Life for Baking Pot? Maybe Not
WilCo drug prosecution lacks probable cause and a warrant
By Chase Hoffberger,
9:00AM, Thu. Jul. 24, 2014
Jacob Lavoro’s attorney is confident his client can avoid spending the rest of his life in prison for the crime of baking pot brownies, if the presiding judge will properly apply the law in his case. Problem is, Lavoro resides in Round Rock – Williamson County – a jurisdiction not known for attaining that standard.
There are a number of variables at play here, but the basics are as follows: On April 14, 19-year-old Jacob Lavoro was arrested in a Round Rock apartment after neighbors called the police to complain about the smell of marijuana coming from an apartment where Lavoro was staying. The officers, Lavoro’s attorney attests, arrived at the residence claiming to be maintenance workers, then entered the apartment without either a warrant or the permission of the occupants. There, they found a pound of marijuana and a tray of pot-infused brownies.
Lavoro was arrested and charged with possession of marijuana as well as possession of a controlled substance – in this case, the THC extracted from the plant that made its way into the brownies. Its presence in the brownies allowed for Williamson County prosecutors – under a strained technicality – to weigh the whole batch of baked goods; together, brownies and contraband totaled 660 grams. In Texas, possession of more than 400 grams of hash and concentrates comes with a sentence of 10 years to life – to say nothing of the additional pound police confiscated, which carries a sentence of 180 days to two years.
Lavoro’s attorney, Jack Holmes, believes the case should be thrown out for lack of a warrant and therefore admissible evidence. He filed the necessary paperwork to suppress evidence – in this case, all that pot – three weeks ago.
“They entered the apartment illegally,” he told the Chronicle. “Case law says you cannot enter the house without a search warrant unless there’s an adequate probable cause, and there wasn’t.”
What about that smell, though, witnessed by the neighbors who called the cops? Holmes said the stench shouldn’t even play a part.
“Smell doesn’t function as probable cause,” he continued. “Which is kind of unusual. You have to have more than smell to enter a residence.” He added that similar instances occurring in a vehicle may be different, as automobiles “are movable and you can destroy the evidence.” With a house, however, “you have to have more than a smell. You have to see somebody running through the house appearing to destroy the evidence or some other circumstance like that. Otherwise, you need to secure the scene, get everybody outside, and go get a warrant, which they did not do.”
Unfortunately for Lavoro, getting a Williamson County judge to uphold the law without any additional prestidigitation is about as easy as sawing through a two-by-four with a butter knife. The county has an extensive history of district prosecutors tampering with evidence or law to achieve a conviction. Most notorious is the 25-year sentence and eventual exoneration of once-convicted murderer Michael Morton, whose prosecutor, the former Williamson County District Attorney Ken Anderson, eventually pleaded guilty to criminal contempt for withholding exculpatory evidence. There was also the case of four county judges and one local magistrate, who in 2006 all stood in defense of accusations from the Texas Fair Defense Project that unfair judicial procedures throughout the county had compromised defendants’ constitutional right to counsel.
Holmes is based in nearby Temple, and has had issues with Williamson County: “I had a case down there a few years ago. It was a simple DUI case with a black man. They arrested him and took blood to try to establish BAC [blood alcohol content]. I called and called and called about the lack of results. They said ‘We don’t have them yet.’ It went on for three months. Since I was a former police officer, I knew how to call the lab and get the right numbers. I did that, and they said ‘Oh yeah, we sent those results two months ago, back to the prosecutor.’ I said ‘What were the results?’ No drugs, no alcohol. They were hiding that from me and trying to get me to plea to something knowing that the guy was innocent.”
Lavoro will appear in a status hearing at the Williamson County Court House on Aug. 6, but no hearing on Holmes’ motion to suppress illegally acquired evidence has been set. “We should get one in three weeks or so,” says Holmes. “I think we’ll win that, and I think the case will be over once we have that hearing.”