Jim Porter: The police stole my (insured) marijuana
February 23, 2012
TAHOE/TRUCKEE and#8212; and#8220;A cigar smoker bought several hundred expensive stogies and had them insured against fire. After heand#8217;d smoked them all, he filed a claim, pointing out that the cigars had been destroyed by fire. The company refused to pay, and the man sued. A judge ruled that because the insurance company had agreed to insure them against fire, it was legally responsible. So the company paid the claim. And when the man accepted the money, the company had him arrested for arson.and#8221;
That Urban Legend began its Internet life in the mid-1990s after a similar story, designed to make lawyers look bad, circulated in the mid-1960s. It isnand#8217;t true but it doesnand#8217;t take away from its popularity.
Hereand#8217;s a similar real-life, true story you might find just as humorous.
Homeownerand#8217;s Insurance Policy
Greg Barnett obtained a homeownerand#8217;s insurance policy from State Farm including coverage for and#8220;direct physical loss to property.and#8221; The theft part in the policy extended coverage to: and#8220;Theft, including attempted theft and loss of property from a known location when it is probable that the property has been stolen.and#8221; The policy terms covered and#8220;Trees, Shrubs, and Other Plants.and#8221;
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While Barnettand#8217;s insurance was in place, the Costa Mesa Police Department executed a search warrant at his residence with directions as follows: and#8220;You are Therefore COMMANDED to SEARCH: THE PREMISES and#8230; For the FOLLOWING PROPERTY: and#8230; Marijuana and#8230; AND TO SEIZE IT IF FOUND.and#8221;
The search warrant was issued and the police seized 12 seven-foot tall marijuana plants and freezer bags containing five ounces of marijuana.
Barnett had a statement from his doctor recommending his use of marijuana for certain medical conditions. He told police six of the plants were for his use and six were for plants he cooperatively grew on behalf of another qualified medical marijuana patient as allowed under the Medical Marijuana Program Act.
Insured Marijuana Loss
At this point in the case, the facts get complicated, but the salient fact is that Barnett was not initially charged with a crime, so he filed a petition to have his marijuana returned, then criminal charges were filed, then they were dismissed by the prosecutor, Barnett filed a theft claim on his policy, but by then the marijuana had been destroyed in a large narcotics burn conducted by the police. Barnett claimed the pot was worth $98,000, which if the police were publishing how much they had seized, it would have been and#8220;in excess of $2 million street value.and#8221; Or so I suspect. State Farm denied Barnettand#8217;s marijuana theft claim and he sued. He lost in the trial court and appealed to the Court of Appeal.
Assuming the search warrant was invalid because Barnett had only 12 mature marijuana plants as allowed under the Medical Marijuana Program Act at the time, can he recover from State Farm?
Definition of and#8220;Theftand#8221;
The Court of Appeal analyzed how and#8220;theftand#8221; was defined in dozens of court cases over many years. Theft involves a knowingly unlawful acquisition of property; a felonious taking of property, which requires a criminal intent to steal, or as we lawyers are fond of saying, an animus furandi. Like getting your fur, your hair, up in anger. (Lame attempt at humor).
The Court ultimately concluded that seizing marijuana pursuant to a warrant and carting it away to an evidence locker is not theft because there is no criminal intent. The officers were simply carrying out the courtand#8217;s search warrant, even if it was later proved defective.
It would be different if an officer took some pot home to smoke to relax after a hard dayand#8217;s work executing search warrants, but that was not the case in this case in case you were wondering. Case closed.
Greg Barnettand#8217;s insurance claim denied.
Marijuana Smokerand#8217;s Tip
It is not I, but these judges, apparently tending toward the liberal side, that came up with the tip of the day for pot smokers who would like to insure their plants.
In footnote three the court wrote: and#8220;We note consumers may choose from a wide array of insurance products, including, for example, insurance that expressly precluded any claim and#8220;caused by and#8230; confiscation or seizure under the order of any Government or public authority.and#8221; The insured may also, presumably for a fee, obtain a policy endorsement specifically deleting such exclusionary language.and#8221;
So if you want your pot insured from government search warrants and seizure, get that policy endorsement. Which brings us back to our cigar smoking insurance claimant. Similar heh?
Jim Porter is an attorney with Porter Simon, with offices in Truckee and Reno. He is a mediator and was the Governorand#8217;s appointee to the Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. He may be reached at firstname.lastname@example.org or at the firmand#8217;s website http://www.portersimon.com.