Marijuana Legalization Landscape pot

A marijuana plant is visible at Compassionate Care Foundation's medical marijuana dispensary in Egg Harbor Township, N.J.

The prohibition on large-scale marijuana grow operations on residential “land” only includes open spaces, not enclosed structures, the Colorado Court of Appeals ruled for the first time.

Pueblo police arrested Oel Garcia-Gonzalez in 2019 while executing a search warrant at a residence. According to court records, officers found 32 marijuana plants in the garage, and alleged he and another defendant were growing for personal medical use and for sale to retail establishments.

Among other counts, Pueblo County prosecutors charged Garcia-Gonzalez under the provision of Colorado law which makes it unlawful for a person to grow marijuana “on land that the person owns, occupies, or controls.”

A district court judge dismissed that felony charge, interpreting the word “land” to mean “open land,” like farmland or fields. The prosecution appealed, arguing the General Assembly intended it to include buildings and structures.

A 2017 law set penalties for large-scale cultivation in residential neighborhoods, with the legislature expressing concerns about public safety, nuisances and the lowering of property values from such activity. There was no explicit definition of “land,” although the Colorado constitution and state law contain a separate, direct reference to “enclosed” spaces for growing.

The three-member Court of Appeals panel sided against prosecutors in their interpretation of land.

“While a residence, including a garage, may be on that land, the residence or the garage could be an ‘enclosed, locked space,’” per the Colorado constitution, wrote Judge Terry Fox in a Nov. 25 opinion. “It makes sense, then, that ‘land’ as used here does not contemplate an ‘enclosed, locked space.’”

The court added that Garcia-Gonzalez could still be prosecuted if the garage was not enclosed and locked. Miles Cabral, the attorney representing Garcia-Gonzalez, said the importance of the distinction was the penalties associated with growing cannabis on land versus in a residence.

"Growing more than 30 plants on 'land' is a level 3 drug felony versus a 'petty offense' if grown at a residence," he said.

Sen. Bob Gardner, R-Colorado Springs, who was one of the sponsors of the 2017 penalty bill, recalled that the legislature was likely trying to include residential buildings as well under “land.”

“It points out the challenges in the criminal law of ensuring we draft it very carefully and cover the cases and circumstances that we are trying to reach,” he said.

Arnold Hanuman, deputy executive director of the Colorado District Attorneys' Council, said that during the debate over the bill, "the definition of ‘land’ was not an issue for the legislature." There was also no testimony that raised the issue, Hanuman added.

The case is People v. Garcia-Gonzalez.

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