RULE 126 - SEARCH AND

SEIZURE
Frances Ivy Yu
Jose Ronald Magsino
Rommel Julius Mataragnon
Venus Santillan
Daniel Baltazar
Queenie Ann Dupaya

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.

Cannot be issued to look for evidence (Uy Khetin vs. Villareal)

Seizing objects to be used as evidence is equivalent to forcing
one to be a witness against himself (Uy Khetin vs. Villareal)
For a warrant to be valid, it must meet the requirements set by
law (Burgos vs. Chief of Staf)
Tapping conversations is equivalent to a search and seizure (US
vs. Katz)
2. General Rule: No search or seizure can be conducted unless it is
authorized by a search warrant. Evidence gathered from an illegal
search and seizure is inadmissible.
Warrantless searches are illegal, unreasonable and
unconstitutional (Alvarez vs. CFI)
It is not the police action which is impermissible, but the
procedure and unreasonable character by which it is exercised
(Guazon vs. de Villa)
Court gains jurisdiction over items seized by a valid search
warrant and returned to it, and such is not an unconstitutional
deprivation of property (Villanueva vs. Querubin)
Evidence from an illegal search may be used as evidence, if no
objection is raised (Stonehill vs. Diokno)
Right against unreasonable search and seizure may be waived,
but for the waiver to be effective:

The right must exist

Person must be aware of the right
Person clearly shows the intent to relinquish such right

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.

When a search warrant may be said to particularly describe the

thing to be seized
Description is as specific as circumstances allow
Expresses a conclusion of fact by which the warrant officer may be
guided
Things described are limited to those which bear a direct relation to
the offense for which the warrant is issued

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 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.
Requisites of a valid search warrant:
Must be issued upon probable cause;
Probable cause must be determined by the issuing judge personally;
The judge must have personally examined, in the form of searching
questions and answers, in writing and under oath, the applicant and
his witnesses on facts personally known to them;
The warrant issued must particularly describe the place to be
searched and the persons or things to be seized;
It must be in connection with one specific offense; and
The sworn statements together with the affidavits submitted by
witnesses must be attached to the record.
Well settled is the rule that the legality of a seizure can be
contested only by the party whose rights have been impaired
thereby, and that the objection to an unlawful search and seizure is
purely personal and cannot be availed of by third parties (Stonehill
v. Diokno)

Remedies from an Unlawful Search

A motion to quash the search warrant;
A motion to suppress as evidence the objects illegally taken
(EXCLUSIONARY RULE any evidence obtained through
unreasonable searches and seizures shall be inadmissible for any
purpose in any proceeding); and
Replevin, if the objects are legally possessed
The remedies are alternative. If a motion to quash is denied, a
motion to suppress cannot be availed of subsequently. Where the
search warrant is a PATENT NULLITY, certiorari lies to nullify the
same.
The illegality of the search warrant does not call for the return of the
things seized, the possession of which is prohibited by law.
However, those personalities seized in violation of the constitutional
immunity whose possession is not of itself illegal or unlawful ought
to be returned to their rightful owner or possessor.
Any evidence obtained in violation of the constitutional immunity
against unreasonable searches and seizures are inadmissible for
any purpose in any proceeding
There is no need for a certification of non-forum shopping in the
application for search warrant. The Rules of Court as amended
requires such certification only from initiatory pleadings, omitting
any mention of applications
Probable Cause refers to the facts and circumstances which could
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.
Basis of Probable Cause: The basis must be the personal knowledge
of the complainant or the witnesses he may produce and not based
on mere hearsay. The test of sufficiency of a deposition or affidavit
is whether it has been drawn in a manner that perjury could be
charged thereon and the affiant be held liable for damage caused.
Mere affidavits of the complainant and his witnesses are not
sufficient. The examining judge has to take depositions in writing of
the complainant and the witnesses he may produce and attach
them to the record. (Mata v. Bayona)
The oath required must refer to the truth of the facts within the
personal knowledge of the petitioner or his witnesses, because the

purpose thereof is to convince the committing magistrate, not the

individual making the affidavit and seeking the issuance of the
warrant, of the existence of probable cause. (Alvarez v. CFI)
Factors in Determination of Probable Cause:
Time of the application in relation to the alleged offense committed.
The nearer the time at which the observation of the offense is
alleged to have been made, the more reasonable the conclusion of
establishment of probable cause (Asian Surety Insurance v.
Herrera);
Need for competent proof of particular acts or specific omissions in
the ascertainment of probable cause (Stonehill v. Diokno);
The facts and circumstances that would show probable cause must
be the best evidence that could be obtained under the
circumstances. If such best evidence cannot be obtained, the
applicants must show a justifiable reason therefor upon judges
examination (People v. Judge Estrada)
Probable cause must be determined personally by a judge.
However, this rule does not extend to deportation proceedings.
Particularly describing the place to be searched and the persons of
things to be seized: The purpose of the rule is to leave the officers
of the law with no discretion regarding what articles they shall seize,
to the end that unreasonable searches and seizures may not be
made - that abuses may not be committed (Stonehill v. Diokno)
Test to determine particularity:
When the description therein is as specific as the circumstances will
ordinarily allow (People v. Rubio);
When the description expresses a conclusion of fact not of law
which the warrant officer may be guided in making the search and
seizure;
When the things described are limited to those which bear direct
relation to the offense for which the warrant is being issued.
The warrant must name the person upon whom it is to be served
EXCEPT in those cases where it contains a descriptio personae such
as will enable the officer to identify the person. The description
must be sufficient to indicate clearly the proper person upon whom
it is to be served (People v. Veloso)
The absence of a probable cause for a particular article does not
generally invalidate the warrant as a whole but may be severed
from the rest which meets the requirements of probable cause and
particularity (People v. Salanguit)

Multi-factor Balancing Test in determining Probable Cause: One

which requires the officer to weigh the manner and intensity of the
interference on the right of the people, the gravity of the crime
committed, and the circumstances attending the incident (Allado v.
Judge Diokno)
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.
Manner on how a judge should examine a witness to determine the
existence of probable cause:
The judge must examine the complainant and witnesses personally;
The examination must be under oath;
The examination must be reduced to writing in the form of
searching questions and answers (Marinas v. Siochi);
Examination must be on the facts personally known to the applicant
and his witnesses;
It must be probing and exhaustive, not merely routinary or pro
forma (Roan v. Gonzalez);
It is done ex-parte and may even be held in the secrecy of
chambers (Mata v. Bayona);
Such personal examination is necessary order to enable the judge
to determine the existence or non-existence of a probable cause.
The matters that may be raised in a motion to quash a search
warrant must not go beyond the immediate, limited issue of the
existence or non-existence of probable cause at the time of the
issuance of the warrant. Matters of defense should properly be
raised at the criminal action and not at the hearing of the motion to
quash the search warrant (Department of Health v. Sy Chi Siong,
Inc)
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.
The Constitution ordains that no warrant shall issue EXCEPT upon
probable cause supported by oath or affirmation

The search warrant must be in writing and must contain such

particulars as the name of the person against whom it is directed,
the offense for which it was issued, the place to be searched and
the specific things to be seized
Search warrant cannot issue against diplomatic officers (WHO v.
Aquino)
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.
Time of Making Search
GR: The warrant must direct that it be served in the day time.
Exception: 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.
Mustang Lumber, Inc vs. Court of Appeals
Facts:
A search warrant was secured on a certain date and enforced the
same on the same day.

But the raiding team could not finish the search in one day, so they
postponed it.
Issue:
Can you still continue tomorrow? Or must you finish everything
today?
Held: Yes, you can still continue
Section 11. Receipt for the property seized. The officer seizing
property under the warrant must give a detailed receipt for the
same to the lawful occupant of the premises in whose presence the
search and seizure were made, or in the absence of such occupant,
must, in the presence of at least two witnesses of sufficient age and
discretion residing in the same locality, leave a receipt in the place
in which he found the seized property. (10a)
The rule, as drafted, requires the officer conducting the search and
seizure proceedings to give a detailed receipt of the property seized
to the person on whom or in whose possession it was found, or in
default of the latter, leave such receipt in the place where the
property so seized was found in the presence of two witnesses
(People vs. Vacani, 61 Phil. 803)
And there must be proof that constitutional requisites for admission
of confession were complied with (People vs. Deocariza, 219 SCRA
488)

Section 12. Delivery of property and inventory thereof to court;

return and proceedings thereon. (a) The officer must forthwith
deliver the property seized to the judge who issued the warrant,
together with a true inventory thereof duly verified under oath.
(b) Ten (10) days after issuance of the search warrant, the
issuing judge shall ascertain if the return has been made, and
if none, shall summon the person to whom the warrant was
issued and require him to explain why no return was made. If
the return has been made, the judge shall ascertain whether
section 11 of this Rule has been complained with and shall
require that the property seized be delivered to him. The
judge shall see to it that subsection (a) hereof has been
complied with.

(c) The return on the search warrant shall be filed and kept by
the custodian of the log book on search warrants who shall
enter therein the date of the return, the result, and other
actions of the judge.
A violation of this section shall constitute contempt of court.(11a)
Duties of the officers conducting the search
As already stated, the law imposes upon the person making the
search the duty to issue a detailed receipt for the property seized.
Additionally, he is likewise required to make a return of the warrant
to the court which issued it, together with an inventory of the
property seized (People vs. Vacani, 61 Phil. 803)
The warrant must also command that the goods or other articles to
be searched for, if found, together with the party in whose custody
they are found, be brought before the magistrate, to the end that,
upon further examination into the facts, the goods and the party
into whose custody they were, may be disposed of according to law
(Amarga vs. Abbas, 98 Phil. 739)

The property seized must be surrendered to the court that

issued the search warrant, not to the prosecutor or any other
officer. Goods seized on the basis of a search warrant issued
by the court are maintained under the custody and control of
the issuing court until the institution of the appropriate
criminal action with the proper court (Tenorio vs. Court of
Appels, 413 SCRA 234)

Duties of the issuing judge

The issuing judge shall see to it also that 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 dated
of the return, the result, and other actions taken by him.
It is to be noted that the duties imposed upon the judge is
after ten (10) days because the search warrant has only a
validity of ten (10) days from its issuance. Thereafter, it shall
be void.

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.

Jurisprudence Recognizing the Exceptions

A search incidental to a lawful arrest, as when the person being
arrested is frisked for weapons he may otherwise be able to use
against the arresting officers
A search of moving vehicle
Consented Search knowingly agreeing to be searched or waiver of
objections to illegal search
Seizure of evidence in plain view
Persons exercising police authority under the custom law may effect
search and seizure without a search warrant in the enforcement of
custom laws, except in a dwelling house.

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 judge who issued the search warrant, no case has been filed, has
authority to quash the search warrant which he issued, for lack of
probable cause on the ground that there was no crime committed
even if there already a complaint pending preliminary investigation
before the prosecution
Effect of the Quashal of the search warrant on the preliminary
investigation

The effect if the quashal of the warrant on the ground that no

offense has been committed is to render the evidence obtained by
virtue of the warrant inadmissible for any purpose in any
proceeding including the preliminary investigation
Transmittal of property where case is pending
All personal property seized under the warrant shall forthwith be
transmitted by it to the court wherein the criminal case is pending,
with the necessary safeguards and documentation therefor.