Mr. Whittaker was driving through Kerrville, Texas, on the way home from a road trip when he stopped for gas. Leaving the gas station, he failed to fully stop before entering the roadway, and was pulled over by Kerrville Police. When asked if he had anything illegal in the car, Mr. Whittaker volunteered that he had a small amount of marijuana. (By the way, never do this. Do not think that the police will go easy on you if you are honest. And if police ask to search your vehicle, tell them that you do not consent.)

The police arrested Mr. Whittaker for the marijuana, and searched his vehicle pursuant to an inventory search, which turned up two THC vape pens and slightly over a gram of psilocybin mushrooms. He was charged with felony possession of THC derivatives, felony possession of psilocybin mushrooms, and misdemeanor possession of marijuana, and was facing up to two years in a state jail facility.

Because Mr. Whittaker had voluntarily turned over the marijuana, we were unable to challenge the validity of the subsequent search. Nevertheless, after lengthy negotiations involving other potential problems with the State’s case, Mr. Fahle convinced the prosecutors to agree to a pretrial diversion, in which the charges are dismissed in exchange for taking some classes and completing community service hours, and all records of the arrest and charges can later be expunged from the defendant s record.