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Penal Code Section 170 – Malicious Procurement of A Search or Arrest Warrant

Under Penal Code Section 1701, any person who “maliciously” procures a search or arrest warrant without “probable cause” is guilty of a misdemeanor.

A person acts “maliciously” if he intends to injure, annoy, or vex another person. A person acting with malice holds an “ill will” towards the victim. 2

Police officers may submit an “affidavit” to a judge which sets for the officer’s justification to request a search warrant or an arrest warrant. An affidavit is a written declaration made under oath. A judge may only authorize a search warrant or arrest warrant upon a finding of “probable cause.”2 When a judge determines whether there is probable cause to issue a search warrant, he or she “must make a practical, common-sense decision whether given all the circumstances set forth in the affidavit there is a fair probability that contraband or evidence of a crime will be found in a particular place.”4 A similar analysis occurs when a judge issues an arrest warrant. The judge must examine an officer’s affidavit in support of the arrest warrant and determine whether there is probable cause to believe that a crime occurred.

Commentary on Penal Code Section 170 Offenses:

Prosecutors rarely allege Penal Code Section 170 allegations. Prosecutors and judges seldom suspect that a police officer maliciously submitted a defective affidavit lacking probable cause. Prosecutors and judges frequently reject search warrant applications for lack of probable cause. The affiant’s motive is rarely questioned, however. Prosecutors are more likely to utilize a felony charge under Penal Code Section 118 if they believe that an officer maliciously lied in an affidavit.

The Ventura County District Attorney’s Office created a specialized public corruption unit.   Prosecutors aggressively investigate any officer or government official suspected of violating the public’s trust.

Sources Cited / Notes:

1 Blog Article Published June 12, 2018.
2 In re V.V. (2011) 51 Cal.4th 1020, 1027-1028.
3 People v. Garcia (2003) 111 Cal.App.4th 715.
4 People v. Garcia (2003) 111 Cal.App.4th 715, 721.

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