Only in California  – In Barnett v. State Farm General Insurance Company, the insured under a homeowner’s policy sued for coverage when the local police seized 12 seven-foot tall marijuana plants, freezer bags containing a total of approximately five ounces of marijuana, and a tray with loose marijuana and rolling paper.  The insured included in his claim an appraisal of $98,000 for the marijuana and marijuana plants the police seized.  The court held that the police department’s acts of seizing these items pursuant to a search warrant and later destroying them did not trigger the theft provision in the homeowner’s policy.

The insured sought coverage under the “theft” provision.  The court construed the terms “theft” and “stolen” to mean a felonious taking; “intent to steal”; “animus furandi”;  or “the intent, without a good faith claim of right, to permanently deprive the owner of possession.”   Thus, a “theft” is not committed by a mere  “trespass” against another’s right of possession.   Thus, the initial taking was not a criminal act because a claim of right pursuant to a valid search warrant dispels the criminal character necessary to constitute a theft within the common meaning of the word.

The court also rejected the insured’s argument that there was a theft by the police’s conduct of taking the items away to an evidence locker because there was no evidence of an intent to deprive the insured of his property permanently and in a criminal manner, rather than by due process of law.  In other words, “a claim of right to take disputed property negates the criminal intent necessary for theft.”