SEARCH AND SEIZURE

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.

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.

WHAT IS THE CONCEPT OF A
SEARCH WARRANT?
> It is a criminal process akin to a mode of discovery
> It is a special and peculiar remedy, which is drastic in nature

ARE SEARCH AND SEIZURES
PROHIBITED UNDER THE
CONSTITUTION?
> No. The constitutional guarantee embodied in Article 3, Section 2 of the Constitution is not a
blanket prohibition against all searches
and seizures as it operates only against unreasonable searches and seizures

WHEN IS THE SEARCH OR
SEIZURE UNREASONABLE?
> A search and seizure is unreasonable if it is made without a warrant, or the warrant was
invalidly issued.
> In all instances, what constitutes reasonable or unreasonable search or seizure is a purely
judicial question determinable from a consideration of the attendant circumstances.
WHAT ARE THE THREE SITUATI
ONS WHEREIN THERE MUST BE
FINDING OF PROBABLE CAUSE?
1. Probable cause in filing of an information
> Facts and circumstances that would engender a well-
grounded belief that a crime has been committed and the person to be charged is probably
guilty thereof
2. Probable cause in the issuance of a search warrant
> Facts and circumstances that would lead a reasonable
discreet and prudent man to believe that there has been a crime committed and the things and
objects connected to the crime committed are in the place to be searched
3. Probable cause in the issuance of a warrant of arrest
> Facts and circumstances that would engender a well-
grounded belief that a crime has been committed and the person to be arrested committed it

WHY ARE THE REQUIREMENTS
FOR THE ISSUANCE OF A SEAR
CH
WARRANT MORE STRINGENT TH
AN THE REQUIREMENTS FOR T
HE ISSUANCE OF A WARRANT OF
ARREST?
> The right against unreasonable search and seizure is a core right implicit in the natural right
to life, liberty and property. Even in the absence of a constitution, individuals have a fundamental
and natural right against unreasonable search and seizure under natural law.
> Moreover, the violation of the right to privacy produces a humiliating effect that cannot be
rectified anymore.
> This is why there is no other justification to speak of for a search, except for a warrant.
> On the other hand, in a warrant of arrest, the person to be arrested can always post
bail to prevent the deprivation of liberty.

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.

WHERE SHOULD ONE FILE AN
APPLICATION FOR SEARCH
WARRANT?
> As a general rule, any court within whose territorial jurisdiction a
crime was committed BUT 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.
> For example, a drug syndicate keeps his drugs in a warehouse in
Pasay for the reason that it has connections in Pasay and can
easily get a tip when the police officers will file for a search
warrant. To avoid the drug syndicate from getting a tip of the impending search, the police
officers apply for a search warrant in Makati stating the compelling reason.
> 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.

WHAT MAY BE THE SUBJECT OF A
SEARCH WARRANT?
1. Subject of the offense;
2. Stolen or embezzled and other proceeds, or fruits of the offense; or
3. Used or intended to be used as the means of committing an offense.

IS IT NECESSARY THAT THE PE
RSON NAMED IN THE SEARCH
WARRANT BE THE OWNER OF THE
THINGS TO BE SEIZED?
> No, ownership is of no consequence.
> What is relevant is that the property is connected to 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.

WHAT ARE THE REQUISITES OF A
VALID SEARCH WARRANT?
1. There must be probable causefacts and circumstances that would engender a well-
founded belief in a reasonable prudent and discreet man that a crime has been committed and the
things and objects to be seized can be found in the place to be searched
2. Which must be determined by the judge personally through
searching and probing questionsquestions not merely answerable by yes or no but could
be answered by the applicant and the witnesses on facts personally known to them
3. (Upon whom?) The complainant and the witnesses he may
produce are personally examined by the judge, in writing and under oath and affirmation
4. (Based on what?) The applicant and the witnesses testify on facts personally known to them
5. The probable cause must be in connection with the specific offense
6. The warrant specified describes the person and place to be searched and the things to be
seized
7. The sworn statement together with the affidavits of the witnesses must be attached to the
record

WHAT IS THE PURPOSE FOR THE
PARTICULARITY OF DESCRIPTION
OF THE PLACE TO BE SEARCHED
AND THE THINGS TO BE SEIZED?
> The evident purpose and intent of this requirement is to limit the things to be seized to those,
and only those, particularly described in the search warrant
to leave officers of the law with no
discretion regarding what articles they should seize, to the end that unreasonable searches
and seizures may not be committed, that abuses may not be committed.

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.

WHEN IS THE AFFIDAVIT OR TE
STIMONY OF THE WITNESS SAI
D TO BE BASED ON PERSONAL
KNOWLEDGE?
> The test is whether perjury could be charged against the witness

WHAT ARE THE REQUISITES OF
THE PERSONAL EXAMINATION
THAT THE JUDGE MUST CONDU
CT BEFORE ISSUING THE SEAR
CH WARRANT?
1. The judge must examine the witness personally
2. The examination must be under oath
3. The examination must be reduced into writing in the form of searching questions and
answers

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.

WHAT IS A SCATTER SHOT
WARRANT?
> It is a warrant of arrest that is issued for more than one offense
> It is void for the law requires that a warrant of arrest should only be issued in connection with
one specific offense

A WARRANT WAS ISSUED FOR
THE SEIZURE OF DRUGS
CONNECTED
WITH THE VIOLATION OF THE D
ANGEROUS DRUGS ACT. IS TH
E WARRANT VALID?
> The warrant is valid
> Although there are many ways of violating the Dangerous Drugs Act, it is not a scatter shot
warrant since it is in connection with only one penal law

POLICE OFFICERS APPLIED FOR A
WARRANT TO SEARCH DOOR #1
OF AN APARTMENT
COMPLEX. THE COURT ISSUED
THE WARRANT. WHEN THEY
WENT TO THE APARTMENT
COMPLEX, THEY REALIZED THAT
WHAT THEY THOUGHT WAS DOOR
#1 WAS ACTUALLY DOOR #7. CAN
THEY SEARCH DOOR #7?
> No, what is controlling is what is stated in the warrant, and not what the peace
officers had in mind, even if they were the ones who gave it the description to the court.
> This is to prevent abuses in the service of search warrants

CAN THE POLICE OFFICER SE
IZE ANYTHING THAT IS NOT
INCLUDED IN THE WARRANT?
> No, anything not included in the warrant cannot be seized EXCEPT if its mala prohibita,
in which case, the seizure is justified under the plain view doctrine.
> Even if the object was related to the crime, but it is not mentioned in the warrant nor is it mala
prohibita, it still cannot be seized

POLICE OFFICERS WENT TO TH
E HOUSE TO EXECUTE A SEAR
CH WARRANT. THEY FOUND A
PISTOL ON THE TABLE, BUT THE
PISTOL
WASNT INCLUDED IN THE SEAR
CH WARRANT. CAN THEY SEIZ
E THE PISTOL?
> No, it is not mala prohibita and they have no proof that it is unlicensed.

WHAT SHOULD THE POLICE OFF
ICER OR COURT TO DO THINGS
SEIZED ILLEGALLY?
> Anything seized illegally must be returned to the owner unless it is mala prohibita. In such a
case, it should be kept in custodia legis.

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.

NOTE: The two witness rule only applies in the absence of the lawful occupants of the
premises searched
PEACE OFFICERS RAIDED A
HOUSE, WHICH WAS SUSPECTED
TO BE
A FACTORY FOR ILLEGAL DR
UGS. DURING THE RAID, 8
CHINESEMEN WERE FOUND IN
SIDE WHO COULDNT SPEAK
ENGLISH OR FILIPINO. THE CHI
NESE WERE LOCKED INSIDE A
ROOM AND TWO WITNESSES W
HO WERE NOT OCCUPANTS WE
RE
USED WHILE SEARCHING TH
E HOUSE AND SEIZING THE
PROHIBITED DRUGS. VALID?
> No.
> The two-witness rule can only apply when there is absence of the lawful occupants of the
premises searched.
> In this case, they locked the occupants in a room while doing the
search and seizure and used 2 witnesses who werent the occupants of the premises.

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.

WHEN SHOULD THE SEARCH
WARRANT BE EXECUTED?
> If possible, it should be executed during the daytime
> But in certain cases, such as when the things seized are mobile or are in the person of the
accused, it can be served during nighttime

Sec. 10. Validity of search warrant. A search warrant shall be valid for ten (10) days from its
date. Thereafter, it shall be void.
FOR HOW LONG IS THE SEARCH
WARRANT VALID?
> It is valid for 10 days, after which the police officer should make a return to the judge who issued
it
> If the police officer doesnt make a return, the judge should summon him and require him
to explain why no return was made
> If the return was made, the judge should determine if the peace
officer issued the receipt to the occupant of the premises from which the things were taken.
> The judge shall also order the delivery to the court of the things seized.

IF THE WARRANT WAS
EXECUTED EVEN BEFORE THE
EXPIRATION OF THE 10-
DAY PERIOD, CAN THE PEACE
OFFICER USE THE WARRANT
AGAIN BEFORE IT EXPIRES?
> No, of the purpose for which it was issued has already been carried out, the warrant
cannot be used anymore.
> The exception is if the search wasnt finished within 1 day, the
warrant can still be used the next day, provided it is still within the 10-day period

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.

WHAT IS THE DUTY OF THE OF
FICER WHEN HE SEIZES THE
PROPERTY?
> 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.

CAN THE OWNER OF THE THIN
GS SEIZED BE MADE TO SIGN
THE RECEIPT?
> No since this would be tantamount to a violation of ones right against self-
incrimination. It is a confession without the assistance of counsel.

IS THERE PERIL TO THE OWNER
OF THE THINGS SEIZED IF HE IS
MADE TO SIGN THE BOOKING
SHEET?
> There is no peril since he would just be made to acknowledge that a case has been filed
against him

THE ACCUSED WAS ARRESTED
DURING A BUY-
BUST OPERATION. PESO BILLS
WERE SEIZED FROM HIM. CAN
THE ACCUSED BE MADE TO SIGN
THE BILLS?
> Yes, having the bills is not a crime.
> This applies even if the bills involved is marked money.

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.

WHAT IS THE DUTY OF THE OF
FICER AFTER THE PROPERTY
SOUGHT UNDER THE SEARCH
WARRANT HAS BEEN SEIZED?
> 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.

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.

IN WHAT INSTANCES WOULD A
SEARCH AND SEIZURE WITHOUT
A WARRANT BE ALLOWED?
1. A warrantless search incidental to a lawful arrest
a. Arrest must be lawful
b. It must be contemporaneous with the arrest in both time and place
c. Within the vicinity of the person arrested, immediate control, which is the evidence of
the offense or weapon
2. Search of evidence in plain view
3. Search of a moving vehicle
a. Must be cursory
b. Cant make a thorough search; just have to take a look; not to open trunks
4. Consented warrantless searches
a. The right exists
b. Person making the consent knows that he has the right
c. In spite of the knowledge of the right, he voluntarily and intelligently gives his consent
5. Customs searches
6. Stop and frisk
7. Exigent and emergency circumstances
8. Checkpoints
9. Republic Act requiring inspections or body checks in airports
10. Emergency
11. In times of war and within military operations

WHAT ARE THE INSTANCES OF
A PERMISSIBLE WARRANTLESS
ARREST?
1. Arrest in flagrante delicto
2. Arrest effected in hot pursuit
3. Arrests of escaped prisoners

WHAT IS THE AREA OF
COVERAGE OF AN OFFICERS
SEARCH? IS IT LIMITED TO THE
PERSON OF THE ACCUSED?
> Under this rule, the search being an incident to a lawful arrest may extend beyond the
person of the one arrested to include the premises or surrounding under his immediate control
> The search must be made after the arrest. The objective is to
make sure that the life of the peace officer will not be endangered. It must be
contemporaneous with the arrest in both time and place.

WHEN IS THE WARRANTLESS S
EARCH OF A MOVING VEHICLE
ALLOWED?
> It is allowed when it is not practicable to secure a warrant

WHAT ARE THE REQUIREMENTS
IN A WARRANTLESS SEARCH
INCIDENTAL TO A LAWFUL
ARREST?
1. Arrest must be lawful
2. It must be contemporaneous with the arrest in both time and place
3. Within the vicinity of the person arrested, immediate control, which is the evidence of the
offense or weapon
WHO SHOULD GIVE CONSENT T
O A WARRANTLESS SEARCH AN
D WHAT ARE THE REQUISITES?
> Only the person whose right may be violated can give the
consent; it is a personal right that cannot be availed of by third parties. The requisites are:
1. The person has knowledge of his right against the search
2. He freely and intelligently gives his consent in spite of such knowledge

WHAT ARE THE REQUISITES FO
R THE PLAIN VIEW DOCTRINE T
O APPLY?
1. There must have been a prior valid intrusion based on the
warrantless arrest in which the police are legally present in the pursuit of their official duties
2. The evidence was inadvertently discovered by the police who had the right to be where they
are
3. The evidence must be immediately apparent
4. There was no need for further search

WHAT IS A STOP AND FRISK
SITUATION? WHEN IS IT VALID?
> It is a situation wherein there is a limited protective search of outer clothing for weapons
> While probable cause is not required to conduct a stop and frisk, mere suspicion or a hunch will
not validate such a procedure.
> A genuine reason must exist, in light of the police officers experience and surrounding
conditions, to warrant the belief that the person has detained the weapons concealed about him.
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.

A POLICE OFFICER WAS GRANT
ED
TO SEARCH THE HOUSE FOR
REBEL OFFICERS. CAN THE
POLICEMAN
CONDUCT A WARRANTLESS
SEARCH?
> NO, the permission didnt include the room to room search and anything confiscated will
be inadmissible

IF AN OBJECT HAS BEEN SEIZE
D UPON ORDERS OF THE COUR
T,
MAY A COORDINATE COURT ISS
UE A REPLEVIN ORDER FOR TH
E RELEASE OF THE OBJECT?
> No, only the court that ordered its confiscation may release the object

IF THE ARRESTED PERSON SIGNS
THE RECEIPT OF THE PROPERTY
SEIZED WITHOUT THE
ASSISTANCE OF COUNSEL, IS THE
RECEIPT ADMISSIBLE?
> No, because it was done without assistance of counsel

WHAT IS THE MULTI-FACTOR
BALANCING TEST?
> It requires officers to weigh the manner and intensity of the
interference of the right of the people, the gravity of the crime committed, and the
circumstances attending the incident.

WHERE SHOULD ONE FILE THE
NOTION TO QUASH WARRANT O
R TO SUPPRESS EVIDENCE?
1. In the court where the action has been instituted
2. If no criminal action has been filed, in the court that issued the warrant
3. However, if said court failed to resolve the motion and a criminal
case is subsequently filed in another court, the motion shall be filed in the latter court

A MOTION TO QUASH WAS FILE
D IN THE COURT WHERE THE
CRIMINAL ACTION WAS FILED.
DURING THIS TIME, THE
PRELIMINARY INVESTIGATION W
AS ONGOING. THE ACCUSED
MOVES FOR THE SUSPENSION OF
THE PRELIMINARY
INVESTIGATION. VALID AND
PROPER?
> No, the preliminary investigation is of different nature from deciding on whether to grant the
motion to quash the warrant
> The result of one will not affect the other. One deals on probable
cause on whether there are facts and circumstances that would engender a well-founded belief
that a crime has been committed
and the accused is probably guilty thereof. The other deals on whether the things and objects
were seized legally or not.

NOTE: The Motion To Quash, filed in the issuing court, or to Suppress
Evidence, filed with the court trying the case, are alternative, not cumulative remedies. If one
is filed, the other can no longer be availed of. The court first taking cognizance of the motion does
so to exclusion of the other. The proceedings thereon are subject to the omnibus motion rule
and the rule against forum shopping.

WHAT IS THE TOTAL
EXCLUSIONARY RULE?
> Things and objects seized in violation of the right against
unreasonable searches and seizures are fruits of the poisonous tree and are inadmissible as
evidence