Tuesday, June 19, 2012



Once upon a time a California homeowner called police to report vandalism at his property.  This was the first link in what turned out to be a chain of events which could almost be the plot outline for a Cheech & Chong movie and which could be described, from the homeowner’s perspective, as a massive bummer.  (Barnett v. State Farm General Ins. Co. (2011) 200 Cal.App.4th 536.)

Arriving at Homeowner’s property responding officers collared a suspect, “who, in the course of his arrest, attempted to retaliate against” the homeowner by stating (I paraphrase): “Hey, man, get your hands off me ... let me go ... this homeowner dude grows pot!”  When confronted with this accusation Homeowner “showed the officers the marijuana ... he was growing in his backyard ... [and] provided ... a statement from his physician recommending his use of marijuana for certain medical conditions ...”  The officers did nothing about the home grown crop.  Thus finished (temporarily) serving and protecting, they left.  (So far, so good for our homeowner, but ... ) 

Six years later the other shoe dropped (the opinion provides no explanation for the long delay).  Pursuant to a search warrant, based in part on information obtained from a police helicopter (nowadays it would be a drone) overflight, the Boys in Blue (although given their mission they might have been adorned in camo) returned to Homeowner’s property: They dug up, seized and hauled away the fruit of Homeowner’s agrarian labors (although they left Homeowner firmly potted in his house).     

Homeowner, his wits still about him (or perhaps restored due to the removal of easy access to his herbaceous intoxicant), lodged a claim with his homeowner’s carrier for $98,000: the appraised value of the (as Homeowner contended)  peculated produce.  Claim denied; reconsidered: denied again. 

Several months later there was more bad news for our Job-like Homeowner.  The Languid Arm of the Law finally reached out and charged him with possession and cultivation of marijuana.  However, momentum then shifted (sort of) to Homeowner’s side.  Charges were dismissed and the court ordered that Homeowner and his precious (forcibly harvested) flora should be reunited.  Unfortunately for Homeowner the captured cannabis had already been burned up by then.  (It’s unclear from the opinion whether the burn procedure was similar to one employed by U.S. Customs Agents to destroy appropriated Cuban cigars, which, speaking on condition of anonymity, one agent has described as follows: “We destroy the cigars by burning them –” (insert comedic pause) “– one at a time.”)  

Homeowner sued his carrier (remember his theft claim had been denied) for breach of contract and bad faith.  Homeowner lost per summary judgment in the trial court because, as the court explained, “Whether the [search] warrant [stemming in part from the helicopter overflight] should or should not have ... issued is not viewed as dispositive, because once it existed, law enforcement personnel possessed ... facially valid authority to enter plaintiff’s home and seize the marijuana.”  Judgment in favor of carrier confirmed by the appellate court. 

(OK, dopers, put that in your pipes and smoke it.)

John S. Spencer
217 Second St. Sausalito CA 94965
PO Box 2300 Sausalito CA 94966 (mail)
877-999-5200 (toll free)