. The DA was unavailable for comment.

Sloane recently defended a California family who brought cannabis edibles and vape pens with them when they visited Texas. They were arrested and charged with a felony. The judge is allowing them to serve their probation back home but is requiring them to take urine tests in a state where medical and recreational marijuana is legal.

“There have been so many arrests,” Sloane says. “I’ve talked to a number of prosecutors about these edibles. Some of them vocally and most silently agree that the Legislature needs to do something about the way it is calculated.”

***

At the Wichita County 78th District Court

, Jane sat with her friend among the accused in a packed courtroom. It was early Friday morning in September, standing room only. People of various backgrounds sat and stood, waiting anxiously for their cases to be called. Some, like Jane, dressed in their Sunday best and avoided making eye contact with anyone but their attorneys. Others just crawled out of bed, wore the clothes they passed out in and held themselves as if they’ve been through this routine one too many times already.

On the bench in the corner of the room, Judge Barney Fudge prepared to seal their fates. Appointed by former Gov. Rick Perry in 2009, he has won re-election to the bench ever since. He’s fairly active in his community and coached several youth sports teams. He also belongs to the Benevolent Protective Order of the Elks.

A chain gang from county lockup sat in the jury stand. Dressed in mostly black-and-white striped county jail jumpsuits, many looked like they belonged there. Jail tats covered their hands, necks and, in some cases, their foreheads. They growled, smirked and looked emotionless. A large angry female deputy reminded them not to so much as look over at the accused in the audience. The audience seemed to be doing the same thing: grumbling and mumbling and wishing they could pull out their cell phones. No one looked pleased to be there.

Jane least of all. The grand jury had indicted her on possession of a controlled substance — namely tetrahydrocannabinol — in an amount of 4 grams or more but less than 400 grams. It’s a second-degree felony with a possible 20-year prison sentence.

Sloane was attempting to work out a pretrial diversion deal with the prosecutor. “Why pick a fight if you are getting what you want?” is his motto, and he was able to get what he considered to be a better deal for Jane than he thought possible: two years deferred probation and a fine.

He told Jane about it in the hall outside of the courtroom where a Coke machine hummed and other attorneys discussed deals with their clients. He explained her deal and why it was a good one considering the amount of THC she’d been caught with. It was the same deal her friends had been offered.

Jane decided to take the deal even though she would have to take urine tests periodically in a state where marijuana is legal. Since her arrest 14 months ago, Jane moved to Colorado, where she found a job working for a marketing firm. She has moved on from her dream.

“It has kind of ruined us,” she says. “And as far as working for the National Park Service or on any federal land is out the window at this point for me because of the background check. Likely they will deny me every time.”

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