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.