* Lawful Search and

Seizure

BY: CPT RAINIER RHETT G CONCHA (JAGS) PA

 *Searches and Seizures
*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.
[Art. III, Sec. 2 ]
* 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. [Art. III, Sec. 2 ]
*WARRANT REQUIREMENT
PURPOSE
*(1)Search Warrant- to gain evidence
to convict
*(2) Warrant of Arrest- to acquire
jurisdiction
 *NATURE
*Personal
*It may be invoked only by the person entitled to it.
[Stonehill v. Diokno (1967)

*It may be waived expressly or impliedly only by the

person whose right is invaded, not by one who is
not duly authorized to effect such waiver. People
v. Damaso (1992)
 *NATURE
*Directed Against the Government and
Its Agencies State Action Requirement
*The right cannot be set up against acts committed by
private individuals. The right applies as a restraint
directed only against the government and its agencies
tasked with the enforcement of the law. The protection
cannot extend to acts committed by private individuals
so as to bring them within the ambit of alleged
unlawful intrusion by the government. People v. Marti
(1991); See also Yrasuegui v.Philippine Airlines (2008)
*What constitutes a reasonable or unreasonable search and
seizure in any particular case is purely a judicial question,
determinable from a consideration of the circumstances
involved.

*Objections to the warrant of arrest must be made before the

accused enters his plea. [People v. Codilla (1993); Peoplev.
Robles (2000)]

*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 or species; thus, one search
warrant may be validly issued for several violations thereof
[People v. Dichoso (1993)]. People v. Salanguit(2001)
*REQUISITES OF VALID SW
*1. Existence of probable cause;
*2. Determination of probable cause personally by the
judge;
*3. After personal examination under oath or
affirmation ofthe complainant and the witnesses he
may produce;
*4. On the basis of their personal knowledge of the
facts they are testifying to.
*5. The warrant must describe particularly the place
to be searched and the persons or things to be seized
 *PROBABLE CAUSE
*Warrant of Arrest
*Such facts and circumstances antecedent to the issuance
of the warrant that in themselves are sufficient to induce
a cautious man to rely on them and act in pursuance
thereof. [People v. Syjuco (1937); Alvarez v. CFI (1937)]
*Search Warrant
*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. [Burgos v. Chief of Staff (1984)
 *After personal examination
under oath or affirmation of
the complainant and the
witnesses he may produce.
* How is it done?

* In the form of searching questions and answers, in writing and

under oath [Rule 126, Sec. 6, ROC ]
*(a) Mere affidavits of the complainant and his
witnesses are thus not sufficient.
* (b) The examining Judge has to take depositions in
writing of the complainant and the witnesses he may
produce and attach them to the record.
*(c) Such written deposition is necessary in order that
the Judge may be able to properly determine the
existence or non-existence of the probable cause, to
hold liable for perjury the person giving it if it will be
found later that his declarations are false
* (d) It is axiomatic that the examination must be
probing and exhaustive, not merely routine or pro-
forma, if the claimed probable cause is to be
established
 *Purpose of requirement
*(1) readily identify the properties to be seized and
thus prevent them from seizing the wrong items;
and
* (2) leave said peace officers with no discretion
regarding the articles to be seized and thus prevent
unreasonable searches and seizures. [People v.
Tee(2003)
 *PLACE TO BE SEARCHED
*MUST BE SPECIFIED!
*The search warrant issued to search
petitioner’s compound for unlicensed
firearms was held invalid for failing to
describe the place with particularity,
considering that the compound was made up
of 200 buildings, 15 plants, 84staff houses, 1
airstrip etc spread out over 155 hectares.
[PICOP v. Asuncion (1999)
*DESCRIPTION OF PLACE/
THINGS
*The description of the property to be seized need not be
technically accurate or precise. Its nature will vary
according to whether the identity of the property is a
matter of concern. The description is required to be specific
only in so far as the circumstances will allow. Kho v.
JudgeMakalintal (1999)
*A search warrant may be said to particularly
describe the things to be seized when the
description therein is as specific as the
circumstances will ordinarily allow. [Peoplev.
Rubio (1932)] or when the description expresses a
conclusion of fact, not of law, by which the
warrant officer may be guided in making the
search and seizure; or when the tings described
are limited to those which bear direct relation to
the offense for which the warrant is being issued.
[Bache and Co. v. Ruiz (1971)
 *DESCRIPTION OF PERSONS
SEARCHED
*Search warrant is valid despite the mistake in the name
of the persons to be searched. The authorities
conducted surveillance and test-buy ops before
obtaining the search warrant and subsequently
implementing it.
*They had personal knowledge of the identity of the
persons and the place to be searched, although they
did not specifically know the names of the accused.
[People v. Tiu Won Chua (2003)]
*A John Doe search warrant is valid. There is nothing to
prevent issue and service of warrant against a party
whose name is unknown. People v. Veloso (1925)
 *GENERAL WARRANT
*(1) Does not describe with particularity the things
subjectof the search and seizure; and
*(2) Where probable cause has not been
properlyestablished. It is a void warrant. [Nolasco
v. Paño(1985)]
*Exception to General Warrants:
*General descriptions will not invalidate the entire
warrant if other items have been particularly
described. [Uy v. BIR (2000)]
 *Conduct of the Search
*(1) In the presence of a lawful occupant thereof or
any member of his family, OR
*(2) If occupant or members of the family are
absent, in the presence of 2 witnesses of(a)
sufficient age(b) discretion(c) residing in the same
locality
*(3) Force may be used in entering a dwelling if
justified by Rule 126 RO
* Failure to comply with Sec. 7 Rule 126 invalidates the search.
People v. Gesmundo (1993)
 *FORCIBLE ENTRYJUSTIFIED
* Occupants of the house refused to open the
door despite the fact that the searching party
knocked several times, and the agents saw
suspicious movements of the people inside the
house. [People v. Salanguit (2001)
 *UNLAWFUL SEARCH
*Police officers arrived at appellant’s residence and
“side-swiped” (sinagi) appellant’s car (which was
parked outside) to gain entry into the house.
Appellant’s son, who is the only one present in the
house, opened the door and was immediately
handcuffed to a chair after being informed that they
are policemen with a warrant to search the
premises. [People v. Benny Go (2003)]
*WARRANTLESS SEARCHES
* GENERAL RULE FOR WARRANTLESS SEARCHES:
* PROBABLE CAUSE REQUIRED
* “The essential requisite of probable cause must still be satisfied
before a warrantless search and seizure can be lawfully
conducted.” In these cases, probable cause (warrantless
searches) must be “based on reasonable ground of suspicion or
belief that a crime has been committed or is about to be
committed.” [People v. Aruta(1998)]
*WARRANTLESS SEARCHES
*(1) Search incident to a lawful arrest
*(2) Plain view doctrine
*(3) Search of a moving vehicle(
*4) Consented search
*(5) Customs search
*(6) Stop and frisk
*(7) Exigent and emergency circumstances
*(8) Visual search at checkpoints
 *Search incident to lawful
arrest
* - A person lawfully arrested may be searched for dangerous
weapons or anything which may be used as proof of the
commission of an offense, without a search warrant. [Sec. 12,
Rule 126, Rules of Court]
*The provision is declaratory in the sense that it is confined to
the search, without a search warrant, of a person who had
been arrested.
*It is also a general rule that, as an incident of an arrest,
the
place or premises where the arrest was made can also be
searched without a search warrant. In this case, the extent
and reasonableness of the search must be decided on its own
facts and circumstances.
 *Test for validity
*(1) Item to be searched was within the
arrester’s custody;
*(2) Search was contemporaneous with
the arrest
*Under the Rules of Court, a person charged
with an offense may be searched for
dangerous weapons or anything which may be
used as proof of the commission of the
offense. As an incident of an arrest, the
premises where the arrest was made can also
be searched without search warrant. [Nolasco
v. Cruz Paño (1985)]
*An “arrest being illegal, it logically follows
that the subsequent search was similarly
illegal.” People v. Aruta
*SEARCH OF MOVING
VEHICLES
*Securing a search warrant is not practicable since
the vehicle can be quickly moved out of the locality
or jurisdiction in which the warrant must be sought
[Papa v.Mago (1968)]
 *PLAIN VIEW DOCTRINE:
*Requisites:
*(1) Prior valid intrusion into a place;
*(2) Evidence:(a) inadvertently discovered(b)
by police who had the right to be where they
were;
*(3) Evidence must be immediately apparent
and
*(4) Noticed without further search [People v.
Musa; People v. Sarap (2003)]
 *Plain View
*An object is in “plain view” if the object itself is
plainly exposed to sight. Where the seized object is
inside a closed package, the object is not in plain view
and, therefore, cannot be seized without a warrant.
*However, if the package proclaims its contents,
whether by its distinctive configuration, its
transparency, or if its contents are obvious to an
observer, then the content are in plain view, and may
be seized. [Caballes v. Court of Appeals (2002)]
*If the package is such that it contains prohibited
articles, then the article is deemed in plain view.
People v. Nuevasm (2007)
 *STOP AND FRISK
SEARCHES
*There should be a genuine reason to “stop-and-
frisk in the light of the police officer’s
experience and surrounding conditions to
warrant a belief that the person detained has
weapons concealed. [Malacat v. CA (1997), citing
Terry v.Ohio
*Police officer has a right to stop a citizen on
street and pat him for a weapon in the interest
of protecting himself from the person with whom
he was dealing was not armed.
 *Test:
*WON a reasonably prudent man in the circumstances
would be warranted in the belief that his safety of that
of others was in danger [Terry v. Ohio, 392 U.S.(1968)]
*The police officer should properly introduce himself
and make initial inquiries, approach and restrain a
person who manifests unusual and suspicious conduct,
in order to check the latter’s outer clothing for
possibly concealed weapons. The apprehending police
officer must have a genuine reason, in accordance with
the police officer’s experience and the surrounding
conditions, to warrant the belief that the person to be
held has weapons or contraband concealed about him
[People v. Sy Chua (2003)
*VALID EXPRESS WAIVER MADE
VOLUNTARILY AND
INTELLIGENTLY
*Requisites:
*(1) Must appear that right exists;
*(2) Person involved had actual/ constructive knowledge
of the existence of such right;
*(3) Said person had an actual interest to relinquish the
right;
*(4) Waiver is limited only to the arrest;
*(5) Waiver does not extend to search made as an incident
thereto, or to any subsequent seizure of evidence found
in the search. [People v. Peralta (2004)]
*Waiver may be express or implied. When one
voluntarily submits to a search or consents to have it
made of his person / premises, he is precluded from
later complaining [People v. Kagui Malasugui (1936)]
*It is the State that has the burden of proving, by clear
and convincing evidence, that the necessary consent
was obtained and that it was voluntarily and freely
given [Caballes v. Court of Appeals (2002)].
*When accused checked in his luggage as passenger of
a plane, he agreed to the inspection of his luggage in
accordance with customs laws and regulations, and
thus waived any objection to a warrantless search
[People v.Gatward (1997)]
 *CUSTOMS SEARCH
*Searches of vessel and aircraft for violation of immigration
and smuggling laws [Papa v. Mago (1968)]

*EXIGENT AND EMERGENCY CIRCUMSTANCES

*The raid and seizure of firearms and ammunition at the
height of the 1989 coup-de-etat, was held valid,
considering the exigent and emergency situation. The
military operatives had reasonable ground to believe that a
crime was being committed, and they had no opportunity
to apply for a search warrant from the courts because the
latter were closed. Under such urgency and exigency, a
search warrant could be validly dispersed with [People v.
deGracia (1994)].
*VISUAL SEARCH AT
CHECKPOINTS
*“Stop and search” without a warrant at military or
police checkpoints, which has been declared not to
be illegal perse so long as it is required by
exigencies of public order and conducted in a way
least intrusive to motorists [Valmonte v.de Villa
(1989)].
*For a mere routine inspection, the search is
normally permissible when it is limited to a mere
visual search, where the occupants are not
subjected to physical or body search.
*
*On the other hand, when the vehicle is
stopped and subjected to an extensive
search, it would be constitutionally
permissible only If the officers conducting
the search had reasonable or probable cause
to believe, before the search, that either the
motorist is a law offender or they will find
the instrumentality or evidence pertaining to
a crime in the vehicle to be searched
[Caballes v. Court of Appeals (2002); People
v. Libnao (2003)].
 *PROPERTIES SUBJECT TO
SEIZURE
*General Rule:
*Only the articles particularly described in the
warrant may be seized.
*(1) Property subject of an offense
*(2) Stolen or embezzled property and other
proceeds or fruits of an offense
*(3)Used or intended to be used as a means of
committing an offense [Sec. 2 Rule 126, ROC ]
*Where the warrant authorized only the
seizure of shabu, and not marijuana,
the seizure of the latter was held
unlawful. [People v. Salanguit (2001)]
*It is not necessary that the property to
be searched or seized should be owned
by the person against whom the
warrant is issued; it is sufficient that
the property is within his control or
possession [Burgos v. Chief of Staff
(1984)
 *When warrant of
arrest may issue–
* (a) By the Regional Trial Court –
* Within ten (10) days from the filing of the complaint or
information, the judge shall personally evaluate the
resolution of the prosecutor and its supporting evidence. He
may immediately dismiss the case if the evidence on record
clearly fails to establish probable cause. If he finds probable
cause, he shall issue a warrant of arrest, or a commitment
order if the accused has already been arrested pursuant to a
warrant issued by the judge who conducted the preliminary
investigation or when the complaint or information was filed
pursuant to section 7 of this Rule. In case of doubt on the
existence of probable cause, the judge may order the
prosecutor to present additional evidence
*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. [Rule 126, Sec. 4]
*REQUISITES OF A VALID
WARRANTLESS ARREST
*(1) When in his presence, the person to be arrested has
committed, is actually committing, or is attempting to
commit an offense; in flagrante delicto) Rebellion is a
continuing offense. Therefore a rebel may be arrested
without a warrant at any time of the day or the night as
he is deemed to be in the act of committing rebellion.
[Umil v. Ramos (1991)]
*Though kidnapping with serious illegal detention is
deemed a continuing crime, it can be considered as such
only when the deprivation of liberty is persistent and
continuing from one place to another. [Parulan v. Dir
ofPrisons (1968)]
 *Hot Pursuit:
*The arrest of the accused inside his house following
hot pursuit of the person who committed the
offense in flagrante was held valid. [People v. De
Lara(1994)]
 *Buy-Bust:
* A buy-bust operation is a valid in flagrante
arrest. The subsequent search of the person
arrested and the premises within his
immediate control is valid as an incident to a
lawful arrest. [People v. Hindoy (2001)]
 *Exception to buy-bust:
* Instead of arresting the suspect after the
sale in a buy-bust op, the officer returned to
the police headquarters and filed his report.
It was only in the evening that he, without
warrant, arrested the suspect at his house
where dried marijuana leaves were found and
seized. This is unlawful arrest. [People v.
Rodrigueza (1992)
 *Requisites:
*(1) Offense had JUST been committed;
*(2) Person making the arrest has probable cause to
believe based on personal knowledge.
*Note:
* There must be a large measure of immediacy
between the time the offense is committed and the
time of the arrest. If there was an appreciable lapse
of time between arrest and commission of crime,
warrant of arrest must be secured. [Nachura]
*Warrantless arrest of accused for selling
marijuana 2 days after he escaped is
invalid. [People v. Kimura (2004)]
*The warrantless arrest only 3 hours after
the killing was held valid since personal
knowledge was established as to the fact
of death and facts indicating that the
accused killed the victim. [People v.
Gerente (1993)
 *Personal Knowledge:
* Experience of an officer which gives
the idea that there is probable cause
that the person caught is responsible. It
has been ruled that “personal
knowledge of facts” in arrests without a
warrant must be based on probable
cause, which means an actual belief or
reasonable grounds of suspicion. [Cadua
v. Court of Appeals (1999)]
*There is no personal knowledge when
the commission of a crime and identity
of the accused were merely furnished
by an informant, or when the location
of the firearm was given by the wife of
the accused. It is not enough that there
is reasonable ground to believe that the
person to be arrested has committed a
crime. That a crime has actually been
committed is an essential precondition.
[People v.Burgos (1986)
 *DRUG, ALCOHOL AND
BLOOD TESTS
*The Court held that Randomized Drug Testing (RDT) for
students and employees does not violate the right to privacy
in the Constitution. Students do not have rational
expectation of privacy since they are minors and the school
is in loco parentis. Employees and students in universities,
on the other hand, voluntarily subject themselves to the
intrusion because of their contractual relation to the
company or university. It is unconstitutional to subject
candidates for public office and criminals to RDT. The
Constitution clearly provides the requirements for
candidates, and adding RDT would amount to imposing an
additional qualification. Criminals subjected to RDT would
violate their right against self-incrimination. SJS v.
Dangerous Drugs Board (2008)
*PRIVATE AND PUBLIC
COMMUNICATIONS
REQUISITES OF EXISTENCE OF
PRIVACY RIGHT
*(1) Subjective: A person has exhibited an
actual expectation of privacy; and
*(2) Objective: The expectation be one that
society is prepared to recognize as
reasonable.
*INTRUSION, WHEN ALLOWED
*(1) By lawful order of the court Probable cause in
Sec. 2, Art. III should be followed for the court to
allow intrusion. Particularity of description is
needed for written correspondence, but if the
intrusion is done through wire-taps and the like,
there is no need to describe the content. However,
identity of the person or persons whose
communication is to be intercepted, and the
offense or offenses sought to be prevented, and the
period of the authorization given can be specified.
*(2)When public safety or public order
requires otherwise, as may be provided
by law. Intrusion has to be based upon
a non-judicial government official’s
assessment that public safety and order
demands such intrusion, limited to the
provisions of law.
 *FRUIT of the poisonous tree
*The "fruit of the poisonous tree"
doctrine is an offspring of the
Exclusionary Rule. The exclusionary rule
mandates that evidence obtained from
an illegal arrest, unreasonable search, or
coercive interrogation must be excluded
from trial.