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The Right Against


Unreasonable Searches & Seizures:
FUNDAMENTAL PRINCIPLES & DOCTRINES 1

By Prof. Alexis F. Medina 2

"SECTION 2. 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 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.

SEC 3. x x x

(2) Any evidence obtained in violation of x x x the preceding section shall be


inadmissible for any purpose in any proceeding. (1987 Constitution)

1 This material is a working draft, subject to further revisions. Reproduction for purely academic purposes with
due attribution to the author is permitted.
2 AB Political Science, University of the Philippines (UP), Diliman; Order of the Purple Feather (OPF), UP,
College of Law; Valedictorian, San Sebastian College-Recoletos, Manila, College of Law; Philippine Representative
to the World Trade Organization (WTO) Trade Facilitation Preparatory Committee Meeting for Legal Review
(Geneva, Switzerland, 2014); Philippine Representative, Senior Officials Meeting, Asia Pacific Economic
Cooperation (APEC), 2015; former Philippine Youth delegate to Japan and Southeast Asia; Litigation lawyer;
Transaction adviser on Public-Private Partnerships (PPPs); formerly with the Ponce Enrile Reyes & Manlastas Law
Offices (Pecabar); Professor of Constitutional Law, San Sebastian College-Recoletos, Manila, College of Law, and
Polytechnic University of the Philippines (PUP), Manila, College of Law; former professor of Constitutional Law,
New Ear University, College of Law, Quezon City; Bar Review Lecturer, Recoletos Review Center, Manila
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DISCUSSION OUTLINE

1. Fundamental framework of analysis:


When does a search or seizure violate the Constitution?

2. Is the search or seizure a government action?

3. Is the search or seizure unreasonable?

a. Unreasonable searches
Search without a warrant
Search under an invalid warrant
b. Reasonable searches: Valid warrantless searches
c. Other reasonable searches

4. What are the legal consequences of the unlawful search or seizure?

I.

FUNDAMENTAL FRAMEWORK OF ANALYSIS:


WHEN DOES A SEARCH OR SEIZURE
VIOLATE THE CONSTITUTION?

Basic requirements for the constitutional prohibition to apply

The search or seizure violates the prohibition under Section 2, Article III of the 1987
Constitution, if it is:

1. a government or state action; and

2. unreasonable

Requirement No.1: Government/State action

The search or seizure must be an action by the government or state, otherwise the
Constitutional prohibition against unreasonable searches and seizures and the exclusionary
rule will not apply. 3 The protection is against transgression committed by the government

3 People v. Bangcarawan, 384 SCRA 525, 11 July 2002; People v. Marti, 193 SCRA 57, 18 January 1991
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or its agent. In the absence of governmental interference, liberties guaranteed by the


Constitution cannot be invoked against the State. 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. 4

The protection against unreasonable searches and seizures proscribes only


governmental action. It is wholly inapplicable to a search or seizure, even an
unreasonable one, effected by a private individual not acting as an agent of the Government
or with the participation or knowledge of any governmental official." 5

Reason: 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. It could only be invoked against the State. 6 This is because Bill of
Rights governs the relationship between the individual and the state, and not the relation
between private individuals. 7

Requirement No. 2: The search or seizure is unreasonable

Reasonableness is the touchstone of the validity of a government search or


intrusion.8

This constitutional guarantee is not a blanket prohibition against all searches and
seizures as it operates only against unreasonable searches and seizures. The plain
import of the language of the Constitution, which in one sentence prohibits unreasonable
searches and seizures and at the same time prescribes the requisites for a valid warrant, is
that searches and seizures are normally unreasonable unless authorized by a validly issued
search warrant or warrant of arrest. Thus, the fundamental protection accorded by the
search and seizure clause is that between person and police must stand the protective
authority of a magistrate clothed with power to issue or refuse to issue search warrants or
warrants of arrest.9

The constitutional guarantee is not a blanket prohibition against all searches and
seizures as it operates only against unreasonable searches and seizures. Searches and

4 People v. Bangcarawan, 384 SCRA 525, 11 July 2002; People v. Marti, 193 SCRA 57, 18 January 1991
5 United States v. Jacobsen, 466 U.S. 109 (1984). Note that in the United States, the State Action Doctrine was
originally applied to First Amendment rights (freedom of speeh, religion, association, assembly) and Fourteenth
Amendment rights (due process and equal protection).
6 People v. Bangcarawan, 384 SCRA 525, 11 July 2002; People v. Marti, 193 SCRA 57, 18 January 1991; see

also People v. Hipol, 407 SCRA 179, 22 July 2003


7 See People v. Marti 18, 193 SCRA 57 January 1991; People v. Mendoza, 301 SCRA 66, 18 January 1999;

Burdeau v. McDowell (256 US 465 (1921), State v. Bryan (457 P.2d 661 [1968]; Walker v. State (429 S.W.2d
121), Bernas v. US (373 F.2d 517)
8 Social Justice Society v. Dangerous Drugs Board, 570 SCRA 411, 03 November 2008
9 People v. Aruta, G.R. No. 120915. 03 April 1998
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seizures are as a rule unreasonable unless authorized by a validly issued search warrant or
warrant of arrest. 10

The constitutional guarantee is not a prohibition of all searches and seizures but only
of "unreasonable" searches and seizures. 11

Not all searches and seizures are prohibited. Those which are reasonable are not
forbidden. 12

The above Constitutional provisions do not prohibit searches and seizures, but only
such as are unreasonable. Our jurisprudence provides for privileged areas where searches
and seizures may lawfully be effected sans a search warrant.13

Reasonable searches and seizures are allowed

The Constitutional proscription against unreasonable searches and seizures does not,
of course, forestall reasonable searches and seizure. What constitutes a reasonable or even
an unreasonable search in any particular case is purely a judicial question, determinable
from a consideration of the circumstances involved. 14

II.

IS THE SEARCH OR SEIZURE


A GOVERNMENT ACTION?

Rule: 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, a search by a private
individual, without the intervention of the police, is not covered by the
constitutional prohibition.

That the Bill of Rights embodied in the Constitution is not meant to be invoked
against acts of private individuals finds support in the deliberations of the Constitutional
Commission. True, the liberties guaranteed by the fundamental law of the land must always
be subject to protection. But protection against whom? Commissioner Bernas in his
sponsorship speech in the Bill of Rights answers the query which he himself posed, as
follows:

10People v. Libnao, 395 SCRA 407, 20 January 2003


11 Pollo v. Constantino-David, G.R. No. 181881, October 18, 2011
12 Valmonte v. De Villa, 185 SCRA 665 (1990)
13 Salvador v. PeopleG.R. No. 146706. July 15, 2005
14 People v. Chua Ho San, 17 June 1999
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xxx The protection of fundamental liberties in the essence of constitutional


democracy. Protection against whom? Protection against the state. The Bill of Rights governs
the relationship between the individual and the state. Its concern is not the relation between
individuals, between a private individual and other individuals. What the Bill of Rights does is
to declare some forbidden zones in the private sphere inaccessible to any power holder.
(Sponsorship Speech of Commissioner Bernas , Record of the Constitutional Commission, Vol.
1, p. 674; July 17, 1986; Emphasis supplied)

The constitutional proscription against unlawful searches and seizures therefore


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 upon the request of law enforcers, a warrant must generally be
first secured if it is to pass the test of constitutionality. However, if the search is made at
the behest or initiative 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 search and seizure cannot be invoked for only the act of private
individual, not the 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.15

Thus, a search by a private individual, such as a private security guard, is


not covered by the constitutional prohibition.

If the search is made at the behest or initiative of the proprietor of a private


establishment for its own and private purposes, and without the intervention of police
authorities, the right against unreasonable search and seizure cannot be invoked. 16
Thus, in People v. Bangcarawan, 17the vessel security men searched the baggage of
the accused. It was only after they found the illegal drug inside the suitcase that they called
the Philippine Coast Guard for assistance. The Supreme Court ruled that the search and
seizure of the suitcase and the contraband items were carried out without government
intervention, and hence, the search did not come under the Constitutional prohibition, and
the seized illegal drug was deemed admissible as evidence.
In Castillo v. People, the government argued that, assuming that the items seized
were found in another place not designated in the search warrant, the same items should
still be admissible as evidence because the one who discovered them was a barangay tanod
who is a private individual, the constitutional guaranty against unreasonable searches and
seizure being applicable only against government authorities.

However, a search by agents of persons in authority, such as barangay


tanods, is covered by the Constitutional prohibition against unreasonable search
and seizure.

15 People v. Marti, 193 SCRA 5 7, 18 January 1991


16 People v. Marti, 193 SCRA 57, 18 January 1991
17 384 SCRA 525, 11 July 2002
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However, according to the Supreme Court, barangay tanods sought by the police
authorities who effect the searched warrant act as agents of persons in authority. The Local
Government Code also contains a provision which describes the function of a barangay
tanod as an agent of persons in authority. Thus, according to the Supreme Court, the
search conducted by such barangay tanods is covered by the Constitutional prohibition
against unreasonable search and seizure. 18

III.

IS THE SEARCH OR SEIZURE UNREASONABLE?

Reasonableness is the touchstone of the validity of a government search or


intrusion.19

This constitutional guarantee is not a blanket prohibition against all searches and
seizures as it operates only against unreasonable searches and seizures.20

A.
UNREASONABLE SEARCHES AND SEIZURES

1. Unreasonable: Searches and seizures without a warrant

Searches and seizures are as a rule unreasonable unless authorized by a validly


issued search warrant or warrant of arrest. Thus, the fundamental protection accorded by
the search and seizure clause is that between persons and police must stand the protective
authority of a magistrate clothed with power to issue or refuse to issue search warrants and
warrants of arrest.21

A search and seizure must be carried through or with a judicial warrant; otherwise,
such search and seizure becomes unreasonable. 22 Searches, seizures and arrests are
normally unreasonable unless authorized by a validly issued search warrant or warrant of
arrest. 23

18 Castillo v. People, G.R. No. 185128, January 30, 2012


19 Social Justice Society v. Dangerous Drugs Board, 570 SCRA 411, 03 November 2008
20 People v. Aruta, G.R. No. 120915. 03 April 1998
21 People v. Libnao, G.R. No. 136860. 20 January 2003
22 People v. Nuevas, 516 SCRA 463, 22 February 2007; People v. Compacion, 361 SCRA 540, 20 July 2001;

People v. Valdez, 345 SCRA 357, 25 September 2000; People v. Tudtud, 482 SCRA 142, 26 September 2003;
Pita v. Court of Appeals, 178 SCRA 362,05 October 1989; People v. Chua Ho San, 308 scra 432, 17 June 1999;
People v. Barros, 231 SCRA 557, 565
23 David v. Macapagal-Arroyo 489 SCRA 162, 03 May 2006
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As a general rule, a search and seizure must be carried through with judicial warrant,
otherwise, such search and seizure constitutes derogation of a constitutional right.24

No arrest, search and seizure can be made without a valid warrant issued by a
competent judicial authority. The Constitution guarantees the right of the people to be
secure in their persons, houses, papers and effects against unreasonable searches and
seizures. 25

The Constitution bars State intrusions to a person's body, personal effects or


residence except if conducted by virtue of a valid search warrant issued in compliance with
the procedure outlined in the Constitution and reiterated in the Rules of Court; otherwise
such search and seizure become unreasonable within the meaning of the aforementioned
constitutional provision. 26

2. Unreasonable: Searches and seizures under an invalid warrant

If the search warrant is null and void, the searches and seizures made therein are
illegal.27

The search warrant must strictly comply with the requirements of the Constitution
and the statutory provisions. Failure to comply with any requirement mandated by law for
the issuance of a search warrant renders such search warrant invalid, the subsequent
search unlawful, and evidence obtained therefrom inadmissible. 28

Requisites for a valid search warrant

(1) It must be issued upon probable cause;


(2) The probable cause must be determined by the judge himself and not by the
applicant or any other person;
(3) In the determination of probable cause, the judge must examine, under oath or
affirmation, the complainant and such witnesses as the latter may produce; and
(4) The warrant issued must particularly describe the place to be searched and
persons or things to be seized.29

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

24 Epie v. Ulat-Marredo, 518 SCRA 641


25 People v. Valdez, 03 March 1999
26 People v. Chua Ho San, 17 June 1999; People v. Barros 231 SCRA 557, 565
27 See Stonehill v. Diokno, 20 SCRA 383, 19 June 1967; Bache and Co., (Phil.) Inc. v. Ruiz, 37 SCRA 823, 27

February 1971
28 See People v. Mamaril 22, 420 SCRA 662, January 2004; PICOP v. Asuncion, 307 SCRA 253, 19 May 1999; See

also Asian Surety v. Herrera, 54 SCRA 312, 20 December 1973; Alvarez v. CFI Tayabas, 64 Phil 33, 29 January
1937; Burgos v. Chief of Staff, 133 SCRA 800, December 1984
29
Section 2, Article III, 1987 Constitution; Hon Ne Chan v. Honda Motor, 541 SCRA 249, 19 December 2007
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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. 30

Probable cause for a search warrant: Defined

The existence of 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 to be searched. 31

Probable cause: How determined

To be determined personally by the judge after examination under oath or


affirmation of the complainant and his witnesses he may produce. 32

Probable cause: Personal knowledge required

Absent the element of personal knowledge by the applicant or his witnesses of the
facts upon which the issuance of a search warrant may be justified, the warrant is deemed
not based on probable cause and is a nullity, its issuance being, in legal contemplation,
arbitrary.33

Search warrant does not justify search & seizure of any evidence

A search warrant is not a sweeping authority for a fishing expedition to seize and
confiscate any and all kinds of evidence or articles relating to a crime. Nothing should be
left to the discretion of the officer executing the warrant. 34

Test of particularity of description


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; 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. (Emphases supplied) 35
A search warrant fulfills the requirement of particularity in the description of the
things to be seized when the things described are limited to those that bear a direct
relation to the offense for which the warrant is being issued. (Emphases supplied) 36

30 Section 4, Rule 126, Rules of Court


31 Sony Music v. Espanol, et al., 453 SCRA 360, 14 March 2005; Nala v. Barroso, 408 SCRA 529, 07 August 2003;
Santos v. Pryce Gases, 538 SCRA 474, 23 November 2007
32 Section 2, Article III, 1987 Constitution
33 Sony Music v. Espanol, et al., 453 SCRA 360, 14 March 2005)
34 Unilab. Isip, 461 SCRA 575, 28 June 2005; People v. Francisco, 387 SCRA 569, 22 August 2002
35 Bache and Co., (Phil.) Inc. v. Ruiz, 37 SCRA 823, 27 February 1971; Columbia pictures versus court of Appeals,

262 SCRA 219, 20 September 1996; Uy v. BIR, 345 SCRA 36, 20 October 2000)
36 World Wide Web Cororation v, People, G.R. No. 161106, January 13, 2014
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A general warrant is defined as "(a) search or arrest warrant that is not particular as
to the person to be arrested or the property to be seized." It is one that allows the "seizure
of one thing under a warrant describing another" and gives the officer executing the
warrant the discretion over which items to take.37
Such discretion is abhorrent, as it makes the person, against whom the warrant is
issued, vulnerable to abuses. Our Constitution guarantees our right against unreasonable
searches and seizures, and safeguards have been put in place to ensure that people and
their properties are searched only for the most compelling and lawful reasons. 38
The warrant is valid when it enables the police officers to readily identify the
properties to be seized and leaves them with no discretion regarding the articles to be
seized. 39

Search in a place other than that described in the warrant is invalid


The warrant issued must particularly describe the place to be searched and persons
or things to be seized in order for it to be valid. A designation or description that points out
the place to be searched to the exclusion of all others, and on inquiry unerringly leads the
peace officers to it, satisfies the constitutional requirement of definiteness. In the present
case, Search Warrant No. 570-9-1197-2420 specifically designates or describes the
residence of the petitioner as the place to be searched. Incidentally, the items were seized
by a barangay tanod in a nipa hut, 20 meters away from the residence of the petitioner.
The confiscated items, having been found in a place other than the one described in the
search warrant, can be considered as fruits of an invalid warrantless search, the
presentation of which as an evidence is a violation of petitioner's constitutional guaranty
against unreasonable searches and seizure.40

Search warrant must be in connection with one particular offense


Sections 3 and 4, Rule 126 of the Rules of Court, amplify the rules regarding the
following places and items to be searched under a search warrant:

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 witnesses he may produce, and particularly describing the place to be searched and the

37 World Wide Web Cororation v, People, G.R. No. 161106, January 13, 2014
38 World Wide Web Cororation v, People, G.R. No. 161106, January 13, 2014
39 World Wide Web Cororation v, People, G.R. No. 161106, January 13, 2014
40 Castillo v. People, G.R. No. 185128, January 30, 2012
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things to be seized which may be anywhere in the Philippines. 41

B.
REASONABLE SEARCHES & SEIZURES

GENERAL RULE:

A search or seizure by the government without a judicial warrant is illegal.

EXCEPTIONS:

Valid warrantless searches

The Constitutional proscription against unreasonable searches and seizures does not
forestall reasonable searches and seizure. What constitutes a reasonable or even an
unreasonable search in any particular case is purely a judicial question, determinable from a
consideration of the circumstances involved. 42

In the following instances, the search is reasonable even without a warrant:

(1) search incident to a lawful arrest;

(2) search of a moving motor vehicle;

(3) search in violation of customs laws;

(4) seizure of evidence in plain view;

(5) search when the accused himself waives his right against unreasonable
searches and seizures (consented search);

(6) stop and frisk (Terry search); and

(7) search arising from exigent and emergency circumstances.43

In Valeroso v. Court of Appeals, Supreme Court Justice Nachura, included


search of vessels and aircraft; and inspection of buildings and other premises for the

41 World Wide Web Cororation v, People, G.R. No. 161106, January 13, 2014
42 People v. Chua Ho San, 308 SCRA 432, 17 June 1999
43 People v. Tudtud, 412 SCRA 427, 26 September 2006; Epie v. Ulat-Marredo, 518 SCRA 641, 22 March 2007;

People v. Sarap 399 SCRA 503, March 26, 2003; People v. Nuevas, 516 SCRA 463, 22 February 2007; People v.
Valdez, 304 SCRA 140, 03 March 1999; People v. Mariacos, G.R. No. 188611, June 16, 2010)
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enforcement of fire, sanitary and building regulations, in the enumeration of valid


warrantless searches.44

VALID WARRANTLESS SEARCHES & SEIZURES:


A CLOSER LOOK

(1) Search incident to a lawful arrest


Purpose of the search

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. 45

There must first be a valid arrest before a search

The law requires that there first be a valid arrest before a search can be madethe
process cannot be reversed. 46

Limits to a search incidental to a lawful arrest

As to Area: Immediate Control Test

The seizure of evidence or dangerous weapons must be either on the person of the
one arrested or within the area of his immediate control. The phrase within the area of
his immediate control means the area from within which he might gain possession of a
weapon or destructible evidence. 47

Should be limited to the area within which the person to be arrested can reach for a
weapon or for evidence that he or she can destroy. 48

As to Subject

The things that may be seized from him are limited to "dangerous weapons" or
"anything which may be used as proof of the commission of the offense." 49

A gun on a table or in a drawer in front of one who is arrested can be as dangerous


to the arresting officer as one concealed in the clothing of the person arrested. 50

44 Valeroso v. Court of Appeals, G.R. No. 164815, September 3, 2009


45 Section 12, Rule 126 of the Revised Rules of Criminal Procedure; People v. Che Chun Ting, 328 SCRA 592, 21
March 2000
46 People v. Binad Sy Chua, 396 SCRA 657, 04 February 2003; People v. Molina, 352 SCRA 174, 19 February

2001
47 Valeroso v. Court of Appeals, 3 September 2009, G.R. No. 16481; People v. Cubcubin, 360 SCRA 690, 10 July 2001
48 People v. Estella, 395 SCRA 553, 21 January 2003
49 People v. Che Chun Ting, 328 SCRA 592, 21 March 2000
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As to Time

The search must be contemporaneous with the lawful arrest. The search must be
conducted at about the time of the arrest or immediately thereafter and only at the place
where the suspect was arrested, or the premises or surroundings under his immediate
control. 51

However, the Supreme Court has held that a search substantially


contemporaneous with an arrest can precede the arrest if the police has
probable cause to make the arrest at the outset of the search. 52

When is there a lawful arrest?

Section 5, Rule 113 of the Revised Rules of Criminal Procedure lays down the
basic rules on lawful warrantless arrests, either by a peace officer or a private person,
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 just been committed and he has probable cause to believe
based on personal knowledge of facts or circumstances 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 is temporarily confined while his
case is pending, or has escaped while being transferred from one confinement to another.

xxx

For the warrantless arrest under paragraph (a) of Section 5 to operate, two
elements must concur: (1) the 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 (2) such overt act is done in the presence or within the view of
the arresting officer. On the other hand, paragraph (b) of Section 5 requires for its
application that at the time of the arrest, an offense had in fact just been committed
and the arresting officer had personal knowledge of facts indicating that the appellant
had committed it.

In both instances, the officers personal knowledge of the fact of the commission
of an offense is absolutely required. Under paragraph (a), the officer himself

50 Valeroso v. Court of Appeals, 3 September 2009, G.R. No. 16481; People v. Estella, 395 SCRA 553, 21 January 2003
51People v. Che Chun Ting, 328 SCRA 592, 21 March 2000
52 People v. Mariacos, G.R. No. 188611, June 16, 2010; People v. Nuevas, G.R. No. 170233, February 22, 2007,

516 SCRA 463


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witnesses the crime while under paragraph (b), he knows for a fact that a crime has
just been committed.53

A warrantless arrest under the circumstances contemplated under Section 5(a)


above has been denominated as one "in flagrante delicto," while that under Section
5(b) has been described as a "hot pursuit" arrest.54

Requirements for a valid in flagrante delicto arrest: 1) overt act; and 2)


such overt act is done in the presence or within the view of the arresting
officer.

A settled exception to the right guaranteed by the above-stated provision is that


of an arrest made during the commission of a crime, which does not require a
previously issued warrant. Such warrantless arrest is considered reasonable and valid
under Section 5 (a), Rule 113 of the Revised Rules on Criminal Procedure, to wit:

Sec. 5. Arrest without warrant; when lawful. A peace office of 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;

For the exception in Section 5 (a), Rule 113 to operate, this Court has ruled that
two (2) elements must be present: (1) the 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 (2) such overt act is done in the presence or within
the view of the arresting officer. (Emphasis supplied) 55

For the warrantless arrest under paragraph (a) of Section 5 to operate, two
elements must concur: (1) the 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 (2) such overt act is done in the presence or within the view of
the arresting officer. On the other hand, paragraph (b) of Section 5 requires for its
application that at the time of the arrest, an offense had in fact just been committed
and the arresting officer had personal knowledge of facts indicating that the appellant
had committed it.

In both instances, the officers personal knowledge of the fact of the commission
of an offense is absolutely required. Under paragraph (a), the officer himself
witnesses the crime while under paragraph (b), he knows for a fact that a crime has
just been committed. (Emphasis supplied) 56

53 People v. Villareal, G.R. No. 201363, March 18, 2013


54 Pestilos v. Generoso and People, G.R. No. 182601, November 10, 2014
55 Miclat v. People, G.R. No. 176077, August 31, 2011
56 People v. Villareal, G.R. No. 201363, March 18, 2013
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Reliable information alone is not enough to justify a warrantless arrest


without an overt act

The long standing rule in this jurisdiction is that "reliable information" alone is
not sufficient to justify a warrantless arrest. The rule requires, in addition, that the
accused perform some overt act that would indicate that he has committed, is actually
committing, or is attempting to commit an offense. 57

A motorist flagged down by the police for a traffic violation is not


necessarily arrested to justify a search

First, there was no valid arrest of petitioner. When he was flagged down for
committing a traffic violation, he was not, ipso facto and solely for this reason,
arrested.

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.

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.

At the time that he was waiting for PO3 Alteza to write his citation ticket,
petitioner could not be said to have been "under arrest." There was no intention on
the part of PO3 Alteza to arrest him, deprive him of his liberty, or take him into
custody. Prior to the issuance of the ticket, the period during which petitioner was at
the police station may be characterized merely as waiting time. In fact, as found by
the trial court, PO3 Alteza himself testified that the only reason they went to the police
sub-station was that petitioner had been flagged down "almost in front" of that place.
Hence, it was only for the sake of convenience that they were waiting there. There
was no intention to take petitioner into custody. 58

Requirements for a hot pursuit arrest: 1) the crime should have been
just committed; and 2) the arresting officer's exercise of discretion is
limited by the standard of probable cause to be determined from the facts
and circumstances within his personal knowledge

The clincher in the element of ''personal knowledge of facts or circumstances"


is the required element of immediacy within which these facts or circumstances should

57 People v. Racho, G.R. No. 186529, August 3, 2010


58 Luz v. People, G.R. No. 197788, February 29, 2012
P a g e | 15

be gathered. This required time element acts as a safeguard to ensure that the police
officers have gathered the facts or perceived the circumstances within a very limited
time frame. This guarantees that the police officers would have no time to base their
probable cause finding on facts or circumstances obtained after an exhaustive
investigation.

The reason for the element of the immediacy is this - as the time gap from the
commission of the crime to the arrest widens, the pieces of information gathered are
prone to become contaminated and subjected to external factors, interpretations and
hearsay. On the other hand, with the element of immediacy imposed under Section
5(b), Rule 113 of the Revised Rules of Criminal Procedure, the police officer's
determination of probable cause would necessarily be limited to raw or
uncontaminated facts or circumstances, gathered as they were within a very limited
period of time. The same provision adds another safeguard with the requirement of
probable cause as the standard for evaluating these facts of circumstances before the
police officer could effect a valid warrantless arrest.59

In light of the discussion above on the developments of Section 5(b), Rule 113
of the Revised Rules of Criminal Procedure and our jurisprudence on the matter, we
hold that the following must be present for a valid warrantless arrest: 1) the crime
should have been just committed; and 2) the arresting officer's exercise of discretion
is limited by the standard of probable cause to be determined from the facts and
circumstances within his personal knowledge. The requirement of the existence of
probable cause objectifies the reasonableness of the warrantless arrest for purposes
of compliance with the Constitutional mandate against unreasonable arrests.60

In a hot pursuit arrest, police presence at the scene while the crime
was being committed is not required.

In determining the reasonableness of the warrantless arrests, it is incumbent


upon the courts to consider if the police officers have complied with the requirements
set under Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure,
specifically, the requirement of immediacy; the police officer's personal knowledge of
facts or circumstances; and lastly, the propriety of the determination of probable
cause that the person sought to be arrested committed the crime.

To reiterate, personal knowledge of a crime just committed under the terms of


the above-cited provision, does not require actual presence at the scene while a crime
was being committed; it is enough that evidence of the recent commission of the
crime is patent (as in this case) and the police officer has probable cause to believe
based on personal knowledge of facts or circumstances, that the person to be
arrested has recently committed the crime.61

59 Pestilos v. Generoso and People, G.R. No. 182601, November 10, 2014
60 Pestilos v. Generoso and People, G.R. No. 182601, November 10, 2014
61 Pestilos v. Generoso and People, G.R. No. 182601, November 10, 2014
P a g e | 16

Examples of valid and invalid hot pursuit arrests

In Pestilos v. Generoso and People, G.R. No. 182601, November 10, 2014, the
Supreme Court summarized illustrative rulings on hot pursuit arrests, thus:

We deem it necessary to combine the discussions of these two elements as our


jurisprudence shows that these were usually taken together in the Court's determination of
the validity of the warrantless arrests that were made pursuant to Section 5(b), Rule 113 of
the Revised Rules of Criminal Procedure.

In Posadas v. Ombudsman, the killing of Dennis Venturina happened on December 8,


1994. It was only on December 11, 1994 that Chancellor Posadas requested the NBI's
assistance. On the basis of the supposed identification of two (2) witnesses, the NBI
attempted to arrest Francis Carlo Taparan and Raymundo Narag three (3) days after the
commission of the crime. With this set of facts, it cannot be said that the officers have
personal knowledge of facts or circumstances that the persons sought to be arrested
committed the crime. Hence, the Court invalidated the warrantless arrest.

Similarly, in People v. Burgos, one Cesar Masamlok personally and voluntarily


surrendered to the authorities, stating that Ruben Burgos forcibly recruited him to become a
member of the NPA, with a threat of physical harm. Upon receipt of this information, a joint
team of PC-INP units was dispatched to arrest Burgos who was then plowing the field.
Indeed, the arrest was invalid considering that the only information that the police officers
had in effecting the arrest was the information from a third person. It cannot be also said in
this case that there was certainty as regards the commission of a crime.

In People v. del Rosario, the Court held that the requirement that an offense has just
been committed means that there must be a large measure of immediacy between the time
the offense was committed and the time of the arrest. If there was an appreciable lapse of
time between the arrest and the commission of the crime, a warrant of arrest must be
secured.

The Court held that the arrest of del Rosario did not comply with these requirements
because he was arrested only a day after the commission of the crime and not immediately
thereafter. Additionally, the arresting officers were not present and were not actual
eyewitnesses to the crime. Hence, they had no personal knowledge of facts indicating that
the person to be arrested had committed the offense. They became aware of del Rosario's
identity as the driver of the getaway tricycle only during the custodial investigation.

In People v. Cendana, the accused was arrested one (1) day after the killing of the
victim and only on the basis of information obtained from unnamed sources. The unlawful
arrest was held invalid.

In Rolito Go v. CA, the arrest of the accused six (6) days after the commission of the
crime was held invalid because the crime had not just been committed. Moreover, the
"arresting" officers had no "personal knowledge" of facts indicating that the accused was the
gunman who had shot the victim. The information upon which the police acted came from
statements made by alleged eyewitnesses to the shooting; one stated that the accused was
the gunman; another was able to take down the alleged gunman's car's plate number which
turned out to be registered in the name of the accused's wife. That information did not
constitute "personal knowledge."
P a g e | 17

In People v. Tonog, Jr., the warrantless arrest which was done on the same day was
held valid. In this case, the arresting officer had knowledge of facts which he personally
gathered in the course of his investigation, indicating that the accused was one of the
perpetrators.

In People v. Gerente, the policemen arrested Gerente only about three (3) hours
after Gerente and his companions had killed the victim. The Court held that the policemen
had personal knowledge of the violent death of the victim and of facts indicating that Gerente
and two others had killed him. The warrantless arrest was held valid.

In People v. Alvario, the warrantless arrest came immediately after the arresting
officers received information from the victim of the crime. The Court held that the personal
knowledge of the arresting officers was derived from the information supplied by the victim
herself who pointed to Alvario as the man who raped her at the time of his arrest. The Court
upheld the warrantless arrest. In People v. Jayson, there was a shooting incident. The
policemen who were summoned to the scene of the crime found the victim. The informants
pointed to the accused as the assailant only moments after the shooting. The Court held that
the arresting officers acted on the basis of personal knowledge of the death of the victim and
of facts indicating that the accused was the assailant. Thus, the warrantless arrest was held
valid.

In People v. Acol, a group held up the passengers in a jeepney and the policemen
immediately responded to the report of the crime. One of the victims saw four persons
walking towards Fort Bonifacio, one of whom was wearing his jacket. The victim pointed
them to the policemen. When the group saw the policemen coming, they ran in different
directions. The Court held that the arrest was valid.

In Cadua v. CA, there was an initial report to the police concerning a robbery. A radio
dispatch was then given to the arresting officers, who proceeded to Alden Street to verify the
authenticity of the radio message. When they reached the place, they met with the
complainants who initiated the report about the robbery. Upon the officers' invitation, the
victims joined them in conducting a search of the nearby area where the accused was
spotted in the vicinity. Based on the reported statements of the complainants, he was
identified as a logical suspect in the offense just committed. Hence, the arrest was held valid.

In Doria, the Court held that Section 5 (b), Rule 113 of the 1985 Rules of Criminal
Procedure does not require the arresting officers to personally witness the commission of the
offense.

In this case, P/Supt. Doria alleged that his office received a telephone call from a
relative of Rosa Sia about a shooting incident. He dispatched a team headed by SP03
Ramirez to investigate the incident. SP03 Ramirez later reported that a certain William Sia
was wounded while Judge Abelita III, who was implicated in the incident, and his wife just
left the place of the incident. P/Supt. Doria looked for Abelita III and when he found him, he
informed him of the incident report. P/Supt. Doria requested Abelita III to go with him to the
police headquarters as he had been reported to be involved in the incident. Abelita III agreed
but suddenly sped up his vehicle and proceeded to his residence where P/Supt. Doria caught
him up as he was about to run towards his house.

The police officers saw a gun in the front seat of the vehicle beside the driver's seat
as Abelita III opened the door. They also saw a shotgun at the back of the driver's seat. The
police officers confiscated the firearms and arrested Abelita III. The Court held that the
P a g e | 18

petitioner's act of trying to get away, coupled with the incident report which they
investigated, were enough to raise a reasonable suspicion on the part of the police
authorities as to the existence of probable cause.62

(2) Search of a moving motor vehicle


Routine car inspection: Valid even without probable cause

Routine inspections of motor vehicles are normally permissible in the following


instances: (1) where the officer merely draws aside the curtain of a vacant vehicle which is
parked on the public fair ground; (2) simply looks into a vehicle; (3) flashes a light therein
without opening the car's doors; (4) where the occupants are not subjected to a physical or
body search; (5) where the inspection of the vehicles is limited to a visual search or visual
inspection; and (6) where the routine check is conducted in a fixed area.63

Visual search: Probable cause not required

When there is no probable cause, peace officers are limited to routine checks where
the examination of the vehicle is limited to visual inspection. 64

Extensive search: Probable cause required

When a vehicle is stopped and subjected to an extensive search, such would be


constitutionally permissible only if the officers made it upon probable cause, i.e., upon a
belief, reasonably arising out of circumstances known to the seizing officer, that an
automobile or other vehicle contains as item, article or object which by law is subject to
seizure and destruction, 65 or instrumentality or evidence pertaining to a crime, in the
vehicle to be searched. 66

Extensive search must be done only when it is not practicable to secure a


warrant

Warrantless search of a moving vehicle is allowed only when it is not practicable to


secure a warrant because the vehicle can be quickly moved out of the area or jurisdiction in
which the warrant must be sought. 67

Search of moving vehicle principle applies to fishing vessels and boats

Search and seizure without search warrant of vessels and aircrafts for violations of
customs laws have been the traditional exception to the constitutional requirement of a

62 Pestilos v. Generoso and People, G.R. No. 182601, November 10, 2014
63 Caballes v. Court of Appeals, 15 January 2002
64 People v. Libnao, 325 SCRA 407, 20 January 2003
65 People v. Libnao, 325 SCRA 407, 20 January 2003
66 People v. Lapitaje, 392 SCRA 674, 19 February 2003
67 People v. Lapitaje, 392 SCRA 674, 19 February 2003
P a g e | 19

search warrant. It is rooted on the recognition that a vessel and an aircraft, like motor
vehicles, can be quickly moved out of the locality or jurisdiction in which the search warrant
must be sought and secured. The same exception ought to apply to seizures of fishing
vessels and boats breaching fishery laws. 68

(3) Search in violation of customs laws


Enforcers of customs and tariff laws are authorized to effect searches, seizures, and
arrests, and to make seizure, among others, of any cargo, articles or other movable
property when the same may be subject to forfeiture or liable for any fine imposed under
customs and tariff laws. They could lawfully open and examine any box, trunk, envelope or
other container wherever found when he had reasonable cause to suspect the
presence therein of dutiable articles introduced into the Philippines contrary to law; and
likewise to stop, search and examine any vehicle, beast or person reasonably suspected
of holding or conveying such articles.

Based on Section 2203 of the Tariff and Customs Code, except in the case of the
search of a dwelling house, persons exercising police authority under the customs law may
effect search and seizure without a search warrant in the enforcement of customs laws. 69

(4) Seizure of evidence in plain view (plain view


doctrine)
Under the plain view doctrine, objects failing in plain view of an officer who has a
right to be in that position to have that view are subject to seizure even without a search
warrant and may be introduced in evidence. 70

Elements of a valid seizure of evidence in plain view

(a) A prior valid intrusion in which the police are legally present in the pursuit of
their official duties;
(b) The evidence was inadvertently discovered by the police who have the right to
be where they are;
(c) The evidence must be immediately apparent;
(d) Plain view justified mere seizure of evidence without further search. 71

Evidence in plain view may be seized, although not described in the search
warrant 72

68 Hizon v. CA, 265 SCRA 517, 13 December 1996


69 Papa v. Mago, 22 SCRA 257, 28 February 1968; see also Salvador v, People, 463 SCRA 489, 15 July 2005
70 Abelita v. Doria, 14 August 2009; People v. Doria, 301 SCRA 668,22 January 1999; People v. Lagman, 573
SCRA 225, 08 December 2008
71 People v. Nuevas, 576 SCRA 463; 22 February 2007; People v. Compacion, 361 SCRA 540, 20 July 2001
72 Unilab v. Isip, 461 SCRA 575, 28 June 2005
P a g e | 20

Meaning of immediately apparent

At the time of the discovery of the object or facts or at the moment of seizure, the
officer has probable cause to connect the object to criminal activity. 73

Meaning of inadvertence

The officer must not have known in advance of the location of the evidence and
intend to seize it. Discovery is not anticipated. 74

(5) Search when the accused himself waives his right


against unreasonable searches and seizures (consented
search)
The right against unreasonable searches and seizures is a personal right which may
be waived expressly or impliedly. 75

Consent must be unequivocal, specific and intelligently given

The consent to the search must be voluntary, unequivocal, specific, and intelligently
given, uncontaminated by any duress or coercion. The consent to a search must be shown
by clear and convincing evidence. 76

Requisites for a valid waiver

In case of consented searches or waiver of the constitutional guarantee against


obtrusive searches, it must first appear that (1) the right exists; (2) the person involved had
knowledge, either actual or constructive, of the existence of such right; and (3) the said
person had an actual intention to relinquish the right. 77

Peaceful submission is not consent

Peaceful submission to a search or seizure is not a consent or an invitation thereto,


but is merely a demonstration of regard for the supremacy of the law. 78 The accused is not
to be presumed to have waived the unlawful search simply because he failed to object. 79

The presumption is against waiver of constitutional right. 80

73 Unilab v. Isip, 461 SCRA 575, 28 June 2005


74 Unilab v. Isip, 461 SCRA 575, 28 June 2005
75 People v. Cubcubin, 360 SCRA 690, 10 July 2001
76 People v. Nuevas 22 February 2007, 576 SCRA 463
77People v. Nuevas, 576 SCRA 463, 22 February 2007
78 People v. Nuevas, 576 SCRA 463, 22 February 2007; People v. Comnpacion, 361 SCRA 540, 20 July 2009
79 People v. Burgos, 144 SCRA 1; People v. Compacion, 361 SCRA 540, 20 July 2001
P a g e | 21

(6) Stop and frisk (Terry search)


Scope

Limited protective search of outer clothing for weapons. 81

When stop and frisk is valid

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 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. 82

Mere suspicion is not enough for a stop-and-frisk; there must be


genuine reason to believe that the person has a concealed weapon

Mere suspicion or a hunch will not validate a stop-and-frisk. A genuine reason


must exist, in light of the police officers experience and surrounding conditions, to warrant
the belief that the person detained has weapons concealed about him. 83

(7) Search arising from exigent and emergency


circumstances
In People v. De Gracia (233 SCRA 716, [1994]), there were intelligence reports that
the building was being used as headquarters by the military rebels during a coup detat. A
surveillance team was fired at by a group of armed men coming out of the building and the
occupants of said building refused to open the door despite repeated requests. There were
large quantities of explosives and ammunitions inside the building. Nearby courts were
closed and general chaos and disorder prevailed. The existing circumstances sufficiently
showed that a crime was being committed. In short, there was probable cause to effect a
warrantless search of the building. 84

80 People v. Burgos 144 SCRA 1, 1986; People v. Compacion, 361 SCRA 540, 20 July 2001; People v. Aruta 288
SCRA 626
81 People v. Binad Sy Chua, 396 SCRA 657, 04 February 2003; Malacat v. People, 283 SCRA 159, 12 December

1997
82 People v. Binad Sy Chua, 396 SCRA 657, 04 February 2003; Malacat v. People, 283 SCRA 159, 12 December

1997
83 People v. Binad Sy Chua, 396 SCRA 657, 04 February 2003; Malacat v. People, 283 SCRA 159, 12 December

1997
84 also cited in People v. Aruta, 288 SCRA 626, 03 April 1998
P a g e | 22

C.
OTHER REASONABLE SEARCHES
& SEIZURES

Other warrantless searches that are reasonable and valid based on statutes and
recent jurisprudence:

a) Searches of vessels and aircraft

In People v. Agulay 85 , the Supreme Court enumerated other instances of valid


warrantless searches, specifically:

searches of vessels and aircraft for violation of immigration, customs and


drug laws;
searches of automobiles at borders or constructive borders; and
searches of buildings and premises to enforce fire, sanitary, and building
regulations.

b) Immigration search

Under Section 6 of Commonwealth Act 613 or the Philippine Immigration Act as


amended, immigration inspectors are empowered to go aboard and search for aliens on any
vessel or other conveyance in which they believe aliens are being brought into the
Philippines.

c) Routine airport security search of departing passengers at airports

In People v. Johnston, the Supreme Court also held valid a warrantless search
pursuant to routine airport security procedure, which is authorized under Section 9 of
Republic Act No. 6235. 86
Search conducted on the departing passengers at airports are reasonable because
the passengers should expect lesser privacy at airports, or they have reduced privacy
expectation. The Supreme Court explained, thus:

Persons may lose the protection of the search and seizure clause by exposure of
their persons or property to the public in a manner reflecting a lack of subjective
expectation of privacy, which expectation society is prepared to recognize as
reasonable. Such recognition is implicit in airport security procedures. With increased
concern over airplane hijacking and terrorism has come increased security at the nations
airports. Passengers attempting to board an aircraft routinely pass through metal detectors;

85 26 September 2008
86 People v. Johnston 348 SCRA 526; People v. Macalaba 20 January 2003
P a g e | 23

their carry-on baggage as well as checked luggage are routinely subjected to x-ray
scans. Should these procedures suggest the presence of suspicious objects, physical
searches are conducted to determine what the objects are. There is little question that
such searches are reasonable, given their minimal intrusiveness, the gravity of
the safety interests involved, and the reduced privacy expectations associated
with airline travel. Indeed, travelers are often notified through airport public address
systems, signs and notices in their airline tickets that they are subject to search and, if any
prohibited materials or substances are found, such would be subject to seizure. These
announcements place passengers on notice that ordinary constitutional protections against
warrantless searches and seizures do not apply to routine airport procedures. 87

d) Warrantless search by the government agency of the office computer


of its own employee in connection with an investigation

Squarely raised by the petitioner is the legality of the search conducted on his office
computer and the copying of his personal files without his knowledge and consent, alleged
as a transgression on his constitutional right to privacy. x x x

The search of petitioners computer files was conducted in connection with


investigation of work-related misconduct prompted by an anonymous letter-complaint. x x x
A search by a government employer of an employees office is justified at inception when
there are reasonable grounds for suspecting that it will turn up evidence that the employee
is guilty of work-related misconduct.

Under the facts obtaining, the search conducted on petitioners computer was
justified at its inception and scope. We quote with approval the CSCs discussion on the
reasonableness of its actions:

Even conceding for a moment that there is no such administrative


policy, there is no doubt in the mind of the Commission that the search of
Pollos computer has successfully passed the test of reasonableness for
warrantless searches in the workplace as enunciated in the above-discussed
American authorities. It bears emphasis that the Commission pursued the
search in its capacity as a government employer and that it was undertaken
in connection with an investigation involving a work-related misconduct, one
of the circumstances exempted from the warrant requirement.

Worthy to mention, too, is the fact that the Commission effected the
warrantless search in an open and transparent manner. Officials and some
employees of the regional office, who happened to be in the vicinity, were
on hand to observe the process until its completion. In addition, the
respondent himself was duly notified, through text messaging, of the search
and the concomitant retrieval of files from his computer.

87People v. Canton, G.R. No. 148825, 27 December 2002; People v. Johnston, G.R. No. 138881, December 18,
2000, 348 SCRA 526; People v. Suzuki, G.R. No. 120670, 23 October 2003
P a g e | 24

All in all, the Commission is convinced that the warrantless search


done on computer assigned to Pollo was not, in any way, vitiated with
unconstitutionality. It was a reasonable exercise of the managerial
prerogative of the Commission as an employer aimed at ensuring its
operational effectiveness and efficiency by going after the work-related
misfeasance of its employees. Consequently, the evidence derived from the
questioned search are deemed admissible.88

e) Mandatory, random and suspicionless drug-testing for secondary and


tertiary level students to stamp out drug abuse.

The search is reasonable and thus constitutional.

First, schools and their administrators stand in loco parentis with respect to their
students. Second, minor students have contextually fewer rights than an adult, and are
subject to the custody and supervision of their parents, guardians, and schools. Third,
schools, acting in loco parentis, have a duty to safeguard the health and well - being of their
students and may adopt such measures as may reasonably be necessary to discharge such
duty. Fourth, schools have the right to impose conditions on applicants for admission that
are fair, just, and non-discriminatory.

Thus, the law requiring mandatory, random, and suspicionless drug testing of
students is constitutional. Indeed, it is within the prerogative of educational institutions to
require, as a condition for admission, compliance with reasonable school rules and
regulations and policies. To be sure, the right to enroll is not absolute; it is subject to fair,
reasonable, and equitable requirements.89

f) Mandatory, random and suspicionless drug-testing for employees in


the private and public sector, to stamp out drug abuse.

The search is reasonable, and thus constitutional.

The employees' privacy interest in an office is limited by the company's work


policies, the collective bargaining agreement, and the inherent right of the employer to
maintain discipline and efficiency in the workplace. Their privacy expectation in a regulated
office environment is, in fine, reduced.

Moreover, the intrusion into privacy of a mandatory, random and suspicionless drug-
testing for employees is "narrowly drawn" or "narrowly focused."

The need for drug testing to at least minimize illegal drug use is substantial enough
to override the individual's privacy interest under the premises.

Like their counterparts in the private sector, government officials and employees also
labor under reasonable supervision and restrictions imposed by the Civil Service law and

88 Pollo v. Constantino-David, G.R. No. 181881, October 18, 2011


89 Social Justice Society v. Dangerous Drugs Board, G.R. No. 157870, November 3, 2008
P a g e | 25

other laws on public officers, all enacted to promote a high standard of ethics in the public
service. Thus, the law requiring random, mandatory and suspicionless drug-testing for civil
servants is also valid, as the latter, by constitutional command, are required to be
accountable at all times to the people and to serve them with utmost responsibility and
efficiency.90

Probable cause:
The basic requirement in all warrantless searches?

In People v Aruta 91 , the Supreme Court declared that the essential requisite of
probable cause must still be satisfied before a warrantless search and seizure can be
lawfully conducted. In searches and seizures effected without a warrant, it is necessary for
probable cause to be present.

(NOTE: The author submits that this pronouncement is legally tenuous. Note that
probable cause is not required for valid Terry searches, consented searches and routine
searches on departing passengers at airports.) 92

Illustrative examples of warrantless search that were declared valid due


to the existence of probable cause

In People v. Libnao 93 , the Supreme Court summarized earlier decisions where it


found probable cause:
(a) where the distinctive odor of marijuana emanated from the plastic bag carried by
the accused; 94
(b) where an informer positively identified the accused who was observed to be
acting suspiciously;95
(c) where the accused who were riding a jeepney were stopped and searched by
policemen who had earlier received confidential reports that said accused would transport a
quantity of marijuana;96
(d) where Narcom agents had received information that a Caucasian coming from
Sagada, Mountain Province had in his possession prohibited drugs and when the Narcom
agents confronted the accused Caucasian because of a conspicuous bulge in his waistline,

90 Social Justice Society v. Dangerous Drugs Board, G.R. No. 157870, November 3, 2008
91 G.R. No. 120915. 03 April 1998
92 Malacat v. People, 283 SCRA 159, 12 December 1997; People v. Canton, G.R. No. 148825, 27 December 2002;

People v. Johnston, G.R. No. 138881, December 18, 2000, 348 SCRA 526; People v. Suzuki, G.R. No. 120670, 23
October 2003
93
People v. Libnao, G.R. No. 136860. 20 January 2003
94
People v. Claudio, 160 SCRA 646 (1988).
95
People v. Tangliben, 184 SCRA 220 (1990).
96
People v. Maspil, Jr., 188 SCRA 751 (1990).
P a g e | 26

he failed to present his passport and other identification papers when requested to do so;97
(f) where the moving vehicle was stopped and searched on the basis of intelligence
information and clandestine reports by a deep penetration agent or spy -- one who
participated in the drug smuggling activities of the syndicate to which the accused belong --
that said accused were bringing prohibited drugs into the country;98
(g) where the arresting officers had received a confidential information that the
accused, whose identity as a drug distributor was established in a previous test-buy
operation, would be boarding MV Dona Virginia and probably carrying shabu with him;99
(h) where police officers received an information that the accused, who was carrying
a suspicious-looking gray luggage bag, would transport marijuana in a bag to Manila;100 and
(i) where the appearance of the accused and the color of the bag he was carrying
fitted the description given by a civilian asset.101

IV.

WHAT ARE THE LEGAL CONSEQUENCES OF


AN UNLAWFUL SEARCH OR SEIZURE?

1. The exclusionary rule applies: Evidence obtained is inadmissible for


any purpose in any proceeding.

If a search or seizure is unreasonable, any evidence obtained therefrom is


inadmissible for any purpose in any proceeding. 102

Thus, evidence obtained during an illegal search or seizure . . .

(a) is inadmissible to prove the guilt of the accused. 103

97
People v. Malmsteadt, 198 SCRA 401 (1991).
98
People v. Lo Ho Wing, 193 SCRA 122 (1991).
99 People v. Saycon, 236 SCRA 325 (1994).
100 People v. Balingan, 241 SCRA 277 (1995).
101 People v. Valdez, 304 SCRA 140 (1999).
102Sections 2, and 3 [2], Art. III, 1987 Constitution; People v. Nuevas, 576 SCRA 463, 22 February 2007; See
also People v. Che Chun Ting, 328 SCRA 592, 21 March 2000; People v. Sarap, 399 SCRA 503, 26 March 2003;
People v. Bangcarawan, 384 SCRA 525, 11 July 2002
103 See People v. Sarap, 399 SCRA 503, 26 March 2003; People v. Francisco, 387 SCRA 592, 22 August 2002;
P a g e | 27

(b) cannot be used to legally obtain other evidence.


Evidence obtained from/as a result of evidence obtained in an illegal search would
also be inadmissible for being fruit of the poisonous tree.
Under, the exclusionary rule known as the "fruit of the poisonous tree," once the
primary source (the "tree") is shown to have been unlawfully obtained, any secondary or
derivative evidence (the "fruit") derived from it is also inadmissible. The rule is based on the
principle that evidence illegally obtained by the State should not be used to gain other
evidence because the originally illegally obtained evidence taints all evidence subsequently
obtained.104
(c) cannot be used to justify a subsequent warrantless arrest. 105

2. Even if the search was unlawful, and the evidence obtained was
excluded, the court may still convict the accused on the basis of other pieces of
admissible evidence. 106
Thus, in People v. Che Chun Ting, 107 the Supreme Court declared that the search in
the condominium unit of the accused was illegal (the area was not within the immediate
control of the accused at the time of the arrest), and the shabu seized therein was
inadmissible as evidence. However, the Supreme Court upheld the conviction of the accused
on the basis of evidence consisting of, among others, shabu which was found in bag of the
accused at the time the police arrested him in flagrante delicto in a buy-bust operation. 108

3. If the items seized in an illegal search are contraband or prohibited


by law, the same cannot be returned to the owner. 109

However, objects and properties the possession of which is prohibited by law cannot
be returned to their owners notwithstanding the illegality of their seizure. 110

4. If the items seized in an illegal search are not contraband, the same
should be returned to the owner. 111

People v. Valdez, 341 SCRA 253, 25 September 2000; People v. Asis, 391 SCRA 108, 15 October 2002
104 People v. Alicando 321 Phil 656, 12 December 1995; People v. Domantay 307 SCRA 1, 09 May 1999; People v.
Conde, 356 SCRA 415, 10 April 2001
105 See People v. Sarap, 399 SCRA 503, 26 March 2003
106 See People v. Che Chun Ting, 328 SCRA 592, 21 March 2000 and People v. Rondero, 320 SCRA 383, 09

December 1999
107 21 March 2000

108 See also People v. Rondero 09 December 1999


109 Castro v. Pabalan, 70 SCRA 477, 30 April 1976; People v. Che Chun Ting, 328 SCRA 592, 21 March 2000
110 People v. Che Chun Ting 21 March 2000
111 See Bache and Co., (Phil.) Inc. v. Ruiz, 37 SCRA 823, 27 February 1971; Burgos v. Chief of Staff, 133 SCRA

800, 26 December 1984; Nala v. Barroso, 408 SCRA 529, 07 August 2003
P a g e | 28

Seized items that are products of an illegal search, and are not contraband per
se, nor objects in connection with the offense, should be returned to the person from whom
the same were taken. 112

(NOTE: The author submits that, considering that illegally-obtained evidence


becomes inadmissible for any purpose in any proceeding, the same should be inadmissible
as evidence to secure a search warrant or an arrest warrant.)

112 See Nala v. Barroso 07 August 2003