Constitutional Law II

NOTES ON ARREST, SEARCH AND SEIZURE

AND
PRIVACY OF COMMUNICATIONS AND CORRESPONDENCE

ATTY. ROBERTO A. DEMIGILLO

ARELLANO UNIVERSITY SCHOOL OF LAW

1. A scatter-shot warrant is a search warrant issued for more than one (1) specific
offense. It is void because it violates the constitutional requirement that there must be
particularity of the things to be seized and persons and places to be searched.

2. A search warrant has no relation to a civil process. It is not a process for adjudicating
civil rights or maintaining mere private rights. It concerns the public at large as
distinguished from the ordinary civil action involving the rights of private persons. It may
only be applied for in the furtherance of public prosecution.

3. The things to be seized must be described with particularity. Technical precision of

description is not required. It is only necessary that there be reasonable particularity and
certainty as to the identity of the property to be searched for and seized, so that the
warrant shall be a mere roving commission.

4. Unless the items seized are contraband per se, they must be returned to the person
from whom the raiding team seized them

5. While it is true that the property to be seized under a warrant must be particularly
described therein and no other property can be taken thereunder, yet the description is
required to be specific only in so far as the circumstances will ordinarily allow. The law
does not require that the things to be described in precise and minute details as to leave
no room for doubt on the part of the searching authorities; otherwise, it would be
virtually impossible for the applicants to obtain search warrant as they would not know
exactly what kind of things they are looking for.

6. The determination of probable cause is a function of the judge.

7. The preliminary inquiry made by a prosecutor does not bind the judge. It merely
assists him to make a determination of probable cause

8. In searches incident to a lawful arrest, the arrest must precede the search; generally,
the process cannot be reverse. Nevertheless, a search substantially contemporaneous
with an arrest can precede the arrest if the police have probable cause to make the
arrest at the outset of the search.

9. When a vehicle is flagged down and subjected to an extensive search, such a

warrantless search has been held to be valid as long as the officers conducting the
search have reasonable or probable cause to believe prior to the search that they would
find the instrumentality or evidence pertaining to a crime in the vehicle to be searched.

10. A warrantless search cannot be made in a place other than the place of arrest;
otherwise, it would amount to sanctioning as an unwarranted violation, if not nullification
of the basic constitutional right and guarantee against unreasonable search and
seizures.

11. The frisk and search of a 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 was first disarmed.
12. Distinguish the concepts of search incident to a lawful arrest and of a stop and frisk.

13. The immediate incriminating evidence requirement in the plain view doctrine means
that the executing officer can at the time of discovery of the object or the facts therein
available to him; determine probable cause of the object’s incriminating evidence. The
requirement of inadvertence 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.

14. A buy bust operation is a method employed by police authorities to malefactors in

the act of committing the crime of drug vending. It is essentially a form of entrapment, a
procedure not prohibited under the Revised Penal Code.

15. The intimacies between husband and wife do not justify any one of them in breaking
the cabinets and drawers of the other and in ransacking them for any telltale evidence
of marital infidelity. A person by contracting marriage does not shed his or her integrity
or right to privacy as an individual and the constitutional protection is ever available to
him or her.

16. The right to privacy is recognized and enshrined in:

Section 3(1) of Article III of Constitution

Section 1, Article III – Right to life liberty and property

Section 2, Article III – Right against unreasonable search and seizures

Section 6, Article III - Liberty of abode and travel

Section 8, Article III – Right to form union

Section 17, Article III – Right against self-incrimination

17. Zones of privacy – Article 26, NCC, Article 32, NCC, Article 723, NCC, Article 229
RPC, Article 290-292, RPC, Article 280, RPC, Anti-wiretapping law, Secrecy of Bank
Deposits law, Intellectual Property law., Section 24, Rule 130 ©, Rules of Court.