Peo v. Obanion

• Court: Colorado Court of Appeals
• Decided: April 16, 2026
• Docket: 23CA2025
• Status: Unpublished

Opinion

23CA2025 Peo v Obanion 04-16-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA2025 Chaffee County District Court No. 23CR5009 Honorable Patrick W. Murphy, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Dan Obanion,

Defendant-Appellant.

ORDER AFFIRMED

Division VI Opinion by JUDGE GROVE Yun and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 16, 2026

Philip J. Weiser, Attorney General, Frank R. Lawson, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Mackenzie R. Shields, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Dan O’Banion,1 appeals the district court’s order

denying the return of his seized property. We affirm.

I. Background

¶2 In 2023, police officers pulled over O’Banion for an expired

registration. After a license plate check revealed that he had an

active arrest warrant, officers arrested him and requested a tow for

the vehicle. A K-9 unit then alerted officers to the presence of

narcotics. Upon searching the vehicle, officers discovered, among

other things, a large quantity of what appeared to be psilocybin,

three firearms, and more than $2,200 in cash.

¶3 O’Banion was charged with possession with intent to

manufacture or distribute a controlled substance – schedule I or II,

§ 18-18-405(1)(a), (2)(b)(I)(A), C.R.S. 2025. However, the

prosecution later dismissed the charges “in the interest of justice”

because, before O’Banion’s arrest, Colorado voters had

decriminalized the possession of psilocybin for personal use

through the passage of Colorado’s Natural Medicine Health Act

1 Although the lower court references defendant as Obanion, we use

the spelling in his opening brief on appeal.

1 (NMHA). S.B. 23-290, 74th Gen. Assemb., 1st Reg. Sess., 2023

Colo. Sess. Laws 1372.2

¶4 After the charges were dismissed, O’Banion filed a motion for

return of property, asking officers to give back the seized psilocybin

and asserting that the seizure violated section 18-18-434(6)(c),

C.R.S. 2025. The district court denied the motion, concluding that

it was bound by People v. Crouse, 2017 CO 5, in which the Colorado

Supreme Court held that that Colorado Constitution article XVIII,

section 14(2)(e)’s return provision — requiring that law enforcement

officers return medical marijuana seized from a person later

acquitted of a Colorado drug charge — was preempted by federal

law. In accord with the holding in Crouse, the district court ruled

that the officers could not return the psilocybin to O’Banion without

violating the federal Controlled Substances Act (CSA), 21 U.S.C.

§ § 801-971.

2 The NMHA broadly decriminalizes the cultivation, possession,

consumption and sharing of “natural medicine” — which, as statutorily defined, includes psilocybin — in quantities appropriate for “personal use” for adults twenty-one years of age or older, provided that no money or other consideration is involved. § 18-18- 434(1)-(7), (12)(b)(I)(D), C.R.S. 2025.

2 II. Analysis

¶5 O’Banion contends that section 18-18-434(6)(c) does not

conflict with the CSA and, as a result, is not preempted. In the

alternative, he argues that Crouse was wrongly decided.

A. Conflict Preemption

¶6 In his opening brief, O’Banion devotes only three conclusory

sentences to asserting that the NMHA is distinguishable from article

XVIII, section 14 of the Colorado Constitution — which permits the

use of medical marijuana under state law — because the NMHA

does not include a provision “requiring law enforcement to return

natural medicine” following a seizure that does not result in a

criminal conviction. Because of this distinction, O’Banion argues,

the holding in Crouse should not control the outcome here.

¶7 But O’Banion does not explain why there is no positive conflict

between the NMHA’s decriminalization of psilocybin and the CSA’s

prohibition of the same substance. As the People point out, under

the reasoning in Crouse, “a court order authorizing the return of

psilocybin by law enforcement, whether attached to a statutory

provision or not, would place officers in the position of violating

federal law.” And that is exactly what O’Banion seeks in this case.

3 O’Banion offers no persuasive reason why it makes a difference

whether the motion for return of property is based on a specific

constitutional provision, as with medical marijuana, or on more

general law concerning the return of seized property. To the extent

that O’Banion disagrees with this understanding of Crouse, it was

incumbent upon him to explain why in his appellate briefing.

B. Crouse

¶8 In the alternative, O’Banion contends that Crouse was wrongly

decided. As he acknowledges, however, we are bound by the

Colorado Supreme Court’s holding in that case. See People v.

Porter, 2015 CO 34, ¶ 23 (the court of appeals is bound by decisions

of the supreme court). Because O’Banion failed to develop an

argument drawing a meaningful distinction between the NMHA and

article XVIII, section 14 of the Colorado Constitution, we must

follow Crouse and conclude that his request for the return of his

psilocybin is preempted by federal law.

III. Disposition

¶9 We affirm the district court’s order denying O’Banion’s motion

for return of property.

JUDGE YUN and JUDGE SCHOCK concur.