Search and Seizure

General Rule: There must be a search warrant before the peace officer can implement the search. Exceptions: Valid Search even without search
Constitutional guarantee: Article 3, Sec 2. Of the 1987 Constitution. warrant
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 1. Warrantless search incidental to a lawful arrest.
judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be a. First, there must be a lawful arrest.
searched and the persons or things to be seized. 1.1 There is a lawful arrest if the arrest is
with arrest warrant
What is a search warrant? 1.2 There is a lawful arrest even without
Section 1, Rule 126 of Criminal Procedure Search warrant defined. — A search warrant is an order in writing issued in the name of the People of the arrest warrant when:
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 a.1 In flagrante delicto
court. a.2 Hot pursuit
a.3 Escapee
b. Second, the peace officer may body search
the person for dangerous weapons for his
1 2 protection, including the area within the reach
3 of the alleged offender.
APPLICATION Issuance of Search Warrant
Section 13. Search incident to lawful arrest. — A person lawfully
ISSUED SEARCH arrested may be searched for dangerous weapons or anything which
Section 2, Rule 126 of the WARRANT may have been used or constitute proof in the commission of an
Criminal Procedure - Court offense without a search warrant
GRANTED DENIED Section 10. Validity of 2. Plain view doctrine:
where application for search Provided the following
warrant shall be filed. — An requisites are present? search warrant. — A Elements:
. Absent any of the search warrant shall be a) the law enforcement officer in search of the evidence has
application for search warrant requisites the
Section 4. Requisites valid for ten (10) days a prior justification for an intrusion or is in a position
shall be filed with the following: application for search from its date. Thereafter
for issuing search from which he can view a particular area; (prior valid
a) Any court within whose warrant. — A search warrant is denied it shall be void. (9a) intrusion, right of the peace officer to be there)
territorial jurisdiction a crime warrant shall not issue (b) the discovery of evidence in plain view is inadvertent:
was committed. except upon
1. probable cause in
(No further search)
b) For compelling reasons connection with one 1 (c) it is immediately apparent to the officer that the item
stated in the application, any specific offense he observes may be evidence of a crime, contraband or
court within the judicial region Note: Probable cause otherwise subject to seizure.
demands more than
where the crime was a bare suspicion, it
committed if the place of the requires less than 3. Checking of a moving vehicles
evidence which It is not practicable to secure a warrant because the
commission of the crime is vehicle can be moved out of the locality or jurisdiction in
would justify
known, or any court within the conviction. 4 which the warrant may be sought.
judicial region where the 2. to be determined IMPLEMENT THE SEARCH
warrant shall be enforced. personally by the
judge
4. Checkpoints
1. Must be implemented within the 10 day period from a. Valid establishment of checkpoints, for as long as
3. after examination
under oath or the issuance of the Search Warrant, otherwise, the they are warranted by exigencies of public order
NOTE: If the case was Search warrant is void.
affirmation of the b. Conducted in a way least intrusive to motorists. Brief
already filed, the search complainant and 2. Section 9. Time of making search. — The warrant detention of travelers during which the vehicle
warrant may be filed in the the witnesses he must direct that it be served in the day time, unless occupants are required to answer a brief question or
court where the criminal may produce, and the affidavit asserts that the property is on the
4. particularly
two.
case is pending. person or in the place ordered to be searched, in
describing the place
to be searched and which case a direction may be inserted that it be 5. Consented Search
the things to be served at any time of the day or night. a. The right exists;
seized which may be b. The person has knowledge of the existence of such
anywhere in the right;
Philippines
c. Said person had an actual intention to relinquish the
right;
d. Must be freely and voluntarily given, no force or
3 5 intimidation to secure such consent.
ALLOW THE SEARCH REFUSAL TO
CONDUCT THE 6. Terry Searches or Stop and Frisk
TIME:
Personal property to be seized. — A search warrant SEARCH
may be issued for the search and seizure of personal
property: Section 9. Time of making Stop – There must be a valid stop, an officer must have a
search. — The warrant must
direct that it be served in the day reasonable and articulate belief that criminal activity has
(a) Subject of the offense; Section 7. Right to break door or happened or about to happen.
time, unless the affidavit asserts
that the property is on the person window to effect search. — The
(b) Stolen or embezzled and other proceeds, or or in the place ordered to be officer, if refused admittance to
fruits of the offense; or searched, in which case a the place of directed search after Frisk – The frisk must be done because of a reasonable
direction may be inserted that it giving notice of his purpose and belief that a person stopped is in possession of a weapon
(c) Used or intended to be used as the means of be served at any time of the day authority, may break open any that will pose a danger to the officer and others. The frisk
committing an offense. or night outer or inner door or window of a must be a mere pat down outside the person’s outer
Particular Description of place or person
house or any part of a house or garment and not unreasonably intrusive.
MANNER
anything therein to execute the Dual purpose:
Section 8. Search of house, room, or warrant or liberate himself or any
The long standing rule is that a description of the place person lawfully aiding him when
a. The general interest of effective crime prevention and
premise to be made in presence of
to be searched is sufficient if the officer with the warrant
two witnesses. — No search of a unlawfully detained therein. detection and
can, with reasonable effort, ascertain and identify the b. Safety of the police officer to take steps to assure
house, room, or any other premise
place intended and distinguish it from other places in shall be made except in the presence
the community. Any designation or description that himself that the person with whom he deals with is
of the lawful occupant thereof or any
points out the place to the exclusion of all others, and on member of his family or in the not armed with a deadly weapon that could be used
inquiry leads the officers unerringly to it, satisfies the absence of the latter, two witnesses against him.
constitutional requirement. of sufficient age and discretion
residing in the same locality.
NOTE: If the warrant failed to particularly described the
place to be searched and the thing to be seized it is
known as general warrant.

6 Canine/ Dog sniff test

1. The employment by the police if a trained drug detection dog is to sniff for
NOTE: 5
BRING THE ITEM TO THE COURT – DUTIES OF THE narcotics on the front porch of a private home, in the absence of consent of the
OFFICER home owner, requires a search warrant.
Fruit of the poisonous tree doctrine
1. Forthwith the delivery of the property seized to the 2. A sniff by a police dog specially trained to detect the presence of a narcotics in
judge who issued the search warrant. an airport is not a search. Hence, no search warrant is needed. It is intended
If the evidence is obtained through an unlawful search the seized item is inadmissible in 2. He must, together with the delivery of the property, only to reveal only the presence or absence of narcotics and, thus, a warrant is
evidence against the accused. also deliver the a true inventory of the property generally not required.
seized. Such inventory must be duly verified under Thermal imaging device
However, if you were the alleged accused, you have the obligation to question the invalid oath.
search before you enter the plea. Failure to question the validity of the search makes the NOTE: Violation of the duties shall constitute 1. The use of thermal imaging device to determine whether the allegedly offender
us growing marijuana inside his house, is a search, and thus, required a warrant
evidence admissible. contempt of court
2. Except if the thermal imaging device is used in a public place.