Penal Code Section 168 – Disclosing the Existence of a Search Warrant or Arrest Warrant
Public officials are subject to felony prosecution for disclosing the existence of a search warrant or arrest warrant before it is served.
Elements of the Offense:
(1)A judge issued a search warrant or arrest warrant;
(2)The defendant willfully disclosed the existence of the search warrant or arrest warrant before officers effectuated its service.
(3)The defendant intended to prevent the search or seizure of property, or the arrest of any person.
The word “willfully” applies to the person’s intent when he or she committed the act. A person acts “willfully” if he acts on purpose. The prosecution does not have to prove that the person intended to violate the law.1
Penal Code Section 168 Applies to Government Officials:
Penal Code Section 168 deters government officials from revealing the existence of a search warrant or arrest warrant. The statute warns prosecutors, clerks, judges, and peace officers that any violation of the statute will result in a felony offense.
Exceptions to Penal Code Section 168:
The District Attorney or the Attorney General may reveal the existence of a search warrant or arrest warrant to obtain voluntary compliance with its service. Similarly, prosecutors employed by a district attorney’s office or the Attorney General may reveal the existence of a warrant to assist in the apprehension of the defendant.
Penal Code Section 168 aims to deter a form of government corruption. Leakers undermine public safety when they reveal the presence of an arrest warrant or search warrant. The leaker increases the risk to peace officers serving a warrant or tasked to make an arrest. Felony suspects might hide or destroy evidence. Dangerous criminal offenders may also avoid capture.
Prosecutors rarely identify Penal Code Section 168 violations. The author believes that violations do occur but may not be adequately investigated or uncovered. Possible violations may arise under the following scenarios:
- A police officer learns that his agency has obtained a search warrant for his cousin’s home. He tips off a family member before the service of the search warrant.
- A court clerk hears that officers obtained an arrest warrant for a celebrity. Due to the clerk’s position, she maintains regular contact with a tabloid media outlet. The clerk receives movie tickets and restaurant gift cards in exchange for providing regular tips to reporters. She calls the tabloid to leak information about the celebrity’s planned arrest.
- A detective develops a long-standing relationship with an informant. The detective built numerous criminal cases on the informant’s information and testimony. The detective learns that another agency obtained a warrant to search the informant’s home to uncover evidence of unrelated criminal activity. The detective is concerned that information gained during the search warrant may call the informant’s credibility into questioned and jeopardize closed cases. The detective tips the informant off so that he can hide any potentially incriminating evidence.
Ventura County prosecutors aggressively target any form of government corruption. However, prosecutors are hesitant to focus on police officers in any criminal investigation absent utterly compelling evidence of guilt. Police unions comprise powerful political forces across the state, including Ventura County. For this reason, suspected Penal Code Section 168 violations will often not be aggressively investigated and may go completely unnoticed.
The prosecution of Whitey Bulger, leader of the Boston-based “Winter Hill Gang” demonstrates how wayward cops can be tempted to tip-off and aid criminals for the “perceived” greater good. The Federal Bureau of Investigation used Bulger to investigate and prosecute members of the Italian mafia. In return for his assistance, agents tipped Bulger off to the presence of informants in his own midst and any attempt by state and local law enforcement officers to arrest him. With the help of the FBI, Bulger managed to murder potential witnesses and prevent honest cops from finding incriminating evidence against him.2 In 1992, FBI Agent John Joseph Connolly Jr. was arrested for tipping off Irish mob members to law enforcement investigations, falsifying reports, accepting bribes and helping Bulger’s crew cover up their crimes.3
In May 2018, federal prosecutors charged a Glendale police officer with making false statements to federal investigators concerning his ties to organized criminal street gangs.4 Among other things, the officer is suspected of leaking information concerning upcoming raids to gang members.5
Attorney Bill Haney is a former supervising prosecutor and major crimes attorney in the Ventura County District Attorney’s Office. He serves criminal defense clients in Ventura County. Mr. Haney also teaches as an adjunct faculty member at the prestigious Pepperdine University School of Law.
Sources Cited / Notes:
1 Penal Code Section 7.
2 “Corrupt FBI Let Mobster Whitey Bulger Keep Killing.” Cato Institute, Commentary. See also “How the FBI Helped Whitey Bulger, “CBS news. March 27, 2013. Click here.
3 “John Connolly (FBI),” Wikipedia. Click here.
4 “Glendale cop tied to Mexican Magia and Armenian organized, crime federal officials say.” Los Angeles Times, May 15, 2018. By Alene Tchekmedyian and Richard Winton.