University of La Salette

COLLEGE OF LAW
Santiago City
MODULE NO. 002-B
CONSTITUTIONAL LAW II
S.Y. 2022-2023

II. ENFORCEMENT OF WARRANTS:

A. Assuming that a warrant is issued, the next act to be performed by the

law enforcement authority is to serve the warrant, in this connection,
Rule 126, Section 8 of the Revised Rules of Court provides that –

“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.”

Underscoring the mandatory nature of the above-cited provision, the

Supreme Court in the case of People of the Philippines vs. Yolanda
Gesmundo, Et. Al., G.R. No. 689373, March 9, 1993, said that –

“Furthermore, the claim of accused-appellant that the marijuana

was planted is strengthened by the manner in which the search was
conducted by the police authorities. The accused-appellant was
seated at the sala together with Sgt. Yte when they heard someone
in the kitchen uttered “ito na”. Apparently, the search of the
accused-appellant’s house was conducted in violation of Section 7,
Rule 126 of the Rules of Court which specifically provides that no
search of a house, room or any other premise 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, in the presence of two (2)
witnesses of sufficient age and discretion residing in the same
locality. This requirement is mandatory to ensure regularity in the
 execution of the search warrant. Violation of the said rule is in fact
punishable under Article 130 of the Revised Penal Code.”

Clearly, a law enforcement officer is allowed to search a place described

in the warrant only in the presence of the persons enumerate under
Section 8 of Rule 126. If the law enforcement officer searches and seize
items without the presence of the persons enumerated in the rules, the
enforcement of the warrant will be declared invalid.

You should also take note that the officer enforcing the warrant has no
discretion in choosing who should accompany the searching team, this is
because the enumeration in Section 8 is not only mandatory but also
hierarchical. Thus, the law enforcement authority can only call the two (2)
witnesses residing in the same locality if the lawful possessor or any of his
family is not present.

Elaborating on this rule, the Supreme Court said in the case of People of
the Philippines vs. Eden Del Castillo, G.R. No. 153254, September 30, 2004,
that –
“That the raiding party summoned two (2) barangay kagawads to
witness the search at the second floor is of no moment. The Rules of
Court clearly and explicitly establishes a hierarchy among the
witness in whose presence the search of the premises must be
conducted. Thus, Section 8, Rule 126 provides that the search
should be witnessed by “two witnesses of sufficient age and
discretion residing in the same locality” only in the absence either
of the lawful occupant of the premises or any member of his family.
Thus, the search of appellant’s residence clearly should have been
witnessed by his son Jack Go who was present at the time. The
Police officers were without discretion to substitute their choice of
witness for those prescribed by the law”

QUESTION: Supposed the law enforcement officers, armed with a search

warrant, searched the house of A, a three-floor house located at San
Vicente, Cauayan City, Isabela. The law enforcement officer
simultaneously searched the three-floor house of A, thus, the first
searching team, searching the 1st floor of the house was accompanied by
 A, the Second searching team, searching the 2nd floor of the house was
accompanied by the wife of A, and the third searching team, searching
the third-Floor of the house was accompanied by the two maids of A.
Can A later on object to the enforcement of the search warrant? Why?

III. WARRANTLESS ARREST/SEARCH.

We have said that our general rule is that searches and seizure could only be
effected though warrants issued by a judge upon showing compliance to
requirements of Article III, Section 2 of the Constitution. This is not to say
however that searches and seizure cannot be undertaken absent a warrant
since there are instances that justifies the conduct of searches and seizure
despite absence of warrants.

A. Among such circumstance are those provided under Section 5, Rule 113
of Revised Rules on Criminal Procedure, thus –
“A peace officer or a private person may, without a warrant, arrest
a person:

(a) When, in his presence, the person to be arrested has

committed, is actually committing, or is attempting to commit
an offense;

(b) When an offense has just been committed, and he has

probable cause to believe based on personal knowledge of
facts or circumstances that the person to be arrested has
committed it; and

(c) When the person to be arrested is a prisoner who has

escaped from a penal establishment or place where he is
serving final judgment or is temporarily confined while his
case is pending, or has escaped while being transferred from
one confinement to another.

In cases falling under paragraph (a) and (b) above, the person
arrested without a warrant shall be forthwith delivered to the
nearest police station or jail and shall be proceeded against in
accordance with section 7 of Rule 112. (5a)”
A.1. Section 5a of Rule 113 is commonly referred to as “in flagrante Delicto
which translates to “caught in the act”, thus, when a police officer or
even a private person witness another in the process of committing a
crime, that person can be immediately arrested dispensing the needs for
a judicial warrant.

Note that section 5a said that a person who has committed, is actually
committing or is attempting to commit an offense in the presence of an
officer or private person may be arrested. The phrase “in his presence”
has been clarified by the Supreme Court in the old case of People vs.
Samonte, G.R. No. 5649, September 6, 1910, thus –

“An offense is committed in the presence or within the view of an

officer, within the meaning of the rule authorizing an arrest without
a warrant, when the officer sees the offense, although at a
distance, or hears the disturbances created thereby and proceeds
at once to the scene thereof; or the offense is continuing, or has not
been consummated, at the time the arrest is made. (3 Cyc., 886;
Ramsey v. State, 17 S. E. 613; Dilger v. Com., 11 S.W., State v.
McAfee, 12 S.E., 453; State v. Williams, 15 S.E., 554; and Hawkins v.
Lutton, 70 N.W., 483.)”

Moreover, the Supreme Court in the case of Mario Veridiano y Sapi vs.
People of the Philippines, G.R. No. 200370, June 7, 2017, requires the
concurrence of two elements before an arrest under this provision may be
validated, thus –
“The first kind of warrantless arrest is known as an in flagrante
delicto arrest. The validity of this warrantless arrest requires
compliance with the overt act test79 as explained in Cogaed:

[F]or a warrantless arrest of in flagrante delicto to be affected, "two

elements must concur: (1) the person to be arrested must execute
an overt act indicating that he [or she] has just committed, is
actually committing, or is attempting to commit a crime; and (2)
such overt act is done in the presence or within the view of the
arresting officer."
Take note that the element of “Overt Act” is meant to ensure that the
arrest is based on a probable cause, meaning those must be constitutive
of an offense while the requirement that the said overt act must be
committed in the “presence” of the arresting officer is meant to ensure
that the arrest is not based on hearsay evidences. Together, these twin
requirement, justifies the arrest of a person without necessarily securing the
warrant which in these cases are dispensed due to exigency of the
circumstances. Thus, the Supreme Court in the case of Lacson, Et. Al., vs.
Secretary Hernando Perez, Et. Al., G.R. No. 147780, May 10, 2001, said –

“A warrantless arrest may be justified only if the police officer had

facts and circumstances before him which, had they been before a
judge, would constitute adequate basis for a finding of probable
cause of the commission of an offense and that the person arrested
is probably guilty of committing the offense. That is why the Rules of
Criminal Procedure require that when arrested, the person "arrested
has committed, is actually committing, or is attempting to commit
an offense" in the presence of the arresting officer. Or if it be a case
of an offense which had "just been committed," that the police
officer making the arrest "has personal knowledge of facts or
circumstances that the person to be arrested has committed it."
(Emphasis supplied)
The word “presence” under section 5a of Rule 113 encompasses the use
of all the senses of a person effecting the arrest. It is therefore not limited
to vision, but also through the use of other senses such as hearing, smell,
touch etc.

i.e. Supposed a police officer was on guard in a certain

establishment near a comport room. While on guard, the police
heard a commotion inside the comport room, when he went to
check it out he saw A standing over B who by then was about to
stand and asked the police help me. Can the police officer arrest
A?

A.2. The next instance where warrant may be effected without resorting to
issuance of a warrant is “When an offense has just been committed and
he has probable cause to believe based on personal knowledge of facts
or circumstances that the person to be arrested has committed it”
commonly known as “Hot Pursuit”.

Again, take note that the rule requires the presence of probable cause
within the personal knowledge of a person effecting the arrest. Taking cue
on the provision of Section 5b of Rule 113, the following elements may be
established –

a. An offense has just been committed.

b. The person making the arrest has probable cause to believe
that the person to be arrested has committed the offense.

Of course, the probable cause leading the person effecting the arrest
must be based on personal knowledge. So the consideration for the
application of this provision is the relationship of time from the commission
of the offense to the time of the arrest, such that if the arrest was effected
few days after the commission of the offense, the arresting officer can no
longer invoke Section 5b of Rule 113. In that case, the police officer must
resort to the normal filing of case so that a warrant may be issued against
the offender.

i.e. Upon hearing that the police is looking for A, the latter went to
the police station to verify why the police was looking after him,
while in the police station B a witness positively identified A as the
person who shot C the other day. Because of the account of B, who
apparently profess as an eye-witness, the police officers arrested A,
is the arrest of A valid or not?

A.3. The other instance where a person may be arrested without a

warrant as provided under Section 5c of Rule 113 pertains to escae
convict or detention prisoner.
B. Warrantless searches. Jurisprudence teaches that in as much as there
are instances that justifies an arrest without a warrant, there are also
circumstances that justifies a search without a warrant, these are –

1. Consent to a search.
2. Stop and Frisk.
 3. Search incidental to lawful arrest.
4. Search of vessel and aircraft.
5. Search of moving vehicle.
6. Plain view.
7. Searches and Seizure under emergency situation.

B.1. Consent - If a person to be search or a person who

possesses or own a place to be search consented to a warrantless search,
that person may be considered to have waived his right to unreasonable
searches and seizure, thus, he cannot later on object to the warrantless
search and seizure.

Remember that all forms of searches and seizure is unreasonable unless

there is a valid warrant issued authorizing the search. However, just like
most of rights in the Bill of Rights, it can be waived, thus, a person’s
consent to warrantless search and seizure is considered a waiver to invoke
his right under Section 2 of the Bill of Rights.

However, for a consent/waiver to be valid, the following must be

established –

1. Existence of the right.

2. The person must have knowledge either actually or
constructively of the existence of such right.
3. Actual intention to relinquish the right.

Added to these is the fact that the person whose right is violated must
give the consent voluntarily. The voluntariness of the waiver should be
adjudged based on the following circumstances, age of the subject,
location at the time of the search, whether he actually objected to the
search or has merely passively look on while the search is being carried,
education and intelligence of the subject person, the presence of
coercive procedure executed by the police.
i.e. A team of fully armed police officers knock at the door of A
around 10:30 in the evening. When A opened his door he was
shocked to find a team of fully armed police officer, A was
immediately asked by B, the team leader of a the team if they
could search his house, to which A although nervous nevertheless
nodded in agreement to the request of B. B having obtained
permission from A proceeded to search the house of A which
search yielded several prohibited items.

In a case filed against A, can the latter object to the items seized by
the police officer? Why? If you are the prosecutor, how will you
justify the search and seizure conducted by the police?

Take note however that there are places, facilities or establishment

where the law/policies requires for the inspection of bags or
luggage’s, so that when a person avail of that facility or entered the
establishment, their consent for the inspection of luggage is
deemed voluntarily, e.x. airport, malls, etc.

Remember also that a search, whether by virtue of a warrant or a

warrantless search may only be justified by the existence of facts
and circumstances constituting probable cause.

i.e. A police officer received a tip that A a passenger jeepney driver

is carrying with him a dried marijuana leaves placed in a tin can
near the driver’s seat. Pursuant to the tip, the police boarded A’s
jeepney and saw the described tin can, when the police ask if he
could look at the tin can, A refused and attempted to throw the tin
can but A was arrested by the police. When the police opened the
tin can he found dried marijuana leaves, is the silence of A
considered consent? Why?

i.e. Supposed a police officer received a tip that A is carrying dried

marijuana leaves placed in a carton, the police then approached
A and asked if he could look at the carton to which A did not
answer, nevertheless the police proceeded to open A’s carton and
 found dried marijuana leaves inside the carton, is the silence of A
considered consent? Why?

B.2. Stop and Frisk - The right of a police officer to stop a citizen on
the street, interrogate him and pat him for weapons whenever he
observes unusual conduct which leads him to conclude that criminal
activity may be afoot.”
(Terry vs. ohio)

In People vs. Sy Chua, G.R. No. 136066-67, the Supreme Court laid down
the requirements for the application of stop and frisk –

“The police operatives cannot feign ignorance of the alleged illegal

activities of accused-appellant. Considering that the identity,
address and activities of the suspected culprit was already
ascertained two years previous to the actual arrest, there was
indeed no reason why the police officers could not have obtained
a judicial warrant before arresting accused-appellant and
searching his person. Whatever information their civilian asset
relayed to them hours before accused-appellant’s arrest was not a
product of an “on-the-spot” tip which may excuse them from
obtaining a warrant of arrest. Accordingly, the arresting team’s
contention that their arrest of accused-appellant was a product of
an “on-the-spot” tip is untenable.

In the same vein, there could be no valid “stop-and-frisk” in this

case. A stop-and-frisk was defined as the act of a police officer to
stop a citizen on the street, interrogate him, and pat him for
weapon(s)[25] or contraband. 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.[26] 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.[27] It
should therefore be emphasized that a search and seizure should
 precede the arrest for this principle to apply.[28]

This principle of “stop-and-frisk” search was invoked by the Court

in Manalili v. Court of Appeals.[29] In said case, the policemen
chanced upon the accused who had reddish eyes, walking in a
swaying manner, and who appeared to be high on drugs. Thus, we
upheld the validity of the search as akin to a “stop-and-frisk.”
In People v. Solayao,[30] we also found justifiable reason to
“stop-and-frisk” the accused after considering the following
circumstances: the drunken actuations of the accused and his
companions, the fact that his companions fled when they saw the
policemen, and the fact that the peace officers were precisely on
an intelligence mission to verify reports that armed persons where
roaming the vicinity.

B.3. Plain View - In Ker v. California42 police officers, without

securing a search warrant but having information that the defendant
husband was selling marijuana from his apartment, obtained from the
building manager a passkey to defendants' apartment, and entered it.
There they found the defendant husband in the living room. The
defendant wife emerged from the kitchen, and one of the officers, after
identifying himself, observed through the open doorway of the kitchen, a
small scale atop the kitchen sink, upon which lay a brick-shaped package
containing green leafy substance which he recognized as marijuana. The
package of marijuana was used as evidence in prosecuting defendants
for violation of the Narcotic Law. The admissibility of the package was
challenged before the U.S. Supreme Court, which held, after observing
that it was not unreasonable for the officer to walk to the doorway of the
adjacent kitchen on seeing the defendant wife emerge therefrom, that
"the discovery of the brick of marijuana did not constitute a search, since
the officer merely saw what was placed before him in full view.43 The U.S.
Supreme Court ruled that the warrantless seizure of the marijuana was
legal on the basis of the "plain view" doctrine and upheld the admissibility
of the seized drugs as part of the prosecution's evidence. 44
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.45 Furthermore, the U.S. Supreme Court
stated the following limitations on the application of the doctrine:

What the "plain view" cases have in common is that the police officer in
each of them had a prior justification for an intrusion in the course of
which he came inadvertently across a piece of evidence incriminating
the accused. The doctrine serves to supplement the prior justification —
whether it be a warrant for another object, hot pursuit, search incident to
lawful arrest, or some other legitimate reason for being present
unconnected with a search directed against the accused — and permits
the warrantless seizure. Of course, the extension of the original justification
is legitimate only where it is immediately apparent to the police that they
have evidence before them; the "plain view" doctrine may not be used to
extend a general exploratory search from one object to another until
something incriminating at last emerges.46

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.
(People vs. Musa, G.R. No. 96177, January 27, 1993)

Thus, in accordance with the docrtrine laid down in People vs. Musa, the
Supreme Court enumerated the requirements for a valid seizure of prohibited
articles base on plain view doctrine –

1. Valid intrusion based on the valid warrantless arrest;

2. The evidence was inadvertently discovered;
3. The evidence must be immediately apparent;
4. Plain view justified the seizure of the evidence without any further
search.
B.4. Search incidental to lawful arrest - In the people vs. musa case,
supra, the Honorable Supreme Court discussed the doctrine of Search incidental
to lawful arrest, thus –

“Rule 126, Section 12 of the Rules of Court expressly authorizes a

warrantless search and seizure incident to a lawful arrest, thus:

Sec. 12. 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.

There is no doubt that the warrantless search incidental to a lawful arrest

authorizes the arresting officer to make a search upon the person of the
person arrested. As early as 1909, the Court has ruled that "[a]n officer
making an arrest may take from the person arrested any money or
property found upon his person which was used in the commission of the
crime or was the fruit of the crime or which might furnish the prisoner with
the means of committing
violence or of escaping, or which may be used as evidence in the trial of
the cause . . . "38 Hence, in a buy-bust operation conducted to entrap a
drug-pusher, the law enforcement agents may seize the marked money
found on the person
of the pusher immediately after the arrest even without arrest and search
warrants.39

In the case at bar, the NARCOM agents searched the person of the
appellant after arresting him in his house but found nothing. They then
searched the entire house and, in the kitchen, found and seized a plastic
bag hanging in a corner.

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.40 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.41
THE RIGHT TO PRIVACY
AND CORRESPONDENCE.

Article III, section 3 of the 1987 Philippine Constitution states –

“The privacy of communication and correspondence shall be
inviolable except upon lawful order of the court, or when
public safety or order requires otherwise as prescribed by law.

Any evidence obtained in violation of this or the preceding

section shall be inadmissible for any purpose in any
proceeding.”

The foregoing rights/freedom is often referred to as the right to

privacy or the broader concept of the right to be alone that often
includes the right against unreasonable searches and seizure along
with the freedom of speech, liberty of abode and even right
against self-incrimination.

The right to privacy, both its existence and importance cannot be

doubted, it is one among such right that is closes and zealously
guarded by our citizens. Such a categorization can be seen in the
case of Morfe vs. Mutuc, G.R. No. L-20387, January 31, 1968, when
the Supreme Court said –

“x x x The right to privacy as such is accorded recognition

independently of its identification with liberty; in itself, it is fully
deserving of constitutional protection. The language of Prof.
Emerson is particularly apt: "The concept of limited
government has always included the idea that governmental
powers stop short of certain intrusions into the personal life of
the citizen. x x x x.”

Thus, in the case of Cecilia Zulueta vs. Court of Appeals and Alfredo
Martin, G.R. No. 107383, February 20, 1996, where the wife of Alfredo
Martin took several correspondence and papers belonging to
Alfredo Martin on suspicion that the latter is engage in extramarital
affairs, the court declared that those documents and
correspondence are inadmissible in evidence, thus –
 “Indeed the documents and papers in question are
inadmissible in evidence. The constitutional injunction
declaring "the privacy of communication and
3
correspondence [to be] inviolable" is no less applicable
simply because it is the wife (who thinks herself aggrieved by
her husband's infidelity) who is the party against whom the
constitutional provision is to be enforced. The only exception
to the prohibition in the Constitution is if there is a "lawful order
[from a] court or when public safety or order requires
otherwise, as prescribed by law."4 Any violation of this
provision renders the evidence obtained inadmissible "for any
purpose in any proceeding." 5

The intimacies between husband and wife do not justify any

one of them in breaking the drawers and cabinets of the
other and in ransacking them for any telltale evidence of
marital infidelity. A person, by contracting marriage, does not
shed his/her integrity or his right to privacy as an individual
and the constitutional protection is ever available to him or to
her.”

I want you to contrast the Zulueta case, supra, to the case of

People vs. Marti, G.R. No. 81561, January 18, 1991, where the
Supreme Court declared that violation of constitutional right cannot
be invoke against the acts of private individual. Thus, the court said
to an appreciable extent that the protection accorded by the
constitution as enshrined in the Bill of Rights can only be invoked
against unreasonable governmental intrusion but not against purely
private actions.

One should however bear in mind that the right to privacy just like
any other right is not absolute as intrusion to such right may be
permitted although admittedly, there are zones of privacy where
the polic power of the government cannot be permitted to intrude.
Thus, in the Morfe vs. mutuc case, supra, the Supreme Court
eloquently said –
 “The liberty to be safeguarded is, as pointed out by Chief
Justice Hughes, liberty in a social organization, 52 implying the
absence of arbitrary restraint not immunity from reasonable
regulations and prohibitions imposed in the interest of the
community. 53 It was Linton's view that "to belong to a society
is to sacrifice some measure of individual liberty, no matter
how slight the restraints which the society consciously
imposes." 54 The above statement from Linton however, should
be understood in the sense that liberty, in the interest of
public health, public order or safety, of general welfare, in
other words through the proper exercise of the police power,
may be regulated. The individual thought, as Justice Cardozo
pointed out, has still left a "domain of free activity that cannot
be touched by government or law at all, whether the
command is specially against him or generally against him
and others."

Obviously therefore, while it is true that the right to privacy may be

intruded by governmental powers, there are however parameters
set by the constitution and various legislation where the validity of
such intrusion rest upon the satisfaction and fulfillment of those
parameters.

So, whenever you are confronted with the issue on right to privacy,
you should always analyze it given the following parameters –

a. The presence or absence of reasonable expectation of

privacy.

b. Whether that expectation of privacy is unreasonably

breached by government intrusion.

Thus, in the consolidated cases of Sabio vs. Gordon, G.R. No. 174340,
October 17, 2006, the Supreme Court said –

“In evaluating a claim for violation of the right to privacy, a

court must determine whether a person has exhibited a
reasonable expectation of privacy and, if so, whether that
 expectation has been violated by unreasonable government
intrusion.50 Applying this determination to these cases, the
important inquiries are: first, did the directors and officers of
Philcomsat Holdings Corporation exhibit a reasonable
expectation of privacy?; and second, did the government
violate such expectation?”

On point is the case of Briccio A. Apollo vs. Chairperson Karina

Constantino-David, Et. Al., G.R. No. 181881, October 18, 2011.

This case involves an employee of the Civil Service Commission,

Briccio A. Apollo, wherein his office computer is searched and its
content copied upon the behest of Chairperson Karina
Gonstantino-David without the consent of Briccio A. Apollo. Briccio
A. Apollo then filed a suit against the Chairperson of Civil Service
Commission claiming a violation of his right to privacy.

The issue on a person’s right to expect privacy is addressed by the

court in this wise –
“In the 1967 case of Katz v. United States,31 the US Supreme
Court held that the act of FBI agents in electronically
recording a conversation made by petitioner in an enclosed
public telephone booth violated his right to privacy and
constituted a "search and seizure". Because the petitioner
had a reasonable expectation of privacy in using the
enclosed booth to make a personal telephone call, the
protection of the Fourth Amendment extends to such area. In
the concurring opinion of Mr. Justice Harlan, it was further
noted that the existence of privacy right under prior decisions
involved a two-fold requirement: first, that a person has
exhibited an actual (subjective) expectation of privacy; and
second, that the expectation be one that society is prepared
to recognize as reasonable (objective).32

In Mancusi v. DeForte33 which addressed the reasonable

expectations of private employees in the workplace, the US
Supreme Court held that a union employee had Fourth
Amendment rights with regard to an office at union
headquarters that he shared with other union officials, even
as the latter or their guests could enter the office. The Court
thus "recognized that employees may have a reasonable
expectation of privacy against intrusions by police."

That the Fourth Amendment equally applies to a government

workplace was addressed in the 1987 case of O’Connor v.
Ortega34 where a physician, Dr. Magno Ortega, who was
employed by a state hospital, claimed a violation of his
Fourth Amendment rights when hospital officials investigating
charges of mismanagement of the psychiatric residency
program, sexual harassment of female hospital employees
and other irregularities involving his private patients under the
state medical aid program, searched his office and seized
personal items from his desk and filing cabinets. In that case,
the Court categorically declared that "[i]ndividuals do not
lose Fourth Amendment rights merely because they work for
the government instead of a private employer."35 A plurality
of four Justices concurred that the correct analysis has two
steps: first, because "some government offices may be so
open to fellow employees or the public that no expectation
of privacy is reasonable", a court must consider "[t]he
operational realities of the workplace" in order to determine
whether an employee’s Fourth Amendment rights are
implicated; and next, where an employee has a legitimate
privacy expectation, an employer’s intrusion on that
expectation "for noninvestigatory, work-related purposes, as
well as for investigations of work-related misconduct, should
be judged by the standard of reasonableness under all the
circumstances."36

On the matter of government employees’ reasonable

expectations of privacy in their workplace, O’Connor
teaches:

x x x Public employees’ expectations of privacy in their

offices, desks, and file cabinets, like similar expectations of
employees in the private sector, may be reduced by virtue of
actual office practices and procedures, or by legitimate
regulation. x x x The employee’s expectation of privacy must
be assessed in the context of the employment relation. An
office is seldom a private enclave free from entry by
supervisors, other employees, and business and personal
invitees. Instead, in many cases offices are continually
entered by fellow employees and other visitors during the
workday for conferences, consultations, and other
work-related visits. Simply put, it is the nature of government
offices that others – such as fellow employees, supervisors,
consensual visitors, and the general public – may have
frequent access to an individual’s office. We agree with
JUSTICE SCALIA that "[c]onstitutional protection against
unreasonable searches by the government does not
disappear merely because the government has the right to
make reasonable intrusions in its capacity as employer," x x x
but some government offices may be so open to fellow
employees or the public that no expectation of privacy is
reasonable. x x x Given the great variety of work
environments in the public sector, the question of whether an
employee has a reasonable expectation of privacy must be
addressed on a case-by-case basis.37 (Citations omitted;
emphasis supplied.)

On the basis of the established rule in previous cases, the US

Supreme Court declared that Dr. Ortega’s Fourth
Amendment rights are implicated only if the conduct of the
hospital officials infringed "an expectation of privacy that
society is prepared to consider as reasonable." Given the
undisputed evidence that respondent Dr. Ortega did not
share his desk or file cabinets with any other employees, kept
personal correspondence and other private items in his own
office while those work-related files (on physicians in
residency training) were stored outside his office, and there
being no evidence that the hospital had established any
reasonable regulation or policy discouraging employees from
storing personal papers and effects in their desks or file
cabinets (although the absence of such a policy does not
create any expectation of privacy where it would not
 otherwise exist), the Court concluded that Dr. Ortega has a
reasonable expectation of privacy at least in his desk and file
cabinets.”

On the other hand, the requirement of reasonableness of intrusion

into the right to privacy is addressed by the Supreme Court in the
following manner –
“we must determine the appropriate standard of
reasonableness applicable to the search. A determination of
the standard of reasonableness applicable to a particular
class of searches requires "balanc[ing] the nature and quality
of the intrusion on the individual’s Fourth Amendment interests
against the importance of the governmental interests alleged
to justify the intrusion." x x x In the case of searches conducted
by a public employer, we must balance the invasion of the
employees’ legitimate expectations of privacy against the
government’s need for supervision, control, and the efficient
operation of the workplace.

xxxx

In our view, requiring an employer to obtain a warrant

whenever the employer wished to enter an employee’s
office, desk, or file cabinets for a work-related purpose would
seriously disrupt the routine conduct of business and would be
unduly burdensome. Imposing unwieldy warrant procedures
in such cases upon supervisors, who would otherwise have no
reason to be familiar with such procedures, is simply
unreasonable. In contrast to other circumstances in which we
have required warrants, supervisors in offices such as at the
Hospital are hardly in the business of investigating the
violation of criminal laws. Rather, work-related searches are
merely incident to the primary business of the agency. Under
these circumstances, the imposition of a warrant requirement
would conflict with the "common-sense realization that
government offices could not function if every employment
decision became a constitutional matter." x x x

xxxx
The governmental interest justifying work-related intrusions by
public employers is the efficient and proper operation of the
workplace. Government agencies provide myriad services to
the public, and the work of these agencies would suffer if
employers were required to have probable cause before
they entered an employee’s desk for the purpose of finding a
file or piece of office correspondence. Indeed, it is difficult to
give the concept of probable cause, rooted as it is in the
criminal investigatory context, much meaning when the
purpose of a search is to retrieve a file for work-related
reasons. Similarly, the concept of probable cause has little
meaning for a routine inventory conducted by public
employers for the purpose of securing state property. x x x To
ensure the efficient and proper operation of the agency,
therefore, public employers must be given wide latitude to
enter employee offices for work-related, noninvestigatory
reasons.

We come to a similar conclusion for searches conducted

pursuant to an investigation of work-related employee
misconduct. Even when employers conduct an investigation,
they have an interest substantially different from "the normal
need for law enforcement." x x x Public employers have an
interest in ensuring that their agencies operate in an effective
and efficient manner, and the work of these agencies
inevitably suffers from the inefficiency, incompetence,
mismanagement, or other work-related misfeasance of its
employees. Indeed, in many cases, public employees are
entrusted with tremendous responsibility, and the
consequences of their misconduct or incompetence to both
the agency and the public interest can be severe. In contrast
to law enforcement officials, therefore, public employers are
not enforcers of the criminal law; instead, public employers
have a direct and overriding interest in ensuring that the work
of the agency is conducted in a proper and efficient manner.
In our view, therefore, a probable cause requirement for
searches of the type at issue here would impose intolerable
burdens on public employers. The delay in correcting the
employee misconduct caused by the need for probable
cause rather than reasonable suspicion will be translated into
tangible and often irreparable damage to the agency’s work,
and ultimately to the public interest. x x x

xxxx

In sum, we conclude that the "special needs, beyond the

normal need for law enforcement make
the…probable-cause requirement impracticable," x x x for
legitimate, work-related noninvestigatory intrusions as well as
investigations of work-related misconduct. A standard of
reasonableness will neither unduly burden the efforts of
government employers to ensure the efficient and proper
operation of the workplace, nor authorize arbitrary intrusions
upon the privacy of public employees. We hold, therefore,
that public employer intrusions on the constitutionally
protected privacy interests of government employees for
noninvestigatory, work-related purposes, as well as
for investigations of work-related misconduct, should be
judged by the standard of reasonableness under all the
circumstances. Under this reasonableness standard, both the
inception and the scope of the intrusion must be reasonable:

"Determining the reasonableness of any search involves a

twofold inquiry: first, one must consider ‘whether the…action
was justified at its inception,’ x x x ; second, one must
determine whether the search as actually conducted ‘was
reasonably related in scope to the circumstances which
justified the interference in the first place,’" x x x

Ordinarily, a search of an employee’s office by a supervisor

will be "justified at its inception" when there are reasonable
grounds for suspecting that the search will turn up evidence
that the employee is guilty of work-related misconduct, or
that the search is necessary for a noninvestigatory
work-related purpose such as to retrieve a needed file. x x
x The search will be permissible in its scope when "the
measures adopted are reasonably related to the objectives
 of the search and not excessively intrusive in light of …the
nature of the [misconduct]." x x x39 (Citations omitted;
emphasis supplied.)”

Remember that rules enunciated in here equally applies to employees

under the private sectors. Remember also that the requirement of search
warrant ordained by the constitution as a condition for the validity of any
intrusion into the right to privacy will not apply work places setting.

QUESTION NO. 1 - A company wanted to issue to its employees a

5G smart phone obviously to facilitate continuous, fast and reliable means
of communication for the company’s clientele and for company’s
marketing strategy. However, the company is likewise aware that the
issuance of phone may adversely affect the performance of its
employees since the phone model to be issued has unlimited access to
the internet. Supposed you are engaged by the company to resolve this
dilemma, what will your advice be?

The case of Rhona Ave S. Vivares and Sps. Margarita and David Suzara vs.
St., Theresa’s College, Et. Al., G.R. No. 202666, September 29, 2014 is timely
as the attendant circumstances in this case revolves around a facebook
posts.

For proper context, the Supreme Court of the Philippines in the case of
Sabio vs. Gordon, supra, has recognized zones of privacy, thus, according
to the court –

“zones of privacy are recognized and protected in our laws.46 Within

these zones, any form of intrusion is impermissible unless excused by
law and in accordance with customary legal process. The
meticulous regard we accord to these zones arises not only from
our conviction that the right to privacy is a "constitutional right" and
"the right most valued by civilized men,"47 but also from our
adherence to the Universal Declaration of Human Rights which
mandates that, "no one shall be subjected to arbitrary interference
with his privacy" and "everyone has the right to the protection of the
law against such interference or attacks."48

Our Bill of Rights, enshrined in Article III of the Constitution, provides

at least two guarantees that explicitly create zones of privacy. It
 highlights a person's "right to be let alone" or the "right to determine
what, how much, to whom and when information about himself
shall be disclosed."49 Section 2 guarantees "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." Section 3 renders inviolable the "privacy of
communication and correspondence" and further cautions that
"any evidence obtained in violation of this or the preceding section
shall be inadmissible for any purpose in any proceeding."

In evaluating a claim for violation of the right to privacy, a court

must determine whether a person has exhibited a reasonable
expectation of privacy and, if so, whether that expectation has
been violated by unreasonable government intrusion x x x x.”

These zones of privacy is then identified in the St. Theresa’s College case,
supra, as –

a. Locational/situational privacy.

b. Informational privacy, and

c. Decisional privacy.

Decisional Privacy involves the right to independently make an important

decision.

Informational Privacy on the other hand refers to the right to avoid

disclosure of information or to control what information may be disclosed.
It is has two (2) aspect –

a. The right not to disclose any personal information;

b. The right to live free of survailance and intrusion.

Locational Privacy in turn refers to the right of the persons to be free and
secure on their houses including their papers and effects.

Since what is involved in the St. Theresa’s College case pertains to

Informational privacy/zones, the Supreme Court said this –
“Facebook connections are established through the process of
"friending" another user. By sending a "friend request," the user
invites another to connect their accounts so that they can view any
and all "Public" and "Friends Only" posts of the other.Once the
request is accepted, the link is established and both users are
permitted to view the other user’s "Public" or "Friends Only" posts,
among others. "Friending," therefore, allows the user to form or
maintain one-to-one relationships with other users, whereby the user
gives his or her "Facebook friend" access to his or her profile and
shares certain information to the latter.29

To address concerns about privacy,30 but without defeating its

purpose, Facebook was armed with different privacy tools designed
to regulate the accessibility of a user’s profile31 as well as
information uploaded by the user. In H v. W,32 the South Gauteng
High Court recognized this ability of the users to "customize their
privacy settings," but did so with this caveat: "Facebook states in its
policies that, although it makes every effort to protect a user’s
information, these privacy settings are not foolproof."33

For instance, a Facebook user canregulate the visibility and

accessibility of digital images(photos), posted on his or her personal
bulletin or "wall," except for the user’sprofile picture and ID, by
selecting his or her desired privacy setting:

(a) Public - the default setting; every Facebook user can view
the photo;

(b) Friends of Friends - only the user’s Facebook friends and

their friends can view the photo;

(b) Friends - only the user’s Facebook friends can view the
photo;

(c) Custom - the photo is made visible only to particular

friends and/or networks of the Facebook user; and

(d) Only Me - the digital image can be viewed only by the

user.
 The foregoing are privacy tools, available to Facebook users,
designed to set up barriers to broaden or limit the visibility of his or
her specific profile content, statuses, and photos, among others,
from another user’s point of view. In other words, Facebook extends
its users an avenue to make the availability of their Facebook
activities reflect their choice as to "when and to what extent to
disclose facts about [themselves] – and to put others in the position
of receiving such confidences."34 Ideally, the selected setting will be
based on one’s desire to interact with others, coupled with the
opposing need to withhold certain information as well as to
regulate the spreading of his or her personal information. Needless
to say, as the privacy setting becomes more limiting, fewer
Facebook users can view that user’s particular post.

Given the existence of several so called privacy tools in social networking

media, to what extent among such tools that an account holder may
reasonably expect privacy? To answer this, the Supreme Court said –

“Before one can have an expectation of privacy in his or her OSN

activity, it is first necessary that said user, in this case the children of
petitioners, manifest the intention to keep certain posts private,
through the employment of measures to prevent access thereto or
to limit its visibility.36 And this intention can materialize in cyberspace
through the utilization of the OSN’s privacy tools. In other words,
utilization of these privacy tools is the manifestation, in cyber world,
of the user’s invocation of his or her right to informational privacy.”

Be that as it is, the utilization of certain so called privacy tools do not

automatically translate to expectation of privacy considering the
environment and the system with which social networking sites operate,
thus, the Supreme Court warned that –

“That the photos are viewable by "friends only" does not necessarily
bolster the petitioners’ contention. In this regard, the cyber
community is agreed that the digital images under this setting still
remain to be outside the confines of the zones of privacy in view of
the following:
 (1) Facebook "allows the world to be more open and
connected by giving its users the tools to interact and
share in any conceivable way;"47

(2) A good number of Facebook users "befriend" other users

who are total strangers;48

(3) The sheer number of "Friends" one user has, usually by the
hundreds; and

(4) A user’s Facebook friend can "share"49 the former’s post, or

"tag"50 others who are not Facebook friends with the former,
despite its being visible only tohis or her own Facebook
friends.

It is well to emphasize at this point that setting a post’s or profile

detail’s privacy to "Friends" is no assurance that it can no longer be
viewed by another user who is not Facebook friends with the source
of the content. The user’s own Facebook friend can share said
content or tag his or her own Facebook friend thereto, regardless of
whether the user tagged by the latter is Facebook friends or not
with the former. Also, when the post is shared or when a person is
tagged, the respective Facebook friends of the person who shared
the post or who was tagged can view the post, the privacy setting
of which was set at "Friends."

To illustrate, suppose A has 100 Facebook friends and B has 200. A

and B are not Facebook friends. If C, A’s Facebook friend, tags B in
A’s post, which is set at "Friends," the initial audience of 100 (A’s own
Facebook friends) is dramatically increased to 300 (A’s 100 friends
plus B’s 200 friends or the public, depending upon B’s privacy
setting). As a result, the audience who can view the post is
effectively expanded––and to a very large extent.

This, along with its other features and uses, is confirmation of

Facebook’s proclivity towards user interaction and socialization
 rather than seclusion or privacy, as it encourages broadcasting of
individual user posts. In fact, it has been said that OSNs have
facilitated their users’ self-tribute, thereby resulting into the
"democratization of fame."51 Thus, it is suggested, that a profile, or
even a post, with visibility set at "Friends Only" cannot easily, more so
automatically, be said to be "very private," contrary to petitioners’
argument.”

As to the claimed violation of the right to privacy by the school’s official,

the supreme court said that the school official did not violate any privacy
right of the student since they are merely recipient of the contested
pictures from the other students who are friends with the complaining
students, thus –
“As applied, even assuming that the photos in issue are visible only
to the sanctioned students’ Facebook friends, respondent STC can
hardly be taken to task for the perceived privacy invasion since it
was the minors’ Facebook friends who showed the pictures to Tigol.
Respondents were mere recipients of what were posted. They did
not resort to any unlawful means of gathering the information as it
was voluntarily given to them by persons who had legitimate
access to the said posts. Clearly, the fault, if any, lies with the friends
of the minors. Curiously enough, however, neither the minors nor
their parents imputed any violation of privacy against the students
who showed the images to Escudero.”

Now, how about to persons detained, do these persons have the right to
privacy?, this question is answered in the case of “In the Matter of the
Petition for Habeas Corpus of Capt. Gary Alejano, PN (Marines), Et. Al., vs.
Gen. Pedro Cabuay, Et. Al., G.R. No. 160792, August 25, 2005.
The Supreme Court said in that case that detention prisoners and convicts
have diminished right to privacy but they are nonetheless entitled to
privacy of correspondence but even that right may be subjected to
reasonable regulation to achieve a goal of preserving security and
preventing scape. Thus, the Supreme Court said –

“American cases recognize that the unmonitored use of pre-trial

detainees’ non-privileged mail poses a genuine threat to jail
security.57 Hence, when a detainee places his letter in an envelope
for non-privileged mail, the detainee knowingly exposes his letter to
possible inspection by jail officials.58 A pre-trial detainee has no
reasonable expectation of privacy for his incoming mail.59 However,
incoming mail from lawyers of inmates enjoys limited protection
such that prison officials can open and inspect the mail for
contraband but could not read the contents without violating the
inmates’ right to correspond with his lawyer.60 The inspection of
privileged mail is limited to physical contraband and not to verbal
contraband.61

Thus, we do not agree with the Court of Appeals that the opening
and reading of the detainees’ letters in the present case violated
the detainees’ right to privacy of communication. The letters were
not in a sealed envelope. The inspection of the folded letters is a
valid measure as it serves the same purpose as the opening of
sealed letters for the inspection of contraband.

The letters alleged to have been read by the ISAFP authorities were
not confidential letters between the detainees and their lawyers.
The petitioner who received the letters from detainees Trillanes and
Maestrecampo was merely acting as the detainees’ personal
courier and not as their counsel when he received the letters for
mailing. In the present case, since the letters were not confidential
communication between the detainees and their lawyers, the
officials of the ISAFP Detention Center could read the letters. If the
letters are marked confidential communication between the
detainees and their lawyers, the detention officials should not read
the letters but only open the envelopes for inspection in the
presence of the detainees.

That a law is required before an executive officer could intrude on a

citizen’s privacy rights62 is a guarantee that is available only to the
public at large but not to persons who are detained or imprisoned.
The right to privacy of those detained is subject to Section 4 of RA
7438, as well as to the limitations inherent in lawful detention or
imprisonment. By the very fact of their detention, pre-trial detainees
and convicted prisoners have a diminished expectation of privacy
rights.