V-D. Arrests, Searches and Seizures

Art. III, Sec. 2 and 3

Section 2. 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.

Section 3.

1. 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.

2. Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

Preliminaries

1. Definition, Source and Construction of provision

a. Definition (search warrant)

A search warrant is an order in writing issued in the name of the People of the Philippines, signed by a judge and

directed to a peace officer, commanding him to search for personal property described therein and bring it before the court. ( Section 1, Rule 126, Revised Rules of Court)

b. Origin

The present constitutional provision on the guarantee against unreasonable search and seizure had its origin in the 1935 Charter (Section 1 [3], Article III) which was worded as “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined 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.” Said provision was in turn derived almost verbatim from the Fourth Amendment to the United States Constitution, which provided that “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (People vs. Andre Marti [GR 81561, 18 January 1991])

c. Construction

As the protection of the citizen and the maintenance of his constitutional rights is one of the highest duties and privileges of the court, these constitutional guaranties

should be given a liberal construction or a strict construction in favor of the individual, to prevent stealthy encroachment upon, or gradual depreciation of, the rights secured by them (State vs. Custer County, 198 Pac., 362; State vs. McDaniel, 231 Pac., 965; 237 Pac., 373). Since the proceeding is a drastic one, it is the general rule that statutes authorizing searches and seizures or search warrants must be strictly construed (Rose vs. St. Clair, 28 Fed. [2d], 189; Leonard vs. U. S., 6 Fed. [2d], 353; Perry vs. U. S., 14 Fed. [2d], 88; Cofer vs. State, 118 So., 613).

The Fourth Amendment’s policy against unreasonable searches and seizures authorizes warrants to search for contraband, fruits or instrumentalities of crime, or “any property that constitutes evidence of the commission of a criminal offense.” Upon proper showing, the warrant is to issue “identifying the property and naming or describing the person or place to be searched.” Probable cause for the warrant must be presented, but there is nothing in the Rule indicating that the officers must be entitled to arrest the owner of the “place” to be searched before a search warrant may issue and the “property” may be searched for and seized. The Rule deals with warrants to search, and is unrelated to arrests. Nor is there anything in the Fourth Amendment indicating that absent probable cause to arrest a third party, resort must be had to a subpoena. (Zurcher vs. Stanford Daily [436 US 547, 31 May 1978])

Searches and seizures, in a technical sense, are independent of, rather than ancillary to, arrest and

arraignment (ALI, A Model Code of Pre-Arraignment Procedure, Commentary 491; Proposed Off. Draft 1975).

2. Court’s Function, as to Search and Seizure

a. Issuance of search warrants, and power to quash warrants

It is undisputed that only judges have the power to issue search warrants. (Salazar vs. Achacoso, 183 SCRA 145 [1990]) This function is exclusively judicial. Inherent in the courts’ power to issue search warrants is the power to quash warrants already issued. In this connection, the Supreme Court has ruled that the motion to quash should be filed in the court that issued the warrant unless a criminal case has already been instituted in another court, in which case, the motion should be filed with the latter. (People vs. Court of Appeals, 291 SCRA 400 [1998]).

Because of the fundamental public interest in implementing the criminal law, the search warrant, a heretofore effective and constitutionally acceptable enforcement tool, should not be suppressed on the basis of surmise and without solid evidence supporting the change. Forbidding the warrant and insisting on the subpoena instead when the custodian of the object of the search is not then suspected of crime, involves serious hazards to criminal investigation. (Zurcher vs. Stanford Daily [436 US 547, 31 May 1978])

b. Determination of validity of search and seizure

What constitutes a reasonable or even an unreasonable search in any particular case is purely a judicial question, determinable from a consideration of the circumstances involved. (Valmonte v. De Villa, 178 SCRA 211, 216 [1989])

1. Purpose and Importance of the guaranty

a. Purpose

The purpose of the constitutional provisions against unlawful searches and seizures is to prevent violations of private security in person and property, and unlawful invasions of the sanctity of the home, by officers of the law acting under legislative or judicial sanction, and to give remedy against such usurpations when attempted. (Adams vs. New York, 192 U. S., 585.) But it does not prohibit the Government from taking advantage of unlawful searches made by a private person or under authority of state law. (Weeks vs. United States, 232 U. S., 383; Burdeau vs. McDowell, 256 U. S., 465.)

The house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose. (Semayne’s Case, 77 Eng. Rep. 194, 5 Co. Rep. 91a, 91b, 195 [K. B.]) The overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic” meant that absent a warrant or exigent circumstances, police could not enter a home to make an arrest. An arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason

to believe the suspect is within. (Payton v. New York , 445 U. S. 573, 603-604 (1980])

b. Importance

As explained in People v. Burgos (144 SCRA 1) citing Villanueva v. Querubin (48 SCRA 345): “It is deference to one’s personality that lies at the core of this right but it could be also looked upon as a recognition of a constitutionally protected area, primarily one’s home, but not necessarily thereto confined. (Cf. Hoffa v. United States, 385 US 293 [1966]) What is sought to be guarded is a man’s prerogative to choose who is allowed entry to his residence. In that haven of refuge, his individuality can assert itself not only in the choice of who shall be welcome but likewise in the kind of objects he wants around him. There the state, however powerful, does not as such have access except under the circumstances above noted, for in the traditional formulation, his house, however humble, is his castle. Thus is outlawed any unwarranted intrusion by government, which is called upon to refrain from any invasion of his dwelling and to respect the privacies of his life. (Cf. Schmerber v. California, 384 US 757 [1966], Brennan, J. and Boyd v. United States, 116 630 [1886]). In the same vein, Landynski in his authoritative work (Search and Seizure and the Supreme Court [1966]), could fitly characterize constitutional right as the embodiment of a `spiritual concept: the belief that to value the privacy of home and person and to afford its constitutional protection against the long reach of government is no less than to value human dignity, and that his privacy must not be

disturbed except in case of overriding social need, and then only under stringent procedural safeguards. (ibid, p. 74).”

!!! Case(s)

121. Alvero v. Dizon, 76 Phil 637 (1946)

2. To Whom Directed

The constitutional proscription against unlawful searches and seizures applies as a restraint directed only against the government and its agencies tasked with the enforcement of the law. Thus, it could only be invoked against the State to whom the restraint against arbitrary and unreasonable exercise of power is imposed. The modifications introduced in the 1987 Constitution (RE: Sec. 2, Art. III; in relation to the phraseology of the 1935 Constitution) relate to the issuance of either a search warrant or warrant of arrest vis-a-vis the responsibility of the judge in the issuance thereof. The modifications introduced deviate in no manner as to whom the restriction or inhibition against unreasonable search and seizure is directed against. The restraint stayed with the State and did not shift to anyone else. (People vs. Andre Marti [GR 81561, 18 January 1991])

The constitutional right (against unreasonable search and seizure) refers to the immunity of one’s person, whether citizen or alien, from interference by government, included in which is his residence, his papers, and other possessions. There the state, however powerful, does not as such have the access except under the circumstances above noted, for in the traditional formulation, his house, however humble,

is his castle. Thus is outlawed any unwarranted intrusion by government, which is called upon to refrain from any invasion of his dwelling and to respect the privacies of his life. (Villanueva v. Querubin, 48 SCRA 345 [1972]; Cf. Schermerber v. California, 384 US 757 [1966] and Boyd v. United States, 116 US 616 [1886]).

The Fourth Amendment gives protection against unlawful searches and seizures, and its protection applies to governmental action. Its origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies; as against such authority it was the purpose of the Fourth Amendment to secure the citizen in the right of unmolested occupation of his dwelling and the possession of his property, subject to the right of seizure by process duly served. (Burdeau v. McDowell, 256 US 465 [1921], 41 S Ct. 547; 65 L.Ed. 1048)

!!! Case(s)

122. People vs. Andre Marti, 193 SCRA 57 (1991)

3. Who May Invoke the Right?

a. In general

Alleged violations against unreasonable search and seizure may only be invoked against the State by an individual unjustly traduced by the exercise of sovereign authority. (People vs. Andre Marti [GR 81561, 18 January 1991])

The legality of a seizure can be contested only by the party whose rights have been impaired thereby, and that the objection to an unlawful search and seizure is purely personal and cannot be availed of by third parties. (Stonehill, et al. vs. Diokno, et al. [GR L-19550, 19 June 1967])

b. Corporations

Although, an officer of a corporation which is charged with a violation of a statute of the state of its creation, or of an act of Congress passed in the exercise of its constitutional powers, cannot refuse to produce the books and papers of such corporation, a corporation is entitled to immunity, under the 4th Amendment, against unreasonable searches and seizures. A corporation is, after all, but an association of individuals under an assumed name and with a distinct legal entity. In organizing itself as a collective body it waives no constitutional immunities appropriate to such body. Its property cannot be taken without compensation. It can only be proceeded against by due process of law, and is protected, under the 14th Amendment, against unlawful discrimination. (Hale v. Henkel, 201 U.S. 43, 50 L. ed. 652.)

!!! Case(s)

123. Bache and Co., vs. Ruiz, 37 SCRA 323 (1971)

124. Stonehill v. Diokno, 20 SCRA 383 (1967) 125. Zurcher vs. Stanford Daily, 436 U. S. 547

(1978)126. Wilson v. Layne, 98-0083, May 24, 1999

4. Valid warrant

A search warrant is an order in writing, issued in the name of the People of the Philippine Islands, signed by a judge or a justice of the peace, and directed to a peace officer, commanding him to search for personal property and bring it before the court. (Alvarez vs. Court of First Instance of Tayabas [GR 45358, 29 January 1937]; citing Section 95, General Orders 58, as amended by section 6 of Act 2886)

Crime should exist first. In the issuance of search warrants, the Rules of Court requires a finding of probable cause in connection with one specific offense to be determined personally by the judge after examination of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized. Hence, since there is no crime to speak of, the search warrant does not even begin to fulfill these stringent requirements and is therefore defective on its face. (Solid Triangle Sales Corp. vs. Sitchon [GR 144309, 23 November 2001])

Conditions for a valid warrant

a) Existence of Probable Cause

1. Probable cause defined, construed

Probable cause for a search is defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the item(s), article(s) or object(s)

sought in connection with said offense or subject to seizure and destruction by law is in the place to be searched. (People vs. Aruta, 288 SCRA 262 [1998]; Burgos v. Chief of Staff, AFP [GR 64261, 26 December 1984]) In the determination of probable cause, the court must necessarily resolve whether or not an offense exists to justify the issuance or quashal of the search warrant. (Solid Triangle Sales Corp. vs. Sitchon [GR 144309, 23 November 2001])

In applying the “probable cause” standard “by which a particular decision to search is tested against the constitutional mandate of reasonableness,” it is necessary “to focus upon the governmental interest which allegedly justifies official intrusion” and that in criminal investigations a warrant to search for recoverable items is reasonable “only when there is ‘probable cause’ to believe that they will be uncovered in a particular dwelling.” The critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific “things” to be searched for and seized are located on the property to which entry is sought. (Zurcher vs. Stanford Daily [436 US 547, 31 May 1978])

2. Probable cause in issuance of warrants distinguished from probable cause in preliminary investigation

While the power to issue search warrants upon showing probable cause is a function which is exclusively judicial, “the determination of probable cause during a preliminary investigation has been described as an executive function.”

(People vs. Court of Appeals, 291 SCRA 400 [1998]) The proceedings for the issuance/quashal of a search warrant before a court on the one hand, and the preliminary investigation before an authorized officer on the other, are proceedings entirely independent of each other. One is not bound by the other’s finding as regards the existence of a crime. The purpose of each proceeding differs from the other. The first is to determine whether a warrant should issue or be quashed, and the second, whether an information should be filed in court. (Solid Triangle Sales Corp. vs. Sitchon [GR 144309, 23 November 2001])

3. Reliable information as basis for probable cause

Notwithstanding tips from confidential informants and regardless of the fact that the search yielded contraband, the mere act of looking from side to side while holding one’s abdomen, or of standing on a corner with one’s eyes moving very fast, looking at every person who came near, does not justify a warrantless arrest under said Section 5 (a). Neither does putting something in one’s pocket, handing over one’s baggage, riding a motorcycle, nor does holding a bag on board a trisikad sanction State intrusion. The same rule applies to crossing the street per se. Personal knowledge was also required in the case of People v. Doria. Recently, in People v. Binad Sy Chua, the Court declared invalid the arrest of the accused, who was walking towards a hotel clutching a sealed Zest-O juice box. For the exception in Section 5 (a), Rule 113 to apply, the Court ruled, two elements must concur: (1) the person to be arrested must execute an overt act indicating he 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. Reliable information alone is insufficient. In the following cases, the search was held to be incidental to a lawful arrest because of “suspicious” circumstances: People v. Tangliben (accused was “acting suspiciously”), People v. Malmstedt (a bulge on the accused’s waist), and People v. de Guzman (likewise a bulge on the waist of the accused, who was wearing tight-fitting clothes). There is, however, another set of jurisprudence that deems “reliable information” sufficient to justify a search incident to a warrantless arrest under Section 5 (a), Rule 113, thus deviating from Burgos. To this class of cases belong People v. Maspil, Jr., People v. Bagista, People v. Balingan, People v. Lising, People v. Montilla, People v. Valdez, and People v. Gonzales. In these cases, the arresting authorities were acting on information regarding an offense but there were no overt acts or suspicious circumstances that would indicate that the accused has committed, is actually committing, or is attempting to commit the same. Significantly, these cases, except the last two, come under some other exception to the rule against warrantless searches. Thus, Maspil, Jr. involved a checkpoint search, Balingan was a search of a moving vehicle, Bagista was both, and Lising and Montilla were consented searches. Nevertheless, the great majority of cases conforms to the rule in Burgos, which, in turn, more faithfully adheres to the letter of Section 5(a), Rule 113. Note the phrase “in his presence” therein, connoting personal knowledge on the part of the arresting officer. (People vs. Tudtud [GR 144037, 26 September 2003])

In fine, probable cause exists in the following instances: (a) where the distinctive odor of marijuana emanated from the plastic bag carried by the accused; (People v. Claudio, 160 SCRA 646 [1988]) (b) where an informer positively identified the accused who was observed to be acting suspiciously; (People v. Tangliben, 184 SCRA 220 [1990]) (c) where the accused who were riding a jeepney were stopped and searched by policemen who had earlier received confidential reports that said accused would transport a quantity of marijuana; (People v. Maspil, Jr., 188 SCRA 751 [1990]) (d) where Narcom agents had received information that a Caucasian coming from Sagada, Mountain Province had in his possession prohibited drugs and when the Narcom agents confronted the accused Caucasian because of a conspicuous bulge in his waistline, he failed to present his passport and other identification papers when requested to do so; (People v. Malmsteadt, 198 SCRA 401 [1991]) (f) where the moving vehicle was stopped and searched on the basis of intelligence information and clandestine reports by a deep penetration agent or spy — one who participated in the drug smuggling activities of the syndicate to which the accused belong — that said accused were bringing prohibited drugs into the country; (People v. Lo Ho Wing, 193 SCRA 122 [1991]) (g) where the arresting officers had received a confidential information that the accused, whose identity as a drug distributor was established in a previous test-buy operation, would be boarding MV Dona Virginia and probably carrying shabu with him; (People v. Saycon, 236 SCRA 325 [1994]) (h) where police officers received an information that the accused, who was carrying a

suspicious-looking gray luggage bag, would transport marijuana in a bag to Manila; (People v. Balingan, 241 SCRA 277 [1995]) and (i) where the appearance of the accused and the color of the bag he was carrying fitted the description given by a civilian asset. (People v. Valdez, 304 SCRA 140 [1999])

!!! Case(s)

127. Burgos vs. Chief of Staff, 133 SCRA 800 (1984)

128. Chandler v. Miller, April 15, 1997, D-96- 126

129. People v. Chua Ho San, 308 SCRA 432) (1999)

130. People v. Molina, G.R. No. 133917, February 19, 2001

131. Solid Triangle Sale v. Sheriff, G.R. No. 144309 November 23, 2001

132. People v. Salanguit, G.R. 133254, April 18, 2001

b) Personal determination by judge

1. In General

Personal examination by the judge of the complainant and his witnesses is necessary to enable him to determine the existence or non-existence of a probable cause, pursuant to Article III, Section 2, Article III of the 1987 constitution , and Section 4, Rule 126 of the Revised Rules of Court, both of which prohibit the issuance of warrants except “upon

probable cause.” The determination of whether or not a probable cause exists calls for the exercise of judgment after a judicial appraisal of facts and should not be allowed to be delegated in the absence of any rule to the contrary. (Bache & Co. (Phil.) Inc. vs. Ruiz [GR L-32409, 27 February 1971]; Codal references modified to suit present Constitution and Rules of Court)

2. Obscene Materials

The case of Pita vs. Court of Appeals, GR 80806, 5 October 1989, (1) The authorities must apply for the issuance of a search warrant from a judge, if in their opinion, an obscenity rap is in order; (2) The authorities must convince the court that the materials sought to be seized are “obscene”, and pose a clear and present danger of an evil substantive enough to warrant State interference and action; (3) The judge must determine whether or not the same are indeed “obscene:” the question is to be resolved on a case-to-case basis and on His Honor’s sound discretion. (4) If, in the opinion of the court, probable cause exists, it may issue the search warrant prayed for; (5) The proper suit is then brought in the court under Article 201 of the Revised Penal Code; and (6) Any conviction is subject to appeal. The appellate court may assess whether or not the properties seized are indeed “obscene.” The Court states, however, that “these do not foreclose, however, defenses under the Constitution or applicable statutes, or remedies against abuse of official power under the Civil Code or the Revised Penal code.”

!!! Case(s)

133. Amarga vs. Abbas, 98 Phil. 739 (1956) 134. Sta. Rosa Mining Co., vs. Fiscal Zabala,

153 SCRA 367 (1987)135. People vs. Inting, 187 SCRA 785 (1990) 136. Paderanga vs. Drilon, G.R. 96080, April

19, 1991137. Pita vs. CA, 178 SCRA 362 (1987) 138. Abdula v. Guiani. 326 SCRA 1 (2000)

c) Examination of witnesses

The implementing rule in the Revised Rules of Court, Section 5, Rule 126, is more emphatic and candid, for it requires the judge, before issuing a search warrant, to “personally examine on oath or affirmation the complainant and any witnesses he may produce.” (Bache & Co. (Phil.) Inc. vs. Ruiz [GR L-32409, 27 February 1971]; Codal references modified to suit present Constitution and Rules of Court) Mere affidavits of the complainant and his witnesses are thus not sufficient. The examining Judge has to take depositions in writing of the complainant and the witnesses he may produce and attach them to the record. (Roan v. Gonzales, GR 71410, 25 November 1986, 145 SCRA 694)

Listening to the stenographer’s readings of her notes, to a few words of warning against the commission of perjury, and administering the oath to the complainant and his witness; cannot be consider a personal examination. The reading of the stenographic notes to the Judge did not constitute sufficient compliance with the constitutional mandate and the rule; for by that manner the Judge did not

have the opportunity to observe the demeanor of the complainant and his witness, and to propound initial and follow-up questions which the judicial mind, on account of its training, was in the best position to conceive. These were important in arriving at a sound inference on the all-important question of whether or not there was probable cause. (Bache & Co. (Phil.) Inc. vs. Ruiz [GR L-32409, 27 February 1971])

Sufficiency of deposition or affidavit. The true test of sufficiency of a deposition or affidavit to warrant issuance of a search warrant is whether it has been drawn in a manner that perjury could be charged thereon and the affiant be held liable for damage caused. The oath required must refer to the truth of the facts within the personal knowledge of the applicant for search warrant, and/or his witnesses, not of the facts merely reported by a person whom one considers to be reliable. The oath required must refer to the truth of the facts within the personal knowledge of the petitioner or his witnesses, because the purpose thereof is to convince the committing magistrate, not the individual making the affidavit and seeking the issuance of the warrant, of the existence of probable cause. (Alvarez vs. Court of First Instance of Tayabas [GR 45358, 29 January 1937])

!!! Case(s)

139. Pasion Vda. De Garcia vs. Locsin, 65 Phil 68 (1938)

140. Yee Sue Kuy vs. Almeda, 70 Phil. 141, (1940)

141. Alvarez vs. CFI, 64 Phil. 33 (1937) 142. Mata vs. Bayona , 128 SCRA 388 (1984)

d) Particularity of description

Purpose. A search warrant should particularly describe the place to be searched and the things to be seized. The evident purpose and intent of this requirement is to limit the things to be seized to those, and only those, particularly described in the search warrant — to leave the officers of the law with no discretion regarding what articles they shall seize, to the end that “unreasonable searches and seizures” may not be made, — that abuses may not be committed. (Uy Kheytin, et al. vs. Villareal, etc., et al., 42 Phil. 886, 896)

1. Description of Place

The rule is that a description of the place to be searched is sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intended to be searched. (Prudente vs. Dayrit [GR 82870, 14 December 1989])

2. Description of items to be seized

While it is true that the property to be seized under a warrant must be particularly described therein and no other property can be taken thereunder, yet the description is required to be specific only in so far as the circumstances will ordinarily allow. (In People v. Rubio, 57 Phil. 384, 389 [1932]) Where by the nature of the goods to be seized, their description must be rather general, it is not required

that a technical description be given, as this would mean that no warrant could issue. As a corollary, however, we could not logically conclude that where the description of those goods to be seized have been expressed technically, all others of a similar nature but not bearing the exact technical descriptions could not be lawfully subject to seizure. Otherwise, the reasonable purpose of the warrant issued would be defeated by mere technicalities. (Yousef Al-Ghoul vs. Court of Appeals [GR 126859, 4 September 2001])

Tests. 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 (People vs. Rubio; 57 Phil. 384); 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 (idem., dissent of Abad Santos, J.,); or when the things described are limited to those which bear direct relation to the offense for which the warrant is being issued (Sec. 3, Rule 126, Revised Rules of Court).

One of the tests to determine the particularity in the description of objects to be seized under a search warrant is when the things described are limited to those which bear direct relation to the offense for which the warrant is being issued. (Bache and Co. [Phil.], Inc. v. Ruiz, 37 SCRA 823, 835 [1971])

!!! Case(s)

143. Olaes vs. People, 155 SCRA 486 (1987)

144. Prudente vs. Judge Dayrit, 180 SCRA 69 (1989)

145. Chia vs. Coll. of Customs, 177 SCRA 755 (1989)

146. 20th Century Fox Film Corp. vs. CA, 164 SCRA 655 (1988)

147. Nolasco vs. Cruz Pano, 132 SCRA 152 (1985)

148. PICOP v. Asuncion, 307 SCRA 253) (1999) 149. Yousef Al Ghoul vs. C.A, GR No.126859,

September 4, 2001

5. Objects of Seizure

Rule 126, Sec. 2

Section 2. Court where application for search warrant shall be filed. — An application for search warrant shall be filed with the following:

1. Any court within whose territorial jurisdiction a crime was committed.

2. For compelling reasons stated in the application, any court within the judicial region where the crime was committed if the place of the commission of the crime is known, or any court within the judicial region where the warrant shall be enforced.

However, if the criminal action has already been filed, the application shall only be made in the court where the criminal action is pending.

6. Warrantless searches

Rule 126, Sec. 12

Section 12. Delivery of property and inventory thereof to court; return and proceedings thereon. –

1. The officer must forthwith deliver the property seized to the judge who issued the warrant, together with a true inventory thereof duly verified under oath.

2. Ten (10) days after issuance of the search warrant, the issuing judge shall ascertain if the return has been made, and if none, shall summon the person to whom the warrant was issued and require him to explain why no return was made. If the return has been made, the judge shall ascertain whether section 11 of this Rule has been complied with and shall require that the property seized be delivered to him. The judge shall see to it that subsection (a) hereof has been complied with.

3. The return on the search warrant shall be filed and kept by the custodian of the log book on search warrants who shall enter therein the date of the return, the result, and other actions of the judge.

A violation of this section shall constitute contempt of court.

Id., Sec. 4

Section 4. Requisites for issuing search warrant. — A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witness he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines.

The Constitutional proscription against unreasonable searches and seizures does not, of course, forestall reasonable searches and seizure. Verily, the rule is, the Constitution bars State intrusions to a person’s body, personal effects or residence except if conducted by virtue of a valid search warrant issued in compliance with the procedure outlined in the Constitution and reiterated in the Rules of Court; “otherwise such search and seizure become ‘unreasonable’ within the meaning of the aforementioned constitutional provision.” This interdiction against warrantless searches and seizures, however, is not absolute and such warrantless searches and seizures have long been deemed permissible by jurisprudence in instances of (1) search of moving vehicles, (2) seizure in plain view, (3) customs searches, (4) waiver or consent searches, (5) stop and frisk situations (Terry search), and (6) search incidental to a lawful arrest. The last includes a valid warrantless search and seizure pursuant to an equally valid warrantless arrest, for, while as a rule, an arrest is considered legitimate if effected with a valid warrant of arrest, the Rules of Court recognize permissible warrantless arrests, to wit: (1) arrests in flagrante delicto, (2) arrests effected in hot pursuit, and

(3) arrests of escaped prisoners. (People vs. Chua Ho San [GR 128222, 17 June 1999])

The following instances are not deemed “unreasonable” even in the absence of a warrant: (1) Warrantless search incidental to a lawful arrest. (Sec. 12, Rule 126 of the Rules of Court and prevailing jurisprudence); (2) Search of evidence in “plain view”; (3) Search of a moving vehicle. Highly regulated by the government, the vehicle’s inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity; (4) Consented warrantless search; (5) Customs search; (6) Stop and Frisk; and (7) Exigent and emergency circumstances. (People v. Bolasa, 378 Phil. 1073, 1078-1079 [1999])

a) Valid Waiver

The constitutional immunity from unreasonable searches and seizures, being a personal one cannot he waived by anyone except the person whose rights are invaded or one who is expressly authorized to do so in his or her behalf (De Garcia v. Locsin, 65 Phil. 689 695). The consent must be voluntary in order to validate an otherwise illegal detention and search, i.e., the consent is unequivocal, specific, and intelligently given, uncontaminated by any duress or coercion. (68 Am Jur 2d Searches and Seizures, §135.) Hence, consent to a search is not to be lightly inferred, but must be shown by clear and convincing evidence. (68 Am Jur 2d Searches and Seizures, §136.)

The Supreme Court is not unmindful of cases upholding the validity of consented warrantless searches and seizure. But in these cases, the police officers’ request to search personnel effects was orally articulated to the accused and in such language that left no room for doubt that the latter fully understood what was requested. In some instance, the accused even verbally replied to the request demonstrating that he also understood the nature and consequences of such request. (People vs. Chua Ho San, 308 SCRA 432 [1999])

The question whether a consent to a search was in fact voluntary is a question of fact to be determined from the totality of all the circumstances. (Schneckloth vs. Bustamonte, 412 U.S. 218) In case of consented searches or waiver of the constitutional guarantee against obtrusive searches, it is fundamental that to constitute a waiver of a constitutional right, it must first appear, first, that the right exists; secondly, that the person involved had knowledge, actual or constructive, of the existence of such a right; and lastly, that said person had an actual intention to relinquish the right. ( People v. Burgos, 144 SCRA 1, 16 [1986]; citing Pasion Vda. de Garcia v. Locsin, 65 Phil 689 [1938]; 67 C. J., 299)

Relevant to this determination are the following characteristics of the person giving consent and the environment in which consent is given: (1) the age of the defendant; (2) whether he was in a public or secluded location; (3) whether he objected to the search or passively looked on; (4) the education and intelligence of the

defendant; (5) the presence of coercive police procedures; (6) the defendant’s belief that no incriminating evidence will be found; (7) the nature of the police questioning; (8) the environment in which the questioning took place; and (9) the possibly vulnerable subjective state of the person consenting. It is the State which has the burden of proving, by clear and positive testimony, that the necessary consent was obtained and that it was freely and voluntarily given. (United States vs. Tillman, 963 F. 2d 137; Florida vs. Royer, 460 U.S. 491; United States vs. Mendenhall, 446 U.S. 544.)

Implied acquiescence to the search, if there was any, could not have been more than mere passive conformity given under intimidating or coercive circumstances and is thus considered no consent at all within the purview of the constitutional guarantee. (People v. Encinada, 280 SCRA 72, 91 [1997]; citing Aniog v. Commission on Elections, 237 SCRA 424, 436-437 [1994]) In any event, the failure to resist or object to the execution of the warrant does not constitute an implied waiver of constitutional right. It is, as Judge Cooley observes, but a submission to the authority of the law. (Const. Lim., 8th ed., Vol. I, I, 630.) As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizen in the position of either contesting an officer’s authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law. (56 C. J., pp. 1180, 1181.)

!!! Case(s)

150. People vs. Omaweng, 213 SCRA 462 (1992)

151. People v. Correa, 285 SCRA 679 (1998) 152. People vs. Ramos, G.R. 85401-02, June 4,

1990153. People v. Barros, 231 SCRA 557 (1994) 154. Veroy vs. Layague, 210 SCRA 97 (1992) 155. People vs. Damaso, 212 SCRA 457 (1992) 156. Lopez vs. Comm. Of Customs, 68 SCRA

320 (1975)157. Caballes v. Court of Appeals, G.R. No.

136292, January 5, 2002158. People vs. Asis, et. al., G.R. No. 142531,

October 15, 2002159. People vs. Tudtud, et. al., G.R. No.

144037, September 26, 2003

b) Incident to lawful arrest

The most important exception to the necessity for a search warrant is the right of search and seizure as an incident to a lawful arrest. A lawful arrest may be made either while a crime is being committed or after its commission. The right to search includes in both instances that of searching the person of him who is arrested, in order to find and seize things connected with the crime as its fruits or as the means by which it was committed. (Agnello vs. United States, 269 US 20.)

When one is legally arrested for an offense, whatever is found in his possession or in his control may be seized and used in evidence against him; and an officer has the right to make an arrest without a warrant of a person believed by the officer upon reasonable grounds to have committed a felony. (Carroll vs. United States, 267 US 132.)

While a contemporaneous search of a person arrested may be effected to deliver dangerous weapons or proofs or implements used in the commission of the crime and which search may extend to the area within his immediate control where he might gain possession of a weapon or evidence he can destroy, a valid arrest must precede the search. The process cannot be reversed. (People vs. Chua Ho San [GR 128222, 17 June 1999]; citing Malacat v. Court of Appeals, 283 SCRA 159, 175 [1997].)

A search incident to a lawful arrest is limited to the person of the one arrested and the premises within his immediate control. The rationale for permitting such a search is to prevent the person arrested from obtaining a weapon to commit violence, or to reach for incriminatory evidence and destroy it. (People vs. Salanguit [GR 133254-55, 19 April 2001]) When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or

destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence. There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs — or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. (Chimel v. California; 23 L. Ed. 2d 685, 23 June 1969)

Rule 126, Section 12, Rules of Court

Section 12. Delivery of property and inventory thereof to court; return and proceedings thereon. –

1. The officer must forthwith deliver the property seized to the judge who issued the warrant, together with a true inventory thereof duly verified under oath.

2. Ten (10) days after issuance of the search warrant, the issuing judge shall ascertain if the return has been made, and if none, shall summon the person to whom the warrant was issued and require him to explain why no return was made. If the return has been made,

the judge shall ascertain whether section 11 of this Rule has been complied with and shall require that the property seized be delivered to him. The judge shall see to it that subsection (a) hereof has been complied with.

3. The return on the search warrant shall be filed and kept by the custodian of the log book on search warrants who shall enter therein the date of the return, the result, and other actions of the judge.

A violation of this section shall constitute contempt of court.

!!! Case(s)

160. Chimel vs. California, 395 U. S. 752 (1964)

161. People vs. de la Cruz, G.R. 83988, April 18, 1990

162. People v. Kalubiran, 196 SCRA 645 (1991)

163. People v. Malmstedt, 198 SCRA 401 (1991)

164. People v. Cuenco, G.R. 126277, November 16, 1988

165. Espano v. Court of Appeals, 288 SCRA 558 (1998)

166. People vs. Tangliben, 184 SCRA 220 (1990)

167. People v. Che Chun Ting, 328 SCRA 592 (2000)

168. People vs. Estrella, G.R. Nos. 138539-40, January 21, 2003

169. People vs. Libnao, et al., G.R. No. 136860, January 20, 2003

c) Plain view doctrine

1. Elements

Under the “plain view doctrine,” unlawful objects within 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 in evidence. (People v. Musa [GR 96177, 27 January 1993]; citing Harris v. United States, 390 U.S. 234, 19 L.Ed. 2d 1067 [1968]) For this doctrine to apply, there must be: (a) prior justification; (b ) inadvertent discovery of the evidence; and (c) immediate apparent illegality of the evidence before the police. (People v. Musa [GR 96177, 27 January 1993]; citing Coolidge v. New Hampshire, 403 U.S. 433,29 L. Ed. 2d 564 [1971]) The elements of plain-view are: (a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (b) the evidence was inadvertently discovered by the police who have the right to be where they are; (c) the evidence must be immediately apparent; (d) “plain view” justified mere seizure of evidence without further search. (People v. Bolasa, 378 Phil. 1073, 1078-1079 [1999])

2. When object is in plain view

The law enforcement officer must lawfully make an initial intrusion or properly be in a position from which he can particularly view the area. (Harris v. United States, supra) In the course of such lawful intrusion, he came inadvertently across a piece of evidence incriminating the accused. (Coolidge v. New Hampshire, supra) The object must be open to eye and hand and its discovery inadvertent. (Roan v. Gonzales, 145 SCRA 687, 697 [1986]) It is clear that an object is in plain view if the object itself is plainly exposed to sight. The difficulty arises when the object is inside a closed container. Where the object seized was inside a closed package, the object itself 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 contents are in plain view and may be seized. In other words, if the package is such that an experienced observer could infer from its appearance that it contains the prohibited article, then the article is deemed in plain view. (Robbins v. California, 453 U.S. 420, 69 L. Ed. 2d 744, 751 [1981]) 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 v. Musa [GR 96177, 27 January 1993])

3. Plain-view objects as evidence

The warrantless search and seizure, as an incident to a suspect’s lawful arrest, may extend beyond the person of the one arrested to include the premises or surroundings

under his immediate control. Objects in the “plain view” of an officer who has the right to be in the position to have that view are subject to seizure and may be presented as evidence. When the discovery of the evidence did not constitute a search, but where the officer merely saw what was placed before him in full view, the warrantless seizure of the object was legal on the basis of the “plain view” doctrine and upheld the admissibility of said evidence. (People v. Musa [GR 96177, 27 January 1993]) Merely to observe and look at that which is in plain sight is not a search. Having observed that which is open, where no trespass has been committed in aid thereof, is not search (Chadwick v. State, 429 SW2d 135). Where the contraband articles are identified without a trespass on the part of the arresting officer, there is not the search that is prohibited by the constitution (US v. Lee 274 US 559, 71 L.Ed. 1202 [1927]; Ker v. State of California 374 US 23, 10 L.Ed.2d. 726 [1963]; Moore v. State, 429 SW2d 122 [1968]).

4. Limitations to plain-view

The “plain view” doctrine may not 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. 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. The “plain view” doctrine neither justify the seizure of the object where the incriminating nature of the object is not apparent from the “plain view” of the object. (People v. Musa [GR 96177, 27 January 1993])

Once the valid portion of the search warrant has been executed, the “plain view doctrine” can no longer provide any basis for admitting the other items subsequently found. As has been explained that “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.” (People vs. Salanguit [GR 133254-55, 19 April 2001] citing Coolidge v. New Hampshire, 403 U.S. 433,29 L. Ed. 2d 564 [1971])

!!! Case(s)

170. Padilla v. CA, 269 SCRA 402 (1997) 171. People v. Valdez, G.R. No. 129296,

September 25, 2000172. Arizona v. Hicks, 480 U.S. 321 [1987] 173. People v. Compacion, G.R. No. 124442,

July 20, 2001

d) Enforcement of fishing, customs and immigration laws

1. Fishing and customs laws

Search and seizure without search warrant of vessels and air crafts for violations of the customs laws have been the traditional exception to the constitutional requirement of a search warrant, because the vessel can be quickly moved out of the locality or jurisdiction in which the search warrant must be sought before such warrant could be secured; hence it is not practicable to require a search warrant before such search or seizure can be constitutionally effected (Papa vs. Mago, L-27360, Feb. 28, 1968, 22 SCRA 857, 871-74; Magoncia vs. Palacio, 80 Phil. 770, 774; Carroll vs. U.S. 267, pp. 132, 149, 158; Justice

Fernando, The Bill of Rights, 1972 ed., p. 225; Gonzales, Philippine Constitutional Law, 1966 ed., p. 300). The same exception should apply to seizures of fishing vessels breaching our fishery laws: They are usually equipped with powerful motors that enable them to elude pursuing ships of the Philippine Navy or Coast Guard. (Roldan vs. Arca [GR L-25434, 25 July 1975])

2. Immigration laws

Persons may lose the protection of the search and seizure clause by exposure of their persons or property to the public in a manner reflecting a lack of subjective expectation of privacy, which expectation society is prepared to recognize as reasonable. Such recognition is implicit in airport security procedures. With increased concern over airplane hijacking and terrorism has come increased security at the nation’s airports. Passengers attempting to board an aircraft routinely pass through metal detectors; their carry-on baggage as well as checked luggage are routinely subjected to x-ray scans. Should these procedures suggest the presence of suspicious objects, physical searches are conducted to determine what the objects are. There is little question that such searches are reasonable, given their minimal intrusiveness, the gravity of the safety interests involved, and the reduced privacy expectations associated with airline travel. Indeed, travelers are often notified through airport public address systems, signs, and notices in their airline tickets that they are subject to search and, if any prohibited materials or substances are found, such would be subject to seizure.

These announcements place passengers on notice that ordinary constitutional protections against warrantless searches and seizures do not apply to routine airport procedures. (People vs. Johnson [GR 138881, 18 December 2000])

!!! Case(s)

175. Roldan vs. Arca, 65 SCRA 320 (1975) 176. Hizon v. Court of Appeals, 265 SCRA 517

(1996)177. People v. Gatward, 267 SCRA 785 (1997) 178. People v. Johnson, G.R. No. 138881,

December 18, 2000179. People vs. Suzuki, G.R. No. 120670,

October 23, 2003)180. Bureau of Customs v. Ogarlo, 329 SCRA

289 (2000)

e) “Stop and frisk”

Where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt

to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken. (Terry vs. Ohio [392 US 1, 10 June 1968])

While probable cause is not required to conduct a “stop and frisk,” it nevertheless holds that mere suspicion or a hunch will not validate a “stop and frisk.” A genuine reason must exist, in light of the police officer’s experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him. Finally, a “stop-and-frisk” serves a two-fold interest: (1) the general interest of effective crime prevention and detection, which underlies the recognition that a police officer may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause; and (2) the more pressing interest of safety and self-preservation which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used against the police officer. (Malacat vs. Court of Appeals [GR 123595, 12 December 1997])

To what extent is the search allowed? Outer clothing, how about the thing???

What is the purpose of the Stop and frisk rule: for the general interest of effective crime prevention and detection

For the safety and self-preservation

!!! Case(s)

181. Terry vs. Ohio, 392 US 1 (1968) 182. People v. Solayao, 262 SCRA 255 (1996) 183. Manalili v. Court of Appeals, G.R. No.

113447, October 7, 1997184. Malacat v. Court of Appeals, 283 SCRA

159 (1997)185. Florida v. J.L., 98-1993, March 28, 2000

f) Search of moving vehicles

1. Rationale

The automobile is a swift and powerful vehicle of recent development, which has multiplied by quantity production and taken possession of our highways in battalions, until the slower, animal- drawn vehicles, with their easily noted individuality, are rare. Constructed as covered vehicles to standard form in immense quantities, and with a capacity for speed rivaling express trains, they furnish for successful commission of crime a disguising means of silent approach and swift escape unknown in the history of the world before their advent. The question of their police control and reasonable search on highways or other public places is a serious question far deeper and broader than their use in so-called “bootlegging’ or ‘rum running,’ which is itself is no small matter. While a possession in the sense of private ownership, they are but a vehicle constructed for travel and transportation on highways. Their active use is not in homes or on private premises, the privacy of which the law especially guards from search and seizure without process.

The baffling extent to which they are successfully utilized to facilitate commission of crime of all degrees, from those against morality, chastity, and decency, to robbery, rape, burglary, and murder, is a matter of common knowledge. Upon that problem a condition, and not a theory, confronts proper administration of our criminal laws. Whether search of and seizure from an automobile upon a highway or other public place without a search warrant is unreasonable is in its final analysis to be determined as a judicial question in view of all the circumstances under which it is made. (People v. Case [320 Mich., 379, 190 N.W., 389, 27 A.L.R., 686]) Peace officers may lawfully conduct searches of moving vehicles — automobiles, trucks, etc. — without need of a warrant, it not being practicable to secure a judicial warrant before searching a vehicle, since such vehicle can be quickly moved out of the locality or jurisdiction in which the warrant may be sought. (People v. Barros [GR 90640, 29 March 1994])

Highly regulated by the government, the vehicle’s inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity. (Padilla vs. CA, et al., 269 SCRA 402 [1997]; citing United States vs. Rem, 984 F 2d 806; United States vs. McCoy, 977 F 2d 706; United States vs. Rusher, 966 F 2d 868; United States vs. Parker, 928 F 2d 365.) Thus, the rules governing search and seizure have over the years been steadily liberalized whenever a moving vehicle is the object of the search on the basis of practicality. This is so considering that before a warrant

could be obtained, the place, things and persons to be searched must be described to the satisfaction of the issuing judge — a requirement which borders on the impossible in the case of smuggling effected by the use of a moving vehicle that can transport contraband from one place to another with impunity. A warrantless search of a moving vehicle is justified on the ground that it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. (Asuncion vs. CA, et al., 302 SCRA 490 (1999); People vs. Lo Ho Wing, 193 SCRA 122 [1991]) Searches without warrant of automobiles is also allowed for the purpose of preventing violations of smuggling or immigration laws, provided such searches are made at borders or “constructive borders” like checkpoints near the boundary lines of the State. (Almedia-Sanchez vs. United States, 37 L.ed. 2d 596; Carrol vs. United States, 267 U.S. 132)

2. Manner of search

In carrying out warrantless searches of moving vehicles, however, peace officers are limited to routine checks, that is, the vehicles are neither really searched nor their occupants subjected to physical or body searches, the examination of the vehicles being limited to visual inspection. (People v. Barros [GR 90640, 29 March 1994]) When, however, a vehicle is stopped and subjected to an extensive search, such a warrantless search would be constitutionally permissible only if the officers conducting the search have reasonable or probable cause to believe,

before the search, that either the motorist is a law-offender or the contents or cargo of the vehicle are or have been instruments or the subject matter or the proceeds of some criminal offense. (People v. Bagista, 214 SCRA 63 [1992]; Valmonte v. de Villa, 185 SCRA 665 [1990]).

One such form of search of moving vehicles is the “stop-and-search” without warrant at military or police checkpoints which has been declared to be not illegal per se (People vs. Exala, 221 SCRA 494 [1993]; Valmonte vs. de Villa, 178 SCRA 211 [1989]), for as long as it is warranted by the exigencies of public order and conducted in a way least intrusive to motorists (People vs. Escaño, 323 SCRA 754 [2000], citing U.S. vs. Martinez-Fuerte, 428 U.S. 543). A checkpoint may either be a mere routine inspection or it may involve an extensive search. Routine inspections are not regarded as violative of an individual’s right against unreasonable search. The search which is normally permissible in this instance is limited to the following instances: (1) where the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds; (2) simply looks into a vehicle; (3) flashes a light therein without opening the car’s doors; (4) where the occupants are not subjected to a physical or body search; (5) where the inspection of the vehicles is limited to a visual search or visual inspection; and (6) where the routine check is conducted in a fixed area.

The physical intrusion of a part of the body of an agent into the vehicle goes beyond the area protected by the Fourth Amendment (United States vs. Pierre, 932 F. 2d 377 cited in

Hermann, Search and Seizure Checklists, 1994 ed., p. 246). On the other hand, when a vehicle is stopped and subjected to an extensive search, such a warrantless search would be constitutionally permissible only if the officers conducting the search have 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 (Obra, et al. vs. CA, et al., 317 SCRA 594 [1999]; People vs. Bagista, 214 SCRA 63 [1992]).

3. Existence of probable cause

The mere mobility of these vehicles, however, does not give the police officers unlimited discretion to conduct indiscriminate searches without warrants if made within the interior of the territory and in the absence of probable cause. (People vs. Malmstedt, 198 SCRA 401 (1991])

The Court has in the past found probable cause to conduct without a judicial warrant an extensive search of moving vehicles in situations where (1) there had emanated from a package the distinctive smell of marijuana; (2) agents of the Narcotics Command (”Narcom”) of the Philippine National Police (”PNP”) had received a confidential report from informers that a sizeable volume of marijuana would be transported along the route where the search was conducted; (3) Narcom agents had received information that a Caucasian coming from Sagada, Mountain Province, had in his possession prohibited drugs and when the Narcom agents confronted the accused Caucasian, because of a conspicuous bulge in his waistline, he failed to present

his passport and other identification papers when requested to do so; (4) Narcom agents had received confidential information that a woman having the same physical appearance as that of the accused would be transporting marijuana; (5) the accused who were riding a jeepney were stopped and searched by policemen who had earlier received confidential reports that said accused would transport a large quantity of marijuana; and (6) where the moving vehicle was stopped and searched on the basis of intelligence information and clandestine reports by a deep penetration agent or spy. (Caballes vs. Court of Appeals [GR 136292, 15 January 2002])

!!! Case(s)

186. People v. Balingan, 241 SCRA 277 (1995) 187. Asuncion v. Court of Appeals, G.R.

125959, February 1, 1999188. Papa vs. Mago, 22 SCRA 857 (1968) 189. People vs. CFI of Rizal, 101 SCRA 86

(1980)190. Whren v. United States, 95-5841,

January 10, 1996191. Arkansas v. Sullivan, 00-00262, May 29,

2001

g) Emergency circumstances

As there was general chaos and disorder at that time … [that] the courts in the surrounding areas were obviously closed and, for that matter, the building and houses therein were deserted … [and that] the military operatives … had

reasonable ground to believe that a crime was being committed, the case falls under one of the exceptions to the prohibition against a warrantless search. (People vs. de Gracia [GR 102009-10, 6 July 1994])

!!! Case(s)

192. People vs. De Gracia 233 SCRA 716 (1994)

h) Checkpoints

1. Minimal interference

Routine checkpoint stops do not intrude similarly on the motoring public. First, the potential interference with legitimate traffic is minimal. Motorists using these highways are not taken by surprise as they know, or may obtain knowledge of, the location of the checkpoints and will not be stopped elsewhere. Second checkpoint operations both appear to and actually involve less discretionary enforcement activity. The regularized manner in which established checkpoints are operated is visible evidence, reassuring to law-abiding motorists, that the stops are duly authorized and believed to serve the public interest. The location of a fixed checkpoint is not chosen by officers in the field, but by officials responsible for making overall decisions as to the most effective allocation of limited enforcement resources. We may assume that such officials will be unlikely to locate a checkpoint where it bears arbitrarily or oppressively on motorists as a class, and since field officers may stop only those cars passing the

checkpoint, there is less room for abusive or harassing stops of individuals them there was in the case of roving-patrol stops. Moreover, a claim that a particular exercise of discretion in locating or operating a checkpoint is unreasonable is subject to post-stop judicial review. (U.S. v. Martinez-Fuerte, 428 US 543, 49 L Ed. 2d 1116 [1976])

2. Exercise of police power

Checkpoints may also be regarded as measures to thwart plots to destabilize the government, in the interest of public security. At the cost of occasional inconvenience, discomfort and even irritation to the citizen, the checkpoints during abnormal times, when conducted within reasonable limits, are part of the price we pay for an orderly society and a peaceful community. (Valmonte vs. de Villa, [GR 83988, 29 September 1989]) Under exceptional circumstances, as where the survival of organized government is on the balance, or where the lives and safety of the people are in grave peril, checkpoints may be allowed and installed by the government. Implicit in this proposition is, that when the situation clears and such grave perils are removed, checkpoints will have absolutely no reason to remain. Admittedly, the routine checkpoint stop does intrude, to a certain extent, on motorist’s right to “free passage without interruption”, but it cannot be denied that, as a rule, it involves only a brief detention of travellers during which the vehicle’s occupants are required to answer a brief question or two. (Valmonte vs. de Villa, [GR 83988, 24 May1989])

3. Extent

For as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is limited to a visual search, said routine checks cannot be regarded as violative of an individual’s right against unreasonable search. These routine checks, when conducted in a fixed area, are even less intrusive. (Valmonte vs. de Villa, [GR 83988, 24 May 1989])

!!! Case(s)

193. Gen. De Villa vs. Valmonte G.R. No. 83988 (May 24, 1990)

194. Aniag vs. Comelec, 237 SCRA 424 (1994) 195. People v. Usana, 323 SCRA 754 (2000)

i) Inspection of buildings

Administrative searches are significant intrusions upon the interests protected by the Fourth Amendment, that such searches when authorized and conducted without a warrant procedure lack the traditional safeguards which the Fourth Amendment guarantees to the individual, and that the reasons put forth in Frank v. Maryland and in other cases for upholding these warrantless searches are insufficient to justify so substantial a weakening of the Fourth Amendment’s protections. Contrary to the assumption of Frank v. Maryland, Fourth Amendment interests are not merely “peripheral” where municipal fire, health, and housing inspection programs are involved whose purpose is to determine the existence of physical conditions not complying with local ordinances. (Camara vs.

Municipal Court of the City and Country of San Francisco [387 US 523, 5 June 1967])

!!! Case(s)

196. Camara vs. Municipal Court, 387 U. S. 523 (1967)

7. Arrests with warrant

a. Probable cause defined

Probable cause means an actual belief or reasonable grounds of suspicion. The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest. (People v. Doria, 301 SCRA 668 [1999]; citing Umil v. Ramos, 202 SCRA 251, 263 [1991]; United States v. Santos, 36 Phil. 851 [1917]; People v. Bati, 189 SCRA 97 [1990]; People v. Sucro, 195 SCRA 388 [1990] and People v. Ramos 186 SCRA 184 [1990]) Thus, the term probable cause had been understood to mean a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man’s belief that the person accused is guilty of the offense with which he is charged. (People v. Encinada, 280 SCRA 72, 85-86 [1997])

Specifically with respect to arrests, it is such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested. (1 Bernas 87) In People v. Montilla, (285 SCRA 703 [1998]) the Court acknowledged that “the evidentiary measure for the propriety of filing criminal charges, and correlatively, for effecting warrantless arrest, has been reduced and liberalized.”

b. Probable cause distinguished from prima facie evidence

The confusing concepts of “prima facie evidence” and “probable cause” were clarified and set aright by the 1985 amendment of the Rules of Court which provides in Rule 112 thereof that the quantum of evidence required in preliminary investigation is such evidence as suffices to “engender as well founded belief” as to the fact of the commission of the crime and the respondent’s probable guilt thereof. It has the same meaning as the related phraseology used in other parts of the same Rule, that is, that the investigating fiscal “finds cause to hold the respondent for trial,” or where “a probable cause exists.” It should, therefore, be in that sense, wherein the right to effect a warrantless arrest should be considered as legally authorized. (People v. Montilla, 285 SCRA 703, 720-721 [1998])

c. Reliable information as basis for probable cause

The long-standing rule in this jurisdiction, applied with a great degree of consistency, is that “reliable information”

alone is not sufficient to justify a warrantless arrest under Section 5 (a), Rule 113. The rule requires, in addition, that the accused perform some overt act that would indicate that he “has committed, is actually committing, or is attempting to commit an offense.” Thus, notwithstanding tips from confidential informants and regardless of the fact that the search yielded contraband, the mere act of looking from side to side while holding one’s abdomen, or of standing on a corner with one’s eyes moving very fast, looking at every person who came near, does not justify a warrantless arrest under said Section 5 (a). Neither does putting something in one’s pocket, handing over one’s baggage, riding a motorcycle, nor does holding a bag on board a trisikad sanction State intrusion. The same rule applies to crossing the street per se. (People vs. Tudtud [GR 144037, 26 September 2003])

d. Personal determination by judge

What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal’s report and require the submission

of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. (Soliven vs. Makasiar, 167 SCRA 398)

First, as held in Inting, the determination of probable cause by the prosecutor is for a purpose different from that which is to be made by the judge. Whether there is reasonable ground to believe that the accused is guilty of the offense charged and should be held for trial is what the prosecutor passes upon. The judge, on the other hand, determines whether a warrant of arrest should be issued against the accused, i.e., whether there is a necessity for placing him under immediate custody in order not to frustrate the ends of justice. Thus, even if both should base their findings on one and the same proceeding or evidence, there should be no confusion as to their distinct objectives.

Second, since their objectives are different, the judge cannot rely solely on the report of the prosecutor in finding probable cause to justify the issuance of a warrant of arrest. Obviously and understandably, the contents of the prosecutor’s report will support his own conclusion that there is reason to charge the accused for an offense and hold him for trial. However, the judge must decide independently. Hence, he must have supporting evidence, other than the prosecutor’s bare report, upon which to legally sustain his own findings on the existence (or nonexistence) of probable cause to issue an arrest order. This responsibility of determining personally and independently the existence or nonexistence of probable cause is lodged in him by no less than the most basic law of

the land. Parenthetically, the prosecutor could ease the burden of the judge and speed up the litigation process by forwarding to the latter not only the information and his bare resolution finding probable cause, but also so much of the records and the evidence on hand as to enable the His Honor to make his personal and separate judicial finding on whether to issue a warrant of arrest.

Lastly, it is not required that the complete or entire records of the case during the preliminary investigation be submitted to and examined by the judge. We do not intend to unduly burden trial courts by obliging them to examine the complete records of every case all the time simply for the purpose of ordering the arrest of an accused. What is required, rather, is that the judge must have sufficient supporting documents (such as the complaint, affidavits, counter-affidavits, sworn statements of witnesses or transcript of stenographic notes, if any) upon which to make his independent judgment or, at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause. The point is: he cannot rely solely and entirely on the prosecutor’s recommendation, as Respondent Court did in this case. Although the prosecutor enjoys the legal presumption of regularity in the performance of his official duties and functions, which in turn gives his report the presumption of accuracy, the Constitution, we repeat, commands the judge to personally determine probable cause in the issuance of warrants of arrest. This Court has consistently held that a judge fails in his bounden duty if he relies merely on the certification or

the report of the investigating officer.” (Ho vs. People, 280 SCRA 365)

The question whether “probable cause” exists or not must depend upon the judgment and discretion of the judge or magistrate issuing the warrant. It does not mean that particular facts must exist in each particular case. It simply means that sufficient facts must be presented to the judge or magistrate issuing the warrant to convince him, not that the particular person has committed the crime, but that there is probable cause for believing that the person whose arrest is sought committed the crime charged. No rule can be laid down which will govern the discretion of the court in this matter. If he decides, upon the proof presented, that probable cause exists, no objection can be made upon constitutional grounds against the issuance of the warrant. His conclusion as to whether “probable cause” existed or not is final and conclusive. If he is satisfied that “probable cause” exists from the facts stated in the complaint, made upon the investigation by the prosecuting attorney, then his conclusion is sufficient upon which to issue the warrant for arrest. He may, however, if he is not satisfied, call such witnesses as he may deem necessary before issuing the warrant. The issuance of the warrant of arrest is prima facie evidence that, in his judgment at least, there existed “probable cause” for believing that the person against whom the warrant is issued is guilty of the crime charged. There is no law which prohibits him from reaching the conclusion that “probable cause” exists from the statement of the prosecuting attorney alone, or any other person whose statement or affidavit is entitled to credit in the

opinion of the judge or magistrate. (US vs. Ocampo, 18 Phil. 1, 41-42)

Law and jurisprudence in fact require stricter grounds for valid arrests and searches without warrant than for the issuance of warrants therefore. In the former, the arresting person must have actually witnessed the crime being committed or attempted by the person sought to be arrested; or he must have personal knowledge of facts indicating that the person to be arrested perpetrated the crime that had just occurred. In the latter case, the judge simply determines personally from testimonies of witnesses that there exists reasonable grounds to believe that a crime was committed by the accused. (People vs. Tudtud [GR 144037, 26 September 2003])

8. Warrantless arrests

The Rules of Court recognizes permissible warrantless arrests. Thus, a peace officer or a private person may, without 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 (arrest in flagrante delicto); (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 (arrest effected in hot pursuit); and (c) when the person to be arrested is a prisoner who has escaped from a penal establishment or a 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 (arrest

of escaped prisoners). (People v. Chua Ho San, 308 SCRA 432, 444 [1999]; and the Revised Rules on Criminal Procedure (as amended), Rule 113, Section 5.)

To constitute a valid in flagrante delicto arrest, two requisites must concur: (1) the person to be arrested must execute an overt act indicating that he 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. (Concurring Opinion of Justice Artemio V. Panganiban in People v. Doria, 301 SCRA 668, 720 [1999]) As applied to in flagrante delicto arrests, it is settled that “reliable information” alone, absent any overt act indicative of a felonious enterprise in the presence and within the view of the arresting officers, are not sufficient to constitute probable cause that would justify an in flagrante delicto arrest. (People vs. Molina [GR 133917, 19 February 2001])

Rule 113, Sec. 5

Section 5. Arrest without warrant; when lawful. — A peace officer or a private person may, without a warrant, arrest a person:

1. When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

2. 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

3. 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 paragraphs (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.

Art. 125, Revised Penal Code

Article 125. Delay in the delivery of detained persons to the proper judicial authorities. — The penalties provided in the next preceding article shall be imposed upon the public officer or employee who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of; twelve (12) hours, for crimes or offenses punishable by light penalties, or their equivalent; eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or their equivalent and thirty-six (36) hours, for crimes, or offenses punishable by afflictive or capital penalties, or their equivalent.

In every case, the person detained shall be informed of the cause of his detention and shall be allowed upon his

request, to communicate and confer at any time with his attorney or counsel.

Rebellion as Continuing Offense

The arrest of persons involved in the rebellion whether as its fighting armed elements, or for committing non-violent acts but in furtherance of the rebellion, is more an act of capturing them in the course of an armed conflict, to quell the rebellion, than for the purpose of immediately prosecuting them in court for a statutory offense. The arrest, therefore, need not follow the usual procedure in the prosecution of offenses which requires the determination by a judge of the existence of probable cause before the issuance of a judicial warrant of arrest and the granting of bail if the offense is bailable. Obviously the absence of a judicial warrant is no legal impediment to arresting or capturing persons committing overt acts of violence against government forces, or any other milder acts but really in pursuance of the rebellious movement. The arrest or capture is thus impelled by the exigencies of the situation that involves the very survival of society and its government and duly constituted authorities. If killing and other acts of violence against the rebels find justification in the exigencies of armed hostilities which (are) of the essence of waging a rebellion or insurrection, most assuredly so in case of invasion, merely seizing their persons and detaining them while any of these contigencies continues cannot be less justified. (Umil vs. Ramos [GR 81567, 9 July 1990])

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197. Umil vs. Ramos, G. R. 81567, July 9, 1990

Committed in the Presence of Police Officers

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. (People vs. Sucro [GR 93239, 18 March 1991])

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198. People v. Sucro, 195 SCRA 388 (1991) 199. People V. Doria, 301 SCRA 668) (1999) 200. People v. Luisito Go, G.R. No. 116001,

March 14, 2001201. People v. De Guzman, GR No. 117952-

53, February 14, 2001

Personal Knowledge of the Offense

In cases of in flagrante delicto arrests, a peace officer or a private person may without a warrant, arrest a person, when, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. The arresting officer, therefore, must have personal knowledge of such fact or as recent case law adverts to, personal knowledge of facts or circumstances convincingly indicative or constitutive of probable cause. (People vs. Chua Ho San [GR 128222, 17 June 1999])

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202. People vs. Gerente, 219 SCRA 756 (1993) 203. People v. Sinoc, 275 SCRA 357 (1997) 204. People v. Baula, G.R. No. 132671,

November 15, 2000205. People v. Cubcubin, G.R. No. 136267,

July 10, 2001

Time of Arrest

1. Hot Pursuit

Paragraph (b) of Section 5 is otherwise known as the doctrine of “hot pursuit” arrests. This doctrine is based on the rule that an arrest can be made without warrant when an offense has just been committed and the arresting officer has probable cause to believe based on personal knowledge of facts or circumstances that a crime has just been committed. It is not necessary that the arresting officers have direct knowledge of the crime. But they must have direct knowledge or view of the crime right after its commission. (People vs. Doria, 301 SCRA 668)

2. “Has just been committed”

It is not sufficient that a crime was indeed committed but it is required that the said crime has just been committed. The proximity of time of commission of the crime must be close to the time of the arrest. Otherwise, the arrest is illegal. (Pineda, Ernesto L., The Revised Rules on Criminal Procedure, 2003 Edition, 161.)

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206. People vs. Rodrigueza, 205 SCRA 791 (1992)

207. Go vs. Court of Appeals, 206 SCRA 586 (1992)

208. People v. Calimlim, G.R. No. 123980, August 30. 2001

Marked Money

The discovery of the marked money on [a person] did not mean he was caught [in fragrante delicto]. The marked money was not prohibited per se. Even if it were, that fact alone would not retroactively validate the warrantless search and seizure. (People vs. Enrile [GR 74189, 26 May 1993])

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209. People vs. Enrile, 222 SCRA 586 (1993)

Lack of Urgency

As a general rule, the procurement of a search warrant is required before a law enforcer may validly search or seize the person, house, papers or effects of any individual. When one was not caught in flagrante nor was a crime about to be committed or had just been committed, there is no justification for the warrantless arrest allowed under Rule 113 of the Rules of Court. Even expediency could not be invoked to dispense with the obtention of the warrant.

Warrantless arrests cannot be resorted to when police officers have ample opportunity to secure a warrant of arrest.

Applications made during weekends and holidays. The Supreme Court’s Circular 19, dated 14 August 1987, which reads “3. Applications filed after office hours, during Saturdays, Sundays and holidays shall likewise be taken cognizance of and acted upon by any judge of the court having jurisdiction of the place to be searched, but in such cases the applicant shall certify and state the facts under oath, to the satisfaction of the judge, that the issuance is urgent” merely provides for a guideline, departure from which would not necessarily affect the validity of an otherwise valid search warrant. (Prudente vs. Dayrit [GR 82870, 14 December 1989])

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210. People v. Pasudag, G.R. No. 128822, May 4, 2001

211. People vs. Aminnudin, 163 SCRA 402 (1988)

Effect of Entry of Plea

By pleading “not guilty” at their arraignment, the accused submitted to the jurisdiction of the trial court, thereby curing any defect in their arrest, for the legality of an arrest affects only the jurisdiction of the court over their persons. (People vs. Plana [GR 128285, 27 November 2001])

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212. People v. Plana G.R. No. 128285, November 27, 2001

Validity of Conviction

The illegal arrest of an accused is not sufficient cause for setting aside a valid judgment rendered upon a sufficient complaint after trial free from error. (People vs. De Guzman, 224 SCRA 93, 100 [1993]). The warrantless arrest, even if illegal, cannot render void all other proceedings including those leading to the conviction of the appellants and his co-accused, nor can the state be deprived of its right to convict the guilty when all the facts on record point to their culpability. (People vs. Manlulu, 231 SCRA 701, 710 [1994]; People vs. De Guia, 227 SCRA 614, 626 [1993])

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213. People v. Conde, G.R. No. 113269, April 10, 2001

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Search warrant; requirements for validity. The validity of the issuance of a search warrant rests upon the following factors: (1) it must be issued upon probable cause; (2) the probable cause must be determined by the judge himself and not by the applicant or any other person; (3) in the determination of probable cause, the judge must examine, under oath or affirmation, the complainant and such witnesses as the latter may produce; and (4) the warrant issued must particularly describe the place to be searched and persons or things to be seized. On the first requisite, a magistrate’s determination of probable cause for the issuance of a search warrant is paid great deference by a reviewing court, as long as there was substantial basis for that determination. Substantial basis means that the questions of the examining judge brought out such facts and circumstances as would lead a reasonably discreet and prudent man to believe that an offense has been committed, and the objects in connection with the offense sought to be seized are in the place sought to be searched. On the last requirement, a description of the place to be searched is sufficient if the officer serving the warrant can, with reasonable effort, ascertain and identify the place intended and distinguish it from other places in the community. A designation or description that points out the place to be searched to the exclusion of all others, and on inquiry unerringly leads the peace officers to it, satisfies the constitutional requirement of definiteness. People of the Philippines vs. Estela Tuan y Baludda. G.R. No. 176066, August 11, 2010.

Rules of Court, Rule 126

Rule 126, Search and Seizure

Section 1. Search warrant defined. — A search warrant is an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a peace officer, commanding him to search for personal property described therein and bring it before the court. (1)

Section 2. Court where application for search warrant shall be filed. — An application for search warrant shall be filed with the following:

a. Any court within whose territorial jurisdiction a crime was committed.

b. For compelling reasons stated in the application, any court within the judicial region where the crime was committed if the place of the commission of the crime is known, or any court within the judicial region where the warrant shall be enforced.

However, if the criminal action has already been filed, the application shall only be made in the court where the criminal action is pending. (n)

Section 3. Personal property to be seized. — A search warrant may be issued for the search and seizure of personal property:

a. Subject of the offense;b. Stolen or embezzled and other proceeds, or fruits of

the offense; or

c. Used or intended to be used as the means of committing an offense. (2a)

Section 4. Requisites for issuing search warrant. — A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines. (3a)

Section 5. Examination of complainant; record. — The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted. (4a)

Section 6. Issuance and form of search warrant. — If the judge is satisfied of the existence of facts upon which the application is based or that there is probable cause to believe that they exist, he shall issue the warrant, which must be substantially in the form prescribed by these Rules. (5a)

Section 7. Right to break door or window to effect search. — The officer, if refused admittance to the place of directed search after giving notice of his purpose and authority, may break open any outer or inner door or window of a house or any part of a house or anything therein to execute the

warrant or liberate himself or any person lawfully aiding him when unlawfully detained therein. (6)

Section 8. Search of house, room, or premise to be made in presence of two witnesses. — 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, two witnesses of sufficient age and discretion residing in the same locality. (7a)

Section 9. Time of making search. — The warrant must direct that it be served in the day time, unless the affidavit asserts that the property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time of the day or night. (8)

Section 10. Validity of search warrant. — A search warrant shall be valid for ten (10) days from its date. Thereafter it shall be void. (9a)

Section 11. Receipt for the property seized. — The officer seizing property under the warrant must give a detailed receipt for the same to the lawful occupant of the premises in whose presence the search and seizure were made, or in the absence of such occupant, must, in the presence of at least two witnesses of sufficient age and discretion residing in the same locality, leave a receipt in the place in which he found the seized property. (10a)

Section 12. Delivery of property and inventory thereof to court; return and proceedings thereon. —

a. The officer must forthwith deliver the property seized to the judge who issued the warrant, together with a true inventory thereof duly verified under oath.

b. Ten (10) days after issuance of the search warrant, the issuing judge shall ascertain if the return has been made, and if none, shall summon the person to whom the warrant was issued and require him to explain why no return was made. If the return has been made, the judge shall ascertain whether section 11 of this Rule has been complained with and shall require that the property seized be delivered to him. The judge shall see to it that subsection (a) hereof has been complied with.

c. The return on the search warrant shall be filed and kept by the custodian of the log book on search warrants who shall enter therein the date of the return, the result, and other actions of the judge.

A violation of this section shall constitute contempt of court.(11a)

Section 13. Search incident to lawful arrest. — A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant. (12a)

Section 14. Motion to quash a search warrant or to suppress evidence; where to file. — A motion to quash a search warrant and/or to suppress evidence obtained thereby may be filed in and acted upon only by the court where the action has been instituted. If no criminal action

has been instituted, the motion may be filed in and resolved by the court that issued the search warrant. However, if such court failed to resolve the motion and a criminal case is subsequent filed in another court, the motion shall be resolved by the latter court. (n)