Rule 126 Search & Seizure

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Rule 126 Search and Seizure

Rule 126

SEARCH AND SEIZURE We will now go to Rule 126 – Search and Seizure. This is one of the most controversial rules. This is as confusing sometimes as the jurisprudence on warrantless arrests in Rule 113 – when may an arrest be made. Ito naman, Rule 126 – when may there be a valid search and seizure. Generally, peace officers are not allowed to conduct search and seizures if they have no search warrants. So this is again a review of Constitutional Law. Q: How do you define a search warrant? A: You have Section 1: SECTION 1. Search warrant defined. – A search warrant is an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a peace officer, commanding him to search for personal property described therein and bring it before the court. (1)

Now let’s go to Section 2 which is an entirely new provision: SEC. 2. Court where application for search warrant shall be filed.– An application for search warrant shall be filed with the following: (a) Any court within whose territorial jurisdiction a crime was committed. (b) For compelling reasons stated in the application, any court within the judicial region where the crime was committed if the place of the commission of the crime is known, or any court within the judicial region where the warrant shall be enforced. However, if the criminal action has already been filed, the application shall only be made in the court where the criminal action is pending. (n)

This provision was taken from the ruling of the SC in the leading case of MALALOAN vs. CA (232 SCRA 249 [1994]) which was reiterated in the case of PEOPLE vs. CA (291 SCRA 400). MALALOAN vs. COURT OF APPEALS 232 SCRA 249 Q: Can a search warrant issued by let’s say, a Davao City court be enforced in any other place outside of Davao City? A: YES, because a search warrant is merely a court process. It should not be confused with the correct venue for the filing of the case. But here, there is no case. We are only talking about search and seizure which is a mere court process. It has nothing to do with the filing of a criminal case. So you cannot limit the power of the search warrant only within the place where the crime was committed. Furthermore, search warrants are usually applied by law enforcement officers and it is too much to require peace officers to know in advance where is the probable venue of the criminal case. And based on the interim rules, there is a statement there that “xxx writs of certiorari, prohibition, habeas corpus, etc… of the RTC are enforceable only within the region. All other writs or processes are enforceable throughout the country.” And a search warrant fall under the general provision “all other writs xxx”. Of course, under the last paragraph, when there is already a case filed in court, then all search warrants in connection with a pending case can only be issued by the court where the case is pending. This was also taken in Malaloan. So that is the history of that provision. SEC. 3. Personal property to be seized. – A search warrant may be issued for the search and seizure of personal property: (a) Subject of the offense;

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(b) Stolen or embezzled and other proceeds, or fruits of the offense; or (c) Used or intended to be used as the means of committing an offense. (2a)

Take note that only personal property may be seized pursuant to a search warrant. lets us connect this with Section 4: SEC. 4. Requisites for issuing search warrant. – A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witness he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines. (3a) SEC. 5. Examination of complainant; record. – The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted. (4a)

Q: What are the requisites for the issuance of a search warrant? A: There are five (5) requisites for the issuance of a search warrant: 1. There must be an application which must be under oath; 2. There must be an affidavit in support of the application. The affidavit must be based on the personal knowledge of the affiant. That is why under Section 5, the judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and his witnesses to find out what the affiant really know what he is talking about. And everything must be reduced in writing. Now, you cannot apply here in Rule 126 the ruling in Lim vs. Felix that a judge can just look at the affidavits and determine whether to issue or not to issue a warrant of arrest. The ruling in Lim is based on the issuance of warrant of arrest after preliminary investigation. But we are talking here (Rule 126) of a search warrant. Here, it must be literal – there must really be a personal examination. 3. The search warrant must particularly describe the place or the person to be searched and the things to be seized; 4. There is probable cause for its issuance; Q: What do you mean by probable cause for the purpose of issuing a search warrant? A: Probable cause refers to such facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the item(s), article(s) or object(s) sought in connection with said offense or subject to seizure and destruction by law is in the place to be searched. (People vs. Encinada, October 2, 1997). In one case, the SC said that probable cause does not mean actual and positive cause, nor does it import absolute certainty. The requirement is less than certainty or proof, but more than suspicion or possibility. (Columbia Pictures vs. CA, August 26, 1996) 5. The search warrant shall be issued in connection with but one offense. So for example, I suspect that in your building, there are many objects there. There are unlicensed firearms. Meron din diyan shabu. And there are also smuggled goods. So three laws are violated – illegal possession of firearms, prohibited drugs, and customs law. So gawa tayo ng isang search warrant lang to seize those objects – shabu, firearms, smuggled goods – ah hindi puwede yan! because “one search warrant,

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one offense.” So there must be three different search warrants. Otherwise the search warrant is a general warrant which is prohibited under the Constitution. And one of the leading case regarding on that issue is the case of STONEHIILL vs. DIOKNO (20 SCRA 383) where a search warrant was issued against an American businessman who had a violation daw ng NIRC, RPC, etc. – gi-one time ba! And it was declared as null and void by the SC because there were so many items which were allegedly seized in connection with violation of different laws like NIRC, RPC, Central Bank Act. That is a general warrant. However, if we go by jurisprudence on general warrants, it is not really necessary that in order to be classified as a general warrant, it was issued for several offenses under different laws. For example in the case of BURGOS, SR. vs. CHIEF OF STAFF December 26, 1984 (134 SCRA) FACTS: A search warrant was issued to raid the editorial offices of Metropolitan Mail and We Forum (predecessor of Malaya) somewhere in Quezon City. What were going to be confiscated were materials, pamphlets, printing machines to stop the paper from publishing on the alleged violation of AntiSubversion Act (PD 885) during the time of Marcos. Burgos challenged the validity of the search warrant before the SC. ISSUE #1: According to Burgos, “You cannot seize those things because I am not the owner of those. I am just leasing them.” Can you only seize from somebody objects which he owned? HELD: NO, because there is no provision in the law to that effect. And under Section 3, you can seize “stolen or embezzled and other proceeds, or fruits of the offense.” For example, you can issue a warrant to seize stolen property from a thief or robber. Is the thief or robber the owner the owner of those stolen property? Of course not! So, there is no requirement that you can only seize it from its owner. Talo si Burgos sa issue na yan. ISSUE #2: According to Burgos, you cannot seize the printing equipments because under the law you can only seize personal property. These printing machines are all attached to the building and under the law on Property, when a machinery is attached to the immovable, it becomes immovable or real property also. And you cannot seize a real property. HELD: You are correct BUT there is an EXCEPTION – if the machine is attached by somebody who is not the owner of the building, then the machine is still a movable property. So, tinamaan na naman siya dun. ISSUE #3: Was the search warrant a general warrant? HELD: YES. What were seized were paraphernalia, pamphlets, printing machines, etc. which, according to the search warrant, were used in committing the crime of subversion under PD 885. So there is only one law violated unlike in the case of Stonehill na marami. But sabi ng SC, the search warrant is a general warrant. It is true that there is only one law violated but there are many sections in the Decree. You must allege the section violated, otherwise it becomes a general warrant. So if you just say that the search warrant is for violation of a law, then that is a general warrant. You must point out the section which was allegedly violated. So in the case of Burgos, the search warrant was declared as a general warrant inspite of the fact that only one law was violated. As a matter of fact, the concurring opinion of former Justice Abad Santos was clearer eh. He said, “In the case at bar nothing specifically subversive has been alleged; stated only is the claim that certain objects were being used as instruments and means of committing the offense of subversion punishable under P.D. No. 885, as amended. There is

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no mention of any specific provision of the decree. It would be legal heresy, of the highest order, to convict anybody of violating the decree without reference to any determinate provision thereof. “The obvious question is: Why were the documents, pamphlets, leaflets, books, etc. subversive? What did they contain to make them subversive? There is nothing in the applications nor in the warrants which answers the questions. I must, therefore, conclude that the warrants are general warrants which are obnoxious to the Constitution.” Let’s distinguish Burgos in the case of OLAES vs. PEOPLE 155 SCRA 486 [1987] FACTS: The caption of the search warrant states that it is in connection with “Violation of RA 6425, otherwise known as the Dangerous Drugs Acts of 1972.” The text of the warrant however says, “There is probable cause to believe that Olaes has in his possession and control and custody of marijuana dried stalks/leaves/seeds/cigarettes and other regulated/prohibited and exempt narcotics preparations which is the subject of the offense stated above.” Olaes argued that the warrant is a general warrant because it does not specifically point to certain provisions in the Dangerous Drugs Act. HELD: Olaes is correct BUT there is only once section in marijuana. So what are we talking? So, even if it is not mentioned, it is understood that it points to marijuana. PEOPLE vs. DICHOSO 223 SCRA 174 FACTS: A search warrant was issued for the seizure at Dichoso residence of shabu, marijuana, paraphernalia, etc. Dichoso argued that his illegal possession of shabu, marijuana and paraphernalia are covered by different articles and sections of the Dangerous Drugs Act. Hence, the warrant is a general warrant. HELD: Teka muna! Marijuana is regulated, shabu is also prohibited. But they both of them belong to one family – dangerous drugs. So magkapatid man yan! Pareho na rin iyan! “The Dangerous Drugs Act of 1972 is a special law that deals specifically with dangerous drugs which are subsumed into "prohibited" and "regulated" drugs and defines and penalizes categories of offenses which are closely related or which belong to the same class of species. Accordingly, one (1) search warrant may thus be validly issued for the said violations of the Dangerous Drugs Act.” PRUDENTE vs. DAYRIT 180 SCRA 69 (1989) FACTS: The application for search warrant was captioned: “For Violation of PD No. 1866 (Illegal Possession of Firearms, ETC.)” And what were taken were firearms and explosives. The validity of the search warrant was questioned on the ground that there are two different violations – firearms and explosives. HELD: “Such illegal possession of items destructive of life and property are related offenses or belong to the same species, as to be subsumed within the category of illegal possession of firearms, etc. under P.D. No. 1866.” So the word “etcetera” covers them all. Another interesting case is the 1988 case of Twentieth Century Fox vs. CA (164 SCRA 655), reiterated in Columbia Pictures vs. Flores (June 29, 1993). It refers to a violation of PD 49 (otherwise known as the Decree on the Protection of Intellectual Property) on antifilm piracy during the height of betamax tapes. TWENTIETH CENTURY FOX vs. COURT OF APPEALS

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164 SCRA 655 FACTS: A search warrant was issued for alleged violation of Anti-Piracy Law. The things to be seized were video tapes, television sets, video cassette recorders, rewinders, tape cleaners, and almost everything. HELD: The warrant is general. It is void. Why? Of course, if you seize the tapes, puwede pa yan. But why will you seize television sets, video cassette recorders, rewinders, etc? Are they illegal objects? “Television sets, video cassette recorders, rewinders and tape cleaners are articles which can be found in a video tape store engaged in the legitimate business of lending or renting out betamax tapes. In short, these articles and appliances are generally connected with, or related to a legitimate business not necessarily involving piracy of intellectual property or infringement of copyright laws. Hence, including these articles without specification and/or particularity that they were really instruments in violating an Anti-Piracy law makes the search warrant too general which could result in the confiscation of all items found in any video store.” PEOPLE vs. COURT OF APPEALS 216 SCRA 101 FACTS: The body of the search warrant stated was that the items were “Stolen or Embezzled and proceeds or fruits of the offense, used or intended to be used as the means of committing the offense.” So, practically, the policeman copied the whole of Section 3. HELD: The warrant is void. “The warrant was a scatter-shot warrant that could refer "to robbery, theft, qualified theft or estafa." On this score alone, the search warrant was totally null and void.” SEC. 6. Issuance and form of search warrant. – If the judge is satisfied of the existence of facts upon which the application is based or that there is probable cause to believe that they exist, he shall issue the warrant, which must be substantially in the form prescribed by these Rules. (5a) SEC. 7. Right to break door or window to effect search. – The officer, if refused admittance to the place of directed search after giving notice of his purpose and authority, may break open any outer or inner door or window of a house or any part of a house or anything therein to execute the warrant to liberate himself or any person lawfully aiding him when unlawfully detained therein. SEC. 8. Search of house, room, or premises to be made in presence of two witnesses. – No search of a house, room, or any other premises shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality. (7a)

Remember there is a similar provision in the RPC (violation of domicile). Even if there is a search warrant, you cannot search the house without the presence of the owner or the occupant of the house. Or if nobody is around, the searching officer must secure 2 witnesses, 2 members of the neighborhood. They cannot search on their own without any witnesses. Q: What is the reason? A: In order that the searching party will not just get anything which is not the subject of the warrant. This usually happens. You supposed to search for marijuana, but you brought along the refrigerator. One reason also is to prevent the planting of evidence. One interesting case here is

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QUINTERO vs. NBI 162 SCRA 467 FACTS: NBI raiders went to search a house by virtue of a search warrant. What the NBI did, because there were so many rooms, was they conducted the search simultaneously. One NBI searching the room and the other in another room. HELD: That type or procedure is wrong because how can the witnesses be present everytime the search is made when one is in the other room and the others in another room. “Such a procedure, wherein members of a raiding party can roam around the raided premises unaccompanied by any witness, as the only witnesses available as prescribed by law are made to witness a search conducted by the other members of the raiding party in another part of the house, is held to be violative of both the spirit and the letter of the law, which provides that no search of a house, room, or any other premises shall be made except in the presence of at least one competent witness, resident of the neighborhood.” SEC. 9. Time of making search. – The warrant must direct that it be served in the day time, unless the affidavit asserts that the property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time of the day or night. (8)

Now, let’s go to a very important provision – Section 10: SEC. 10. Validity of search warrant. – A search warrant shall be valid for ten (10) days from its date. Thereafter, it shall be void. (9a)

A search warrant has a lifetime only of ten (10) days. Compare that with the lifetime of a warrant of arrest under Section 4 of Rule 113. Under Rule 113, the 10-day period does not mean to say that the warrant of arrest is only good for 10 days. It is only a directive that you will enforce it within 10 days. If you cannot arrest, di bayaan mo! Keep it and try to arrest the accused in the future. But a search warrant, iba – talagang 10 days lang. Thereafter, it shall be void. Does this mean to say that you can use a search warrant everyday for 10 days? NO. You can use it once for 10 days. But it does not mean you can use it everyday or for the next 10 days. One interesting case on the issue of the 10-day period on search warrants is the 1996 case of MUSTANG LUMBER, INC. vs. COURT OF APPEALS 257 SCRA 430 [1996] FACTS: A search warrant was secured on a certain date and enforced the same on the same day. But the raiding team could not finish the search in one day. So they postponed, “bukas naman ituloy.” ISSUE: Can you still continue tomorrow? Or must you finish everything today? HELD: Under the Rules of Court, a search warrant has a lifetime of ten days. Hence, it could be served at any time within the said period, and if its object or purpose cannot be accomplished in one day, the same may be continued the following day or days until completed. Thus, when the search under a warrant on one day was interrupted, it may be continued under the same warrant the following day, provided it is still within the ten-day period.

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Yaan! So that is the correct interpretation of the 10-day period. Hindi naman kailangan na you have to finish everything on the same day. You may still continue tomorrow but be sure that tomorrow is still within the 10-day period. Suppose you cannot finish naman tomorrow? Continue on the next day? Puydi! – tuloy! basta within the 10-day period. SEC. 11. Receipt for the property seized.– The officer seizing the property under the warrant must give a detailed receipt for the same to the lawful occupant of the premises in whose presence the search and seizure were made, or in the absence of such occupant, must, in the presence of at least two witnesses of sufficient age and discretion residing in the same locality, leave a receipt in the place in which he found the seized property. (10a)

SEC. 12. Delivery of property and inventory thereof to court; return and proceedings thereon. – (a) The officer must forthwith deliver the property seized to the judge who issued the warrant, together with a true inventory thereof duly verified under oath. (b) Ten (10) days after issuance of the search warrant, the issuing judge shall ascertain if the return has been made, and if none, shall summon the person to whom the warrant was issued and require him to explain why no return was made. If the return has been made, the judge shall ascertain whether section 11 of this Rule has been complied with and shall require that the property seized be delivered to him. The judge shall see to it that subsection (a) hereof has been complied with. (c) The return on the search warrant shall be filed and kept by the custodian of the log book on search warrants who shall enter therein the date of the return, the result, and other actions of the judge. A violation of this section shall constitute contempt of court. (11a)

Q: After the search warrant has been implemented, what happens next? A: Under Section 11, the officer must give a receipt to the owner or person from whom he took it or to the witness. And under Section 12 [a], the officer must forthwith deliver the properties seized to the judge who issued the warrant together with a true inventory thereof duly verified under oath. So, receipt and then deliver. Now, there are two new paragraphs, inserted in Section 12—paragraphs [b] and [c] – that there is a deadline for the officer to submit this report and to make a return of the warrant. There is a deadline for him to do that. And the last portion of Section 12 says: “A violation of this section shall constitute contempt of court.”

I do not know the reason behind this amendment. I presume it was inserted by the SC maybe because in other places after the search warrant has been implemented, the court never knew what happened to the warrant, all the things were appropriated by the officer, they were not turned over to the court. Maybe because of such experience, the SC decided to give a deadline for the turnover of all the properties seized and for the report. That’s only my conjecture, ‘noh? Let’s go to some interesting cases regarding these personal properties subject of a search warrant. WASHINGTON DISTILLERS INC. vs. COURT OF APPEALS 260 SCRA 821 [1996]

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FACTS: This involves a controversy between Washington Distillers and La Tondeña Distillers. Obviously, their products are spirits and wine. According to La Tondeña Distillers, the bottles that Washington Distillers uses for their products are actually La Tondeña bottles. They buy empty bottles, lilinisin nila, and they use them to serve their products. Nagreklamo ang La Tondeña because those are their bottles, of course. One of the issues here is whether you can still claim the bottles, binayaran na yan eh. When the buyer bought the product, he already paid for the bottle, so why are you complaining? So that was the issue ‘noh? So La Tondeña decided to apply for a search warrant to raid the premises of Washington Distillers to recover all these bottles. And there was really a raid and so many bottles where taken from the premises of Washington Distillers. All those bottles were turned over to La Tondeña. Now, Washington Distillers questioned the act of turning over the bottles to La Tondeña. Of course, the issue is ownership. Admittedly, these are your bottles but when the customers bought those bottles and the contents you can no longer claim ownership over those bottles. More or less that is the issue. So they were quarreling over the issue of ownership. Now, Washington Distillers secured the services of Estelito Mendoza on this issue. Medoza questioned the action of La Tondeña in trying to get the bottles. HELD: Estelito Mendoza was sustained in the SC. Why? Because if we are quarreling about the issue of ownership of the bottles, then there should be another case for replevin. Or, the bottles are in the possession of the government, the La Tondeña should file action for interpleader to determine who really owns the bottles. But you cannot use a mere search warrant to resolve the issue of ownership. A search warrant is only to get the property, but it does not have the same effect as a writ of replevin. “A search warrant proceeding is not a criminal action, much less a civil action. It is a special criminal process, the order of issuance of which cannot and does not adjudicate the permanent status or character of the seized property. It cannot therefore be resorted to, as was done here by La Tondeña Distillers, as a means of acquiring property or of settling a dispute over the same. The proper remedy is for private respondent or for the Government itself, assuming the role of a stakeholder, to bring the appropriate action.” So that is a very nice case, ‘noh? There is also another interesting issue in the case of Washington Distillers which was also raised by Mendoza: WASHINGTON DISTILLERS INC. vs. CA (supra) FACTS: According to Mendoza, the application for search warrant is void or it should have been rejected because when the peace officer applied for the search warrant, there was no certification on non-forum shopping. Kaya sabi ni Mendoza, “How do we know? You might have also applied for search warrant in another court. So, you must certify that you have not filed any other application for search warrant before any other court.” That is a very unique argument. Sabi ng other party, “No, hindi yan applicable. Hindi man kaso ito. I’m not filing a complaint or a petition where I will include a certification on non-forum shopping. This is just an application for a search warrant.” ISSUE: Does the rule on non-forum shopping certification also apply to search warrant? HELD: YES, because does the law requires parties to certify under oath that they have not “theretofore commenced any other action or proceeding involving the same issues in the Supreme Court, the Court of Appeals, or any other tribunal or agency” and that to the best of their knowledge “no such action or proceeding is pending” in said courts or agencies. Di ba that’s the language of forum shopping? “Indeed, the policy against multiple court proceedings clearly applies to

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applications for search warrants. If an application for search warrant can be filed even where there are other applications pending or denied in other courts, the situation would become intolerable.” And what is the certification – ‘that I have not filed any other action or proceeding’. YOOON! ‘PROCEEDING’! An application for a search warrant is a court proceeding which is covered by the rule on forum shopping. So that was the ruling of the SC in this case. That’s why you will see how analytical and brilliant Estelito Mendoza is. Makita niya ang mga ito. In other words, he can really detect these points which normally other lawyers will not be able to detect. Magaling man talaga yan siya ba. Nasira lang yan siya sa impeachment trial. He’s unpopular…pero he’s really very good. Compared to the prosecution panel, na outclass talaga yun. Walang laban yun. When I read it, grabeh talaga itong argument niya kung saan niya pinulot ito. And he has been sustained in the SC. Alright. Did I tell you about somebody from Davao who wanted to get the services of Mendoza? Wala, ayaw tanggapin. If not for the recommendation of one of his closest friends in Davao. Sabi niya, we do not accept for the moment because of the impeachment trial, we’re all busy. He’s busy. “I’m paying!” How much? “Two million? Three Million? I’ll pay na!” No, wala, ayaw tumanggap ni Mendoza. That’s very small to him. Alright. Let’s go now to the most controversial provision – Section 13 – The issue on Warrantless Search and Seizure. SEC. 13. Search incident to lawful arrest. – A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant. (12a)

Q: When may a search and seizure be effected without a search warrant? A: Section 13 - when it is merely incidental to a lawful arrest. A person lawfully arrested may be searched for dangerous weapons or anything which may be used or constitute proof in the commission of an offense without a search warrant. This is because it’s absurd, ‘noh? if I’m arresting a criminal by virtue of a warrant, or the arrest is valid with no warrant (because that would be valid arrest without a warrant) he might be holding a gun or a knife. And if you do not search him, he might stab the arresting officer. And it would be absurd to say, “ok, you can arrest me because of your warrant of arrest, but you cannot search me because you have no search warrant.” So you ask the policeman to go back to court to get the search warrant. There’s something wrong there. Yung search, dala na yun! When the arrest is valid or lawful, automatically the search becomes also lawful. That is why in most cases involving search and seizures, the target of the person against whom something is taken is the validity of the arrest. Because once he can prove that the arrest is not valid, then automatically the accompanying search is not also valid. Because, no valid arrest means no valid search and seizure. That is the pattern. There are so many cases here. I’m just choosing the interesting ones. UY KHEY TENG vs. VILLAREAL 42 PHIL 886 FACTS: This is a very old case, already asked in the bar. There was a search warrant issued by the court to search a building somewhere in chinatown in Binondo, Manila on the ground that there was opium or other drugs in that house. So the raiding party went to the house and announced to the owner that they have a search warrant. So the owner had no choice but to allow the search. They searched the premises, they did not find any opium. Wala! But, instead, what they found were firearms – unlicensed firearms. And because they

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discovered the presence of these firearms, they arrested the accused for illegal possession of firearms and seized all his firearms. There were two questions which were asked in the bar— ISSUE #1: Can the peace officers seized the firearms by virtue of the search warrant? HELD: NO, Because a search warrant can only issue for one offense. The offense was possession of opium or drugs. It cannot be used to seize firearms. So the firearms cannot be seized by virtue of the warrant. ISSUE #2: Would you say therefore that the seizure of these firearms is illegal? HELD: NO. It is valid because in the course of their search for opium, they discovered another crime – illegal possession of firearms. And since they discovered the commission of another crime, they have the authority THEN AND THERE to arrest the owner because the crime is being committed in their presence. So there is a valid warrantless arrest. And since there is a valid warrantless arrest, automatically there is also a valid warrantless seizure. So, dun nahuli. What gives the peace officers the authority is not the search warrant, but the fact that it becomes merely incidental to the arrest of the accused. Let’s go now to other cases. We are concentrating on the question of whether there is a valid seizure. Whether you can say that the seizure is incidental to an arrest. PEOPLE vs. CENDAÑA October 17, 1990 FACTS: Somebody was killed and the accused was arrested the following day. He was arrested on the basis of information obtained by police officers from unnamed sources. Of course, when they arrested him inside his house nakita nila yung baril talaga doon. There was really a gun which they believed to be the very gun used to kill the victim. So they seized it. ISSUE: Was there a valid seizure? Walang warrant, eh. We go back, we have to determine whether there was also a valid arrest. Remember wala din silang warrant eh, when they arrested him. You go back to Rule 113. Is there a valid warrantless arrest? HELD: No valid arrest. “Accused-appellant was arrested one day after the killing of the victim and only on the basis of information obtained by the police officers from unnamed sources. These abovementioned circumstances clearly belie a lawful warrantless arrest.” It is not sanctioned by Rule 113. So kapag bagsak ang arrest, bagsak din automatically ang seizure. “Considering that the arrest of accused-appellant herein was unlawful, any search conducted on his person or place of arrest which is an incident thereof, was also unlawful. Perforce, any evidence recovered during the unlawful search, being made without a warrant, becomes inadmissible in evidence against accused-appellant and the shotgun which was allegedly the fatal weapon cannot be presented against him.” PEOPLE vs. CATAN 205 SCRA 235 FACTS: Rogelio Catan was entrapped by two NARCOM poseur-buyers in a buy-bust operation right inside Catan’ s house. The NARCOM agents pretended to be addicts. Pagbigay, HULI! After the arrest, the NARCOM agents searched the premises and recovered more marijuana. Catan asserted that the search of his premises was illegal.

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If you look at the law, what can you search? The search is valid, di ba? He may be search for dangerous weapons or anything which may constitute proof. What was search was the premises. Dun nakita yung maraming marijuana, eh. What was taken from him, maliit lang. Dun siya tinamaan ng illegal possession, because of the quantity. So Catan was questioning the search because you did not search my body! You searched my premises. HELD: VALID! When you say search of the person, it INCLUDES the immediate premises because for all you know, walang baril, pero yung baril pala nasa drawer niya at gagamitin sa iyo. So it includes the surrounding premises. That is covered by the incidental search. Catan is wrong. “Appellant was arrested in flagrante delicto in the act of selling and delivering marijuana to the poseur-buyers. His case therefore falls under the category of a valid warrantless arrest. The subsequent search of his house which immediately followed yielding other incriminating evidence was a search contemporaneously made and as an incident to a valid warrantless arrest in the immediate vicinity where the arrest was made. That is a recognized exception to the general rule that any search and seizure must be supported by a valid warrant.” That is the general rule. When you say incidental search, it does not only refer to kapkapan mo yung tao. Pati immediate vicinity is included because remember, he may have dangerous weapons in his body which he can use against you. But the dangerous weapon may not be in his body but within the immediate premises. That is what the SC said. The same rule or pattern emerged in the case of: PEOPLE vs. LI WAY CHUNG 214 SCRA 431 [1992] FACTS: Search without warrant of the appellant’s dwelling. Appellant’s dwelling is just a single-room unit, which is around 9 square meters. Maliit lang yung kwarto ng accused. They searched the room and found out evidence. HELD: “The search without a warrant of appellant’s dwelling, a single room unit with a total area of 9 sq. m. was a valid as an incident of a lawful warrantless arrest. The search was conducted in a confined place within appellant’s immediate control, an area where he might gain possession of a weapon.” PEOPLE vs. GERENTE 219 SCRA 756 FACTS: A witness testified that at 7 o’clock in the morning, she saw three persons started drinking liquor and smoking marijuana and overheard them killing Clarito Blace. Narinig lang niya. Nine hours after, or at 4 P.M., the police received a report of a mauling incident. So a police investigator went to the hospital where the victim was brought and was told that the victim died on arrival. Patay na! Police investigator and his companions proceeded to the scene of the mauling and there they were informed by the witness that she saw the killing and pointed to Gabriel Gerente, as one of the three men who killed Blace. The policemen went to the house of Gerente who was then sleeping, asked the latter to come out, and when he did, he was placed under arrest. He was frisked, the police finding in his pocket a coin purse containing dried leaves wrapped in a foil. The dried leaves turned out to be marijuana after laboratory examination. So he was arrested for the killing, ang nakuha sa kanya is a coin purse containing marijuana. So dalawa na kaso niya. ISSUE #1: Was the warrantless arrest of Gerente lawful?

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HELD: YES! The eye witness Edna Edwina Reyes reported the happening to the policemen and pin-pointed her neighbor Gerente as one of the killers. Since the policemen have personal knowledge (YUN!) of the violent death of Blace, and of facts indicating that Gerente and two others are guilty. We’re going back to Rule 113 – what do you mean by personal knowledge or probable cause…they could lawfully arrest Gerente without a warrant. If they had postponed his arrest until they could obtain a warrant, he would have fled like his companions na nakasibat na. ISSUE #2: May the marijuana be validly used as evidence in a prosecution for illegal possession of dangerous drugs? Was the marijuana validly seized? HELD: YES. The search conducted on Gerente’s person was likewise lawful because it was made as an incident to a valid arrest. It was in accordance with Section 12, Rule 126, citing the case of Adams vs. Williams, an American case: “It was ruled that the individual being arrested may be frisked for concealed weapons, that may be used against the arresting officer, and all unlawful articles found in his person or within his immediate control may be seized.” PEOPLE vs. QUIZON 256 SCRA 325 [1996] NOTE: The guideline in order not to be lost is placed here nicely. The guideline given by the SC is this—it is wise to remember this, because as we said, ang premise natin only the arrest eh. HELD: “It is beyond cavil that a lawful arrest must precede the search of a person and his belongings. Where a search first undertaken, then an arrest effected based on evidence produced by the search, both such search and arrest would be unlawful, for being contrary to law.” You get that? Unahin muna ang arrest—lawful—and then search. If you will search, and in the process of searching you discover something and you will arrest him… aba, hindi puwede because how can you say that the search was incidental to a lawful arrest eh nauna yung search kaysa arrest? So, unlawful pareho. The arrest must precede the search, not the search preceding the arrest. Do not search him in the hope that you will discover something unlawful.

INSTANCES OF VALID WARRANTLESS SEARCH Q: Suppose you will be asked this question: What are the instances under the law when there could be a valid seizure without a search warrant? What are the instances when there could be a valid warrantless search and seizure? A: The following are the instances: 1. 2. 3. 4. 5. 6. 7.

When the search is merely incidental to a valid arrest (Section 13); Stop And Frisk Rule; Search of moving vehicles; Evidence in plain view; Customs searches; Consented search; Exigent searches or searches during emergency circumstances STOP AND FRISK RULE

The Stop and Frisk Rule was taken by the SC from a leading American case, TERRY VS. STATE OF OHIO (392 US 1, 20 L Ed 2d 889, 88 S Ct 1868) cited in the case of PEOPLE VS. MALMSTEDT (198 SCRA 401) and POSADAS VS. CA (180 SCRA 283)

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In the 1995 or 1996 bar, the very first question in Remedial Law was: Explain what is meant by the Terry Search. Ay, maraming tinamaan dun. Ano ba ito? How do you explain the process of Stop and Frisk which is one of the instances where the warrantless search may be allowed? If you do not know your constitutional law, patay ka! Now, ano ba itong Terry Search? Alam natin yung Stop and Frisk. There are many factors there to consider. First, that is normally applied to peace officers. When they see someone acting suspiciously at the wrong time and at the wrong place. For example, you are patrolling in the middle of the night then you see somebody in the dark. That will invite your attention. And then, the Terry Search says you must ask questions first – What is your name? Why are you here in the middle of the night? Hindi ka puwedeng mag-kapkap kaagad. Magtanong ka muna. Find out whether you are satisfied with his answers. Now, if somehow you doubt his answer—like if he is wearing a big jacket and trying to hide something—ayan na! You can say “I will frisk you”. The guideline here is the appearance of the person, the time, the occasion of the search. And you have to limit first your observation on the outer garments. But you have to consider also, according to the SC, the experience of the peace officer. Because peace officer, somehow, they have sixth sense eh when it comes to shady characters. These are the factors which should be taken into consideration, then stop and frisk. Kapkapan mo. Now suppose in doing that, firearm is taken, or anything, pwede. He cannot say inadmissible. Under the second exception ito (Stop and Frisk). Now we’ll illustrate some cases to demonstrate how this has been applied. Let us start with a case which originated in Davao. POSADAS vs. COURT OF APPEALS 180 SCRA 283 NOTE: The search was conducted in Magallanes Street, sa may RMC. FACTS: At about 10 o’clock in the morning, two policemen were conducting a surveillance. Obviously, they were expecting something to happen, or they were asked to look for somebody. They spotted Posadas carrying a buri bag. They notice him to be acting suspiciously. (What do you mean by acting suspiciously? Let us leave that to the judgment of the peace officer.) Both policemen approached Posadas and identified themselves. But when they introduced themselves, Posadas attempted to flee. “There is something wrong here. Nagpakilala tayong pulis, tumakbo siya. Why is he running?” So, they caught him. A check of the buri bag yielded one caliber .38 Smith & Wesson revolver, 2 teargas grenades and live ammunitions of .32 caliber gun. Posadas was not able to show the necessary license or authority to possess firearms and ammunitions. So he was prosecuted for illegal possession of firearms and ammunitions. ISSUE: Was there a valid search and seizure to make a confiscated items admissible evidence? HELD: YES. “There was a valid search and seizure. At the time the peace officers identified themselves and apprehended Posadas as he attempted to flee, they did not know what he had committed, or was actually committing illegal possession of firearms. They did not know that! They just went there and introduced themselves. They just suspected that he was hiding something in the buri bag. They did not know what its contents were. The said circumstances did not justify the arrest without the warrant.” – klaro yan – because is there a crime if you walk around with a buri bag? I don’t think there is a crime, ‘noh?) “HOWEVER—[yaaan!]—the search, in the case at bar, is reasonable considering that it was effected on the basis of probable cause.” [So, balik na naman tayo sa probable cause.] The probable cause is that when Posadas acted suspiciously and attempted to flee with the buri bag, there was a probable cause

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that he was concealing something illegal in the bag. It was the right and duty of the police officers to inspect the same, “Why are you running? We’re just introducing ourselves, ba’t tumakbo ka?” Ayan. It will arouse suspicion. “It is too much indeed to require the police officers to search the bag in the possession of Posadas only after they shall have obtained a search warrant for the purpose. Such an exercise may prove to be useless, futile and much too late.” So you can see the pattern. Alam niyo ang mga kasong ganito—warrantless searches, warrantless arrests under Rule 113—ang pag-asa mo lang dito read as many cases as possible. Because if you will be questioned by the examiner, definitely it will be patterned after one case. If you are familiar with the cases, madaling makilala. It would be easy. As what happened last year, there was a question in Constitutional Law on stop and frisk. Sabi nila, “Uy! [si Judee na sad!] Nabasa ko man ang kasong ito.” And it was really the same case. The same facts, eh. Sa sementeryo, inaresto, mapula ang mata, parang hubog maglakad…meaning, he was suspected to be an addict. The same! We’ll touch the case later. I think that’s the case of Manalili vs Court of Appeals. Alright. We’ll compare this case of Posadas with a similar case – the case of PEOPLE vs. MENGOTE 210 SCRA 174 FACTS: Rogelio Mengote was arrested by policemen because he was acting suspiciously. Ayan na naman, pareho sa Posadas eh. He was looking from side to side while holding his abdomen. When searched, he was found with a .38 revolver with six live bullets. The incident occurred before noon time – so tanghali! – at the corner of Juan Luna and North Bay Boulevard, Tondo, Manila. Almost the same with Posadas—ten o’clock in the morning, before noon. But how come there is a difference in the ruling? NOTE: Take note ha, in the case of Posadas, tumakbo. In Mengote, hindi man tumakbo. Basta linapitan siya, nakapkapan ng baril. Mengote was convicted of illegal possession of firearms. He was convicted. Mengote contends that the weapon was not admissible evidence because it was illegally seized, and therefore, the fruit of a poisonous tree. Yun man talaga depensa mo, wala mang iba. The prosecution insists that the revolver was validly received in evidence because its seizure was incidental to an arrest that was doubtless lawful, even admittedly without warrant. ISSUE: Is the evidence inadmissible? HELD: YES. “The evidence is inadmissible. When Mengote was arrested, he was not committing any offense.” The question is, What offense? “What offense could possibly have been suggested by a person ‘looking from side to side’ and ‘holding his abdomen’ and in a place not exactly forsaken? These are certainly not sinister acts. And the setting of the arrest made them less so, if at all.” Eto! Kaya nasabi ko, in determining stop and frisk, you have to look at the time, the place. “It might have been different if Mengote had been apprehended at an ungodly hour and in a place where he had no reason to be, like a darkened alley at 3 o'clock in the morning. But he was arrested at 11:30 in the morning and in a crowded street shortly after alighting from a passenger jeep with his companion. He was not skulking in the shadows but walking in the clear light of day. There was nothing clandestine about his being on that street at that busy hour in the blaze of the noonday sun.” “It would be a sad day, indeed, if any person could be summarily arrested and searched just because he is holding his abdomen, even if it be possibly because of a stomach-ache, or if a peace officer-could clamp handcuffs on any person with a shifty look on suspicion that he may have committed a criminal act or is actually committing or attempting it. This simply cannot be done in a free

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society. This is not a police state where order is exalted over liberty or, worse, personal malice on the part of the arresting officer may be justified in the name of security.” So even the SC gave a guideline. Kung alas tres ng umaga, madilim…ahh, puydi! PEOPLE vs. EVARISTO December 11, 1992 FACTS: There was somebody who fired a pistol. So, there were 2 policemen who started chasing him. And when they chased, they found 2 people in the corner and they started asking these 2 people. Now, one of the 2 policemen saw that the guy’s side is bulging. When they searched him, they found a gun. So he was arrested. ISSUE: Whether there was a valid warrantless search was valid. HELD: When the police officers chased after somebody who fired a pistol and they came upon Evaristo, the visual observation that his side is bulging along with the earlier report of gunfire, as well as the peace officer's professional instincts, are more than sufficient to pass the test of the Rules. Consequently, under the facts, the firearms taken from Evaristo can be said to have been seized incidental to a lawful and valid arrest. So, that is the doctrine of Stop and Frisk.

MALACAT vs. COURT OF APPEALS, December 12, 1997 vis-à-vis MANALILI vs. COURT OF APPEALS, October 9, 1997 HELD: “Rejecting his appeal, this Court held that the search was akin to a stop-and-frisk. The police had sufficient reason to stop Manalili, who "had red eyes and was wobbling like a drunk . . . [in] a popular hangout of drug addicts," in order to investigate if he was actually "high" on drugs. The situation verily called for a stop-and-frisk.” MALACAT vs. COURT OF APPEALS G.R. No. 123595; December 12, 1997 ISSUE: Distinguish stop and frisk from search incidental to a lawful arrest. HELD: “We note that the trial court confused the concepts of a "stop-andfrisk" and of a search incidental to a lawful arrest. These two types of warrantless searches differ in terms of the requisite quantum of proof before they may be validly effected and in their allowable scope. “In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the incidental search, the legality of the arrest is questioned in a large majority of these cases, e.g., whether an arrest was merely used as a pretext for conducting a search. In this instance, the law requires that there first be a lawful arrest before a search can be made — the process cannot be reversed. At bottom, assuming a valid arrest, the arresting officer may search the person of the arrestee and the area within which the latter may reach for a weapon or for evidence to destroy, and seize any money or property found which was used in the commission of the crime, or the fruit of the crime, or that which may be used as evidence, or which might furnish the arrestee with the means of escaping or committing violence. “While probable cause is not required to conduct a "stop and frisk," it nevertheless holds that mere suspicion or a hunch will not validate a "stop and frisk." A genuine reason must exist, in light of the police officer's experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him. Finally, a "stop-and-frisk" serves a two-fold

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interest: (1) the general interest of effective crime prevention and detection, which underlies the recognition that a police officer may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause; and (2) the more pressing interest of safety and self-preservation which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used against the police officer.” SEARCH OF MOVING VEHICLES Another instance of a valid warrantless search is the search of moving vehicles. Because if the vehicle is moving or mobile, and it contains illegal/prohibited objects that is being transported and nandiyan na ang vehicle, it would be absurd if you apply first for a search warrant because makakalayo na yung vehicle. Now, do you remember the most controversial case of VALMONTE vs. DE VILLA? This is where the SC sustained the constitutionality of checkpoints. But the guidelines here is that the checkpoints has authority to stop the car and see anything without opening any compartments of it. So, the inspection is limited to a visual or ocular inspection only. But if the checkpoints received a tip that there is a passenger, then it is allowed. PEOPLE vs. MALMSTEDT 198 SCRA 401 FACTS: This happened in the Mountain Province involving a Caucasian. The NARCOM agents received a tip that a bus will pass from Mt. Province and that there is a Caucasian passenger bringing with him prohibited drugs. So, they stopped the bus and found a Caucasian inside. So they approached him and asked him: “What is your name? Can we see your passport?” The Caucasian refused. Then during the inspection, the NARCOM agents opened his bag and found hashish. The same was found in the teddy bear. So, he was charged with illegal possession of prohibited drugs. Malmstedt questioned the validity of the search. HELD: The warrantless search was valid. “The receipt of information by NARCOM that a Caucasian coming from Sagada had prohibited drugs in his possession, plus the suspicious failure of Malmstedt to produce his passport, taken together as a whole, led the NARCOM officers to reasonably believe that he was trying to hide something illegal from the authorities. From these circumstances arose a probable cause which justified the warrantless search that was made on the personal effects of Malmstedt. In other words, the acts of the NARCOM officers in requiring him to open his pouch bag and in opening one of the wrapped objects found inside said bag (which was discovered to contain hashish) as well as the two (2) travelling bags containing two (2) teddy bears with hashish stuffed inside them, were prompted by Malmstedt’s own attempt to hide his identity by refusing to present his passport, and by the information received by the NARCOM that a Caucasian coming from Sagada had prohibited drugs in his possession. To deprive the NARCOM agents of the ability and facility to act accordingly, including, to search even without warrant, in the light of such circumstances, would be to sanction impotence and ineffectiveness in law enforcement, to the detriment of society.” The case of MALMSTEDT was repeated in the case of PEOPLE vs. BAGISTA 214 SCRA 53 FACTS: This also happened in Mt. Province. The NARCOM received a tip that a woman riding in a bus from Baguio City has marijuana. She was described as

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having curly hair and short. So, when the bus passed through the checkpoint, they saw the woman which fit the description. The agent searched her and in her bag was found marijuana. The bag and its contents were seized. ISSUE: Was there a valid search? HELD: The search was valid in accordance with the case of Malmstedt. “With regard to the search of moving vehicles, this had been justified on the ground that the mobility of motor vehicles makes it possible for the vehicle to be searched to move out of the locality or jurisdiction in which the warrant must be sought.” “This in no way, however, gives the police officers unlimited discretion to conduct warrantless searches of automobiles in the absence of probable cause. When a vehicle is stopped and subjected to an extensive search, such a warrantless search has been held to be valid only as long as the officers conducting the search have reasonable or probable cause to believe before the search that they will find the instrumentality or evidence pertaining to a crime, in the vehicle to be searched.” “The NARCOM officers in the case at bar had probable cause to stop and search all vehicles coming from the north at Acop, Tublay, Benguet in view of the confidential information they received from their regular informant that a woman having the same appearance as that of accused-appellant would be bringing marijuana from up north. They likewise have probable cause to search accusedappellant's belongings since she fits the description given by the NARCOM informant.” Let’s try to compare the case of Bagista with the earlier case of AMINUDIN. It has a similar set of facts but this time, it involves marine vessel. PEOPLE vs. AMINUDIN 163 SCRA 402 FACTS: The NARCOM agenst in Iloilo City received a report that a vessel coming from Mindanao has Mr. Aminudin carrying with him marijuana. So, the NARCOM agents waited at the port for the vessel to arrive. So they were looking for the passenger and then they saw a man which fit the description of the suspect. They frisked him and when the maleta was opened, it contained prohibited drugs. Subsequently, the man was arrested. HELD: There was no valid search because the NARCOM has enough time to secure a search warrant. There are still 2 days before the vessel will arrive. They have all the time. In the Malmstedt and Bagista, it was in the bus and may pass by within 30 minutes or 1 hour. Another difference is this: if you are the suspect riding in a bus and you knew that there is a checkpoint ahead, you can always ask the bus to stop and then baba ka. But in the case of ship, you cannot do that! Pagnaka-hearing ka na may checkpoint sa pier, will you ask the vessel to stop and then talon ka dagat? That is absurd ‘no! So when it comes to buses or other by-land vehicles, mas madaling makataas ang suspect. Unlike sa marine vessel. Another case where the SC laid down the rule reiterating the case of Valmonte is the 1993 case of: PEOPLE vs. EXALA 221 SCRA 494 HELD: But visual situation only and if there is an information to excite that something is wrong, then you can effect a search without warrant. This is the exception: if the vehicle is stopped and extensively searched, it is because of

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some probable cause which justifies a reasonable belief that either a motorist of the content of the vehicle is an instrument in the commission of an offense. The presumption stands that they are regularly performing their duties. EVIDENCE IN PLAIN VIEW Another instance of a warrantless search is the search of evidence in plain view know as the plain view doctrine – when you stumble by accident across an object which is prohibited or illegal. It would be absurd that you still have to require a search warrant, when it is actually there in front of you. This doctrine complements the other. And one of the cases where the SC explained the plain view doctrine is the case of PEOPLE vs. MUSA 217 SCRA 597 [1995] FACTS: The NARCOM team conducted a buy-bust operation at the appellant’s house who was alleged to be selling marijuana. After the transaction took placed, the team went inside the house and arrested the appellant but unable to find the marked money. Thereafter, 2 agents went to the kitchen and noticed a cellophane colored white and stripe hanging at the corner of the kitchen. They asked the appellant about its contents, but failing to get a response, they opened it and found dried marijuana leaves. At the trial, the appellant questioned the admissibility of the plastic bag and the marijuana it contains but the trial court ruled that they are admissible. HELD: Search was not valid, objects seized inadmissible in evidence. The SC explained and clarified the meaning of plain view. Let us say that the plastic bag is apparent and you cannot see what is inside, then you will go there to see it, that is not plain view. “The warrantless search and seizure, as an incident to a suspect's lawful arrest, may extend beyond the person of the one arrested to include the premises or surroundings under his immediate control. Objects in the "plain view" of an officer who has the right to be in the position to have that view are subject to seizure and may be presented as evidence.” “The "plain view" doctrine may not, however, be used to launch unbridled searches and indiscriminate seizures nor to extend a general exploratory search made solely to find evidence of defendant's guilt. The "plain view" doctrine is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object.” “It has also been suggested that even if an object is observed in "plain view," the "plain view" doctrine will not justify the seizure of the object where the incriminating nature of the object is not apparent from the "plain view" of the object. 47 Stated differently, it must be immediately apparent to the police that the items that they observe may be evidence of a crime, contraband, or otherwise subject to seizure.” “In the instant case, the appellant was arrested and his person searched in the living room. Failing to retrieve the marked money which they hoped to find, the NARCOM agents searched the whole house and found the plastic bag in the kitchen. The plastic bag was, therefore, not within their "plain view" when they arrested the appellant as to justify its seizure. The NARCOM agents had to move from one portion of the house to another before they sighted the plastic bag.” “Moreover, when the NARCOM agents saw the plastic bag hanging in one corner of the kitchen, they had no clue as to its contents. They had to ask the appellant what the bag contained. When the appellant refused to respond, they opened it and found the marijuana. Even assuming then, that the NARCOM agents inadvertently came across the plastic bag because it was within their "plain view," what may be said to be the object in their "plain view" was just the plastic bag and not the marijuana. The incriminating nature of the contents of the plastic bag was not immediately apparent from the "plain view" of said

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object. It cannot be claimed that the plastic bag clearly betrayed its contents, whether by its distinctive configuration, its transparency, or otherwise, that its contents are obvious to an observer.” CUSTOMS SEARCHES Another instance of a valid warrantless search is a search conducted under the customs and tariff code. When a vessel arrives from abroad, the customs agents board the vessel to look for smuggled items. Then can conduct warrantless searches for the enforcement of customs laws. CONSENTED SEARCH Another instance of a valid warrantless search is a consented search because here, there is a waiver. For example: I will go to your house and I will tell you that we heard that there are illegal firearms inside your house and I have no warrant. But you let me in, “Okay lang, sige pasok ka and you search.” That is consented search. One of the interesting cases in consented search is the case of: PEOPLE vs. BURGOS 144 SCRA 1 NOTE: Do not confuse this case with the one we discussed in Rule 113. FACTS: There was a suspected NPA, got arrested and there was an interrogation, “Who are you companions?” “Mr. so and so.” So they went to this house and said that, “Hoy! NPA ka man daw. We would like to search your house, pwede?” The wife did not object. They found firearms. When the constitutionality of the search was challenged, the contention was, it was a consented search. HELD: It was not a consented search. When a person remains silent, that is not consent. This is a constitutional right which cannot be lightly waived. There is no presumption that there is a waiver or that the consent was given by the accused simply because he failed to object. You apply the rule that courts indulge every reasonable presumption against waiver of constitutional rights. You cannot presume acquiescence in the loss of fundamental constitutional right. One last case on consented search also happened in Davao City. The case of VEROY vs. LAYAGUE 210 SCRA 97 FACTS: Atty. Paul Veroy was formerly regional director of the SSS. He has a house in Skyline. At that time, they were at Manila. The military received a report that his house is being used by the rebels; that is where they meet. So they called up Veroy through long distance. Mr. Veroy said, “Sige, bahala na kayo diyan.” The searching team started opening drawers and they found guns. So Veroy was charged for illegal possession of firearms. Veroy challenged the validity of the search. The defense was consented search. HELD: The search was not valid although there was consent from Veroy. The permission was to look for rebels and not for firearms. If you are looking for rebels, why are you opening the drawers? There are no rebels inside the drawers! Where the permission to enter a residence was given to search for rebels, it is illegal to search the rooms therein for firearms without a search warrant.

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SEARCHES UNDER EXIGENT/EXTRAORDINARY CIRCUMSTANCES The last exception to the warrant exception would be searches during exigent or extraordinary circumstances provided probable cause exists. Just like what happened during the 1987 and 1989 coup where the military made some searches in suspected places. In that case, there is no need to obtain search warrants considering that during that time all the courts there in Manila were closed because of the coup de etat. Such period is considered as extraordinary circumstances. NOTE: This exception is a catch-all category that encompasses a number of diverse situations. What they have in common is some kind of emergency that makes obtaining a search warrant impractical, useless, dangerous, or unnecessary. Among these situations are danger of physical harm to the officer or destruction of evidence, danger to a third person, driving while intoxicated, and searches in hot pursuit. Del Carmen, Rolando V., Criminal Procedure for Law Enforcement Personnel, 1987 Edition p. 150 (Footnote, People vs. Fernandez, 238 SCRA 174, 182) NOTE: Search based on probable cause under extraordinary circumstances, were upheld in People vs. Posadas, 188 SCRA 288 [1990]; Valmonte vs. Villa, 178 SCRA 211 [1989]; People vs. Maspil, G.R. No. 85177, August 20, 1990, citing Valmonte vs. Villa; People vs. Malmstedt, G.R. No. 91107, June 19, 1991; People vs. Sucro, G.R. No. 93239, March 18, 1991; People vs. Montilla, G.R. No. 123872, January, 30, 1998. SEC. 14. Motion to quash a search warrant or to suppress evidence; where to file. - A motion to quash a search warrant and/or to suppress evidence obtained thereby may be filed in and acted upon only by the court where the action has been instituted. If no criminal action has been instituted, the motion may be filed in and resolved by the court that issued search warrant. However, if such court failed to resolve the motion and a criminal case is subsequently filed in another court, the motion shall be resolved by the latter court. (n)

Now, Section 14 is a new provision. It was taken from the case of Malaloan and Bans. (People v. Bans, G.R. No. 104147) Q: The judge will issue a search warrant. Suppose the search warrant is improper, where will you question the admissibility of the evidence… in the court which issued the warrant? or in the court where the case is pending? A: In the case of Malaloan, in either court. But in the case of Bans, if there is already a case, all should be resolved in the court where the case is pending, otherwise there will be interference among the courts. When do you question the validity of the search? In illegal arrest, all defects surrounding the arrest should be raised before the arraignment, otherwise the defects are deemed cured because there was a waiver. But in illegal search, such rule does not apply. You may raise such issue even after arraignment. The waiver only applies on the illegality of arrest, and does not extend to searches. (People vs. Aruta)

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Lakas Atenista Ateneo de Davao University College of Law

232

Review on the 2000 Revised Rules on Criminal Procedure (2002 Edition)

Rule 126 Search and Seizure

salesa • leo gillesania • gemma betonio • enny aquiatan • michael pito • karen de leon • elma tormon • judee uy • pao angeles • jet pascua • contributing editors: bathsheba baldoza • marlo masangkay

SPACE-FILLER #9: How To Kill An Eel Little Johnny was 10 years old and like other boys in his age, he was rather curious about everything. He had been hearing quite a bit about 'courting' from the older boys at school, and he wondered what it was, and how it was done. One day he took his question to his mother, who became rather flustered. Instead of explaining things to Johnny, she told him to hide behind the curtains one night, and watch his older sister and her boyfriend, who she explained were "courting." This he did. The following morning, Johnny described everything to his mother, in great detail. "Well, Sis and her boyfriend sat and talk for a while, then he turned off most of the lights. Then he started kissing and hugging her. I figured Sis must be getting sick, because her face started looking funny. He must have thought so too, because he put his hand inside her blouse to feel her heart, just the way the doctor would. Except he's not as smart as the doctor because he seemed to have trouble finding her heart and really had to search for it. I guess he was getting sick too, because pretty soon both of them started panting and getting all out of breath. His other hand must have been cold, because he put it under her skirt to get it warmed up. “About this time, Sis got worse, and began to moan and sigh and squirm around and slide down toward the end of the couch. This was when her fever started. I knew it was a fever, because Sis told him she really felt hot. Finally, I found out what was making them so sick -- a big eel, about nine inches long, had gotten inside his pants somehow. It just jumped out of his pants, and it stood up, and he had to keep one hand on it to keep it from getting away. When Sis saw it, she got really scared and her eyes got big, and her mouth fell open, and she started calling out to God and stuff like that. She said it was the biggest one she's ever seen; I should tell her about the ones down the lake. “Anyway, Sis got brave and tried to kill the eel by biting its head off. All of a sudden she grabbed it with both hands, and held it tight while he took a muzzle out of his pocket and slipped it over the eel's head to keep it from biting again. “Sis lay back and spread her legs, so she could get a scissor –- lock on it and he helped by lying on top of the eel. The eel put up a hell of a fight. Sis started groaning and squealing and her boyfriend almost upset the couch. I guess they wanted to kill the eel by squashing it between them. “After a while they both quit moving and gave a great sigh. Her boyfriend got up, and sure enough, they killed the eel. I knew it because it just hung there, limp, and some of its sides hanging out. "Sis and her boyfriend were a little tired from the battle, but they went back to courting anyway. He started hugging and kissing her again. By golly, the eel wasn't dead! It jumped straight up and started to fight again. I guess eels are like cats –they have nine lives or something. “This time, Sis jumped up and tried to kill it by sitting on it. After about a 35-minute struggle, they finally killed the eel. I knew it was dead now for sure, because I saw Sis's boyfriend peel it's skin off and flush it down the toilet." (Probably this Mom answered her son's questions herself after this!)

Lakas Atenista Ateneo de Davao University College of Law

233