Metropolitan News-Enterprise


Wednesday, November 2, 2011


Page 1


C.A.: Drug Seizure Not ‘Theft’ Under Homeowners Policy




A suit by a homeowner, who claims the theft provision of his insurance policy covered an allegedly illegal seizure of his medical marijuana by Costa Mesa police, is without foundation, the Fourth District Court of Appeal has ruled.

Div. Three Monday affirmed a summary judgment in favor of State Farm General Insurance Company in the action brought by Greg Barnett.

Evidence presented in connection with State Farm’s summary judgment motion showed that police raided Barnett’s residence with a warrant in August 2007. The warrant specifically authorized the officers to search for, and seize, marijuana.

The officers dug up 12 seven-foot tall marijuana plants from Barnett’s backyard. They also seized additional marijuana in bags, and a tray with loose marijuana and rolling papers.

Barnett claimed the officer who obtained the warrant filed a materially misleading affidavit, in that the officer failed to inform the magistrate that the officer had been made aware, as a result of a previous contact six years earlier, that Barnett has a physician’s recommendation to use the drug under Proposition 215.

A short time after the raid, Barnett filed a claim with State Farm, along with a $98,000 appraisal for the seized property.

In February 2008, Barnett, who at that point had not been charged with a crime, petitioned the Orange Superior Court for the return of the marijuana. The petition was denied on the ground that the amount possessed exceeded the limits of the Medical Marijuana Program Act.

Those limits were later held unconstitutional on the ground that the relevant provision of the MMPA was a legislative amendment of Proposition 215, and was thus invalid in the absence of voter approval.

The seized items were destroyed two days after the motion was denied.

In October 2008, State Farm—whose policy included coverage for “outdoor trees, shrubs, plants or lawns, on the residence premises, for direct loss caused by...Vandalism or malicious mischief or Theft”—denied Barnett’s claim. Charges of possession and cultivation of marijuana were dismissed a short time later, on motion of the prosecutor, rendering moot the defense motions for dismissal in the interests of justice and to suppress evidence.

Barnett’s suit, charging State Farm with breach of contract and bad faith, was filed in February 2009. In June of that year, the judge in the criminal case, who had not been made aware the seized items were destroyed, ordered that all of the items in the search inventory be returned to the defendant.

In the civil case, Orange Superior Court Judge David McEachen, granted the insurer’s motion for summary judgment on the ground that “that “even under the broadest definition of theft, the facts here do not establish that plaintiff’s losses are covered.”  The officers, he said, had “facially valid authority” to act as they did, regardless of any legal doubt as to the validity of the warrant.

Justice Richard Aronson, writing for the Court of Appeal, agreed with the trial judge. The plain meaning of the word “theft,” the jurist wrote, precludes its application to property seized under a facially valid search warrant.

Theft can only be committed with criminal intent to deprive the owner of the property, Aronson elaborated.

“Here, the officers’ seizure of Barnett’s marijuana at his home pursuant to a search warrant cannot constitute a ‘theft’ because it was neither criminal nor, in carting the items away to an evidence locker, was there any evidence of an intent to deprive Barnett of his property permanently and in a criminal manner, rather than by due process of law,” the justice wrote.

That is true, Aronson added, even if, as Barnett claimed, the officer who obtained the warrant knew that he was using the marijuana for medicinal purposes as allowed by state law. “An individual officer’s subjective mental state becomes irrelevant when the return of confiscated items is committed, as here, to the legal process,” the justice explained. 

Nor, Aronson went on to say, did the subsequent destruction of the property constitute a theft, because the police were relying on a facially valid court ruling holding that Barnett possessed more marijuana than the MMPA allowed. That reliance, the justice explains, precludes a finding that the officers committed theft, even if the court ruling was wrong.

The case is Barnett v. State Farm General Insurance Company, G043748.


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