ARREST, SEARCHES &SEIZURES

Sec. 2, Art. 3 of the Constitution - Right against unlawful arrest or search

The right of the people to be secure in their persons, houses, papers, and effects against

unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the

judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

Artificial/Juridical Persons enjoy the same right as private individuals (David vs Arroyo)

Sec. 3(2), Art. 3 of the Constitution – Exclusionary Rule

Any evidence obtained in violation of this or the preceding section shall be inadmissible for any

purpose in any proceeding.

* Pp vs Bongcarawan & Pp vs Marti

The exclusionary rule, may only be successfully invoked if the illegal search or arrest is perpetrated by the state or its agents, in other words, may not be invoked if the illegal search or

arrest is perpetrated by a private individual or where such illegal search or arrest is done without the active intervention of the state.

If the evidence is obtained through an illegal search conducted by a private person,

the object may be admitted in evidence, the victim however can file a case for illegal search against the person conducting the same, but the evidence illegally obtained from him may be admitted in court.

What is prohibited under Sec.2 Art 3.?

Unlawful arrest or search.

When is there a valid search or arrest?

If the search or arrest is covered by a warrant. For search, it should be covered by a search warrant, as for warrant, it should be covered by a warrant of arrest.

In order that the warrant may be validly issued, such issuance must comply with four (4) essential requisites:

1. Existence of probable cause

2. Such probable cause must be determined by a judge 3. Such determination must be made after examination under oath or affirmation of the

complainant and the witnesses he may produce. 4. Must particularly describe the place to be searched and the persons or things to be

seized

What is warrant of arrest?

It is a process issued by a court commanding the law enforcement agencies to arrest a person particularly described therein.

What is a probable cause?

Such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched.

Who may issue a warrant of arrest?

Judges of the courts. Can administrative bodies issue a warrant of arrest?

Yes. Warrants of arrest may be issued by administrative authorities only for the purpose of carrying out a final finding of a violation of law; like an order of deportation or an order of

contempt, and not for the sole purpose of investigation or prosecution. * Moreno vs Vivo

The BID commissioner can issue a warrant of arrest to carry out a final order of deportation, but it cannot issue a warrant of arrest in order to take custody of an alien to be investigated for a

commission of an offense. * Exception: Harvey vs Santiago

The SC upheld as valid the issuance by a BID commissioner of a warrant of arrest to place an alien under custody for investigation, because it was established that there was a prior

surveillance conducted.

In senate inquiries, the Senate and HRep. may issue warrant of arrest to carry out an

order of contempt. Is it required of the judge to conduct a personal examination? * Soliven vs Makasiar

The judge is not required to conduct a personal examination or interrogation of the complainant and his witnesses before a judge can issue a valid warrant of arrest.

The judge may just thoroughly study the report of the fiscal and/or the supporting documents (affidavit complaint, documentary exhibits by complainant or counter-

affidavit by the accused).

Because there is already a preliminary determination of probable cause done by the

prosecutor, the judge is not anymore required to conduct another round of preliminary investigation or examination.

Sec. 5(b) Rule 112 of the Rules of Court

Within 10 days following the filing of information in court, the judge must evaluate the report and recommendation of the prosecutor, and if he finds probable cause, then the judge may issue a warrant of arrest, if the judge finds no probable cause, then the judge is authorized to dismiss

the case. In case of doubt, the judge may direct the prosecutor to submit additional evidence within 5 days

from the receipt of the order and such issue on the determination of the absence or existence of probable cause must be resolved by the judge within the period of 30 days from the filing of information.

But the judge should not solely rely on the recommendation of the prosecutor, the judge should determine for himself the absence or existence of probable cause.

The probable cause to be determined by the fiscal is probable cause for purposes of

inditing the person, but the probable cause to be determined by the judge is as regard the issuance of warrant of arrest.

Sec. 8 Rule 112 of the Rules of Court

In cases where preliminary investigation is not a matter of right, such that the

imposable penalty is not exceeding 4 years and the case is filed directly in the MTC. The judge is not mandated to issue a warrant of arrest, at his discretion the judge may only issue a summon.

In cases where the true name or identity of the accused is unknown, may a “John Doe” warrant be issued?

As rule, the complete name of the person must be stated in the warrant, if the address is known it should likewise be stated.

A “John Doe” warrant may only be valid if the same is accompanied by a personal description of the person to be arrested.

Who will enforce the warrant of arrest?

Once a warrant of arrest is issued, copies thereof must be transmitted to the law enforcement agencies such as the PNP or NBI.

Sec. 4 Rule 113 of the Rules of Court The head of that particular law enforcement agency must cause the enforcement of the warrant

of arrest within 10 days from receipt of a copy thereof.

A warrant of arrest remains valid even after the expiration of the 10-day period reckoned from the receipt of copies thereof, unlike a search warrant, it is valid only for 10 days reckoned from the date of its issuance.

A warrant of arrest can be enforced anytime of the day or night, and at the time of arrest, the officer need not have with him a copy of the warrant, it is enough that he

knows for a fact that a warrant is issued against the person sought to be arrested.

Sec. 11 Rule 113 of the Rules of Court The person making the arrest may employ reasonable force in enforcing the warrant; he may

break open a door or window if only to gain entrance to the premises to apprehend the person or to liberate or in breaking out therefrom.

Circumstances where there may be a valid warrantless arrest Sec. 5 Rule 113 of the Rules of Court

1. In flagrante delicto arrest

When the person has committed, is committing, or is about to commit a crime in the presence of a law enforcement office or a private citizen.

The person making the arrest must have actual or personal knowledge of the commission of the crime, that is he either sees it or perceives it through his other senses.

Arrest of a person pursuant to a buy-bust operations would fall under this category (Espano vs CA)

Arrest of a person who is guilty of committing a continuing offense would likewise fall under this category ( Umil vs Ramos)

Is an arrest of a person pursuant to mere reliable information valid? * PP vs Nuevas & PP vs Molina

Mere suspicion or mere reliable information standing alone will not justify a warrantless arrest.

* Maspil, Malmstead, Tangliben and Montilla

The warrantless arrest of persons pursuant to mere reliable information was declared valid, because at the time of the arrest, the informant was present, more so the accused were arrested at the time that they were supposedly acting suspiciously and there was a sense of urgency.

* Rodriguez and Mengote

The warrantless arrest of persons pursuant to a tip-off was declared invalid, because the information was conveyed through telephone call and at the time of the arrest the informants were not present in the place where the warrantless arrest took place.

* Amminudin and Molina

The warrantless arrest of persons pursuant to reliable information was declared invalid,

because while the informant was around when the arrest was made, the police officers had reasonable period within which to secure a necessary warrant. * Amminudin distinguished from Maspil and Montilla

In the first, the warrantless arrest was declared invalid because the police officers had enough time to secure a warrant and the information relayed to the police authorities was more or less

complete in details, in the second, the warrantless arrest was declared valid because while the police officers had enough time to secure a warrant, the information was rather considered as sketchy, and it was lacking in substantial and material details such that the officers could not

secure a warrant of arrest for lack of information.

2. Hot pursuit arrest When an offense has just been committed, and the person making the arrest has reasonable

grounds to believe, based on personal knowledge of facts and circumstances, that the person going to be arrested is the offender.

It is not required that the person making the warrantless arrest has actually seen or has actually perceived the commission of the offense or that the crime is actually committed in the presence of the person effecting the warrantless arrest.

* People vs Del Rosario

For a hot pursuit arrest to be valid, the same shall not be too far removed from the commission of the offense. There should be a large measure of immediacy between the fact of warrantless arrest and the commission of the offense.

3. Arrest of escaped prisoners

When a person has escaped a penal institution where he is serving a final judgement of conviction or where he is temporarily detained while his case is pending in court or he has escaped while being transferred from one confinement to another.

4. Waiver of right

When there is a waiver of right or where the person otherwise illegally arrested has given his consent to such warrantless arrest.

When there is no timely objection or protest questioning the validity of the arrest, can you later on question the validity of such?

No. You need to file a motion to quash information prior arraignment, failing in that you are waiving the right to question the validity of your arrest.

Sec. 26 Rule 114 of the Rules of Court

Putting up on bail, does not constitute a waiver of right to question the validity or illegality of your

arrest. * If the preceding arrest is unlawful, the consequential search is unlawful

If incriminating evidence from the person illegally arrested or searched is found, can that be admitted in evidence?

As a rule, evidence illegally obtained cannot be admitted in court or in any proceedings, except;

1. Where such illegal arrest or search is perpetrated by a private individual or where the same is

perpetrated without the active intervention of the state or its agents (Bongcarawan) 2. When even if there is illegal arrest or search, the evidence is otherwise illegally obtained or

confiscated is to be used not against the person whom it was taken but against the person making the unlawful arrest.

3. When there is failure to object to the introduction in evidence of the object illegally confiscated or obtained

Remedies if you’re a victim of an illegal arrest

If the perpetrator is a public officer, you can file a criminal case for Arbitrary

Detention. If the perpetrator is a private individual, you can file a criminal case for Kidnapping & Illegal Detention.

Petition for Writ of Habeas Corpus, but may be mooted the moment information will be filed against you. If detention has political complexion, file a petition for Writ of

Amparo.

Motion to quash information

Search Warrant

It is a court process that is issued commanding the law enforcement agencies to search a particular place or seize particular things or objects.

To be valid, the issuance of search warrant must comply with the 4 essential requisites.

Requirement of Probable Cause If the search warrant is issued authorizing the confiscation of several items and there is no

probable cause with respect to some of the items therein, the entire search warrant is not necessarily voided. Only the particular items with which there is no probable cause will make the warrant voided, the rest which are unaffected by the defect would remain valid. (Salanguit)

Sec. 4, Rule 126 of the Rules of Court

A search warrant must only be issued for one specific offense, otherwise, if a search warrant is issued for two or more offenses then the search warrant is considered as void for being a scatter-shot warrant.

* Salanguit

While illegal possession of shabu is penalized under a separate provision, whereas illegal possession of drug paraphernalia is covered by another provision, both are penalized under the same special penal law. The search warrant is perfectly valid, and not a scatter-shot warrant.

Can administrative bodies issue a search warrant?

No. Only judges of courts of law can validly issue a search warrant. Where would you file the application for a search warrant?

Sec. 2 Rule 126 of the Rules of Court

The application for a search warrant may be filed with the court within whose territorial jurisdiction the crime is committed.

But for compelling reasons, the application for search warrant may be filed with another court within the same judicial region.

But if there is already criminal information or a case was actually filed in court, the

application must be filed with the court to which the case is pending.

For heinous crimes, search warrant may be issued by the RTC of Manila or Makati

even if it will be enforced outside their territorial jurisdiction.

Can a judge dispense with the personal examination before issuing a search warrant? Sec. 5 Rule 126 of the Rules of Court

The judge is mandated to conduct a personal investigation or interrogation of the applicant and his witnesses, before issuing a search warrant.

It must be made under oath, and should be made in writing or recorded, and the minutes of such proceeding must be attached to the records.

It is required that the applicant or his witnesses must be testifying on the basis of their

actual or personal knowledge of circumstances. Mere reliable information will not suffice.

A search warrant must particularly describe the place to be searched and the person subject matter thereof. * Chua distinguished from Del Norte

In the first, there was an error in the designation of the true name of the person subject of the

search warrant, yet such defect was cured by the personal knowledge of the police officers who conducted a prior surveillance of Chua and who were the once enforced the search warrant, but in the second, there was defect in the designation of the name but there was no prior

surveillance that was conducted.

A search of warrant must particularly describe the objects or things to be seized. * Stonehill vs Diokno

The SC declared a search warrant invalid for the reason that it merely gave a general description of the objects to be seized.

A general warrant is one which does not particularly describe the things or objects to be seized.

If by the nature of the things to be confiscated, the same are incapable of being

technically described, then a general description would suffice. Should the entire warrant be voided if the search warrant authorizes the confiscation of

several items, some of which are particularly describe but some are generally described? No. You just have to disregard those items which are not particularly described. A search

warrant is severable. Enforcement of search warrant

Sec. 7 Rule 126 of the Rules of Court

The law enforcement agency or members thereof implementing the search warrant are authorized to use reasonable force in effecting the search warrant; they are authorized to break open a door or window; or any closed receptacle if only to enforce the warrant, or the liberate

themselves therefrom.

Sec. 8 Rule 126 of the Rules of Court

In the course of inspecting a house, room, or any other premises; or in the course of searching the same, it is a requirement that the lawful occupant thereof, or any member of his family, or in

their absence, two witnesses of age and discretion must be around in the course of the implementation of the search warrant.

It is required that such persons must particularly witness the search conducted on any room in the house

A search warrant may only be implemented during daytime, except;

Sec. 9 Rule 126 of the Rules of Court If in the search warrant itself, the judge directs or allows the enforcement thereof during night

time. *A search warrant has a lifespan of 10 days reckoned from the date of issuance.

Exceptional circumstances wherein a warrantless search may be declared as valid.

1. When there is consent to such warrantless search or when there is a waiver against such warrantless search.

Consent to a warrantless search must be consciously, freely and intelligently given. Mere silence, inaction or passivity is not equivalent to consent. (Nuevas case)

Right to object against warrantless search may be waived. Waiver of such right may

only be done by the holder of such right, it cannot be waived by somebody else (PP vs Damaso)

2. When the situation is akin to a stop and frisk situation. (Warrantless search precedes the warrantless arrest)

A police officer is justified to stop a person on the street, ask him questions, and frisk upon that person for concealed weapon if the police officer noted or observed that the person is acting suspiciously. (Terry vs Ohio)

This can only be done if the person to be frisked upon without a search warrant is

acting suspiciously, and before the police officer could conduct the frisking, he has to introduce himself first and make initial inquiries before conducting a warrantless search. (People vs Solayao), (Posadas case)

Not applied in the case of Malacat. SC did not sustain that Malacat was acting

suspiciously. Not applied in the case of Mengote. The prosecution did not invoke this

particular circumstance.

Mere suspicion will not justify, the person has to perform a conduct which would invite the suspicion of the police officer. There has to be overt acts. Information is not necessary.

3. When the warrantless search is incidental to a lawful arrest

(The arrest should precede the search)

A person lawfully arrested necessarily has to be frisked upon for concealed weapons

or any evidence or object which may be used as a proof that a person is committing a crime.

The warrantless search should be conducted after or at best simultaneous or contemporaneous with the arrest. It should not precede the lawful arrest.

The preceding arrest should be valid, otherwise the consequential warrantless search will be invalid. It is a valid arrest because it is either covered by a warrant of arrest or it

is a case of a valid warrantless arrest. (Figuerroa)

The incidental search is limited in scope, it must be conducted on the body of the

person arrested or in the immediate vicinity which is under his immediate control. (Espano)

4. When the evidence confiscated is in plain view of the officer

Evidence within the plain view of the officer who has the right to have that view may be confiscated and may be admitted in evidence.

The discovery of the illegal item should be by sheer inadvertence, and that the police officer has not intentionally exerted effort to search for that item.

The evidence itself should be plainly illegal.

Requisites for plain view doctrine to apply:

1. There should be a valid intrusion; the police officer must have the right to have that view of the illegal item. Such that there is a warrant or the police officer is pursuing a lawful warrantless arrest. (Figuerroa)

2. Discovery of illegal objects must be by sheer inadvertence; there should be no deliberate or conscious effort on the part of the police officers to search for that

particular item. (Padilla)

3. The illegality of the item must be readily apparent;

4. That the plain view would justify the outright confiscation of the item without need of conducting a further search;

5. When the search is conducted on vessels or aircrafts pursuant to the enforcement of customs laws

Justified by reason of urgency

6. Search conducted on moving vehicles

Setting up of checkpoint is valid, if the same is impelled by the expediency of public

order and if the same is conducted in a manner that is least intrusive.

Mere mobility of vehicles will not give the authorities unbridled authority to conduct

indiscriminate warrantless search; they cannot just flag down a particular moving vehicle and conduct a search thereof without warrant.

As a rule, there has to be a checkpoint which must be conducted at a definite or fixed place. A roving warrantless search on moving vehicles is not allowed.

In a checkpoint, 2 kinds of searches may be made thereof. 1. Looking inspection; police officers may simply look at the peripheral view of a

vehicle but they cannot force the motorists to disembark therefrom to conduct body frisking. What is allowed is a visual or peripheral search.

2. Extensive search; if there is probable cause to believe that the motorist is an offender or that something incriminating may be found inside the vehicle. (Probable cause may be in a form of tip-off information.)

7. Inspection of buildings or premises for the enforcement of fire, sanitary or building regulations

Inspection of this kind is done pursuant to the police power of the state.

8. When the warrantless search is conducted under exigent or emergency circumstances

Saturation drives can be done at times when there is a large scale mutiny and that in the course of hunting down the mutineers the authorities may conduct warrantless

searches on premises. Exceptional circumstances where evidence or objects illegally obtained may be admitted

in evidence 1. When there is failure to object to the introduction in evidence of the object illegally seized or confiscated.

2. If it is introduced in evidence as against the person who conducted the illegal search.

3. When such illegal search is conducted without the active intervention of the state. Objects illegally seized

Even if the search is illegal, if the items illegally seized are per se illegal, the same

should not be returned to the owner or possessor thereof, rather these items should be confiscated by the state and should be destroyed.

If the items are not per se illegal, the objects should be returned to the owner after the termination of the case.

Remedies to Illegal Search

If there is search conducted pursuant to search warrant, but no probable cause for the issuance of the warrant:

1. Filing a motion to quash search warrant 2. Filing a motion to suppress evidence

3. Filing an omnibus motion; which is one motion asking for different reliefs, for

quasal of the search warrant and/or suppression of evidence illegally obtained

Where to file such motion?

a. If no case has been filed, file the omnibus motion with the issuing court.

b. If a case has been filed, file the omnibus motion with the court to which the case is pending.

If the judge acted with grave abuse of discretion amounting to lack or excess in jurisdiction, for not conducting investigation or examination of the applicant in issuing the search warrant:

4. Filing a petition for certiorari; questioning the validity of the search warrant

If you failed to file a motion to quash the search warrant and/or motion to suppress evidence or if you failed to file for a petition for certiorari:

5. Objecting to the introduction in evidence of the object illegally seized

* Nuevas case

Failure to object to the validity of the arrest, would not amount to a waiver of the right to object to the introduction in evidence of the object illegally seized.

File a criminal case:

6. Violation of Domicile; if illegal search was conducted on the dwelling of the person 7. Illegal procurement of search warrant; if search is made pursuant to a warrant

illegally obtained