Search and Seizure Rule 126 (Sections 10 14) Section 10 Validity of Search Warrant

A search warrant shall be valid for ten (10) days from its date. Thereafter it shall be void.

A search warrant can only be used ONCE; thereafter it becomes functus officio (having performed its office). Thus, even though it is valid for ten days, once utilized, it CANNOT be used again. (i.e. used everyday for 10 days); Except, when the first search was interrupted (Uy Kheytin v. Villareal, 42 Phil 886). The court trying the criminal case should be the one to rule on the validity of the search warrant, to avoid confusion (Ong v. Court of Appeals, 370 SCRA 48). Section 11 Receipt of 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 property seized

Section 12 Delivery of Property and Inventory thereof to court; return and proceedings thereon. Provisional Outline: Imposes duties on the part of the executing officer; and Duties on the part of the issuing Judge. Violation shall constitute contempt of court. Duties of the executing officer: 1. 2. 3. 4. Make a Receipt of the property seized; Deliver the property seized to the issuing court; Make a Return of the Warrant; and Make a True Inventory thereof to the Judge who issued the warrant.

The property seized must be surrendered to the court that issued the search warrant, not to the prosecutor or any other officer. The disposition of the goods seized is a Judicial Function and it would be an error to allow a ministerial officer to usurp that function.

 Nonetheless, by a proper application, the issuing court may allow the law enforcement officers to retain custody of the personalities taken; and when granted, no serious objection can be interposed, for by then, the custody of the officers is equivalent to custody of the issuing court (People v. Gesmundo, 219 SCRA 743).

Duties of the issuing judge: Within 10 days after issuance, the Judge shall ascertain if a return has been made: a) If Return was made: Judge shall ascertain whether a receipt was issued and shall require delivery of the property seized; b) If No Return was made: Judge shall summon the executing officer and require the latter to explain. Furthermore, the issuing judge shall see to it 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; Date of the return; Result; and Other actions taken.

Remedies when there are conflicting claims on seized property: b) Where personal property seized will not be followed by filing of criminal charges: Action for replevin, or an interpleader filed by the Govt in any court;

c) Where personal property seized will be followed by filing of criminal charges or charges have already been filed: Question validity of search warrant in issuing court.

Section 13 Search incident to lawful arrest

A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant.

General Rule: A search unauthorized by a valid search warrant is Unreasonable. Even if the unauthorized search produces conclusive evidence, it cannot change the character of the unreasonable search. Exceptions: 1. 2. 3. 4. 5. 6. 7. 8. 9. I. Incident to lawful arrest; Moving Vehicles; Plain View Doctrine; In connection with Customs Law; Consented Search; Stop and Frisk Theory; Exigent and Emergency Circumstance; In times of war, within area of military operation; Enforcement of Health and Sanitary Laws. Requisites of in flagrante delicto arrest: 1. Person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and Act is done in the presence or within view of the arresting officer.

2.

Reliable information alone, absent obvert act is insufficient (People v. Molina, 352 SCRA 174). When one is legally arrested, whatever is found in his possession or in his control may be seized and used as evidence against him (Alvero v. Dizon, 76 Phil 657). Area around arrest: There is also ample justification for the search of the arrestees person and the area within his immediate control or that area within which he might gain possession of a weapon or destructible evidence. However, no justification to search room other than that in which arrest occurs, or closed drawers, or concealed areas. Reason for the rule: Justified by the need to seize weapons and other things which may be used to assault an officer or effect an escape as well as the need to prevent the destruction of evidence of the crime. (68 Am. Jur. 2d 692). II. Search of Moving Vehicles Justified on the ground that the mobility of motor vehicles makes it possible for the vehicle to move out of locality or jurisdiction in which the warrant must be sought.

However, there MUST be reasonable or probable cause to believe before the search that they will find the instrumentality or evidence pertaining to a crime, in the vehicle to be searched. (People v. CFI of Rizal Br. IX) III. Search of evidence in Plain View Plain View Doctrine applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. It must be immediately apparent to the police that the items that they observe may be evidence of a crime, or contraband or otherwise subject to seizure. (People v. Musa) Elements of Plain View Doctrine: a) A prior valid intrusion; b) The evidence was in was inadvertently discovered by the police who have a right to be where they are; c) The evidence must be immediately apparent; and d) Plain view justified mere seizure of evidence without further search (People v. Sarap, G.R. No. 132165; March 26, 2003). IV. Search in connection with enforcement of customs laws: The Tariff and Customs Code authorizes persons having police authority under Section 2203 to 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 vessel 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. However, dwelling houses may be entered and searched only upon warrant issued by a judge or justice of the peace. Thus, except in case of the search of a dwelling house, persons exercising police authority under the customs law may effect search and seizure without a warrant in the enforcement of Customs Laws. Once seized, the Bureau of Customs also acquires exclusive jurisdiction thereof for the purpose of enforcing tariff and customs laws (Chia v. Acting Collector of Customs, 177 SCRA 755). V. Consented Searches No search warrant is required where the person to be searched has given his consent thereto. A consented search is reasonable only if kept within the bounds of the actual consent.

The fact that officers making a search, within the scope and purpose of a consent, may lawfully seize a contraband article discovered by them does not mean that the scope of the consent will support a second distinct and separable search for different articles prompted by the discovery of the contraband. Elements of a Valid Consent Search To constitute a waiver, it must appear: 1. Right exists; 2. Person involved had actual or constructive knowledge of the existence of such rightsl 3. Actual intention to relinquish such rights. Consent cannot be presumed simply because the accused failed to object to the search. Totality of Circumstances Principle The question of whether a consent to a search was in fact voluntary is a question of fact to be determined from the totality of all the circumstances. One must consider the following characteristics of the person giving consent and the environment in which consent is given: 1. 2. 3. 4. 5. 6. 7. 8. 9. Age of the defendant; Whether he was in a public or secluded location; Whether he objected to the search or passively looked on; The education and intelligence of the defendant; The presence of coercive police procedures; The defendants belief that no incriminating evidence will be found; Nature of the police questioning; The environment in which the questioning took place; and The possibly vulnerable subjective state of the person consenting.

The State has the burden of proving by clear and positive testimony, that the necessary consent was obtained and that it was freely and voluntarily given (Caballes v. Court of Appeals, G.R. No. 136292; January 15, 2002). VI. Stop and Frisk Theory A limited protective search of outer clothing for weapons (Malacat v. Court of Appeals, 283 SCRA 159) Probable cause is not required to conduct a stop and frisk; However, a hunch will not validate a stop and frisk. A genuine reason must exist, in light of the polices experience and surrounding condition, to warrant the belief that the person detained has weapons concealed about him. Two Fold Interest:

1. 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 behaviour, even without probable cause; 2. The 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 protective frisk is different from an exploratory search or search for evidence since the latter two require probable cause. VII. Exigent and Emergency Circumstances There is a prevailing general chaos and disorder because of an on-going coup and the raid of the office or building was precipitated by intelligence report that said office was being used as headquarters by the rebelling faction. The raiding team had no opportunity to apply secure a search warrant as the court was then closed. There was, therefore, such urgency and exigency of the moment for a which a search warrant could lawfully be dispensed with (People v. De Garcia, 233 SCRA 716). Important notes on Search Warrants: Remedy for questioning the validity of a search warrant can only be sought in the court that issued it; Except where there is already a case filed, the latter shall acquire jurisdiction to the exclusion of other courts. Where no objection to the validity of the search warrant or admissibility of evidence was raised during trial, it shall be deemed WAIVED. (Demaisip v. CA; G.R. No. 89393, January 25, 1991) What constitutes a reasonable or unreasonable search or seizure in any particular case is purely a judicial question; Searches and Seizure inside a home are presumptively unreasonable; Constitutional prohibition applies only against the government and its agencies, thus, it can only be invoked against the State, not private persons or entities. Section 14 Motion to quash a search warrant or to suppress evidence; where to file. The remedy for questioning the validity of the search warrant must be sought in the sala of the judge that issued it, not in any other court of the same and not through replevin (Pagkalinawan v. Gomez, 21 SCRA 1275). 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 court where the criminal case was filed.

Remedies of Party adversely affected by a Search Warrant: 1. Motion to quash search warrant with the issuing court; or 2. Motion to supress evidence with the court trying the criminal case. 3. (An Action for Replevin if the properties seized were lawfully possessed by the person whom it was seized.)