Searches and Seizures

Right to privacy
• Right against unlawful searches and seizures is component of person’s right to privacy. Under
the constitution, any evidence obtained as a consequence of unlawful is inadmissible.
• search warrant is an order in writing issued in the name of the People of the Philippine, signed
by the Judge and directed to a peace officer commanding him to search for personal property
described therein and bring it before the court.. Is not a criminal action and does not represent
commencement of criminal action. Not a proceeding against person but solely for discovery and
to get possession of personal property. Resembles somehow John Doe proceedings. No need
conformity public prosecutor in motion to quash the same
• Generally not applicable to searches of private individuals unless acting under color of state
related function, like port personnel making inspection, or barangay based volunteer group
performing

Constitutional provision.
“The right of the people to be secure in their 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, particularly
describing the place to be searched or persons and things to be seized.

Any evidence obtained in violation of this shall be inadmissible for any purpose or
proceeding..”

Arrest distinguished from search and seizure.

• Issuance of warrant of arrest presupposes existence of a pending criminal case giving rise to the
warrant Search warrant does not require existence of criminal case. It may be issued prior to
filing of criminal case.
• Rules on arrest are concerned with seizure of a person to answer for commission of an offense,
search is to look for personal properties subject of offense, fruits of offense to intended to be
used to commit an offense.’
• Probable cause to arrest different from probable cause to search
• Warrant of arrest has no limitation as to time duration unlike search warrant, good only for ten d
days.,
• Arrest with a warrant may be effective any time of day or night. Search warrants usually
conducted in day time.
Where application for search or seizure filed.
• Usually within the territorial jurisdiction where crime was committed. Or within judicial region
where crime was committed, if known. Or Judicial region where warrant maybe enforced. For
the last two, justified by compelling reason.
• Venue here does not mean it is jurisdictional unlike in crime.
• The application for issuance of the same may be done ex-parte.

Search warrants for heinous crimes, illegal gambling, dangerous drugs,

and illegal possession of firearms
• Under Rule of Body-worn Cameras, applications may be filed with and acted by the Executive
Judge or Vice Executive Judge of a Regional Trial Court, with the warrant enforceable within the
judicial region of the RTC issuing the warrant.
• For example, Executive Judge of Pasay may issue such warrant enforceable within Metro Manila
(National Capital Judicial Region). Executive Judge of Bacolod RTC may issue such warrant
enforceable in Iloilo City (Sixth Judicial Region)

Property subject of a search warrant –

• Personal property of the offense;
• Personal property stolen or embezzled and other proceeds or fruits of the offense
• Personal property used or intended to be used as a means of committing an offense.
• Only personal properties described in the search warrant may be included in the search.

Requisites for issuance of search warrant:

a) Must be upon a probable cause
b) Probable cause personally determined by the Judge after examination of complainant and
witnesses under oath or affirmation
c) Must particularly describe the place to be searched and persons or things to be searched.
• Presence of stenographic notes is not required.
• Key here again is existence of probable cause. No hard and fast rule. But really a judicial
determination this time.

How Judge conducts the examination.

• Examination personally conducted by the Judge.
• Examination by means of searching question and answers
• Complainant examined on facts known to him
• Statements under oath and in writing
• Sworn statements of complainant, together with affidavits attached to the record of case.
• Thus , cannot just be based on reliable information of complainant
• Searching questions conducted not just pro-forma.
• Description of place, but not necessarily as to the name of the owner of place.
 • If things to be searched or described with particularity , thus, general warrant which is not
sufficient.
• Search is valid if it enabled police officers to identify the properties seized and leaves them no
discretion.
• Ownership of seized property not required, warrant is good for ten days.
• To be made in presence of lawful occupant or in his absence, in the presence of 2 witnesses of
sufficient age and discretion. Officer seizing to give detailed receipts.
• May break open if refused entry, and break also to get out..
• Objection to regularity of the search warrant to be made before entry of plea,
• Motion to quash or suppress search warrant to be filed where action has been instituted,
• Legality of search may only be question by real party in interest, those whose rights are
affected.
• Public prosecutor need not give consent to aggrieved arty moving for quashal of search warrant
• \as this does nt involve a criminal action yet where the State is involved.
• Order for issuance of search may be interlocutory if already part of pending criminal action, and
final one if there is no criminal action yet. So remedy to question either by certiorari or appeal
• Generally before search authorized there must be search warrant issued by the court.

Instances when search warrant not necessary (permissible warrantless

arrests)
• Warrantless search incidental to a lawful arrest;
• Seizure in plain view;
• search of moving vehicle
• consented warrantless arrest
• customs arrest
• Stop and frisk or Terry searches
• emergency circumstances
• search of vessels and aircraft
• Inspection of buildings and other premises for enforcement of fire, sanitary and building
regulations.

Search incident of lawful arrest.

• The lawful arrest must always precede the search, or at least substantially contemporaneous with
arrest or arresting officer have probable cause to make arrest in the form of overt acts. If no lawful
arrest, no lawful search
• Person arrested may be searched for dangerous weapons or anything used as incident of the
offense or for commission of the offense.
• Purpose is to protect arresting officer from harm or prevent destruction of evidence within reach,
• In case of lawful arrest, arresting officer may search within permissible area within the latter’s
reach or his control.
Search of moving vehicle.
• This involves car search doctrine or Carrol doctrine.
• In cars or moving vehicle it may be impractical to require warrant before search. However,
there’s still need for probable cause

Checkpoints
• Is variant of search of moving vehicle.
• Checkpoints may be allowed when needed by exigencies of the times However, does not include
body search generally.
• Usually limited only to visual search.

Customs or ports inspection

• Bag inspections by port authorities need no search warrant. Travelers usually voluntarily submit
themselves to this and there is an implied waiver at the very least.

Plain view doctrine

• Under plain view doctrine, objects may be seized without warrant falling in plain view of an
officer who has a right to be in a particular place.
• Policeman flags down vehicle and saw in his plain view a contraband item. There’s a reasonable
ground to seize them
• The discovery must be inadvertently made. And it becomes immediately apparent that such
objects may be evidence of crimes committed.
• Case of Valeroso vs. CA, 698 SCRA 41, not in plain view when the firearms basis for charged of
illegal possession were found inside a cabinet in another room when Valeroso was being
arrested for charge of kidnapping. Held that the search was illegal.

Stop and frisk (Terry searches)

• Doctrine originates from the US case of Terry v. Ohio. Veteran police officer M. McFadden was in
his usual eat. He saw two me suspiciously actin outside a convenience store. He identified
himself and ask them to identify themselves patted down the outer garment of one of them of
one them, Terry, and felt a gun in his pocket. The gun was removed from Terry and on basis of
which he was charged with carrying a concealed weapon, and convicted. That seizure was
justified and became the basis of the so called Terry doctrine – then origin of stop and frisk
doctrine. The test of the conduct of the police officer here is the genuine belief or reason that a
crime is about o be committed and the police officer has authority to pat the outer garment or
clothing for possible weapon that may be used against the officer.

Consented searches.
• Consented searches occurs when a person gives law enforcement agent permission to search
areas in which such person has a reasonable expectation of privacy. Must be voluntary. Cannot
be inferred from mere silence. Proof upon the State to show such voluntary consent.
Canine/dog sniff test
• Does sniff of trained dog constitute search requiring prior search warrant. Sniff test may be
done in private residences, airport, highways etc.
• In Florida vs. Jardines, a US case , where t was held employment of trained drug detention dog
in front porches o private home, in absence of owner of homeowner requires search warrant.
Held, yes, such is search requiring search warrant.
• But in the airport it’s a different story. Sniff of trained dog in airport is not search and does not
require search warrant. Sniff itself not search.
• Likewise sniffs of canine in vehicles allowed , nor search so long as not prolonged.

Use of thermal imaging devises.

• Whether use of thermal imaging device whether suspect is growing marijuana is search and
there there’s need for warrant has been answered in the case if Kylo vs. US, 389 U.S. 347. I was
held that use of device not generally for public use to explore details of private hme is search
and need warrant.

Effect of an illegal search and seizure; fruit of the poisonous tree

doctrine
• Evidence obtained as result of illegal search and seizure is inadmissible as evidence.
• There is exclusionary rule here, in admissible as evidence.
• Warrant illegally obtained maybe quashed through a motion to quash the warrant filed in court
• The rule now prevailing is exclusionary abandoning the Moncado doctrine, as enunciated in
Stonehill vs. Diokno

Civil damages; criminal liability.

• Those aggrieved may file separate action for damages because of improper issuance or
implementation of the writ. The civil liability here is on the basis of an in independent civil
action. Under Art. 32 (9) 0f Civil Code. Independent of criminal liability that may arise from
violation of provisions of the Revised Penal Code on violation of domicile etc.
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