Article 3.

Section 2
Sec. 2. Art. Ill: “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 a judge, after examination under
oath or affirmation of the complainant and the witnesses he may
produce, particularly describing the place to be searched, or the persons
or things to the seized.”
DOES THE CONSTITUTION PROHIBIT ALL TYPES OF
SERCHES AND SEIZURES?
- No. Only unreasonable SS.
WHAT ARE THE 2 Parts of Sec. 2, Art. III?
1. Constitutional guarantee

2. Requisites of search warrant
WHAT IS A WARRANT?
- 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.
WHAT IS A 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.
MAY A SEARCH WARRANT BE ISSUED FOR THE SEARCH
AND SEIZURE OF REAL PROPERTY?
- No. Real property cannot be a subject of a search warrant because of
physical impossibility to bring the property before the court. Under RoC,
only personal property may be subject of search warrant, which may be:
a. Subject of offense.

b. Stolen or embezzled and its fruits.

c. Used or intended to be used for the
commission of the offense.
WHAT IS THE LIFETIME OF A SEARCH WARRANT?

• -  A search warrant shall be valid for ten (10) days from its
date. Thereafter it shall be void. (Sec. 10, Rule 126) 


• -  A warrant of arrest has no lifetime and it is valid until

served. But the head of the office to whom the warrant of arrest
was delivered for execution shall cause the warrant to be executed
within ten (10)

DIFFERENCE BETWEEN WOA and SW (NACHURA)

ii) Warrant of Arrest. A warrant of arrest is said to particularly describe
the person to be seized if it contains the name/s of the person/s to be
arrested. If the name of the person to be arrested is not known, then a
“John Doe” warrant may be issued. A “John Doe" warrant will satisfy
the constitutional requirement of particularity of description if there is
some descriptio persona which will enable the officer to identify the
accused.
ia) In Pangandaman v. .Casar, 159 SCRA 599, warrants issued against
“50 John Does”, none of whom the witnesses could identify, were
Considered as “general warrants”, and thus, void.
iii) Search Warrant. 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 v. 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; or when the things described are limited to those which bear
direct relation to the offense for which the warrant is being issued
[Bache & Co. v. Ruiz, 37 SCRA 823], If the articles desired to be seized
have any direct relation to an offense committed, the applicant must
necessarily have some evidence other than those articles, to prove said
offense; and the articles subject of search and seizure should come in
handy merely to strengthen such evidence [Columbia Pictures v. Court
of Appeals, G. R. No. 111267, September 20, 1996].
HYPO: Judge issued SW on July 1. Police received it on July 10. He
implemented the same on July 12. Valid?
- No. Search warrant is valid only within 10 days from the date of
issuance.
WHAT ARE THE REQUISITES OF A VALID 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. (Sec. 4, Rule
126)
WHAT IS PROBABLE CAUSE?

• -  Probable cause refers to such facts and circumstances

antecedent to the issuance of the warrant, that are in themselves
sufficient to induce a cautious man to rely upon them and act in
pursuance thereof. 

a. For a search: “such facts and circumstances which would
lead a reasonably discreet and prudent man to believe that an
offense has been committed and that the objects sought in
connection with the offense are in the place sought to be searched.” 

b. For an arrest: “such facts and circumstances which would
lead a reasonably discreet and prudent person to believe that an
offense has been committed by the person sought to be arrested.” 


PEOPLE VS MARTI ( Private Citizen Causing search, Marijuana)

In the absence of governmental interference, the liberties guaranteed by

the Constitution cannot be invoked against the State. This constitutional
right refers to the immunity of one's person, whether citizen or alien,
from interference by government.The contraband in the case at bar came
into possession of the government without the latter transgressing
appellant's rights against unreasonable searches and seizures.
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. If the search is made at
the behest or initiation of the proprietor of a private establishment for its
own and private purposes, as in the case at bar, and without the
intervention of police authorities, the right against unreasonable
searches and seizures cannot be invoked for only the act of private
individuals, not law enforcers, is involved. In sum, the protection against
unreasonable searches and seizures
cannot be extended to acts committed by private individuals so as to
bring it within the ambit of alleged unlawful intrusion by the
government.
WHAT IS THE RRASON FOR DENYING TO APPLY THE
GUARANTEE AGAINST UNREASONABLE SS?
- Constitution does not concern itself with relations between and among
individuals.

Stonehill vs. Diokno [G.R. No. L-19550, June 19, 1967]

A. THE RIGHT AGAINST UNREASONABLE SEARCHES AND
SEIZURES IS PERSONAL. Thus, the documents, papers, and things
seized under the alleged authority of the warrants in question may be
split into (2) major groups, namely:
(a) those found and seized in the offices of the aforementioned
corporations and
(b) those found seized in the residences of petitioners herein.

B. Whether or not the search warrants in question were validly issued?


No. Two points must be stressed in connection with Art. III, Section 2 of
the Constitution:
(a) that no warrant shall issue but upon probable cause to be determined
by the judge in the manner set forth therein; and
(b) that the warrant shall particularly describe the things to be seized.
Thus, the warrants authorized the search for and seizure of records
pertaining to ALL business transactions of petitioners herein, regardless
of whether the transactions were legal or illegal. The warrants
sanctioned the seizure of all records of the petitioners and the
aforementioned corporations, whatever their nature, thus openly
contravening the explicit command of our Bill of Rights — that the
things to be seized be particularly described — as well as tending to
defeat its major objective: the elimination of general warrants.
General search warrants are outlawed because they place the sanctity of
the domicile and the privacy of communication and correspondence at
the mercy of the whims, caprice or passion
of peace officers. The warrants sanctioned the seizure of all records of
the petitioners and the aforementioned corporations, whatever their
nature, thus openly contravening the explicit command of our Bill of
Rights-- THAT THE THINGS TO BE SEIZED BE
PARTICULARLY DESCRIBED-- as well as tending to defeat its
major objective: the elimination of general warrants.
Exclusionary Rule Doctrine

THE EXCLUSIONARY RULE, realizing that this is the only practical

means of enforcing the constitutional injunction against unreasonable
searches and seizures. In the language of Judge Learned Hand:
"As we understand it, the reason for the exclusion of evidence competent
as such, which has been unlawfully acquired, is that exclusion is the only
practical way of enforcing the constitutional privilege. In earlier times
the action of trespass against the offending official may have been
protection enough; but that is true no longer. Only in case the
prosecution which itself controls the seizing officials, knows that it
cannot profit by their wrong, will that wrong be repressed".
CAN A PERSON INVOKE THIS RIGHT AGAINST Search and
seizure ON BEHALF OF ANOTHER INDIVIDUAL?
- No. It is a personal right.

- A corporation has a separate and
distinct personality. A board resolution is needed to invoke this right on
behalf of a corporation.

HYPO:

DAR EMPLOYEE SEARCHED THE CLOSET OF HER FRIEND
AND FOUND SHABU, CAN HER FRIEND INVOKE RIGHT
AGAINST UNREASONABLE SS AGAINST THE STATE?
- No. It may be invoked only if the search is made by law enforcement
agencies and the State itself.

MANTARING VS. ROMAN

Issue: Whether or not there was valid basis for issuance of the warrant
of arrest
Ruling: No. The issuance of a search warrant and of a warrant of arrest
requires the showing of probabilities as to different facts. In the case of
search warrants, the determination is based on the finding that:
(1) the articles to be seized are connected to a criminal activity and

(2) they are found in the place to be searched. It is not necessary that a
particular person be implicated.
On the other hand, in arrest cases, the determination of probable cause is
based on a finding that a crime has been committed and that the person
to be arrested has committed it. It is now settled that in issuing warrants
of arrest in preliminary investigations, the investigating judge must:
(a) have examined in writing and under oath the complainant and his
witnesses by searching

questions and answers;
(b) be satisfied that probable cause exists; and

(c) that there is a need to place the respondent under immediate custody
in order not to frustrate the ends of justice.
In this case the respondent judge ordered the issuance of warrant of
arrest solely

on his finding of probable cause, totally omitting to consider the third
requirement that
there must be a need to place the respondent under immediate custody
“in order not to frustrate the ends of justice.”
Mantaring vs. Roman

• -  Persons named in WOA need not be included in SW

Prosecutions PC vs. Judge PC 


• -  Normally, WOA is issued after filing of the information

• EXPLAIN THOROUGHLY THE SO- CALLED PERSONAL

EXAMINATION: 


• -  SEARCH WARRANT – Personal Examination by

Searching questions and answers 


• -  WARRANT OF ARREST – Personal evaluation of

fiscal’s report or affidavits 

 WHAT IS THE DIFFERENCE BETWEEN
PROBABLE CAUSE MADE BY PROSECUTOR AND
MADE BY THE JUDGE? 


• -  The purpose of the probable cause made by the

prosecutor is to file an information and is executive in
character 


• -  The purpose of the probable case made by the judge

is for the issuance of WOA or SW and is judicial in character. 


• IS THE PROCEDURE STRICTER IN OBTAINING A

SEARCH WARRANT? 

- No. In Arrest warrant probable cause is already determined by the
prosecutor; arrest warrant is normally issued after filing of
information.

- In a search warrant, no case is filed yet; likened to a fishing
expedition.

Soliven vs. Makasiar

FOR WARRANTS OF ARRESTS, THE JUDGES ARE NOT
REQUIRED TO PERSONALLY EXAMINE THE
COMPLAINANT AND HIS WITNESSES. The addition of the word
"personally" after the word "determined" and the deletion of the grant
of authority by the 1973 Constitution to issue warrants to "other
responsible officers as may be authorized by law", has apparently
convinced petitioner Beltran that the Constitution now requires the judge
to personally examine the complainant and his witnesses in the
determination of probable cause for the issuance of warrants of arrest.
This is not an accurate interpretation. What the Constitution underscores
is the exclusive and personal responsibility of the issuing judge to satisfy
himself 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. Sound policy dictates this procedure, otherwise judges
would be unduly laden with the preliminary examination and
investigation of criminal complaints instead of concentrating on hearing
and deciding cases filed before their courts.

Silva vs. Presiding Judge of RTC, Negros Oriental [G.R. No. 81756,
October 21, 1991]
FOR SEARCH WARRANTS, THE JUDGE MUST PERSONALLY
EXAMINE THE COMPLAINANT AND HIS WITNESSES
THROUGH SEARCHING QUESTIONS. The purpose of the
constitutional provision against unlawful searches and seizures is to
prevent violations of private security in person and property, and
unlawful invasion 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.
Thus, Sections 3 and 4, Rule 126 of the Rules of Court provide for the
requisites for the issuance of a search warrant, to wit:
"SECTION 3. Requisite for issuing search warrant. — A search
warrant shall not issue but 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.
"SECTION 4. 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 any witnesses he may produce on facts personally
known to them and attach to the record their sworn statements together
with any affidavits submitted."
Based on the aforecited constitutional and statutory provisions, the judge
must, before issuing a search warrant, determine whether there is
probable cause by examining the complainant and witnesses through
searching questions and answers.

WHY ARE THE RULES MORE LENIENT FOR WARRANT OF

ARREST?
- Because there are previous proceedings before the issuance of WOA:
1. Complaint

2. Preliminary investigation 3. Information
On the other hand, for SW no case has been filed yet. Further, it is
intended to secure evidence in connection with the crime. There is no
evidence yet, hence, stricter procedure.
Warrants of arrest issued by a JUDGE – is a preliminary step to
prosecution and to acquire jurisdiction.
MORANO VS VIVO
This is an exception to the general rule:

However, in Morano v. Vivo, 20 SCRA 562, it was held that orders of
arrest may be issued by administrative authorities, but only for the
purpose of carrying out a final finding of a violation of law, e.g., an order
of deportation or an order of contempt, but not for the sole purpose of
investigation or prosecution. This is reiterated in Sy v. Domingo, infra.,
where the Supreme Court held that the Bureau of Immigration may issue
a warrant of arrest only for the purpose of carrying out a final decision of
deportation or when there is sufficient proof of the guilt of the alien.
OTHER GOVERNMENT OFFICERS MAY ISSUE WARRANTS, BUT
ONLY TO ENFORCE FINAL JUDGMENTS.
The Court held that, Sec. 1 (3), Art. III does not require judicial
intervention in the execution of a final order of deportation issued in
accordance with law. The constitutional limitation contemplates an order
of arrest in the exercise of judicial power AS A STEP PRELIMINARY
OR INCIDENTAL TO PROSECUTION OR PROCEEDINGS FOR A
GIVEN OFFENSE OR ADMINISTRATIVE ACTION, not as A
MEASURE INDISPENSABLE TO CARRY OUT A VALID DECISION
BY A COMPETENT OFFICIAL , such as legal order of deportation,
issued by the Commissioner of Immigration, in pursuance of a valid
legislation. It is thoroughly established that Congress has power to order
the deportation of aliens whose presence in the country it deems hurtful.
Owing to the nature of the proceeding, the deportation of an alien who is
found in this country in violation of law is not a deprivation of liberty
without due process of law.
This is so, although the inquiry devolves upon executive officers, and
their findings of fact, after A fair though summary hearing, are made
conclusive. The determination of the propriety of deportation is not a
prosecution for, or a conviction of, crime; nor is the deportation a
punishment, even though the facts underlying the decision may
constitute a crime under local law . The proceeding is in effect simply a
refusal by the government to harbor persons whom it does not want .
The coincidence of local penal law with the policy of congress is purely
accidental, and, though supported by the same facts, a criminal
prosecution and a proceeding for deportation are separate and
independent.
In consequence, the constitutional guarantee set forth in Section 1(3),
Article III of the Constitution aforesaid requiring that the issue of
probable cause be determined by a judge, does not extend to deportation
proceedings. The view, we, here express funds support in the discussions
during the constitutional convention. The convention recognized, as
sanctioned by due process, possibilities and cases of deprivation of
liberty, other than by order of a competent court.
"This argument overlooks the fact that the stay of appellant Ng Hua To
as temporary visitor is subject to certain contractual stipulations as
contained in the cash bond put up by him, among them, that in case of
breach the Commissioner may require the recommitment of the person in
whose favor the bond has been filed. The Commissioner did nothing but
to enforce such condition. Such a step is necessary to enable the
Commissioner to prepare the ground for his deportation under section
37 (a) of Commonwealth Act 613. A contrary interpretation would
render such power nugatory to the detriment of the State." It is in this
context that we rule that Section 37 (a) of the Immigration Act of 1940 is
not constitutionally proscribed.
What is the different between arrest issued by Immigration
Commissioner from arrest under Sec. 2?
- Warrant of arrest issued by commissioner is for the purpose of
effecting final order of deportation. WA under section 2 is for
prosecution purposes, not to effect final finding of violation of law.
People vs. Mengote distinguished from Posadas vs. CA.
- The issue hinges on the credibility of police officers. In posadas, the
suspect ran. While in Mengote, there was anonymous call and one of the
2 suspects was seen holding his abdomen, looking from left to right in a
broad daylight. Malay mo masakit lang ang tiyan niya! (Rivera 2011)
What are different permissible warrantless searches?

1. Warrantless search incidental to a lawful arrest;
2. Search of evidence in "plain view;" 3. Search of a moving vehicle;

4. Consented warrantless search;

5. Customs search;
6. Stop and Frisk; and

7. Exigent and emergency circumstances. (Stephen Sy vs. People, G.R.
No. 182178, August 15, 2011, citing People v. Rancho, G.R. No.
186529, August 3, 2010.


HARVEY VS SANTIAGO
An aberrant case is Harvey v. Santiago, 162 SCRA 840, where the
Supreme Court upheld the validity of the arrest of pedophiles on orders
of Immigration Commissioner Santiago because there was probable
cause, occasioned by months of surveillance made by CID agents on the
suspected pedophiles. According to the Court, the requirement that
probable cause is to be determined only by a judge does not extend to
deportation cases which are not criminal but purely administrative in
nature. The existence of probable cause justified the arrest, as well as the
seizure of the photo negatives, photographs and posters without warrant.
Furthermore, petitioners were found with young boys in their respective
rooms, and under the circumstances, the CID agents had reasonable
ground to believe that petitioners had committed “pedophilia” which,
though not punished under the Revised Penal Code, is behavior
offensive to public morals and violative of the declared policy of the
State to promote and protect the physical, moral, spiritual and social
wellbeing of our youth. [Note that this case was decided prior to the
enactment of R.A. 7610 (Special Protection of Children Against Child
Abuse, Exploitation and Discrimination Act)].
WARRANTS FOR THE ARREST OF UNDESIRABLE ALIENS
MAY BE ISSUED BY THE COMMISSIONER OF
IMMIGRATION TO ENFORCE A FINAL DECISION OF
DEPORTATION. Section 37(a) is not constitutionally proscribed
(Morano vs. Vivo, L-22196, June 30, 1967, 20 SCRA 562). The specific
constraints in both the 1935 and 1987 Constitutions, which are
substantially identical, contemplate prosecutions essentially criminal in
nature. Deportation proceedings, on the other hand, are administrative in
character. An order of deportation is never construed as a punishment. It
is preventive, not a penal process. It need not be conducted strictly in
accordance with ordinary Court proceedings. It is of course well-settled
that deportation proceedings do not constitute a criminal action. The
order of deportation is not a punishment, it being merely the return to his
country of an alien who has broken the conditions upon which he could
continue to reside within our borders. The deportation proceedings are
administrative in character, summary in nature, and need not be
conducted strictly in accordance with the ordinary court proceedings. It
is essential, however, that the warrant of arrest shall give the alien
sufficient information about the charges against him, relating the facts
relied upon. It is also essential that he be given a fair hearing with the
assistance of counsel, if he so desires, before unprejudiced investigators.
However, all the strict rules of evidence governing judicial controversies
do not need to be observed; only such as are fundamental and essential,
like the right of cross- examination. Hearsay evidence may even be
admitted, provided the alien is given the opportunity to explain or rebut
it.
SALAZAR VS. ACHACOSO [183 SCRA 145; G.R. NO. 81510; 14
MAR 1990]

Under the new Constitution, “. . . 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”. Mayors and
prosecuting officers cannot issue warrants of seizure or arrest. The
Closure and Seizure Order was based on Article 38 of the Labor Code.
The Supreme Court held, “We reiterate that the Secretary of Labor, not
being a judge, may no longer issue search or arrest warrants. Hence, the
authorities must go through the judicial process. To that extent, we
declare Article 38, paragraph (c), of the Labor Code, unconstitutional
and of no force and effect... The power of the President to order the
arrest of aliens for deportation is, obviously, exceptional. It (the power to
order arrests) cannot be made to extend to other cases, like the one at
bar. Under the Constitution, it is the sole domain of the courts.”
Furthermore, the search and seizure order was in the nature of a general
warrant. The court held that the warrant is null and void, because it must
identify specifically the things to be seized.
WHEREFORE, the petition is GRANTED. Article 38, paragraph (c) of
the Labor Code is declared UNCONSTITUTIONAL and null and void.
The respondents are ORDERED to return all materials seized as a result
of the implementation of Search and Seizure Order No. 1205.
The purpose is for investigation. Secretary of Labor has no authority to
issue warrant of arrest.
WHAT ARE UNREASONABLE SEARCHES AND SEIZURES?
- Reasonableness does not depend on the existence or absence of a
warrant.
“All illegal SS are unreasonable while lawful ones are reasonable. “

PROPERTIES SUBJECT TO SEIZURE [Sec. 2, Rule 126, Rules of

Court]:
(a) Subject of the offense;
(b) Stolen or embezzled property and other proceeds or fruits of the
offense; and (c) Property used or intended to beused as means for the
commission of an offense.
-It is not necessary that the property to be searched or seized should be
owned by the person against whom the warrant is issued; it is sufficient
that the property is within his control or possession [Burgos v. Chief of
Staff, 133 SCRA 800]

Alvarez vs. CFI [G.R. No. 45358, January 29, 1937]

THE PROBABLE CAUSE MUST BE BASED ON PERSONAL
KNOWLEDGE OF THE

COMPLAINANT OR HIS WITNESSES. The petitioner claims that
the search warrant issued by the court is illegal because it has been based
upon the affidavit of agent Mariano G. Almeda in whose oath he
declared that he had no personal knowledge of the facts which were to
serve as a basis for the issuance of the warrant but that he had
knowledge thereof through mere information secured from a person
whom he considered reliable. To the question "What are your reasons
for applying for this search warrant", appearing in the affidavit, the
agent answered: "It has been reported to me by a person whom I
consider to be reliable that there are being kept in said premises, books,
documents, receipts, lists, chits, and other papers used by him in
connection with his activities as a money- lender, charging a usurious
rate of interest, in violation of the law" and in attesting the truth of his
statements contained in the affidavit, the said agent stated that he found
them to be correct and true to the best of his knowledge and belief.
Section 1, paragraph 3, of Article III of the Constitution, relative to
the bill of rights, provides 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, 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."
Section 97 of General Orders, No. 58
provides that "A search warrant shall not issue except for probable
cause and upon application supported by oath particularly describing
the place to be searched and the person or thing to be seized." It will be
noted that both provisions require that there be not only probable cause
before the issuance of a search warrant but that the search warrant must
be based upon an application supported by oath of the applicant and the
witnesses he may produce.
OATH, DEFINITION - In its broadest sense, an oath includes any form
of attestation by which a party signifies that he is bound in conscience to
perform an act faithfully and truthfully; and it is sometimes defined as an
outward pledge given by the person taking it that his attestation or
promise is made under an immediate sense of his responsibility to God.
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. The true test of sufficiency of an affidavit to warrant
issuance of a search warrant is whether it has been drawn in such a
manner that perjury could be charged thereon and affiant be held liable
for damages caused.

IN ISSUING WARRANTS, WITNESSES ARE NOT NECESSARY

AS LONG AS THE PROBABLE CAUSE IS SUFFICIENTLY
ESTABLISHED BY THE COMPLAINANT. Another ground alleged
by the petitioner in asking that the search warrant be declared illegal and
cancelled is that it was not supported by other affidavits aside from that
made by the applicant. In other words, it is contended that the search
warrant cannot be issued unless it be supported by affidavits made by the
applicant and the witnesses to be presented necessarily by him. Section
1, paragraph 3, of Article III of the Constitution provides that 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. Section 98 of General Orders, No.58
provides that the judge or justice must, before issuing the warrant,
examine under oath the complainant and any witnesses he may produce
and take their depositions in writing. It is the practice in this jurisdiction
to attach the affidavit of at least the applicant or complainant to the
application. It is admitted that the judge who issued the search warrant in
this case, relied exclusively upon the affidavit made by agent Mariano G.
Almeda and that he did not require nor take the deposition of any other
witness. Neither the Constitution nor General Orders, No. 58 provides
that it is of imperative necessity to take the depositions of the witnesses
to be presented by the applicant or complainant in addition to the
affidavit of the latter. The purpose of both in requiring the presentation
of depositions is nothing more than to satisfy the committing magistrate
of the existence of probable cause. Therefore, if the affidavit of the
applicant or complainant is sufficient, the judge may dispense with that
of other witnesses.
Inasmuch as the affidavit of the agent in this case was insufficient
because his knowledge of the facts was not personal but merely hearsay,
it is the duty of the judge to require the affidavit of one or more
witnesses for the purpose of determining the existence of probable cause
to warrant the issuance of the search warrant. When the affidavit of the
applicant or complainant contains sufficient facts within his personal and
direct knowledge, it is sufficient if the judge is satisfied that there exists
probable cause; when the applicant's knowledge of the facts is mere
hearsay, the affidavit of one or more witnesses having a personal
knowledge of the facts is necessary. We conclude, therefore, that the
warrant issued is likewise illegal because it was based only on the
affidavit of the agent who had no personal knowledge of the facts.
HOW SHOULD THE COURT DETERMINE THE EXISTENCE
OF A PROBABLE CAUSE?
- Thru oath or affirmation. In oath, a binding force is the belief in God.
Thus, the phrase “so help me God” (Art. 7). While in affirmation, the
law.
WHAT IS THE TEST OF SUFFICIENT OATH?
- Personal knowledge and whether it is sufficient charge affiant with
perjury. Witnesses are not necessary as long as PC is sufficiently
established by complainant. Not mandatory notwithstanding the use of
“and”.

• -  Affiant could be held liable for perjury 


• -  It should be the personal knowledge of the affiant 


 • WHY? 


• -  The purpose is to convince the judge and not the affiant 


WHAT IS THE PURPOSE OF PARTICULARITY OF
DECISION? 

- To prevent the use of discretion by the seizing officer 

UNREASONABLE SEARCHES AND SEIZURES are
prohibited and the definition is in the case of Alvarez. 

WHO ARE PROTECTED? 

- Persons are protected and not places. 

CAN A CORPORATION INVOKE THE RIGHT? 

- Yes. Only through a Board Resolution 

IS IT APPLICABLE AGAINST PRIVATE INDIVIDUALS? 

- No.

SEARCH AND SEIZURE CONDUCTED BY A RANK AND FILE

EMPLOYEE, IS THE RIGHT AGAINST USS APPLICABLE?
- No. Only on law enforcement officers. Even if they are not on duty, the
right may still be invoked against them.


Mata vs. Bayona [G.R. No. 50720, March 26, 1984]
BEFORE ISSUING SEARCH WARRANTS, THE JUDGE MUST
CONDUCT DEPOSITIONS

AND ATTACH THEM TO THE RECORDS OF THE CASE. Under
the Constitution "no search warrant shall issue but upon probable cause
to be determined by the Judge or such other responsible officer as may
be authorized by law after examination under oath or affirmation of the
complainant and the witnesses he may produce". More emphatic and
detailed is the implementing rule of the constitutional injunction, Section
4 of Rule 126 which provides that the judge must before issuing the
warrant personally examine on oath or affirmation the complainant and
any witnesses he may produce and take their depositions in writing, and
attach them to the record, in addition to any affidavits presented to him.
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 to attach them to the
record. Such written deposition is necessary in order that the Judge may
be able to properly determine the existence or non-existence of the
probable cause, to hold liable for perjury the person giving it if it will be
found later that his declarations are false.
We, therefore, hold that the search warrant is tainted with illegality by
the failure of the Judge to conform with the essential requisites of taking
the depositions in writing and attaching them to the record, rendering the
search warrant invalid. The judge's insistence that she examined the
complainants under oath has become dubious by petitioner's claim that
at the particular time when he examined all the relevant papers
connected with the issuance of the questioned search warrant, after he
demanded the same from the lower court since they were not attached to
the records, he did not find any certification at the back of the joint
affidavit of the complainants. As stated earlier, before he filed his motion
to quash the search warrant and for the return of the articles seized, he
was furnished, upon his request, certified true copies of the said
affidavits by the Clerk of Court but which certified true copies do not
bear any certification at the back. Petitioner likewise claims that his
xerox copy of the said joint affidavit obtained at the outset of this case
does not show also the certification of respondent judge. This doubt
becomes more confirmed by respondent Judge's own admission, while
insisting that she did examine thoroughly the applicants, that "she did
not take the deposition of Mayote and Goles because to have done so
would be to hold a judicial proceeding which will be open and public",
such that, according to her, the persons subject of the intended raid will
just disappear and move his illegal operations somewhere else.
WHAT IS A SEARCH WARRANT?
- According to Section 1, Rule 126 of the Rules of court, it is limited to
personal property.
- The 10-day validity of search warrant is counted from date
- As for the warrant of arrest, it is valid until it is served.
WHAT ARE THE REQUISITE OF A VALID WARRANT?
- (a) probable cause; (b) to be determined personally by the judge, (c)
examination and (d) particularly describing the things to be seized.

People vs. Del Rosario [G.R. No. 109633, July 20, 1994]
THE OFFICERS WARRANT MAY ONLY SEIZE THE OBJECTS
DESCRIBED IN THE WARRANT. The search warrant implemented
by the raiding party authorized only the search and seizure of ".. the
described quantity of Methamphetamine Hydrochloride commonly
known as shabu and its paraphernalia" (Exh. O, p. 50, original record).
Thus, the raiding party was authorized to seize only shabu and
paraphernalia for the use thereof and no other. A search warrant is not a
sweeping authority empowering a raiding party to undertake a fishing
expedition to seize and confiscate any and all kinds of evidence or
articles relating to a crime.
SEARCH WARRANT WAS ISSUED FOR SS OF SHABU, BUT IN
SERVICE, ALSO FOUND AN UNLICENSED FIREARM. IS IS
ADMISSIBLE?
- No. Only those objects described. Thus, the phrase “particularly
describe the things to be seized”. Moreover, it must be issued for one
offense only. SW “not a sweeping authority.”
WHAT IS THE DIFFERENCE BETWEEN GENERAL WARRANT
AND SCATTER- SHOT WARRANT?
- “General warrants” are proscribed and unconstitutional [Nolasco v.
Pano, 139 SCRA 152; Burgos v. Chief of Staff, 133 SCRA 800], In
Tambasen v. People, 246 SCRA 184, where the search warrant charged
violations of two special laws, it was considered “scatter-shot
warrant”, and was declared null and void.
Indeed, as held in People v. Tee, supra., what the Constitution seeks to
avoid are search warrants of broad and general characterization or
sweeping descriptions which will authorize police officers to undertake a
fishing expedition to seize and confiscate any and all kinds of evidence
or articles relating to an offense.

While POs were searching for shabu, they discovered unlicensed

firearms. Plain view?

- No.
(1) PVD is usually applied where POs are not searching for evidence
against the accused.
(2) Inadvertently come across an incriminating object – no further
search.
(3) Right to be in the position.
(4) Incriminating character must be readily apparent.
HYPPO: 2 POs heard that there was going to be a party. They gate-
crashed and saw from the door that there were drugs everywhere.
Valid?
- No. They had no right to be there!

HOW MANY PERMISSIBLE WARRANTLESS ARREST UNDER

THE RoC?
Rule 113, Sec. 5; Rule 114, Sec. 23; arrest by bondsman, etc.
Hypo: Supposing A was caught in flagrante delicto, and he was
arrested by a police officer. On their way to the police station he
escaped. Is it covered by Sec. 13, Rulle 113?
- No. It cannot fall under Sec. 5(c) because the suspect is not yet a
detention prisoner. He must be booked first as a detention prisoner to be
considered so.
- The conspicuous illegality of the arrest cannot affect the jurisdiction of
the trial court, because even in instances not allowed by law, a
warrantless arrest is not a jurisdictional defect, and any objection thereto
is waived when the person arrested submits to arraignment without any
objection [People v. Del Rosario, G.R. No. 127755, April 14, 1999].

PEOPLE VS GERENTE


Held:
The search of Gerente's person and the seizure of the marijuana leaves in
his possession were valid because they were incident to a lawful
warrantless arrest. Paragraphs (a) and (b), Section 5, Rule 113 of the
Revised Rules of Court provide that "A peace officer or a private person
may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has
committed it;"
The policemen arrested Gerente only some 3 hours after Gerente and his
companions had killed Blace. They saw Blace dead in the hospital and
when they inspected the scene of the crime, they found the instruments
of death: a piece of wood and a concrete hollow block which the killers
had used to bludgeon him to death. The eye-witness, Edna Edwina
Reyes, reported the happening to the policemen and pinpointed her
neighbor, Gerente, as one of the killers. Under those circumstances,
since the policemen had personal knowledge of the violent death of
Blace and of facts indicating that Gerente and two others had killed him,
they could lawfully arrest Gerente without a warrant. If they had
postponed his arrest until they could obtain a warrant, he would have
fled the law as his two companions did. The search conducted on
Gerente's person was likewise lawful because it was made as an incident
to a valid arrest. This is in accordance with Section 12, Rule 126 of the
Revised Rules of Court which provides that "A person lawfully arrested
may be searched for dangerous weapons or anything which may be used
as proof of the commission of an offense, without a search warrant." The
frisk and search of Gerente's person upon his arrest was a permissible
precautionary measure of arresting officers to protect themselves, for the
person who is about to be arrested may be armed and might attack them
unless he is first disarmed. - There is continuity.
Umil vs. Ramos [G.R. No. 81567, July 9, 1990]
ARREST MAY BE MADE ANYTIME AGAINST PERSONS
CHARGED WITH CONTUNUING CRIMES. However, Rolando
Dural was arrested for being a member of the New Peoples Army
(NPA), an outlawed subversive organization. Subversion being a
continuing offense, the arrest of Rolando Dural without warrant is
justified as it can be said that he was committing an offense when
arrested. The crimes of rebellion, subversion, conspiracy or proposal to
commit such crimes, and crimes or offenses committed in furtherance
thereof or in connection therewith constitute direct assaults against the
State and are in the nature of continuing crimes. Subversion being a
continuing offense, the arrest of Rolando Dural without warrant is
justified as it can be said that he was committing an offense when
arrested.

People vs. Sucro [G.R. No. 93239, March 18, 1991]

AN OFFENSE IS COMMITTED WITHIN THE PRESENCE OF
THE OFFICER EVEN IF THE LATTER IS AT A DISTANCE. 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
(U.S. v. Fortaleza, 12 Phil. 472 [1909]; and U.S. v. Samonte, 16 Phil.
516 [1910]).
The records show that Fulgencio went to Arlie Regalado's house at C.
Quimpo Street to monitor the activities of the accused who was earlier
reported to be selling marijuana at a chapel two (2)
meters away from Regalado's house. Fulgencio, within a distance of two
meters saw Sucro conduct his nefarious activity. He saw Sucro talk to
some persons, go inside the chapel, and return to them and exchange
some things. These, Sucro did three times during the time that he was
being monitored. Fulgencio would then relay the on-going transaction to
P/Lt. Seraspi.
Issue: Whether or not the arrest without warrant is lawful.
Held:
Yes. Search and seizures supported by a valid warrant of arrest is not an
absolute rule. Rule 126, Sec 12 of Rules of Criminal Procedure provides
that a person lawfully arrested may be searched for dangerous weapons
or anything, which may be used as proof of the commission of an
offense, without a search warrant.(People v. Castiller. The failure of the
police officers to secure a warrant stems from the fact that their
knowledge required from the surveillance was insufficient to fulfill
requirements for its issuance . However, warrantless search and seizures
are legal as long as PROBABLE CAUSE existed. The police officers
have personal knowledge of the actual commission of the crime from the
surveillance of the activities of the accused. As police officers were the
ones conducting thesurveillance, it is presumed that they are regularly in
performance of their duties. (It was held that when a police officer sees
the offense, although at a distance, or hears the distrurbances created
thereby, and proceeds at once to the scene thereof, he may effect an
arrest without a warrant. The offense is deemed committed in the
presence or within the
view of the officer.)
What is the meaning of “in his presence”?
- Not necessarily in the same place. Physical presence not required. Even
sense of touch, smell, taste etc. is sufficient.
ABCD are in a drinking session in a 3x3 room. C and D fell asleep.
Whey they awoke, they found A dead. Can they arrest B?
- No. Presence does not refer to physical presence. Physical presence is
not enough without any showing that they are conscious of what was
happening while they were asleep.
3 instances of warrantless arrest under Rule 113, Sec. 5

a. In flagrante

b. Hot pursuit
c. Escapee’s arrest

d. person who jumped bail (section 23, rule 114)

Q: What is the meaning of “just committed”?


A: There must be a sense of immediacy between the time the offense is
committed and the time of the arrest, and if there was an appreciable
lapse of time between the arrest and the commission of the crime,
warrant of arrest must be secured. (Nachura Reviewer 2009, p. 127)
Q: Arrest 6 days after the commission of crime, “just committed”?

A: No.

People vs. Rodrigueza [G.R. No. 95902, February 4, 1992]

VALID WARRANTLESS SEARCHES. As provided in the present
Constitution, a search, to be valid, must generally be authorized by a
search warrant duly issued by the proper government authority (Section
2, Article III, 1987 Constitution). True, in some instances, this Court has
allowed government authorities to conduct searches and seizures even
without a search warrant. Thus, when the owner of the premises waives
his right against such incursion; when the search is incidental to a lawful
arrest; when it is made on vessels and aircraft for violation of customs
laws; when it is made on automobiles for the purpose of preventing
violations of smuggling or immigration laws; when it involves
prohibited articles in plain view; or in cases of inspection of buildings
and other premises for the enforcement of fire, sanitary and building
regulations, a search may be validly made even without a search
warrant. In the case at bar, however, the raid conducted by the
NARCOM agents in the house of Jovencio Rodrigueza was not
authorized by any search warrant. It does not appear, either, that the
situation falls under any of the aforementioned cases.
Hence, appellant's right against unreasonable search and seizure was
clearly violated. The NARCOM agents could not have justified their act
by invoking the urgency and necessity of the situation because the
testimonies of the prosecution witnesses reveal that the place had
already been put under surveillance for quite some time. Had it been
their intention to conduct the raid, then they should, because they easily
could, have first secured a search warrant during that time.
A buy-bust operation is a form of entrapment employed by peace officers
to trap and catch a malefactor in flagrante delicto. Applied to the case at
bar, the term in flagrante delicto requires that the suspected drug dealer
must be caught redhanded in the act of selling marijuana or any
prohibited drug to a person acting or posing as a buyer.

As provided in the present Constitution, a search, to be valid, must

generally be authorized by a search warrant duly issued by the proper
government authority. True, in some instances, this Court has allowed
government authorities to conduct searches and seizures even without a
search warrant . Thus,
(1) when the owner of the premises waives his right against such
incursion;
(2) when the search is incidental to a lawful arrest;
(3) when it is made on vessels and aircraft for violation of customs laws;
(4) when it is made on automobiles for the purpose of preventing
violations of smuggling or immigration laws;
(5) when it involves prohibited articles in plain view; or

(6) in cases of inspection of buildings and other premises for the
enforcement of fire, sanitary and building regulations, a search may be
validly made even without a search warrant.

Crime committed 5pm, warrantless arrest made at 9pm, valid?

- Hot pursuit arrest may be made if there is “continuity” in the pursuit
from the time of the commission of the crime. Read People vs. Ferrer?
Go vs. Court of Appeals [G.R. No. 101837, February 11, 1992]
A PESON CANNOT BE ARRESTED WITHOUT A WARRANT
FOR AN OFFENSE COMMITTED SIX (6) DAYS EARLIER. We
do not believe that the warrantless "arrest" or detention of petitioner in
the instant case falls within the terms of Section 5 of Rule 113 of the
1985 Rules on Criminal Procedure which provides as follows:
"Sec. 5. Arrest without warrant; when lawful. — A peace officer or a
private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has
committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or
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) hereof, the person arrested
without a warrant shall be forthwith delivered to the nearest police
station or jail, and he shall be proceeded against in accordance with Rule
112, Section 7." Petitioner's "arrest" took place six (6) days after the
shooting of Maguan. The arresting officers obviously were not present,
within the meaning of Section 5(a), at the time petitioner had allegedly
shot Maguan. Neither could the "arrest" effected six (6) days after the
shooting be reasonably regarded as effected "when [the shooting had] in
fact just been committed" within the meaning of Section 5 (b).
Moreover, none of the "arresting" officers had any "personal
knowledge" of facts indicating that petitioner was the gunman who had
shot Maguan. The information upon which the police acted had been
derived from statements made by alleged eyewitnesses to the shooting --
one stated that petitioner was the gunman; another was able to take
down the alleged gunman's car's plate number which turned out to be
registered in petitioner's wife's name. That information did not, however,
constitute "personal knowledge." It is thus clear to the Court that there
was no lawful warrantless arrest of petitioner within the meaning of
Section 5 of Rule 113.
A PERSON CANNOT BE ARRESTED WITHOUT A WARRANT
FOR A CRIME OR OFFENSE COMMITTED SIX (6) DAYS
EARLIER – [We] do not believe that the warrantees "arrest" or
detention of petitioner in the instant case falls within the terms of
Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure which
provides as follows:
Sec. 5 Arrest without warrant; when lawful. — 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;

• b)  When an offense has in fact just been committed, and he has

personal knowledge of facts indicating that the person to be
arrested has committed it; and 


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

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

What is the meaning of “just committed”?

- There must be a sense of immediacy between the time the offense is
committed and the time of the arrest, and if there was an appreciable
lapse of time between the arrest and the commission of the crime,
warrant of arrest must be secured. (Nachura Reviewer 2009, p. 127)
Posadas vs. Court of Appeals [G.R. No. 89139, August 2, 1990]
A LAWFUL SEARCH WITHOUT A WARRANT MAY BE MADE
EVEN WITHOUT BEING PRECEDED BY AN ARREST. However,
there are many instances where a warrant and seizure can be effected
without necessarily being preceded by an arrest, foremost of which is the
"stop and search" without a search warrant at military or police
checkpoints, the constitutionality or validity of which has been upheld
by this Court in Valmonte vs. de Villa.
As between a warrantless search and seizure conducted at military or
police checkpoints and the search thereat in the case at bar, there is no
question that, indeed, the latter is more reasonable considering that
unlike in the former, it was effected on the basis of a probable cause. The
probable cause is that when the petitioner acted suspiciously and
attempted to flee with the buri bag there was a probable cause that he
was concealing something illegal in the bag and it was the right and duty
of the police officers to inspect the same. It is too much indeed to require
the police officers to search the bag in the possession of the petitioner
only after they shall have obtained a search warrant for the purpose.
Such an exercise may prove to be useless, futile and much too late.
People vs. Mengote [G.R. No. 87059, June 22, 1992]
INVALID SEARCH AND ARREST. It is submitted in the Appellant's
Brief that the revolver should not have been admitted in evidence
because of its illegal seizure, no warrant therefor having been previously
obtained. Neither could it have been seized as an incident of a lawful
arrest because the arrest of Mengote was itself unlawful, having been
also effected without a warrant. The defense also contends that the
testimony regarding the alleged robbery in Danganan's house was
irrelevant and should also have been disregarded by the trial court. There
is no question that evidence obtained as a result of an illegal search or
seizure is inadmissible in any proceeding for any purpose. That is the
absolute prohibition of Article III, Section 3(2), of the Constitution.
This is the celebrated EXCLUSIONARY RULE based on the
justification given by Judge Learned Hand that "only in case the
prosecution which itself controls the seizing officials, knows that it
cannot profit by their wrong will the wrong be repressed. The Solicitor
General, while conceding the rule, maintains that it is not applicable in
the case at bar. His reason is that the arrest and search of Mengote and
the seizure of the revolver from him were lawful under Rule 113,
Section 5, of the Rules of Court. We have carefully examined the
wording of this rule and cannot see how we can agree with the
prosecution. Par. (c) of Section 5 is obviously inapplicable as Mengote
was not an escapee from a penal institution when he was arrested. We
therefore confine ourselves to determining the lawfulness of his arrest
under either Par. (a) or Par. (b) of this section. Par. (a) requires that the
person be arrested
(1) after he has committed or while he is actually committing or is at
least attempting to commit an offense,

(2) in the presence of the arresting officer. These requirements have
not been established in the case at bar. At the time of the arrest in
question, the accused- appellant was merely "looking from side to
side" and "holding his abdomen," according to the arresting officers
themselves. There was apparently no offense that had just been
committed or was being actually committed or at least being
attempted by Mengote in their presence. Par. (b) is no less applicable
because its no less stringent requirements have also not been
satisfied. The prosecution has not shown that at the time of
Mengote's arrest an offense had in fact just been committed and that
the arresting officers had personal knowledge of facts indicating that
Mengote had committed it. All they had was hearsay information
from the telephone caller, and about a crime that had yet to be
committed.

Malacat vs. Court of Appeals [G.R. No. 123595, December 12, 1997]
INVALID APPLICATION OF SEARCH INCIDENTAL TO A
LAWFUL ARREST AND STOP AND FRISK. Turning to valid
warrantless searches, they are limited to the following:
(1) customs searches;

(2) search of moving vehicles;

(3) seizure of evidence in plain view;

(4) consent searches;

(5) a search incidental to a lawful arrest; and

(6) a "stop and frisk."
In the instant petition, the trial court validated the warrantless search as a
"stop and frisk" with "the seizure of the grenade from the accused
[as] an appropriate incident to his arrest," hence necessitating a brief
discussion on the nature of these exceptions to the warrant requirement.
At the outset, we note that the trial court confused the concepts of a
"stop-andfrisk" and of a search incidental to a lawful arrest. These two
types of warrantless searches differ in terms of the requisite quantum of
proof before they may be validly effected and in their allowable scope.
In a search incidental to a lawful arrest, as the precedent arrest
determines the validity of the incidental search, the legality of the arrest
is questioned in a large majority of these cases, e.g., whether an arrest
was merely used as a pretext for conducting a search. In this instance,
the law requires that there first be a lawful arrest before a search can be
made — the process cannot be reversed. At bottom, assuming a valid
arrest, the arresting officer may search the person of the arrestee and the
area within which the latter may reach for a weapon or for evidence to
destroy, and seize any money or property found which was used in the
commission of the crime, or the fruit of the crime, or that which may be
used as evidence, or which might furnish the arrestee with the means of
escaping or committing violence.
Here, there could have been no valid in flagrante delicto or hot pursuit
arrest preceding the search in light of the lack of personal knowledge on
the part of Yu, the arresting officer, or an overt physical act, on the part
of petitioner, indicating that a crime had just been committed, was being
committed or was going to be committed. Having thus shown the
invalidity of the warrantless arrest in this case, plainly, the search
conducted on petitioner could not have been one incidental to a lawful
arrest. We now proceed to the justification for and allowable scope of a
"stop-and-frisk" as a "limited protective search of outer clothing for
weapons," as laid down in Terry; thus:
We merely hold today that 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 . . .
Other notable points of Terry are that 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.
A warrantless arrest under the circumstances contemplated under
Section 5(a) has been denominated as one "in flagrante delicto," while
that under Section 5(b) has been described as a "hot pursuit" arrest.
Turning to valid warrantless searches, they are limited to the following:
(1) customs searches;

(2) search of moving vehicles;

(3) seizure of evidence in plain view;

(4) consent searches;

(5) a search incidental to a lawful arrest; and

(6) a "stop and frisk."
a "stopand- 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.
Here, there are at least three (3) reasons why the "stop-and-frisk" was

invalid:

First, we harbor grave doubts as to Yu's claim that petitioner was a
member of the group which attempted to bomb Plaza Miranda two days
earlier. This claim is neither supported by any police report or record nor
corroborated by any other police officer who allegedly chased that
group. Aside from impairing Yu's credibility as a witness, this likewise
diminishes the probability that a genuine reason existed so as to arrest
and search petitioner. If only to further tarnish the credibility of Yu's
testimony, contrary to his claim that petitioner and his companions had
to be chased before being apprehended, the affidavit of arrest expressly
declares otherwise, i.e., upon arrival of five (5) other police officers,
petitioner and his companions were "immediately collared."
Second, there was nothing in petitioner's behavior or conduct which
could have reasonably elicited even mere suspicion other than that his
eyes were "moving very fast" an observation which leaves us
incredulous since Yu and his teammates were nowhere near petitioner
and it was already 6:30 p.m., thus presumably dusk. Petitioner and his
companions were merely standing at the corner and were not creating
any commotion or trouble, as Yu explicitly declared on cross-
examination:
Q And what were they doing? A They were merely standing. Q You are
sure of that?

A Yes, sir.
Q And when you saw them standing, there were nothing or they did not
create any commotion.

A None, sir.

Q Neither did you see them create commotion?

A None, sir.
Third, there was at all no ground, probable or otherwise, to believe that
petitioner was armed with a deadly weapon. None was visible to Yu , for
as he admitted, the alleged grenade was "discovered" "inside the front
waistline" of petitioner, and from all indications as to the distance
between Yu and petitioner, any telltale bulge, assuming that petitioner
was indeed hiding a grenade, could not have been visible to Yu. In fact,
as noted by the trial court:
When the policemen approached the accused and his companions, they
were not yet aware that a hand grenade was tucked inside his waistline.
They did not see any bulging object in his person.
What is unequivocal then in this case are blatant violations of
petitioner's rights solemnly guaranteed in Sections 2 and 12(1) of Article
III of the Constitution. INVALID APPLICATION OF SEARCH
INCIDENTAL TO A LAWFUL ARREST AND STOP AND FRISK -
Turning to valid warrantless searches, they are limited to the following:
(1) customs searches; (2) search of moving vehicles; (3) seizure of
evidence in plain view; (4) consent searches;(5) a search incidental to a
lawful arrest and (6) a "stop and frisk."
In the instant petition, the trial court validated the warrantless search as a
stop and frisk with the seizure of the grenade from the accused [as] an
appropriate incident to his arrest, hence necessitating a brief discussion
on the nature of these exceptions to the warrant requirement.
At the outset, we note that the trial court confused the concepts of a
"stop-and- frisk" and of a search incidental to a lawful arrest. These two
types of warrantless searches differ in terms of the requisite quantum of
proof before they may be validly effected and in their allowable scope.
In a search incidental to a lawful arrest, as the precedent arrest
determines the validity of the incidental search, the legality of the arrest
is questioned in a large majority of these cases, e.g., whether an arrest
was merely used as a pretext for conducting a search. In this instance,
the law requires that there first be a lawful arrest before a search can be
made -- the process cannot be reversed. At bottom, assuming a valid
arrest, the arresting officer may search the person of the arrestee and the
area within which the latter may reach for a weapon or for evidence to
destroy, and seize any money or property found which was used in the
commission of the crime, or the fruit of the crime, or that which may be
used as evidence, or which might furnish the arrestee with the means of
escaping or committing violence.
Here, there could have been no valid in flagrante delicto or hot pursuit
arrest preceding the search in light of the lack of personal knowledge on
the part of Yu, the arresting officer, or an overt physical act, on the part
of petitioner, indicating that a crime had just been committed, was being
committed or was going to be committed.
Having thus shown the invalidity of the warrantless arrest in this case,
plainly, the search conducted on petitioner could not have been one
incidental to a lawful arrest.
We now proceed to the justification for and allowable scope of a "stop-
and-frisk" as a "limited protective search of outer clothing for weapons,"
as laid down in Terry, thus:
We merely hold today that 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 ***
Other notable points of Terry are that 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.
Difference between stop and frisk and search incidental to lawful
arrest.
- In search incidental to lawful arrest, there must be prior lawful arrest
before search is made, but in stop and frisk search is made first before
arrest.
What are the 2 objectives of Search and Frisk?
(1) General interest of effective crime prevention and detection, and

(2) safety and self-preservation. So if drugs were found during stop and
frisk, still valid because of crime prevention.

WHEN IS SEARCH INCIDENTAL TO LAWFUL ARREST?

- Search through the body area within the immediate control of the
officer. Immediate Control means actual and physical control.

WHAT ARE EXIGENT AND EMERGENCY CIRCUMSTANCES?

- An emergency situation requiring swift action to prevent imminent
danger to life or serious damage to property, or to forestall the imminent
escape of a suspect, or destruction of evidence. There is no ready litmus
test for determining whether such circumstances exist, and in each case
the extraordinary situation must be measured by the facts known by
officials. (People v. Ramey)
Those circumstances that would cause a reasonable person to believe
that entry (or other relevant prompt action) was necessary to prevent
physical harm to the officers or other persons, the destruction of relevant
consequence frustrating enforcement

States v. McConney)
- This was applied in the case of People vs. De Gracia where there were
intelligence reports that the building was being used as headquarters by
the RAM during the 1989 coup d’état. Surveillance indicated rebel
activities in the building. Nearby courts were closed and general chaos
and disorder prevailed. The raiding team had no opportunity to apply for
and secure a search warrant from the courts.
Note: The determination of the existence of compelling considerations
of urgency, and the subject, time and place necessitating and justifying
the filing of an application for a search warrant with a court other than
the court having territorial jurisdiction over the place to be searched and
things to be seized or where the materials are found is addressed to the
sound discretion of the trial court where the application is filed, subject
to review by the appellate court in case of grave abuse of discretion
amounting to excess or lack of jurisdiction (People v. Chui) - Nachura
Q: Are saturation drives constitutional?
- SC did not rule on constitutionality.

Exclusionary Rule: Evidence obtained in violation of Sec. 2, Art. Ill,

shall be inadmissible for any purpose in any proceeding [Sec. 3 (2), Art.
Ill], , because it is “the fruit of the poisoned tree.”
People vs. Aminnudin [G.R. No. L- 74869, July 6, 1988]
INVALID WARRANTLESS ARREST AND SEARCH. In the case at
bar, there was no warrant of arrest or search warrant issued by a judge
after personal determination by him of the existence of
probable cause. Contrary to the averments of the government, the
accused-appellant was not caught in flagrante nor was a crime about to
be committed or had just been committed to justify 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 as in the
case of Roldan v. Arca, for example. Here it was held that vessels and
aircraft are subject to warrantless searches and seizures for violation of
the customs law because these vehicles may be quickly moved out of the
locality or jurisdiction before the warrant can be secured.
The present case presented no such urgency. From the conflicting
declarations of the PC witnesses, it is clear that they had at least two
days within which they could have obtained a warrant to arrest and
search Aminnudin who was coming Iloilo on the M/V Wilcon 9. His
name was known. The vehicle was identified. The date of its arrival was
certain. And from the information they had received, they could have
persuaded a judge that there was probable cause, indeed, to justify the
issuance of a warrant. Yet they did nothing. No effort was made to
comply with the law. The Bill of Rights was ignored altogether because
the PC lieutenant who was the head of the arresting team, had
determined on his own authority that "search warrant was not necessary.
In the many cases where this Court has sustained the warrantless arrest
of violators of the Dangerous Drugs Act, it has always been shown that
they were caught red-handed, as result of what are popularly called
"buy-bust" operations of the narcotics agents. Rule 113 was clearly
applicable because at the precise time of arrest the accused was in the act
of selling the prohibited drug.
In the case at bar, the accused-appellant was not, at the moment of his
arrest, committing a crime nor was it shown that he was about to do so
or that he had just done so. What he was doing was descending the
gangplank of the M/V Wilcon 9 and there was no outward indication
that called for his arrest. To all appearances, he was like any of the other
passengers innocently disembarking from the vessel. It was only when
the informer pointed to him as the carrier of the marijuana that he
suddenly became suspect and so subject to apprehension. It was the
furtive finger that triggered his arrest. The identification by the informer
was the probable cause as determined by the officers (and not a judge)
that authorized them to pounce upon Aminnudin and immediately arrest
him.
Now that we have succeeded in restoring democracy in our country after
fourteen years of the despised dictatorship, when anyone could be
picked up at will, detained without charges and punished
without trial, we will have only ourselves to blame if that kind of
arbitrariness is allowed to return, to once more flaunt its disdain of the
Constitution and the individual liberties its Bill of Rights guarantees.
While this is not to say that the accused- appellant is innocent, for
indeed his very own words suggest that he is lying, that fact alone does
not justify a finding that he is guilty. The constitutional presumption is
that he is innocent, and he will be so declared even if his defense is weak
as long as the prosecution is not strong enough to convict him.
What is a buy bust operation?
- A buy-bust operation is the method employed by peace officers to trap
and catch a malefactor in flagrante delicto. It is essentially a form of
entrapment since the peace officer neither instigates nor induces the
accused to commit a crime. Entrapment is the employment of such ways
and means for the purpose of trapping or capturing a lawbreaker from
whose mind the criminal intent originated. Oftentimes, it is the only
effective way of apprehending a criminal in the act of the commission of
the offense.
Malmstedt case vs. Amminudin case
Q: What are the requirements for valid seizure in plain view?
A: The "plain view" doctrine
escription,itwouldnot render the arrest valid because there was n o s u s
p i c i o u s movements, etc.) Acts of Malmstedt No reason except for
furtive finger Distinguishing factor: Reasonable ground based on the acts
of the accused. discovery of evidence in plain view is inadvertent;
- (c) it is immediately apparent to the officer that the item he observes
may be evidence of a crime, contraband or otherwise subject to seizure.
The law enforcement officer must lawfully make an initial intrusion or
properly be in a position from which he can particularly view the area.
In the course of such lawful intrusion, he came inadvertently across a
piece of evidence incriminating the accused. The object must be open to
eye and hand and its discovery inadvertent. (People v. Lagman, G.R. No.
168695, December 8, 2008, citing People v. Doria, 361 Phil. 595,
633-634 [1999]).



People vs. Malmstedt [G.R. No. 91107, June 19, 1991]

WARRANTLESS SEARCH BASED ON PROBABLE CAUSE.
Accused was searched and arrested while transporting prohibited drugs
(hashish). A crime was actually being committed by the accused
and he was caught in flagrante delicto. Thus, the search made upon his
personal effects falls squarely under paragraph (1) of the foregoing
provisions of law, which allow a warrantless search incident to a lawful
arrest. While it is true that the NARCOM officers were not armed with a
search warrant when the search was made over the personal effects of
accused, however, under the circumstances of the case, there was
sufficient probable cause for said officers to believe that accused was
then and there committing a crime. Probable cause has been defined as
such facts and circumstances which could lead a reasonable, discreet and
prudent man to believe that an offense has been committed, and that the
objects sought in connection with the offense are in the place sought to
be searched. The required probable cause that will justify a warrantless
search and seizure is not determined by any fixed formula but is resolved
according to the facts of each case.
Warrantless search of the personal effects of an accused has been
declared by this Court as valid, because of existence of probable cause,
where the smell of marijuana emanated from a plastic bag owned by the
accused, or where the accused was acting suspiciously, and attempted to
flee. Aside from the persistent reports received by the NARCOM that
vehicles coming from Sagada were transporting marijuana and other
prohibited drugs, their Commanding Officer also received information
that a Caucasian coming from Sagada on that particular day had
prohibited drugs in his possession. Said information was received by the
Commanding Officer of NARCOM the very same morning that accused
came down by bus from Sagada on his way to Baguio City. When
NARCOM received the information, a few hours before the
apprehension of herein accused, that a Caucasian travelling from Sagada
to Baguio City was carrying with him prohibited drugs, there was no
time to obtain a search warrant.
In the Tangliben case, the police authorities conducted a surveillance at
the Victory Liner Terminal located at Bgy. San Nicolas, San Fernando
Pampanga, against persons engaged in the traffic of dangerous drugs,
based on information supplied by some informers. Accused Tangliben
who was acting suspiciously and pointed out by an informer was
apprehended and searched by the police authorities. It was held that
when faced with on-the spot information, the police officers had to act
quickly and there was no time to secure a search warrant.
It must be observed that, at first, the NARCOM officers merely
conducted a routine check of the bus (where accused was riding) and the
passengers therein, and no extensive search was initially made. It was
only when one of the officers noticed a bulge on the waist of accused,
during the course of the inspection, that accused was required to present
his passport. The failure of accused to present his identification papers,
when ordered to do so, only managed to arouse the suspicion of the
officer that accused was trying to hide his identity. For is it not a regular
norm for an innocent man, who has nothing to hide from the authorities,
to readily present his identification papers when required to do so?
The receipt of information by NARCOM that a Caucasian coming from
Sagada had prohibited drugs in his possession, plus the suspicious
failure of the accused to produce his passport, taken together as a whole,
led the NARCOM officers to reasonably believe that the accused was
trying to hide something illegal from the authorities. From these
circumstances arose a probable cause which justified the warrantless
search that was made on the personal effects of the accused.
In other words, the acts of the NARCOM officers in requiring the
accused to open his pouch bag and in opening one of the wrapped
objects found inside said bag (which was discovered to contain hashish)
as well as the two (2) travelling bags containing two (2) teddy bears with
hashish stuffed inside them, were prompted by accused's own attempt to
hide his identity by refusing to present his passport, and by the
information received by the NARCOM that a Caucasian coming from
Sagada had prohibited drugs in his possession. To deprive the
NARCOM agents of the ability and facility to act accordingly, including,
to search even without warrant, in the light of such circumstances, would
be to sanction impotence and ineffectiveness in law enforcement, to the
detriment of society.
LUZ VS PEOPLE

Ruling/Doctrines:
WHAT IS ARREST? - Arrest is the taking of a person into custody in
order that he or she may be bound to answer for the commission of an
offense. It is effected by an actual restraint of the person to be arrested or
by that persons voluntary submission to the custody of the one making
the arrest. Neither the application of actual force, manual touching of the
body, or physical restraint, nor a formal declaration of arrest, is required.
It is enough that there be an intention on the part of one of the parties to
arrest the other, and that there be an intent on the part of the other to
submit, under the belief and impression that submission is necessary.
ARREST IS NOT ALLOWED IN CASES OF TRAFFIC
VIOLATIONS - there was no valid arrest of petitioner. Under R.A.
4136, or the Land Transportation and Traffic Code, the general
procedure for dealing with a traffic violation is not the arrest of the
offender, but the confiscation of the drivers license of the latter:
SECTION 29. Confiscation of Driver's License. Law enforcement and
peace officers of other agencies duly deputized by the Director shall, in
apprehending a driver for any violation of this Act or any regulations
issued pursuant thereto, or of local traffic rules and regulations not
contrary to any provisions of this Act, confiscate the license of the driver
concerned and issue a receipt prescribed and issued by the Bureau
therefor which shall authorize the driver to operate a motor vehicle for a
period not exceeding seventy-two hours from the time and date of issue
of said receipt. The period so fixed in the receipt shall not be extended,
and shall become invalid thereafter.
Failure of the driver to settle his case within fifteen days from the date of
apprehension will be a ground for the suspension and/or revocation of
his license.
Similarly, the Philippine National Police (PNP) Operations Manual
provides the following procedure for flagging down vehicles during the
conduct of checkpoints:
SECTION 7. Procedure in Flagging Down or Accosting Vehicles While
in Mobile Car. This rule is a general concept and will not apply in hot
pursuit operations. The mobile car crew shall undertake the following,
when applicable: x x x
m. If it concerns traffic violations, immediately issue a Traffic Citation
Ticket (TCT) or Traffic Violation Report (TVR). Never indulge in
prolonged, unnecessary conversation or argument with the driver or any
of the vehicles occupants;
MANIFESTATION OF CONSENT IN A CONSENTED
WARRANTLESS SEARCH - Whether consent to the search was in
fact voluntary is a question of fact to be determined from the totality of
all the circumstances. 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 the
defendant was in a public or a secluded location; (3) whether the
defendant 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 defendants belief that no incriminating
evidence would 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.
Can the accused raise the issue of the irregularity of his arrest only
during trial?
No, “Any objection involving a warrant of arrest or procedure in the
acquisition by the court of jurisdiction over the person of the accused
must be made before he enters his plea, otherwise the objection is
deemed waived.”
Espano vs. Court of Appeals [G.R. No. 120431, April 1, 1998]
SEARCH INCIDENTAL TO A LAWFUL ARREST MAY EXTEND
TO PREMISES WITHIN THE IMMEDIATE CONTROL OF THE
PERSON ARRESTED. An exception to the said rule is a warrantless
search incidental to a lawful arrest for dangerous weapons or anything
which may be used as proof of the commission of an offense.
It may extend beyond the person of the one arrested to include the
premises or surroundings under his immediate control. In this case, the
ten cellophane bags of marijuana seized at petitioner's house after his
arrest at Pandacan and Zamora Streets do not fall under the said
exceptions.
In the case of People v. Lua, 12 this Court held: "As regards the brick of
marijuana found inside the appellant's house, the trial court correctly
ignored it apparently in view of its inadmissibility. While initially the
arrest as well as the body search was lawful, the warrantless search
made inside the appellant's house became unlawful since the police
operatives were not armed with a search warrant. Such search cannot
fall under "search made incidental to a lawful arrest," the same being
limited to body search and to that point within reach or control of the
person arrested, or that which may furnish him with the means of
committing violence or of escaping.
In the case at bar, appellant was admittedly outside his house when he
was arrested. Hence, it can hardly be said that the inner portion of his
house was within his reach or control. The articles seized from petitioner
during his arrest were valid under the doctrine of search made incidental
to a lawful arrest. The warrantless search made in his house, however,
which yielded ten cellophane bags of marijuana became unlawful since
the police officers were not armed with a search warrant at the time.
Moreover, it was beyond the reach and control of petitioner.
What is the Extent of permissible warrantless searches incidental to
lawful arrest?
- May be subject to bodily search and extends to area within his
immediate control. If arrested in the street, may not extend to his house.
If suspect does not object, can it be considered consented search?
- A: No. Consent must be made voluntarily and knowingly.
UNITED LABORATORIES VS ISIP

APPLICATION OF THE PLAIN VIEW DOCTRINE - A search

warrant, to be valid, must particularly describe the place to be searched
and the things to be seized. The officers of the law are to seize only
those things particularly described in the search warrant. A search
warrant is not a sweeping authority empowering a raiding party to
undertake a fishing expedition to seize and confiscate any and all kinds
of evidence or articles relating to a crime. The search is limited in scope
so as not to be general or explanatory. Nothing is left to the discretion of
the officer executing the warrant.[
Objects, articles or papers not described in the warrant but on plain view
of the executing officer may be seized by him.
The seizure by the officer of objects/articles/papers not described in the
warrant cannot be presumed as plain view. The State must adduce
evidence, testimonial or documentary, to prove the confluence of the
essential requirements for the doctrine to apply, namely: (a) the
executing law enforcement officer has a prior justification for an initial
intrusion or otherwise properly in a position from which he can view a
particular order; (b) the officer must discover incriminating evidence
inadvertently; and (c) it must be immediately apparent to the police that
the items they observe may be evidence of a crime, contraband, or
otherwise subject to seizure.
It was thus incumbent on the NBI agents and the petitioner to prove their
claim that the items were seized based on the plain view doctrine. It is
not enough to prove that the sealed boxes were in the plain view of the
NBI agents; evidence should have been adduced to prove the existence
of all the essential requirements for the application of the doctrine during
the hearing of the respondents motion to quash, or at the very least,
during the hearing of the NBI and the petitioners motion for
reconsideration
The requirement of inadvertence, on the other hand, means that the
officer must not have known in advance of the location of the evidence
and intend to seize it. Discovery is not anticipated.
The immediately apparent test does not require an unduly high degree of
certainty as to the incriminating character of evidence. It requires merely
that the seizure be presumptively reasonable assuming that there is
probable cause to associate the property with criminal activity; that a
nexus exists between a viewed object and criminal activity.
Incriminating means the furnishing of evidence as proof of
circumstances tending to prove the guilt of a person.
Indeed, probable cause is a flexible, common sense standard. It merely
requires that the facts available to the officer would warrant a man of
reasonable caution and belief that certain items may be contrabanded or
stolen property or useful as evidence of a crime. It does not require proof
that such belief be correct or more likely than true. A practical, non-
traditional probability that incriminating evidence is involved is all that
is required. The evidence thus collected must be seen and verified as
understood by those experienced in the field of law enforcement.
Note: Where marijuana sticks fall before before the eyes of a police
officer from an object a person is carrying, seizure of the sticks would
not require a warrant. They are evidence “in plain view”. Where,
however, police officers find an object only after making some search,
the plain view rule cannot be applied. – Bernas
- In this case, the plain view doctrine is inapplicable because it is not
apparent.
Papa vs. Mago [G.R. No. L-27360, February 28, 1968]
CUSTOMS SEARCHES. The Tariff and Customs Code does not
require a search warrant for purposes of enforcing customs and tariff
laws. Under Sec. 2203 thereof, persons having police authority may
enter, pass through or search any land, enclosure, warehouse, store or
building not being a dwelling house and also, to inspect, search and
examine any vehicle or aircraft and any trunk, package, box or envelope
or any person on board or stop and search and examine any vehicle,
beast or person suspected of holding or conveying any dutiable or
prohibited article introduced into the Philippines contrary to law, without
mentioning the need of a search warrant in said cases. Except in the
search of a dwelling house, therefore, persons exercising police authority
under the customs law may effect search and seizure without search
warrant in the enforcement of customs laws.
May valid customs searches be effected on local products?
- Yes. If previously exported then imported again in the Phils?
WHAT IS THE DIFFERENCE BETWEEN STOP AND SEARCH
AND STOP AND FRISK?
- In Stop and Search, there is probable cause while in stop and frisk,
there is genuine reason. In Stop and Frisk, the commission of the offense
need not be obvious to ordinary man but a seasoned police officer can
determine the possible offense.

MILKTEA NOTES 2017 | POLITICAL LAW COMPENDIUM

"The oak fought the wind and was broken, the willow bent when it must
and survived.”
violating fishery laws be without a warrant?
seized
- Yes, on two grounds:

1) they are unusually equipped with powerful motors that enable them to
elude pursuit. 2) the seizure would be incidental to the lawful arrest of
the crew (Roldan, Jr. vs. Arca)
HYPO: Warehouse serves as a dwelling of caretaker, may it be
subject to warrantless search?
- No. Because it is strictly construes against the state

People vs. Musa [G.R. No. 96177, January 27, 1993]

SEARCH INCIDENTAL TO A LAWFUL ARREST. While a valid
search warrant is generally necessary before a search and seizure may be
effected, exceptions to this rule are recognized. Thus, in Alvero v. Dizon,
the Court stated that "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." Rule 126, Section 12 of the Rules of Court expressly
authorizes a warrantless search and seizure incident to a lawful arrest.
There is no doubt that the warrantless search incidental to a lawful arrest
authorizes the arresting officer to make a search upon the person of the
person arrested. As early as 1909, the Court has ruled that "an officer
making an arrest may take from the person arrested and money or
property found upon his person which was used in the commission of the
crime or was the fruit of the crime or which might furnish the prisoner
with the means of committing violence or of escaping, or which may be
used as evidence in the trial of the cause . . ."
Hence, in a buy-bust operation conducted to entrap a drug-pusher, the
law enforcement agents may seize the marked money found on the
person of the pusher immediately after the arrest even without arrest and
search warrants.
DOCTRINE OF "PLAIN VIEW”. — 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. The "plain view" doctrine
may not, however, be used to launch unbridled searches and
indiscriminate seizures nor to extend a general exploratory search made
solely to find evidence of defendant's guilt. The "plain view" doctrine is
usually applied where a police officer is not searching for evidence
against the accused, but, nonetheless inadvertently comes across an
incriminating object. It has also been suggested that even if an object is
observed in "plain view," the "plain view" doctrine will not justify the
seizure of the object where the incriminating nature of the object is not
apparent from the "plain view" of the object. Stated differently, it must
be immediately apparent to the police that the items that they observe
may be evidence of a crime, contraband, or otherwise subject to seizure.
In the instant case, the appellant was arrested and his person searched in
the living room. Failing to retrieve the marked money which they hoped
to find, the NARCOM agents searched the whole house and found the
plastic bag in the kitchen. The plastic bag was, therefore, not within their
"plain view" when they arrested the appellant as to justify its seizure.
The NARCOM agents had to move from one portion of the house to
another before they sighted the plastic bag.
Moreover, when the NARCOM agents saw the plastic bag hanging in
one corner of the kitchen, they had no clue as to its contents. They had to
ask the appellant what the bag contained. When the appellant refused to
respond, they opened it and found the marijuana. Unlike Ker v.
California, where the marijuana was visible to the police officer's eyes,
the NARCOM agents in this case could not have discovered the
inculpatory nature of the contents of the bag had they not forcibly
opened it. Even assuming then, that the NARCOM agents inadvertently
came across the plastic bag because it was within their "plain view,"
what may be said to be the object in their "plain view" was just the
plastic bag and not the marijuana. The incriminating nature of the
contents of the plastic bag was not immediately apparent from the "plain
view" of said object. It cannot be claimed that the plastic bag clearly
betrayed its contents, whether by its distinctive configuration, its
transparency, or otherwise, that its contents are obvious to an observer.
We, therefore, hold that under the circumstances of the case, the "plain
view" doctrine does not apply and the marijuana contained in the plastic
bag was seized illegally and cannot be presented in evidence pursuant to
Article III, Section 3(2) of the Constitution.
If search made in the sala, may extend to kitchen?
- No, unless plain view doctrine applies. Plain view doctrine applies
when evidence is inadvertently discovered without further search.

PEOPLE VS PERALTA

WAIVER OF RAISING THE ILLEGALITY OF AN ARREST - The Police arrested Garcia

without a warrant, while he had merely been waiting for a passenger bus
after being pointed out by the Cash Department personnel of the BSP. At
the time of his arrest, he had not committed, was not committing, and
was not about to commit any crime. Neither was he acting in a manner
that would engender a reasonable ground to suspect that he was
committing a crime. None of the circumstances justifying an arrest
without a warrant under Section 5 of Rule 113 of the Rules of Court was
present.
Hence, Garcia was not lawfully arrested. Nonetheless, not having raised
the matter before entering his plea, he is deemed to have waived the
illegality of his arrest.
WAIVER LIMITED TO ARREST ONLY - Note, however, that this
waiver is limited to the arrest. It does not extend to the search made as
an incident thereto or to the subsequent seizure of evidence allegedly
found during the search.
INSTANCES WHEN SEARCHES MAY BE MADE WITHOUT
WARRANT - Without a judicial warrant, these are allowed only under
the following exceptional circumstances: (1) a search incident to a
lawful arrest, (2) seizure of evidence in plain view, (3) search of a
moving motor vehicle, (4) customs search, (5) stop and frisk situations,
and (6) consented search.
WHEN ARREST IS ILLEGAL, SUBSEQUENT SEARCH IS
LIKEWISE ILLEGAL - Where the arrest was incipiently illegal, it
follows that the subsequent search was similarly illegal.[ Any evidence
obtained in violation of the constitutional provision is legally
inadmissible in evidence under the exclusionary rule.
Note: The conspicuous illegality of the arrest cannot affect the
jurisdiction of the trial court, because even in instances not allowed by
law, a warrantless arrest is not a jurisdictional defect, and any objection
thereto is waived when the person arrested submits to arraignment
without any objection (Nachura)
RECIT:
People vs Peralta - the waiver of arrest does not entail the waiver of
legality of seizure.
HYPO: Police officers went to a party, and discovered drugs, is
there a seizure?
- No Seizure because there is no valid intrusion.
Valmonte vs. De Villa [G.R. No. 83988, September 29, 1989]
CHECKPOINTS, VALID. Not all searches and seizures are prohibited.
Those which are reasonable are not forbidden. A reasonable search is not
to be determined by any fixed formula but is to be resolved according to
the facts of each case. Where, for example, the officer merely draws
aside the curtain of a vacant vehicle which is parked on the public fair
grounds, or simply looks into a vehicle, or flashes a light therein, these
do not constitute unreasonable search. The setting up of the questioned
checkpoints in Valenzuela (and probably in other areas) may be
considered as a security measure to enable the NCRDC to pursue its
mission of establishing effective territorial defense and maintaining
peace and order for the benefit of the public. Checkpoints may also be
regarded as measures to thwart plots to destabilize the government, in
the interest of public security.
In this connection, the Court may take judicial notice of the shift to
urban centers and their suburbs of the insurgency movement, so clearly
reflected in the increased killings in cities of police and military men by
NPA "sparrow units," not to mention the abundance of unlicensed
firearms and the alarming rise in lawlessness and violence in such urban
centers, not all of which are reported in media, most likely brought about
by deteriorating economic conditions — which all sum up to what one
can rightly consider, at the very least, as abnormal times. Between the
inherent right of the state to protect its existence and promote public
welfare and an individual's right against a warrantless search which is
however reasonably conducted, the former should prevail.
True, the manning of checkpoints by the military is susceptible of abuse
by the men in uniform, in the same manner that all governmental power
is susceptible of abuse. But, at the cost of occasional inconvenience,
discomfort and even irritation to the citizen, the checkpoints during these
abnormal times, when conducted within reasonable limits, are part of the
price we pay for an orderly society and a peaceful community.
CAN A HEAVILY TINTED VEHICLE BE REQUIRED TO ROLL
DOWN WINDOWS?
- No. The law does not distinguish visual search.
HOW ABOUT AERIAL SATURATION DRIVES?
- Yes they are valid, provided that the constitutional rights are respected.

Q: Yung car may curtain, may the PO request that it be opened?

How about compartments?
- A: Yes. Nasa book yata ni Bernas. ?
NACHURA
Search of moving vehicles. 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 moved quickly out of the locality or
jurisdiction in which the warrant may be sought. Searches without
warrant of automobiles are also allowed for the purpose of preventing
violations of smuggling or immigration laws, provided that such
searches are made at borders or “constructive borders”, like checkpoints
near the boundary lines of the State.

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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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 to liberate himself or any person lawfully aiding him when
unlawfully detained therein.
Sec. 8. Search of house, room, or premises to be made in presence of
two witnesses. – No search of a house,
room, or any other premises shall be made except in the presence of the
lawful occupant thereof or any member of his family or in the absence of
the latter, two witnesses of sufficient age and discretion residing in the
same locality.
Sec. 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.
Sec. 10. Validity of search warrant. – A search warrant shall be valid
for ten (10) days from its date. Thereafter, it shall be void.
Sec. 11. Receipt for the property seized.
– The officer seizing the 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.
Sec. 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 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.
(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.
Sec. 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.
Sec. 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 search warrant. However, if such court
failed to resolve the motion and a criminal case is subsequently filed in
another court, the motion shall be resolved by the latter court.