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November 2011

Barnett v. State Farm General Ins. Co. Criminal Intent Required To Trigger Coverage Under Theft Provision

Police Seizure Pursuant To Search Warrant Did Not Constitute "Theft" Within The Terms Of A Homeowner's Policy

(October 31, 2011) __ Cal.App.4th __, 11 C.D.O.S. 13519

The California Court of Appeal, Fourth Appellate District, affirmed an order granting summary judgment to an insurer where coverage was denied for the insured's property loss resulting from a police seizure.  The trial court held the police department's acts of seizing the items and later destroying them did not trigger the theft provision in the insured's homeowner's policy.  The court of appeal affirmed, holding there was no criminal intent to seize and destroy his property because the seizure was conducted in compliance with a search warrant and the subsequent destruction of the property was in reliance on a judicial order denying its return.  Thus, there was no "theft" within the meaning of the policy.

Plaintiff Greg Barnett ("Barnett") obtained a homeowner's insurance policy from State Farm General Insurance Company ("State Farm"), which included a theft provision expressly covering "outdoor trees, shrubs, plants or lawns, on the residence premises, for direct loss caused by . . . [t]heft."  The policy did not define "theft."

In August 2007, officers from the local police department executed a search warrant at Barnett's residence.  The search warrant, issued by a magistrate, directed the police to search the premises for and seize any marijuana found.  The officers dug up 12 marijuana plants from Barnett's backyard, and seized two freezer bags of marijuana and a tray containing loose marijuana and rolling papers.

A month after the seizure, Barnett filed a claim with State Farm under his homeowner's policy for the items seized.  State Farm initially denied his claim, but reopened the file for reconsideration.

Barnett also filed a petition with the superior court for return of his property, asserting he was entitled to his property under the Compassionate Use Act (Cal. Health & Safety Code, § 11362.5) because his marijuana use was recommended by a physician for medicinal purposes. 

Barnett also argued that the warrant should not have issued had the officer applying for the warrant been more forthcoming with the magistrate.  According to Barnett, the officer's statement of probable cause was based on police contact with Barnett six years earlier, but did not disclose that Barnett voluntarily showed the officers the marijuana plants he was growing in his backyard and provided the officers with a statement from his physician recommending its medicinal use.  The superior court denied his petition.  Following the court's denial, the police department destroyed Barnett's property in a routine police department bulk narcotics burn.

The district attorney subsequently charged Barnett with unlawful cultivation and possession of marijuana, but the court dismissed these charges. State Farm made a final determination denying Barnett's claim.

Barnett then filed two actions.  In criminal court, he filed a new petition to have his property returned to him.  This time, the court (unaware the property had been destroyed) ordered return of the property seized in August 2007.  Barnett also filed a civil complaint against State Farm for breach of contract and bad faith.  State Farm filed a motion for summary judgment, and the trial court granted it, finding that even under the broadest definition of theft, the facts do not establish that Barnett's losses were covered. Barnett appealed.

On de novo review, the appellate court noted that because the definition of "theft" was undefined under the terms of the policy, the court employed the usual and ordinary meaning, finding that theft involved a criminal intent to steal or permanently deprive the owner of possession of the property.  The court held the officers' taking of the property was pursuant to a search warrant, which gave the officers a "claim of right" to take it, dispelling the criminal character necessary to constitute a theft within the common meaning of the word. 

Barnett argued that filing a false warrant application constituted a criminal offense, giving the seizure its criminal character.  The appellate court disagreed, holding instead that the individual officer's subjective mental state did not render an otherwise facially valid warrant invalid at the time it was executed.   The officer did not act alone during the seizure, nor did Barnett allege there was a conspiracy among all the officers to steal his property.  The court held it must presume the officers acted in good faith reliance on a facially valid warrant as lawful authority to conduct the search and seizure because they conducted their search within the parameters of the warrant and seized only the items described in the warrant.  The court further held even subsequent determination of Barnett's right to possession of the marijuana did not establish that the seizure was unlawful, let alone criminal.

Finally, Barnett asserted that the police department acted hastily in destroying his property after the denial of his initial petition to return the property, before criminal charges were filed against him.  The appellate court held that the police relied on a facially valid judicial ruling that Barnett was not entitled to the return of his property, and relying on a facially valid judicial ruling did not amount to a theft, even if the ruling was later held to be wrong.  There also was no showing to suggest that the police department destroyed Barnett's property fraudulently or without good faith.

The appellate court affirmed the trial court's grant of summary judgment in favor of State Farm.

This opinion is not final. It may be withdrawn from publication, modified on rehearing, or review may be granted by the California Supreme Court.  These events would render the opinion unavailable for use as legal authority.


David L. Jones