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SUPREME COURT OF THE UNITED STATES

NO. 04-1414

UNITED STATES, PETITIONER v. JEFFREY GRUBBS

on writ of certiorari to the united states court of appeals for the ninth circuit

[March 21, 2006]

Justice Scalia delivered the opinion of the Court.

Federal law enforcement officers obtained a search warrant for respondent’s house on the basis of an
affidavit explaining that the warrant would be executed only after a controlled delivery of contraband to that
location. We address two challenges to the constitutionality of this anticipatory warrant.

Respondent Jeffrey Grubbs purchased a videotape containing child pornography from a Web site operated
by an undercover postal inspector. Officers from the Postal Inspection Service arranged a controlled delivery
of a package containing the videotape to Grubbs’ residence. A postal inspector submitted a search warrant
application to a Magistrate Judge for the Eastern District of California, accompanied by an affidavit
describing the proposed operation in detail. The affidavit stated:

“Execution of this search warrant will not occur unless and until the parcel has been received by a person(s)
and has been physically taken into the residence . . . . At that time, and not before, this search warrant will be
executed by me and other United States Postal inspectors, with appropriate assistance from other law
enforcement officers in accordance with this warrant’s command.” App. to Pet. for Cert. 72a.

In addition to describing this triggering condition, the affidavit referred to two attachments, which described
Grubbs’ residence and the items officers would seize. These attachments, but not the body of the affidavit,
were incorporated into the requested warrant. The affidavit concluded:

“Based upon the foregoing facts, I respectfully submit there exists probable cause to believe that the items
set forth in Attachment B to this affidavit and the search warrant, will be found [at Grubbs’ residence], which
residence is further described at Attachment A.” Ibid.

The Magistrate Judge issued the warrant as requested. Two days later, an undercover postal inspector
delivered the package. Grubbs’ wife signed for it and took the unopened package inside. The inspectors
detained Grubbs as he left his home a few minutes later, then entered the house and commenced the search.
Roughly 30 minutes into the search, Grubbs was provided with a copy of the warrant, which included both
attachments but not the supporting affidavit that explained when the warrant would be executed. Grubbs
consented to interrogation by the postal inspectors and admitted ordering the videotape. He was placed under
arrest, and various items were seized, including the videotape.

A grand jury for the Eastern District of California indicted Grubbs on one count of receiving a visual
depiction of a minor engaged in sexually explicit conduct. See 18 U. S. C. §2252(a)(2). He moved to suppress
the evidence seized during the search of his residence, arguing as relevant here that the warrant was invalid
because it failed to list the triggering condition. After an evidentiary hearing, the District Court denied the
motion. Grubbs pleaded guilty, but reserved his right to appeal the denial of his motion to suppress.

The Court of Appeals for the Ninth Circuit reversed. 377 F. 3d 1072, amended, 389 F. 3d 1306 (2004).
Relying on Circuit precedent, it held that “the particularity requirement of the Fourth Amendment applies with
full force to the conditions precedent to an anticipatory search warrant.” 377 F. 3d, at 1077–1078 (citing
United States v. Hotal, 143 F. 3d 1223, 1226 (CA9 1998)). An anticipatory warrant defective for that reason
may be “cur[ed]” if the conditions precedent are set forth in an affidavit that is incorporated in the warrant
and “presented to the person whose property is being searched.” 377 F. 3d, at 1079. Because the postal
inspectors “failed to present the affidavit—the only document in which the triggering conditions were listed”—
to Grubbs or his wife, the “warrant was … inoperative, and the search was illegal.” Ibid. We granted certiorari.
545 U. S. ___ (2005).

II

Before turning to the Ninth Circuit’s conclusion that the warrant at issue here ran afoul of the Fourth
Amendment’s particularity requirement, we address the antecedent question whether anticipatory search
warrants are categorically unconstitutional.[Footnote 1] An anticipatory warrant is “a warrant based upon an
affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be
located at a specified place.” 2 W. LaFave, Search and Seizure §3.7(c), p. 398 (4th ed. 2004). Most
anticipatory warrants subject their execution to some condition precedent other than the mere passage of
time—a so-called “triggering condition.” The affidavit at issue here, for instance, explained that “[e]xecution
of th[e] search warrant will not occur unless and until the parcel [containing child pornography] has been
received by a person(s) and has been physically taken into the residence.” App. to Pet. for Cert. 72a. If the
government were to execute an anticipatory warrant before the triggering condition occurred, there would be
no reason to believe the item described in the warrant could be found at the searched location; by definition,
the triggering condition which establishes probable cause has not yet been satisfied when the warrant is
issued. Grubbs argues that for this reason anticipatory warrants contravene the Fourth Amendment’s provision
that “no Warrants shall issue, but upon probable cause.”

We reject this view, as has every Court of Appeals to confront the issue, see, e.g., United States v. Loy, 191
F. 3d 360, 364 (CA3 1999) (collecting cases). Probable cause exists when “there is a fair probability that
contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U. S. 213, 238
(1983). Because the probable-cause requirement looks to whether evidence will be found when the search is
conducted, all warrants are, in a sense, “anticipatory.” In the typical case where the police seek permission to
search a house for an item they believe is already located there, the magistrate’s determination that there is
probable cause for the search amounts to a prediction that the item will still be there when the warrant is
executed. See People v. Glen, 30 N. Y. 2d 252, 258, 282 N. E. 2d 614, 617 (1972) (“[P]resent possession is only
probative of the likelihood of future possession.”).[Footnote 2] The anticipatory nature of warrants is even
clearer in the context of electronic surveillance. See, e.g., Katz v. United States, 389 U. S. 347 (1967). When
police request approval to tap a telephone line, they do so based on the probability that, during the course of
the surveillance, the subject will use the phone to engage in crime-related conversations. The relevant federal
provision requires a judge authorizing “interception of wire, oral, or electronic communications” to determine
that “there is probable cause for belief that particular communications concerning [one of various listed
offenses] will be obtained through such interception.” 18 U. S. C. §2518(3)(b) (emphasis added); see
also United States v. Ricciardelli, 998 F. 2d 8, 11, n. 3 (CA1 1993) (“[T]he magistrate issues the warrant on the
basis of a substantial probability that crime-related conversations will ensue.”). Thus, when an anticipatory
warrant is issued, “the fact that the contraband is not presently located at the place described in the warrant
is immaterial, so long as there is probable cause to believe that it will be there when the search warrant is
executed.” United States v. Garcia, 882 F. 2d 699, 702 (CA2 1989) (quoting United States v. Lowe, 575 F. 2d
1193, 1194 (CA6 1978); internal quotation marks omitted).
Anticipatory warrants are, therefore, no different in principle from ordinary warrants. They require the
magistrate to determine (1) that it is now probable that (2) contraband, evidence of a crime, or a fugitive will
be on the described premises (3) when the warrant is executed. It should be noted, however, that where the
anticipatory warrant places a condition (other than the mere passage of time) upon its execution, the first of
these determinations goes not merely to what will probably be found if the condition is met. (If that were the
extent of the probability determination, an anticipatory warrant could be issued for every house in the
country, authorizing search and seizure if contraband should be delivered—though for any single location there
is no likelihood that contraband will be delivered.) Rather, the probability determination for a conditioned
anticipatory warrant looks also to the likelihood that the condition will occur, and thus that a proper object of
seizure will be on the described premises. In other words, for a conditioned anticipatory warrant to comply
with the Fourth Amendment’s requirement of probable cause, two prerequisites of probability must be
satisfied. It must be true not only that if the triggering condition occurs “there is a fair probability that
contraband or evidence of a crime will be found in a particular place,” Gates, supra, at 238, but also that there
is probable cause to believe the triggering condition will occur. The supporting affidavit must provide the
magistrate with sufficient information to evaluate both aspects of the probable-cause determination.
See Garcia, supra, at 703.

In this case, the occurrence of the triggering condition—successful delivery of the videotape to Grubbs’
residence—would plainly establish probable cause for the search. In addition, the affidavit established
probable cause to believe the triggering condition would be satisfied. Although it is possible that Grubbs could
have refused delivery of the videotape he had ordered, that was unlikely. The Magistrate therefore “had a
‘substantial basis for . . . conclud[ing]’ that probable cause existed.” Gates, 462 U. S., at 238–239
(quoting Jones v. United States, 362 U. S. 257, 271 (1960)).

III

The Ninth Circuit invalidated the anticipatory search warrant at issue here because the warrant failed to
specify the triggering condition. The Fourth Amendment’s particularity requirement, it held, “applies with full
force to the conditions precedent to an anticipatory search warrant.” 377 F. 3d, at 1077–1078.

The Fourth Amendment, however, does not set forth some general “particularity requirement.” It specifies
only two matters that must be “particularly describ[ed]” in the warrant: “the place to be searched” and “the
persons or things to be seized.” We have previously rejected efforts to expand the scope of this provision to
embrace unenumerated matters. In Dalia v. United States, 441 U. S. 238 (1979), we considered an order
authorizing the interception of oral communications by means of a “bug” installed by the police in the
petitioner’s office. The petitioner argued that, if a covert entry is necessary to install such a listening device,
the authorizing order must “explicitly set forth its approval of such entries before the fact.” Id., at 255. This
argument fell before the “ ‘precise and clear’ ” words of the Fourth Amendment: “Nothing in the language of
the Constitution or in this Court’s decisions interpreting that language suggests that, in addition to the
[requirements set forth in the text], search warrants also must include a specification of the precise manner
in which they are to be executed.” Id., at 255 (quoting Stanford v. Texas, 379 U. S. 476, 481 (1965)), 257. The
language of the Fourth Amendment is likewise decisive here; its particularity requirement does not include the
conditions precedent to execution of the warrant.

Respondent, drawing upon the Ninth Circuit’s analysis below, relies primarily on two related policy rationales.
First, he argues, setting forth the triggering condition in the warrant itself is necessary “to delineate the
limits of the executing officer’s power.” Brief for Respondent 20. This is an application, respondent asserts, of
the following principle: “[I]f there is a precondition to the valid exercise of executive power, that precondition
must be particularly identified on the face of the warrant.” Id., at 23. That principle is not to be found in the
Constitution. The Fourth Amendment does not require that the warrant set forth the magistrate’s basis for
finding probable cause, even though probable cause is the quintessential “precondition to the valid exercise of
executive power.” Much less does it require description of a triggering condition.

Second, respondent argues that listing the triggering condition in the warrant is necessary to “ ‘assur[e] the
individual whose property is searched or seized of the lawful authority of the executing officer, his need to
search, and the limits of his power to search.’ ” Id., at 19 (quoting United States v. Chadwick, 433 U. S. 1, 9
(1977)). The Ninth Circuit went even further, asserting that if the property owner were not informed of the
triggering condition, he “would ‘stand [no] real chance of policing the officers’ conduct.’ ” 377 F. 3d, at 1079
(quoting Ramirez v. Butte-Silver Bow County, 298 F. 3d 1022, 1027 (CA9 2002)). This argument assumes that
the executing officer must present the property owner with a copy of the warrant before conducting his
search. See 377 F. 3d, at 1079, n. 9. In fact, however, neither the Fourth Amendment nor Rule 41 of the
Federal Rules of Criminal Procedure imposes such a requirement. See Groh v. Ramirez, 540 U. S. 551, 562, n. 5
(2004). “The absence of a constitutional requirement that the warrant be exhibited at the outset of the
search, or indeed until the search has ended, is … evidence that the requirement of particular description does
not protect an interest in monitoring searches.” United States v. Stefonek, 179 F. 3d 1030, 1034 (CA7 1999)
(citations omitted). The Constitution protects property owners not by giving them license to engage the police
in a debate over the basis for the warrant, but by interposing, ex ante, the “deliberate, impartial judgment of
a judicial officer . . . between the citizen and the police.” Wong Sun v. United States, 371 U. S. 471, 481–482
(1963), and by providing, ex post, a right to suppress evidence improperly obtained and a cause of action for
damages.

* * *

Because the Fourth Amendment does not require that the triggering condition for an anticipatory search
warrant be set forth in the warrant itself, the Court of Appeals erred in invalidating the warrant at issue here.
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings
consistent with this opinion.

It is so ordered.

Justice Alito took no part in the consideration or decision of this case.

Footnote 1

This issue is “predicate to an intelligent resolution of the question presented.” Ohio v. Robinette, 519 U. S.
33, 38 (1996) (internal quotation marks omitted). It makes little sense to address what the Fourth Amendment
requires of anticipatory search warrants if it does not allow them at all. Cf. Wilkinson v. Austin, 545 U. S. ___,
___ (2005) (slip op., at 9) (addressing whether inmates had a liberty interest in avoiding assignment to a
“Supermax” prison, despite the State’s concession that they did, because “[w]e need reach the question of
what process is due only if the inmates establish a constitutionally protected liberty interest”).

Footnote 2

For this reason, probable cause may cease to exist after a warrant is issued. The police may learn, for
instance, that contraband is no longer located at the place to be searched. See, e.g., United States v. Bowling,
900 F. 2d 926, 932 (CA6 1990) (recognizing that a fruitless consent search could “dissipat[e] the probable
cause that justified a warrant”). Or the probable-cause showing may have grown “stale” in view of the time
that has passed since the warrant was issued. See United States v. Wagner, 989 F. 2d 69, 75 (CA2 1993)
(“[T]he facts in an affidavit supporting a search warrant must be sufficiently close in time to the issuance of
the warrant and the subsequent search conducted so that probable cause can be said to exist as of the time of
the search and not simply as of some time in the past.”); see also Sgro v. United States, 287 U. S. 206, 210–211
(1932).

Republic of the Philippines


SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 199032 November 19, 2014

RETIRED SP04 BIENVENIDO LAUD, Petitioner,


vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

PER CURIAM:

Assailed in this petition for review on certiorari1 are the Decision2 dated April 25, 2011 and the
Resolution3 dated October 17, 2011 of the Court of Appeals (CA) in CA-G.R. SP. No. 113017 upholding the
validity of Search Warrant No. 09-14407.4

The Facts

On July 10, 2009, the Philippine National Police (PNP), through Police Senior Superintendent Roberto B.
Fajardo, applied with the Regional Trial Court (RTC) of Manila, Branch50 (Manila-RTC) for a warrant to search
three (3) caves located inside the Laud Compound in Purok 3, Barangay Ma-a, Davao City, where the alleged
remains of the victims summarily executed by the so-called "Davao Death Squad" may be found.5 In support of
the application, a certain Ernesto Avasola (Avasola) was presented to the RTC and there testified that he
personally witnessed the killing of six (6) persons in December 2005, and was, in fact, part of the group that
buried the victims.6

Judge William Simon P. Peralta (Judge Peralta), acting as Vice Executive Judge of the Manila-RTC, found
probable cause for the issuance of a search warrant, and thus, issued Search Warrant No. 09-144077 which
was later enforced by the elements ofthe PNP-Criminal Investigation and Detection Group, in coordination
withthe members of the Scene of the Crime Operatives on July 15, 2009.The search of the Laud Compound
caves yielded positive results for the presence of human remains.8

On July 20, 2009, herein petitioner, retired SPO4 Bienvenido Laud (Laud), filed an Urgent Motion to Quash
and to Suppress Illegally Seized Evidence9 premised on the following grounds: (a) Judge Peralta had no
authority to act on the application for a search warrant since he had been automatically divested of his
position asVice Executive Judge when several administrative penalties were imposed against him by the
Court;10 (b) the Manila-RTC had no jurisdiction to issue Search Warrant No. 09-14407 which was to be
enforced in Davao City;11 (c) the human remains sought to be seized are not a proper subject of a search
warrant;12 (d) the police officers are mandated to follow the prescribed procedure for exhumation of human
remains;13 (e) the search warrant was issued despite lack of probable cause;14 (f) the rule against forum
shopping was violated;15 and (g) there was a violation of the rule requiring one specific offense and the proper
specification of the place to be searched and the articles to be seized.16
The Manila-RTC Ruling

In an Order17 dated July 23, 2009, the Manila-RTC granted the motion of Laud "after a careful consideration
[of] the grounds alleged [therein]." Aside from this general statement, the said Order contained no discussion
on the particular reasons from which the Manila-RTC derived its conclusion.

Respondent, the People of the Philippines (the People), filed a Motion for Reconsideration18 which was,
however, denied in an Order19 dated December 8, 2009, wherein the Manila-RTC, this time, articulated its
reasons for the warrant’s quashal, namely: (a) the People failed to show any compelling reason to justify the
issuanceof a search warrant by the Manila RTC which was to be implemented in Davao City where the offense
was allegedly committed, in violation of Section 2, Rule 126 of the Rules of Court;20 (b) the fact that the
alleged offense happened almost four (4) years before the search warrant application was filed rendered
doubtful the existence of probable cause;21 and (c) the applicant, i.e., the PNP, violated the rule against forum
shopping as the subject matter of the present search warrant application is exactly the sameas the one
contained in a previous application22 before the RTC of Davao City, Branch 15 (Davao-RTC) which had been
denied.23

Unconvinced, the People filed a petition for certioraribefore the CA, docketed as CA-G.R. SP. No. 113017.

The CA Ruling

In a Decision24 dated April 25, 2011, the CA granted the People’s petition and thereby annulled and set aside
the Orders of the Manila-RTC for having been tainted with grave abuse of discretion.

It held that the requirements for the issuance of a search warrant were satisfied, pointing out that an
application therefor involving a heinous crime, such as Murder, is an exception to the compelling reasons
requirement under Section 2, Rule 126 of the Rules of Court as explicitly recognized in A.M. No. 99-20-09-
SC25 and reiterated in A.M. No. 03-8-02-SC,26 provided that the application is filed by the PNP, the National
Bureau of Investigation (NBI), the Presidential Anti-Organized Crime Task Force (PAOC-TF) or the Reaction
Against Crime Task Force (REACT-TF),27with the endorsement of its head, before the RTC of Manila or
Quezon City, and the warrant be consequently issued by the Executive Judge or Vice-Executive Judge of
either of the said courts, as in this case.28

Also, the CA found that probable cause was established since, among others, witness Avasola deposed and
testified that he personally witnessed the murder of six (6) persons in December 2005 and was actually part
of the group that buried the victims – two bodies in each of the three (3) caves.29 Further, it observed that
the Manila-RTC failed to consider the fear of reprisal and natural reluctance of a witness to get involved in a
criminal case, stating that these are sufficient reasons to justify the delay attending the application of a
search warrant.30 Accordingly, it deemed that the physical evidence of a protruding human bone in plain view in
one of the caves, and Avasola’s first-hand eye witness account both concur and point to the only reasonable
conclusion that the crime ofMurder had been committed and that the human remains of the victims were
located in the Laud Compound.31

Finally, the CA debunked the claim of forum shopping, finding that the prior application for a search warrant
filed before the Davao-RTC was based on facts and circumstances different from those in the application filed
before the Manila-RTC.32

Dissatisfied, Laud moved for reconsideration which was, however, denied in a Resolution33 dated October 17,
2011,hence, this petition.
The Issues Before the Court

The issues for the Court’s resolution are as follows: (a) whether the administrative penalties imposed on Judge
Peralta invalidated Search Warrant No. 09-14407; (b) whether the Manila-RTC had jurisdiction to issue the
said warrant despite non-compliance with the compelling reasons requirement under Section 2, Rule126 of the
Rules of Court; (c) whether the requirements of probable cause and particular description were complied with
and the one-specific-offense rule under Section 4, Rule 126 of the Rules of Court was violated; and (d)
whether the applicant for the search warrant,i.e., the PNP, violated the rule against forum shopping.1âwphi1

The Court's Ruling

The petition has no merit.

A. Effect of Judge Peralta’s Administrative Penalties.

Citing Section 5, Chapter III of A.M. No. 03-8-02-SC which provides that "[t]he imposition upon an Executive
Judge or Vice-Executive Judge of an administrative penalty of at least a reprimand shall automatically operate
to divest him of his position as such,"Laud claims that Judge Peralta had no authority to act as Vice-Executive
Judge and accordingly issue Search Warrant No. 09-14407 in view of the Court’s Resolution in Dee C. Chuan &
Sons, Inc. v. Judge Peralta34 wherein he was administratively penalized with fines of ₱15,000.00 and
₱5,000.00.35

While the Court does agree that the imposition of said administrative penalties did operate to divest Judge
Peralta’s authority to act as ViceExecutive Judge, it must be qualified thatthe abstraction of such authority
would not, by and of itself, result in the invalidity of Search Warrant No. 09-14407 considering that Judge
Peralta may be considered to have made the issuance as a de facto officer whose acts would, nonetheless,
remain valid.

Funa v. Agra36 defines who a de factoofficer is and explains that his acts are just as valid for all purposes as
those of a de jureofficer, in so far as the public or third persons who are interested therein are concerned,
viz.:

A de facto officer is one who derives his appointment from one having colorable authority to appoint, if the
office is an appointive office, and whose appointment is valid on its face. He may also be one who is in
possession of an office, and is discharging [his] duties under color of authority, by which is meant authority
derived from an appointment, however irregular or informal, so that the incumbent is not a mere volunteer.
Consequently, the acts of the de factoofficer are just as valid for all purposes as those of a de jure officer, in
so far as the public or third persons who are interested therein are concerned.37

The treatment of a de factoofficer’s acts is premised on the reality that third persons cannot always
investigate the right of one assuming to hold an important office and, as such, have a right to assume that
officials apparently qualified and in office are legally such.38 Public interest demands that acts of persons
holding, under color of title, an office created by a valid statute be, likewise, deemed valid insofar as the
public – as distinguished from the officer in question – is concerned.39 Indeed, it is far more cogently
acknowledged that the de factodoctrine has been formulated, not for the protection of the de facto officer
principally, but rather for the protection of the public and individuals who get involved in the official acts of
persons discharging the duties of an office without being lawful officers.40
In order for the de facto doctrine to apply, all of the following elements must concur: (a) there must be a de
jureoffice; (b) there must be color of right or general acquiescence by the public; and (c) there must be actual
physical possession of the office in good faith.41

The existence of the foregoing elements is rather clear in this case. Undoubtedly, there is a de jureoffice of a
2nd Vice-Executive Judge. Judge Peralta also had a colorable right to the said office as he was duly appointed
to such position and was only divested of the same by virtue of a supervening legal technicality – that is, the
operation of Section 5, Chapter III of A.M. No. 03-8-02-SC as above-explained; also, it may be said that
there was general acquiescence by the public since the search warrant application was regularly endorsed to
the sala of Judge Peralta by the Office of the Clerk of Court of the Manila-RTC under his apparent authority
as 2nd Vice Executive Judge.42Finally, Judge Peralta’s actual physical possession of the said office is presumed
to bein good faith, as the contrary was not established.43 Accordingly, Judge Peralta can be considered to have
acted as a de factoofficer when he issued Search Warrant No. 09-14407, hence, treated as valid as if it was
issued by a de jureofficer suffering no administrative impediment.

B. Jurisdiction of the Manila-RTC to Issue Search Warrant No. 09- 14407; Exception to the Compelling
Reasons Requirement Under Section 2, Rule 126 of the Rules of Court.

Section 12, Chapter V of A.M.No. 03-8-02-SC states the requirements for the issuance of search warrants in
special criminal cases by the RTCs of Manilaand Quezon City. These special criminal cases pertain to those
"involving heinous crimes, illegal gambling, illegal possession of firearms and ammunitions, as well as violations
of the Comprehensive Dangerous Drugs Act of 2002, the Intellectual Property Code, the Anti-Money
Laundering Act of 2001, the Tariff and Customs Code, as amended, and other relevant laws that may hereafter
be enacted by Congress, and included herein by the Supreme Court." Search warrant applications for such
cases may befiled by "the National Bureau of Investigation (NBI), the Philippine National Police(PNP) and the
AntiCrime Task Force (ACTAF)," and "personally endorsed by the heads of such agencies." As in ordinary
search warrant applications, they "shall particularly describe therein the places to be searched and/or the
property or things to be seized as prescribed in the Rules of Court." "The Executive Judges [of these RTCs]
and,whenever they are on official leave of absence or are not physically present in the station, the Vice-
Executive Judges" are authorized to act on such applications and "shall issue the warrants, if justified, which
may be served in places outside the territorial jurisdiction of the said courts."

The Court observes that all the above-stated requirements were complied with in this case.

As the records would show, the search warrant application was filed before the Manila-RTC by the PNP and
was endorsed by its head, PNP Chief Jesus Ame Versosa,44 particularly describing the place to be searched and
the things to be seized (as will be elaborated later on) in connection with the heinous crime of
Murder.45 Finding probable cause therefor, Judge Peralta, in his capacity as 2nd Vice-Executive Judge, issued
Search Warrant No. 09-14407 which, as the rules state, may be served in places outside the territorial
jurisdiction of the said RTC.

Notably, the fact that a search warrant application involves a "special criminal case" excludes it from the
compelling reason requirement under Section 2, Rule 126 of the Rules of Court which provides:

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 isknown, 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. (Emphasis supplied)

As explicitly mentioned in Section 12, Chapter V of A.M. No. 03-8- 02-SC, the rule on search warrant
applications before the Manila and Quezon City RTCs for the above-mentioned special criminal cases "shall be
an exception to Section 2 of Rule 126 of the Rules of Court." Perceptibly, the fact that a search warrant is
being applied for in connection with a special criminal case as above-classified already presumes the existence
of a compelling reason; hence, any statement to this effect would be super fluous and therefore should be
dispensed with. By all indications, Section 12, Chapter V of A.M. No. 03-8-02-SC allows the Manila and Quezon
City RTCs to issue warrants to be servedin places outside their territorial jurisdiction for as long as the
parameters under the said section have been complied with, as in this case. Thus, on these grounds, the Court
finds nothing defective in the preliminary issuance of Search Warrant No. 09-14407. Perforce, the RTC-
Manila should not have overturned it.

C. Compliance with the Constitutional Requirements for the Issuance of Search Warrant No. 09-14407 and the
One-SpecificOffense Rule Under Section 4, Rule 126 of the Rules of Court.

In order to protect the people’s right against unreasonable searches and seizures, Section 2, Article III of
the 1987 Philippine Constitution (Constitution) provides that no search warrant shall issue except upon
probable causeto be determined personally by the judgeafter 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. 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 besearched and the persons or things to be seized.

Complementarily, Section 4, Rule 126 of the Rules of Court states that a search warrant shall not be issued
except upon probable cause in connection with one specific offense:

SEC. 4. Requisites for issuing search warrant. - A search warrant shall not issue except upon probable cause in
connection with one specific offenseto 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. (Emphasis supplied)

In this case, the existence of probable cause for the issuance of Search Warrant No. 09-14407 is evident
from the first-hand account of Avasola who, in his deposition, stated that he personally witnessed the
commission of the afore-stated crime and was, in fact, part of the group that buried the victims:

Q9-Who are these six (6) male victims who were killed and buried in the caves in December 2005 at around
9:00 p.m.?
A9-I heard Tatay Laud calling the names of the two victims when they were still alive as Pedro and Mario. I
don’t know the names of the other four victims.

Q10-What happened after Pedro, Mario and the other four victims were killed?

A10-Tatay Laud ordered me and the six (6) killers to bring and bury equally the bodies inthe three caves. We
buried Pedro and Mario altogether in the first cave, located more or less 13 meters from the makeshift house
of Tatay Laud, the other two victims in the second cave and the remaining two in the third cave.

Q11-How did you get there at Laud Compound in the evening of December 2005?

A11-I was ordered by Tatay Laud to go [to] the place. I ran errands [for] him.46

Avasola’s statements in his deposition were confirmed during the hearing on July 10, 2009, where Judge
Peralta conducted the following examination:

Court: x x x Anong panandaan mo? Nandoon ka ba noong naghukay, nakatago o kasama ka?

Mr. Avasola: Kasama po ako sa pagbuhat ng mga tao, sir.

Court: Mga ilang katao?

Mr. Avasola: Anim (6) po.

Court: May mass grave ba na nahukay?

Mr. Avasola: May tatlong kweba po na maliliit yung isa malaki. x x x.47

Verily, the facts and circumstancesestablished from the testimony of Avasola, who was personally examined by
Judge Peralta, sufficiently show that more likely than not the crime of Murder of six (6) persons had been
perpetrated and that the human remains in connection with the same are in the place sought to be searched. In
Santos v. Pryce Gases, Inc.,48 the Court explained the quantum of evidence necessary to establish probable
cause for a search warrant, as follows:

Probable cause for a search warrant is defined as such facts and circumstances which would lead a reasonably
discrete 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. A finding of probable cause needs only
torest on evidence showing that, more likely than not, a crime has been committed and that it was committed
by the accused. Probable cause demands more than bare suspicion; it requires less than evidence which would
justify conviction. The existence depends to a large degree upon the finding or opinion of the judge conducting
the examination. However, the findings of the judge should not disregard the facts before him nor run counter
to the clear dictates of reason.49

In light of the foregoing, the Court finds that the quantum of proof to establish the existence of probable
cause had been met. That a "considerable length of time" attended the search warrant’s application from the
crime’s commission does not, by and of itself, negate the veracity of the applicant’s claims or the testimony of
the witness presented. As the CA correctly observed, the delay may be accounted for by a witness’s fear of
reprisal and natural reluctance to get involved in a criminal case.50 Ultimately, in determining the existence of
probable cause, the facts and circumstances must be personally examined by the judge in their totality,
together with a judicious recognition of the variable complications and sensibilities attending a criminal case.
To the Court’s mind, the supposed delay in the search warrant’s application does not dilute the probable cause
finding made herein. In fine, the probable cause requirement has been sufficiently met.

The Court similarly concludes that there was compliance with the constitutional requirement that there be a
particular description of "the place to be searched and the persons or things to be seized."

"[A] description of a place to be searched is sufficient if the officer with the warrant can, with reasonable
effort, ascertain and identify the place intended and distinguish it from other places in the community. Any
designation or description known to the locality that points out the place to the exclusion of all others, and on
inquiry leads the officers unerringly to it, satisfies the constitutional requirement."51

Search Warrant No. 09-14407 evidently complies with the foregoing standard since it particularly describes
the place to be searched, namely, the three (3) caves located inside the Laud Compound in Purok 3, Barangay
Maa, Davao City:

You are hereby commanded to makean immediate search at any time [of] the day of the premises above
describe[d] particularly the three (3) caves (as sketched) inside the said Laud Compound, Purok 3, Brgy. Ma-a,
Davao Cityand forthwith seize and take possession of the remains of six (6) victims who were killed and buried
in the just said premises.

x x x x52 (Emphases supplied)

For further guidance in its enforcement, the search warrant even made explicit reference to the
sketch53 contained in the application. These, in the Court’s view, are sufficient enough for the officers to, with
reasonable effort, ascertain and identify the place to be searched, which they in fact did.

The things to be seized were also particularly described, namely, the remains of six (6) victims who were killed
and buried in the aforesaid premises. Laud’s posturing that human remains are not "personal property" and,
hence, could not be the subject of a search warrant deserves scant consideration. Section 3, Rule 126 of the
Rules of Court states:

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. (Emphases supplied) "Personal
property" in the foregoing context actually refers to the thing’s mobility, and not to its capacity to be
owned or alienated by a particular person. Article416 of the Civil Code,54 which Laud himself
cites,55 states that in general, all things which can be transported from place to place are deemed to
be personal property. Considering that human remains can generally be transported from place
toplace, and considering further that they qualify under the phrase "subject of the offense" given
that they prove the crime’s corpus delicti,56 it follows that they may be valid subjects of a search
warrant under the above-cited criminal procedure provision. Neither does the Court agree with Laud’s
contention that the term "human remains" is too all-embracing so as to subvert the particular
description requirement. Asthe Court sees it, the description points to no other than the things that
bear a direct relation to the offense committed, i.e., of Murder. It is also perceived that the
description is already specific as the circumstances would ordinarily allow given that the buried bodies
would have naturally decomposed over time. These observations on the description’s sufficient
particularity square with the Court’s pronouncement in Bache and Co., (Phil.), Inc. v. Judge
Ruiz,57 wherein it was held:

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(People v. Rubio, 57 Phil. 384 [1932]); 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 (idem., dissent of Abad Santos, J.); or when the things described are limited to
those which bear direct relation to the offense for which the warrant is being issued(Sec. 2, Rule 126, Revised
Rules of Court) x x x If the articles desired to be seized have any direct relation to an offense committed,
the applicant must necessarily have some evidence, other than those articles, to prove the said offense; and
the articles subject of search and seizure should come in handy merely to strengthen such evidence.
(Emphases supplied)58

Consequently, the Court finds that the particular description requirement – both as to the place to be
searched and the things to be seized – had been complied with.

Finally, the Court finds no violation of the one-specific-offense rule under Section 4, Rule 126 of the Rules of
Court as above-cited which, to note, was intended to prevent the issuance of scattershot warrants, or those
which are issued for more than one specific offense. The defective nature of scatter-shot warrants was
discussed in the case of People v. CA59 as follows: There is no question that the search warrant did not relate
to a specific offense, in violation of the doctrine announced in Stonehill v. Diokno and of Section 3 [now,
Section 4] of Rule 126 providing as follows:

SEC. 3. Requisites for issuing search warrant.— A search warrant shall not issue but 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. Significantly, the petitioner has not denied this defect in the search
warrant and has merely said that there was probable cause, omitting to continue that it was in connection
withone specific offense. He could not, of course, for the warrant was a scatter-shot warrant that could
refer, in Judge Dayrit’s own words, "to robbery, theft, qualified theft or estafa." On this score alone, the
search warrantwas totally null and void and was correctly declared to be so by the very judge who had issued
it.60

In Columbia Pictures, Inc. v. CA,61 the Court, however, settled that a search warrant that covers several counts
of a certain specific offense does not violate the one-specific-offense rule, viz.:

That there were several counts of the offenseof copyright infringement and the search warrant uncovered
several contraband items in the form of pirated video tapes is not to be confused with the number of offenses
charged. The search warrant herein issued does not violate the one-specific-offense rule. (Emphasis
supplied)62

Hence, given that Search Warrant No. 09-14407 was issued only for one specific offense – that is, of Murder,
albeit for six (6) counts – it cannot be said that Section 4, Rule 126 of the Rules of Court had been violated.

That being said, the Court now resolves the last issue on forum shopping.

D. Forum Shopping.
There is forum shopping when a litigant repetitively avails of several judicial remedies in different courts,
simultaneously or successively, all substantially founded on the same transactions and the same essential facts
and circumstances, and all raising substantially the same issues either pending in or already resolved adversely
by some other court to increase his chances of obtaining a favorable decision if not in one court, then in
another.63

Forum shopping cannot be said to have been committed in this case considering the various points of
divergence attending the search warrant application before the Manila-RTC and that before the Davao-RTC.
For one, the witnesses presented in each application were different. Likewise, the application filed in Manila
was in connection with Murder, while the one in Davao did not specify any crime. Finally, and more importantly,
the places to be searched were different – that inManila sought the search of the Laud Compound caves, while
that in Davao was for a particular area in the Laud Gold Cup Firing Range. There being no identity of facts and
circumstances between the two applications, the ruleagainst forum shopping was therefore not violated.

Thus, for all the above-discussed reasons, the Court affirms the CA Ruling which upheld the validity of Search
Warrant No. 09-14407.

WHEREFORE, the petition is DENIED. The Decision dated April 25, 2011 and the Resolution dated October 17,
2011 of the Court of Appeals in CA-G.R. SP. No. 113017 are hereby AFFIRMED.

SO ORDERED.

PerCuriam

LOS ANGELES COUNTY, CALIFORNIA, et al. v.MAX RETTELE et al.

on petition for writ of certiorari to the united states court of appeals for the ninth circuit

No. 06–605.Decided May 21, 2007

Per Curiam.

Deputies of the Los Angeles County Sheriff’s Department obtained a valid warrant to search a house, but they
were unaware that the suspects being sought had moved out three months earlier. When the deputies
searched the house, they found in a bedroom two residents who were of a different race than the suspects.
The deputies ordered these innocent residents, who had been sleeping unclothed, out of bed. The deputies
required them to stand for a few minutes before allowing them to dress.

The residents brought suit under Rev. Stat. §1979, 42 U. S. C. §1983, naming the deputies and other parties
and accusing them of violating the Fourth Amendment right to be free from unreasonable searches and
seizures. The District Court granted summary judgment to all named defendants. The Court of Appeals for the
Ninth Circuit reversed, concluding both that the deputies violated theFourth Amendment and that they were
not entitled to qualified immunity because a reasonable deputy would have stopped the search upon discovering
that respondents were of a different race than the suspects and because a reasonable deputy would not have
ordered respondents from their bed. We grant the petition for certiorari and reverse the judgment of the
Court of Appeals by this summary disposition.

I
From September to December 2001, Los Angeles County Sheriff’s Department Deputy Dennis Watters
investigated a fraud and identity-theft crime ring. There were four suspects of the investigation. One had
registered a 9-millimeter Glock handgun. The four suspects were known to be African-Americans.

On December 11, Watters obtained a search warrant for two houses in Lancaster, California, where he believed
he could find the suspects. The warrant authorized him to search the homes and three of the suspects for
documents and computer files. In support of the search warrant an affidavit cited various sources showing the
suspects resided at respondents’ home. The sources included Department of Motor Vehicles reports, mailing
address listings, an outstanding warrant, and an Internet telephone directory. In this Court respondents do
not dispute the validity of the warrant or the means by which it was obtained.

What Watters did not know was that one of the houses (the first to be searched) had been sold in September
to a Max Rettele. He had purchased the home and moved into it three months earlier with his girlfriend Judy
Sadler and Sadler’s 17-year-old son Chase Hall. All three, respondents here, are Caucasians.

On the morning of December 19, Watters briefed six other deputies in preparation for the search of the
houses. Watters informed them they would be searching for three African-American suspects, one of whom
owned a registered handgun. The possibility a suspect would be armed caused the deputies concern for their
own safety. Watters had not obtained special permission for a night search, so he could not execute the
warrant until 7 a.m. See Cal. Penal Code Ann. §1533 (West 2000). Around 7:15 Watters and six other deputies
knocked on the door and announced their presence. Chase Hall answered. The deputies entered the house after
ordering Hall to lie face down on the ground.

The deputies’ announcement awoke Rettele and Sadler. The deputies entered their bedroom with guns drawn
and ordered them to get out of their bed and to show their hands. They protested that they were not wearing
clothes. Rettele stood up and attempted to put on a pair of sweatpants, but deputies told him not to move.
Sadler also stood up and attempted, without success, to cover herself with a sheet. Rettele and Sadler were
held at gunpoint for one to two minutes before Rettele was allowed to retrieve a robe for Sadler. He was then
permitted to dress. Rettele and Sadler left the bedroom within three to four minutes to sit on the couch in
the living room.

By that time the deputies realized they had made a mistake. They apologized to Rettele and Sadler, thanked
them for not becoming upset, and left within five minutes. They proceeded to the other house the warrant
authorized them to search, where they found three suspects. Those suspects were arrested and convicted.

Rettele and Sadler, individually and as guardians ad litem for Hall, filed this §1983 suit against Los Angeles
County, the Los Angeles County Sheriff’s Department, Deputy Watters, and other members of the sheriff’s
department. Respondents alleged petitioners violated their Fourth Amendment rights by obtaining a warrant in
reckless fashion and conducting an unreasonable search and detention. The District Court held that the
warrant was obtained by proper procedures and the search was reasonable. It concluded in the alternative
that any Fourth Amendment rights the deputies violated were not clearly established and that, as a result, the
deputies were entitled to qualified immunity.

On appeal respondents did not challenge the validity of the warrant; they did argue that the deputies had
conducted the search in an unreasonable manner. A divided panel of the Court of Appeals for the Ninth Circuit
reversed in an unpublished opinion. 186Fed. Appx. 765 (2006). The majority held that

“because (1) no African-Americans lived in [respondents’] home; (2) [respondents], a Caucasian couple,
purchased the residence several months before the search and the deputies did not conduct an ownership
inquiry; (3) the African-American suspects were not accused of a crime that required an emergency search;
and (4) [respondents] were ordered out of bed naked and held at gunpoint while the deputies searched their
bedroom for the suspects and a gun, we find that a reasonable jury could conclude that the search and
detention were ‘unnecessarily painful, degrading, or prolonged,’ and involved ‘an undue invasion of
privacy,’ Franklin v. Foxworth, 31 F. 3d 873, 876 (9th Cir. 1994).” Id., at 766.
Turning to whether respondents’ Fourth Amendment rights were clearly established, the majority held that a
reasonable deputy should have known the search and detention were unlawful.

Judge Cowen dissented. In his view the deputies had authority to detain respondents for the duration of the
search and were justified in ordering respondents from their bed because weapons could have been concealed
under the bedcovers. He also concluded that, assuming a constitutional violation, the law was not
clearlyestablished.

The Court of Appeals denied rehearing and rehearing en banc.

II

Because respondents were of a different race than the suspects the deputies were seeking, the Court of
Appeals held that “[a]fter taking one look at [respondents], the deputies should have realized that
[respondents] were not the subjects of the search warrant and did not pose a threat to the deputies’
safety.” Ibid. We need not pause long in rejecting this unsound proposition. When the deputies ordered
respondents from their bed, they had no way of knowing whether the African-American suspects were
elsewhere in the house. The presence of some Caucasians in the residence did not eliminate the possibility that
the suspects lived there as well. As the deputies stated in their affidavits, it is not uncommon in our society
for people of different races to live together. Just as people of different races live and work together, so too
might they engage in joint criminal activity. The deputies, who were searching a house where they believed a
suspect might be armed, possessed authority to secure the premises before deciding whether to continue with
the search.

In Michigan v. Summers, 452 U. S. 692 (1981) , this Court held that officers executing a search warrant for
contraband may “detain the occupants of the premises while a proper search is conducted.” Id., at 705. In
weighing whether the search in Summers was reasonable the Court first found that “detention represents only
an incremental intrusion on personal liberty when the search of a home has been authorized by a valid
warrant.” Id., at 703. Against that interest, it balanced “preventing flight in the event that incriminating
evidence is found”; “minimizing the risk of harm to the officers”; and facilitating “the orderly completion of
the search.”Id., at 702–703; see Muehler v. Mena, 544 U. S. 93 (2005) .

In executing a search warrant officers may take reasonable action to secure the premises and to ensure their
own safety and the efficacy of the search. Id., at 98–100; see also id., at 103 (Kennedy, J.,
concurring); Summers, supra, at 704–705. The test of reasonableness under the Fourth Amendment is an
objective one. Graham v. Connor, 490 U. S. 386, 397 (1989) (addressing the reasonableness of a seizure of the
person). Unreasonable actions include the use of excessive force or restraints that cause unnecessary pain or
are imposed for a prolonged and unnecessary period of time. Mena, supra, at 100; Graham, supra, at 396–399.

The orders by the police to the occupants, in the context of this lawful search, were permissible, and perhaps
necessary, to protect the safety of the deputies. Blankets and bedding can conceal a weapon, and one of the
suspects was known to own a firearm, factors which underscore this point. The Constitution does not require
an officer to ignore the possibility that an armed suspect may sleep with a weapon within reach. The reports
are replete with accounts of suspects sleeping close to weapons. See United States v. Enslin, 327 F. 3d 788,
791 (CA9 2003) (“When [the suspect] put his hands in the air and began to sit up, his movement shifted the
covers and the marshals could see a gun in the bed next to him”); see also United States v. Jones, 336 F. 3d
245, 248 (CA3 2003) (suspect kept a 9-millimeter Luger under his pillow while he slept); United
States v. Hightower, 96 F. 3d 211 (CA7 1996) (suspect kept a loaded five-shot handgun under his
pillow); State v. Willis, 36,759–KA, p. 3 (La. App. 4/9/03), 843 So. 2d 592, 595 (officers “pulled back the bed
covers and found a .38 caliber Model 10 Smith and Wesson revolver located near where defendant’s left hand
had been”); State v. Kypreos, 115 Wash. App. 207, 61 P. 3d 352 (2002) (suspect kept a handgun in the bed).

The deputies needed a moment to secure the room and ensure that other persons were not close by or did not
present a danger. Deputies were not required to turn their backs to allow Rettele and Sadler to retrieve
clothing or to cover themselves with the sheets. Rather, “[t]he risk of harm to both the police and the
occupants is minimized if the officers routinely exercise unquestioned command of the situation.” Summers,
452 U. S., at 702–703.

This is not to say, of course, that the deputies were free to force Rettele and Sadler to remain motionless and
standing for any longer than necessary. We have recognized that “special circumstances, or possibly a
prolonged detention” might render a search unreasonable. See id., at 705, n. 21. There is no accusation that
the detention here was prolonged. The deputies left the home less than 15 minutes after arriving. The
detention was shorter and less restrictive than the 2- to 3-hour handcuff detention upheld in Mena. See 544
U. S., at 100. And there is no allegation that the deputies prevented Sadler and Rettele from dressing longer
than necessary to protect their safety. Sadler was unclothed for no more than two minutes, and Rettele for
only slightly more time than that. Sadler testified that once the police were satisfied that no immediate
threat was presented, “they wanted us to get dressed and they were pressing us really fast to hurry up and
get some clothes on.” Deposition of Judy Lorraine Sadler in No. CV–0206262–RSWL (RNBX) (CD Cal., June 10,
2003), Doc. 26, Exh. 4, p. 55.

The Fourth Amendment allows warrants to issue on probable cause, a standard well short of absolute certainty.
Valid warrants will issue to search the innocent, and people like Rettele and Sadler unfortunately bear the
cost. Officers executing search warrants on occasion enter a house when residents are engaged in private
activity; and the resulting frustration, embarrassment, and humiliation may be real, as was true here. When
officers execute a valid warrant and act in a reasonable manner to protect themselves from harm, however,
the Fourth Amendment is not violated.

As respondents’ constitutional rights were not violated, “there is no necessity for further inquiries concerning
qualified immunity.”Saucier v. Katz, 533 U. S. 194, 201 (2001) . The judgment of the Court of Appeals is
reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Souter would deny the petition for a writ of certiorari.

TOP

PerCuriam

LOS ANGELES COUNTY, CALIFORNIA, et al. v.MAX RETTELE et al.

on petition for writ of certiorari to the united states court of appeals for the ninth circuit

No. 06–605.Decided May 21, 2007

Per Curiam.

Deputies of the Los Angeles County Sheriff’s Department obtained a valid warrant to search a house, but they
were unaware that the suspects being sought had moved out three months earlier. When the deputies
searched the house, they found in a bedroom two residents who were of a different race than the suspects.
The deputies ordered these innocent residents, who had been sleeping unclothed, out of bed. The deputies
required them to stand for a few minutes before allowing them to dress.

The residents brought suit under Rev. Stat. §1979, 42 U. S. C. §1983, naming the deputies and other parties
and accusing them of violating the Fourth Amendment right to be free from unreasonable searches and
seizures. The District Court granted summary judgment to all named defendants. The Court of Appeals for the
Ninth Circuit reversed, concluding both that the deputies violated theFourth Amendment and that they were
not entitled to qualified immunity because a reasonable deputy would have stopped the search upon discovering
that respondents were of a different race than the suspects and because a reasonable deputy would not have
ordered respondents from their bed. We grant the petition for certiorari and reverse the judgment of the
Court of Appeals by this summary disposition.

From September to December 2001, Los Angeles County Sheriff’s Department Deputy Dennis Watters
investigated a fraud and identity-theft crime ring. There were four suspects of the investigation. One had
registered a 9-millimeter Glock handgun. The four suspects were known to be African-Americans.

On December 11, Watters obtained a search warrant for two houses in Lancaster, California, where he believed
he could find the suspects. The warrant authorized him to search the homes and three of the suspects for
documents and computer files. In support of the search warrant an affidavit cited various sources showing the
suspects resided at respondents’ home. The sources included Department of Motor Vehicles reports, mailing
address listings, an outstanding warrant, and an Internet telephone directory. In this Court respondents do
not dispute the validity of the warrant or the means by which it was obtained.

What Watters did not know was that one of the houses (the first to be searched) had been sold in September
to a Max Rettele. He had purchased the home and moved into it three months earlier with his girlfriend Judy
Sadler and Sadler’s 17-year-old son Chase Hall. All three, respondents here, are Caucasians.

On the morning of December 19, Watters briefed six other deputies in preparation for the search of the
houses. Watters informed them they would be searching for three African-American suspects, one of whom
owned a registered handgun. The possibility a suspect would be armed caused the deputies concern for their
own safety. Watters had not obtained special permission for a night search, so he could not execute the
warrant until 7 a.m. See Cal. Penal Code Ann. §1533 (West 2000). Around 7:15 Watters and six other deputies
knocked on the door and announced their presence. Chase Hall answered. The deputies entered the house after
ordering Hall to lie face down on the ground.

The deputies’ announcement awoke Rettele and Sadler. The deputies entered their bedroom with guns drawn
and ordered them to get out of their bed and to show their hands. They protested that they were not wearing
clothes. Rettele stood up and attempted to put on a pair of sweatpants, but deputies told him not to move.
Sadler also stood up and attempted, without success, to cover herself with a sheet. Rettele and Sadler were
held at gunpoint for one to two minutes before Rettele was allowed to retrieve a robe for Sadler. He was then
permitted to dress. Rettele and Sadler left the bedroom within three to four minutes to sit on the couch in
the living room.

By that time the deputies realized they had made a mistake. They apologized to Rettele and Sadler, thanked
them for not becoming upset, and left within five minutes. They proceeded to the other house the warrant
authorized them to search, where they found three suspects. Those suspects were arrested and convicted.

Rettele and Sadler, individually and as guardians ad litem for Hall, filed this §1983 suit against Los Angeles
County, the Los Angeles County Sheriff’s Department, Deputy Watters, and other members of the sheriff’s
department. Respondents alleged petitioners violated their Fourth Amendment rights by obtaining a warrant in
reckless fashion and conducting an unreasonable search and detention. The District Court held that the
warrant was obtained by proper procedures and the search was reasonable. It concluded in the alternative
that any Fourth Amendment rights the deputies violated were not clearly established and that, as a result, the
deputies were entitled to qualified immunity.

On appeal respondents did not challenge the validity of the warrant; they did argue that the deputies had
conducted the search in an unreasonable manner. A divided panel of the Court of Appeals for the Ninth Circuit
reversed in an unpublished opinion. 186Fed. Appx. 765 (2006). The majority held that

“because (1) no African-Americans lived in [respondents’] home; (2) [respondents], a Caucasian couple,
purchased the residence several months before the search and the deputies did not conduct an ownership
inquiry; (3) the African-American suspects were not accused of a crime that required an emergency search;
and (4) [respondents] were ordered out of bed naked and held at gunpoint while the deputies searched their
bedroom for the suspects and a gun, we find that a reasonable jury could conclude that the search and
detention were ‘unnecessarily painful, degrading, or prolonged,’ and involved ‘an undue invasion of
privacy,’ Franklin v. Foxworth, 31 F. 3d 873, 876 (9th Cir. 1994).” Id., at 766.

Turning to whether respondents’ Fourth Amendment rights were clearly established, the majority held that a
reasonable deputy should have known the search and detention were unlawful.

Judge Cowen dissented. In his view the deputies had authority to detain respondents for the duration of the
search and were justified in ordering respondents from their bed because weapons could have been concealed
under the bedcovers. He also concluded that, assuming a constitutional violation, the law was not
clearlyestablished.

The Court of Appeals denied rehearing and rehearing en banc.

II

Because respondents were of a different race than the suspects the deputies were seeking, the Court of
Appeals held that “[a]fter taking one look at [respondents], the deputies should have realized that
[respondents] were not the subjects of the search warrant and did not pose a threat to the deputies’
safety.” Ibid. We need not pause long in rejecting this unsound proposition. When the deputies ordered
respondents from their bed, they had no way of knowing whether the African-American suspects were
elsewhere in the house. The presence of some Caucasians in the residence did not eliminate the possibility that
the suspects lived there as well. As the deputies stated in their affidavits, it is not uncommon in our society
for people of different races to live together. Just as people of different races live and work together, so too
might they engage in joint criminal activity. The deputies, who were searching a house where they believed a
suspect might be armed, possessed authority to secure the premises before deciding whether to continue with
the search.

In Michigan v. Summers, 452 U. S. 692 (1981) , this Court held that officers executing a search warrant for
contraband may “detain the occupants of the premises while a proper search is conducted.” Id., at 705. In
weighing whether the search in Summers was reasonable the Court first found that “detention represents only
an incremental intrusion on personal liberty when the search of a home has been authorized by a valid
warrant.” Id., at 703. Against that interest, it balanced “preventing flight in the event that incriminating
evidence is found”; “minimizing the risk of harm to the officers”; and facilitating “the orderly completion of
the search.”Id., at 702–703; see Muehler v. Mena, 544 U. S. 93 (2005) .

In executing a search warrant officers may take reasonable action to secure the premises and to ensure their
own safety and the efficacy of the search. Id., at 98–100; see also id., at 103 (Kennedy, J.,
concurring); Summers, supra, at 704–705. The test of reasonableness under the Fourth Amendment is an
objective one. Graham v. Connor, 490 U. S. 386, 397 (1989) (addressing the reasonableness of a seizure of the
person). Unreasonable actions include the use of excessive force or restraints that cause unnecessary pain or
are imposed for a prolonged and unnecessary period of time. Mena, supra, at 100; Graham, supra, at 396–399.
The orders by the police to the occupants, in the context of this lawful search, were permissible, and perhaps
necessary, to protect the safety of the deputies. Blankets and bedding can conceal a weapon, and one of the
suspects was known to own a firearm, factors which underscore this point. The Constitution does not require
an officer to ignore the possibility that an armed suspect may sleep with a weapon within reach. The reports
are replete with accounts of suspects sleeping close to weapons. See United States v. Enslin, 327 F. 3d 788,
791 (CA9 2003) (“When [the suspect] put his hands in the air and began to sit up, his movement shifted the
covers and the marshals could see a gun in the bed next to him”); see also United States v. Jones, 336 F. 3d
245, 248 (CA3 2003) (suspect kept a 9-millimeter Luger under his pillow while he slept); United
States v. Hightower, 96 F. 3d 211 (CA7 1996) (suspect kept a loaded five-shot handgun under his
pillow); State v. Willis, 36,759–KA, p. 3 (La. App. 4/9/03), 843 So. 2d 592, 595 (officers “pulled back the bed
covers and found a .38 caliber Model 10 Smith and Wesson revolver located near where defendant’s left hand
had been”); State v. Kypreos, 115 Wash. App. 207, 61 P. 3d 352 (2002) (suspect kept a handgun in the bed).

The deputies needed a moment to secure the room and ensure that other persons were not close by or did not
present a danger. Deputies were not required to turn their backs to allow Rettele and Sadler to retrieve
clothing or to cover themselves with the sheets. Rather, “[t]he risk of harm to both the police and the
occupants is minimized if the officers routinely exercise unquestioned command of the situation.” Summers,
452 U. S., at 702–703.

This is not to say, of course, that the deputies were free to force Rettele and Sadler to remain motionless and
standing for any longer than necessary. We have recognized that “special circumstances, or possibly a
prolonged detention” might render a search unreasonable. See id., at 705, n. 21. There is no accusation that
the detention here was prolonged. The deputies left the home less than 15 minutes after arriving. The
detention was shorter and less restrictive than the 2- to 3-hour handcuff detention upheld in Mena. See 544
U. S., at 100. And there is no allegation that the deputies prevented Sadler and Rettele from dressing longer
than necessary to protect their safety. Sadler was unclothed for no more than two minutes, and Rettele for
only slightly more time than that. Sadler testified that once the police were satisfied that no immediate
threat was presented, “they wanted us to get dressed and they were pressing us really fast to hurry up and
get some clothes on.” Deposition of Judy Lorraine Sadler in No. CV–0206262–RSWL (RNBX) (CD Cal., June 10,
2003), Doc. 26, Exh. 4, p. 55.

The Fourth Amendment allows warrants to issue on probable cause, a standard well short of absolute certainty.
Valid warrants will issue to search the innocent, and people like Rettele and Sadler unfortunately bear the
cost. Officers executing search warrants on occasion enter a house when residents are engaged in private
activity; and the resulting frustration, embarrassment, and humiliation may be real, as was true here. When
officers execute a valid warrant and act in a reasonable manner to protect themselves from harm, however,
the Fourth Amendment is not violated.

As respondents’ constitutional rights were not violated, “there is no necessity for further inquiries concerning
qualified immunity.”Saucier v. Katz, 533 U. S. 194, 201 (2001) . The judgment of the Court of Appeals is
reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Souter would deny the petition for a writ of certiorari.

TOP

PerCuriam

LOS ANGELES COUNTY, CALIFORNIA, et al. v.MAX RETTELE et al.


on petition for writ of certiorari to the united states court of appeals for the ninth circuit

No. 06–605.Decided May 21, 2007

Per Curiam.

Deputies of the Los Angeles County Sheriff’s Department obtained a valid warrant to search a house, but they
were unaware that the suspects being sought had moved out three months earlier. When the deputies
searched the house, they found in a bedroom two residents who were of a different race than the suspects.
The deputies ordered these innocent residents, who had been sleeping unclothed, out of bed. The deputies
required them to stand for a few minutes before allowing them to dress.

The residents brought suit under Rev. Stat. §1979, 42 U. S. C. §1983, naming the deputies and other parties
and accusing them of violating the Fourth Amendment right to be free from unreasonable searches and
seizures. The District Court granted summary judgment to all named defendants. The Court of Appeals for the
Ninth Circuit reversed, concluding both that the deputies violated theFourth Amendment and that they were
not entitled to qualified immunity because a reasonable deputy would have stopped the search upon discovering
that respondents were of a different race than the suspects and because a reasonable deputy would not have
ordered respondents from their bed. We grant the petition for certiorari and reverse the judgment of the
Court of Appeals by this summary disposition.

From September to December 2001, Los Angeles County Sheriff’s Department Deputy Dennis Watters
investigated a fraud and identity-theft crime ring. There were four suspects of the investigation. One had
registered a 9-millimeter Glock handgun. The four suspects were known to be African-Americans.

On December 11, Watters obtained a search warrant for two houses in Lancaster, California, where he believed
he could find the suspects. The warrant authorized him to search the homes and three of the suspects for
documents and computer files. In support of the search warrant an affidavit cited various sources showing the
suspects resided at respondents’ home. The sources included Department of Motor Vehicles reports, mailing
address listings, an outstanding warrant, and an Internet telephone directory. In this Court respondents do
not dispute the validity of the warrant or the means by which it was obtained.

What Watters did not know was that one of the houses (the first to be searched) had been sold in September
to a Max Rettele. He had purchased the home and moved into it three months earlier with his girlfriend Judy
Sadler and Sadler’s 17-year-old son Chase Hall. All three, respondents here, are Caucasians.

On the morning of December 19, Watters briefed six other deputies in preparation for the search of the
houses. Watters informed them they would be searching for three African-American suspects, one of whom
owned a registered handgun. The possibility a suspect would be armed caused the deputies concern for their
own safety. Watters had not obtained special permission for a night search, so he could not execute the
warrant until 7 a.m. See Cal. Penal Code Ann. §1533 (West 2000). Around 7:15 Watters and six other deputies
knocked on the door and announced their presence. Chase Hall answered. The deputies entered the house after
ordering Hall to lie face down on the ground.

The deputies’ announcement awoke Rettele and Sadler. The deputies entered their bedroom with guns drawn
and ordered them to get out of their bed and to show their hands. They protested that they were not wearing
clothes. Rettele stood up and attempted to put on a pair of sweatpants, but deputies told him not to move.
Sadler also stood up and attempted, without success, to cover herself with a sheet. Rettele and Sadler were
held at gunpoint for one to two minutes before Rettele was allowed to retrieve a robe for Sadler. He was then
permitted to dress. Rettele and Sadler left the bedroom within three to four minutes to sit on the couch in
the living room.

By that time the deputies realized they had made a mistake. They apologized to Rettele and Sadler, thanked
them for not becoming upset, and left within five minutes. They proceeded to the other house the warrant
authorized them to search, where they found three suspects. Those suspects were arrested and convicted.

Rettele and Sadler, individually and as guardians ad litem for Hall, filed this §1983 suit against Los Angeles
County, the Los Angeles County Sheriff’s Department, Deputy Watters, and other members of the sheriff’s
department. Respondents alleged petitioners violated their Fourth Amendment rights by obtaining a warrant in
reckless fashion and conducting an unreasonable search and detention. The District Court held that the
warrant was obtained by proper procedures and the search was reasonable. It concluded in the alternative
that any Fourth Amendment rights the deputies violated were not clearly established and that, as a result, the
deputies were entitled to qualified immunity.

On appeal respondents did not challenge the validity of the warrant; they did argue that the deputies had
conducted the search in an unreasonable manner. A divided panel of the Court of Appeals for the Ninth Circuit
reversed in an unpublished opinion. 186Fed. Appx. 765 (2006). The majority held that

“because (1) no African-Americans lived in [respondents’] home; (2) [respondents], a Caucasian couple,
purchased the residence several months before the search and the deputies did not conduct an ownership
inquiry; (3) the African-American suspects were not accused of a crime that required an emergency search;
and (4) [respondents] were ordered out of bed naked and held at gunpoint while the deputies searched their
bedroom for the suspects and a gun, we find that a reasonable jury could conclude that the search and
detention were ‘unnecessarily painful, degrading, or prolonged,’ and involved ‘an undue invasion of
privacy,’ Franklin v. Foxworth, 31 F. 3d 873, 876 (9th Cir. 1994).” Id., at 766.

Turning to whether respondents’ Fourth Amendment rights were clearly established, the majority held that a
reasonable deputy should have known the search and detention were unlawful.

Judge Cowen dissented. In his view the deputies had authority to detain respondents for the duration of the
search and were justified in ordering respondents from their bed because weapons could have been concealed
under the bedcovers. He also concluded that, assuming a constitutional violation, the law was not
clearlyestablished.

The Court of Appeals denied rehearing and rehearing en banc.

II

Because respondents were of a different race than the suspects the deputies were seeking, the Court of
Appeals held that “[a]fter taking one look at [respondents], the deputies should have realized that
[respondents] were not the subjects of the search warrant and did not pose a threat to the deputies’
safety.” Ibid. We need not pause long in rejecting this unsound proposition. When the deputies ordered
respondents from their bed, they had no way of knowing whether the African-American suspects were
elsewhere in the house. The presence of some Caucasians in the residence did not eliminate the possibility that
the suspects lived there as well. As the deputies stated in their affidavits, it is not uncommon in our society
for people of different races to live together. Just as people of different races live and work together, so too
might they engage in joint criminal activity. The deputies, who were searching a house where they believed a
suspect might be armed, possessed authority to secure the premises before deciding whether to continue with
the search.

In Michigan v. Summers, 452 U. S. 692 (1981) , this Court held that officers executing a search warrant for
contraband may “detain the occupants of the premises while a proper search is conducted.” Id., at 705. In
weighing whether the search in Summers was reasonable the Court first found that “detention represents only
an incremental intrusion on personal liberty when the search of a home has been authorized by a valid
warrant.” Id., at 703. Against that interest, it balanced “preventing flight in the event that incriminating
evidence is found”; “minimizing the risk of harm to the officers”; and facilitating “the orderly completion of
the search.”Id., at 702–703; see Muehler v. Mena, 544 U. S. 93 (2005) .

In executing a search warrant officers may take reasonable action to secure the premises and to ensure their
own safety and the efficacy of the search. Id., at 98–100; see also id., at 103 (Kennedy, J.,
concurring); Summers, supra, at 704–705. The test of reasonableness under the Fourth Amendment is an
objective one. Graham v. Connor, 490 U. S. 386, 397 (1989) (addressing the reasonableness of a seizure of the
person). Unreasonable actions include the use of excessive force or restraints that cause unnecessary pain or
are imposed for a prolonged and unnecessary period of time. Mena, supra, at 100; Graham, supra, at 396–399.

The orders by the police to the occupants, in the context of this lawful search, were permissible, and perhaps
necessary, to protect the safety of the deputies. Blankets and bedding can conceal a weapon, and one of the
suspects was known to own a firearm, factors which underscore this point. The Constitution does not require
an officer to ignore the possibility that an armed suspect may sleep with a weapon within reach. The reports
are replete with accounts of suspects sleeping close to weapons. See United States v. Enslin, 327 F. 3d 788,
791 (CA9 2003) (“When [the suspect] put his hands in the air and began to sit up, his movement shifted the
covers and the marshals could see a gun in the bed next to him”); see also United States v. Jones, 336 F. 3d
245, 248 (CA3 2003) (suspect kept a 9-millimeter Luger under his pillow while he slept); United
States v. Hightower, 96 F. 3d 211 (CA7 1996) (suspect kept a loaded five-shot handgun under his
pillow); State v. Willis, 36,759–KA, p. 3 (La. App. 4/9/03), 843 So. 2d 592, 595 (officers “pulled back the bed
covers and found a .38 caliber Model 10 Smith and Wesson revolver located near where defendant’s left hand
had been”); State v. Kypreos, 115 Wash. App. 207, 61 P. 3d 352 (2002) (suspect kept a handgun in the bed).

The deputies needed a moment to secure the room and ensure that other persons were not close by or did not
present a danger. Deputies were not required to turn their backs to allow Rettele and Sadler to retrieve
clothing or to cover themselves with the sheets. Rather, “[t]he risk of harm to both the police and the
occupants is minimized if the officers routinely exercise unquestioned command of the situation.” Summers,
452 U. S., at 702–703.

This is not to say, of course, that the deputies were free to force Rettele and Sadler to remain motionless and
standing for any longer than necessary. We have recognized that “special circumstances, or possibly a
prolonged detention” might render a search unreasonable. See id., at 705, n. 21. There is no accusation that
the detention here was prolonged. The deputies left the home less than 15 minutes after arriving. The
detention was shorter and less restrictive than the 2- to 3-hour handcuff detention upheld in Mena. See 544
U. S., at 100. And there is no allegation that the deputies prevented Sadler and Rettele from dressing longer
than necessary to protect their safety. Sadler was unclothed for no more than two minutes, and Rettele for
only slightly more time than that. Sadler testified that once the police were satisfied that no immediate
threat was presented, “they wanted us to get dressed and they were pressing us really fast to hurry up and
get some clothes on.” Deposition of Judy Lorraine Sadler in No. CV–0206262–RSWL (RNBX) (CD Cal., June 10,
2003), Doc. 26, Exh. 4, p. 55.

The Fourth Amendment allows warrants to issue on probable cause, a standard well short of absolute certainty.
Valid warrants will issue to search the innocent, and people like Rettele and Sadler unfortunately bear the
cost. Officers executing search warrants on occasion enter a house when residents are engaged in private
activity; and the resulting frustration, embarrassment, and humiliation may be real, as was true here. When
officers execute a valid warrant and act in a reasonable manner to protect themselves from harm, however,
the Fourth Amendment is not violated.

As respondents’ constitutional rights were not violated, “there is no necessity for further inquiries concerning
qualified immunity.”Saucier v. Katz, 533 U. S. 194, 201 (2001) . The judgment of the Court of Appeals is
reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.

Justice Souter would deny the petition for a writ of certiorari.

TOP

PerCuriam

LOS ANGELES COUNTY, CALIFORNIA, et al. v.MAX RETTELE et al.

on petition for writ of certiorari to the united states court of appeals for the ninth circuit

No. 06–605.Decided May 21, 2007

Per Curiam.

Deputies of the Los Angeles County Sheriff’s Department obtained a valid warrant to search a house, but they
were unaware that the suspects being sought had moved out three months earlier. When the deputies
searched the house, they found in a bedroom two residents who were of a different race than the suspects.
The deputies ordered these innocent residents, who had been sleeping unclothed, out of bed. The deputies
required them to stand for a few minutes before allowing them to dress.

The residents brought suit under Rev. Stat. §1979, 42 U. S. C. §1983, naming the deputies and other parties
and accusing them of violating the Fourth Amendment right to be free from unreasonable searches and
seizures. The District Court granted summary judgment to all named defendants. The Court of Appeals for the
Ninth Circuit reversed, concluding both that the deputies violated theFourth Amendment and that they were
not entitled to qualified immunity because a reasonable deputy would have stopped the search upon discovering
that respondents were of a different race than the suspects and because a reasonable deputy would not have
ordered respondents from their bed. We grant the petition for certiorari and reverse the judgment of the
Court of Appeals by this summary disposition.

From September to December 2001, Los Angeles County Sheriff’s Department Deputy Dennis Watters
investigated a fraud and identity-theft crime ring. There were four suspects of the investigation. One had
registered a 9-millimeter Glock handgun. The four suspects were known to be African-Americans.

On December 11, Watters obtained a search warrant for two houses in Lancaster, California, where he believed
he could find the suspects. The warrant authorized him to search the homes and three of the suspects for
documents and computer files. In support of the search warrant an affidavit cited various sources showing the
suspects resided at respondents’ home. The sources included Department of Motor Vehicles reports, mailing
address listings, an outstanding warrant, and an Internet telephone directory. In this Court respondents do
not dispute the validity of the warrant or the means by which it was obtained.

What Watters did not know was that one of the houses (the first to be searched) had been sold in September
to a Max Rettele. He had purchased the home and moved into it three months earlier with his girlfriend Judy
Sadler and Sadler’s 17-year-old son Chase Hall. All three, respondents here, are Caucasians.
On the morning of December 19, Watters briefed six other deputies in preparation for the search of the
houses. Watters informed them they would be searching for three African-American suspects, one of whom
owned a registered handgun. The possibility a suspect would be armed caused the deputies concern for their
own safety. Watters had not obtained special permission for a night search, so he could not execute the
warrant until 7 a.m. See Cal. Penal Code Ann. §1533 (West 2000). Around 7:15 Watters and six other deputies
knocked on the door and announced their presence. Chase Hall answered. The deputies entered the house after
ordering Hall to lie face down on the ground.

The deputies’ announcement awoke Rettele and Sadler. The deputies entered their bedroom with guns drawn
and ordered them to get out of their bed and to show their hands. They protested that they were not wearing
clothes. Rettele stood up and attempted to put on a pair of sweatpants, but deputies told him not to move.
Sadler also stood up and attempted, without success, to cover herself with a sheet. Rettele and Sadler were
held at gunpoint for one to two minutes before Rettele was allowed to retrieve a robe for Sadler. He was then
permitted to dress. Rettele and Sadler left the bedroom within three to four minutes to sit on the couch in
the living room.

By that time the deputies realized they had made a mistake. They apologized to Rettele and Sadler, thanked
them for not becoming upset, and left within five minutes. They proceeded to the other house the warrant
authorized them to search, where they found three suspects. Those suspects were arrested and convicted.

Rettele and Sadler, individually and as guardians ad litem for Hall, filed this §1983 suit against Los Angeles
County, the Los Angeles County Sheriff’s Department, Deputy Watters, and other members of the sheriff’s
department. Respondents alleged petitioners violated their Fourth Amendment rights by obtaining a warrant in
reckless fashion and conducting an unreasonable search and detention. The District Court held that the
warrant was obtained by proper procedures and the search was reasonable. It concluded in the alternative
that any Fourth Amendment rights the deputies violated were not clearly established and that, as a result, the
deputies were entitled to qualified immunity.

On appeal respondents did not challenge the validity of the warrant; they did argue that the deputies had
conducted the search in an unreasonable manner. A divided panel of the Court of Appeals for the Ninth Circuit
reversed in an unpublished opinion. 186Fed. Appx. 765 (2006). The majority held that

“because (1) no African-Americans lived in [respondents’] home; (2) [respondents], a Caucasian couple,
purchased the residence several months before the search and the deputies did not conduct an ownership
inquiry; (3) the African-American suspects were not accused of a crime that required an emergency search;
and (4) [respondents] were ordered out of bed naked and held at gunpoint while the deputies searched their
bedroom for the suspects and a gun, we find that a reasonable jury could conclude that the search and
detention were ‘unnecessarily painful, degrading, or prolonged,’ and involved ‘an undue invasion of
privacy,’ Franklin v. Foxworth, 31 F. 3d 873, 876 (9th Cir. 1994).” Id., at 766.

Turning to whether respondents’ Fourth Amendment rights were clearly established, the majority held that a
reasonable deputy should have known the search and detention were unlawful.

Judge Cowen dissented. In his view the deputies had authority to detain respondents for the duration of the
search and were justified in ordering respondents from their bed because weapons could have been concealed
under the bedcovers. He also concluded that, assuming a constitutional violation, the law was not
clearlyestablished.

The Court of Appeals denied rehearing and rehearing en banc.

II

Because respondents were of a different race than the suspects the deputies were seeking, the Court of
Appeals held that “[a]fter taking one look at [respondents], the deputies should have realized that
[respondents] were not the subjects of the search warrant and did not pose a threat to the deputies’
safety.” Ibid. We need not pause long in rejecting this unsound proposition. When the deputies ordered
respondents from their bed, they had no way of knowing whether the African-American suspects were
elsewhere in the house. The presence of some Caucasians in the residence did not eliminate the possibility that
the suspects lived there as well. As the deputies stated in their affidavits, it is not uncommon in our society
for people of different races to live together. Just as people of different races live and work together, so too
might they engage in joint criminal activity. The deputies, who were searching a house where they believed a
suspect might be armed, possessed authority to secure the premises before deciding whether to continue with
the search.

In Michigan v. Summers, 452 U. S. 692 (1981) , this Court held that officers executing a search warrant for
contraband may “detain the occupants of the premises while a proper search is conducted.” Id., at 705. In
weighing whether the search in Summers was reasonable the Court first found that “detention represents only
an incremental intrusion on personal liberty when the search of a home has been authorized by a valid
warrant.” Id., at 703. Against that interest, it balanced “preventing flight in the event that incriminating
evidence is found”; “minimizing the risk of harm to the officers”; and facilitating “the orderly completion of
the search.”Id., at 702–703; see Muehler v. Mena, 544 U. S. 93 (2005) .

In executing a search warrant officers may take reasonable action to secure the premises and to ensure their
own safety and the efficacy of the search. Id., at 98–100; see also id., at 103 (Kennedy, J.,
concurring); Summers, supra, at 704–705. The test of reasonableness under the Fourth Amendment is an
objective one. Graham v. Connor, 490 U. S. 386, 397 (1989) (addressing the reasonableness of a seizure of the
person). Unreasonable actions include the use of excessive force or restraints that cause unnecessary pain or
are imposed for a prolonged and unnecessary period of time. Mena, supra, at 100; Graham, supra, at 396–399.

The orders by the police to the occupants, in the context of this lawful search, were permissible, and perhaps
necessary, to protect the safety of the deputies. Blankets and bedding can conceal a weapon, and one of the
suspects was known to own a firearm, factors which underscore this point. The Constitution does not require
an officer to ignore the possibility that an armed suspect may sleep with a weapon within reach. The reports
are replete with accounts of suspects sleeping close to weapons. See United States v. Enslin, 327 F. 3d 788,
791 (CA9 2003) (“When [the suspect] put his hands in the air and began to sit up, his movement shifted the
covers and the marshals could see a gun in the bed next to him”); see also United States v. Jones, 336 F. 3d
245, 248 (CA3 2003) (suspect kept a 9-millimeter Luger under his pillow while he slept); United
States v. Hightower, 96 F. 3d 211 (CA7 1996) (suspect kept a loaded five-shot handgun under his
pillow); State v. Willis, 36,759–KA, p. 3 (La. App. 4/9/03), 843 So. 2d 592, 595 (officers “pulled back the bed
covers and found a .38 caliber Model 10 Smith and Wesson revolver located near where defendant’s left hand
had been”); State v. Kypreos, 115 Wash. App. 207, 61 P. 3d 352 (2002) (suspect kept a handgun in the bed).

The deputies needed a moment to secure the room and ensure that other persons were not close by or did not
present a danger. Deputies were not required to turn their backs to allow Rettele and Sadler to retrieve
clothing or to cover themselves with the sheets. Rather, “[t]he risk of harm to both the police and the
occupants is minimized if the officers routinely exercise unquestioned command of the situation.” Summers,
452 U. S., at 702–703.

This is not to say, of course, that the deputies were free to force Rettele and Sadler to remain motionless and
standing for any longer than necessary. We have recognized that “special circumstances, or possibly a
prolonged detention” might render a search unreasonable. See id., at 705, n. 21. There is no accusation that
the detention here was prolonged. The deputies left the home less than 15 minutes after arriving. The
detention was shorter and less restrictive than the 2- to 3-hour handcuff detention upheld in Mena. See 544
U. S., at 100. And there is no allegation that the deputies prevented Sadler and Rettele from dressing longer
than necessary to protect their safety. Sadler was unclothed for no more than two minutes, and Rettele for
only slightly more time than that. Sadler testified that once the police were satisfied that no immediate
threat was presented, “they wanted us to get dressed and they were pressing us really fast to hurry up and
get some clothes on.” Deposition of Judy Lorraine Sadler in No. CV–0206262–RSWL (RNBX) (CD Cal., June 10,
2003), Doc. 26, Exh. 4, p. 55.

The Fourth Amendment allows warrants to issue on probable cause, a standard well short of absolute certainty.
Valid warrants will issue to search the innocent, and people like Rettele and Sadler unfortunately bear the
cost. Officers executing search warrants on occasion enter a house when residents are engaged in private
activity; and the resulting frustration, embarrassment, and humiliation may be real, as was true here. When
officers execute a valid warrant and act in a reasonable manner to protect themselves from harm, however,
the Fourth Amendment is not violated.

As respondents’ constitutional rights were not violated, “there is no necessity for further inquiries concerning
qualified immunity.”Saucier v. Katz, 533 U. S. 194, 201 (2001) . The judgment of the Court of Appeals is
reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Souter would deny the petition for a writ of certiorari.

TOP

PerCuriam

LOS ANGELES COUNTY, CALIFORNIA, et al. v.MAX RETTELE et al.

on petition for writ of certiorari to the united states court of appeals for the ninth circuit

No. 06–605.Decided May 21, 2007

Per Curiam.

Deputies of the Los Angeles County Sheriff’s Department obtained a valid warrant to search a house, but they
were unaware that the suspects being sought had moved out three months earlier. When the deputies
searched the house, they found in a bedroom two residents who were of a different race than the suspects.
The deputies ordered these innocent residents, who had been sleeping unclothed, out of bed. The deputies
required them to stand for a few minutes before allowing them to dress.

The residents brought suit under Rev. Stat. §1979, 42 U. S. C. §1983, naming the deputies and other parties
and accusing them of violating the Fourth Amendment right to be free from unreasonable searches and
seizures. The District Court granted summary judgment to all named defendants. The Court of Appeals for the
Ninth Circuit reversed, concluding both that the deputies violated theFourth Amendment and that they were
not entitled to qualified immunity because a reasonable deputy would have stopped the search upon discovering
that respondents were of a different race than the suspects and because a reasonable deputy would not have
ordered respondents from their bed. We grant the petition for certiorari and reverse the judgment of the
Court of Appeals by this summary disposition.

I
From September to December 2001, Los Angeles County Sheriff’s Department Deputy Dennis Watters
investigated a fraud and identity-theft crime ring. There were four suspects of the investigation. One had
registered a 9-millimeter Glock handgun. The four suspects were known to be African-Americans.

On December 11, Watters obtained a search warrant for two houses in Lancaster, California, where he believed
he could find the suspects. The warrant authorized him to search the homes and three of the suspects for
documents and computer files. In support of the search warrant an affidavit cited various sources showing the
suspects resided at respondents’ home. The sources included Department of Motor Vehicles reports, mailing
address listings, an outstanding warrant, and an Internet telephone directory. In this Court respondents do
not dispute the validity of the warrant or the means by which it was obtained.

What Watters did not know was that one of the houses (the first to be searched) had been sold in September
to a Max Rettele. He had purchased the home and moved into it three months earlier with his girlfriend Judy
Sadler and Sadler’s 17-year-old son Chase Hall. All three, respondents here, are Caucasians.

On the morning of December 19, Watters briefed six other deputies in preparation for the search of the
houses. Watters informed them they would be searching for three African-American suspects, one of whom
owned a registered handgun. The possibility a suspect would be armed caused the deputies concern for their
own safety. Watters had not obtained special permission for a night search, so he could not execute the
warrant until 7 a.m. See Cal. Penal Code Ann. §1533 (West 2000). Around 7:15 Watters and six other deputies
knocked on the door and announced their presence. Chase Hall answered. The deputies entered the house after
ordering Hall to lie face down on the ground.

The deputies’ announcement awoke Rettele and Sadler. The deputies entered their bedroom with guns drawn
and ordered them to get out of their bed and to show their hands. They protested that they were not wearing
clothes. Rettele stood up and attempted to put on a pair of sweatpants, but deputies told him not to move.
Sadler also stood up and attempted, without success, to cover herself with a sheet. Rettele and Sadler were
held at gunpoint for one to two minutes before Rettele was allowed to retrieve a robe for Sadler. He was then
permitted to dress. Rettele and Sadler left the bedroom within three to four minutes to sit on the couch in
the living room.

By that time the deputies realized they had made a mistake. They apologized to Rettele and Sadler, thanked
them for not becoming upset, and left within five minutes. They proceeded to the other house the warrant
authorized them to search, where they found three suspects. Those suspects were arrested and convicted.

Rettele and Sadler, individually and as guardians ad litem for Hall, filed this §1983 suit against Los Angeles
County, the Los Angeles County Sheriff’s Department, Deputy Watters, and other members of the sheriff’s
department. Respondents alleged petitioners violated their Fourth Amendment rights by obtaining a warrant in
reckless fashion and conducting an unreasonable search and detention. The District Court held that the
warrant was obtained by proper procedures and the search was reasonable. It concluded in the alternative
that any Fourth Amendment rights the deputies violated were not clearly established and that, as a result, the
deputies were entitled to qualified immunity.

On appeal respondents did not challenge the validity of the warrant; they did argue that the deputies had
conducted the search in an unreasonable manner. A divided panel of the Court of Appeals for the Ninth Circuit
reversed in an unpublished opinion. 186Fed. Appx. 765 (2006). The majority held that

“because (1) no African-Americans lived in [respondents’] home; (2) [respondents], a Caucasian couple,
purchased the residence several months before the search and the deputies did not conduct an ownership
inquiry; (3) the African-American suspects were not accused of a crime that required an emergency search;
and (4) [respondents] were ordered out of bed naked and held at gunpoint while the deputies searched their
bedroom for the suspects and a gun, we find that a reasonable jury could conclude that the search and
detention were ‘unnecessarily painful, degrading, or prolonged,’ and involved ‘an undue invasion of
privacy,’ Franklin v. Foxworth, 31 F. 3d 873, 876 (9th Cir. 1994).” Id., at 766.
Turning to whether respondents’ Fourth Amendment rights were clearly established, the majority held that a
reasonable deputy should have known the search and detention were unlawful.

Judge Cowen dissented. In his view the deputies had authority to detain respondents for the duration of the
search and were justified in ordering respondents from their bed because weapons could have been concealed
under the bedcovers. He also concluded that, assuming a constitutional violation, the law was not
clearlyestablished.

The Court of Appeals denied rehearing and rehearing en banc.

II

Because respondents were of a different race than the suspects the deputies were seeking, the Court of
Appeals held that “[a]fter taking one look at [respondents], the deputies should have realized that
[respondents] were not the subjects of the search warrant and did not pose a threat to the deputies’
safety.” Ibid. We need not pause long in rejecting this unsound proposition. When the deputies ordered
respondents from their bed, they had no way of knowing whether the African-American suspects were
elsewhere in the house. The presence of some Caucasians in the residence did not eliminate the possibility that
the suspects lived there as well. As the deputies stated in their affidavits, it is not uncommon in our society
for people of different races to live together. Just as people of different races live and work together, so too
might they engage in joint criminal activity. The deputies, who were searching a house where they believed a
suspect might be armed, possessed authority to secure the premises before deciding whether to continue with
the search.

In Michigan v. Summers, 452 U. S. 692 (1981) , this Court held that officers executing a search warrant for
contraband may “detain the occupants of the premises while a proper search is conducted.” Id., at 705. In
weighing whether the search in Summers was reasonable the Court first found that “detention represents only
an incremental intrusion on personal liberty when the search of a home has been authorized by a valid
warrant.” Id., at 703. Against that interest, it balanced “preventing flight in the event that incriminating
evidence is found”; “minimizing the risk of harm to the officers”; and facilitating “the orderly completion of
the search.”Id., at 702–703; see Muehler v. Mena, 544 U. S. 93 (2005) .

In executing a search warrant officers may take reasonable action to secure the premises and to ensure their
own safety and the efficacy of the search. Id., at 98–100; see also id., at 103 (Kennedy, J.,
concurring); Summers, supra, at 704–705. The test of reasonableness under the Fourth Amendment is an
objective one. Graham v. Connor, 490 U. S. 386, 397 (1989) (addressing the reasonableness of a seizure of the
person). Unreasonable actions include the use of excessive force or restraints that cause unnecessary pain or
are imposed for a prolonged and unnecessary period of time. Mena, supra, at 100; Graham, supra, at 396–399.

The orders by the police to the occupants, in the context of this lawful search, were permissible, and perhaps
necessary, to protect the safety of the deputies. Blankets and bedding can conceal a weapon, and one of the
suspects was known to own a firearm, factors which underscore this point. The Constitution does not require
an officer to ignore the possibility that an armed suspect may sleep with a weapon within reach. The reports
are replete with accounts of suspects sleeping close to weapons. See United States v. Enslin, 327 F. 3d 788,
791 (CA9 2003) (“When [the suspect] put his hands in the air and began to sit up, his movement shifted the
covers and the marshals could see a gun in the bed next to him”); see also United States v. Jones, 336 F. 3d
245, 248 (CA3 2003) (suspect kept a 9-millimeter Luger under his pillow while he slept); United
States v. Hightower, 96 F. 3d 211 (CA7 1996) (suspect kept a loaded five-shot handgun under his
pillow); State v. Willis, 36,759–KA, p. 3 (La. App. 4/9/03), 843 So. 2d 592, 595 (officers “pulled back the bed
covers and found a .38 caliber Model 10 Smith and Wesson revolver located near where defendant’s left hand
had been”); State v. Kypreos, 115 Wash. App. 207, 61 P. 3d 352 (2002) (suspect kept a handgun in the bed).

The deputies needed a moment to secure the room and ensure that other persons were not close by or did not
present a danger. Deputies were not required to turn their backs to allow Rettele and Sadler to retrieve
clothing or to cover themselves with the sheets. Rather, “[t]he risk of harm to both the police and the
occupants is minimized if the officers routinely exercise unquestioned command of the situation.” Summers,
452 U. S., at 702–703.

This is not to say, of course, that the deputies were free to force Rettele and Sadler to remain motionless and
standing for any longer than necessary. We have recognized that “special circumstances, or possibly a
prolonged detention” might render a search unreasonable. See id., at 705, n. 21. There is no accusation that
the detention here was prolonged. The deputies left the home less than 15 minutes after arriving. The
detention was shorter and less restrictive than the 2- to 3-hour handcuff detention upheld in Mena. See 544
U. S., at 100. And there is no allegation that the deputies prevented Sadler and Rettele from dressing longer
than necessary to protect their safety. Sadler was unclothed for no more than two minutes, and Rettele for
only slightly more time than that. Sadler testified that once the police were satisfied that no immediate
threat was presented, “they wanted us to get dressed and they were pressing us really fast to hurry up and
get some clothes on.” Deposition of Judy Lorraine Sadler in No. CV–0206262–RSWL (RNBX) (CD Cal., June 10,
2003), Doc. 26, Exh. 4, p. 55.

The Fourth Amendment allows warrants to issue on probable cause, a standard well short of absolute certainty.
Valid warrants will issue to search the innocent, and people like Rettele and Sadler unfortunately bear the
cost. Officers executing search warrants on occasion enter a house when residents are engaged in private
activity; and the resulting frustration, embarrassment, and humiliation may be real, as was true here. When
officers execute a valid warrant and act in a reasonable manner to protect themselves from harm, however,
the Fourth Amendment is not violated.

As respondents’ constitutional rights were not violated, “there is no necessity for further inquiries concerning
qualified immunity.”Saucier v. Katz, 533 U. S. 194, 201 (2001) . The judgment of the Court of Appeals is
reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Souter would deny the petition for a writ of certiorari.

TOP

Concurrence

LOS ANGELES COUNTY, CALIFORNIA, et al. v.MAX RETTELE et al.

on petition for writ of certiorari to the united states court of appeals for the ninth circuit

No. 06–605.Decided May 21, 2007

Justice Stevens, with whom Justice Ginsburg joins, concurring in the judgment.

This case presents two separate questions: (1) whether the four circumstances identified in the Court of
Appeals’ unpublished opinion established a genuine issue of material fact as to whether the seizure violated
respondents’ Fourth Amendment rights, see ante, at 4; (2) whether the officers were nevertheless entitled to
qualified immunity because the right was not clearly established. The fact that the judges on the Court of
Appeals disagreed on both questions convinces me that they should not have announced their decision in an
unpublished opinion.

In answering the first question, the Ninth Circuit majority relied primarily on Franklin v. Foxworth, 31 F. 3d
873 (CA9 1994). As Judge Cowen’s discussion of Franklin demonstrates, that case surely does not clearly
establish the unconstitutionality of the officers’ conduct.** Consequently, regardless of the proper answer to
the constitutional question, the defendants were entitled to qualified immunity. I would reverse on that ground
and disavow the unwise practice of deciding constitutional questions in advance of the necessity for doing so.
See County of Sacramento v. Lewis, 523 U. S. 833, 859 (1998) (Stevens, J., concurring in judgment).
Accordingly, I concur in the Court’s judgment.

Notes

** See 186Fed. Appx. 765, 767 (2006) (dissenting opinion) (“In Franklin v. Foxworth, 31 F.3d 873 (9th Cir.
1994), we found unconstitutional the officers’ failure to provide clothing to a gravely ill man before exposing
his genitals to twenty-three strangers for over two hours, under circumstances where there was no reason why
the man was not given clothing. Id. at 876–78. We concluded that the detention was conducted in ‘a manner
that wantonly and callously subjected an obviously ill and incapacitated person to entirely unnecessary and
unjustifiable degradation and suffering.’ Id. at 878. Here, in contrast, Plaintiffs were not gravely ill, and their
brief exposure, which lasted, at most, three or four minutes, was outweighed by the safety risks associated
with allowing two occupants to remain in bed under covers during execution of a search warrant”).

TOP

Concurrence

LOS ANGELES COUNTY, CALIFORNIA, et al. v.MAX RETTELE et al.

on petition for writ of certiorari to the united states court of appeals for the ninth circuit

No. 06–605.Decided May 21, 2007

Justice Stevens, with whom Justice Ginsburg joins, concurring in the judgment.

This case presents two separate questions: (1) whether the four circumstances identified in the Court of
Appeals’ unpublished opinion established a genuine issue of material fact as to whether the seizure violated
respondents’ Fourth Amendment rights, see ante, at 4; (2) whether the officers were nevertheless entitled to
qualified immunity because the right was not clearly established. The fact that the judges on the Court of
Appeals disagreed on both questions convinces me that they should not have announced their decision in an
unpublished opinion.

In answering the first question, the Ninth Circuit majority relied primarily on Franklin v. Foxworth, 31 F. 3d
873 (CA9 1994). As Judge Cowen’s discussion of Franklin demonstrates, that case surely does not clearly
establish the unconstitutionality of the officers’ conduct.** Consequently, regardless of the proper answer to
the constitutional question, the defendants were entitled to qualified immunity. I would reverse on that ground
and disavow the unwise practice of deciding constitutional questions in advance of the necessity for doing so.
See County of Sacramento v. Lewis, 523 U. S. 833, 859 (1998) (Stevens, J., concurring in judgment).
Accordingly, I concur in the Court’s judgment.

Notes

** See 186Fed. Appx. 765, 767 (2006) (dissenting opinion) (“In Franklin v. Foxworth, 31 F.3d 873 (9th Cir.
1994), we found unconstitutional the officers’ failure to provide clothing to a gravely ill man before exposing
his genitals to twenty-three strangers for over two hours, under circumstances where there was no reason why
the man was not given clothing. Id. at 876–78. We concluded that the detention was conducted in ‘a manner
that wantonly and callously subjected an obviously ill and incapacitated person to entirely unnecessary and
unjustifiable degradation and suffering.’ Id. at 878. Here, in contrast, Plaintiffs were not gravely ill, and their
brief exposure, which lasted, at most, three or four minutes, was outweighed by the safety risks associated
with allowing two occupants to remain in bed under covers during execution of a search warrant”).

TOP

Concurrence

LOS ANGELES COUNTY, CALIFORNIA, et al. v.MAX RETTELE et al.

on petition for writ of certiorari to the united states court of appeals for the ninth circuit

No. 06–605.Decided May 21, 2007

Justice Stevens, with whom Justice Ginsburg joins, concurring in the judgment.

This case presents two separate questions: (1) whether the four circumstances identified in the Court of
Appeals’ unpublished opinion established a genuine issue of material fact as to whether the seizure violated
respondents’ Fourth Amendment rights, see ante, at 4; (2) whether the officers were nevertheless entitled to
qualified immunity because the right was not clearly established. The fact that the judges on the Court of
Appeals disagreed on both questions convinces me that they should not have announced their decision in an
unpublished opinion.

In answering the first question, the Ninth Circuit majority relied primarily on Franklin v. Foxworth, 31 F. 3d
873 (CA9 1994). As Judge Cowen’s discussion of Franklin demonstrates, that case surely does not clearly
establish the unconstitutionality of the officers’ conduct.** Consequently, regardless of the proper answer to
the constitutional question, the defendants were entitled to qualified immunity. I would reverse on that ground
and disavow the unwise practice of deciding constitutional questions in advance of the necessity for doing so.
See County of Sacramento v. Lewis, 523 U. S. 833, 859 (1998) (Stevens, J., concurring in judgment).
Accordingly, I concur in the Court’s judgment.
Notes

** See 186Fed. Appx. 765, 767 (2006) (dissenting opinion) (“In Franklin v. Foxworth, 31 F.3d 873 (9th Cir.
1994), we found unconstitutional the officers’ failure to provide clothing to a gravely ill man before exposing
his genitals to twenty-three strangers for over two hours, under circumstances where there was no reason why
the man was not given clothing. Id. at 876–78. We concluded that the detention was conducted in ‘a manner
that wantonly and callously subjected an obviously ill and incapacitated person to entirely unnecessary and
unjustifiable degradation and suffering.’ Id. at 878. Here, in contrast, Plaintiffs were not gravely ill, and their
brief exposure, which lasted, at most, three or four minutes, was outweighed by the safety risks associated
with allowing two occupants to remain in bed under covers during execution of a search warrant”).

TOP

Concurrence

LOS ANGELES COUNTY, CALIFORNIA, et al. v.MAX RETTELE et al.

on petition for writ of certiorari to the united states court of appeals for the ninth circuit

No. 06–605.Decided May 21, 2007

Justice Stevens, with whom Justice Ginsburg joins, concurring in the judgment.

This case presents two separate questions: (1) whether the four circumstances identified in the Court of
Appeals’ unpublished opinion established a genuine issue of material fact as to whether the seizure violated
respondents’ Fourth Amendment rights, see ante, at 4; (2) whether the officers were nevertheless entitled to
qualified immunity because the right was not clearly established. The fact that the judges on the Court of
Appeals disagreed on both questions convinces me that they should not have announced their decision in an
unpublished opinion.

In answering the first question, the Ninth Circuit majority relied primarily on Franklin v. Foxworth, 31 F. 3d
873 (CA9 1994). As Judge Cowen’s discussion of Franklin demonstrates, that case surely does not clearly
establish the unconstitutionality of the officers’ conduct.** Consequently, regardless of the proper answer to
the constitutional question, the defendants were entitled to qualified immunity. I would reverse on that ground
and disavow the unwise practice of deciding constitutional questions in advance of the necessity for doing so.
See County of Sacramento v. Lewis, 523 U. S. 833, 859 (1998) (Stevens, J., concurring in judgment).
Accordingly, I concur in the Court’s judgment.

Notes

** See 186Fed. Appx. 765, 767 (2006) (dissenting opinion) (“In Franklin v. Foxworth, 31 F.3d 873 (9th Cir.
1994), we found unconstitutional the officers’ failure to provide clothing to a gravely ill man before exposing
his genitals to twenty-three strangers for over two hours, under circumstances where there was no reason why
the man was not given clothing. Id. at 876–78. We concluded that the detention was conducted in ‘a manner
that wantonly and callously subjected an obviously ill and incapacitated person to entirely unnecessary and
unjustifiable degradation and suffering.’ Id. at 878. Here, in contrast, Plaintiffs were not gravely ill, and their
brief exposure, which lasted, at most, three or four minutes, was outweighed by the safety risks associated
with allowing two occupants to remain in bed under covers during execution of a search warrant”).

TOP

Concurrence

LOS ANGELES COUNTY, CALIFORNIA, et al. v.MAX RETTELE et al.

on petition for writ of certiorari to the united states court of appeals for the ninth circuit

No. 06–605.Decided May 21, 2007

Justice Stevens, with whom Justice Ginsburg joins, concurring in the judgment.

This case presents two separate questions: (1) whether the four circumstances identified in the Court of
Appeals’ unpublished opinion established a genuine issue of material fact as to whether the seizure violated
respondents’ Fourth Amendment rights, see ante, at 4; (2) whether the officers were nevertheless entitled to
qualified immunity because the right was not clearly established. The fact that the judges on the Court of
Appeals disagreed on both questions convinces me that they should not have announced their decision in an
unpublished opinion.

In answering the first question, the Ninth Circuit majority relied primarily on Franklin v. Foxworth, 31 F. 3d
873 (CA9 1994). As Judge Cowen’s discussion of Franklin demonstrates, that case surely does not clearly
establish the unconstitutionality of the officers’ conduct.** Consequently, regardless of the proper answer to
the constitutional question, the defendants were entitled to qualified immunity. I would reverse on that ground
and disavow the unwise practice of deciding constitutional questions in advance of the necessity for doing so.
See County of Sacramento v. Lewis, 523 U. S. 833, 859 (1998) (Stevens, J., concurring in judgment).
Accordingly, I concur in the Court’s judgment.

Notes

** See 186Fed. Appx. 765, 767 (2006) (dissenting opinion) (“In Franklin v. Foxworth, 31 F.3d 873 (9th Cir.
1994), we found unconstitutional the officers’ failure to provide clothing to a gravely ill man before exposing
his genitals to twenty-three strangers for over two hours, under circumstances where there was no reason why
the man was not given clothing. Id. at 876–78. We concluded that the detention was conducted in ‘a manner
that wantonly and callously subjected an obviously ill and incapacitated person to entirely unnecessary and
unjustifiable degradation and suffering.’ Id. at 878. Here, in contrast, Plaintiffs were not gravely ill, and their
brief exposure, which lasted, at most, three or four minutes, was outweighed by the safety risks associated
with allowing two occupants to remain in bed under covers during execution of a search warrant”).

TOP

Concurrence

LOS ANGELES COUNTY, CALIFORNIA, et al. v.MAX RETTELE et al.

on petition for writ of certiorari to the united states court of appeals for the ninth circuit

No. 06–605.Decided May 21, 2007

Justice Stevens, with whom Justice Ginsburg joins, concurring in the judgment.

This case presents two separate questions: (1) whether the four circumstances identified in the Court of
Appeals’ unpublished opinion established a genuine issue of material fact as to whether the seizure violated
respondents’ Fourth Amendment rights, see ante, at 4; (2) whether the officers were nevertheless entitled to
qualified immunity because the right was not clearly established. The fact that the judges on the Court of
Appeals disagreed on both questions convinces me that they should not have announced their decision in an
unpublished opinion.

In answering the first question, the Ninth Circuit majority relied primarily on Franklin v. Foxworth, 31 F. 3d
873 (CA9 1994). As Judge Cowen’s discussion of Franklin demonstrates, that case surely does not clearly
establish the unconstitutionality of the officers’ conduct.** Consequently, regardless of the proper answer to
the constitutional question, the defendants were entitled to qualified immunity. I would reverse on that ground
and disavow the unwise practice of deciding constitutional questions in advance of the necessity for doing so.
See County of Sacramento v. Lewis, 523 U. S. 833, 859 (1998) (Stevens, J., concurring in judgment).
Accordingly, I concur in the Court’s judgment.

Notes

** See 186Fed. Appx. 765, 767 (2006) (dissenting opinion) (“In Franklin v. Foxworth, 31 F.3d 873 (9th Cir.
1994), we found unconstitutional the officers’ failure to provide clothing to a gravely ill man before exposing
his genitals to twenty-three strangers for over two hours, under circumstances where there was no reason why
the man was not given clothing. Id. at 876–78. We concluded that the detention was conducted in ‘a manner
that wantonly and callously subjected an obviously ill and incapacitated person to entirely unnecessary and
unjustifiable degradation and suffering.’ Id. at 878. Here, in contrast, Plaintiffs were not gravely ill, and their
brief exposure, which lasted, at most, three or four minutes, was outweighed by the safety risks associated
with allowing two occupants to remain in bed under covers during execution of a search warrant”).
TOP

Concurrence

LOS ANGELES COUNTY, CALIFORNIA, et al. v.MAX RETTELE et al.

on petition for writ of certiorari to the united states court of appeals for the ninth circuit

No. 06–605.Decided May 21, 2007

Justice Stevens, with whom Justice Ginsburg joins, concurring in the judgment.

This case presents two separate questions: (1) whether the four circumstances identified in the Court of
Appeals’ unpublished opinion established a genuine issue of material fact as to whether the seizure violated
respondents’ Fourth Amendment rights, see ante, at 4; (2) whether the officers were nevertheless entitled to
qualified immunity because the right was not clearly established. The fact that the judges on the Court of
Appeals disagreed on both questions convinces me that they should not have announced their decision in an
unpublished opinion.

In answering the first question, the Ninth Circuit majority relied primarily on Franklin v. Foxworth, 31 F. 3d
873 (CA9 1994). As Judge Cowen’s discussion of Franklin demonstrates, that case surely does not clearly
establish the unconstitutionality of the officers’ conduct.** Consequently, regardless of the proper answer to
the constitutional question, the defendants were entitled to qualified immunity. I would reverse on that ground
and disavow the unwise practice of deciding constitutional questions in advance of the necessity for doing so.
See County of Sacramento v. Lewis, 523 U. S. 833, 859 (1998) (Stevens, J., concurring in judgment).
Accordingly, I concur in the Court’s judgment.

Notes

** See 186Fed. Appx. 765, 767 (2006) (dissenting opinion) (“In Franklin v. Foxworth, 31 F.3d 873 (9th Cir.
1994), we found unconstitutional the officers’ failure to provide clothing to a gravely ill man before exposing
his genitals to twenty-three strangers for over two hours, under circumstances where there was no reason why
the man was not given clothing. Id. at 876–78. We concluded that the detention was conducted in ‘a manner
that wantonly and callously subjected an obviously ill and incapacitated person to entirely unnecessary and
unjustifiable degradation and suffering.’ Id. at 878. Here, in contrast, Plaintiffs were not gravely ill, and their
brief exposure, which lasted, at most, three or four minutes, was outweighed by the safety risks associated
with allowing two occupants to remain in bed under covers during execution of a search warrant”).

TOP

Concurrence

LOS ANGELES COUNTY, CALIFORNIA, et al. v.MAX RETTELE et al.


on petition for writ of certiorari to the united states court of appeals for the ninth circuit

No. 06–605.Decided May 21, 2007

Justice Stevens, with whom Justice Ginsburg joins, concurring in the judgment.

This case presents two separate questions: (1) whether the four circumstances identified in the Court of
Appeals’ unpublished opinion established a genuine issue of material fact as to whether the seizure violated
respondents’ Fourth Amendment rights, see ante, at 4; (2) whether the officers were nevertheless entitled to
qualified immunity because the right was not clearly established. The fact that the judges on the Court of
Appeals disagreed on both questions convinces me that they should not have announced their decision in an
unpublished opinion.

In answering the first question, the Ninth Circuit majority relied primarily on Franklin v. Foxworth, 31 F. 3d
873 (CA9 1994). As Judge Cowen’s discussion of Franklin demonstrates, that case surely does not clearly
establish the unconstitutionality of the officers’ conduct.** Consequently, regardless of the proper answer to
the constitutional question, the defendants were entitled to qualified immunity. I would reverse on that ground
and disavow the unwise practice of deciding constitutional questions in advance of the necessity for doing so.
See County of Sacramento v. Lewis, 523 U. S. 833, 859 (1998) (Stevens, J., concurring in judgment).
Accordingly, I concur in the Court’s judgment.

Notes

** See 186Fed. Appx. 765, 767 (2006) (dissenting opinion) (“In Franklin v. Foxworth, 31 F.3d 873 (9th Cir.
1994), we found unconstitutional the officers’ failure to provide clothing to a gravely ill man before exposing
his genitals to twenty-three strangers for over two hours, under circumstances where there was no reason why
the man was not given clothing. Id. at 876–78. We concluded that the detention was conducted in ‘a manner
that wantonly and callously subjected an obviously ill and incapacitated person to entirely unnecessary and
unjustifiable degradation and suffering.’ Id. at 878. Here, in contrast, Plaintiffs were not gravely ill, and their
brief exposure, which lasted, at most, three or four minutes, was outweighed by the safety risks associated
with allowing two occupants to remain in bed under covers during execution of a search warrant”).

TOP

Concurrence

LOS ANGELES COUNTY, CALIFORNIA, et al. v.MAX RETTELE et al.

on petition for writ of certiorari to the united states court of appeals for the ninth circuit

No. 06–605.Decided May 21, 2007


Justice Stevens, with whom Justice Ginsburg joins, concurring in the judgment.

This case presents two separate questions: (1) whether the four circumstances identified in the Court of
Appeals’ unpublished opinion established a genuine issue of material fact as to whether the seizure violated
respondents’ Fourth Amendment rights, see ante, at 4; (2) whether the officers were nevertheless entitled to
qualified immunity because the right was not clearly established. The fact that the judges on the Court of
Appeals disagreed on both questions convinces me that they should not have announced their decision in an
unpublished opinion.

In answering the first question, the Ninth Circuit majority relied primarily on Franklin v. Foxworth, 31 F. 3d
873 (CA9 1994). As Judge Cowen’s discussion of Franklin demonstrates, that case surely does not clearly
establish the unconstitutionality of the officers’ conduct.** Consequently, regardless of the proper answer to
the constitutional question, the defendants were entitled to qualified immunity. I would reverse on that ground
and disavow the unwise practice of deciding constitutional questions in advance of the necessity for doing so.
See County of Sacramento v. Lewis, 523 U. S. 833, 859 (1998) (Stevens, J., concurring in judgment).
Accordingly, I concur in the Court’s judgment.

Notes

** See 186Fed. Appx. 765, 767 (2006) (dissenting opinion) (“In Franklin v. Foxworth, 31 F.3d 873 (9th Cir.
1994), we found unconstitutional the officers’ failure to provide clothing to a gravely ill man before exposing
his genitals to twenty-three strangers for over two hours, under circumstances where there was no reason why
the man was not given clothing. Id. at 876–78. We concluded that the detention was conducted in ‘a manner
that wantonly and callously subjected an obviously ill and incapacitated person to entirely unnecessary and
unjustifiable degradation and suffering.’ Id. at 878. Here, in contrast, Plaintiffs were not gravely ill, and their
brief exposure, which lasted, at most, three or four minutes, was outweighed by the safety risks associated
with allowing two occupants to remain in bed under covers during execution of a search warrant”).

TOP

Concurrence

LOS ANGELES COUNTY, CALIFORNIA, et al. v.MAX RETTELE et al.

on petition for writ of certiorari to the united states court of appeals for the ninth circuit

No. 06–605.Decided May 21, 2007

Justice Stevens, with whom Justice Ginsburg joins, concurring in the judgment.

This case presents two separate questions: (1) whether the four circumstances identified in the Court of
Appeals’ unpublished opinion established a genuine issue of material fact as to whether the seizure violated
respondents’ Fourth Amendment rights, see ante, at 4; (2) whether the officers were nevertheless entitled to
qualified immunity because the right was not clearly established. The fact that the judges on the Court of
Appeals disagreed on both questions convinces me that they should not have announced their decision in an
unpublished opinion.

In answering the first question, the Ninth Circuit majority relied primarily on Franklin v. Foxworth, 31 F. 3d
873 (CA9 1994). As Judge Cowen’s discussion of Franklin demonstrates, that case surely does not clearly
establish the unconstitutionality of the officers’ conduct.** Consequently, regardless of the proper answer to
the constitutional question, the defendants were entitled to qualified immunity. I would reverse on that ground
and disavow the unwise practice of deciding constitutional questions in advance of the necessity for doing so.
See County of Sacramento v. Lewis, 523 U. S. 833, 859 (1998) (Stevens, J., concurring in judgment).
Accordingly, I concur in the Court’s judgment.

Notes

** See 186Fed. Appx. 765, 767 (2006) (dissenting opinion) (“In Franklin v. Foxworth, 31 F.3d 873 (9th Cir.
1994), we found unconstitutional the officers’ failure to provide clothing to a gravely ill man before exposing
his genitals to twenty-three strangers for over two hours, under circumstances where there was no reason why
the man was not given clothing. Id. at 876–78. We concluded that the detention was conducted in ‘a manner
that wantonly and callously subjected an obviously ill and incapacitated person to entirely unnecessary and
unjustifiable degradation and suffering.’ Id. at 878. Here, in contrast, Plaintiffs were not gravely ill, and their
brief exposure, which lasted, at most, three or four minutes, was outweighed by the safety risks associated
with allowing two occupants to remain in bed under covers during execution of a search warrant”).

TOP

Concurrence

LOS ANGELES COUNTY, CALIFORNIA, et al. v.MAX RETTELE et al.

on petition for writ of certiorari to the united states court of appeals for the ninth circuit

No. 06–605.Decided May 21, 2007

Justice Stevens, with whom Justice Ginsburg joins, concurring in the judgment.

This case presents two separate questions: (1) whether the four circumstances identified in the Court of
Appeals’ unpublished opinion established a genuine issue of material fact as to whether the seizure violated
respondents’ Fourth Amendment rights, see ante, at 4; (2) whether the officers were nevertheless entitled to
qualified immunity because the right was not clearly established. The fact that the judges on the Court of
Appeals disagreed on both questions convinces me that they should not have announced their decision in an
unpublished opinion.
In answering the first question, the Ninth Circuit majority relied primarily on Franklin v. Foxworth, 31 F. 3d
873 (CA9 1994). As Judge Cowen’s discussion of Franklin demonstrates, that case surely does not clearly
establish the unconstitutionality of the officers’ conduct.** Consequently, regardless of the proper answer to
the constitutional question, the defendants were entitled to qualified immunity. I would reverse on that ground
and disavow the unwise practice of deciding constitutional questions in advance of the necessity for doing so.
See County of Sacramento v. Lewis, 523 U. S. 833, 859 (1998) (Stevens, J., concurring in judgment).
Accordingly, I concur in the Court’s judgment.

Notes

** See 186Fed. Appx. 765, 767 (2006) (dissenting opinion) (“In Franklin v. Foxworth, 31 F.3d 873 (9th Cir.
1994), we found unconstitutional the officers’ failure to provide clothing to a gravely ill man before exposing
his genitals to twenty-three strangers for over two hours, under circumstances where there was no reason why
the man was not given clothing. Id. at 876–78. We concluded that the detention was conducted in ‘a manner
that wantonly and callously subjected an obviously ill and incapacitated person to entirely unnecessary and
unjustifiable degradation and suffering.’ Id. at 878. Here, in contrast, Plaintiffs were not gravely ill, and their
brief exposure, which lasted, at most, three or four minutes, was outweighed by the safety risks associated
with allowing two occupants to remain in bed under covers during execution of a search warrant”).

TOP

Concurrence

LOS ANGELES COUNTY, CALIFORNIA, et al. v.MAX RETTELE et al.

on petition for writ of certiorari to the united states court of appeals for the ninth circuit

No. 06–605.Decided May 21, 2007

Justice Stevens, with whom Justice Ginsburg joins, concurring in the judgment.

This case presents two separate questions: (1) whether the four circumstances identified in the Court of
Appeals’ unpublished opinion established a genuine issue of material fact as to whether the seizure violated
respondents’ Fourth Amendment rights, see ante, at 4; (2) whether the officers were nevertheless entitled to
qualified immunity because the right was not clearly established. The fact that the judges on the Court of
Appeals disagreed on both questions convinces me that they should not have announced their decision in an
unpublished opinion.

In answering the first question, the Ninth Circuit majority relied primarily on Franklin v. Foxworth, 31 F. 3d
873 (CA9 1994). As Judge Cowen’s discussion of Franklin demonstrates, that case surely does not clearly
establish the unconstitutionality of the officers’ conduct.** Consequently, regardless of the proper answer to
the constitutional question, the defendants were entitled to qualified immunity. I would reverse on that ground
and disavow the unwise practice of deciding constitutional questions in advance of the necessity for doing so.
See County of Sacramento v. Lewis, 523 U. S. 833, 859 (1998) (Stevens, J., concurring in judgment).
Accordingly, I concur in the Court’s judgment.

Notes

** See 186Fed. Appx. 765, 767 (2006) (dissenting opinion) (“In Franklin v. Foxworth, 31 F.3d 873 (9th Cir.
1994), we found unconstitutional the officers’ failure to provide clothing to a gravely ill man before exposing
his genitals to twenty-three strangers for over two hours, under circumstances where there was no reason why
the man was not given clothing. Id. at 876–78. We concluded that the detention was conducted in ‘a manner
that wantonly and callously subjected an obviously ill and incapacitated person to entirely unnecessary and
unjustifiable degradation and suffering.’ Id. at 878. Here, in contrast, Plaintiffs were not gravely ill, and their
brief exposure, which lasted, at most, three or four minutes, was outweighed by the safety risks associated
with allowing two occupants to remain in bed under covers during execution of a search warrant”).

DAVID LEON RILEY, PETITIONER

13–132 v.

CALIFORNIA

on writ of certiorari to the court of appeal of cali-fornia, fourth appellate district, division one

UNITED STATES, PETITIONER

13–212 v.

BRIMA WURIE

on writ of certiorari to the united states court of appeals for the first circuit

[June 25, 2014]

Chief Justice Roberts delivered the opinion of the Court.

These two cases raise a common question: whether the police may, without a warrant, search digital
information on a cell phone seized from an individual who has been arrested.

In the first case, petitioner David Riley was stopped by a police officer for driving with expired
registration tags. In the course of the stop, the officer also learned that Riley’s license had been suspended.
The officer impounded Riley’s car, pursuant to department policy, and another officer conducted an inventory
search of the car. Riley was arrested for possession of concealed and loaded firearms when that search turned
up two handguns under the car’s hood. See Cal. Penal Code Ann. §§12025(a)(1), 12031(a)(1) (West 2009).
An officer searched Riley incident to the arrest and found items associated with the “Bloods” street gang.
He also seized a cell phone from Riley’s pants pocket. According to Riley’s uncontradicted assertion, the phone
was a “smart phone,” a cell phone with a broad range of other functions based on advanced computing
capability, large storage capacity, and Internet connectivity. The officer accessed information on the phone
and noticed that some words (presumably in text messages or a contacts list) were preceded by the letters
“CK”—a label that, he believed, stood for “Crip Killers,” a slang term for members of the Bloods gang.

At the police station about two hours after the arrest, a detective specializing in gangs further examined
the contents of the phone. The detective testified that he “went through” Riley’s phone “looking for evidence,
because . . . gang members will often video themselves with guns or take pictures of themselves with the guns.”
App. in No. 13–132, p. 20. Although there was “a lot of stuff” on the phone, particular files that “caught [the
detective’s] eye” included videos of young men sparring while someone yelled encouragement using the moniker
“Blood.” Id., at 11–13. The police also found photographs of Riley standing in front of a car they suspected had
been involved in a shooting a few weeks earlier.

Riley was ultimately charged, in connection with that earlier shooting, with firing at an occupied vehicle,
assault with a semiautomatic firearm, and attempted murder. The State alleged that Riley had committed
those crimes for the benefit of a criminal street gang, an aggravating factor that carries an enhanced
sentence. Compare Cal. Penal Code Ann. §246 (2008) with §186.22(b)(4)(B) (2014). Prior to trial, Riley moved to
suppress all evidence that the police had obtained from his cell phone. He contended that the searches of his
phone violated the Fourth Amendment, because they had been performed without a warrant and were not
otherwise justified by exigent circumstances. The trial court rejected that argument. App. in No. 13–132, at
24, 26. At Riley’s trial, police officers testified about the photographs and videos found on the phone, and
some of the photographs were admitted into evidence. Riley was convicted on all three counts and received an
enhanced sentence of 15 years to life in prison.

The California Court of Appeal affirmed. No. D059840 (Cal. App., Feb. 8, 2013), App. to Pet. for Cert. in No.
13–132, pp. 1a–23a. The court relied on the California Supreme Court’s decision in People v. Diaz, 51 Cal. 4th 84,
244 P. 3d 501 (2011), which held that the Fourth Amendment permits a warrantless search of cell phone data
incident to an arrest, so long as the cell phone was immediately associated with the arrestee’s person. See id.,
at 93, 244 P. 3d, at 505–506.

The California Supreme Court denied Riley’s petition for review, App. to Pet. for Cert. in No. 13–132, at 24a,
and we granted certiorari, 571 U. S. ___ (2014).

In the second case, a police officer performing routine surveillance observed respondent Brima Wurie make
an apparent drug sale from a car. Officers subsequently arrested Wurie and took him to the police station. At
the station, the officers seized two cell phones from Wurie’s person. The one at issue here was a “flip phone,”
a kind of phone that is flipped open for use and that generally has a smaller range of features than a smart
phone. Five to ten minutes after arriving at the station, the officers noticed that the phone was repeatedly
receiving calls from a source identified as “my house” on the phone’s external screen. A few minutes later, they
opened the phone and saw a photograph of a woman and a baby set as the phone’s wallpaper. They pressed one
button on the phone to access its call log, then another button to determine the phone number associated with
the “my house” label. They next used an online phone directory to trace that phone number to an apartment
building.

When the officers went to the building, they saw Wurie’s name on a mailbox and observed through a window
a woman who resembled the woman in the photograph on Wurie’s phone. They secured the apartment while
obtaining a search warrant and, upon later executing the warrant, found and seized 215 grams of crack cocaine,
mari-juana, drug paraphernalia, a firearm and ammunition, and cash.

Wurie was charged with distributing crack cocaine, possessing crack cocaine with intent to distribute, and
being a felon in possession of a firearm and ammunition. See 18 U. S. C. §922(g); 21 U. S. C. §841(a). He moved
to suppress the evidence obtained from the search of the apartment, arguing that it was the fruit of an
unconstitutional search of his cell phone. The District Court denied the motion. 612 F. Supp. 2d 104 (Mass.
2009). Wurie was convicted on all three counts and sentenced to 262 months in prison.

A divided panel of the First Circuit reversed the denial of Wurie’s motion to suppress and vacated Wurie’s
convictions for possession with intent to distribute and possession of a firearm as a felon. 728 F. 3d 1 (2013).
The court held that cell phones are distinct from other physical possessions that may be searched incident to
arrest without a warrant, because of the amount of personal data cell phones contain and the negligible threat
they pose to law enforcement interests. See id., at 8–11.

We granted certiorari. 571 U. S. ___ (2014).

II

The Fourth Amendment provides:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported
by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be
seized.”

As the text makes clear, “the ultimate touchstone of the Fourth Amendment is ‘reasonableness.’ ” Brigham
City v. Stuart, 547 U. S. 398, 403 (2006) . Our cases have determined that “[w]here a search is undertaken by
law enforcement officials to discover evidence of criminal wrongdoing, . . . reasonableness generally requires
the obtaining of a judicial warrant.” Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 653 (1995) . Such a
warrant ensures that the inferences to support a search are “drawn by a neutral and detached magistrate
instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.”
Johnson v. United States, 333 U. S. 10, 14 (1948) . In the absence of a warrant, a search is reasonable only if
it falls within a specific exception to the warrant requirement. See Kentucky v. King, 563 U. S. ___, ___ (2011)
(slip op., at 5–6).

The two cases before us concern the reasonableness of a warrantless search incident to a lawful arrest. In
1914, this Court first acknowledged in dictum “the right on the part of the Government, always recognized
under English and American law, to search the person of the accused when legally arrested to discover and
seize the fruits or evidences of crime.” Weeks v. United States, 232 U. S. 383 . Since that time, it has been
well accepted that such a search constitutes an exception to the warrant requirement. Indeed, the label
“exception” is something of a misnomer in this context, as warrantless searches incident to arrest occur with
far greater frequency than searches conducted pursuant to a warrant. See 3 W. LaFave, Search and Seizure
§5.2(b), p. 132, and n. 15 (5th ed. 2012).

Although the existence of the exception for such searches has been recognized for a century, its scope has
been de-bated for nearly as long. See Arizona v. Gant, 556 U. S. 332, 350 (2009) (noting the exception’s
“checkered his-tory”). That debate has focused on the extent to which officers may search property found on
or near the arrestee. Three related precedents set forth the rules governing such searches:
The first, Chimel v. California, 395 U. S. 752 (1969) , laid the groundwork for most of the existing search
incident to arrest doctrine. Police officers in that case arrested Chimel inside his home and proceeded to
search his entire three-bedroom house, including the attic and garage. In particular rooms, they also looked
through the contents of drawers. Id., at 753–754.

The Court crafted the following rule for assessing the reasonableness of a search incident to arrest:

“When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to
remove any weapons that the latter might seek to use in order to resist arrest or effect his escape.
Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is
entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in
order to prevent its concealment or destruction. . . . There is ample justification, therefore, for a search of
the arrestee’s person and the area ‘within his immediate control’—construing that phrase to mean the area
from within which he might gain possession of a weapon or destructible evidence.” Id., at 762–763.

The extensive warrantless search of Chimel’s home did not fit within this exception, because it was not needed
to protect officer safety or to preserve evidence. Id., at 763, 768.

Four years later, in United States v. Robinson, 414 U. S. 218 (1973) , the Court applied the Chimel analysis
in the context of a search of the arrestee’s person. A police officer had arrested Robinson for driving with a
revoked license. The officer conducted a patdown search and felt an object that he could not identify in
Robinson’s coat pocket. He removed the object, which turned out to be a crumpled cigarette package, and
opened it. Inside were 14 capsules of heroin. Id., at 220, 223.

The Court of Appeals concluded that the search was unreasonable because Robinson was unlikely to have
evidence of the crime of arrest on his person, and because it believed that extracting the cigarette package
and opening it could not be justified as part of a protective search for weapons. This Court reversed, rejecting
the notion that “case-by-case adjudication” was required to determine “whether or not there was present one
of the reasons supporting the authority for a search of the person incident to a lawful arrest.” Id., at 235. As
the Court explained, “[t]he authority to search the person incident to a lawful custodial arrest, while based
upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the
probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of
the suspect.” Ibid. Instead, a “custodial arrest of a suspect based on probable cause is a reasonable intrusion
under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no
additional justification.” Ibid.

The Court thus concluded that the search of Robinson was reasonable even though there was no concern
about the loss of evidence, and the arresting officer had no specific concern that Robinson might be armed.
Id., at 236. In doing so, the Court did not draw a line between a search of Robinson’s person and a further
examination of the cigarette pack found during that search. It merely noted that, “[h]aving in the course of a
lawful search come upon the crumpled package of cigarettes, [the officer] was entitled to inspect it.” Ibid. A
few years later, the Court clarified that this exception was limited to “personal property . . . immediately
associated with the person of the arrestee.” United States v. Chadwick, 433 U. S. 1, 15 (1977) (200-pound,
locked footlocker could not be searched incident to arrest), abrogated on other grounds by California v.
Acevedo, 500 U. S. 565 (1991) .

The search incident to arrest trilogy concludes with Gant, which analyzed searches of an arrestee’s vehicle.
Gant, like Robinson, recognized that the Chimel concerns for officer safety and evidence preservation underlie
the search incident to arrest exception. See 556 U. S., at 338. As a result, the Court concluded that Chimel
could authorize police to search a vehicle “only when the arrestee is unsecured and within reaching distance of
the passenger compartment at the time of the search.” 556 U. S., at 343. Gant added, however, an
independent exception for a warrantless search of a vehicle’s passenger compartment “when it is ‘reasonable to
believe evidence relevant to the crime of arrest might be found in the vehicle.’ ” Ibid. (quoting Thornton v.
United States, 541 U. S. 615, 632 (2004) (Scalia, J., concurring in judgment)). That exception stems not from
Chimel, the Court explained, but from “circumstances unique to the vehicle context.” 556 U. S., at 343.

III

These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones,
which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might
conclude they were an important feature of human anatomy. A smart phone of the sort taken from Riley was
unheard of ten years ago; a significant majority of American adults now own such phones. See A. Smith, Pew
Research Center, Smartphone Ownership—2013 Update (June 5, 2013). Even less sophisticated phones like
Wurie’s, which have already faded in popularity since Wurie was arrested in 2007, have been around for less
than 15 years. Both phones are based on technology nearly inconceivable just a few decades ago, when Chimel
and Robinson were decided.

Absent more precise guidance from the founding era, we generally determine whether to exempt a given
type of search from the warrant requirement “by assessing, on the one hand, the degree to which it intrudes
upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate
governmental interests.” Wyoming v. Houghton, 526 U. S. 295, 300 (1999) . Such a balancing of interests
supported the search incident to arrest exception in Robinson, and a mechanical application of Robinson might
well support the warrantless searches at issue here.

But while Robinson’s categorical rule strikes the appropriate balance in the context of physical objects,
neither of its rationales has much force with respect to digital content on cell phones. On the government
interest side, Robinson concluded that the two risks identified in Chimel—harm to officers and destruction of
evidence—are present in all custodial arrests. There are no comparable risks when the search is of digital data.
In addition, Robinson regarded any privacy interests retained by an individual after arrest as significantly
diminished by the fact of the arrest itself. Cell phones, however, place vast quantities of personal information
literally in the hands of individuals. A search of the information on a cell phone bears little resemblance to the
type of brief physical search considered in Robinson.

We therefore decline to extend Robinson to searches of data on cell phones, and hold instead that officers
must generally secure a warrant before conducting such a search.

We first consider each Chimel concern in turn. In doing so, we do not overlook Robinson’s admonition that
searches of a person incident to arrest, “while based upon theneed to disarm and to discover evidence,” are
reasonable regardless of “the probability in a particular arrest situation that weapons or evidence would in
fact be found.” 414 U. S., at 235. Rather than requiring the “case-by-case adjudication” that Robinson
rejected, ibid., we ask instead whether application of the search incident to arrest doctrine to this particular
category of effects would “untether the rule from the justifications underlying the Chimel exception,” Gant,
supra, at 343. See also Knowles v. Iowa, 525 U. S. 113, 119 (1998) (declining to extend Robinson to the issuance
of citations, “a situation where the concern for officer safety is not present to the same extent and the
concern for destruction or loss of evidence is not present at all”).

1
Digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to
effectuate the arrestee’s escape. Law enforcement officers remain free to examine the physical aspects of a
phone to ensure that it will not be used as a weapon—say, to determine whether there is a razor blade hidden
between the phone and its case. Once an officer has secured a phone and eliminated any potential physical
threats, however, data on the phone can endanger no one.

Perhaps the same might have been said of the cigarette pack seized from Robinson’s pocket. Once an
officer gained control of the pack, it was unlikely that Robinson could have accessed the pack’s contents. But
unknown physical objects may always pose risks, no matter how slight, during the tense atmosphere of a
custodial arrest. The officer in Robinson testified that he could not identify the objects in the cigarette pack
but knew they were not cigarettes. See 414 U. S., at 223, 236, n. 7. Given that, a further search was a
reasonable protective measure. No such unknowns exist with respect to digital data. As the First Circuit
explained, the officers who searched Wurie’s cell phone “knew exactly what they would find therein: data.
They also knew that the data could not harm them.” 728 F. 3d, at 10.

The United States and California both suggest that a search of cell phone data might help ensure officer
safety in more indirect ways, for example by alerting officers that confederates of the arrestee are headed
to the scene. There is undoubtedly a strong government interest in warning officers about such possibilities,
but neither the United States nor California offers evidence to suggest that their concerns are based on
actual experience. The proposed consideration would also represent a broadening of Chimel’s concern that an
arrestee himself might grab a weapon and use it against an officer “to resist arrest or effect his escape.” 395
U. S., at 763. And any such threats from outside the arrest scene do not “lurk[ ] in all custodial arrests.”
Chadwick, 433 U. S., at 14–15. Accordingly, the interest in protecting officer safety does not justify
dispensing with the warrant requirement across the board. To the extent dangers to arresting officers may be
implicated in a particular way in a particular case, they are better addressed through consideration of case-
specific exceptions to the warrant requirement, such as the one for exigent circumstances. See, e.g., Warden,
Md. Penitentiary v. Hayden, 387 U. S. 294 –299 (1967) (“The Fourth Amendment does not require police
officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of
others.”).

The United States and California focus primarily on the second Chimel rationale: preventing the destruction
of evidence.

Both Riley and Wurie concede that officers could have seized and secured their cell phones to prevent
destruction of evidence while seeking a warrant. See Brief for Petitioner in No. 13–132, p. 20; Brief for
Respondent in No. 13–212, p. 41. That is a sensible concession. See Illinois v. McArthur, 531 U. S. 326 –333
(2001); Chadwick, supra, at 13, and n. 8. And once law enforcement officers have secured a cell phone, there is
no longer any risk that the arrestee himself will be able to delete incriminating data from the phone.

The United States and California argue that information on a cell phone may nevertheless be vulnerable to
two types of evidence destruction unique to digital data—remote wiping and data encryption. Remote wiping
occurs when a phone, connected to a wireless network, receives a signal that erases stored data. This can
happen when a third party sends a remote signal or when a phone is preprogrammed to delete data upon
entering or leaving certain geographic areas (so-called “geofencing”). See Dept. of Commerce, National
Institute of Standards and Technology, R. Ayers, S. Brothers, & W. Jansen, Guidelines on Mobile Device
Forensics (Draft) 29, 31 (SP 800–101 Rev. 1, Sept. 2013) (hereinafter Ayers). Encryption is a security feature
that some modern cell phones use in addition to password protection. When such phones lock, data becomes
protected by sophisticated encryption that renders a phone all but “unbreakable” unless police know the
password. Brief for United States as Amicus Curiae in No. 13–132, p. 11.

As an initial matter, these broader concerns about the loss of evidence are distinct from Chimel’s focus on
a defendant who responds to arrest by trying to conceal or destroy evidence within his reach. See 395 U. S.,
at 763–764. With respect to remote wiping, the Government’s primary concern turns on the actions of third
parties who are not present at the scene of arrest. And data encryption is even further afield. There, the
Government focuses on the ordinary operation of a phone’s security features, apart from any active attempt
by a defendant or his associates to conceal or destroy evidence upon arrest.

We have also been given little reason to believe that either problem is prevalent. The briefing reveals only a
couple of anecdotal examples of remote wiping triggered by an arrest. See Brief for Association of State
Criminal Investigative Agencies et al. as Amici Curiae in No. 13–132, pp. 9–10; see also Tr. of Oral Arg. in No.
13–132,p. 48. Similarly, the opportunities for officers to search a password-protected phone before data
becomes encrypted are quite limited. Law enforcement officers are very unlikely to come upon such a phone in
an unlocked state because most phones lock at the touch of a button or, as a default, after some very short
period of inactivity. See, e.g., iPhone User Guide for iOS 7.1 Software 10 (2014) (default lock after about one
minute). This may explain why the encryption argument was not made until the merits stage in this Court, and
has never been considered by the Courts of Appeals.

Moreover, in situations in which an arrest might trigger a remote-wipe attempt or an officer discovers an
unlocked phone, it is not clear that the ability to conduct a warrantless search would make much of a
difference. The need to effect the arrest, secure the scene, and tend to other press-ing matters means that
law enforcement officers may well not be able to turn their attention to a cell phone right away. See Tr. of
Oral Arg. in No. 13–132, at 50; see also Brief for United States as Amicus Curiae in No. 13–132, at 19. Cell
phone data would be vulnerable to remote wiping from the time an individual anticipates arrest to the time any
eventual search of the phone is completed, which might be at the station house hours later. Likewise, an
officer who seizes a phone in an unlocked state might not be able to begin his search in the short time
remaining before the phone locks and data becomes encrypted.

In any event, as to remote wiping, law enforcement is not without specific means to address the threat.
Remote wiping can be fully prevented by disconnecting a phone from the network. There are at least two
simple ways to do this: First, law enforcement officers can turn the phone off or remove its battery. Second,
if they are concerned about encryption or other potential problems, they can leave a phone powered on and
place it in an enclosure that isolates the phone from radio waves. See Ayers 30–31. Such devices are commonly
called “Faraday bags,” after the English scientist Michael Faraday. They are essentially sandwich bags made of
aluminum foil: cheap, lightweight, and easy to use. See Brief for Criminal Law Professors as Amici Curiae 9.
They may not be a complete answer to the problem, see Ayers 32, but at least for now they provide a
reasonable response. In fact, a number of law enforcement agencies around the country already encourage the
use of Faraday bags. See, e.g., Dept. of Justice, National Institute of Justice, Electronic Crime Scene
Investigation: A Guide for First Responders 14, 32 (2d ed. Apr. 2008); Brief for Criminal Law Professors as
Amici Curiae 4–6.

To the extent that law enforcement still has specific concerns about the potential loss of evidence in a
particular case, there remain more targeted ways to address those concerns. If “the police are truly
confronted with a ‘now or never’ situation,”—for example, circumstances suggesting that a defendant’s phone
will be the target of an imminent remote-wipe attempt—they may be able to rely on exigent circumstances to
search the phone immediately. Missouri v. McNeely, 569 U. S. ___, ___ (2013) (slip op., at 10) (quoting Roaden
v. Kentucky, 413 U. S. 496, 505 (1973) ; some internal quotation marks omitted). Or, if officers happen to seize
a phone in an unlocked state, they may be able to disable a phone’s automatic-lock feature in order to prevent
the phone from locking and encrypting data. See App. to Reply Brief in No. 13–132, p. 3a (diagramming the few
necessary steps). Such a preventive measure could be analyzed under the principles set forth in our decision in
McArthur, 531 U. S. 326 , which approved officers’ reasonable steps to secure a scene to preserve evidence
while they awaited a warrant. See id., at 331–333.

The search incident to arrest exception rests not only on the heightened government interests at stake in a
volatile arrest situation, but also on an arrestee’s reduced privacy interests upon being taken into police
custody. Robinson focused primarily on the first of those rationales. But it also quoted with approval then-
Judge Cardozo’s account of the historical basis for the search incident to arrest exception: “Search of the
person becomes lawful when grounds for arrest and accusation have been discovered, and the law is in the act
of subjecting the body of the accused to its physical dominion.” 414 U. S., at 232 (quoting People v. Chiagles,
237 N. Y. 193, 197, 142 N. E. 583, 584 (1923)); see also 414 U. S., at 237 (Powell, J., concurring) (“an individual
lawfully subjected to a custodial arrest retains no significant Fourth Amendment interest in the privacy of his
person”). Put simply, a patdown of Robinson’s cloth-ing and an inspection of the cigarette pack found in his
pocket constituted only minor additional intrusions compared to the substantial government authority
exercised in taking Robinson into custody. See Chadwick, 433 U. S., at 16, n. 10 (searches of a person are
justified in part by “reduced expectations of privacy caused by the arrest”).

The fact that an arrestee has diminished privacy interests does not mean that the Fourth Amendment falls
out of the picture entirely. Not every search “is acceptable solely because a person is in custody.” Maryland v.
King, 569 U. S. ___, ___ (2013) (slip op., at 26). To the contrary, when “privacy-related concerns are weighty
enough” a “search may require a warrant, notwithstanding the diminished expectations of privacy of the
arrestee.” Ibid. One such example, of course, is Chimel. Chimel refused to “characteriz[e] the invasion of
privacy that results from a top-to-bottom search of a man’s house as ‘minor.’ ” 395 U. S., at 766–767, n. 12.
Because a search of the arrestee’s entire house was a substantial invasion beyond the arrest itself, the Court
concluded that a warrant was required.

Robinson is the only decision from this Court applying Chimel to a search of the contents of an item found
on an arrestee’s person. In an earlier case, this Court had approved a search of a zipper bag carried by an
arrestee, but the Court analyzed only the validity of the arrest itself. See Draper v. United States, 358 U. S.
307 –311 (1959). Lower courts applying Robinson and Chimel, however, have approved searches of a variety of
personal items carried by an arrestee. See, e.g., United States v. Carrion, 809 F. 2d 1120, 1123, 1128 (CA5
1987) (billfold and address book); United States v. Watson, 669 F. 2d 1374, 1383–1384 (CA11 1982) (wallet);
United States v. Lee, 501 F. 2d 890, 892 (CADC 1974) (purse).

The United States asserts that a search of all data stored on a cell phone is “materially indistinguishable”
from searches of these sorts of physical items. Brief for United States in No. 13–212, p. 26. That is like saying
a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from
point A to point B, but little else justifies lumping them together. Modern cell phones, as a category, implicate
privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse. A
conclusion that inspecting the contents of an arrestee’s pockets works no substantial additional intrusion on
privacy beyond the arrest itself may make sense as applied to physical items, but any extension of that
reasoning to digital data has to rest on its own bottom.

Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on
an arrestee’s person. The term “cell phone” is itself misleading shorthand; many of these devices are in fact
minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be
called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps,
or newspapers.

One of the most notable distinguishing features of modern cell phones is their immense storage capacity.
Before cell phones, a search of a person was limited by physical realities and tended as a general matter to
constitute only a narrow intrusion on privacy. See Kerr, Foreword: Accounting for Technological Change, 36
Harv. J. L. & Pub. Pol’y 403, 404–405 (2013). Most people cannot lug around every piece of mail they have
received for the past several months, every picture they have taken, or every book or article they have read—
nor would they have any reason to attempt to do so. And if they did, they would have to drag behind them a
trunk of the sort held to require a search warrant in Chadwick, supra, rather than a container the size of the
cigarette package in Robinson.

But the possible intrusion on privacy is not physically limited in the same way when it comes to cell phones.
The current top-selling smart phone has a standard capacity of 16 gigabytes (and is available with up to 64
gigabytes). Sixteen gigabytes translates to millions of pages of text, thousands of pictures, or hundreds of
videos. See Kerr, supra, at 404; Brief for Center for Democracy & Technol-ogy et al. as Amici Curiae 7–8. Cell
phones couple that capacity with the ability to store many different types of information: Even the most basic
phones that sell for less than $20 might hold photographs, picture messages, text messages, Internet
browsing history, a calendar, a thousand-entry phone book, and so on. See id., at 30; United States v. Flores-
Lopez, 670 F. 3d 803, 806 (CA7 2012). We expect that the gulf between physical practicability and digital
capacity will only continue to widen in the future.

The storage capacity of cell phones has several interrelated consequences for privacy. First, a cell phone
collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a
video—that reveal much more in combination than any isolated record. Second, a cell phone’s capacity allows
even just one type of information to convey far more than previously possible. The sum of an individual’s
private life can be reconstructed through a thousand photographs labeled with dates, locations, and
descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet. Third, the
data on a phone can date back to the purchase of the phone, or even earlier. A person might carry in his pocket
a slip of paper reminding him to call Mr. Jones; he would not carry a record of all his communications with Mr.
Jones for the past several months, as would routinely be kept on a phone.[1]

Finally, there is an element of pervasiveness that characterizes cell phones but not physical records. Prior
to the digital age, people did not typically carry a cache of sensitive personal information with them as they
went about their day. Now it is the person who is not carrying a cell phone, with all that it contains, who is the
exception. According to one poll, nearly three-quarters of smart phone users report being within five feet of
their phones most of the time, with 12% admitting that they even use their phones in the shower. See Harris
Interactive, 2013 Mobile Consumer Habits Study (June 2013). A decade ago police officers searching an
arrestee might have occasionally stumbled across a highly personal item such as a diary. See, e.g., United
States v. Frankenberry, 387 F. 2d 337 (CA2 1967) (per curiam). But those discoveries were likely to be few
and far between. Today, by contrast, it is no exaggeration to say that many of the more than 90% of American
adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives—from
the mundane to the intimate. See Ontario v. Quon, 560 U. S. 746, 760 (2010) . Allowing the police to scrutinize
such records on a routine basis is quite different from allowing them to search a personal item or two in the
occasional case.

Although the data stored on a cell phone is distinguished from physical records by quantity alone, certain
types of data are also qualitatively different. An Internet search and browsing history, for example, can be
found on an Internet-enabled phone and could reveal an individual’s private interests or concerns—perhaps a
search for certain symptoms of disease, coupled with frequent visits to WebMD. Data on a cell phone can also
reveal where a person has been. Historic location information is a stand-ard feature on many smart phones and
can reconstruct someone’s specific movements down to the minute, not only around town but also within a
particular building. See United States v. Jones, 565 U. S. ___, ___ (2012) (Sotomayor, J., concurring) (slip op.,
at 3) (“GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects
a wealth of detail about her familial, political, professional, religious, and sexual associations.”).

Mobile application software on a cell phone, or “apps,” offer a range of tools for managing detailed
information about all aspects of a person’s life. There are apps for Democratic Party news and Republican Party
news; apps for alcohol, drug, and gambling addictions; apps for sharing prayer requests; apps for tracking
pregnancy symptoms; apps for planning your budget; apps for every conceivable hobby or pastime; apps for
improving your romantic life. There are popular apps for buying or selling just about anything, and the records
of such transactions may be accessible on the phone indefinitely. There are over a million apps available in each
of the two major app stores; the phrase “there’s an app for that” is now part of the popular lexicon. The
average smart phone user has installed 33 apps, which together can form a revealing montage of the user’s life.
See Brief for Electronic Privacy Information Center as Amicus Curiae in No. 13–132, p. 9.

In 1926, Learned Hand observed (in an opinion later quoted in Chimel) that it is “a totally different thing to
search a man’s pockets and use against him what they contain, from ransacking his house for everything which
may incriminate him.” United States v. Kirschenblatt, 16 F. 2d 202, 203 (CA2). If his pockets contain a cell
phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government
far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive
records previ-ously found in the home; it also contains a broad array of private information never found in a
home in any form—unless the phone is.

To further complicate the scope of the privacy interests at stake, the data a user views on many modern
cell phones may not in fact be stored on the device itself. Treating a cell phone as a container whose contents
may be searched incident to an arrest is a bit strained as an initial matter. See New York v. Belton, 453 U. S.
454, 460, n. 4 (1981) (describing a “container” as “any object capable of holding another object”). But the
analogy crumbles entirely when a cell phone is used to access data located elsewhere, at the tap of a screen.
That is what cell phones, with increasing frequency, are designed to do by taking advantage of “cloud
computing.” Cloud computing is the capacity of Internet-connected devices to display data stored on remote
servers rather than on the device itself. Cell phone users often may not know whether particular information is
stored on the device or in the cloud, and it generally makes little difference. See Brief for Electronic Privacy
Information Center in No. 13–132, at 12–14, 20. Moreover, the same type of data may be stored locally on the
device for one user and in the cloud for another.

The United States concedes that the search incident to arrest exception may not be stretched to cover a
search of files accessed remotely—that is, a search of files stored in the cloud. See Brief for United States
in No. 13–212, at 43–44. Such a search would be like finding a key in a suspect’s pocket and arguing that it
allowed law enforcement to unlock and search a house. But officers searching a phone’s data would not typically
know whether the information they are viewing was stored locally at the time of the arrest or has been pulled
from the cloud.

Although the Government recognizes the problem, its proposed solutions are unclear. It suggests that
officers could disconnect a phone from the network before searching the device—the very solution whose
feasibility it contested with respect to the threat of remote wiping. Compare Tr. of Oral Arg. in No. 13–132, at
50–51, with Tr. of Oral Arg. in No. 13–212, pp. 13–14. Alternatively, the Government proposes that law
enforcement agencies “develop protocols to address” concerns raised by cloud computing. Reply Brief in No.
13–212, pp. 14–15. Probably a good idea, but the Founders did not fight a revolution to gain the right to
government agency protocols. The possibility that a search might extend well beyond papers and effects in the
physical proximity of an arrestee is yet another reason that the privacy interests here dwarf those in
Robinson.

Apart from their arguments for a direct extension of Robinson, the United States and California offer
various fallback options for permitting warrantless cell phone searches under certain circumstances. Each of
the proposals is flawed and contravenes our general preference to provide clear guidance to law enforcement
through categorical rules. “[I]f police are to have workable rules, the balancing of the competing interests . . .
‘must in large part be done on a categorical basis—not in an ad hoc, case-by-case fashion by individual police
officers.’ ” Michigan v. Summers, 452 U. S. 692, 705, n. 19 (1981) (quoting Dunaway v. New York, 442 U. S. 200
–220 (1979) (White, J., concurring)).

The United States first proposes that the Gant standard be imported from the vehicle context, allowing a
warrantless search of an arrestee’s cell phone whenever it is reasonable to believe that the phone contains
evidence of the crime of arrest. But Gant relied on “circumstances unique to the vehicle context” to endorse a
search solely for the purpose of gathering evidence. 556 U. S., at 343. Justice Scalia’s Thornton opinion, on
which Gant was based, explained that those unique circumstances are “a reduced expectation of privacy” and
“heightened law enforcement needs” when it comes to motor vehicles. 541 U. S., at 631; see also Wyoming v.
Houghton, 526 U. S., at 303–304. For reasons that we have explained, cell phone searches bear neither of
those characteristics.

At any rate, a Gant standard would prove no practical limit at all when it comes to cell phone searches. In
the vehicle context, Gant generally protects against searches for evidence of past crimes. See 3 W. LaFave,
Search and Seizure §7.1(d), at 709, and n. 191. In the cell phone context, however, it is reasonable to expect
that incriminating information will be found on a phone regardless of when the crime occurred. Similarly, in the
vehicle context Gant restricts broad searches resulting from minor crimes such as traffic violations. See id.,
§7.1(d), at 713, and n. 204. That would not necessarily be true for cell phones. It would be a particularly
inexperienced or unimaginative law enforcement officer who could not come up with sev-eral reasons to
suppose evidence of just about any crime could be found on a cell phone. Even an individual pulled over for
something as basic as speeding might well have locational data dispositive of guilt on his phone. An individual
pulled over for reckless driving might have evidence on the phone that shows whether he was texting while
driving. The sources of potential pertinent information are virtually unlimited, so applying the Gant standard to
cell phones would in effect give “police officers unbridled discretion to rummage at will among a person’s
private effects.” 556 U. S., at 345.

The United States also proposes a rule that would restrict the scope of a cell phone search to those areas
of the phone where an officer reasonably believes that infor-mation relevant to the crime, the arrestee’s
identity, or officer safety will be discovered. See Brief for United States in No. 13–212, at 51–53. This
approach would again impose few meaningful constraints on officers. The proposed categories would sweep in a
great deal of information, and officers would not always be able to discern in advance what information would
be found where.

We also reject the United States’ final suggestion that officers should always be able to search a phone’s
call log, as they did in Wurie’s case. The Government relies on Smith v. Maryland, 442 U. S. 735 (1979) , which
held that no warrant was required to use a pen register at telephone company premises to identify numbers
dialed by a particular caller. The Court in that case, however, concluded that the use of a pen register was not
a “search” at all under the Fourth Amendment. See id., at 745–746. There is no dispute here that the officers
engaged in a search of Wurie’s cell phone. Moreover, call logs typically contain more than just phone numbers;
they include any identifying information that an individual might add, such as the label “my house” in Wurie’s
case.

Finally, at oral argument California suggested a different limiting principle, under which officers could
search cell phone data if they could have obtained the same information from a pre-digital counterpart. See
Tr. of Oral Arg. in No. 13–132, at 38–43; see also Flores-Lopez, 670 F. 3d, at 807 (“If police are entitled to
open a pocket diary to copy the owner’s address, they should be entitled to turn on a cell phone to learn its
number.”). But the fact that a search in the pre-digital era could have turned up a photograph or two in a wallet
does not justify a search of thousands of photos in a digital gallery. The fact that someone could have tucked a
paper bank statement in a pocket does not justify a search of every bank statement from the last five years.
And to make matters worse, such an analogue test would allow law enforcement to search a range of items
contained on a phone, even though people would be unlikely to carry such a variety of information in physical
form. In Riley’s case, for example, it is implausible that he would have strolled around with video tapes, photo
albums, and an address book all crammed into his pockets. But because each of those items has a pre-digital
analogue, police under California’s proposal would be able to search a phone for all of those items—a significant
diminution of privacy.

In addition, an analogue test would launch courts on a difficult line-drawing expedition to determine which
digital files are comparable to physical records. Is an e-mail equivalent to a letter? Is a voicemail equivalent to
a phone message slip? It is not clear how officers could make these kinds of decisions before conducting a
search, or how courts would apply the proposed rule after the fact. An analogue test would “keep defendants
and judges guessing for years to come.” Sykes v. United States, 564 U. S. 1 , ___ (2011) (Scalia, J., dissenting)
(slip op., at 7) (discussing the Court’s analogue test under the Armed Career Criminal Act).

IV

We cannot deny that our decision today will have an impact on the ability of law enforcement to combat
crime. Cell phones have become important tools in facilitating coordination and communication among members
of criminal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy
comes at a cost.

Our holding, of course, is not that the information on a cell phone is immune from search; it is instead that
a warrant is generally required before such a search, even when a cell phone is seized incident to arrest. Our
cases have historically recognized that the warrant requirement is “an important working part of our
machinery of gov-ernment,” not merely “an inconvenience to be somehow ‘weighed’ against the claims of police
efficiency.” Coolidge v. New Hampshire, 403 U. S. 443, 481 (1971) . Recent technological advances similar to
those discussed here have, in addition, made the process of obtaining a warrant itself more efficient. See
McNeely, 569 U. S., at ___ (slip op., at 11–12); id., at ___ (Roberts, C. J., concurring in part and dissenting in
part) (slip op., at 8) (describing jurisdiction where “police officers can e-mail warrant requests to judges’ iPads
[and] judges have signed such warrants and e-mailed them back to officers in less than 15 minutes”).

Moreover, even though the search incident to arrest exception does not apply to cell phones, other case-
specific exceptions may still justify a warrantless search of a particular phone. “One well-recognized exception
applies when ‘ “the exigencies of the situation” make the needs of law enforcement so compelling that [a]
warrantless search is objectively reasonable under the Fourth Amendment.’ ” Kentucky v. King, 563 U. S., at
___ (slip op., at 6) (quoting Mincey v. Arizona, 437 U. S. 385, 394 (1978) ). Such exigencies could include the
need to prevent the imminent destruction of evidence in individual cases, to pursue a fleeing suspect, and to
assist persons who are seriously injured or are threatened with imminent injury. 563 U. S., at ___. In
Chadwick, for example, the Court held that the exception for searches incident to arrest did not justify a
search of the trunk at issue, but noted that “if officers have reason to believe that luggage contains some
immediately dangerous instrumentality, such as explosives, it would be foolhardy to transport it to the station
house without opening the luggage.” 433 U. S., at 15, n. 9.

In light of the availability of the exigent circumstances exception, there is no reason to believe that law
enforcement officers will not be able to address some of the more extreme hypotheticals that have been
suggested: a suspect texting an accomplice who, it is feared, is preparing to detonate a bomb, or a child
abductor who may have information about the child’s location on his cell phone. The defendants here
recognize—indeed, they stress—that such fact-specific threats may justify a warrantless search of cell phone
data. See Reply Brief in No. 13–132, at 8–9; Brief for Respondent in No. 13–212, at 30, 41. The critical point is
that, unlike the search incident to arrest exception, the exigent circumstances exception requires a court to
examine whether an emergency justified a warrantless search in each particular case. See McNeely, supra, at
___ (slip op., at 6).[2]

* * *

Our cases have recognized that the Fourth Amendment was the founding generation’s response to the
reviled “general warrants” and “writs of assistance” of the colonial era, which allowed British officers to
rummage through homes in an unrestrained search for evidence of criminal activity. Opposition to such
searches was in fact one of the driving forces behind the Revolution itself. In 1761, the patriot James Otis
delivered a speech in Boston denouncing the use of writs of assistance. A young John Adams was there, and he
would later write that “[e]very man of a crowded audience appeared to me to go away, as I did, ready to take
arms against writs of assistance.” 10 Works of John Adams 247–248 (C. Adams ed. 1856). According to Adams,
Otis’s speech was “the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then
and there the child Independence was born.” Id., at 248 (quoted in Boyd v. United States, 116 U. S. 616, 625
(1886) ).

Modern cell phones are not just another technological convenience. With all they contain and all they may
reveal, they hold for many Americans “the privacies of life,” Boyd, supra, at 630. The fact that technology now
allows an individual to carry such information in his hand does not make the information any less worthy of the
protection for which the Founders fought. Our answer to the question of what police must do before searching
a cell phone seized incident to an arrest is accordingly simple—get a warrant.

We reverse the judgment of the California Court of Appeal in No. 13–132 and remand the case for further
proceedings not inconsistent with this opinion. We affirm the judgment of the First Circuit in No. 13–212.

It is so ordered.

Notes
1 Because the United States and California agree that these cases involve incident to arrest, these cases do
not implicate the question whether the collection or inspection of aggregated digital information amounts to a
search under other circumstances.

2 In Wurie’s case, for example, the dissenting First Circuit judge argued that exigent circumstances could
have justified a search of Wurie’s phone. See 728 F. 3d 1, 17 (2013) (opinion of Howard, J.) (discussing the
repeated unanswered calls from “my house,” the suspected location of a drug stash). But the majority
concluded that the Government had not made an exigent circumstances argument. See at 1. The Government
acknowledges the same in this Court. See Brief for United States in No. 13–212, p. 28, n. 8.
Republic of the Philippines
Supreme Court
Manila

SECOND DIVISION

RODEL LUZ y ONG, G. R. No. 197788


Petitioner,

Present:

CARPIO, J., Chairperson,


- versus - BRION,
PEREZ,
SERENO, and
REYES, JJ.

PEOPLE OF THE PHILIPPINES,[1] Promulgated:


Respondent.
February 29, 2012

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- x

D E C I S I O N

SERENO, J.:

This is a Petition for Review on Certiorari under Rule 45 seeking to set aside the Court of Appeals
(CA) Decision in CA-G.R. CR No. 32516 dated 18 February 2011[2] and Resolution dated 8 July 2011.

Statement of the Facts and of the Case

The facts, as found by the Regional Trial Court (RTC), which sustained the version of the prosecution,
are as follows:

PO2 Emmanuel L. Alteza, who was then assigned at the Sub-Station 1 of the Naga
City Police Station as a traffic enforcer, substantially testified that on March 10, 2003 at
around 3:00 oclock in the morning, he saw the accused, who was coming from the direction of
Panganiban Drive and going to Diversion Road, Naga City, driving a motorcycle without a
helmet; that this prompted him to flag down the accused for violating a municipal ordinance
which requires all motorcycle drivers to wear helmet (sic) while driving said motor vehicle;
that he invited the accused to come inside their sub-station since the place where he flagged
down the accused is almost in front of the said sub-station; that while he and SPO1 Rayford
Brillante were issuing a citation ticket for violation of municipal ordinance, he noticed that
the accused was uneasy and kept on getting something from his jacket; that he was alerted
and so, he told the accused to take out the contents of the pocket of his jacket as the latter
may have a weapon inside it; that the accused obliged and slowly put out the contents of the
pocket of his jacket which was a nickel-like tin or metal container about two (2) to three (3)
inches in size, including two (2) cellphones, one (1) pair of scissors and one (1) Swiss knife;
that upon seeing the said container, he asked the accused to open it; that after the accused
opened the container, he noticed a cartoon cover and something beneath it; and that upon his
instruction, the accused spilled out the contents of the container on the table which turned
out to be four (4) plastic sachets, the two (2) of which were empty while the other two (2)
contained suspected shabu.[3]

Arraigned on 2 July 2003, petitioner, assisted by counsel, entered a plea of Not guilty to the charge
of illegal possession of dangerous drugs. Pretrial was terminated on 24 September 2003, after which, trial
ensued.

During trial, Police Officer 3 (PO3) Emmanuel Alteza and a forensic chemist testified for the
prosecution. On the other hand, petitioner testified for himself and raised the defense of planting of evidence
and extortion.

In its 19 February 2009 Decision,[4] the RTC convicted petitioner of illegal possession of dangerous
drugs[5] committed on 10 March 2003. It found the prosecution evidence sufficient to show that he had been
lawfully arrested for a traffic violation and then subjected to a valid search, which led to the discovery on his
person of two plastic sachets later found to contain shabu. The RTC also found his defense of frame-up and
extortion to be weak, self-serving and unsubstantiated. The dispositive portion of its Decision held:

WHEREFORE, judgment is hereby rendered, finding accused RODEL LUZ y


ONG GUILTY beyond reasonable doubt for the crime of violation of Section 11, Article II of
Republic Act No. 9165 and sentencing him to suffer the indeterminate penalty of
imprisonment ranging from twelve (12) years and (1) day, as minimum, to thirteen (13) years,
as maximum, and to pay a fine of Three Hundred Thousand Pesos (₱300,000.00).

The subject shabu is hereby confiscated for turn over to the Philippine Drug
Enforcement Agency for its proper disposition and destruction in accordance with law.

SO ORDERED.[6]

Upon review, the CA affirmed the RTCs Decision.


On 12 September 2011, petitioner filed under Rule 45 the instant Petition for Review on Certiorari
dated 1 September 2011. In a Resolution dated 12 October 2011, this Court required respondent to file a
comment on the Petition. On 4 January 2012, the latter filed its Comment dated 3 January 2012.

Petitioner raised the following grounds in support of his Petition:

(i) THE SEARCH AND SEIZURE OF THE ALLEGED SUBJECT SHABU IS


INVALID.

(ii) THE PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF DUTY


OF THE POLICE OFFICER CANNOT BE RELIED UPON IN THIS CASE.

(iii) THE INTEGRITY AND EVIDENTIARY VALUE OF THE ALLEGED


SUBJECT SPECIMEN HAS BEEN COMPROMISED.

(iv) THE GUILT OF THE ACCUSED-PETITIONER WAS NOT PROVEN


BEYOND THE REASONABLE DOUBT (sic).[7]

Petitioner claims that there was no lawful search and seizure, because there was no lawful arrest. He claims
that the finding that there was a lawful arrest was erroneous, since he was not even issued a citation ticket or
charged with violation of the city ordinance. Even assuming there was a valid arrest, he claims that he had
never consented to the search conducted upon him.

On the other hand, finding that petitioner had been lawfully arrested, the RTC held thus:

It is beyond dispute that the accused was flagged down and apprehended in this case by
Police Officers Alteza and Brillante for violation of City Ordinance No. 98-012, an ordinance
requiring the use of crash helmet by motorcycle drivers and riders thereon in the City of
Naga and prescribing penalties for violation thereof. The accused himself admitted that he
was not wearing a helmet at the time when he was flagged down by the said police officers,
albeit he had a helmet in his possession. Obviously, there is legal basis on the part of the
apprehending officers to flag down and arrest the accused because the latter was actually
committing a crime in their presence, that is, a violation of City Ordinance No. 98-012. In
other words, the accused, being caught in flagrante delicto violating the said Ordinance, he
could therefore be lawfully stopped or arrested by the apprehending officers. x x x.[8]

We find the Petition to be impressed with merit, but not for the particular reasons alleged. In criminal cases,
an appeal throws the entire case wide open for review and the reviewing tribunal can correct errors, though
unassigned in the appealed judgment, or even reverse the trial courts decision based on grounds other than
those that the parties raised as errors.[9]
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.[10] 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. [11]

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:

SECTION 29. Confiscation of Driver's License. Law enforcement and peace officers
of other agencies duly deputized by the Director shall, in apprehending a driver for any
violation of this Act or any regulations issued pursuant thereto, or of local traffic rules and
regulations not contrary to any provisions of this Act, confiscate the license of the driver
concerned and issue a receipt prescribed and issued by the Bureau therefor which shall
authorize the driver to operate a motor vehicle for a period not exceeding seventy-two hours
from the time and date of issue of said receipt. The period so fixed in the receipt shall not
be extended, and shall become invalid thereafter. Failure of the driver to settle his case
within fifteen days from the date of apprehension will be a ground for the suspension and/or
revocation of his license.

Similarly, the Philippine National Police (PNP) Operations Manual [12] provides the following procedure for
flagging down vehicles during the conduct of checkpoints:

SECTION 7. Procedure in Flagging Down or Accosting Vehicles While in Mobile Car.


This rule is a general concept and will not apply in hot pursuit operations. The mobile car crew
shall undertake the following, when applicable: x x x

m. If it concerns traffic violations, immediately issue a Traffic Citation Ticket (TCT) or


Traffic Violation Report (TVR). Never indulge in prolonged, unnecessary conversation
or argument with the driver or any of the vehicles occupants;

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.

In Berkemer v. McCarty,[13] the United States (U.S.) Supreme Court discussed at length whether the
roadside questioning of a motorist detained pursuant to a routine traffic stop should be considered custodial
interrogation. The Court held that, such questioning does not fall under custodial interrogation, nor can it be
considered a formal arrest, by virtue of the nature of the questioning, the expectations of the motorist and
the officer, and the length of time the procedure is conducted. It ruled as follows:

It must be acknowledged at the outset that a traffic stop significantly curtails the
freedom of action of the driver and the passengers, if any, of the detained vehicle. Under
the law of most States, it is a crime either to ignore a policemans signal to stop ones car or,
once having stopped, to drive away without permission. x x x

However, we decline to accord talismanic power to the phrase in the Miranda opinion
emphasized by respondent. Fidelity to the doctrine announced in Miranda requires that it be
enforced strictly, but only in those types of situations in which the concerns that powered
the decision are implicated. Thus, we must decide whether a traffic stop exerts upon a
detained person pressures that sufficiently impair his free exercise of his privilege against
self-incrimination to require that he be warned of his constitutional rights.

Two features of an ordinary traffic stop mitigate the danger that a person
questioned will be induced to speak where he would not otherwise do so freely, Miranda v.
Arizona, 384 U. S., at 467. First, detention of a motorist pursuant to a traffic stop is
presumptively temporary and brief. The vast majority of roadside detentions last only a few
minutes. A motorists expectations, when he sees a policemans light flashing behind him, are
that he will be obliged to spend a short period of time answering questions and waiting while
the officer checks his license and registration, that he may then be given a citation, but that
in the end he most likely will be allowed to continue on his way. In this respect, questioning
incident to an ordinary traffic stop is quite different from stationhouse interrogation, which
frequently is prolonged, and in which the detainee often is aware that questioning will
continue until he provides his interrogators the answers they seek. See id., at 451.

Second, circumstances associated with the typical traffic stop are not such that
the motorist feels completely at the mercy of the police. To be sure, the aura of authority
surrounding an armed, uniformed officer and the knowledge that the officer has some
discretion in deciding whether to issue a citation, in combination, exert some pressure on the
detainee to respond to questions. But other aspects of the situation substantially offset
these forces. Perhaps most importantly, the typical traffic stop is public, at least to some
degree. x x x

In both of these respects, the usual traffic stop is more analogous to a so-called
Terry stop, see Terry v. Ohio, 392 U. S. 1 (1968), than to a formal arrest. x x x The
comparatively nonthreatening character of detentions of this sort explains the absence of
any suggestion in our opinions that Terry stops are subject to the dictates of Miranda. The
similarly noncoercive aspect of ordinary traffic stops prompts us to hold that persons
temporarily detained pursuant to such stops are not in custody for the purposes of Miranda.
xxxxxxxxx

We are confident that the state of affairs projected by respondent will not come to
pass. It is settled that the safeguards prescribed by Miranda become applicable as soon as a
suspects freedom of action is curtailed to a degree associated with formal arrest. California
v. Beheler, 463 U. S. 1121, 1125 (1983) (per curiam). If a motorist who has been detained
pursuant to a traffic stop thereafter is subjected to treatment that renders him in custody
for practical purposes, he will be entitled to the full panoply of protections prescribed by
Miranda. See Oregon v. Mathiason, 429 U. S. 492, 495 (1977) (per curiam). (Emphasis
supplied.)

The U.S. Court in Berkemer thus ruled that, since the motorist therein was only subjected to modest questions
while still at the scene of the traffic stop, he was not at that moment placed under custody (such that he
should have been apprised of his Miranda rights), and neither can treatment of this sort be fairly
characterized as the functional equivalent of a formal arrest. Similarly, neither can petitioner here be
considered under arrest at the time that his traffic citation was being made.

It also appears that, according to City Ordinance No. 98-012, which was violated by petitioner, the failure to
wear a crash helmet while riding a motorcycle is penalized by a fine only. Under the Rules of Court, a warrant
of arrest need not be issued if the information or charge was filed for an offense penalized by a fine only. It
may be stated as a corollary that neither can a warrantless arrest be made for such an offense.

This ruling does not imply that there can be no arrest for a traffic violation. Certainly, when there is an intent
on the part of the police officer to deprive the motorist of liberty, or to take the latter into custody, the
former may be deemed to have arrested the motorist. In this case, however, the officers issuance (or intent
to issue) a traffic citation ticket negates the possibility of an arrest for the same violation.

Even if one were to work under the assumption that petitioner was deemed arrested upon being flagged
down for a traffic violation and while awaiting the issuance of his ticket, then the requirements for a
valid arrest were not complied with.

This Court has held that at the time a person is arrested, it shall be the duty of the arresting officer
to inform the latter of the reason for the arrest and must show that person the warrant of arrest, if any.
Persons shall be informed of their constitutional rights to remain silent and to counsel, and that any statement
they might make could be used against them.[14] It may also be noted that in this case, these constitutional
requirements were complied with by the police officers only after petitioner had been arrested for illegal
possession of dangerous drugs.

In Berkemer, the U.S. Court also noted that the Miranda warnings must also be given to a person
apprehended due to a traffic violation:
The purposes of the safeguards prescribed by Miranda are to ensure that the police
do not coerce or trick captive suspects into confessing, to relieve the inherently compelling
pressures generated by the custodial setting itself, which work to undermine the individuals
will to resist, and as much as possible to free courts from the task of scrutinizing individual
cases to try to determine, after the fact, whether particular confessions were voluntary.
Those purposes are implicated as much by in-custody questioning of persons suspected of
misdemeanors as they are by questioning of persons suspected of felonies.

If it were true that petitioner was already deemed arrested when he was flagged down for a traffic violation
and while he waiting for his ticket, then there would have been no need for him to be arrested for a second
timeafter the police officers allegedly discovered the drugsas he was already in their custody.

Second, there being no valid arrest, the warrantless search that resulted from it was likewise illegal.

The following are the instances when a warrantless search is allowed: (i) a warrantless search incidental to a
lawful arrest; (ii) search of evidence in plain view; (iii) search of a moving vehicle; (iv) consented warrantless
search; (v) customs search; (vi) a stop and frisk search; and (vii) exigent and emergency circumstances. [15] None
of the above-mentioned instances, especially a search incident to a lawful arrest, are applicable to this case.

It must be noted that the evidence seized, although alleged to be inadvertently discovered, was not in plain
view. It was actually concealed inside a metal container inside petitioners pocket. Clearly, the evidence was not
immediately apparent.[16]

Neither was there a consented warrantless search. Consent to a search is not to be lightly inferred, but shown
by clear and convincing evidence.[17] It must be voluntary in order to validate an otherwise illegal search; that
is, the consent must be unequivocal, specific, intelligently given and uncontaminated by any duress or coercion.
While the prosecution claims that petitioner acceded to the instruction of PO3 Alteza, this alleged accession
does not suffice to prove valid and intelligent consent. In fact, the RTC found that petitioner was merely told
to take out the contents of his pocket.[18]

Whether consent to the search was in fact voluntary is a question of fact to be determined from the
totality of all the circumstances. Relevant to this determination are the following characteristics of the
person giving consent and the environment in which consent is given: (1) the age of the defendant; (2) whether
the defendant was in a public or a secluded location; (3) whether the defendant objected to the search or
passively looked on; (4) the education and intelligence of the defendant; (5) the presence of coercive police
procedures; (6) the defendants belief that no incriminating evidence would be found; (7) the nature of the
police questioning; (8) the environment in which the questioning took place; and (9) the possibly vulnerable
subjective state of the person consenting. It is the State that has the burden of proving, by clear and positive
testimony, that the necessary consent was obtained, and was freely and voluntarily given.[19] In this case, all
that was alleged was that petitioner was alone at the police station at three in the morning, accompanied by
several police officers. These circumstances weigh heavily against a finding of valid consent to a warrantless
search.

Neither does the search qualify under the stop and frisk rule. While the rule normally applies when a police
officer observes suspicious or unusual conduct, which may lead him to believe that a criminal act may be afoot,
the stop and frisk is merely a limited protective search of outer clothing for weapons.[20]

In Knowles v. Iowa,[21] the U.S. Supreme Court held that when a police officer stops a person for speeding and
correspondingly issues a citation instead of arresting the latter, this procedure does not authorize the officer
to conduct a full search of the car. The Court therein held that there was no justification for a full-blown
search when the officer does not arrest the motorist. Instead, police officers may only conduct minimal
intrusions, such as ordering the motorist to alight from the car or doing a patdown:

In Robinson, supra, we noted the two historical rationales for the search incident to
arrest exception: (1) the need to disarm the suspect in order to take him into custody, and (2)
the need to preserve evidence for later use at trial. x x x But neither of these underlying
rationales for the search incident to arrest exception is sufficient to justify the search in
the present case.

We have recognized that the first rationaleofficer safetyis both legitimate and
weighty, x x x The threat to officer safety from issuing a traffic citation, however, is a good
deal less than in the case of a custodial arrest. In Robinson, we stated that a custodial arrest
involves danger to an officer because of the extended exposure which follows the taking of a
suspect into custody and transporting him to the police station. 414 U. S., at 234-235. We
recognized that [t]he danger to the police officer flows from the fact of the arrest, and its
attendant proximity, stress, and uncertainty, and not from the grounds for arrest. Id., at
234, n. 5. A routine traffic stop, on the other hand, is a relatively brief encounter and is
more analogous to a so-called Terry stop . . . than to a formal arrest. Berkemer v.
McCarty, 468 U. S. 420, 439 (1984). See also Cupp v. Murphy, 412 U. S. 291, 296 (1973)
(Where there is no formal arrest . . . a person might well be less hostile to the police and less
likely to take conspicuous, immediate steps to destroy incriminating evidence).

This is not to say that the concern for officer safety is absent in the case of a
routine traffic stop. It plainly is not. See Mimms, supra, at 110; Wilson, supra, at 413-
414. But while the concern for officer safety in this context may justify the minimal
additional intrusion of ordering a driver and passengers out of the car, it does not by
itself justify the often considerably greater intrusion attending a full fieldtype
search. Even without the search authority Iowa urges, officers have other, independent
bases to search for weapons and protect themselves from danger. For example, they may
order out of a vehicle both the driver, Mimms, supra, at 111, and any passengers, Wilson,
supra, at 414; perform a patdown of a driver and any passengers upon reasonable suspicion
that they may be armed and dangerous, Terry v. Ohio, 392 U. S. 1 (1968); conduct a Terry
patdown of the passenger compartment of a vehicle upon reasonable suspicion that an
occupant is dangerous and may gain immediate control of a weapon, Michigan v. Long, 463 U. S.
1032, 1049 (1983); and even conduct a full search of the passenger compartment, including
any containers therein, pursuant to a custodial arrest, New York v. Belton, 453 U. S. 454, 460
(1981).

Nor has Iowa shown the second justification for the authority to search incident to
arrestthe need to discover and preserve evidence. Once Knowles was stopped for speeding
and issued a citation, all the evidence necessary to prosecute that offense had been obtained.
No further evidence of excessive speed was going to be found either on the person of the
offender or in the passenger compartment of the car. (Emphasis supplied.)

The foregoing considered, petitioner must be acquitted. While he may have failed to object to the illegality of
his arrest at the earliest opportunity, a waiver of an illegal warrantless arrest does not, however, mean a
waiver of the inadmissibility of evidence seized during the illegal warrantless arrest.[22]

The Constitution guarantees the right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures.[23] Any evidence obtained in violation of said right shall be
inadmissible for any purpose in any proceeding. While the power to search and seize may at times be necessary
to the public welfare, still it must be exercised and the law implemented without contravening the
constitutional rights of citizens, for the enforcement of no statute is of sufficient importance to justify
indifference to the basic principles of government.[24]

The subject items seized during the illegal arrest are inadmissible.[25] The drugs are the very corpus
delicti of the crime of illegal possession of dangerous drugs. Thus, their inadmissibility precludes conviction
and calls for the acquittal of the accused.[26]

WHEREFORE, the Petition is GRANTED. The 18 February 2011 Decision of the Court of Appeals in
CA-G.R. CR No. 32516 affirming the judgment of conviction dated 19 February 2009 of the Regional Trial
Court, 5th Judicial Region, Naga City, Branch 21, in Criminal Case No. RTC 2003-0087, is
hereby REVERSED and SET ASIDE. Petitioner Rodel Luz y Ong is hereby ACQUITTED and ordered
immediately released from detention, unless his continued confinement is warranted by some other cause or
ground.

SO ORDERED.

Republic of the Philippines


SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 198694 February 13, 2013


RAMON MARTINEZ y GOCO/RAMON GOCO y MARTINEZ @ MON, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

PERLAS-BERNABE, J.:

Assailed in this Petition for Review on Centiorari1 under Rule 45 of the Rules of Court are the June 30, 2011
Decision2 and September 20, 2011 Resolution3 of the Court of Appeals (CA) in CA-G.R. No. 32544 which
affirmed the April 30, 2009 Decision4 of the Regional Trial Court of Manila Branch 2 (RTC) in Criminal Case
No. 08-358669 convicting petitioner Ramon Martinez y Goco/Ramon Goco y Martinez (Ramon) of the crime of
possession of dangerous drugs punished under Section 11(3) Article II of Republic Act No. 9165 (RA 9165)
otherwise known as the "Comprehensive Dangerous Drugs Act of 2002.’’

The Factual Antecedents

At around 9:15 in the evening of December 29, 2007, PO2 Roberto Soque (PO2 Soque), PO2 Alejandro
Cepe(PO2 Cepe) and PO3Edilberto Zeta (PO3 Zeta), who wereall assigned tothe Station Anti-Illegal Drugs
(SAID) Section of the Malate Police Station 9 (Police Station 9), conducted a routine foot patrol along
Balingkit Street, Malate, Manila. In the process, they heard a man shouting "Putanginamo! Limangdaannabaito?"
Forpurportedly violating Section 844 of the Revised Ordinance of the City of Manila (Manila City
Ordinance)which punishes breaches of the peace, the man, later identified as Ramon,was apprehended and
asked to empty his pockets. In the course thereof, the police officers were able to recover from him a small
transparent plastic sachet containing white crystalline substance suspected to beshabu.PO2 Soque confiscated
the sachet and brought Ramon to Police Station 9 where the former markedthe item with the latter’s initials,
"RMG." There, Police Superintendent Ferdinand RicafrenteQuirante(PSuptQuirante) prepared a request for
laboratory examination which, together with the specimen, was brought by PO2 Soque to the PNP Crime
Laboratory for examination.

Forensic Chemist Police Senior Inspector Erickson Calabocal (PSInspCalabocal)examinedthe specimen which
contained 0.173 gram of white crystalline substanceand found the same positive for methylamphetamine
hydrochloride (or shabu).

Consequently, Ramon was charged with possession of dangerous drugs under Section 11(3), Article II of RA
9165 throughan Information dated January 3, 2008 which states:

That on or about December 29, 2007, in the City of Manila, Philippines, the said accused, without being
authorized by law to possess any dangerous drug, did then and there willfully, unlawfully and knowingly have in
his possession and under his custody and control one (1) heat sealed transparent plastic sachet containing
ZERO POINT ONE SEVEN THREE (0.173) gram of white crystalline substance containing
methylamphetamine hydrochloride known as SHABU, a dangerous drug.5

In defense, Ramon denied the charge and gave his version of the incident. He narrated that on December 29,
2007, at around 4:00 in the afternoon, whilewalking alongBalingkit Street to borrow a welding machine from
one Paez Garcia, a man in civilian clothing approached and asked him if he is Ramon Goco. Upon affirming his
identity, he was immediately handcuffed by the man who eventually introduced himself as a police officer.
Together, they boarded a tricycle (sidecar) wherethe said officer asked him if he was carrying illegal drugs.
Despite his denial, he was still brought to a precinct to be detained. Thereafter, PO2 Soquepropositioned
Ramon and asked for ₱20,000.00 in exchange for his release.When Ramon’s wife,AmaliaGoco, was unable to
produce the ₱20,000.00 which PO2 Soquehad asked for, he (Ramon) was brought to the Manila City Hall for
inquest proceedings.

The RTC Ruling

In its April 30, 2009 Decision, the RTCconvicted Ramon of the crime of possession of dangerous drugs as
charged, finding all its elements tohave been established through the testimonies of the
prosecution’sdisinterested witnesses. In this relation,it alsoupheld the legality of Ramon’s warrantless arrest,
observing that Ramon was disturbing the peace in violation of the Manila City Ordinance during the time of his
apprehension. Consequently, Ramon was sentenced to suffer the penalty of imprisonment oftwelve (12) years
and one (1) day as minimum to seventeen (17) years and four (4) months as maximum and to pay a fine of
₱300,000.00. Aggrieved, Ramon elevated his conviction to the CA.

The CA Ruling

In its June 30, 2011 Decision,the CA denied Ramon’s appeal and thereby affirmedhis conviction. Itupheld the
factual findings of the RTC which found that the elements of the crime of possession of dangerous drugs were
extant, to wit: (1) that the accused is in possession of a prohibited drug; (2) that such possession is not
authorized by law; and (3) that the accused freely and consciously possessed the said drug.6

Likewise, the CA sustained the validity of the body search made on Ramon as an incident of alawful warrantless
arrest for breach of the peace which he committed in the presence of the police officers, notwithstanding its
(the case for breach of the peace)subsequent dismissal for failure to prosecute.

Moreover, the CAobserved that every link in the chain of custody of the prohibited drug wassufficiently
establishedfrom the time PO2Soque took the sameup to its actual presentation in court.

Finally, it did not give credence to Ramon’s claim of extortion as his asseverationsfailed to overcome the
presumption of regularity in the performance of the police officers’ official duties.

The Issue

The sole issue raised in this petition is whether or not the CA erred in affirming the Decision of the RTC
convicting Ramon of the crime of possession of dangerous drugs.

The Ruling of the Court

The petition is meritorious.

Enshrined in the fundamental law is a person’s right against unwarranted intrusions by the government. Section
2, Article III of the 1987 Philippine Constitution (Constitution) states that:

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.
Accordingly, so as to ensure that the same sacrosanct right remains revered, effects secured by government
authoritiesin contraventionof the foregoingarerendered inadmissible in evidence for any purpose, in any
proceeding. In this regard, Section 3(2), Article III of the Constitution provides that:

2. Any evidence obtained in violation of this or the preceding section [referring to Section 2] shall be
inadmissible for any purpose in any proceeding.

Commonly known as the "exclusionary rule," the above-cited proscription is not, however, an absolute and rigid
one.7 As found in jurisprudence, the traditional exceptions are customs searches, 8 searches of moving
vehicles,9seizure of evidence in plain view,10 consented searches,11 "stop and frisk" measures12 andsearches
incidental to a lawful arrest.13 This last-mentioned exception is of particular significance to this case and thus,
necessitates further disquisition.

A valid warrantless arrest which justifies a subsequent search is one that is carried out under the parameters
of Section 5(a), Rule 113 of the Rules of Court14 which requires that the apprehending officer must have been
spurred by probable cause to arresta person caught in flagrante delicto. To be sure,the term probable cause
has been understood to mean a reasonable ground of suspicion supported by circumstances sufficiently strong
in themselves to warrant a cautious man's belief that the person accused is guilty of the offense with which he
is charged.15Specifically with respect to arrests, it is such facts and circumstances which would lead a
reasonably discreet and prudent man to believe that an offense has been committed by the person sought to
be arrested.16 In this light, the determination of the existence or absence of probable cause necessitates a
re-examination of the factual incidents.

Records show that PO2 Soque arrested Ramon for allegedly violating Section 844 of the Manila City Ordinance
which provides as follows:

Sec. 844. – Breaches of the Peace. – No person shall make, and, countenance, or assist in making any riot,
affray, disorder, disturbance, or breach of the peace; or assault, beat or use personal violence upon another
without just cause in any public place; or utter any slanderous, threatening or abusive language or expression or
exhibit or display any emblem, transparency, representation, motto, language, device, instrument, or thing; or
do any act, in any public place, meeting or procession, tending to disturb the peace or excite a riot, or collect
with other persons in a body or crowd for any unlawful purpose; or disturbance or disquiet any congregation
engaged in any lawful assembly.1âwphi1

PENALTY: Imprisonment of not more than six (6) months and / or fine not more than Two Hundred pesos (PHP
200.00)

As may be readily gleaned, the foregoing ordinancepenalizes the following acts: (1) making, countenancing, or
assisting in making any riot, affray, disorder, disturbance, or breach of the peace; (2) assaulting, beating or
using personal violence upon another without just cause in any public place; (3) uttering any slanderous,
threatening or abusive language or expression or exhibiting or displaying any emblem, transparency,
representation, motto, language, device, instrument, or thing; and (4) doing any act, in any public place, meeting
or procession, tending to disturb the peace or excite a riot, or collect with other persons in a body or crowd
for any unlawful purpose, or disturbance or disquiet any congregation engaged in any lawful assembly. Evidently,
the gravamen of these offenses is the disruption of communal tranquillity. Thus, to justify a warrantless
arrest based on the same, it must be established that the apprehension was effected after a reasonable
assessment by the police officer that a public disturbance is being committed.

In this regard, PO2 Soque’s testimony detailed the surrounding circumstances leading to Ramon’s warrantless
warrant, viz:
DIRECT EXAMINATION:

ASST. CITY PROS. YAP:

Q: Tell the Court, what happened when you were there on patrol? PO2 Soque:

A: While we were on routinary patrol we heard a man shouting on top of his voice telling "Putang ina mo! Limang
daan na ba ito?" pointing to his right front pocket, sir.

Q: There was a shouting, where was this man shouting, where was the shouting came from?

A: Along the street of Balingkit, sir.

Q: How far were you from this shouting, as you said?

A: About ten (10) meters, sir.

Q: Tell the Court what happened, what next follows?

A: We proceeded to the voice where it came from, then, we saw a man, sir.

Q: Who was that man?

A: Goco, sir.

Q: Who is this Goco in relation to this case?

A: Ramon Martinez Goco, sir.

Q: Who is this Goco in relation to this case?

A: He is the one that we apprehended, sir.

Q: What was he doing then when you said you responded immediately, when you saw a man?

A: We saw him shouting on top of his voice, sir.

Q: That is why you came near him, the one who shouted?

A: Yes, sir.

Q: So, what did you do, Mr. Witness, together with your other cooperatives?

A: We apprehended him for bringing [sic] the silence of the serenity of the place, sir.

Q: What time was that already at that time, the incident of shouting?

A: Past 9:00, sir.


Q: Who actually accosted Goco, the one who shouted?

A: Me, sir.

Q: Tell the Court, how many were there at that time present with Goco?

A: They scampered away when they saw the police were coming near the place, sir, they scampered in different
directions.

Q: Tell the Court what were Cepe and Zeta doing also when you approached the accused?

A: They followed me, sir.

Q: So, tell the Court what happened when you approached accused therein Goco?

A: We apprehended Goco for violation for alarm scandal, sir.

x x x x17

CROSS EXAMINATION:

xxxx

ATTY. AMURAO:

Q: So, just like Leveriza, Balingkit is also thickly populated? PO2 Soque:

A: Yes, sir.

Q: And there are many people outside their houses?

A: Yes, sir.

Q: And I can imagine everybody there outside was talking also?

A: Yes, sir.

Q: I was very noisy, everybody talking, altogether?

A: They were talking casually.

x x x x18

Clearly, a perusal of the foregoing testimony negates the presence of probable cause when the police officers
conducted their warrantless arrest of Ramon.

To elucidate, it cannot be said that the act of shouting in a thickly-populated place, with many people
conversing with each other on the street, would constitute any of the acts punishable under Section 844 of
the Manila City Ordinance as above-quoted. Ramon was not making or assisting in any riot, affray, disorder,
disturbance, or breach of the peace; he was not assaulting, beating or using personal violence upon another;
and, the words he allegedly shouted – "Putanginamo! Limangdaannabaito?" –are not slanderous, threatening or
abusive, and thus, could not have tended to disturb the peace or excite a riot considering that at the time of
the incident, Balingkit Street was still teeming with people and alive with activity.

Further, it bears stressing that no one present at the place of arrest ever complained that Ramon’s shouting
disturbed the public. On the contrary, a disinterested member of the community (a certain Rosemarie Escobal)
even testified that Ramon was merely standing in front of the store of a certain MangRomy when a man in
civilian clothes, later identified as PO2 Soque, approached Ramon, immediately handcuffed and took him away.19

In its totality, the Court observes that these facts and circumstances could not have engendereda well-
founded belief that any breach of the peace had been committed by Ramon at the time that his warrantless
arrest was effected. All told, noprobable cause existedto justify Ramon’s warrantless arrest.

Indeed, while it is true that the legality of arrest depends upon the reasonable discretion of the officer or
functionary to whom the law at the moment leaves the decision to characterize the nature of the act or deed
of the person for the urgent purpose of suspending his liberty,20 this should not be exercised in a whimsical
manner, else a person’s liberty be subjected to ubiquitous abuse. Aslaw enforcers, it is largely expectedof
them to conduct a more circumspect assessment of the situation at hand. The determination of probable cause
is not a blanket-license to withhold liberty or to conduct unwarranted fishing expeditions. It demarcates the
line between legitimate human conduct on the one hand, and ostensible criminal activity, on the other. In this
respect, it must be performedwisely and cautiously, applying the exacting standards of a reasonably discreet
and prudent man. Surely, as constitutionally guaranteed rightslie at the fore, the duty to determine probable
cause should be clothed with utmost conscientiousness as well as impelled by a higher sense of public
accountability.

Consequently, as it cannot be said that Ramon was validly arrested the warantless search that resulted from it
was also illegal. Thus, the subject shabu purportedly seized from Ramon is inadmissible in evidence for being
the proverbial fruit of the poisonous tree as mandated by the above discussed constitutional provision. In this
regard, considering that the confiscated shabuis the very corpus delicitof the crime charged, Ramon's acquital
should therefore come as a matter of course.

WHEREFORE, the petition is GRANTED. The June 30, 2011 Decision and September 20, 2011 Resolution of the
Court of Appeals in CA-G.R. CR No. 32544 are REVERSED and SET ASIDE. Petitioner Ramon Martinez y
Goco/Ramon Goco y Martinez is hereby ACQUITTED of the crime charged.

SO ORDERED.

Republic of the Philippines


SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 201363 March 18, 2013

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,


vs.
NAZARENO VILLAREAL y LUALHATI, Accused-Appellant.
DECISION

PERLAS-BERNABE, J.:

This is an appeal from the May 25, 2011 Decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 31320 which
affirmed in toto the December 11, 2007 Decision2

of the Regional Trial Court of Caloocan City, Branch 123 (RTC), convicting appellant Nazareno Villareal y
Lualhati (appellant) of violation of Section 11, Article II of Republic Act No. 9165 3 (RA 9165) and sentencing
him to suffer the penalty of imprisonment for twelve (12) years and one (1) day to fourteen (14) years and
eight (8) months and to pay a fine of ₱300,000.00.

The Factual Antecedents

On December 25, 2006 at around 11:30 in the morning, as PO3 Renato de Leon (PO3 de Leon) was driving his
motorcycle on his way home along 5th Avenue, he saw appellant from a distance of about 8 to 10 meters,
holding and scrutinizing in his hand a plastic sachet of shabu. Thus, PO3 de Leon, a member of the Station
Anti-Illegal Drugs-Special Operation Unit (SAID-SOU) in Caloocan City, alighted from his motorcycle and
approached the appellant whom he recognized as someone he had previously arrested for illegal drug
possession.4

Upon seeing PO3 de Leon, appellant tried to escape but was quickly apprehended with the help of a tricycle
driver. Despite appellant’s attempts to resist arrest, PO3 de Leon was able to board appellant onto his
motorcycle and confiscate the plastic sachet of shabu in his possession. Thereafter, PO3 de Leon brought
appellant to the 9th Avenue Police Station to fix his handcuffs, and then they proceeded to the SAID-SOU
office where PO3 de Leon marked the seized plastic sachet with "RZL/NV 12-25-06," representing his and
appellant’s initials and the date of the arrest.5

Subsequently, PO3 de Leon turned over the marked evidence as well as the person of appellant to the
investigator, PO2 Randulfo Hipolito (PO2 Hipolito) who, in turn, executed an acknowledgment receipt6 and
prepared a letter request7 for the laboratory examination of the seized substance. PO2 Hipolito personally
delivered the request and the confiscated item to the Philippine National Police (PNP) Crime Laboratory, which
were received by Police Senior Inspector Albert Arturo (PSI Arturo), the forensic chemist.8

Upon qualitative examination, the plastic sachet, which contained 0.03 gram of white crystalline substance,
tested positive for methylamphetamine hydrochloride, a dangerous drug.9

Consequently, appellant was charged with violation of Section 11, Article II of RA 9165 for illegal possession of
dangerous drugs in an Information10 which reads:

That on or about the 25th day of December, 2006 in Caloocan City, Metro Manila and within the jurisdiction of
this Honorable Court, the above-named accused, without being authorized by law, did then and there willfully,
unlawfully and feloniously have in his possession, custody and control, METHYLAMPHETAMINE
HYDROCHLORIDE (Shabu) weighing 0.03 gram which, when subjected to chemistry examination gave positive
result of METHYLAMPHETAMIME HYDROCHLORIDE, a dangerous drug.

CONTRARY TO LAW.

When arraigned, appellant, assisted by counsel de oficio, entered a plea of not guilty to the offense charged.11
In his defense, appellant denied PO3 de Leon’s allegations and instead claimed that on the date and time of the
incident, he was walking alone along Avenida, Rizal headed towards 5th

Avenue when someone who was riding a motorcycle called him from behind. Appellant approached the person,
who turned out to be PO3 de Leon, who then told him not to run, frisked him, and took his wallet which
contained ₱1,000.00.12

Appellant was brought to the 9th Avenue police station where he was detained and mauled by eight other
detainees under the orders of PO3 de Leon. Subsequently, he was brought to the Sangandaan Headquarters
where two other police officers, whose names he recalled were "Michelle" and "Hipolito," took him to the
headquarters’ firing range. There, "Michelle" and "Hipolito" forced him to answer questions about a stolen
cellphone, firing a gun right beside his ear each time he failed to answer and eventually mauling him when he
continued to deny knowledge about the cellphone.13 Thus, appellant sustained head injuries for which he was
brought to the Diosdado Macapagal Hospital for proper treatment.14

The following day, he underwent inquest proceedings before one Fiscal Guiyab, who informed him that he was
being charged with resisting arrest and "Section 11."15 The first charge was eventually dismissed.

The RTC Ruling

After trial on the merits, the RTC convicted appellant as charged upon a finding that all the elements of the
crime of illegal possession of dangerous drugs have been established, to wit: (1) the appellant is in possession
of an item or object which is identified to be a prohibited drug; (2) that such possession is not authorized by
law; and (3) that the accused freely and consciously possesses said drug. Finding no ill motive on the part of
PO3 de Leon to testify falsely against appellant, coupled with the fact that the former had previously arrested
the latter for illegal possession of drugs under Republic Act No. 6425 16 (RA 6425), the RTC gave full faith and
credit to PO3 de Leon’s testimony. Moreover, the RTC found the plain view doctrine to be applicable, as the
confiscated item was in plain view of PO3 de Leon at the place and time of the arrest.

On the other hand, the RTC gave scant consideration to the defenses of denial and frame-up proffered by the
appellant, being uncorroborated, and in the light of the positive assertions of PO3 de Leon. It refused to give
credence to appellant’s claim that PO3 de Leon robbed him of his money, since he failed to bring the incident
to the attention of PO3 de Leon’s superiors or to institute any action against the latter.

Consequently, the RTC sentenced appellant to suffer the penalty of imprisonment of twelve (12) years and one
(1) day to fourteen (14) years and eight (8) months and to pay a fine of ₱300,000.00.

The CA Ruling

In its assailed Decision, the CA sustained appellant’s conviction, finding "a clear case of in flagrante delicto
warrantless arrest"17 as provided under Section 5, Rule 113 of the Revised Rules of Criminal Procedure. The CA
held that appellant "exhibited an overt act or strange conduct that would reasonably arouse
suspicion,"18aggravated by the existence of his past criminal citations and his attempt to flee when PO3 de
Leon approached him.

Citing jurisprudence, the appellate court likewise ruled that the prosecution had adequately shown the
continuous and unbroken chain of custody of the seized item, from the time it was confiscated from appellant
by PO3 de Leon, marked at the police station, turned over to PO2 Hipolito and delivered to the crime
laboratory, where it was received by PSI Arturo, the forensic chemist, up to the time it was presented in
court for proper identification.
The Issue

The sole issue advanced before the Court for resolution is whether the CA erred in affirming in toto the RTC’s
Decision convicting appellant of the offense charged.

The Ruling of the Court

The appeal is meritorious.

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.19 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.20

In both instances, the officer’s 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.

In sustaining appellant’s conviction in this case, the appellate court ratiocinated that this was a clear case of
an "in flagrante delicto warrantless arrest" under paragraphs (a) and (b) of Section 5, Rule 113 of the Revised
Rules on Criminal Procedure, as above-quoted.

The Court disagrees.

A punctilious assessment of the factual backdrop of this case shows that there could have been no lawful
warrantless arrest. A portion of PO3 de Leon’s testimony on direct examination in court is revelatory:

FISCAL LARIEGO: While you were there at 5th


Avenue, was there anything unusual that transpired?

PO3 DE LEON: Yes Ma’am.

Q: What was this incident?

A: While I was on board my motorcycle on my home, I saw a man looking at the shabu in his hand, Ma’am.

Q: And exactly what time was this?

A: Around 11:30 in the morning, Ma’am.

Q: How far were you from this person that you said was verifying something in his hand?

A: Eight to ten meters, Ma’am.

Q: What exactly did you see he was verifying? A: The shabu that he was holding, Ma’am.

Q: After seeing what the man was doing, what did you do next?

A: I alighted from my motorcycle and approached him, Ma’am.

Q: In the first place why do you say that what he was examining and holding in his hand was a shabu?

A: Because of the numerous arrests that I have done, they were all shabu, Ma’am.21 (Underscoring supplied)

On the basis of the foregoing testimony, the Court finds it inconceivable how PO3 de Leon, even with his
presumably perfect vision, would be able to identify with reasonable accuracy, from a distance of about 8 to 10
meters and while simultaneously driving a motorcycle, a negligible and minuscule amount of powdery substance
(0.03 gram) inside the plastic sachet allegedly held by appellant. That he had previously effected numerous
arrests, all involving shabu, is insufficient to create a conclusion that what he purportedly saw in appellant’s
hands was indeed shabu.

Absent any other circumstance upon which to anchor a lawful arrest, no other overt act could be properly
attributed to appellant as to rouse suspicion in the mind of PO3 de Leon that he (appellant) had just
committed, was committing, or was about to commit a crime, for the acts per se of walking along the street
and examining something in one’s hands cannot in any way be considered criminal acts. In fact, even if appellant
had been exhibiting unusual or strange acts, or at the very least appeared suspicious, the same would not have
been sufficient in order for PO3 de Leon to effect a lawful warrantless arrest under paragraph (a) of Section
5, Rule 113.

Neither has it been established that the rigorous conditions set forth in paragraph (b) of Section 5, Rule 113
have been complied with, i.e., that an offense had in fact just been committed and the arresting officer had
personal knowledge of facts indicating that the appellant had committed it.

The factual circumstances of the case failed to show that PO3 de Leon had personal knowledge that a crime
had been indisputably committed by the appellant. It is not enough that PO3 de Leon had reasonable ground to
believe that appellant had just committed a crime; a crime must in fact have been committed first, which does
not obtain in this case.
Without the overt act that would pin liability against appellant, it is therefore clear that PO3 de Leon was
merely impelled to apprehend appellant on account of the latter’s previous charge22 for the same offense. The
CA stressed this point when it said:

It is common for drugs, being illegal in nature, to be concealed from view.1âwphi1 PO3 Renato de Leon saw
appellant holding and scrutinizing a piece of plastic wrapper containing a white powderly substance. PO3 Renato
de Leon was quite familiar with appellant, having arrested him twice before for the same illegal possession of
drug. It was not just a hollow suspicion. The third time around, PO3 de Leon had reasonably assumed that the
piece of plastic wrapper appellant was holding and scrutinizing also contained shabu as he had personal
knowledge of facts regarding appellant’s person and past criminal record. He would have been irresponsible to
just ‘wait and see’ and give appellant a chance to scamper away. For his part, appellant being, in fact, in
possession of illegal drug, sensing trouble from an equally familiar face of authority, ran away. Luckily,
however, PO3 de Leon caught up with him through the aid of a tricycle driver. Appellant’s act of running away,
indeed, validated PO3 de Leon’s reasonable suspicion that appellant was actually in possession of illegal drug. x
x x23

However, a previous arrest or existing criminal record, even for the same offense, will not suffice to satisfy
the exacting requirements provided under Section 5, Rule 113 in order to justify a lawful warrantless arrest.
"Personal knowledge" of the arresting officer that a crime had in fact just been committed is required. To
interpret "personal knowledge" as referring to a person’s reputation or past criminal citations would create a
dangerous precedent and unnecessarily stretch the authority and power of police officers to effect
warrantless arrests based solely on knowledge of a person’s previous criminal infractions, rendering nugatory
the rigorous requisites laid out under Section 5.

It was therefore error on the part of the CA to rule on the validity of appellant’s arrest based on "personal
knowledge of facts regarding appellant’s person and past criminal record," as this is unquestionably not what
"personal knowledge" under the law contemplates, which must be strictly construed.24

Furthermore, appellant’s act of darting away when PO3 de Leon approached him should not be construed
against him. Flight per se is not synonymous with guilt and must not always be attributed to one’s consciousness
of guilt.25It is not a reliable indicator of guilt without other circumstances,26 for even in high crime areas
there are many innocent reasons for flight, including fear of retribution for speaking to officers, unwillingness
to appear as witnesses, and fear of being wrongfully apprehended as a guilty party.27 Thus, appellant’s attempt
to run away from PO3 de Leon is susceptible of various explanations; it could easily have meant guilt just as it
could likewise signify innocence.

In fine, appellant’s acts of walking along the street and holding something in his hands, even if they appeared
to be dubious, coupled with his previous criminal charge for the same offense, are not by themselves sufficient
to incite suspicion of criminal activity or to create probable cause enough to justify a warrantless arrest under
Section 5 above-quoted. "Probable cause" has been understood to mean a reasonable ground of suspicion
supported by circumstances sufficiently strong in themselves to warrant a cautious man's belief that the
person accused is guilty of the offense with which he is charged.28 Specifically with respect to arrests, it is
such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an
offense has been committed by the person sought to be arrested,29 which clearly do not obtain in appellant’s
case.

Thus, while it is true that the legality of an arrest depends upon the reasonable discretion of the officer or
functionary to whom the law at the moment leaves the decision to characterize the nature of the act or deed
of the person for the urgent purpose of suspending his liberty,30 it cannot be arbitrarily or capriciously
exercised without unduly compromising a citizen’s constitutionally-guaranteed right to liberty. As the Court
succinctly explained in the case of People v. Tudtud:31

The right of a person to be secure against any unreasonable seizure of his body and any deprivation of his
liberty is a most basic and fundamental one. The statute or rule which allows exceptions to the requirement of
warrants of arrest is strictly construed. Any exception must clearly fall within the situations when securing a
warrant would be absurd or is manifestly unnecessary as provided by the Rule. We cannot liberally construe
the rule on arrests without warrant or extend its application beyond the cases specifically provided by law. To
do so would infringe upon personal liberty and set back a basic right so often violated and so deserving of full
protection.

Consequently, there being no lawful warrantless arrest, the shabu purportedly seized from appellant is
rendered inadmissible in evidence for being the proverbial fruit of the poisonous tree. As the confiscated
shabu is the very corpus delicti of the crime charged, appellant must be acquitted and exonerated from all
criminal liability.

WHEREFORE, the assailed Decision of the Court of Appeals in CA-G.R. CR No. 31320 is REVERSED and SET
ASIDE. Appellant Nazareno Villareal y Lualhati is ACQUITTED on reasonable doubt of the offense charged
and ordered immediately released from detention, unless his continued confinement is warranted by some
other cause or ground.

SO ORDERED.

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

SOCIAL JUSTICE SOCIETY (SJS), G.R. No. 157870


Petitioner,
- versus -

DANGEROUS DRUGS BOARD and


PHILIPPINE DRUG ENFORCEMENT
AGENCY (PDEA),
Respondents.
x-----------------------------------------------x
ATTY. MANUEL J. LASERNA, JR., G.R. No. 158633
Petitioner,

- versus -

DANGEROUS DRUGS BOARD and


PHILIPPINE DRUG ENFORCEMENT
AGENCY,
Respondents.
x-----------------------------------------------x
AQUILINO Q. PIMENTEL, JR., G.R. No. 161658
Petitioner,
Present:
PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
- versus - CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
REYES,
LEONARDO-DE CASTRO, and
BRION, JJ.

COMMISSION ON ELECTIONS, Promulgated:


Respondent.
November 3, 2008
x-----------------------------------------------------------------------------------------x
D E C I S I O N

VELASCO, JR., J.:

In these kindred petitions, the constitutionality of Section 36 of Republic Act No. (RA) 9165, otherwise known
as the Comprehensive Dangerous Drugs Act of 2002, insofar as it requires mandatory drug testing of

candidates for public office, students of secondary and tertiary schools, officers and employees of public and

private offices, and persons charged before the prosecutors office with certain offenses, among other

personalities, is put in issue.

As far as pertinent, the challenged section reads as follows:


SEC. 36. Authorized Drug Testing.Authorized drug testing shall be done by any
government forensic laboratories or by any of the drug testing laboratories accredited and
monitored by the DOH to safeguard the quality of the test results. x x x The drug testing
shall employ, among others, two (2) testing methods, the screening test which will determine
the positive result as well as the type of drug used and the confirmatory test which will
confirm a positive screening test. x x x The following shall be subjected to undergo drug
testing:

xxxx

(c) Students of secondary and tertiary schools.Students of secondary and tertiary


schools shall, pursuant to the related rules and regulations as contained in the schools
student handbook and with notice to the parents, undergo a random drug testing x x x;

(d) Officers and employees of public and private offices.Officers and employees of
public and private offices, whether domestic or overseas, shall be subjected to undergo a
random drug test as contained in the companys work rules and regulations, x x x for purposes
of reducing the risk in the workplace. Any officer or employee found positive for use of
dangerous drugs shall be dealt with administratively which shall be a ground for suspension or
termination, subject to the provisions of Article 282 of the Labor Code and pertinent
provisions of the Civil Service Law;

xxxx

(f) All persons charged before the prosecutors office with a criminal offense having
an imposable penalty of imprisonment of not less than six (6) years and one (1) day shall
undergo a mandatory drug test;

(g) All candidates for public office whether appointed or elected both in the national or local
government shall undergo a mandatory drug test.

In addition to the above stated penalties in this Section, those found to be positive for
dangerous drugs use shall be subject to the provisions of Section 15 of this Act.

G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v. Commission on Elections)

On December 23, 2003, the Commission on Elections (COMELEC) issued Resolution No. 6486, prescribing the

rules and regulations on the mandatory drug testing of candidates for public office in connection with the May

10, 2004 synchronized national and local elections. The pertinent portions of the said resolution read as

follows:

WHEREAS, Section 36 (g) of Republic Act No. 9165 provides:

SEC. 36. Authorized Drug Testing.x x x

xxxx

(g) All candidates for public office x x x both in the national or local government shall
undergo a mandatory drug test.
WHEREAS, Section 1, Article XI of the 1987 Constitution provides that public officers and
employees must at all times be accountable to the people, serve them with utmost
responsibility, integrity, loyalty and efficiency;

WHEREAS, by requiring candidates to undergo mandatory drug test, the public will know the
quality of candidates they are electing and they will be assured that only those who can serve
with utmost responsibility, integrity, loyalty, and efficiency would be elected x x x.

NOW THEREFORE, The [COMELEC], pursuant to the authority vested in it under the
Constitution, Batas Pambansa Blg. 881 (Omnibus Election Code), [RA] 9165 and other election
laws, RESOLVED to promulgate, as it hereby promulgates, the following rules and regulations
on the conduct of mandatory drug testing to candidates for public office[:]
SECTION 1. Coverage.All candidates for public office, both national and local, in the May
10, 2004 Synchronized National and Local Elections shall undergo mandatory drug test in
government forensic laboratories or any drug testing laboratories monitored and accredited
by the Department of Health.

SEC. 3. x x x

On March 25, 2004, in addition to the drug certificates filed with their respective offices,
the Comelec Offices and employees concerned shall submit to the Law Department two (2)
separate lists of candidates. The first list shall consist of those candidates who complied
with the mandatory drug test while the second list shall consist of those candidates who
failed to comply x x x.

SEC. 4. Preparation and publication of names of candidates.Before the start of the campaign
period, the [COMELEC] shall prepare two separate lists of candidates. The first list shall
consist of those candidates who complied with the mandatory drug test while the second list
shall consist of those candidates who failed to comply with said drug test. x x x

SEC. 5. Effect of failure to undergo mandatory drug test and file drug test certificate.No
person elected to any public office shall enter upon the duties of his office until he has
undergone mandatory drug test and filed with the offices enumerated under Section 2
hereof the drug test certificate herein required. (Emphasis supplied.)

Petitioner Aquilino Q. Pimentel, Jr., a senator of the Republic and a candidate for re-election in the May 10,

2004 elections,[1] filed a Petition for Certiorari and Prohibition under Rule 65. In it, he seeks (1) to nullify Sec.

36(g) of RA 9165 and COMELEC Resolution No. 6486 dated December 23, 2003 for being unconstitutional in

that they impose a qualification for candidates for senators in addition to those already provided for in the

1987 Constitution; and (2) to enjoin the COMELEC from implementing Resolution No. 6486.

Pimentel invokes as legal basis for his petition Sec. 3, Article VI of the Constitution, which states:

SECTION 3. No person shall be a Senator unless he is a natural-born citizen of the


Philippines, and, on the day of the election, is at least thirty-five years of age, able to read
and write, a registered voter, and a resident of the Philippines for not less than two years
immediately preceding the day of the election.

According to Pimentel, the Constitution only prescribes a maximum of five (5) qualifications for one to be a

candidate for, elected to, and be a member of the Senate. He says that both the Congress and COMELEC, by

requiring, via RA 9165 and Resolution No. 6486, a senatorial aspirant, among other candidates, to undergo a

mandatory drug test, create an additional qualification that all candidates for senator must first be certified
as drug free. He adds that there is no provision in the Constitution authorizing the Congress or COMELEC to

expand the qualification requirements of candidates for senator.


G.R. No. 157870 (Social Justice Society v. Dangerous
Drugs Board and Philippine Drug Enforcement Agency)

In its Petition for Prohibition under Rule 65, petitioner Social Justice Society (SJS), a registered political

party, seeks to prohibit the Dangerous Drugs Board (DDB) and the Philippine Drug Enforcement Agency (PDEA)

from enforcing paragraphs (c), (d), (f), and (g) of Sec. 36 of RA 9165 on the ground that they are

constitutionally infirm. For one, the provisions constitute undue delegation of legislative power when they give

unbridled discretion to schools and employers to determine the manner of drug testing. For another, the

provisions trench in the equal protection clause inasmuch as they can be used to harass a student or an

employee deemed undesirable. And for a third, a persons constitutional right against unreasonable searches is

also breached by said provisions.

G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v. Dangerous


Drugs Board and Philippine Drug Enforcement Agency)

Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also seeks in his Petition for Certiorari and

Prohibition under Rule 65 that Sec. 36(c), (d), (f), and (g) of RA 9165 be struck down as unconstitutional for

infringing on the constitutional right to privacy, the right against unreasonable search and seizure, and the

right against self-incrimination, and for being contrary to the due process and equal protection guarantees.

The Issue on Locus Standi

First off, we shall address the justiciability of the cases at bench and the matter of the standing of
petitioners SJS and Laserna to sue. As respondents DDB and PDEA assert, SJS and Laserna failed to allege

any incident amounting to a violation of the constitutional rights mentioned in their separate petitions.[2]

It is basic that the power of judicial review can only be exercised in connection with a bona

fide controversy which involves the statute sought to be reviewed.[3] But even with the presence of an actual

case or controversy, the Court may refuse to exercise judicial review unless the constitutional question is

brought before it by a party having the requisite standing to challenge it.[4] To have standing, one must

establish that he or she has suffered some actual or threatened injury as a result of the allegedly illegal

conduct of the government; the injury is fairly traceable to the challenged action; and the injury is likely to be

redressed by a favorable action.[5]


The rule on standing, however, is a matter of procedure; hence, it can be relaxed for non-traditional plaintiffs,

like ordinary citizens, taxpayers, and legislators when the public interest so requires, such as when the matter

is of transcendental importance, of overarching significance to society, or of paramount public

interest.[6] There is no doubt that Pimentel, as senator of the Philippines and candidate for the May 10,

2004 elections, possesses the requisite standing since he has substantial interests in the subject matter of

the petition, among other preliminary considerations. Regarding SJS and Laserna, this Court is wont to relax
the rule on locus standi owing primarily to the transcendental importance and the paramount public interest

involved in the enforcement of Sec. 36 of RA 9165.

The Consolidated Issues

The principal issues before us are as follows:

(1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 impose an additional qualification for

candidates for senator? Corollarily, can Congress enact a law prescribing qualifications for candidates for

senator in addition to those laid down by the Constitution? and

(2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165 unconstitutional? Specifically, do these paragraphs

violate the right to privacy, the right against unreasonable searches and seizure, and the equal protection

clause? Or do they constitute undue delegation of legislative power?

Pimentel Petition
(Constitutionality of Sec. 36[g] of RA 9165 and
COMELEC Resolution No. 6486)

In essence, Pimentel claims that Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 illegally

impose an additional qualification on candidates for senator. He points out that, subject to the provisions on

nuisance candidates, a candidate for senator needs only to meet the qualifications laid down in Sec. 3, Art. VI

of the Constitution, to wit: (1) citizenship, (2) voter registration, (3) literacy, (4) age, and (5)

residency. Beyond these stated qualification requirements, candidates for senator need not possess any other

qualification to run for senator and be voted upon and elected as member of the Senate. The Congress cannot

validly amend or otherwise modify these qualification standards, as it cannot disregard, evade, or weaken the

force of a constitutional mandate,[7] or alter or enlarge the Constitution.

Pimentels contention is well-taken. Accordingly, Sec. 36(g) of RA 9165 should be, as it is hereby

declared as, unconstitutional. It is basic that if a law or an administrative rule violates any norm of the

Constitution, that issuance is null and void and has no effect. The Constitution is the basic law to which all laws
must conform; no act shall be valid if it conflicts with the Constitution.[8] In the discharge of their defined
functions, the three departments of government have no choice but to yield obedience to the commands of the

Constitution. Whatever limits it imposes must be observed.[9]

Congress inherent legislative powers, broad as they may be, are subject to certain limitations. As early
as 1927, in Government v. Springer, the Court has defined, in the abstract, the limits on legislative power in

the following wise:

Someone has said that the powers of the legislative department of the Government, like the
boundaries of the ocean, are unlimited. In constitutional governments, however, as well as
governments acting under delegated authority, the powers of each of the departments x x x
are limited and confined within the four walls of the constitution or the charter, and each
department can only exercise such powers as are necessarily implied from the given
powers. The Constitution is the shore of legislative authority against which the waves of
legislative enactment may dash, but over which it cannot leap.[10]

Thus, legislative power remains limited in the sense that it is subject to substantive and constitutional

limitations which circumscribe both the exercise of the power itself and the allowable subjects of

legislation.[11] The substantive constitutional limitations are chiefly found in the Bill of Rights[12] and other

provisions, such as Sec. 3, Art. VI of the Constitution prescribing the qualifications of candidates for

senators.

In the same vein, the COMELEC cannot, in the guise of enforcing and administering election laws or

promulgating rules and regulations to implement Sec. 36(g), validly impose qualifications on candidates for

senator in addition to what the Constitution prescribes. If Congress cannot require a candidate for senator to

meet such additional qualification, the COMELEC, to be sure, is also without such power. The right of a citizen

in the democratic process of election should not be defeated by unwarranted impositions of requirement not

otherwise specified in the Constitution.[13]

Sec. 36(g) of RA 9165, as sought to be implemented by the assailed COMELEC resolution, effectively

enlarges the qualification requirements enumerated in the Sec. 3, Art. VI of the Constitution. As couched, said

Sec. 36(g) unmistakably requires a candidate for senator to be certified illegal-drug clean, obviously as a pre-
condition to the validity of a certificate of candidacy for senator or, with like effect, a condition sine qua

non to be voted upon and, if proper, be proclaimed as senator-elect. The COMELEC resolution completes the

chain with the proviso that [n]o person elected to any public office shall enter upon the duties of his office

until he has undergone mandatory drug test. Viewed, therefore, in its proper context, Sec. 36(g) of RA 9165

and the implementing COMELEC Resolution add another qualification layer to what the 1987 Constitution, at

the minimum, requires for membership in the Senate. Whether or not the drug-free bar set up under the

challenged provision is to be hurdled before or after election is really of no moment, as getting elected would
be of little value if one cannot assume office for non-compliance with the drug-testing requirement.
It may of course be argued, in defense of the validity of Sec. 36(g) of RA 9165, that the provision

does not expressly state that non-compliance with the drug test imposition is a disqualifying factor or would

work to nullify a certificate of candidacy. This argument may be accorded plausibility if the drug test

requirement is optional. But the particular section of the law, without exception, made drug-testing on those

covered mandatory, necessarily suggesting that the obstinate ones shall have to suffer the adverse

consequences for not adhering to the statutory command. And since the provision deals with candidates for

public office, it stands to reason that the adverse consequence adverted to can only refer to and revolve

around the election and the assumption of public office of the candidates. Any other construal would reduce

the mandatory nature of Sec. 36(g) of RA 9165 into a pure jargon without meaning and effect whatsoever.

While it is anti-climactic to state it at this juncture, COMELEC Resolution No. 6486 is no longer

enforceable, for by its terms, it was intended to cover only the May 10, 2004 synchronized elections and the

candidates running in that electoral event. Nonetheless, to obviate repetition, the Court deems it appropriate

to review and rule, as it hereby rules, on its validity as an implementing issuance.

It ought to be made abundantly clear, however, that the unconstitutionality of Sec. 36(g) of RA 9165

is rooted on its having infringed the constitutional provision defining the qualification or eligibility

requirements for one aspiring to run for and serve as senator.

SJS Petition

(Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165)

The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for secondary and tertiary level

students and public and private employees, while mandatory, is a random and suspicionless arrangement. The
objective is to stamp out illegal drug and safeguard in the process the well being of [the] citizenry, particularly

the youth, from the harmful effects of dangerous drugs. This statutory purpose, per the policy-declaration

portion of the law, can be achieved via the pursuit by the state of an intensive and unrelenting campaign

against the trafficking and use of dangerous drugs x x x through an integrated system of planning,

implementation and enforcement of anti-drug abuse policies, programs and projects.[14] The primary legislative

intent is not criminal prosecution, as those found positive for illegal drug use as a result of this random testing

are not necessarily treated as criminals. They may even be exempt from criminal liability should the illegal drug

user consent to undergo rehabilitation. Secs. 54 and 55 of RA 9165 are clear on this point:

Sec. 54. Voluntary Submission of a Drug Dependent to Confinement, Treatment and


Rehabilitation.A drug dependent or any person who violates Section 15 of this Act may, by
himself/herself or through his/her parent, [close relatives] x x x apply to the Board x x x for
treatment and rehabilitation of the drug dependency. Upon such application, the Board shall
bring forth the matter to the Court which shall order that the applicant be examined for
drug dependency. If the examination x x x results in the certification that the applicant is a
drug dependent, he/she shall be ordered by the Court to undergo treatment and
rehabilitation in a Center designated by the Board x x x.

xxxx

Sec. 55. Exemption from the Criminal Liability Under the Voluntary Submission
Program.A drug dependent under the voluntary submission program, who is finally discharged
from confinement, shall be exempt from the criminal liability under Section 15 of this Act
subject to the following conditions:

xxxx

School children, the US Supreme Court noted, are most vulnerable to the physical, psychological, and

addictive effects of drugs. Maturing nervous systems of the young are more critically impaired by intoxicants

and are more inclined to drug dependency. Their recovery is also at a depressingly low rate.[15]

The right to privacy has been accorded recognition in this jurisdiction as a facet of the right

protected by the guarantee against unreasonable search and seizure[16] under Sec. 2, Art. III[17] of the

Constitution. But while the right to privacy has long come into its own, this case appears to be the first time

that the validity of a state-decreed search or intrusion through the medium of mandatory random drug testing

among students and employees is, in this jurisdiction, made the focal point. Thus, the issue tendered in these

proceedings is veritably one of first impression.

US jurisprudence is, however, a rich source of persuasive jurisprudence. With respect to random drug
testing among school children, we turn to the teachings of Vernonia School District 47J v. Acton (Vernonia)

and Board of Education of Independent School District No. 92 of Pottawatomie County, et al. v. Earls, et

al. (Board of Education),[18] both fairly pertinent US Supreme Court-decided cases involving the

constitutionality of governmental search.

In Vernonia, school administrators in Vernonia, Oregon wanted to address the drug menace in their

respective institutions following the discovery of frequent drug use by school athletes. After consultation with

the parents, they required random urinalysis drug testing for the schools athletes. James Acton, a high school

student, was denied participation in the football program after he refused to undertake the urinalysis drug
testing. Acton forthwith sued, claiming that the schools drug testing policy violated, inter alia, the Fourth

Amendment[19] of the US Constitution.


The US Supreme Court, in fashioning a solution to the issues raised in Vernonia, considered the

following: (1) schools stand in loco parentis over their students; (2) school children, while not shedding their

constitutional rights at the school gate, have less privacy rights; (3) athletes have less privacy rights than non-

athletes since the former observe communal undress before and after sports events; (4) by joining the sports

activity, the athletes voluntarily subjected themselves to a higher degree of school supervision and regulation;

(5) requiring urine samples does not invade a students privacy since a student need not undress for this kind of

drug testing; and (6) there is need for the drug testing because of the dangerous effects of illegal drugs on

the young. The US Supreme Court held that the policy constituted reasonable search under the Fourth[20] and

14th Amendments and declared the random drug-testing policy constitutional.

In Board of Education, the Board of Education of a school in Tecumseh, Oklahoma required a drug test

for high school students desiring to join extra-curricular activities. Lindsay Earls, a member of the show choir,

marching band, and academic team declined to undergo a drug test and averred that the drug-testing policy

made to apply to non-athletes violated the Fourth and 14th Amendments. As Earls argued, unlike athletes who

routinely undergo physical examinations and undress before their peers in locker rooms, non-athletes are

entitled to more privacy.

The US Supreme Court, citing Vernonia, upheld the constitutionality of drug testing even among non-

athletes on the basis of the schools custodial responsibility and authority. In so ruling, said court made no

distinction between a non-athlete and an athlete. It ratiocinated that schools and teachers act in place of the

parents with a similar interest and duty of safeguarding the health of the students. And in holding that the

school could implement its random drug-testing policy, the Court hinted that such a test was a kind of search

in which even a reasonable parent might need to engage.

In sum, what can reasonably be deduced from the above two cases and applied to this jurisdiction are: (1)
schools and their administrators stand in loco parentis with respect to their students; (2) minor students have

contextually fewer rights than an adult, and are subject to the custody and supervision of their parents,
guardians, and schools; (3) 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; and (4)

schools have the right to impose conditions on applicants for admission that are fair, just, and non-

discriminatory.
Guided by Vernonia and Board of Education, the Court is of the view and so holds that the provisions of RA

9165 requiring mandatory, random, and suspicionless drug testing of students are 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.


The Court can take judicial notice of the proliferation of prohibited drugs in the country that

threatens the well-being of the people,[21] particularly the youth and school children who usually end up as

victims. Accordingly, and until a more effective method is conceptualized and put in motion, a random drug

testing of students in secondary and tertiary schools is not only acceptable but may even be necessary if the

safety and interest of the student population, doubtless a legitimate concern of the government, are to be
promoted and protected. To borrow from Vernonia, [d]eterring drug use by our Nations schoolchildren is as

important as enhancing efficient enforcement of the Nations laws against the importation of drugs; the

necessity for the State to act is magnified by the fact that the effects of a drug-infested school are visited

not just upon the users, but upon the entire student body and faculty.[22] Needless to stress, the random

testing scheme provided under the law argues against the idea that the testing aims to incriminate

unsuspecting individual students.

Just as in the case of secondary and tertiary level students, the mandatory but random drug test

prescribed by Sec. 36 of RA 9165 for officers and employees of public and private offices is justifiable, albeit

not exactly for the same reason. The Court notes in this regard that petitioner SJS, other than saying that

subjecting almost everybody to drug testing, without probable cause, is unreasonable, an unwarranted intrusion

of the individual right to privacy,[23] has failed to show how the mandatory, random, and suspicionless drug

testing under Sec. 36(c) and (d) of RA 9165 violates the right to privacy and constitutes unlawful and/or

unconsented search under Art. III, Secs. 1 and 2 of the Constitution.[24] Petitioner Lasernas lament is just as

simplistic, sweeping, and gratuitous and does not merit serious consideration. Consider what he wrote without

elaboration:

The US Supreme Court and US Circuit Courts of Appeals have made various rulings
on the constitutionality of mandatory drug tests in the school and the workplaces.
The US courts have been consistent in their rulings that the mandatory drug tests violate a
citizens constitutional right to privacy and right against unreasonable search and seizure.
They are quoted extensively hereinbelow.[25]

The essence of privacy is the right to be left alone.[26] In context, the right to privacy means the

right to be free from unwarranted exploitation of ones person or from intrusion into ones private activities in

such a way as to cause humiliation to a persons ordinary sensibilities. [27] And while there has been general

agreement as to the basic function of the guarantee against unwarranted search, translation of the abstract

prohibition against unreasonable searches and seizures into workable broad guidelines for the decision of
particular cases is a difficult task, to borrow from C. Camara v. Municipal Court.[28] Authorities are agreed

though that the right to privacy yields to certain paramount rights of the public and defers to the states
exercise of police power.[29]
As the warrantless clause of Sec. 2, Art III of the Constitution is couched and as has been held,

reasonableness is the touchstone of the validity of a government search or intrusion.[30] And whether a search

at issue hews to the reasonableness standard is judged by the balancing of the government-mandated intrusion

on the individuals privacy interest against the promotion of some compelling state interest. [31] In the criminal

context, reasonableness requires showing of probable cause to be personally determined by a judge. Given that

the drug-testing policy for employeesand students for that matterunder RA 9165 is in the nature of
administrative search needing what was referred to in Vernonia as swift and informal disciplinary procedures,

the probable-cause standard is not required or even practicable. Be that as it may, the review should focus on

the reasonableness of the challenged administrative search in question.

The first factor to consider in the matter of reasonableness is the nature of the privacy interest

upon which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution,

intrudes. In this case, the office or workplace serves as the backdrop for the analysis of the privacy

expectation of the employees and the reasonableness of drug testing requirement. The employees privacy

interest in an office is to a large extent circumscribed by the companys work policies, the collective bargaining

agreement, if any, entered into by management and the bargaining unit, 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; and a degree of impingement upon such privacy has been upheld.

Just as defining as the first factor is the character of the intrusion authorized by the challenged law.
Reduced to a question form, is the scope of the search or intrusion clearly set forth, or, as formulated in Ople

v. Torres, is the enabling law authorizing a search narrowly drawn or narrowly focused?[32]

The poser should be answered in the affirmative. For one, Sec. 36 of RA 9165 and its implementing

rules and regulations (IRR), as couched, contain provisions specifically directed towards preventing a situation

that would unduly embarrass the employees or place them under a humiliating experience. While every officer

and employee in a private establishment is under the law deemed forewarned that he or she may be a possible

subject of a drug test, nobody is really singled out in advance for drug testing. The goal is to discourage drug

use by not telling in advance anyone when and who is to be tested. And as may be observed, Sec. 36(d) of RA
9165 itself prescribes what, in Ople, is a narrowing ingredient by providing that the employees concerned shall

be subjected to random drug test as contained in the companys work rules and regulations x x x for purposes

of reducing the risk in the work place.

For another, the random drug testing shall be undertaken under conditions calculated to protect as

much as possible the employees privacy and dignity. As to the mechanics of the test, the law specifies that the
procedure shall employ two testing methods, i.e., the screening test and the confirmatory test, doubtless to

ensure as much as possible the trustworthiness of the results. But the more important consideration lies in the

fact that the test shall be conducted by trained professionals in access-controlled laboratories monitored by

the Department of Health (DOH) to safeguard against results tampering and to ensure an accurate chain of

custody.[33] In addition, the IRR issued by the DOH provides that access to the drug results shall be on the

need to know basis;[34] that the drug test result and the records shall be [kept] confidential subject to the

usual accepted practices to protect the confidentiality of the test results.[35] Notably, RA 9165 does not

oblige the employer concerned to report to the prosecuting agencies any information or evidence relating to
the violation of the Comprehensive Dangerous Drugs Act received as a result of the operation of the drug

testing. All told, therefore, the intrusion into the employees privacy, under RA 9165, is accompanied by proper

safeguards, particularly against embarrassing leakages of test results, and is relatively minimal.

To reiterate, RA 9165 was enacted as a measure to stamp out illegal drug in the country and thus

protect the well-being of the citizens, especially the youth, from the deleterious effects of dangerous drugs.

The law intends to achieve this through the medium, among others, of promoting and resolutely pursuing a

national drug abuse policy in the workplace via a mandatory random drug test.[36] To the Court, the need for

drug testing to at least minimize illegal drug use is substantial enough to override the individuals privacy

interest under the premises. The Court can consider that the illegal drug menace cuts across gender, age

group, and social- economic lines. And it may not be amiss to state that the sale, manufacture, or trafficking of

illegal drugs, with their ready market, would be an investors dream were it not for the illegal and immoral

components of any of such activities. The drug problem has hardly abated since the martial law public

execution of a notorious drug trafficker. The state can no longer assume a laid back stance with respect to

this modern-day scourge. Drug enforcement agencies perceive a mandatory random drug test to be an

effective way of preventing and deterring drug use among employees in private offices, the threat of

detection by random testing being higher than other modes. The Court holds that the chosen method is a

reasonable and enough means to lick the problem.

Taking into account the foregoing factors, i.e., the reduced expectation of privacy on the part of the

employees, the compelling state concern likely to be met by the search, and the well-defined limits set forth in

the law to properly guide authorities in the conduct of the random testing, we hold that the challenged drug
test requirement is, under the limited context of the case, reasonable and, ergo, constitutional.

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 other laws on public officers, all

enacted to promote a high standard of ethics in the public service.[37] And if RA 9165 passes the norm of
reasonableness for private employees, the more reason that it should pass the test for civil servants, who, by
constitutional command, are required to be accountable at all times to the people and to serve them with

utmost responsibility and efficiency.[38]

Petitioner SJS next posture that Sec. 36 of RA 9165 is objectionable on the ground of undue

delegation of power hardly commends itself for concurrence. Contrary to its position, the provision in question

is not so extensively drawn as to give unbridled options to schools and employers to determine the manner of

drug testing. Sec. 36 expressly provides how drug testing for students of secondary and tertiary schools and

officers/employees of public/private offices should be conducted. It enumerates the persons who shall

undergo drug testing. In the case of students, the testing shall be in accordance with the school rules as

contained in the student handbook and with notice to parents. On the part of officers/employees, the testing

shall take into account the companys work rules. In either case, the random procedure shall be observed,

meaning that the persons to be subjected to drug test shall be picked by chance or in an unplanned way. And in

all cases, safeguards against misusing and compromising the confidentiality of the test results are established.

Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue, in consultation with the DOH,

Department of the Interior and Local Government, Department of Education, and Department of Labor and

Employment, among other agencies, the IRR necessary to enforce the law. In net effect then, the participation

of schools and offices in the drug testing scheme shall always be subject to the IRR of RA 9165. It is,

therefore, incorrect to say that schools and employers have unchecked discretion to determine how often,

under what conditions, and where the drug tests shall be conducted.

The validity of delegating legislative power is now a quiet area in the constitutional landscape.[39] In

the face of the increasing complexity of the task of the government and the increasing inability of the

legislature to cope directly with the many problems demanding its attention, resort to delegation of power, or

entrusting to administrative agencies the power of subordinate legislation, has become imperative, as here.

Laserna Petition (Constitutionality of Sec. 36[c], [d],

[f], and [g] of RA 9165)

Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court finds no valid justification

for mandatory drug testing for persons accused of crimes. In the case of students, the constitutional viability

of the mandatory, random, and suspicionless drug testing for students emanates primarily from the waiver by

the students of their right to privacy when they seek entry to the school, and from their voluntarily

submitting their persons to the parental authority of school authorities. In the case of private and public
employees, the constitutional soundness of the mandatory, random, and suspicionless drug testing proceeds

from the reasonableness of the drug test policy and requirement.


We find the situation entirely different in the case of persons charged before the public prosecutors

office with criminal offenses punishable with six (6) years and one (1) day imprisonment. The operative

concepts in the mandatory drug testing are randomness and suspicionless. In the case of persons charged with

a crime before the prosecutors office, a mandatory drug testing can never be random or suspicionless. The

ideas of randomness and being suspicionless are antithetical to their being made defendants in a criminal

complaint. They are not randomly picked; neither are they beyond suspicion. When persons suspected of

committing a crime are charged, they are singled out and are impleaded against their will. The persons thus

charged, by the bare fact of being haled before the prosecutors office and peaceably submitting themselves

to drug testing, if that be the case, do not necessarily consent to the procedure, let alone waive their right to

privacy.[40] To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as

a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case would

violate a persons right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the

accused persons are veritably forced to incriminate themselves.

WHEREFORE, the Court resolves to GRANT the petition in G.R. No. 161658 and declares Sec.

36(g) of RA 9165 and COMELEC Resolution No. 6486 as UNCONSTITUTIONAL; and to PARTIALLY

GRANT the petition in G.R. Nos. 157870 and 158633 by declaring Sec. 36(c) and (d) of RA

9165 CONSTITUTIONAL, but declaring its Sec. 36(f) UNCONSTITUTIONAL. All concerned agencies are,

accordingly, permanently enjoined from implementing Sec. 36(f) and (g) of RA 9165. No costs.

SO ORDERED.

Republic of the Philippines


SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 200748 July 23, 2014

JAIME D. DELA CRUZ, Petitioner,


vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

SERENO, CJ:
This is a Petition for Review on Certiorari, filed by petitioner Jaime D. dela Cruz, from the Decision1 dated 22
June 2011 issued by the Twentieth Division of the Court of Appeals (CA) and Resolution 2 dated 2 February
2012 issued by the Former Twentieth Division of the CA in CA-G.R. C.R. No. 00670.

THE ANTECEDENT FACTS

Petitioner Jaime D. dela Cruz was charged with violation of Section 15, Article II of Republic Act No. (R.A.)
9165, or The Comprehensive Dangerous Drugs Act of 2002, by the Graft Investigation and Prosecution
Officer of the Office of the Ombudsman - Visayas, in an Information3 dated 14 February 2006, which reads:

That on or about the 31st day of January 2006, at Cebu City, Philippines, and within the jurisdiction of this
Honorable Court, the abovenamed accused, JAIME D. DE LA CRUZ, a public officer, having been duly appointed
and qualified to such public position as Police Officer 2 of the Philippine National Police (PNP) assigned in the
Security Service Group of the Cebu City Police Office, after having beenarrested by agents of the National
Bureau of Investigation (NBI) in an entrapment operation, was found positive for use of
METHAMPHETAMINE HYDROCHLORIDEcommonly known as "Shabu", the dangerous drug after a
confirmatory test conducted on said accused.

CONTRARY TO LAW.

When arraigned, petitioner, assisted by counsel de parte, pleaded not guilty to the charge. The records do not
reveal whether De la Cruz was likewise charged for extortion.

VERSION OF THE PROSECUTION

The evidence of the prosecution reveals that at 8:00 a.m. of 31 January 2006, the agents and special
investigators of the National Bureau of Investigation, Central Visayas Regional Office (NBI-CEVRO) or simply
NBI, received a Complaint from Corazon Absin (Corazon) and Charito Escobido (Charito). The complainants
claimed that at 1:00 a.m. of that same day, Ariel Escobido (Ariel), the live-in partner of Corazon and son of
Charito, was picked up by several unknown male persons believed to be police officers for allegedly selling
drugs. An errand boy gave a number to the complainants, and when the latter gave the number a ring, they
were instructed to proceed to the Gorordo Police Office located along Gorordo Avenue, Cebu City. In the said
police office, they met "James" who demanded from them ₱100,000, later lowered to ₱40,000, in exchange for
the release of Ariel. After the meeting, the complainants proceeded to the NBI-CEVRO to file a complaint and
narrate the circumstances of the meeting to the authorities. While at the NBI-CEVRO, Charitoeven received
calls supposedly from "James" instructing her to bring the money as soon as possible.

The special investigators at the NBI-CEVRO verified the text messages received by the
complainants.1âwphi1 A team was immediately formed to implement an entrapment operation, which took place
inside a Jollibee branch at the corner of Gen. Maxilom and Gorordo Avenues, Cebu City. The officers were able
to nab Jaime dela Cruz by using a pre-marked 500 bill dusted with fluorescent powder, which was made part of
the amount demanded by "James" and handed by Corazon. Petitioner was later brought to the forensic
laboratory of the NBI-CEVRO where forensic examination was done by forensic chemist Rommel Paglinawan.
Petitioner was required to submit his urine for drug testing. It later yielded a positive result for presence of
dangerous drugs as indicated in the confirmatory test result labeled as Toxicology (DangerousDrugs) Report
No. 2006-TDD-2402 dated 16 February 2006.

VERSION OF THE DEFENSE


The defense presented petitioner as the lone witness. He denied the charges and testified that while eating at
the said Jollibee branch, he was arrested allegedly for extortion by NBI agents. When he was at the NBI
Office, he was required to extract urine for drug examination, but he refused saying he wanted it to be done
by the Philippine National Police (PNP) Crime Laboratory and not by the NBI. His request was, however, denied.
He also requested to be allowed to call his lawyer prior to the taking of his urine sample, to no avail.

THE RULING OF THE RTC

The Regional Trial Court (RTC) Branch 58 of Cebu City, in its Decision4 dated 6 June 2007, found the accused
guilty beyond reasonable doubt of violating Section 15, Article II of R.A. 9165 and sentenced him to suffer
the penalty of compulsory rehabilitation for a period of not less than six (6) months at the Cebu Center for
the Ultimate Rehabilitation of Drug Dependents located at Salinas, Lahug, Cebu City.5

Petitioner filed an appeal assigning as error the RTC’s validation of the result of the urine test despite its
dubiousness having been admitted in spite of the lack of legal basis for itsadmission. First, he alleges that the
forensic laboratory examination was conducted despite the fact that he was not assisted by counsel, in clear
violation of his constitutional right. Secondly, he was allegedly held guilty beyond reasonable doubt
notwithstanding the lack of sufficient basis to convict him.

THE RULING OF THE CA

The CA found the appeal devoid of merit and affirmed the ruling of the RTC.

Petitioner filed a timely Motion for Reconsideration. He argued that the CA overlooked prevailing
jurisprudence, which states that drug testing conducted under circumstancessimilar to his would violate a
person’s right to privacy. The appellate court nevertheless denied the motion.

Petitioner thus filed the present Petition for Review on certiorari. He assigns as errors the use of hearsay
evidence as basis for his conviction and the questionable circumstances surrounding his arrest and drug test.

Respondent, through the Office of the Solicitor General, filed its Comment,6 saying that "petitioner’s
arguments cannot be the subject of a petition for review on certiorariunder Rule 45, as they involve questions
of facts which may not be the subject thereof; after his arraignment, he can no longer contest the validity of
his arrest, less so at this stage of the proceedings; his guilt has been adequately established by direct
evidence; and the manner in which the laboratory examination was conducted was grounded on a valid and
existing law.

THE ISSUE

We deem it proper to give due course to this Petition by confronting head-on the issue of whether or not the
drug test conducted upon the petitioner is legal.

OUR RULING

We declare that the drug testconducted upon petitioner is not grounded upon any existing law or
jurisprudence.

We gloss over petitioner’s non-compliance with the Resolution7 ordering him to submit clearly legible duplicate
originals or certified true copies of the assailed Decision and Resolution. Petitioner was charged with use of
dangerous drugs in violation of the law, the pertinent provision of which reads:
Section 15. Use of Dangerous Drugs. – A person apprehended or arrested, who is found to be positive for use
of any dangerous drug, after a confirmatory test, shall be imposed a penalty of a minimum of six (6) months
rehabilitation in a government center for the first offense, subject to the provisions of Article VIII of this
Act. If apprehended using any dangerous drug for the second time, he/she shall suffer the penalty of
imprisonment ranging from six (6) years and one (1) day to twelve (12) years and a fine ranging from Fifty
thousand pesos (₱50,000.00) to Two hundred thousand pesos (₱200,000.00): Provided,That this Section shall
not be applicable where the person tested is also found to have in his/her possession such quantity of any
dangerous drug provided for under Section 11 of this Act, in which case the provisions stated therein shall
apply.8

The RTC subsequently convicted petitioner, ruling that the following elements of Section 15 were established:
(1) the accused was arrested; (2) the accused was subjected to drug test; and (3) the confirmatory test shows
that he used a dangerous drug.

Disregarding petitioner’s objection regarding the admissibility of the evidence, the lower court also reasoned
that "a suspect cannot invoke his right to counsel when he is required to extract urine because, while he is
already in custody, he is not compelled to make a statement or testimony against himself. Extracting urine
from one’s body is merely a mechanical act, hence, falling outside the concept of a custodial investigation."

We find the ruling and reasoning of the trial court, as well as the subsequent affirmation by the CA, erroneous
on three counts.

The drug test in Section 15 does not cover persons apprehended or arrested for any unlawful act, but only for
unlawful acts listed under Article II of R.A. 9165.

First, "[a] person apprehended orarrested" cannot literally mean any person apprehended or arrested for any
crime.The phrase must be read in context and understood in consonance with R.A. 9165. Section 15
comprehends persons arrested or apprehended for unlawful acts listed under Article II of the law.

Hence, a drug test can be made upon persons who are apprehended or arrested for, among others, the
"importation,"9 "sale, trading, administration, dispensation, delivery, distribution and
transportation",10"manufacture"11 and "possession"12 of dangerous drugs and/or controlled precursors and
essential chemicals; possession thereof "during parties, social gatherings or meetings"13 ; being "employees and
visitors of a den, dive or resort";14 "maintenance of a den, dive or resort";15 "illegal chemical diversion of
controlled precursors and essential chemicals"16 ; "manufacture or delivery"17 or "possession"18 of equipment,
instrument, apparatus, and other paraphernalia for dangerous drugs and/or controlled precursors and essential
chemicals; possession of dangerous drugs "during parties, social gatherings or meetings"19 ; "unnecessary"20 or
"unlawful"21 prescription thereof; "cultivation or culture of plantsclassified as dangerous drugs or are sources
thereof";22 and "maintenance and keeping of original records of transactions on dangerous drugs
and/orcontrolled precursors and essential chemicals."23 To make the provision applicable to all persons
arrested or apprehended for any crime not listed under Article II is tantamount to unduly expanding its
meaning. Note thataccused appellant here was arrested in the alleged act of extortion.

A charge for violation of Section 15 of R.A. 9165 is seen as expressive of the intent of the law to rehabilitate
persons apprehended or arrested for the unlawful acts enumerated above instead of charging and convicting
them of other crimes with heavier penalties. The essence of the provision is more clearly illustrated in People
v. Martinez24 as follows:

On a final note, this Court takes the opportunity to be instructive on Sec. 11 (Possession of Dangerous Drugs)
and Sec. 15 (Use of Dangerous Drugs) of R.A. No. 9165, withregard to the charges that are filed by law
enforcers. This Court notes the practice of law enforcers of filing charges under Sec. 11 in cases where the
presence of dangerous drugs as basis for possession is only and solely in the form of residue, being subsumed
under the last paragraph of Sec. 11. Although not incorrect, it would be more in keeping withthe intent of the
law to file charges under Sec. 15 instead in order to rehabilitate first time offenders of drug use, provided
thatthere is a positive confirmatory test result as required under Sec. 15.The minimum penalty under the last
paragraph of Sec. 11 for the possession of residue isimprisonment of twelve years and one day, while the
penalty under Sec. 15 for first time offenders of drug use is a minimum of six months rehabilitation in a
government center. To file charges under Sec. 11 on the basis of residue alone would frustrate the objective
of the law to rehabilitate drug users and provide them with an opportunity to recover for a second chance at
life.

In the case at bench, the presence of dangerous drugs was only in the form of residue on the drug
paraphernalia, and the accused were found positive for use of dangerous drugs. Granting that the arrest was
legal, the evidence obtained admissible, and the chain of custody intact, the law enforcers should have filed
charges under Sec. 15, R.A. No. 9165 or for use of dangerous drugs and, if there was no residue at all, they
should have been charged under Sec. 14 (Possession of Equipment, Instrument, Apparatus and Other
Paraphernalia for Dangerous Drugs During Parties, Social Gatherings or Meetings). Sec. 14 provides that the
maximum penalty under Sec. 12(Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for
Dangerous Drugs) shall be imposed on any person who shall possess any equipment, instrument, apparatus and
other paraphernalia for dangerous drugs. Under Sec. 12, the maximum penalty is imprisonment of four years
and a fine of ₱50,000.00. In fact, under the same section, the possession of such equipment, apparatus or
other paraphernalia is prima facieevidence that the possessor has used a dangerous drug and shall be
presumed to have violated Sec. 15.

In order to effectively fulfill the intent of the law to rehabilitate drug users, this Court thus calls on law
enforcers and prosecutors in dangerous drugs cases to exercise proper discretion in filing charges when the
presence of dangerous drugs isonly and solely in the form of residue and the confirmatory test required under
Sec. 15 is positive for use of dangerous drugs.In such cases, to afford the accused a chance to be
rehabilitated, the filing of charges for or involving possession of dangerous drugs should only be done when
another separate quantity of dangerous drugs, other than mere residue, is found in the possession of the
accused as provided for in Sec. 15. (Emphasis supplied)

Furthermore, making the phrase "a person apprehended or arrested" in Section 15 applicable to all persons
arrested or apprehended for unlawful acts, not only under R.A. 9165 but for all other crimes, is tantamount to
a mandatory drug testing of all persons apprehended or arrested for any crime. To overextend the application
of thisprovision would run counter to our pronouncement in Social Justice Society v. Dangerous Drugs Board
and Philippine Drug Enforcement Agency,25 to wit:

x x x [M]andatory drug testing can never be random and suspicionless. The ideas of randomness and being
suspicionless are antithetical to their being made defendants in a criminal complaint. They are not randomly
picked; neither are they beyond suspicion. When persons suspected of committing a crime are charged, they
are singled out and are impleaded against their will. The persons thus charged, by the bare fact of being haled
before the prosecutor’s office and peaceably submitting themselves to drug testing, if that be the case, do
not necessarily consent to the procedure, let alone waive their right to privacy. To impose mandatory drug
testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution,
contrary to the stated objectives of RA 6195. Drug testing in this case would violate a person’s right to
privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably
forced to incriminate themselves. (Emphasis supplied)

The drug test is not covered by allowable non-testimonial compulsion.


We find that petitioner never raisedthe alleged irregularity of his arrest before his arraignment and raises
the issue only now before this tribunal; hence, he is deemed to have waived his right to question the validity of
his arrest curing whatever defect may have attended his arrest.26 However, "a waiver of an illegal warrantless
arrest does not mean a waiver of the inadmissibility of evidence seized during an illegal warrantless arrest." 27

We are aware of the prohibition against testimonial compulsion and the allowable exceptions to such
proscription. Cases where non-testimonial compulsion has been allowed reveal, however, that the pieces of
evidence obtained were all material to the principal cause of the arrest.

The constitutional right of an accused against self-incrimination proscribes the use of physical or moral
compulsion to extort communications from the accused and not the inclusion of his body in evidence when it
may be material. Purely mechanical acts are not included in the prohibition as the accused does not thereby
speak his guilt, hence the assistance and guiding hand ofcounsel is not required. (People vs. Olvis, 238 Phil. 513
[1987]) The essence of the right against selfincrimination is testimonial compulsion, that is, the giving of
evidence against himself through a testimonial act. (People vs. Casinillo, 213 SCRA 777 [1992]; People vs.
Tranca, 235 SCRA 455 [1994]; People vs. Rondero, 378 Phil. 123 [1999]) Hence,it has been held that a woman
charged with adultery may be compelled to submit to physical examination to determine her pregnancy;
(Villaflor vs. Summers, 41 Phil. 62 [1920]) and an accused may be compelled to submit to physical examination
and to have a substance taken from his body for medical determination as to whether he was suffering from
gonorrhea which was contracted by his victim;(U.S. vs. Tan Teng, 23 Phil. 145 [1912]) to expel morphine from
his mouth; (U.S. vs. Ong Siu Hong, 36 Phil. 735 [1917]) to have the outline of his foot traced todetermine its
identity with bloody footprints; (U.S. vs. Salas, 25 Phil. 337 [1913]; U.S. vs. Zara, 42 Phil. 308 [1921]) and to be
photographed or measured, or his garments or shoes removed or replaced, or to move his body to enable the
foregoing things to be done.(People vs. Otadora, 86 Phil. 244 [1950])28(Emphasis supplied)

In the instant case, we fail to see howa urine sample could be material to the charge of extortion.1âwphi1 The
RTC and the CA, therefore, both erred when they held that the extraction of petitioner’s urine for purposes
of drug testing was "merely a mechanical act, hence, falling outside the concept of a custodial investigation."

We note a case where a urine sample was considered as admissible. In Gutang v. People, 29 the petitioner
therein and his companions were arrested in connection with the enforcement of a search warrant in his
residence. A PNP-NARCOM team found and confiscated shabu materials and paraphernalias. The petitioner and
his companions in that case were also asked to give urine samples, which yielded positive results. Later, the
petitioner therein was found guilty of the crime of illegal possession and use of prohibited drugs. Gutang
claimed that the latter’s urine sample was inadmissible in evidence, since it was derived in effect from an
uncounselled extrajudicial confession.

In the Gutang et al.case, the Court clarified that "what the Constitution prohibits is the use of physical or
moral compulsion to extort communication from the accused, but not an inclusion of his body in evidence, when
it may be material." The situation in Gutangwas categorized as falling among the exemptions under the
freedom from testimonial compulsion since what was sought tobe examined came from the body of the
accused. The Court said:

This was a mechanical act the accused was made to undergo which was not meant to unearth undisclosedfacts
but to ascertain physical attributes determinable by simple observation. In fact, the record shows that
petitioner and his co-accused were not compelled to give samples of their urine but they in fact voluntarily
gave the same when they were requested to undergo a drug test.
Assuming arguendothat the urine samples taken from the petitioner are inadmissible in evidence, we agree with
the trial court that the record is replete with other pieces of credible evidence including the testimonial
evidence of the prosecution which point to the culpability of the petitioner for the crimes charged.

We emphasize that the circumstances in Gutangare clearly different from the circumstances of petitioner in
the instant case.1awp++i1 First, Gutang was arrested in relation to a drug case. Second, he volunteered to give
his urine. Third, there were other pieces of evidence that point to his culpability for the crimes charged. In
the present case, though, petitioner was arrested for extortion; he resisted having his urine sample taken; and
finally, his urine sample was the only available evidencethat was used as basis for his conviction for the use of
illegal drugs.

The drug test was a violation of petitioner’s right to privacy and right against self-incrimination.

It is incontrovertible that petitioner refused to have his urine extracted and tested for drugs. He also asked
for a lawyer prior to his urine test. He was adamant in exercising his rights, but all of his efforts proved
futile, because he was still compelled to submit his urine for drug testing under those circumstances.

The pertinent provisions in Article III of the Constitution are clear:

Section 2. The right of the people to be securein 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.

Section 17. No person shall be compelled to be a witness against himself.

In the face of these constitutional guarantees, we cannot condone drug testing of all arrested persons
regardless of the crime or offense for which the arrest is being made.

While we express our commendation of law enforcement agents as they vigorously track down offenders
intheir laudable effort to curb the pervasive and deleterious effects of dangerous drugs on our society, they
must, however, be constantly mindful of the reasonable limits of their authority, because it is not unlikely that
in their clear intent to purge society of its lawless elements, they may be knowingly or unknowingly
transgressing the protected rights of its citizens including even members of its own police force.

WHEREFORE, premises considered, the assailed Decision dated 22 June 2011 issued by the Twentieth
Division, and the Resolution dated 2 February 2012 issued by the former Twentieth Division of the Court of
Appeals, in CA-G.R. C.R. No. 00670 are SET ASIDE. Petitioner is hereby ACQUITTED.

SO ORDERED.

OCTOBER TERM, 2000

Syllabus

KYLLO v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 99-8508. Argued February 20, 200l-Decided June 11,2001

Suspicious that marijuana was being grown in petitioner Kyllo's home in a triplex, agents used a thermal-
imaging device to scan the triplex to determine if the amount of heat emanating from it was consistent with
the high-intensity lamps typically used for indoor marijuana growth. The scan showed that Kyllo's garage roof
and a side wall were relatively hot compared to the rest of his home and substantially warmer than the
neighboring units. Based in part on the thermal imaging, a Federal Magistrate Judge issued a warrant to search
Kyllo's home, where the agents found marijuana growing. Mter Kyllo was indicted on a federal drug charge, he
unsuccessfully moved to suppress the evidence seized from his home and then entered a conditional guilty plea.
The Ninth Circuit ultimately affirmed, upholding the thermal imaging on the ground that Kyllo had shown no
subjective expectation of privacy because he had made no attempt to conceal the heat escaping from his home.
Even if he had, ruled the court, there was no objectively reasonable expectation of privacy because the
thermal imager did not expose any intimate details of Kyllo's life, only amorphous hot spots on his home's
exterior.

Held: Where, as here, the Government uses a device that is not in general public use, to explore details of a
private home that would previously have been unknowable without physical intrusion, the surveillance is a
Fourth Amendment "search," and is presumptively unreasonable without a warrant. Pp. 31-41.

(a) The question whether a warrantless search of a home is reasonable and hence constitutional must be
answered no in most instances, but the antecedent question whether a Fourth Amendment "search" has
occurred is not so simple. This Court has approved warrantless visual surveillance of a home,
see California v. Ciraolo, 476 U. S. 207, 213, ruling that visual observation is no "search" at all, see Dow
Chemical Co. v. United States, 476 U. S. 227, 234-235, 239. In assessing when a search is not a search, the
Court has adapted a principle first enunciated in Katz v. United States, 389 U. S. 347, 361: A "search" does
not occur-even when its object is a house explicitly protected by the Fourth Amendment-unless the individual
manifested a subjective

28

Syllabus

expectation of privacy in the searched object, and society is willing to recognize that expectation as
reasonable, see, e. g., California v. Ciraolo, supra, at 211. Pp. 31-33.

(b) While it may be difficult to refine the Katz test in some instances, in the case of the search of a home's
interior-the prototypical and hence most commonly litigated area of protected privacy-there is a ready
criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is
acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police
technology to erode the privacy guaranteed by the Fourth Amendment. Thus, obtaining by sense-enhancing
technology any information regarding the home's interior that could not otherwise have been obtained without
physical "intrusion into a constitutionally protected area," Silverman v. United States, 365 U. S. 505, 512,
constitutes a search-at least where (as here) the technology in question is not in general public use. This
assures preservation of that degree of privacy against government that existed when the Fourth Amendment
was adopted. Pp. 33-35.

(c) Based on this criterion, the information obtained by the thermal imager in this case was the product of a
search. The Court rejects the Government's argument that the thermal imaging must be upheld because it
detected only heat radiating from the home's external surface. Such a mechanical interpretation of the
Fourth Amendment was rejected in Katz, where the eavesdropping device in question picked up only sound
waves that reached the exterior of the phone booth to which it was attached. Reversing that approach would
leave the homeowner at the mercy of advancing technology-including imaging technology that could discern all
human activity in the home. Also rejected is the Government's contention that the thermal imaging was
constitutional because it did not detect "intimate details." Such an approach would be wrong in principle
because, in the sanctity of the home, all details are intimate details. See, e. g., United States v. Karo, 468 U.
S. 705; Dow Chemical, supra, at 238, distinguished. It would also be impractical in application, failing to provide
a workable accommodation between law enforcement needs and Fourth Amendment interests.
See Oliver v. United States, 466 U. S. 170, 181. Pp. 35-40.

(d) Since the imaging in this case was an unlawful search, it will remain for the District Court to determine
whether, without the evidence it provided, the search warrant was supported by probable cause-and if not,
whether there is any other basis for supporting admission of that evidence. P. 40.

190 F.3d 1041, reversed and remanded.

29

SCALIA, J., delivered the opinion of the Court, in which SOUTER, THOMAS, GINSBURG, and BREYER, JJ.,
joined. STEVENS, J., filed a dissenting opinion, in which REHNQUIST, C. J., and O'CONNOR and KENNEDY,
JJ., joined, post, p. 41.

Kenneth Lerner, by appointment of the Court, 531 U. S. 955, argued the cause and filed briefs for petitioner.

Deputy Solicitor General Dreeben argued the cause for the United States. With him on the brief were former
Solicitor General Waxman, Assistant Attorney General Robinson, Irving L. Gornstein, and Deborah Watson. *

JUSTICE SCALIA delivered the opinion of the Court.

This case presents the question whether the use of a thermal-imaging device aimed at a private home from a
public street to detect relative amounts of heat within the home constitutes a "search" within the meaning of
the Fourth Amendment.

In 1991 Agent William Elliott of the United States Department of the Interior came to suspect that marijuana
was being grown in the home belonging to petitioner Danny Kyllo, part of a triplex on Rhododendron Drive in
Florence, Oregon. Indoor marijuana growth typically requires highintensity lamps. In order to determine
whether an amount of heat was emanating from petitioner's home consistent with the use of such lamps, at
3:20 a.m. on January 16, 1992, Agent Elliott and Dan Haas used an Agema Thermovision 210 thermal imager to
scan the triplex. Thermal imagers detect infrared radiation, which virtually all objects emit but which is not
visible to the naked eye. The imager converts radiation into images based on relative warmth-black

*Briefs of amici curiae urging reversal were filed for the Liberty Project by Julie M. Carpenter; and for the
National Association of Criminal Defense Lawyers et al. by James J. Tomkovicz, Lisa B. Kemler, and Steven R.
Shapiro.
30

is cool, white is hot, shades of gray connote relative differences; in that respect, it operates somewhat like a
video camera showing heat images. The scan of Kyllo's home took only a few minutes and was performed from
the passenger seat of Agent Elliott's vehicle across the street from the front of the house and also from the
street in back of the house. The scan showed that the roof over the garage and a side wall of petitioner's
home were relatively hot compared to the rest of the home and substantially warmer than neighboring homes
in the triplex. Agent Elliott concluded that petitioner was using halide lights to grow marijuana in his house,
which indeed he was. Based on tips from informants, utility bills, and the thermal imaging, a Federal Magistrate
Judge issued a warrant authorizing a search of petitioner's home, and the agents found an indoor growing
operation involving more than 100 plants. Petitioner was indicted on one count of manufacturing marijuana, in
violation of 21 U. s. C. § 841(a)(1). He unsuccessfully moved to suppress the evidence seized from his home and
then entered a conditional guilty plea.

The Court of Appeals for the Ninth Circuit remanded the case for an evidentiary hearing regarding the
intrusiveness of thermal imaging. On remand the District Court found that the Agema 210 "is a non-intrusive
device which emits no rays or beams and shows a crude visual image of the heat being radiated from the
outside of the house"; it "did not show any people or activity within the walls of the structure"; "[t]he device
used cannot penetrate walls or windows to reveal conversations or human activities"; and "[n]o intimate details
of the home were observed." Supp. App. to Pet. for Cert. 39-40. Based on these findings, the District Court
upheld the validity of the warrant that relied in part upon the thermal imaging, and reaffirmed its denial of
the motion to suppress. A divided Court of Appeals initially reversed, 140 F.3d 1249 (1998), but that

31

opinion was withdrawn and the panel (after a change in composition) affirmed, 190 F.3d 1041 (1999), with
Judge Noonan dissenting. The court held that petitioner had shown no subjective expectation of privacy
because he had made no attempt to conceal the heat escaping from his home, id., at 1046, and even if he had,
there was no objectively reasonable expectation of privacy because the imager "did not expose any intimate
details of Kyllo's life," only "amorphous 'hot spots' on the roof and exterior wall," id., at 1047. We granted
certiorari. 530 U. S. 1305 (2000).

II

The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be violated." "At the very core" of the
Fourth Amendment "stands the right of a man to retreat into his own home and there be free from
unreasonable governmental intrusion." Silverman v. United States, 365 U. S. 505, 511 (1961). With few
exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must
be answered no. See Illinois v. Rodriguez, 497 U. S. 177, 181 (1990); Payton v. New York, 445 U. S. 573, 586
(1980).

On the other hand, the antecedent question whether or not a Fourth Amendment "search" has occurred is not
so simple under our precedent. The permissibility of ordinary visual surveillance of a home used to be clear
because, well into the 20th century, our Fourth Amendment jurisprudence was tied to common-law trespass.
See, e. g., Goldman v. United States, 316 U. S. 129, 134-136 (1942); Olmstead v. United States, 277 U. S. 438,
464-466 (1928). Cf. Silverman v. United States, supra, at 510-512 (technical trespass not necessary for
Fourth Amendment violation; it suffices if there is "actual intrusion into a constitutionally protected area").
Visual surveillance was unquestionably lawful because" 'the

32

eye cannot by the laws of England be guilty of a trespass.'" Boyd v. United States, 116 U. S. 616, 628 (1886)
(quoting Entick v. Carrington, 19 How. St. Tr. 1029, 95 Eng. Rep. 807 (K. B. 1765)). We have since decoupled
violation of a person's Fourth Amendment rights from trespassory violation of his property, see Rakas v. III
inois, 439 U. S. 128, 143 (1978), but the lawfulness of warrantless visual surveillance of a home has still been
preserved. As we observed in California v. Ciraolo, 476 U. S. 207, 213 (1986), "[t]he Fourth Amendment
protection of the home has never been extended to require law enforcement officers to shield their eyes when
passing by a home on public thoroughfares."

One might think that the new validating rationale would be that examining the portion of a house that is in
plain public view, while it is a "search" 1 despite the absence of trespass, is not an "unreasonable" one under
the Fourth Amendment. See Minnesota v. Carter, 525 U. S. 83, 104 (1998) (BREYER, J., concurring in
judgment). But in fact we have held that visual observation is no "search" at allperhaps in order to preserve
somewhat more intact our doctrine that warrantless searches are presumptively unconstitutional. See Dow
Chemical Co. v. United States, 476 U. S. 227, 234-235, 239 (1986). In assessing when a search is not a search,
we have applied somewhat in reverse the principle first enunciated in Katz v. United States, 389 U. S.
347(1967). Katz involved eavesdropping by means of an electronic listening device placed on the outside of a
telephone booth-a location not within the catalog ("persons, houses, papers, and effects") that the Fourth
Amendment protects against unreasonable searches. We held that the

1 When the Fourth Amendment was adopted, as now, to "search" meant "[tJo look over or through for the
purpose of finding something; to explore; to examine by inspection; as, to search the house for a book;
to search the wood for a thief." N. Webster, An American Dictionary of the English Language 66 (1828)
(reprint 6th ed. 1989).

33

Fourth Amendment nonetheless protected Katz from the warrantless eavesdropping because he "justifiably
relied" upon the privacy of the telephone booth. Id., at 353. As Justice Harlan's oft-quoted concurrence
described it, a Fourth Amendment search occurs when the government violates a subjective expectation of
privacy that society recognizes as reasonable. See id., at 361. We have subsequently applied this principle to
hold that a Fourth Amendment search does not occur-even when the explicitly protected location of a house is
concerned-unless "the individual manifested a subjective expectation of privacy in the object of the
challenged search," and "society [is] willing to recognize that expectation as reasonable." Ciraolo, supra, at 211.
We have applied this test in holding that it is not a search for the police to use a pen register at the phone
company to determine what numbers were dialed in a private home, Smith v. Maryland, 442 U. S. 735, 743744
(1979), and we have applied the test on two different occasions in holding that aerial surveillance of private
homes and surrounding areas does not constitute a search, Ciraolo, supra; Florida v. Riley, 488 U. S. 445 (1989).

The present case involves officers on a public street engaged in more than naked-eye surveillance of a home.
We have previously reserved judgment as to how much technological enhancement of ordinary perception from
such a vantage point, if any, is too much. While we upheld enhanced aerial photography of an industrial complex
in Dow Chemical, we noted that we found "it important that this is not an area immediately adjacent to a
private home, where privacy expectations are most heightened," 476 U. S., at 237, n. 4 (emphasis in original).

III

It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has
been

34

entirely unaffected by the advance of technology. For example, as the cases discussed above make clear, the
technology enabling human flight has exposed to public view (and hence, we have said, to official observation)
uncovered portions of the house and its curtilage that once were private. See Ciraolo, supra, at 215. The
question we confront today is what limits there are upon this power of technology to shrink the realm of
guaranteed privacy.

The Katz test-whether the individual has an expectation of privacy that society is prepared to recognize as
reasonable-has often been criticized as circular, and hence subjective and unpredictable. See 1 W. LaFave,
Search and Seizure § 2.1(d), pp. 393-394 (3d ed. 1996); Posner, The Uncertain Protection of Privacy by the
Supreme Court, 1979 S. Ct. Rev. 173, 188; Carter, supra, at 97 (SCALIA, J., concurring). But see Rakas,
supra, at 143-144, n.12. While it may be difficult to refine Katz when the search of areas such as telephone
booths, automobiles, or even the curtilage and uncovered portions of residences is at issue, in the case of the
search of the interior of homes-the prototypical and hence most commonly litigated area of protected
privacythere is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy
that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation
would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment. We think
that obtaining by senseenhancing technology any information regarding the interior of the home that could not
otherwise have been obtained without physical "intrusion into a constitutionally protected
area," Silverman, 365 U. S., at 512, constitutes a searchat least where (as here) the technology in question is
not in general public use. This assures preservation of that degree of privacy against government that existed
when the Fourth Amendment was adopted. On the basis of this criterion, the

35

information obtained by the thermal imager in this case was the product of a search.2

The Government maintains, however, that the thermal imaging must be upheld because it detected "only heat
radiating from the external surface of the house," Brief for United States 26. The dissent makes this its
leading point, see post, at 41, contending that there is a fundamental difference between what it calls "off-
the-wall" observations and "through-the-wall surveillance." But just as a thermal imager captures only heat
emanating from a house, so also a powerful directional microphone picks up only sound emanating from a house-
and a satellite capable of scanning from many miles away would pick up only visible light emanating from a
house. We rejected such a mechanical interpretation of the Fourth Amendment in Katz, where the
eavesdropping device picked up only sound waves that reached the exterior of the phone booth. Reversing that
approach would leave the homeowner at the mercy of advancing technologyincluding imaging technology that
could discern all human

2 The dissent's repeated assertion that the thermal imaging did not obtain information regarding the interior
of the home, post, at 43, 44 (opinion of STEVENS, J.), is simply inaccurate. A thermal imager reveals the
relative heat of various rooms in the home. The dissent may not find that information particularly private or
important, see post, at 43-44, 45, 4950, but there is no basis for saying it is not information regarding the
interior of the home. The dissent's comparison of the thermal imaging to various circumstances in which
outside observers might be able to perceive, without technology, the heat of the home-for example, by
observing snowmelt on the roof, post, at 43-is quite irrelevant. The fact that equivalent information could
sometimes be obtained by other means does not make lawful the use of means that violate the Fourth
Amendment. The police might, for example, learn how many people are in a particular house by setting up year-
round surveillance; but that does not make breaking and entering to find out the same information lawful. In
any event, on the night of January 16, 1992, no outside observer could have discerned the relative heat of
Kyllo's home without thermal imaging.

36

activity in the home. While the technology used in the present case was relatively crude, the rule we adopt
must take account of more sophisticated systems that are already in use or in development.3 The dissent's
reliance on the distinction between "off-the-wall" and "through-the-wall" observation is entirely incompatible
with the dissent's belief, which we discuss below, that thermal-imaging observations of the intimate details of
a home are impermissible. The most sophisticated thermal-imaging devices continue to measure heat "off-the-
wall" rather than "through-the-wall"; the dissent's disapproval of those more sophisticated thermalimaging
devices, see post, at 49, is an acknowledgment that there is no substance to this distinction. As for the
dissent's extraordinary assertion that anything learned through "an inference" cannot be a search,
see post, at 44, that would validate even the "through-the-wall" technologies that the dissent purports to
disapprove. Surely the dissent does not believe that the through-the-wall radar or ultrasound technology
produces an 8-by-10 Kodak glossy that needs no analysis (i. e., the making of inferences). And, of course, the
novel proposition that inference insulates a search is blatantly contrary to United States v. Karo, 468 U. S.
705 (1984), where the police "inferred" from the activation of a beeper that a certain can of ether was in the
home. The police ac-

3 The ability to "see" through walls and other opaque barriers is a clear, and scientifically feasible, goal of law
enforcement research and development. The National Law Enforcement and Corrections Technology Center, a
program within the United States Department of Justice, features on its Internet Website projects that
include a "RadarBased Through-the-Wall Surveillance System," "Handheld Ultrasound Through the Wall
Surveillance," and a "Radar Flashlight" that "will enable law enforcement officers to detect individuals through
interior building walls." www.nlectc.org/techproj/ (visited May 3, 2001). Some devices may emit low levels of
radiation that travel "through-the-wall," but others, such as more sophisticated thermal-imaging devices, are
entirely passive, or "off-the-wall" as the dissent puts it.

37

tivity was held to be a search, and the search was held unlawfu1.4
The Government also contends that the thermal imaging was constitutional because it did not "detect private
activities occurring in private areas," Brief for United States 22. It points out that in Dow Chemical we
observed that the enhanced aerial photography did not reveal any "intimate details." 476 U. S., at 238. Dow
Chemical, however, involved enhanced aerial photography of an industrial complex, which does not share the
Fourth Amendment sanctity of the home. The Fourth Amendment's protection of the home has never been
tied to measurement of the quality or quantity of information obtained. In Silverman, for example, we made
clear that any physical invasion of the structure of the home, "by even a fraction of an inch," was too much,
365 U. S., at 512, and there is certainly no exception to the warrant requirement for the officer who barely
cracks open the front door and sees nothing but the nonintimate rug on the vestibule floor. In the home, our
cases show, all details are intimate details, because the entire area is held safe from prying government eyes.
Thus, in Karo, supra, the only thing detected was a can of ether in the

4 The dissent asserts, post, at 44-45, n. 3, that we have misunderstood its point, which is not that
inference insulates a search, but that inference alone is not a search. If we misunderstood the point, it was
only in a good-faith effort to render the point germane to the case at hand. The issue in this case is not the
police's allegedly unlawful inferencing, but their allegedly unlawful thermal-imaging measurement of the
emanations from a house. We say such measurement is a search; the dissent says it is not, because an
inference is not a search. We took that to mean that, since the technologically enhanced emanations had to be
the basis of inferences before anything inside the house could be known, the use of the emanations could not
be a search. But the dissent certainly knows better than we what it intends. And if it means only that an
inference is not a search, we certainly agree. That has no bearing, however, upon whether hi-tech measurement
of emanations from a house is a search.

38

home; and in Arizona v. Hicks, 480 U. S. 321 (1987), the only thing detected by a physical search that went
beyond what officers lawfully present could observe in "plain view" was the registration number of a
phonograph turntable. These were intimate details because they were details of the home, just as was the
detail of how warm-or even how relatively warm-Kyllo was heating his residence.5

Limiting the prohibition of thermal imaging to "intimate details" would not only be wrong in principle; it would
be impractical in application, failing to provide "a workable accommodation between the needs of law
enforcement and the interests protected by the Fourth Amendment," Oliver v. United States, 466 U. S. 170,
181 (1984). To begin with, there is no necessary connection between the sophistication of the surveillance
equipment and the "intimacy" of the details that it observes-which means that one cannot say (and the police
cannot be assured) that use of the relatively crude equipment at issue here will always be lawful. The Agema
Thermovision 210 might disclose, for example, at what hour each night the lady of the house takes her daily
sauna and bath-a detail that many would consider "intimate"; and a much more sophisticated system might
detect nothing more intimate than the fact that someone left a closet light on. We could not, in other words,
develop a rule approving only that through-the-wall surveillance which identifies objects no smaller than 36 by
36 inches, but would have to develop a jurisprudence specifying which

5The Government cites our statement in California v. Ciraolo, 476 U. S. 207 (1986), noting apparent agreement
with the State of California that aerial surveillance of a house's curtilage could become "'invasive'" if
"'modern technology'" revealed "'those intimate associations, objects or activities otherwise imperceptible to
police or fellow citizens.'" Id., at 215, n. 3 (quoting Brief for State of California 14-15). We think the Court's
focus in this secondhand dictum was not upon intimacy but upon otherwise-imperceptibility, which is precisely
the principle we vindicate today.
39

home activities are "intimate" and which are not. And even when (if ever) that jurisprudence were fully
developed, no police officer would be able to know in advance whether his through-the-wall surveillance picks
up "intimate" detailsand thus would be unable to know in advance whether it is constitutional.

The dissent's proposed standard-whether the technology offers the "functional equivalent of actual presence
in the area being searched," post, at 47-would seem quite similar to our own at first blush. The dissent
concludes that Katz was such a case, but then inexplicably asserts that if the same listening device only
revealed the volume of the conversation, the surveillance would be permissible, post, at 49-50. Yet if, without
technology, the police could not discern volume without being actually present in the phone booth, JUSTICE
STEVENS should conclude a search has occurred. Cf. Karo, 468 U. S., at 735 (STEVENS, J., concurring in part
and dissenting in part) ("I find little comfort in the Court's notion that no invasion of privacy occurs until a
listener obtains some significant information by use of the device .... A bathtub is a less private area when the
plumber is present even if his back is turned"). The same should hold for the interior heat of the home if only
a person present in the home could discern the heat. Thus the driving force of the dissent, despite its
recitation of the above standard, appears to be a distinction among different types of information-whether
the "homeowner would even care if anybody noticed," post, at 50. The dissent offers no practical guidance for
the application of this standard, and for reasons already discussed, we believe there can be none. The people in
their houses, as well as the police, deserve more precision.6

6 The dissent argues that we have injected potential uncertainty into the constitutional analysis by noting that
whether or not the technology is in general public use may be a factor. See post, at 47. That quarrel,

40

We have said that the Fourth Amendment draws "a firm line at the entrance to the house," Payton, 445 U. S.,
at 590. That line, we think, must be not only firm but also brightwhich requires clear specification of those
methods of surveillance that require a warrant. While it is certainly possible to conclude from the videotape of
the thermal imaging that occurred in this case that no "significant" compromise of the homeowner's privacy
has occurred, we must take the long view, from the original meaning of the Fourth Amendment forward.

"The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and
seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and
rights of individual citizens." Carroll v. United States, 267 U. S. 132, 149 (1925).

Where, as here, the Government uses a device that is not in general public use, to explore details of the home
that would previously have been unknowable without physical intrusion, the surveillance is a "search" and is
presumptively unreasonable without a warrant.

Since we hold the Thermovision imaging to have been an unlawful search, it will remain for the District Court
to determine whether, without the evidence it provided, the search warrant issued in this case was supported
by probable cause-and if not, whether there is any other basis for supporting admission of the evidence that
the search pursuant to the warrant produced.
however, is not with us but with this Court's precedent. See Ciraolo, supra, at 215 ("In an age where private
and commercial flight in the public airways is routine, it is unreasonable for respondent to expect that his
marijuana plants were constitutionally protected from being observed with the naked eye from an altitude of
1,000 feet"). Given that we can quite confidently say that thermal imaging is not "routine," we decline in this
case to reexamine that factor.

41

***

The judgment of the Court of Appeals is reversed; the case is remanded for further proceedings consistent
with this opinion.

It is so ordered.

JUSTICE STEVENS, with whom THE CHIEF JUSTICE, JusTICE O'CONNOR, and JUSTICE KENNEDY join,
dissenting.

There is, in my judgment, a distinction of constitutional magnitude between "through-the-wall surveillance"


that gives the observer or listener direct access to information in a private area, on the one hand, and the
thought processes used to draw inferences from information in the public domain, on the other hand. The
Court has crafted a rule that purports to deal with direct observations of the inside of the home, but the case
before us merely involves indirect deductions from "off-the-wall" surveillance, that is, observations of the
exterior of the home. Those observations were made with a fairly primitive thermal imager that gathered data
exposed on the outside of petitioner's home but did not invade any constitutionally protected interest in
privacy.l Moreover, I believe that the supposedly "bright-line" rule the Court has created in response to its
concerns about future technological developments is unnecessary, unwise, and inconsistent with the Fourth
Amendment.

There is no need for the Court to craft a new rule to decide this case, as it is controlled by established
principles from

1 Mter an evidentiary hearing, the District Court found:

"[T]he use of the thermal imaging device here was not an intrusion into Kyllo's home. No intimate details of the
home were observed, and there was no intrusion upon the privacy of the individuals within the home. The
device used cannot penetrate walls or windows to reveal conversations or human activities. The device
recorded only the heat being emitted from the home." Supp. App. to Pet. for Cert. 40.

42

our Fourth Amendment jurisprudence. One of those core principles, of course, is that "searches and
seizures inside a home without a warrant are presumptively unreasonable." Payton v. New York, 445 U. S. 573,
586 (1980) (emphasis added). But it is equally well settled that searches and seizures of property in plain view
are presumptively reasonable. See id., at 586-587.2 Whether that property is residential or commercial, the
basic principle is the same: "'What a person knowingly exposes to the public, even in his own home or office, is
not a subject of Fourth Amendment protection.'" California v. Ciraolo, 476 U. S. 207, 213 (1986)
(quoting Katz v. United States, 389 U. S. 347, 351 (1967)); see Florida v. Riley, 488 U. S. 445, 449-450 (1989);
California v. Greenwood, 486 U. S. 35, 40-41 (1988); Dow Chemical Co. v. United States, 476 U. S. 227, 235-
236 (1986); Air Pollution Variance Bd. of Colo. v. Western Alfalfa Corp., 416 U. S. 861, 865 (1974). That is the
principle implicated here.

While the Court "take[s] the long view" and decides this case based largely on the potential of yet-to-be-
developed technology that might allow "through-the-wall surveillance," ante, at 38-40; see ante, at 36, n. 3,
this case involves nothing more than off-the-wall surveillance by law enforcement officers to gather
information exposed to the general public from the outside of petitioner's home. All that the infrared camera
did in this case was passively measure heat emitted

2 Thus, for example, we have found consistent with the Fourth Amendment, even absent a warrant, the search
and seizure of garbage left for collection outside the curtilage of a home, California v. Greenwood, 486 U. S.
35 (1988); the aerial surveillance of a fenced-in backyard from an altitude of 1,000
feet, California v. Ciraolo, 476 U. S. 207 (1986); the aerial observation of a partially exposed interior of a
residential greenhouse from 400 feet above, Florida v. Riley, 488 U. S. 445 (1989); the aerial photography of
an industrial complex from several thousand feet above, Dow Chemical Co. v. United States, 476 U. S.
227 (1986); and the observation of smoke emanating from chimney stacks, Air Pollution Variance Bd. of
Colo. v. Western Alfalfa Corp., 416 U. S. 861 (1974).

43

from the exterior surfaces of petitioner's home; all that those measurements showed were relative
differences in emission levels, vaguely indicating that some areas of the roof and outside walls were warmer
than others. As still images from the infrared scans show, see Appendix, infra, no details regarding the
interior of petitioner's home were revealed. Unlike an x-ray scan, or other possible "throughthe-wall"
techniques, the detection of infrared radiation emanating from the home did not accomplish "an unauthorized
physical penetration into the premises," Silverman v. United States, 365 U. S. 505, 509 (1961), nor did it
"obtain information that it could not have obtained by observation from outside the curtilage of the
house," United States v. Karo, 468 U. S. 705, 715 (1984).

Indeed, the ordinary use of the senses might enable a neighbor or passerby to notice the heat emanating from
a building, particularly if it is vented, as was the case here. Additionally, any member of the public might notice
that one part of a house is warmer than another part or a nearby building if, for example, rainwater evaporates
or snow melts at different rates across its surfaces. Such use of the senses would not convert into an
unreasonable search if, instead, an adjoining neighbor allowed an officer onto her property to verify her
perceptions with a sensitive thermometer. Nor, in my view, does such observation become an unreasonable
search if made from a distance with the aid of a device that merely discloses that the exterior of one house,
or one area of the house, is much warmer than another. Nothing more occurred in this case.

Thus, the notion that heat emissions from the outside of a dwelling are a private matter implicating the
protections of the Fourth Amendment (the text of which guarantees the right of people "to be secure in their
... houses" against unreasonable searches and seizures (emphasis added)) is not only unprecedented but also
quite difficult to take seriously. Heat waves, like aromas that are generated in a kitchen, or
44

in a laboratory or opium den, enter the public domain if and when they leave a building. A subjective
expectation that they would remain private is not only implausible but also surely not "one that society is
prepared to recognize as 'reasonable.'" Katz, 389 U. S., at 361 (Harlan, J., concurring).

To be sure, the homeowner has a reasonable expectation of privacy concerning what takes place within the
home, and the Fourth Amendment's protection against physical invasions of the home should apply to their
functional equivalent. But the equipment in this case did not penetrate the walls of petitioner's home, and while
it did pick up "details of the home" that were exposed to the public, ante, at 38, it did not obtain "any
information regarding the interior of the home," ante, at 34 (emphasis added). In the Court's own words,
based on what the thermal imager "showed" regarding the outside of petitioner's home, the officers
"concluded" that petitioner was engaging in illegal activity inside the home. Ante, at 30. It would be quite
absurd to characterize their thought processes as "searches," regardless of whether they inferred (rightly)
that petitioner was growing marijuana in his house, or (wrongly) that "the lady of the house [was taking] her
daily sauna and bath." Ante, at 38. In either case, the only conclusions the officers reached concerning the
interior of the home were at least as indirect as those that might have been inferred from the contents of
discarded garbage, see California v. Greenwood, 486 U. S. 35 (1988), or pen register data,
see Smith v. Maryland, 442 U. S. 735 (1979), or, as in this case, subpoenaed utility records, see 190 F.3d 1041,
1043 (CA9 1999). For the first time in its history, the Court assumes that an inference can amount to a Fourth
Amendment violation. See ante, at 36-37.3

3 Although the Court credits us with the "novel proposition that inference insulates a search," ante, at 36, our
point simply is that an inference cannot be a search, contrary to the Court's reasoning. See supra this page.
Thus, the Court's use of United States v. Karo, 468 U. S. 705

45

Notwithstanding the implications of today's decision, there is a strong public interest in avoiding constitutional
litigation over the monitoring of emissions from homes, and over the inferences drawn from such monitoring.
Just as "the police cannot reasonably be expected to avert their eyes from evidence of criminal activity that
could have been observed by any member of the public," Greenwood, 486 U. S., at 41, so too public officials
should not have to avert their senses or their equipment from detecting emissions in the public domain such as
excessive heat, traces of smoke, suspicious odors, odorless gases, airborne particulates, or radioactive
emissions, any of which could identify hazards to the community. In my judgment, monitoring such emissions
with "sense-enhancing technology," ante, at 34, and drawing useful conclusions from such monitoring, is an
entirely reasonable public service.

On the other hand, the countervailing privacy interest is at best trivial. After all, homes generally are
insulated to keep heat in, rather than to prevent the detection of heat going out, and it does not seem to me
that society will suffer from a rule requiring the rare homeowner who both intends to engage in uncommon
activities that produce extraordinary amounts of heat, and wishes to conceal that production from outsiders,
to make sure that the surrounding area is well insulated. Cf. United States v. Jacobsen, 466 U. S. 109, 122
(1984) ("The concept of an interest in privacy that society is prepared to recognize as reasonable is, by its
very nature, critically different from the mere expectation, however well
(1984), to refute a point we do not make underscores the fact that the Court has no real answer (either in
logic or in law) to the point we do make. Of course, Karo itself does not provide any support for the Court's
view that inferences can amount to unconstitutional searches. The illegality in that case was "the monitoring of
a beeper in a private residence" to obtain information that "could not have [been] obtained by observation
from outside," id., at 714-715, rather than any thought processes that flowed from such monitoring.

46

justified, that certain facts will not come to the attention of the authorities"). The interest in concealing the
heat escaping from one's house pales in significance to "the chief evil against which the wording of the Fourth
Amendment is directed," the "physical entry of the home," United States v. United States Dist. Court for
Eastern Dist. of Mich., 407 U. S. 297, 313 (1972), and it is hard to believe that it is an interest the Framers
sought to protect in our Constitution.

Since what was involved in this case was nothing more than drawing inferences from off-the-wall surveillance,
rather than any "through-the-wall" surveillance, the officers' conduct did not amount to a search and was
perfectly reasonable.4

II

Instead of trying to answer the question whether the use of the thermal imager in this case was even arguably
unreasonable, the Court has fashioned a rule that is intended to provide essential guidance for the day when
"more sophisticated systems" gain the "ability to 'see' through walls and other opaque barriers." Ante, at 36,
and n. 3. The newly minted rule encompasses "obtaining [1] by senseenhancing technology [2] any information
regarding the interior of the home [3] that could not otherwise have been obtained without physical intrusion
into a constitutionally protected area ... [4] at least where (as here) the technology in question is not in general
public use." Ante, at 34 (internal quotation marks omitted). In my judgment, the

4 This view comports with that of all the Courts of Appeals that have resolved the issue. See 190 F.3d
1041(CA9 1999); United States v. Robinson, 62 F.3d 1325 (CAll 1995) (upholding warrantless use of thermal
imager); United States v. Myers, 46 F.3d 668 (CA7 1995) (same); United States v. Ishmael, 48 F.3d
850 (CA5 1995) (same); United States v. Pinson, 24 F.3d 1056 (CA8 1994) (same). But see United
States v. Cusumano, 67 F.3d 1497 (CAW 1995) (warrantless use of thermal imager violated Fourth
Amendment), vacated and decided on other grounds, 83 F.3d 1247 (CAW 1996) (en bane).

47

Court's new rule is at once too broad and too narrow, and is not justified by the Court's explanation for its
adoption. As I have suggested, I would not erect a constitutional impediment to the use of sense-enhancing
technology unless it provides its user with the functional equivalent of actual presence in the area being
searched.

Despite the Court's attempt to draw a line that is "not only firm but also bright," ante, at 40, the contours of
its new rule are uncertain because its protection apparently dissipates as soon as the relevant technology is "in
general public use," ante, at 34. Yet how much use is general public use is not even hinted at by the Court's
opinion, which makes the somewhat doubtful assumption that the thermal imager used in this case does not
satisfy that criterion.5 In any event, putting aside its lack of clarity, this criterion is somewhat perverse
because it seems likely that the threat to privacy will grow, rather than recede, as the use of intrusive
equipment becomes more readily available.

It is clear, however, that the category of "sense-enhancing technology" covered by the new rule, ibid., is far
too broad. It would, for example, embrace potential mechanical substitutes for dogs trained to react when
they sniff narcotics. But in United States v. Place, 462 U. S. 696, 707 (1983), we held that a dog sniff that
"discloses only the presence or absence of narcotics" does "not constitute a 'search' within the meaning of the
Fourth Amendment," and it must follow that sense-enhancing equipment that identifies nothing but illegal

5 The record describes a device that numbers close to a thousand manufactured units; that has a predecessor
numbering in the neighborhood of 4,000 to 5,000 units; that competes with a similar product numbering from
5,000 to 6,000 units; and that is "readily available to the public" for commercial, personal, or law enforcement
purposes, and is just an 800number away from being rented from "half a dozen national companies" by anyone
who wants one. App. 18. Since, by virtue of the Court's new rule, the issue is one of first impression, perhaps it
should order an evidentiary hearing to determine whether these facts suffice to establish "general public use."

48

activity is not a search either. Nevertheless, the use of such a device would be unconstitutional under the
Court's rule, as would the use of other new devices that might detect the odor of deadly bacteria or chemicals
for making a new type of high explosive, even if the devices (like the dog sniffs) are "so limited both in the
manner in which" they obtain information and "in the content of the information" they reveal. Ibid. If nothing
more than that sort of information could be obtained by using the devices in a public place to monitor
emissions from a house, then their use would be no more objectionable than the use of the thermal imager in
this case.

The application of the Court's new rule to "any information regarding the interior of the home," ante, at 34, is
also unnecessarily broad. If it takes sensitive equipment to detect an odor that identifies criminal conduct and
nothing else, the fact that the odor emanates from the interior of a home should not provide it with
constitutional protection. See supra, at 47 and this page. The criterion, moreover, is too sweeping in that
information "regarding" the interior of a home apparently is not just information obtained through its walls,
but also information concerning the outside of the building that could lead to (however many) inferences
"regarding" what might be inside. Under that expansive view, I suppose, an officer using an infrared camera to
observe a man silently entering the side door of a house at night carrying a pizza might conclude that its
interior is now occupied by someone who likes pizza, and by doing so the officer would be guilty of conducting
an unconstitutional "search" of the home.

Because the new rule applies to information regarding the "interior" of the home, it is too narrow as well as too
broad. Clearly, a rule that is designed to protect individuals from the overly intrusive use of sense-enhancing
equipment should not be limited to a home. If such equipment

49
did provide its user with the functional equivalent of access to a private place-such as, for example, the
telephone booth involved in Katz, or an office building-then the rule should apply to such an area as well as to a
home. See Katz, 389 U. S., at 351 ("[T]he Fourth Amendment protects people, not places").

The final requirement of the Court's new rule, that the information "could not otherwise have been obtained
without physical intrusion into a constitutionally protected area," ante, at 34 (internal quotation marks
omitted), also extends too far as the Court applies it. As noted, the Court effectively treats the mental
process of analyzing data obtained from external sources as the equivalent of a physical intrusion into the
home. See supra, at 44. As I have explained, however, the process of drawing inferences from data in the
public domain should not be characterized as a search.

The two reasons advanced by the Court as justifications for the adoption of its new rule are both
unpersuasive. First, the Court suggests that its rule is compelled by our holding in Katz, because in that case,
as in this, the surveillance consisted of nothing more than the monitoring of waves emanating from a private
area into the public domain. See ante, at 35. Yet there are critical differences between the cases. In Katz, the
electronic listening device attached to the outside of the phone booth allowed the officers to pick up the
content of the conversation inside the booth, making them the functional equivalent of intruders because they
gathered information that was otherwise available only to someone inside the private area; it would be as if, in
this case, the thermal imager presented a view of the heat-generating activity inside petitioner's home. By
contrast, the thermal imager here disclosed only the relative amounts of heat radiating from the house; it
would be as if, in Katz, the listening device disclosed only the rela-

50

tive volume of sound leaving the booth, which presumably was discernible in the public domain.6 Surely, there is
a significant difference between the general and well-settled expectation that strangers will not have direct
access to the contents of private communications, on the one hand, and the rather theoretical expectation
that an occasional homeowner would even care if anybody noticed the relative amounts of heat emanating from
the walls of his house, on the other. It is pure hyperbole for the Court to suggest that refusing to extend the
holding of Katz to this case would leave the homeowner at the mercy of "technology that could discern all
human activity in the home." Ante, at 35-36.

Second, the Court argues that the permissibility of "through-the-wall surveillance" cannot depend on a
distinction between observing "intimate details" such as "the lady of the house [taking] her daily sauna and
bath," and noticing only "the nonintimate rug on the vestibule floor" or "objects no smaller than 36 by 36
inches." Ante, at 37, 3839. This entire argument assumes, of course, that the thermal imager in this case could
or did perform "through-thewall surveillance" that could identify any detail "that would previously have been
unknowable without physical intrusion." Ante, at 39-40. In fact, the device could not, see n. 1, supra, and did
not, see Appendix, infra, enable its user to identify either the lady of the house, the rug on the vestibule
floor, or anything else inside the house, whether smaller or larger than 36 by 36 inches. Indeed, the vague
thermal images of petitioner's home that are reproduced in the Appendix were submitted by him to the
District Court as part of an expert report raising the question whether the device could even take "accurate,
consistent infrared images" of the

6 The use of the latter device would be constitutional given Smith v.


Maryland, 442 U. S. 735, 741 (1979), which upheld the use of pen registers to record numbers dialed on a
phone because, unlike "the listening device employed in Katz ... pen registers do not acquire the contents of
communications."

51

outside of his house. Defendant's Exh. 107, p. 4. But even if the device could reliably show extraordinary
differences in the amounts of heat leaving his home, drawing the inference that there was something
suspicious occurring inside the residence-a conclusion that officers far less gifted than Sherlock Holmes would
readily draw-does not qualify as "through-the-wall surveillance," much less a Fourth Amendment violation.

III

Although the Court is properly and commendably concerned about the threats to privacy that may flow from
advances in the technology available to the law enforcement profession, it has unfortunately failed to heed the
tried and true counsel of judicial restraint. Instead of concentrating on the rather mundane issue that is
actually presented by the case before it, the Court has endeavored to craft an all-encompassing rule for the
future. It would be far wiser to give legislators an unimpeded opportunity to grapple with these emerging
issues rather than to shackle them with prematurely devised constitutional constraints.

I respectfully dissent.

[Appendix to opinion of STEVENS, J., follows this page.]

52

Appendix to opinion of STEVENS, J.

APPENDIX TO OPINION OF STEVENS, J. (Images and text reproduced from defendant's exhibit 107) Top
left: Infrared image of a video frame from the videotape submitted as evidence in this case. The thermogram
indicates the suspect house as it appeared with the Gain and contrast in its default setting. Only the outline of
the house is visible. The camera used was the Thermovision 210. Top Right: Infrared image of a subsequent
videoframe taken from the videotape. The gain and contrast settings have been increased in order to make the
walls and roof of the structure appear hotter than what it actually is.

Bottom Left: Infrared image of the opposite side of the suspects house. The thermogram is also taken from
the same videotape. The camera settings are in the default mode and the outline of the house is barely visible.
Only the hot electrical transformer and the street light are identifiable.

Bottom Right: The same image, but with the gain and contrast increased. This change in camera settings cause
any object to appear hotter than what it actually is. The arrow indicates the overloading of an area
immediately around a hot object in this case the electrical transformer and the streetlight. This overloading
of the image is an inherent design flaw in the camera itself.
EN BANC

BRICCIO Ricky A. POLLO, G.R. No. 181881


Petitioner,
Present:

CORONA, C.J.,
CARPIO,
VELASCO, JR.,
- versus - LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,*
ABAD,
VILLARAMA, JR.,
CHAIRPERSON KARINA CONSTANTINO-DAVID, PEREZ,
DIRECTOR IV RACQUEL DE GUZMAN MENDOZA,
BUENSALIDA, SERENO,
DIRECTOR IV LYDIA A. REYES, and
CASTILLO, DIRECTOR III PERLAS-BERNABE, JJ.
ENGELBERT ANTHONY D. UNITE AND THE Promulgated:
CIVIL SERVICE COMMISSION,
Respondents. October 18, 2011
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- -x

DECISION

VILLARAMA, JR., J.:

This case involves a search of office computer assigned to a government employee who was charged
administratively and eventually dismissed from the service. The employees personal files stored in the
computer were used by the government employer as evidence of misconduct.

Before us is a petition for review on certiorari under Rule 45 which seeks to reverse and set aside the
[1]
Decision dated October 11, 2007 and Resolution[2] dated February 29, 2008 of the Court of Appeals
(CA). The CA dismissed the petition for certiorari (CA-G.R. SP No. 98224) filed by petitioner Briccio Ricky A.
Pollo to nullify the proceedings conducted by the Civil Service Commission (CSC) which found him guilty
of dishonesty, grave misconduct, conduct prejudicial to the best interest of the service, and violation of
Republic Act (R.A.) No. 6713 and penalized him with dismissal.

The factual antecedents:

Petitioner is a former Supervising Personnel Specialist of the CSC Regional Office No. IV and also the
Officer-in-Charge of the Public Assistance and Liaison Division (PALD) under the Mamamayan Muna Hindi
Mamaya Na program of the CSC.
On January 3, 2007 at around 2:30 p.m., an unsigned letter-complaint addressed to respondent CSC
Chairperson Karina Constantino-David which was marked Confidential and sent through a courier service (LBC)
from a certain Alan San Pascual of Bagong Silang, Caloocan City, was received by the Integrated Records
Management Office (IRMO) at the CSC Central Office. Following office practice in which documents marked
Confidential are left unopened and instead sent to the addressee, the aforesaid letter was given directly to
Chairperson David.

The letter-complaint reads:

The Chairwoman
Civil Service Commission
Batasan Hills, Quezon City

Dear Madam Chairwoman,

Belated Merry Christmas and Advance Happy New Year!

As a concerned citizen of my beloved country, I would like to ask from you personally if
it is just alright for an employee of your agency to be a lawyer of an accused govt employee
having a pending case in the csc.I honestly think this is a violation of law and unfair to others
and your office.

I have known that a person have been lawyered by one of your attorny in the region 4
office. He is the chief of the Mamamayan muna hindi mamaya na division. He have been
helping many who have pending cases in the Csc. The justice in our govt system will not be
served if this will continue. Please investigate this anomaly because our perception of your
clean and good office is being tainted.

Concerned Govt employee[3]

Chairperson David immediately formed a team of four personnel with background in information technology
(IT), and issued a memo directing them to conduct an investigation and specifically to back up all the files in
the computers found in the Mamamayan Muna (PALD) and Legal divisions.[4] After some briefing, the team
proceeded at once to the CSC-ROIV office at Panay Avenue, Quezon City. Upon their arrival thereat
around 5:30 p.m., the team informed the officials of the CSC-ROIV, respondents Director IV Lydia Castillo
(Director Castillo) and Director III Engelbert Unite (Director Unite) of Chairperson Davids directive.

The backing-up of all files in the hard disk of computers at the PALD and Legal Services Division (LSD) was
witnessed by several employees, together with Directors Castillo and Unite who closely monitored said
activity. At around 6:00 p.m., Director Unite sent text messages to petitioner and the head of LSD, who were
both out of the office at the time, informing them of the ongoing copying of computer files in their divisions
upon orders of the CSC Chair. The text messages received by petitioner read:

Gud p.m. This is Atty. Unite FYI: Co people are going over the PCs of PALD and LSD per
instruction of the Chairman. If you can make it here now it would be better.
All PCs Of PALD and LSD are being backed up per memo of the chair.

CO IT people arrived just now for this purpose. We were not also informed about this.

We cant do anything about it its a directive from chair.

Memo of the chair was referring to an anonymous complaint; ill send a copy of the memo via
mms[5]

Petitioner replied also thru text message that he was leaving the matter to Director Unite and that he will just
get a lawyer. Another text message received by petitioner from PALD staff also reported the presence of the
team from CSC main office: Sir may mga taga C.O. daw sa kuarto natin.[6] At around 10:00 p.m. of the same day,
the investigating team finished their task. The next day, all the computers in the PALD were sealed and
secured for the purpose of preserving all the files stored therein. Several diskettes containing the back-up
files sourced from the hard disk of PALD and LSD computers were turned over to Chairperson David. The
contents of the diskettes were examined by the CSCs Office for Legal Affairs (OLA). It was found that most
of the files in the 17 diskettes containing files copied from the computer assigned to and being used by the
petitioner, numbering about 40 to 42 documents, were draft pleadings or letters [7] in connection with
administrative cases in the CSC and other tribunals. On the basis of this finding, Chairperson David issued the
Show-Cause Order[8] dated January 11, 2007, requiring the petitioner, who had gone on extended leave, to
submit his explanation or counter-affidavit within five days from notice.

Evaluating the subject documents obtained from petitioners personal files, Chairperson David made the
following observations:

Most of the foregoing files are drafts of legal pleadings or documents that are
related to or connected with administrative cases that may broadly be lumped as pending
either in the CSCRO No. IV, the CSC-NCR, the CSC-Central Office or other tribunals. It is
also of note that most of these draft pleadings are for and on behalves of parties, who are
facing charges as respondents in administrative cases. This gives rise to the inference that
the one who prepared them was knowingly, deliberately and willfully aiding and advancing
interests adverse and inimical to the interest of the CSC as the central personnel agency of
the government tasked to discipline misfeasance and malfeasance in the government
service. The number of pleadings so prepared further demonstrates that such person is not
merely engaged in an isolated practice but pursues it with seeming regularity. It would also be
the height of naivete or credulity, and certainly against common human experience, to believe
that the person concerned had engaged in this customary practice without any consideration,
and in fact, one of the retrieved files (item 13 above) appears to insinuate the collection of
fees. That these draft pleadings were obtained from the computer assigned to Pollo
invariably raises the presumption that he was the one responsible or had a hand in their
drafting or preparation since the computer of origin was within his direct control and
disposition.[9]

Petitioner filed his Comment, denying that he is the person referred to in the anonymous letter-complaint
which had no attachments to it, because he is not a lawyer and neither is he lawyering for people with cases in
the CSC. He accused CSC officials of conducting a fishing expedition when they unlawfully copied and printed
personal files in his computer, and subsequently asking him to submit his comment which violated his right
against self-incrimination. He asserted that he had protested the unlawful taking of his computer done while
he was on leave, citing the letter dated January 8, 2007 in which he informed Director Castillo that the files
in his computer were his personal files and those of his sister, relatives, friends and some associates and that
he is not authorizing their sealing, copying, duplicating and printing as these would violate his constitutional
right to privacy and protection against self-incrimination and warrantless search and seizure. He pointed out
that though government property, the temporary use and ownership of the computer issued under a
Memorandum of Receipt (MR) is ceded to the employee who may exercise all attributes of ownership, including
its use for personal purposes. As to the anonymous letter, petitioner argued that it is not actionable as it
failed to comply with the requirements of a formal complaint under the Uniform Rules on Administrative Cases
in the Civil Service (URACC). In view of the illegal search, the files/documents copied from his computer
without his consent is thus inadmissible as evidence, being fruits of a poisonous tree.[10]

On February 26, 2007, the CSC issued Resolution No. 070382 [11] finding prima facie case against the
petitioner and charging him with Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of
the Service and Violation of R.A. No. 6713 (Code of Conduct and Ethical Standards for Public Officials and
Employees). Petitioner was directed to submit his answer under oath within five days from notice and indicate
whether he elects a formal investigation. Since the charges fall under Section 19 of the URACC, petitioner was
likewise placed under 90 days preventive suspension effective immediately upon receipt of the resolution.
Petitioner received a copy of Resolution No. 070382 on March 1, 2007.

Petitioner filed an Omnibus Motion (For Reconsideration, to Dismiss and/or to Defer) assailing the formal
charge as without basis having proceeded from an illegal search which is beyond the authority of the CSC
Chairman, such power pertaining solely to the court. Petitioner reiterated that he never aided any people with
pending cases at the CSC and alleged that those files found in his computer were prepared not by him but by
certain persons whom he permitted, at one time or another, to make use of his computer out of close
association or friendship. Attached to the motion were the affidavit of Atty. Ponciano R. Solosa who entrusted
his own files to be kept at petitioners CPU and Atty. Eric N. Estrellado, the latter being Atty. Solosas client
who attested that petitioner had nothing to do with the pleadings or bill for legal fees because in truth he
owed legal fees to Atty. Solosa and not to petitioner. Petitioner contended that the case should be deferred in
view of the prejudicial question raised in the criminal complaint he filed before the Ombudsman against
Director Buensalida, whom petitioner believes had instigated this administrative case. He also prayed for the
lifting of the preventive suspension imposed on him. In its Resolution No. 070519[12] dated March 19, 2007, the
CSC denied the omnibus motion. The CSC resolved to treat the said motion as petitioners answer.

On March 14, 2007, petitioner filed an Urgent Petition[13] under Rule 65 of the Rules of Court,
docketed as CA-G.R. SP No. 98224, assailing both the January 11, 2007 Show-Cause Order and Resolution No.
070382 dated February 26, 2007 as having been issued with grave abuse of discretion amounting to excess or
total absence of jurisdiction. Prior to this, however, petitioner lodged an administrative/criminal complaint
against respondents Directors Racquel D.G. Buensalida (Chief of Staff, Office of the CSC Chairman) and Lydia
A. Castillo (CSC-RO IV) before the Office of the Ombudsman, and a separate complaint for disbarment
against Director Buensalida.[14]

On April 17, 2007, petitioner received a notice of hearing from the CSC setting the formal investigation of the
case on April 30, 2007. On April 25, 2007, he filed in the CA an Urgent Motion for the issuance of TRO and
preliminary injunction.[15] Since he failed to attend the pre-hearing conference scheduled on April 30, 2007,
the CSC reset the same to May 17, 2007 with warning that the failure of petitioner and/or his counsel to
appear in the said pre-hearing conference shall entitle the prosecution to proceed with the formal
investigation ex-parte.[16] Petitioner moved to defer or to reset the pre-hearing conference, claiming that the
investigation proceedings should be held in abeyance pending the resolution of his petition by the CA. The CSC
denied his request and again scheduled the pre-hearing conference on May 18, 2007 with similar warning on the
consequences of petitioner and/or his counsels non-appearance.[17] This prompted petitioner to file another
motion in the CA, to cite the respondents, including the hearing officer, in indirect contempt.[18]

On June 12, 2007, the CSC issued Resolution No. 071134 [19] denying petitioners motion to set aside the denial
of his motion to defer the proceedings and to inhibit the designated hearing officer, Atty. Bernard G.
Jimenez. The hearing officer was directed to proceed with the investigation proper with dispatch.

In view of the absence of petitioner and his counsel, and upon the motion of the prosecution, petitioner was
deemed to have waived his right to the formal investigation which then proceeded ex parte.

On July 24, 2007, the CSC issued Resolution No. 071420,[20] the dispositive part of which reads:

WHEREFORE, foregoing premises considered, the Commission hereby finds Briccio A.


Pollo, a.k.a. Ricky A. Pollo GUILTY of Dishonesty, Grave Misconduct, Conduct Prejudicial to
the Best Interest of the Service and Violation of Republic Act 6713. He is meted the penalty
of DISMISSAL FROM THE SERVICE with all its accessory penalties, namely, disqualification
to hold public office, forfeiture of retirement benefits, cancellation of civil service
eligibilities and bar from taking future civil service examinations.[21]

On the paramount issue of the legality of the search conducted on petitioners computer, the CSC noted the
dearth of jurisprudence relevant to the factual milieu of this case where the government as employer invades
the private files of an employee stored in the computer assigned to him for his official use, in the course of
initial investigation of possible misconduct committed by said employee and without the latters consent or
participation. The CSC thus turned to relevant rulings of the United States Supreme Court, and cited the
leading case of OConnor v. Ortega[22] as authority for the view that government agencies, in their capacity as
employers, rather than law enforcers, could validly conduct search and seizure in the governmental workplace
without meeting the probable cause or warrant requirement for search and seizure. Another ruling cited by
the CSC is the more recent case of United States v. Mark L. Simons[23] which declared that the federal
agencys computer use policy foreclosed any inference of reasonable expectation of privacy on the part of its
employees. Though the Court therein recognized that such policy did not, at the same time, erode the
respondents legitimate expectation of privacy in the office in which the computer was installed, still, the
warrantless search of the employees office was upheld as valid because a government employer is entitled to
conduct a warrantless search pursuant to an investigation of work-related misconduct provided the search is
reasonable in its inception and scope.

With the foregoing American jurisprudence as benchmark, the CSC held that petitioner has no reasonable
expectation of privacy with regard to the computer he was using in the regional office in view of the CSC
computer use policy which unequivocally declared that a CSC employee cannot assert any privacy right to a
computer assigned to him. Even assuming that there was no such administrative policy, the CSC was of the view
that the search of petitioners computer successfully passed the test of reasonableness for warrantless
searches in the workplace as enunciated in the aforecited authorities. The CSC stressed that it pursued the
search in its capacity as government employer and that it was undertaken in connection with an investigation
involving work-related misconduct, which exempts it from the warrant requirement under the
Constitution. With the matter of admissibility of the evidence having been resolved, the CSC then ruled that
the totality of evidence adequately supports the charges of grave misconduct, dishonesty, conduct prejudicial
to the best interest of the service and violation of R.A. No. 6713 against the petitioner. These grave
infractions justified petitioners dismissal from the service with all its accessory penalties.

In his Memorandum[24] filed in the CA, petitioner moved to incorporate the above resolution dismissing
him from the service in his main petition, in lieu of the filing of an appeal via a Rule 43petition. In a subsequent
motion, he likewise prayed for the inclusion of Resolution No. 071800 [25] which denied his motion for
reconsideration.

By Decision dated October 11, 2007, the CA dismissed the petition for certiorari after finding no
grave abuse of discretion committed by respondents CSC officials. The CA held that: (1) petitioner was not
charged on the basis of the anonymous letter but from the initiative of the CSC after a fact-finding
investigation was conducted and the results thereof yielded a prima facie case against him; (2) it could not be
said that in ordering the back-up of files in petitioners computer and later confiscating the same, Chairperson
David had encroached on the authority of a judge in view of the CSC computer policy declaring the computers
as government property and that employee-users thereof have no reasonable expectation of privacy in
anything they create, store, send, or receive on the computer system; and (3) there is nothing contemptuous in
CSCs act of proceeding with the formal investigation as there was no restraining order or injunction issued by
the CA.

His motion for reconsideration having been denied by the CA, petitioner brought this appeal arguing
that

THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED AND COMMITTED SERIOUS


IRREGULARITY AND BLATANT ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF
DISCRETION WHEN IT RULED THAT ANONYMOUS COMPLAINT IS ACTIONABLE
UNDER E.O. 292 WHEN IN TRUTH AND IN FACT THE CONTRARY IS EXPLICITLY
PROVIDED UNDER 2nd PARAGRAPH OF SECTION 8 OF CSC RESOLUTION NO. 99-1936,
WHICH IS AN [AMENDMENT] TO THE ORIGINAL RULES PER CSC RESOLUTION NO. 94-
0521;

II

THE HONORABLE COURT GRIEVOUSLY ERRED AND COMMITTED PALPABLE ERRORS IN


LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT
PETITIONER CANNOT INVOKE HIS RIGHT TO PRIVACY, TO UNREASONABLE SEARCH
AND SEIZURE, AGAINST SELF-INCRIMINATION, BY VIRTUE OF OFFICE
MEMORANDUM NO. 10 S. 2002, A MERE INTERNAL MEMORANDUM SIGNED SOLELY
AND EXCLUSIVELY BY RESPONDENT DAVID AND NOT BY THE COLLEGIAL
COMMISSION CONSIDERING THAT POLICY MATTERS INVOLVING SUB[S]TANTIAL
RIGHTS CANNOT BE COVERED BY AN OFFICE MEMORANDUM WHICH IS LIMITED TO
PROCEDURAL AND ROUTINARY INSTRUCTION;

III

THE HONORABLE COURT GRAVELY ERRED AND COMMITTED GRAVE ABUSE OF


DISCRETION WHEN IT RULED THAT MEMO SEARCH DATED JANUARY 3, 2007 AND
THE TAKING OF DOCUMENTS IN THE EVENING THEREOF FROM 7:00 TO 10:00 P.M. IS
NOT GRAVE ABUSE OF DISCRETION LIMITING THE DEFINITION [OF] GRAVE ABUSE
OF DISCRETION TO ONE INVOLVING AND TAINTED WITH PERSONAL HOSTILITY. IT
LIKEWISE ERRED IN HOLDING THAT DATA STORED IN THE GOVERNMENT
COMPUTERS ARE GOVERNMENT PROPERTIES INCLUDING THE PERSONAL FILES WHEN
THE CONTRARY IS PROVIDED UNDER SECTION 14 OF OM. 10 s. 2002. AND GRIEVOUSLY
ERRED STILL WHEN IT RULED THAT RESPONDENT DAVID BY VIRTUE OF O.M. 10 DID
NOT ENCROACH ON THE DUTIES AND FUNCTIONS OF A JUDGE PURSUANT TO
ARTICLE III, SECTION 2 OF THE 1987 PHILIPPINE CONSTITUTION;

IV

THE HONORABLE COURT ERRED WHEN IT FAILED TO CONSIDER ALL OTHER NEW
ARGUMENTS, ADDITIONAL EVIDENCE HEREUNTO SUBMITTED AS WELL AS ITS
FAILURE TO EVALUATE AND TAKE ACTION ON THE 2 MOTIONS TO ADMIT AND
INCORPORATE CSC RESOLUTION NOS. 07-1420 DATED JULY 24, 2007 AND CSC
RESOLUTION 07-1800 DATED SEPTEMBER 10, 2007. IT DID NOT RULE LIKEWISE ON
THE FOUR URGENT MOTION TO RESOLVE ANCILLARY PRAYER FOR TRO.[26]

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.

The right to privacy has been accorded recognition in this jurisdiction as a facet of the right
protected by the guarantee against unreasonable search and seizure under Section 2, Article III of the 1987
Constitution,[27] which provides:

SEC. 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.

The constitutional guarantee is not a prohibition of all searches and seizures but only of unreasonable searches
and seizures.[28] But to fully understand this concept and application for the purpose of resolving the issue at
hand, it is essential that we examine the doctrine in the light of pronouncements in another jurisdiction. As
the Court declared in People v. Marti[29]:

Our present constitutional provision on the guarantee against unreasonable search


and seizure had its origin in the 1935 Charter which, worded as follows:

The right of the people to be secure in their persons, houses,


papers and effects against unreasonable searches and seizures shall not be
violated, and no warrants shall issue but upon probable cause, to be
determined 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. 1[3],
Article III)

was in turn derived almost verbatim from the Fourth Amendment to the United States
Constitution. As such, the Court may turn to the pronouncements of the United States
Federal Supreme Court and State Appellate Courts which are considered doctrinal in this
jurisdiction.[30]

In the 1967 case of Katz v. United States,[31] the US Supreme Court held that the act of FBI agents in
electronically recording a conversation made by petitioner in an enclosed public telephone booth violated his
right to privacy and constituted a search and seizure. Because the petitioner had a reasonable expectation of
privacy in using the enclosed booth to make a personal telephone call, the protection of the Fourth Amendment
extends to such area. In the concurring opinion of Mr. Justice Harlan, it was further noted that the existence
of privacy right under prior decisions involved a two-fold requirement: first, that a person has exhibited an
actual (subjective) expectation of privacy; and second, that the expectation be one that society is prepared to
recognize as reasonable (objective).[32]

In Mancusi v. DeForte[33] which addressed the reasonable expectations of private employees in the workplace,
the US Supreme Court held that a union employee had Fourth Amendment rights with regard to an office at
union headquarters that he shared with other union officials, even as the latter or their guests could enter the
office. The Court thus recognized that employees may have a reasonable expectation of privacy against
intrusions by police.

That the Fourth Amendment equally applies to a government workplace was addressed in the 1987 case
of OConnor v. Ortega[34] where a physician, Dr. Magno Ortega, who was employed by a state hospital, claimed a
violation of his Fourth Amendment rights when hospital officials investigating charges of mismanagement of
the psychiatric residency program, sexual harassment of female hospital employees and other irregularities
involving his private patients under the state medical aid program, searched his office and seized personal
items from his desk and filing cabinets. In that case, the Court categorically declared that [i]ndividuals do not
lose Fourth Amendment rights merely because they work for the government instead of a private
employer.[35] A plurality of four Justices concurred that the correct analysis has two steps: first, because
some government offices may be so open to fellow employees or the public that no expectation of privacy is
reasonable, a court must consider [t]he operational realities of the workplace in order to determine whether
an employees Fourth Amendment rights are implicated; and next, where an employee has a legitimate privacy
expectation, an employers intrusion on that expectation for noninvestigatory, work-related purposes, as well as
for investigations of work-related misconduct, should be judged by the standard of reasonableness under all
the circumstances.[36]

On the matter of government employees reasonable expectations of privacy in their


workplace, OConnor teaches:

x x x Public employees expectations of privacy in their offices, desks, and file


cabinets, like similar expectations of employees in the private sector, may be reduced by
virtue of actual office practices and procedures, or by legitimate regulation. x x x The
employees expectation of privacy must be assessed in the context of the employment
relation. An office is seldom a private enclave free from entry by supervisors, other
employees, and business and personal invitees. Instead, in many cases offices are continually
entered by fellow employees and other visitors during the workday for conferences,
consultations, and other work-related visits. Simply put, it is the nature of government
offices that others such as fellow employees, supervisors, consensual visitors, and the general
public may have frequent access to an individuals office. We agree with JUSTICE SCALIA
that [c]onstitutional protection against unreasonable searches by the government does not
disappear merely because the government has the right to make reasonable intrusions in its
capacity as employer, x x x but some government offices may be so open to fellow
employees or the public that no expectation of privacy is reasonable. x x x Given the
great variety of work environments in the public sector, the question of whether an
employee has a reasonable expectation of privacy must be addressed on a case-by-case
basis.[37] (Citations omitted; emphasis supplied.)

On the basis of the established rule in previous cases, the US Supreme Court declared that Dr. Ortegas
Fourth Amendment rights are implicated only if the conduct of the hospital officials infringed an expectation
of privacy that society is prepared to consider as reasonable. Given the undisputed evidence that respondent
Dr. Ortega did not share his desk or file cabinets with any other employees, kept personal correspondence and
other private items in his own office while those work-related files (on physicians in residency training) were
stored outside his office, and there being no evidence that the hospital had established any reasonable
regulation or policy discouraging employees from storing personal papers and effects in their desks or file
cabinets (although the absence of such a policy does not create any expectation of privacy where it would not
otherwise exist), the Court concluded that Dr. Ortega has a reasonable expectation of privacy at least in his
desk and file cabinets.[38]

Proceeding to the next inquiry as to whether the search conducted by hospital officials was reasonable,
the OConnor plurality decision discussed the following principles:
Having determined that Dr. Ortega had a reasonable expectation of privacy in his
office, the Court of Appeals simply concluded without discussion that the searchwas not a
reasonable search under the fourth amendment. x x x [t]o hold that the Fourth Amendment
applies to searches conducted by [public employers] is only to begin the inquiry into the
standards governing such searches[W]hat is reasonable depends on the context within which
a search takes place. x x x Thus, we must determine the appropriate standard of
reasonableness applicable to the search. A determination of the standard of reasonableness
applicable to a particular class of searches requires balanc[ing] the nature and quality of the
intrusion on the individuals Fourth Amendment interests against the importance of the
governmental interests alleged to justify the intrusion. x x x In the case of searches
conducted by a public employer, we must balance the invasion of the employees
legitimate expectations of privacy against the governments need for supervision, control,
and the efficient operation of the workplace.

xxxx

In our view, requiring an employer to obtain a warrant whenever the employer wished
to enter an employees office, desk, or file cabinets for a work-related purpose would
seriously disrupt the routine conduct of business and would be unduly burdensome. Imposing
unwieldy warrant procedures in such cases upon supervisors, who would otherwise have no
reason to be familiar with such procedures, is simply unreasonable. In contrast to other
circumstances in which we have required warrants, supervisors in offices such as at the
Hospital are hardly in the business of investigating the violation of criminal laws. Rather,
work-related searches are merely incident to the primary business of the agency. Under
these circumstances, the imposition of a warrant requirement would conflict with the
common-sense realization that government offices could not function if every employment
decision became a constitutional matter. x x x

xxxx

The governmental interest justifying work-related intrusions by public employers is


the efficient and proper operation of the workplace. Government agencies provide myriad
services to the public, and the work of these agencies would suffer if employers were
required to have probable cause before they entered an employees desk for the purpose of
finding a file or piece of office correspondence. Indeed, it is difficult to give the concept of
probable cause, rooted as it is in the criminal investigatory context, much meaning when the
purpose of a search is to retrieve a file for work-related reasons. Similarly, the concept of
probable cause has little meaning for a routine inventory conducted by public employers for
the purpose of securing state property. x x x To ensure the efficient and proper operation of
the agency, therefore, public employers must be given wide latitude to enter employee
offices for work-related, noninvestigatory reasons.

We come to a similar conclusion for searches conducted pursuant to an investigation


of work-related employee misconduct. Even when employers conduct an investigation, they
have an interest substantially different from the normal need for law enforcement. x x
x Public employers have an interest in ensuring that their agencies operate in an effective and
efficient manner, and the work of these agencies inevitably suffers from the inefficiency,
incompetence, mismanagement, or other work-related misfeasance of its employees. Indeed,
in many cases, public employees are entrusted with tremendous responsibility, and the
consequences of their misconduct or incompetence to both the agency and the public interest
can be severe. In contrast to law enforcement officials, therefore, public employers are not
enforcers of the criminal law; instead, public employers have a direct and overriding interest
in ensuring that the work of the agency is conducted in a proper and efficient manner. In our
view, therefore, a probable cause requirement for searches of the type at issue here
would impose intolerable burdens on public employers. The delay in correcting the
employee misconduct caused by the need for probable cause rather than reasonable
suspicion will be translated into tangible and often irreparable damage to the agencys
work, and ultimately to the public interest. x x x

xxxx

In sum, we conclude that the special needs, beyond the normal need for law
enforcement make theprobable-cause requirement impracticable, x x x for legitimate,
work-related noninvestigatory intrusions as well as investigations of work-related
misconduct. A standard of reasonableness will neither unduly burden the efforts of
government employers to ensure the efficient and proper operation of the workplace, nor
authorize arbitrary intrusions upon the privacy of public employees. We hold, therefore,
that public employer intrusions on the constitutionally protected privacy interests of
government employees for noninvestigatory, work-related purposes, as well as
for investigations of work-related misconduct, should be judged by the standard of
reasonableness under all the circumstances. Under this reasonableness standard, both the
inception and the scope of the intrusion must be reasonable:

Determining the reasonableness of any search involves a twofold inquiry:


first, one must consider whether theaction was justified at its inception, x x
x ; second, one must determine whether the search as actually conducted
was reasonably related in scope to the circumstances which justified the
interference in the first place, x x x

Ordinarily, a search of an employees office by a supervisor will be justified at


its inception when there are reasonable grounds for suspecting that the search will turn
up evidence that the employee is guilty of work-related misconduct, or that the search
is necessary for a noninvestigatory work-related purpose such as to retrieve a needed file.
x x x The search will be permissible in its scope when the measures adopted are
reasonably related to the objectives of the search and not excessively intrusive in light
of the nature of the [misconduct]. x x x[39] (Citations omitted; emphasis supplied.)

Since the District Court granted summary judgment without a hearing on the factual dispute as to the
character of the search and neither was there any finding made as to the scope of the search that was
undertaken, the case was remanded to said court for the determination of the justification for the search and
seizure, and evaluation of the reasonableness of both the inception of the search and its scope.

In OConnor the Court recognized that special needs authorize warrantless searches involving public
employees for work-related reasons. The Court thus laid down a balancing test under which government
interests are weighed against the employees reasonable expectation of privacy. This reasonableness test
implicates neither probable cause nor the warrant requirement, which are related to law enforcement.[40]

OConnor was applied in subsequent cases raising issues on employees privacy rights in the
workplace. One of these cases involved a government employers search of an office computer, United States v.
Mark L. Simons[41] where the defendant Simons, an employee of a division of the Central Intelligence Agency
(CIA), was convicted of receiving and possessing materials containing child pornography. Simons was provided
with an office which he did not share with anyone, and a computer with Internet access. The agency had
instituted a policy on computer use stating that employees were to use the Internet for official government
business only and that accessing unlawful material was specifically prohibited. The policy also stated that users
shall understand that the agency will periodically audit, inspect, and/or monitor the users Internet access as
deemed appropriate. CIA agents instructed its contractor for the management of the agencys computer
network, upon initial discovery of prohibited internet activity originating from Simons computer, to conduct a
remote monitoring and examination of Simons computer. After confirming that Simons had indeed downloaded
pictures that were pornographic in nature, all the files on the hard drive of Simons computer were copied from
a remote work station. Days later, the contractors representative finally entered Simons office, removed the
original hard drive on Simons computer, replaced it with a copy, and gave the original to the agency security
officer. Thereafter, the agency secured warrants and searched Simons office in the evening when Simons was
not around. The search team copied the contents of Simons computer; computer diskettes found in Simons
desk drawer; computer files stored on the zip drive or on zip drive diskettes; videotapes; and various
documents, including personal correspondence. At his trial, Simons moved to suppress these evidence, arguing
that the searches of his office and computer violated his Fourth Amendment rights. After a hearing, the
district court denied the motion and Simons was found guilty as charged.

Simons appealed his convictions. The US Supreme Court ruled that the searches of Simons computer
and office did not violate his Fourth Amendment rights and the first search warrant was valid. It held that
the search remains valid under the OConnor exception to the warrant requirement because evidence of the
crime was discovered in the course of an otherwise proper administrative inspection. Simons violation of the
agencys Internet policy happened also to be a violation of criminal law; this does not mean that said employer
lost the capacity and interests of an employer. The warrantless entry into Simons office was reasonable under
the Fourth Amendment standard announced in OConnor because at the inception of the search, the employer
had reasonable grounds for suspecting that the hard drive would yield evidence of misconduct, as the employer
was already aware that Simons had misused his Internet access to download over a thousand pornographic
images.The retrieval of the hard drive was reasonably related to the objective of the search, and the search
was not excessively intrusive. Thus, while Simons had a reasonable expectation of privacy in his office, he did
not have such legitimate expectation of privacy with regard to the files in his computer.

x x x To establish a violation of his rights under the Fourth Amendment, Simons


must first prove that he had a legitimate expectation of privacy in the place searched or the
item seized. x x x And, in order to prove a legitimate expectation of privacy, Simons must
show that his subjective expectation of privacy is one that society is prepared to accept as
objectively reasonable. x x x

xxxx

x x x We conclude that the remote searches of Simons computer did not violate his
Fourth Amendment rights because, in light of the Internet policy, Simons lacked a legitimate
expectation of privacy in the files downloaded from the Internet. Additionally, we conclude
that Simons Fourth Amendment rights were not violated by FBIS retrieval of Simons hard
drive from his office.
Simons did not have a legitimate expectation of privacy with regard to the
record or fruits of his Internet use in light of the FBIS Internet policy. The policy
clearly stated that FBIS would audit, inspect, and/or monitor employees use of the
Internet, including all file transfers, all websites visited, and all e-mail messages, as
deemed appropriate. x x x This policy placed employees on notice that they could not
reasonably expect that their Internet activity would be private. Therefore, regardless of
whether Simons subjectively believed that the files he transferred from the Internet were
private, such a belief was not objectively reasonable after FBIS notified him that it would be
overseeing his Internet use. x x x Accordingly, FBIS actions in remotely searching and seizing
the computer files Simons downloaded from the Internet did not violate the Fourth
Amendment.

xxxx

The burden is on Simons to prove that he had a legitimate expectation of


privacy in his office. x x x Here, Simons has shown that he had an office that he did not
share. As noted above, the operational realities of Simons workplace may have diminished his
legitimate privacy expectations. However, there is no evidence in the record of any workplace
practices, procedures, or regulations that had such an effect. We therefore conclude that, on
this record, Simons possessed a legitimate expectation of privacy in his office.

xxxx

In the final analysis, this case involves an employees supervisor entering the
employees government office and retrieving a piece of government equipment in which the
employee had absolutely no expectation of privacy equipment that the employer knew
contained evidence of crimes committed by the employee in the employees office. This
situation may be contrasted with one in which the criminal acts of a government employee
were unrelated to his employment. Here, there was a conjunction of the conduct that violated
the employers policy and the conduct that violated the criminal law. We consider that FBIS
intrusion into Simons office to retrieve the hard drive is one in which a reasonable employer
might engage. x x x[42] (Citations omitted; emphasis supplied.)

This Court, in Social Justice Society (SJS) v. Dangerous Drugs Board[43] which involved the constitutionality of
a provision in R.A. No. 9165 requiring mandatory drug testing of candidates for public office, students of
secondary and tertiary schools, officers and employees of public and private offices, and persons charged
before the prosecutors office with certain offenses, have also recognized the fact that there may be such
legitimate intrusion of privacy in the workplace.

The first factor to consider in the matter of reasonableness is the nature of the
privacy interest upon which the drug testing, which effects a search within the meaning of
Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or workplace serves as
the backdrop for the analysis of the privacy expectation of the employees and the
reasonableness of drug testing requirement. The employees privacy interest in an office is
to a large extent circumscribed by the companys work policies, the collective bargaining
agreement, if any, entered into by management and the bargaining unit, 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; and a degree
of impingement upon such privacy has been upheld. (Emphasis supplied.)
Applying the analysis and principles announced in OConnor and Simons to the case at bar, we now address the
following questions: (1) Did petitioner have a reasonable expectation of privacy in his office and computer
files?; and (2) Was the search authorized by the CSC Chair, the copying of the contents of the hard drive on
petitioners computer reasonable in its inception and scope?

In this inquiry, the relevant surrounding circumstances to consider include (1) the employees relationship to
the item seized; (2) whether the item was in the immediate control of the employee when it was seized; and (3)
whether the employee took actions to maintain his privacy in the item. These factors are relevant to both the
subjective and objective prongs of the reasonableness inquiry, and we consider the two questions
together.[44] Thus, where the employee used a password on his computer, did not share his office with co-
workers and kept the same locked, he had a legitimate expectation of privacy and any search of that space and
items located therein must comply with the Fourth Amendment.[45]

We answer the first in the negative. Petitioner failed to prove that he had an actual (subjective)
expectation of privacy either in his office or government-issued computer which contained his personal
files. Petitioner did not allege that he had a separate enclosed office which he did not share with anyone, or
that his office was always locked and not open to other employees or visitors.Neither did he allege that he
used passwords or adopted any means to prevent other employees from accessing his computer files. On the
contrary, he submits that being in the public assistance office of the CSC-ROIV, he normally would have
visitors in his office like friends, associates and even unknown people, whom he even allowed to use his
computer which to him seemed a trivial request. He described his office as full of people, his friends, unknown
people and that in the past 22 years he had been discharging his functions at the PALD, he is personally
assisting incoming clients, receiving documents, drafting cases on appeals, in charge of accomplishment
report, Mamamayan Muna Program, Public Sector Unionism, Correction of name, accreditation of service, and
hardly had anytime for himself alone, that in fact he stays in the office as a paying customer. [46] Under this
scenario, it can hardly be deduced that petitioner had such expectation of privacy that society would
recognize as reasonable.

Moreover, even assuming arguendo, in the absence of allegation or proof of the aforementioned factual
circumstances, that petitioner had at least a subjective expectation of privacy in his computer as he claims,
such is negated by the presence of policy regulating the use of office computers, as in Simons.

Office Memorandum No. 10, S. 2002 Computer Use Policy (CUP) explicitly provides:

POLICY

1. The Computer Resources are the property of the Civil Service Commission and may be
used only for legitimate business purposes.

2. Users shall be permitted access to Computer Resources to assist them in the


performance of their respective jobs.
3. Use of the Computer Resources is a privilege that may be revoked at any given time.

xxxx

No Expectation of Privacy

4. No expectation of privacy. Users except the Members of the Commission shall not have an
expectation of privacy in anything they create, store, send, or receive on the computer
system.

The Head of the Office for Recruitment, Examination and Placement shall select and
assign Users to handle the confidential examination data and processes.

5. Waiver of privacy rights. Users expressly waive any right to privacy in anything they
create, store, send, or receive on the computer through the Internet or any other
computer network. Users understand that the CSC may use human or automated
means to monitor the use of its Computer Resources.

6. Non-exclusivity of Computer Resources. A computer resource is not a personal property or


for the exclusive use of a User to whom a memorandum of receipt (MR) has been
issued. It can be shared or operated by other users. However, he is accountable
therefor and must insure its care and maintenance.

xxxx

Passwords

12. Responsibility for passwords. Users shall be responsible for safeguarding their passwords
for access to the computer system. Individual passwords shall not be printed, stored
online, or given to others. Users shall be responsible for all transactions made using
their passwords. No User may access the computer system with another Users
password or account.

13. Passwords do not imply privacy. Use of passwords to gain access to the computer system
or to encode particular files or messages does not imply that Users have an expectation
of privacy in the material they create or receive on the computer system. The Civil
Service Commission has global passwords that permit access to all materials stored on
its networked computer system regardless of whether those materials have been
encoded with a particular Users password. Only members of the Commission shall
authorize the application of the said global passwords.

x x x x[47] (Emphasis supplied.)

The CSC in this case had implemented a policy that put its employees on notice that they have no expectation
of privacy in anything they create, store, send or receive on the office computers, and that the CSC may
monitor the use of the computer resources using both automated or human means. This implies that on-the-
spot inspections may be done to ensure that the computer resources were used only for such legitimate
business purposes.
One of the factors stated in OConnor which are relevant in determining whether an employees expectation of
privacy in the workplace is reasonable is the existence of a workplace privacy policy. [48]In one case, the US
Court of Appeals Eighth Circuit held that a state university employee has not shown that he had a reasonable
expectation of privacy in his computer files where the universitys computer policy, the computer user is
informed not to expect privacy if the university has a legitimate reason to conduct a search. The user is
specifically told that computer files, including e-mail, can be searched when the university is responding to a
discovery request in the course of litigation. Petitioner employee thus cannot claim a violation of Fourth
Amendment rights when university officials conducted a warrantless search of his computer for work-related
materials.[49]

As to the second point of inquiry on the reasonableness of the search conducted on petitioners computer, we
answer in the affirmative.

The search of petitioners computer files was conducted in connection with investigation of work-related
misconduct prompted by an anonymous letter-complaint addressed to Chairperson David regarding anomalies in
the CSC-ROIV where the head of the Mamamayan Muna Hindi Mamaya Na division is supposedly lawyering for
individuals with pending cases in the CSC. Chairperson David stated in her sworn affidavit:

8. That prior to this, as early as 2006, the undersigned has received several text messages
from unknown sources adverting to certain anomalies in Civil Service Commission
Regional Office IV (CSCRO IV) such as, staff working in another government agency,
selling cases and aiding parties with pending cases, all done during office hours and
involved the use of government properties;

9. That said text messages were not investigated for lack of any verifiable leads and details
sufficient to warrant an investigation;

10. That the anonymous letter provided the lead and details as it pinpointed the persons and
divisions involved in the alleged irregularities happening in CSCRO IV;

11. That in view of the seriousness of the allegations of irregularities happening in CSCRO IV
and its effect on the integrity of the Commission, I decided to form a team of Central
Office staff to back up the files in the computers of the Public Assistance and Liaison
Division (PALD) and Legal Division;

x x x x[50]

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.[51] Thus, in the 2004 case decided by the US Court of Appeals Eighth Circuit, it was held that
where a government agencys computer use policy prohibited electronic messages with pornographic content
and in addition expressly provided that employees do not have any personal privacy rights regarding their use
of the agency information systems and technology, the government employee had no legitimate expectation of
privacy as to the use and contents of his office computer, and therefore evidence found during warrantless
search of the computer was admissible in prosecution for child pornography. In that case, the defendant
employees computer hard drive was first remotely examined by a computer information technician after his
supervisor received complaints that he was inaccessible and had copied and distributed non-work-related e-
mail messages throughout the office. When the supervisor confirmed that defendant had used his computer to
access the prohibited websites, in contravention of the express policy of the agency, his computer tower and
floppy disks were taken and examined. A formal administrative investigation ensued and later search warrants
were secured by the police department. The initial remote search of the hard drive of petitioners computer,
as well as the subsequent warrantless searches was held as valid under the OConnor ruling that a public
employer can investigate work-related misconduct so long as any search is justified at inception and is
reasonably related in scope to the circumstances that justified it in the first place.[52]

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, consistent as it were
with the guidelines established by OConnor:

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. At the inception of the search, a
complaint was received recounting that a certain division chief in the CSCRO No. IV was
lawyering for parties having pending cases with the said regional office or in the
Commission. The nature of the imputation was serious, as it was grievously disturbing. If,
indeed, a CSC employee was found to be furtively engaged in the practice of lawyering for
parties with pending cases before the Commission would be a highly repugnant scenario, then
such a case would have shattering repercussions. It would undeniably cast clouds of doubt
upon the institutional integrity of the Commission as a quasi-judicial agency, and in the
process, render it less effective in fulfilling its mandate as an impartial and objective
dispenser of administrative justice. It is settled that a court or an administrative tribunal
must not only be actually impartial but must be seen to be so, otherwise the general public
would not have any trust and confidence in it.

Considering the damaging nature of the accusation, the Commission had to act
fast, if only to arrest or limit any possible adverse consequence or fall-out. Thus, on the same
date that the complaint was received, a search was forthwith conducted involving the
computer resources in the concerned regional office. That it was the computers that were
subjected to the search was justified since these furnished the easiest means for an
employee to encode and store documents. Indeed, the computers would be a likely
starting point in ferreting out incriminating evidence. Concomitantly, the ephemeral
nature of computer files, that is, they could easily be destroyed at a click of a button,
necessitated drastic and immediate action. Pointedly, to impose the need to comply with
the probable cause requirement would invariably defeat the purpose of the wok-related
investigation.

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.

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.[53]

Petitioners claim of violation of his constitutional right to privacy must necessarily fail. His other
argument invoking the privacy of communication and correspondence under Section 3(1), Article III of
the 1987 Constitution is also untenable considering the recognition accorded to certain legitimate intrusions
into the privacy of employees in the government workplace under the aforecited authorities. We likewise find
no merit in his contention that OConnor and Simons are not relevant because the present case does not involve
a criminal offense like child pornography. As already mentioned, the search of petitioners computer was
justified there being reasonable ground for suspecting that the files stored therein would yield incriminating
evidence relevant to the investigation being conducted by CSC as government employer of such misconduct
subject of the anonymous complaint. This situation clearly falls under the exception to the warrantless
requirement in administrative searches defined in OConnor.

The Court is not unaware of our decision in Anonymous Letter-Complaint against Atty. Miguel Morales,
Clerk of Court, Metropolitan Trial Court of Manila[54] involving a branch clerk (Atty. Morales) who was
investigated on the basis of an anonymous letter alleging that he was consuming his working hours filing and
attending to personal cases, using office supplies, equipment and utilities. The OCA conducted a spot
investigation aided by NBI agents. The team was able to access Atty. Morales personal computer and print two
documents stored in its hard drive, which turned out to be two pleadings, one filed in the CA and another in
the RTC of Manila, both in the name of another lawyer. Atty. Morales computer was seized and taken in
custody of the OCA but was later ordered released on his motion, but with order to the MISO to first
retrieve the files stored therein. The OCA disagreed with the report of the Investigating Judge that there
was no evidence to support the charge against Atty. Morales as no one from the OCC personnel who were
interviewed would give a categorical and positive statement affirming the charges against Atty. Morales, along
with other court personnel also charged in the same case. The OCA recommended that Atty. Morales should be
found guilty of gross misconduct. The Court En Banc held that while Atty. Morales may have fallen short of the
exacting standards required of every court employee, the Court cannot use the evidence obtained from
his personal computer against him for it violated his constitutional right against unreasonable searches and
seizures. The Court found no evidence to support the claim of OCA that they were able to obtain the subject
pleadings with the consent of Atty. Morales, as in fact the latter immediately filed an administrative case
against the persons who conducted the spot investigation, questioning the validity of the investigation and
specifically invoking his constitutional right against unreasonable search and seizure. And as there is no other
evidence, apart from the pleadings, retrieved from the unduly confiscated personal computer of Atty. Morales,
to hold him administratively liable, the Court had no choice but to dismiss the charges against him for
insufficiency of evidence.
The above case is to be distinguished from the case at bar because, unlike the former which involved
a personal computer of a court employee, the computer from which the personal files ofherein petitioner were
retrieved is a government-issued computer, hence government property the use of which the CSC has absolute
right to regulate and monitor. Such relationship of the petitioner with the item seized (office computer) and
other relevant factors and circumstances under American Fourth Amendment jurisprudence, notably the
existence of CSC MO 10, S. 2007 on Computer Use Policy, failed to establish that petitioner had a reasonable
expectation of privacy in the office computer assigned to him.

Having determined that the personal files copied from the office computer of petitioner are
admissible in the administrative case against him, we now proceed to the issue of whether the CSC was correct
in finding the petitioner guilty of the charges and dismissing him from the service.

Well-settled is the rule that the findings of fact of quasi-judicial agencies, like the CSC, are accorded
not only respect but even finality if such findings are supported by substantial evidence. Substantial evidence
is such amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion,
even if other equally reasonable minds might conceivably opine otherwise.[55]

The CSC based its findings on evidence consisting of a substantial number of drafts of legal pleadings
and documents stored in his office computer, as well as the sworn affidavits and testimonies of the witnesses
it presented during the formal investigation. According to the CSC, these documents were confirmed to be
similar or exactly the same content-wise with those on the case records of some cases pending either with
CSCRO No. IV, CSC-NCR or the Commission Proper. There were also substantially similar copies of those
pleadings filed with the CA and duly furnished the Commission. Further, the CSC found the explanation given
by petitioner, to the effect that those files retrieved from his computer hard drive actually belonged to his
lawyer friends Estrellado and Solosa whom he allowed the use of his computer for drafting their pleadings in
the cases they handle, as implausible and doubtful under the circumstances. We hold that the CSCs factual
finding regarding the authorship of the subject pleadings and misuse of the office computer is well-supported
by the evidence on record, thus:

It is also striking to note that some of these documents were in the nature of
pleadings responding to the orders, decisions or resolutions of these offices or directly in
opposition to them such as a petition for certiorari or a motion for reconsideration of CSC
Resolution. This indicates that the author thereof knowingly and willingly participated in the
promotion or advancement of the interests of parties contrary or antagonistic to the
Commission. Worse, the appearance in one of the retrieved documents the phrase, Eric N.
Estr[e]llado, Epal kulang ang bayad mo, lends plausibility to an inference that the preparation
or drafting of the legal pleadings was pursued with less than a laudable motivation. Whoever
was responsible for these documents was simply doing the same for the money a legal
mercenary selling or purveying his expertise to the highest bidder, so to speak.

Inevitably, the fact that these documents were retrieved from the computer of
Pollo raises the presumption that he was the author thereof. This is because he had a
control of the said computer. More significantly, one of the witnesses, Margarita Reyes,
categorically testified seeing a written copy of one of the pleadings found in the case records
lying on the table of the respondent. This was the Petition for Review in the case of
Estrellado addressed to the Court of Appeals. The said circumstances indubitably
demonstrate that Pollo was secretly undermining the interest of the Commission, his very own
employer.

To deflect any culpability, Pollo would, however, want the Commission to believe that
the documents were the personal files of some of his friends, including one Attorney Ponciano
Solosa, who incidentally served as his counsel of record during the formal investigation of this
case. In fact, Atty. Solosa himself executed a sworn affidavit to this effect. Unfortunately,
this contention of the respondent was directly rebutted by the prosecution witness, Reyes,
who testified that during her entire stay in the PALD, she never saw Atty. Solosa using the
computer assigned to the respondent. Reyes more particularly stated that she worked in close
proximity with Pollo and would have known if Atty. Solosa, whom she personally knows, was
using the computer in question. Further, Atty. Solosa himself was never presented during the
formal investigation to confirm his sworn statement such that the same constitutes self-
serving evidence unworthy of weight and credence. The same is true with the other
supporting affidavits, which Pollo submitted.

At any rate, even admitting for a moment the said contention of the respondent, it
evinces the fact that he was unlawfully authorizing private persons to use the computer
assigned to him for official purpose, not only once but several times gauging by the number of
pleadings, for ends not in conformity with the interests of the Commission. He was, in effect,
acting as a principal by indispensable cooperationOr at the very least, he should be
responsible for serious misconduct for repeatedly allowing CSC resources, that is, the
computer and the electricity, to be utilized for purposes other than what they were officially
intended.

Further, the Commission cannot lend credence to the posturing of the appellant that
the line appearing in one of the documents, Eric N. Estrellado, Epal kulang ang bayad mo, was a
private joke between the person alluded to therein, Eric N. Estrellado, and his counsel, Atty.
Solosa, and not indicative of anything more sinister. The same is too preposterous to be
believed. Why would such a statement appear in a legal pleading stored in the computer
assigned to the respondent, unless he had something to do with it?[56]

Petitioner assails the CA in not ruling that the CSC should not have entertained an anonymous
complaint since Section 8 of CSC Resolution No. 99-1936 (URACC) requires a verified complaint:

Rule II Disciplinary Cases

SEC. 8. Complaint. - A complaint against a civil service official or employee shall not be given
due course unless it is in writing and subscribed and sworn to by the complainant. However, in
cases initiated by the proper disciplining authority, the complaint need not be under oath.

No anonymous complaint shall be entertained unless there is obvious truth or merit to the
allegation therein or supported by documentary or direct evidence, in which case the person
complained of may be required to comment.

xxxx
We need not belabor this point raised by petitioner. The administrative complaint is deemed to have been
initiated by the CSC itself when Chairperson David, after a spot inspection and search of the files stored in
the hard drive of computers in the two divisions adverted to in the anonymous letter -- as part of the
disciplining authoritys own fact-finding investigation and information-gathering -- found a prima facie case
against the petitioner who was then directed to file his comment. As this Court held in Civil Service
Commission v. Court of Appeals[57] --

Under Sections 46 and 48 (1), Chapter 6, Subtitle A, Book V of E.O. No. 292 and
Section 8, Rule II of Uniform Rules on Administrative Cases in the Civil Service, a complaint
may be initiated against a civil service officer or employee by the appropriate disciplining
authority, even without being subscribed and sworn to. Considering that the CSC, as the
disciplining authority for Dumlao, filed the complaint, jurisdiction over Dumlao was validly
acquired. (Emphasis supplied.)

As to petitioners challenge on the validity of CSC OM 10, S. 2002 (CUP), the same deserves scant
consideration. The alleged infirmity due to the said memorandum order having been issued solely by the CSC
Chair and not the Commission as a collegial body, upon which the dissent of Commissioner Buenaflor is partly
anchored, was already explained by Chairperson David in her Reply to the Addendum to Commissioner
Buenaflors previous memo expressing his dissent to the actions and disposition of the Commission in this
case. According to Chairperson David, said memorandum order was in fact exhaustively discussed, provision by
provision in the January 23, 2002 Commission Meeting, attended by her and former Commissioners Erestain,
Jr. and Valmores. Hence, the Commission En Banc at the time saw no need to issue a Resolution for the purpose
and further because the CUP being for internal use of the Commission, the practice had been to issue a
memorandum order.[58]Moreover, being an administrative rule that is merely internal in nature, or which
regulates only the personnel of the CSC and not the public, the CUP need not be published prior to its
effectivity.[59]

In fine, no error or grave abuse of discretion was committed by the CA in affirming the CSCs ruling that
petitioner is guilty of grave misconduct, dishonesty, conduct prejudicial to the best interest of the service,
and violation of R.A. No. 6713. The gravity of these offenses justified the imposition on petitioner of the
ultimate penalty of dismissal with all its accessory penalties, pursuant to existing rules and regulations.

WHEREFORE, the petition for review on certiorari is DENIED. The Decision dated October 11, 2007 and
Resolution dated February 29, 2008 of the Court of Appeals in CA-G.R. SP No. 98224 areAFFIRMED.

With costs against the petitioner.

SO ORDERED.

SECOND DIVISION
JESSE U. LUCAS, G.R. No. 190710

Petitioner,
Present:

CARPIO, J.,

Chairperson,

NACHURA,
- versus -
PERALTA,

ABAD, and

MENDOZA, JJ.

Promulgated:

JESUS S. LUCAS,
June 6, 2011
Respondent.

x----------------------------------------------------------------------------------------------x

DECISION

NACHURA, J.:

Is a prima facie showing necessary before a court can issue a DNA testing order? In this petition for review

on certiorari, we address this question to guide the Bench and the Bar in dealing with a relatively new
evidentiary tool. Assailed in this petition are the Court of Appeals (CA) Decision[1] dated September 25, 2009

and Resolution dated December 17, 2009.

The antecedents of the case are, as follows:

On July 26, 2007, petitioner, Jesse U. Lucas, filed a Petition to Establish Illegitimate Filiation (with Motion

for the Submission of Parties to DNA Testing)[2] before the Regional Trial Court (RTC), Branch

72, Valenzuela City. Petitioner narrated that, sometime in 1967, his mother, Elsie Uy (Elsie), migrated

to Manila from Davao and stayed with a certain Ate Belen (Belen) who worked in a prominent nightspot

in Manila. Elsie would oftentimes accompany Belen to work. On one occasion, Elsie got acquainted with

respondent, Jesus S. Lucas, at Belens workplace, and an intimate relationship developed between the two. Elsie

eventually got pregnant and, on March 11, 1969, she gave birth to petitioner, Jesse U. Lucas. The name of

petitioners father was not stated in petitioners certificate of live birth. However, Elsie later on told

petitioner that his father is respondent. On August 1, 1969, petitioner was baptized at San Isidro Parish, Taft

Avenue, Pasay City. Respondent allegedly extended financial support to Elsie and petitioner for a period of

about two years. When the relationship of Elsie and respondent ended, Elsie refused to accept respondents

offer of support and decided to raise petitioner on her own. While petitioner was growing up, Elsie made

several attempts to introduce petitioner to respondent, but all attempts were in vain.

Attached to the petition were the following: (a) petitioners certificate of live birth; (b) petitioners baptismal

certificate; (c) petitioners college diploma, showing that he graduated from Saint Louis University in Baguio

City with a degree in Psychology; (d) his Certificate of Graduation from the same school; (e) Certificate of

Recognition from the University of the Philippines, College of Music; and (f) clippings of several articles from

different newspapers about petitioner, as a musical prodigy.

Respondent was not served with a copy of the petition. Nonetheless, respondent learned of the petition to

establish filiation. His counsel therefore went to the trial court on August 29, 2007 and obtained a copy of the

petition.

Petitioner filed with the RTC a Very Urgent Motion to Try and Hear the Case. Hence, on September 3, 2007,

the RTC, finding the petition to be sufficient in form and substance, issued the Order [3]setting the case for
hearing and urging anyone who has any objection to the petition to file his opposition. The court also directed

that the Order be published once a week for three consecutive weeks in any newspaper of general circulation

in the Philippines, and that the Solicitor General be furnished with copies of the Order and the petition in

order that he may appear and represent the State in the case.

On September 4, 2007, unaware of the issuance of the September 3, 2007 Order, respondent filed a Special
Appearance and Comment. He manifested inter alia that: (1) he did not receive the summons and a copy of the

petition; (2) the petition was adversarial in nature and therefore summons should be served on him as

respondent; (3) should the court agree that summons was required, he was waiving service of summons and

making a voluntary appearance; and (4) notice by publication of the petition and the hearing was improper
because of the confidentiality of the subject matter.[4]

On September 14, 2007, respondent also filed a Manifestation and Comment on Petitioners Very Urgent

Motion to Try and Hear the Case. Respondent reiterated that the petition for recognition is adversarial in

nature; hence, he should be served with summons.

After learning of the September 3, 2007 Order, respondent filed a motion for reconsideration.[5] Respondent

averred that the petition was not in due form and substance because petitioner could not have personally

known the matters that were alleged therein. He argued that DNA testing cannot be had on the basis of a

mere allegation pointing to respondent as petitioners father. Moreover, jurisprudence is still unsettled on the

acceptability of DNA evidence.

On July 30, 2008, the RTC, acting on respondents motion for reconsideration, issued an Order [6] dismissing the
case. The court remarked that, based on the case of Herrera v. Alba,[7] there are four significant procedural

aspects of a traditional paternity action which the parties have to face: a prima facie case, affirmative

defenses, presumption of legitimacy, and physical resemblance between the putative father and the child. The

court opined that petitioner must first establish these four procedural aspects before he can present

evidence of paternity and filiation, which may include incriminating acts or scientific evidence like blood group

test and DNA test results. The court observed that the petition did not show that these procedural aspects
were present. Petitioner failed to establish a prima facie case considering that (a) his mother did not

personally declare that she had sexual relations with respondent, and petitioners statement as to what his

mother told him about his father was clearly hearsay; (b) the certificate of live birth was not signed by

respondent; and (c) although petitioner used the surname of respondent, there was no allegation that he was
treated as the child of respondent by the latter or his family. The court opined that, having failed to establish
a prima facie case, respondent had no obligation to present any affirmative defenses. The dispositive portion

of the said Order therefore reads:

WHEREFORE, for failure of the petitioner to establish compliance with the four
procedural aspects of a traditional paternity action in his petition, his motion for the
submission of parties to DNA testing to establish paternity and filiation is
hereby DENIED. This case is DISMISSED without prejudice.

SO ORDERED.[8]

Petitioner seasonably filed a motion for reconsideration to the Order dated July 30, 2008, which the RTC

resolved in his favor. Thus, on October 20, 2008, it issued the Order [9] setting aside the courts previous

order, thus:

WHEREFORE, in view of the foregoing, the Order dated July 30, 2008 is hereby
reconsidered and set aside.

Let the Petition (with Motion for the Submission of Parties to DNA Testing) be set
for hearing on January 22, 2009 at 8:30 in the morning.

xxxx

SO ORDERED.[10]

This time, the RTC held that the ruling on the grounds relied upon by petitioner for filing the petition is

premature considering that a full-blown trial has not yet taken place. The court stressed that the petition was

sufficient in form and substance. It was verified, it included a certification against forum shopping, and it

contained a plain, concise, and direct statement of the ultimate facts on which petitioner relies on for his

claim, in accordance with Section 1, Rule 8 of the Rules of Court. The court remarked that the allegation that

the statements in the petition were not of petitioners personal knowledge is a matter of evidence. The court

also dismissed respondents arguments that there is no basis for the taking of DNA test, and that

jurisprudence is still unsettled on the acceptability of DNA evidence. It noted that the new Rule on DNA

Evidence[11] allows the conduct of DNA testing, whether at the courts instance or upon application of any
person who has legal interest in the matter in litigation.
Respondent filed a Motion for Reconsideration of Order dated October 20, 2008 and for Dismissal of

Petition,[12] reiterating that (a) the petition was not in due form and substance as no defendant was named in
the title, and all the basic allegations were hearsay; and (b) there was no prima facie case, which made the

petition susceptible to dismissal.

The RTC denied the motion in the Order dated January 19, 2009, and rescheduled the hearing.[13]

Aggrieved, respondent filed a petition for certiorari with the CA, questioning the Orders dated

October 20, 2008 and January 19, 2009.

On September 25, 2009, the CA decided the petition for certiorari in favor of respondent, thus:

WHEREFORE, the instant petition for certiorari is hereby GRANTED for being
meritorious. The assailed Orders dated October 20, 2008 and January 19, 2009 both issued
by the Regional Trial Court, Branch 172 of Valenzuela City in SP. Proceeding Case No. 30-V-07
are REVERSED and SET ASIDE. Accordingly, the case docketed as SP. Proceeding Case No.
30-V-07 is DISMISSED.[14]

The CA held that the RTC did not acquire jurisdiction over the person of respondent, as no summons

had been served on him. Respondents special appearance could not be considered as voluntary appearance

because it was filed only for the purpose of questioning the jurisdiction of the court over respondent.

Although respondent likewise questioned the courts jurisdiction over the subject matter of the petition, the

same is not equivalent to a waiver of his right to object to the jurisdiction of the court over his person.

The CA remarked that petitioner filed the petition to establish illegitimate filiation, specifically

seeking a DNA testing order to abbreviate the proceedings. It noted that petitioner failed to show that the

four significant procedural aspects of a traditional paternity action had been met. The CA further held that a
DNA testing should not be allowed when the petitioner has failed to establish a prima facie case, thus:
While the tenor [of Section 4, Rule on DNA Evidence] appears to be absolute, the rule could not really
have been intended to trample on the substantive rights of the parties. It could have not meant to be
an instrument to promote disorder, harassment, or extortion. It could have not been intended to
legalize unwarranted expedition to fish for evidence. Such will be the situation in this particular case
if a court may at any time order the taking of a DNA test. If the DNA test in compulsory recognition
cases is immediately available to the petitioner/complainant without requiring first the presentation
of corroborative proof, then a dire and absurd rule would result. Such will encourage and promote
harassment and extortion.

xxxx

At the risk of being repetitious, the Court would like to stress that it sees the danger of allowing an
absolute DNA testing to a compulsory recognition test even if the plaintiff/petitioner failed to
establish prima facie proof. x x x If at anytime, motu proprio and without pre-conditions, the court
can indeed order the taking of DNA test in compulsory recognition cases, then the prominent and well-
to-do members of our society will be easy prey for opportunists and extortionists. For no cause at all,
or even for [sic] casual sexual indiscretions in their younger years could be used as a means to harass
them. Unscrupulous women, unsure of the paternity of their children may just be taking the chances-
just in case-by pointing to a sexual partner in a long past one-time encounter. Indeed an absolute and
unconditional taking of DNA test for compulsory recognition case opens wide the opportunities for
extortionist to prey on victims who have no stomach for scandal.[15]

Petitioner moved for reconsideration. On December 17, 2009, the CA denied the motion for lack of
merit.[16]

In this petition for review on certiorari, petitioner raises the following issues:

I.

WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT RESOLVED THE ISSUE OF
LACK OF JURISDICTION OVER THE PERSON OF HEREIN RESPONDENT ALBEIT THE
SAME WAS NEVER RAISED IN THE PETITION FOR CERTIORARI.

I.A
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT RULED
THAT JURISDICTION WAS NOT ACQUIRED OVER THE PERSON OF
THE RESPONDENT.

I.B

WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT FAILED


TO REALIZE THAT THE RESPONDENT HAD ALREADY SUBMITTED
VOLUNTARILY TO THE JURISDICTION OF THE COURT A QUO.

I.C

WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT


ESSENTIALLY RULED THAT THE TITLE OF A PLEADING, RATHER THAN
ITS BODY, IS CONTROLLING.

II.

WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT ORDERED THE


DISMISSAL OF THE PETITION BY REASON OF THE MOTION (FILED BY THE
PETITIONER BEFORE THE COURT A QUO) FOR THE CONDUCT OF DNA TESTING.

II.A

WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT


ESSENTIALLY RULED THAT DNA TESTING CAN ONLY BE ORDERED
AFTER THE PETITIONER ESTABLISHES PRIMA FACIE PROOF OF
FILIATION.

III.

WHETHER OR NOT THE COURT OF APPEALS ERRED WITH ITS MISPLACED


RELIANCE ON THE CASE OF HERRERA VS. ALBA,

ESPECIALLY AS REGARDS THE FOUR SIGNIFICANT PROCEDURAL ASPECTS OF A


TRADITIONAL PATERNITY ACTION.[17]
Petitioner contends that respondent never raised as issue in his petition for certiorari the courts lack of

jurisdiction over his person. Hence, the CA had no legal basis to discuss the same, because issues not raised

are deemed waived or abandoned. At any rate, respondent had already voluntarily submitted to the jurisdiction

of the trial court by his filing of several motions asking for affirmative relief, such as the (a) Motion for
Reconsideration of the Order dated September 3, 2007; (b) Ex Parte Motion to Resolve Motion for

Reconsideration of the Order dated November 6, 2007; and (c) Motion for Reconsideration of the Order

dated October 20, 2008 and for Dismissal of Petition. Petitioner points out that respondent even expressly

admitted that he has waived his right to summons in his Manifestation and Comment on Petitioners Very

Urgent Motion to Try and Hear the Case. Hence, the issue is already moot and academic.

Petitioner argues that the case was adversarial in nature. Although the caption of the petition does not state

respondents name, the body of the petition clearly indicates his name and his known address. He maintains that

the body of the petition is controlling and not the caption.

Finally, petitioner asserts that the motion for DNA testing should not be a reason for the dismissal of the

petition since it is not a legal ground for the dismissal of cases. If the CA entertained any doubt as to the

propriety of DNA testing, it should have simply denied the motion.[18] Petitioner points out that Section 4 of

the Rule on DNA Evidence does not require that there must be a prior proof of filiation before DNA testing

can be ordered. He adds that the CA erroneously relied on the four significant procedural aspects of a
paternity case, as enunciated in Herrera v. Alba.[19] Petitioner avers that these procedural aspects are not

applicable at this point of the proceedings because they are matters of evidence that should be taken up

during the trial.[20]

In his Comment, respondent supports the CAs ruling on most issues raised in the petition for certiorari and

merely reiterates his previous arguments. However, on the issue of lack of jurisdiction, respondent counters

that, contrary to petitioners assertion, he raised the issue before the CA in relation to his claim that the

petition was not in due form and substance. Respondent denies that he waived his right to the service of

summons. He insists that the alleged waiver and voluntary appearance was conditional upon a finding by the

court that summons is indeed required. He avers that the assertion of affirmative defenses, aside from lack
of jurisdiction over the person of the defendant, cannot be considered as waiver of the defense of lack of

jurisdiction over such person.

The petition is meritorious.

Primarily, we emphasize that the assailed Orders of the trial court were orders denying respondents

motion to dismiss the petition for illegitimate filiation. An order denying a motion to dismiss is an interlocutory

order which neither terminates nor finally disposes of a case, as it leaves something to be done by the court

before the case is finally decided on the merits. As such, the general rule is that the denial of a motion to
dismiss cannot be questioned in a special civil action for certiorari, which is a remedy designed to correct

errors of jurisdiction and not errors of judgment. Neither can a denial of a motion to dismiss be the subject of

an appeal unless and until a final judgment or order is rendered. In a number of cases, the court has granted
the extraordinary remedy of certiorari on the denial of the motion to dismiss but only when it has been

tainted with grave abuse of discretion amounting to lack or excess of jurisdiction.[21] In the present case, we

discern no grave abuse of discretion on the part of the trial court in denying the motion to dismiss.

The grounds for dismissal relied upon by respondent were (a) the courts lack of jurisdiction over his

person due to the absence of summons, and (b) defect in the form and substance of the petition to establish

illegitimate filiation, which is equivalent to failure to state a cause of action.

We need not belabor the issues on whether lack of jurisdiction was raised before the CA, whether the

court acquired jurisdiction over the person of respondent, or whether respondent waived his right to the

service of summons. We find that the primordial issue here is actually whether it was necessary, in the first

place, to serve summons on respondent for the court to acquire jurisdiction over the case. In other words, was

the service of summons jurisdictional? The answer to this question depends on the nature of petitioners
action, that is, whether it is an action in personam, in rem, or quasi in rem.

An action in personam is lodged against a person based on personal liability; an action in rem is
directed against the thing itself instead of the person; while an action quasi in rem names a person as

defendant, but its object is to subject that person's interest in a property to a corresponding lien or
obligation. A petition directed against the "thing" itself or the res, which concerns the status of a person, like

a petition for adoption, annulment of marriage, or correction of entries in the birth certificate, is an action in

rem.[22]

In an action in personam, jurisdiction over the person of the defendant is necessary for the court to

validly try and decide the case. In a proceeding in rem or quasi in rem, jurisdiction over the person of the

defendant is not a prerequisite to confer jurisdiction on the court, provided that the latter has jurisdiction
over the res. Jurisdiction over the res is acquired either (a) by the seizure of the property under legal

process, whereby it is brought into actual custody of the law, or (b) as a result of the institution of legal

proceedings, in which the power of the court is recognized and made effective. [23]

The herein petition to establish illegitimate filiation is an action in rem. By the simple filing of the

petition to establish illegitimate filiation before the RTC, which undoubtedly had jurisdiction over the subject
matter of the petition, the latter thereby acquired jurisdiction over the case. An in rem proceeding is

validated essentially through publication. Publication is notice to the whole world that the proceeding has for

its object to bar indefinitely all who might be minded to make an objection of any sort to the right sought to

be established.[24] Through publication, all interested parties are deemed notified of the petition.

If at all, service of summons or notice is made to the defendant, it is not for the purpose of vesting

the court with jurisdiction, but merely for satisfying the due process requirements. [25] This is but proper in

order to afford the person concerned the opportunity to protect his interest if he so chooses. [26] Hence,

failure to serve summons will not deprive the court of its jurisdiction to try and decide the case. In such a

case, the lack of summons may be excused where it is determined that the adverse party had, in fact, the

opportunity to file his opposition, as in this case. We find that the due process requirement with respect to

respondent has been satisfied, considering that he has participated in the proceedings in this case and he has

the opportunity to file his opposition to the petition to establish filiation.

To address respondents contention that the petition should have been adversarial in form, we further

hold that the herein petition to establish filiation was sufficient in form. It was indeed adversarial in nature
despite its caption which lacked the name of a defendant, the failure to implead respondent as defendant, and
the non-service of summons upon respondent. A proceeding is adversarial where the party seeking relief has

given legal warning to the other party and afforded the latter an opportunity to contest it.[27] In this
petitionclassified as an action in remthe notice requirement for an adversarial proceeding was likewise

satisfied by the publication of the petition and the giving of notice to the Solicitor General, as directed by the

trial court.

The petition to establish filiation is sufficient in substance. It satisfies Section 1, Rule 8 of the Rules

of Court, which requires the complaint to contain a plain, concise, and direct statement of the ultimate

facts upon which the plaintiff bases his claim. A fact is essential if it cannot be stricken out without leaving

the statement of the cause of action inadequate.[28] A complaint states a cause of action when it contains the
following elements: (1) the legal right of plaintiff, (2) the correlative obligation of the defendant, and (3) the

act or omission of the defendant in violation of said legal right.[29]

The petition sufficiently states the ultimate facts relied upon by petitioner to establish his filiation

to respondent. Respondent, however, contends that the allegations in the petition were hearsay as they were

not of petitioners personal knowledge. Such matter is clearly a matter of evidence that cannot be determined

at this point but only during the trial when petitioner presents his evidence.

In a motion to dismiss a complaint based on lack of cause of action, the question submitted to the court for

determination is the sufficiency of the allegations made in the complaint to constitute a cause of action and

not whether those allegations of fact are true, for said motion must hypothetically admit the truth of the

facts alleged in the complaint.[30]

The inquiry is confined to the four corners of the complaint, and no other.[31] The test of the sufficiency of

the facts alleged in the complaint is whether or not, admitting the facts alleged, the court could render a valid

judgment upon the same in accordance with the prayer of the complaint.[32]

If the allegations of the complaint are sufficient in form and substance but their veracity and correctness are

assailed, it is incumbent upon the court to deny the motion to dismiss and require the defendant to answer and

go to trial to prove his defense. The veracity of the assertions of the parties can be ascertained at the trial
of the case on the merits.[33]
The statement in Herrera v. Alba[34] that there are four significant procedural aspects in a traditional

paternity case which parties have to face has been widely misunderstood and misapplied in this case. A party is

confronted by these so-called procedural aspects during trial, when the parties have presented their

respective evidence. They are matters of evidence that cannot be determined at this initial stage of the

proceedings, when only the petition to establish filiation has been filed. The CAs observation that petitioner
failed to establish a prima facie casethe first procedural aspect in a paternity caseis therefore misplaced.

A prima facie case is built by a partys evidence and not by mere allegations in the initiatory pleading.

Clearly then, it was also not the opportune time to discuss the lack of a prima facie case vis--vis the

motion for DNA testing since no evidence has, as yet, been presented by petitioner. More essentially, it is

premature to discuss whether, under the circumstances, a DNA testing order is warranted considering that no

such order has yet been issued by the trial court. In fact, the latter has just set the said case for hearing.

At any rate, the CAs view that it would be dangerous to allow a DNA testing without corroborative

proof is well taken and deserves the Courts attention. In light of this observation, we find that there is a need

to supplement the Rule on DNA Evidence to aid the courts in resolving motions for DNA testing order,
particularly in paternity and other filiation cases. We, thus, address the question of whether a prima

facie showing is necessary before a court can issue a DNA testing order.

The Rule on DNA Evidence was enacted to guide the Bench and the Bar for the introduction and use of

DNA evidence in the judicial system. It provides the prescribed parameters on the requisite elements for
reliability and validity (i.e., the proper procedures, protocols, necessary laboratory reports, etc.), the possible

sources of error, the available objections to the admission of DNA test results as evidence as well as the

probative value of DNA evidence. It seeks to ensure that the evidence gathered, using various methods of

DNA analysis, is utilized effectively and properly, [and] shall not be misused and/or abused and, more

importantly, shall continue to ensure that DNA analysis serves justice and protects, rather than prejudice the

public.[35]

Not surprisingly, Section 4 of the Rule on DNA Evidence merely provides for conditions that are

aimed to safeguard the accuracy and integrity of the DNA testing. Section 4 states:
SEC. 4. Application for DNA Testing Order. The appropriate court may, at any time,
either motu proprio or on application of any person who has a legal interest in the matter in
litigation, order a DNA testing. Such order shall issue after due hearing and notice to the
parties upon a showing of the following:

(a) A biological sample exists that is relevant to the case;

(b) The biological sample: (i) was not previously subjected to the type of DNA testing
now requested; or (ii) was previously subjected to DNA testing, but the results
may require confirmation for good reasons;

(c) The DNA testing uses a scientifically valid technique;

(d) The DNA testing has the scientific potential to produce new information that is
relevant to the proper resolution of the case; and

(e) The existence of other factors, if any, which the court may consider as
potentially affecting the accuracy or integrity of the DNA testing.

This Rule shall not preclude a DNA testing, without need of a prior court order, at
the behest of any party, including law enforcement agencies, before a suit or proceeding is
commenced.

This does not mean, however, that a DNA testing order will be issued as a matter of right if, during

the hearing, the said conditions are established.

In some states, to warrant the issuance of the DNA testing order, there must be a show cause
hearing wherein the applicant must first present sufficient evidence to establish a prima facie case or a

reasonable possibility of paternity or good cause for the holding of the test. [36] In these states, a court order

for blood testing is considered a search, which, under their Constitutions (as in ours), must be preceded by a
finding of probable cause in order to be valid. Hence, the requirement of a prima facie case, or reasonable

possibility, was imposed in civil actions as a counterpart of a finding of probable cause. The Supreme Court of

Louisiana eloquently explained

Although a paternity action is civil, not criminal, the constitutional prohibition against
unreasonable searches and seizures is still applicable, and a proper showing of sufficient
justification under the particular factual circumstances of the case must be made before a
court may order a compulsory blood test. Courts in various jurisdictions have differed
regarding the kind of procedures which are required, but those jurisdictions have almost
universally found that a preliminary showing must be made before a court can constitutionally
order compulsory blood testing in paternity cases. We agree, and find that, as a preliminary
matter, before the court may issue an order for compulsory blood testing, the moving party
must show that there is a reasonable possibility of paternity. As explained hereafter, in cases
in which paternity is contested and a party to the action refuses to voluntarily undergo a
blood test, a show cause hearing must be held in which the court can determine whether
there is sufficient evidence to establish a prima facie case which warrants issuance of a
court order for blood testing.[37]

The same condition precedent should be applied in our jurisdiction to protect the putative father

from mere harassment suits. Thus, during the hearing on the motion for DNA testing, the petitioner must
present prima facie evidence or establish a reasonable possibility of paternity.

Notwithstanding these, it should be stressed that the issuance of a DNA testing order remains

discretionary upon the court. The court may, for example, consider whether there is absolute necessity for

the DNA testing. If there is already preponderance of evidence to establish paternity and the DNA test

result would only be corroborative, the court may, in its discretion, disallow a DNA testing.

WHEREFORE, premises considered, the petition is GRANTED. The Court of Appeals Decision dated

September 25, 2009 and Resolution dated December 17, 2009 are REVERSED and SET ASIDE. The Orders

dated October 20, 2008 and January 19, 2009 of the Regional Trial Court of Valenzuela City are AFFIRMED.

SO ORDERED.