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SEARCHES AND SEIZURES

I. Search warrant defined. — A search warrant


1. is an order in writing issued in the name of the People of the Philippines
2. signed by a judge and directed to a peace officer
3. commanding him to search for personal property described therein
4. and bring it before the court. (Section 1, Rule 126, 1985 Rules on Criminal
Procedure)

1985 Rules of Criminal Procedure 2000 Revised Rules of Criminal


Procedure

Rule 126 of the 1985 Rules of Criminal Rule 126 of the 2000 Revised Rules on
Procedure covered the following: Criminal Procedure has further expanded
the provisions of Rule 126 to cover the
 Definition of a search warrant; following matters:
 Personal property to be seized;
 Requisites for issuing search  Venue of application for the issuance
warrant; of a search warrant (Section 2,
 Examination of complaint; records; Rule 1261);
 Issuance and form of search warrant;
 the time and manner of conducting  Motion to quash a search warrant
the search and seizure; and (Section 14)
 when there may be a search and
seizure without a warrant (valid
warrantless search); and
 Delivery, receipt and inventory of
properties seized

II. Nature and Concept of Search Warrant


A search warrant proceeding was described as, “in no sense, a criminal
action or the commencement of a prosecution. The proceeding is not one
against any person, but is solely for the discovery and to get possession of
personal property. It is a special and peculiar remedy, drastic in nature, and
made necessary because of public necessity. It resembles in some respect
with what is commonly known as John Doe proceedings. While an application
for a search warrant is entitled like a criminal action, it does not make it such
an action.
A search warrant is a legal process which has been likened to a writ of
discovery employed by the State to procure relevant evidence of crime. It is in
the nature of a criminal process, restricted to cases of public prosecutions. A
search warrant is a police weapon, issued under the police power. A search
warrant must issue in the name of the State, namely, the People of the
Philippines. A search warrant has no relation to a civil process. It is not a
process for adjudicating civil rights or maintaining mere private rights. It
concerns the public at large as distinguished from the ordinary civil action
involving the rights of private persons. It may only be applied for in the
furtherance of public prosecution.
However, a private individual or a private corporation complaining to the
NBI or to a government agency charged with the enforcement of special
penal laws, such as the BFAD, may appear, participate and file pleadings in
1
This section was apparently taken from the decision of the Supreme Court in Elizalde Malalaon et al. v.
Court of Appeals, et al., 232 SCRA 249

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the search warrant proceedings to maintain, inter alia, the validity of the
search warrant issued by the court and the admissibility of the properties
seized in anticipation of a criminal case to be filed; such private party may do
so in collaboration with the NBI or such government agency. The party may
file an opposition to a motion to quash the search warrant issued by the court,
or a motion for the reconsideration of the court order granting such motion to
quash”. (United Laboratories Inc. v. Isip, G.R. No. 163858, June 28, 2005)

III. How and When Search Warrant Issued

The rules on the issuance of search warrants is governed by Rule 126,


Sections 1 to 6

1) Section 1, Search Warrant defined2


Following are the statutory provisions for the issuance of a search
warrant:
SECTION 1. Search warrant defined. — A search warrant
is an order in writing issued in the name of the People of
the Philippines, signed by a judge and directed to a peace
officer, commanding him to search for personal property
described therein and bring it before the court. (1a)
Who May Issue Search Warrant?
Under the new Constitution, it is only a judge who may issue warrants of
search and arrest. It may not be done by a prosecuting body or the
Secretary of Labor. (Salazar v. Achacoso, 183 SCRA 145 [1990])

2) Section 2, Court where application for search warrant shall be filed.3


— An application for search warrant shall be filed in the following:
a) Any court within whose territorial jurisdiction a crime was
committed.
b) For compelling reasons, however, the application can be made
within the judicial region where the crime was committed if the
place of the commission of the crime is known or within the
judicial region where the warrant shall be enforced if the place
of the commission of the crime is known.
c) The preceding paragraphs notwithstanding, the application shall
only be made in the court where the criminal action had already
been filed and is pending.

* Exceptions to the Rule:


1) In cases involving violations of the Intellectual Property Code, the
application can be filed only with regional trial courts designated by
the Supreme Court to try violations of intellectual property rights
stationed at the place where the violation occurred or is to occur, or
the place to be searched, at the election of the applicant (RULE ON
SEARCH AND SEIZURE IN CIVIL ACTIONS FOR INFRINGEMENT
2
Reproduced from Section 1, Rule 126, 1964 Rules of Court as amended in 1985, without amendment.
3
Prior to the enactment of this Rule under the 2000 Rules on Criminal Procedure there is no rule on
where to file an application for the issuance of a search warrant

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OF INTELLECTUAL PROPERTY RIGHTS (approved En Banc,
January 22, 2002 to be effective February 15, 2002, A.M. No. 02-1-06 SC)

2) Administrative Circular No. 20-97 authorizes the judges named


therein to act on all applications for search warrants filed by the
National Bureau of Investigation (NBI), by the Presidential Anti-Crime
Commission (PACC) and by the Public Assistance and Reaction
Against Crime (PARAC), duly certified by the legal officers and
personally endorsed by the Heads of the said agencies, with the
Regional Trial Court of Manila, for the search of places to be
particularly described therein, and the seizure of property or things as
prescribed in the Rules of Court, and to issue the warrants, if
justified, which may be served in places even outside the territorial
jurisdiction of said courts. This order is effective immediately and
shall continue until further orders from this Court and shall be an
exception to the provisions of Circular 13 dated October 1, 1985 and
Circular No. 19 dated August 4, 1987. The authorization therein
granted shall cover applications for search warrants involving illegal
gambling, dangerous drugs, illegal possession of firearms and other
major crimes.
NOTE: Prior to the enactment of this Rule under the 2000 Rules on Criminal
Procedure there is no rule on where to file an application for the issuance of a
search warrant.
3) Section 3, Personal Property to be seized 4 – 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.
IV. Section 4, Requisites for issuing search warrant 5 – 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.

Requisites of a Valid Search Warrant

a. It must be issued upon Probable Cause

- “such facts and circumstances which would lead a reasonably


discreet and prudent man to believe that an offense has been
committed and that the objects sought in connection with the
offense are in the place sought to be searched.” (Burgos v. Chief
of Staff, 133 SCRA 800, see also Corro v. Lising, 137 SCRA 541,
Prudente v. Dayrit, 180 SCRA 69)

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Reproduction of Section 2, Rule 126, 1964 Rules of Court as amended in 1985, without change except in
style.
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A reproduction of Section 3, Rule 126, 1964 Rules of Court as amended in 1985, without change except in
style and adding the phrase “which may be anywhere in the Philippines” after the last word “seized” of this
section.

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- Probable cause must be shown to be within the personal
knowledge of the complainant or the witnesses he may produce
and not based on mere hearsay, in order to convince the judge,
not the individual making the affidavit and seeking the issuance
of the warrant, of the existence of a probable cause. (20th Century
Fox Film Corp. v. Court of Appeals, G.R. Nos. 76649-51, August 19,
1988; Silva v. RTC of Negros Oriental, G.R. No. 81756, October 21, 1991)

b. Probable cause to be determined personally by the judge

- A notable innovation in this guarantee is found in our Constitution


in that it specifically provides that the probable cause upon
which a warrant of arrest may be issued, must be
determined by the judge after examination under oath,
etc., of the complainant and the witnesses he may
produce.
- The issuance of search warrants is altogether different from the
issuance of warrants of arrests. Unlike warrants of arrests the
judge in determining probable cause must personally conduct
an examination of the complainant and the witnesses, if any,
and it is not enough in such examination for the judge to merely
adopt the questions and answers asked by a previous
investigator. It is required that the examination must be probing.
(Quintero v. NBI, 162 SCRA 483 [1988]; Prudente v. Judge Dayrit, 180
SCRA 69 [1989])

- the determination of probable cause depends to a large extent


upon the finding or opinion of the judge who conducted the
required examination of the applicant and the witnesses (Kho v.
Judge Makalintal, G.R. No. 94902-06, April 21, 1999, citing Luna v. Plaza,
26 SCRA 310)

c. Must refer to one specific offense

- None of these requirements has been complied with in the


contested warrants. Indeed, the same were issued upon
applications stating that the natural and juridical persons therein
named had committed a “violation of Central Bank Laws, Tariff
and Customs Laws, Internal Revenue Code and Revised Penal
Code.” In other words, no specific offense had been alleged in
said applications. The averments thereof with respect to the
offense committed were abstract. As a consequence it was
impossible for the judges who issued the warrants to have found
the existence of probable cause, for the same presupposed the
introduction of competent proof that the party against whom it is
sought has performed particular acts, or committed specific
omissions, violating a given provision of our criminal laws.

xxx

To uphold the validity of the warrants in question would be to


wipe out completely one of the most fundamental rights
guaranteed in our Constitution, for it would place the sanctity of
the domicile and the privacy of communication and
correspondence at the mercy of the whims, caprice or passion
of peace officers. This is precisely the evil sought to be
remedied by the constitutional provision above-quoted – to

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outlaw the so-called general warrants. It is not difficult to
imagine what would happen, in times of keen political strife,
when the party in power feels that the minority is likely to wrest
it, even though by legal means.

Such is the seriousness of the irregularities committed in


connection with the disputed search warrant, that this Court
deemed it fit to amend Section 3 of Rule 122 of the former
Rules of Court by providing in its counterpart, under the Revised
Rules of Court, that “no search warrant shall issue for more than
one specific offence.” (Asian Surety v. Herrera, 54 SCRA 312; Castro
v. Pabalan, 70 SCRA 477);

d. Particularity of description

 Rationale:

- The case of Corro v. Lising, 137 SCRA 541, still provides the
best explanation as to the evident purpose and intent of this
requirement, i.e., to limit the things to be seized to those, and
only those, particularly described in the search warrant – to
leave the officers of the law with no discretion regarding what
articles they shall seize, to the end that “unreasonable searches
and seizures” may not be made, – that abuses may not be
committed;

- The case of People v. Damaso, 212 SCRA 457, however,


added another purpose by stating that “it is also aimed at
preventing violations of security of persons and property, and
unlawful invasions of the sanctity of the home, and giving
remedy against such usurpation when attempted. “

- A search warrant, to be valid, must particularly describe the


place to be searched and the things to be seized. The officers
of the law are to seize only those things particularly described in
the search warrant. A search warrant is not a sweeping
authority empowering a raiding party to undertake a fishing
expedition to seize and confiscate any and all kinds of evidence
or articles relating to a crime. The search is limited in scope so
as not to be general or explanatory. Nothing is left to the
discretion of the officer executing the warrant. (United
Laboratories Inc. v. Isip G.R. No. 163858 June 28, 2005; [461 SCRA 574])

 Description Must Be as Specific as Circumstances would


Permit

- The failure to specify detailed descriptions in the warrant does


not necessarily make the warrant a general warrant. Citing
Justice Francisco, the Supreme Court said that the “description
of the property to be seized need not be technically accurate or
necessarily precise, and its nature will necessarily vary
according to whether the identity of the property, or its
character, is a matter of concern. Further, the description is

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required to be specific only in so far as circumstances will allow.
(Kho v. Judge Makalintal, supra);

- The description is deemed sufficient if the officer serving the


warrant can, with reasonable effort, ascertain and identify the
place to be searched and the items to be seized. (People v.
Salanguit, 356 SCRA 683 [2001])

 Generic Descriptions, when allowed

- The use of a generic term or a general description in a warrant


is acceptable only when a more specific description of the things
to be seized is unavailable. The failure to employ the specificity
available will invalidate a general description in a warrant. (Uy v.
Bureau of Internal Revenue, G. R. No. 129651, October 20, 2000)

- The Dangerous Drugs Act of 1972 is a special law that deals


specifically with dangerous drugs which are subsumed into
prohibited and regulated drugs, and defines and penalizes
categories of offenses which are closely related or which belong
to the same class or species; thus, one search warrant may be
validly issued for several violations thereof. (People v. Dichoso,
223 SCRA 174, reiterated in People v. Salanguit, G.R. No. 133254-55,
April 19, 2001)

- Caption “ For violation of R.A. 6425, as amended” – though the


specific section of the Dangerous Drugs Law is not pinpointed –
followed by recital of offense of illegal possession is sufficient
(People v. Tee, G.R. No.140546-47, January 20, 2003 [En Banc])

 Effect of general description, Partial invalidity

- The general description of most of the documents listed in the warrants


does not render the entire warrant void. Insofar as the warrants authorize
the search and seizure of unregistered delivery receipts and unregistered
purchase and sales invoices, the warrants remain valid. The search
warrant is severable, and those items not particularly described may be
cut off and returned without destroying the whole warrant. (Uy v. Bureau of
Internal Revenue, supra.)

 Particularity of description of place to be searched, sufficiency


of description

- The place to be searched cannot be changed, enlarged or


amplified by the police. (Yousef Al Ghoul v. Court of Appeals, G.R.
No. 126859, September 4, 2001)

- Where the search warrant is issued for the premises only and
not for the search of a person, the failure to name the owner or
occupant of such property in the affidavit and search warrant
does not invalidate the warrant and where the name of the
owner of the premises sought to be searched is incorrectly
inserted in the search warrant, it is not a fatal defect if the legal
description of the premises to be searched is otherwise correct
so that no discretion is left to the officer making the search as to
the place to be searched. The search could not be declared
unlawful or in violation of the constitutional rights of the owner or

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occupants of the premises, because of inconsistencies in stating
their names. (Uy vs. Bureau of Internal Revenue, supra., citing Miller
v. Sigler, 353 2d 424 [1965])

 Particularity of description of things to be seized, when plain


view doctrine cannot be invoked

- It is important to note the Court’s holding that the ‘plain view’


doctrine cannot be used to expand a search authorized by a
warrant after its object has already been accomplished.
“Because the location of the shabu was indicated in the warrant
and thus known to the police operatives, it is reasonable to
assume that the police found the packets of shabu first. Once
the valid portion of the search warrant has been executed, the
“plain view” doctrine can no longer provide any basis for
admitting the other items subsequently found” – the doctrine
may not be used to extend a general exploratory search from
one object to another until something incriminating at last
emerges. Also, the Court held that since the marijuana bricks
were wrapped in a newsprint, they were not in “plain view” as
the contents were not obvious from the outside. (People v.
Salanguit, supra.)

* Only the articles particularly described in the warrant may be


seized; no other property may be taken, unless the “plain view”
doctrine can be validly invoked.

V. Section 5, Examination of complainant; record. – The judge must, before


issuing the warrant, personally examine in the form of searching questions
and answers, in writing and under oath, the complainant and the witnesses he
may produce on facts personally known to them and attach to the record their
sworn statements, together with the affidavits submitted.

Section 6, Issuance and form of search warrant – If the judge is satisfied


of the existence of facts upon which the application is based or that there is
probable cause to believe that they exist, he shall issue the warrant, which
must be substantially in the form prescribed by the Rules.

 Basis of Probable Cause; In Search Warrants Personal


Knowledge
- In the issuance of search warrants, probable cause must be
shown to be within the personal knowledge of the complainant
or the witnesses he may produce and not based on mere
hearsay (Prudente vs. Dayrit, supra), in order to convince the
judge, not the individual making the affidavit and seeking the
issuance of the warrant of the existence of a probable cause.
(Alvarez v. Court of First Instance, 64 Phil. 33; Burgos, Sr. v. Chief of
Staff, supra.; 20th Century Fox Film Corp. vs. Court of Appeals, supra.;
Silva vs. RTC of Negros Oriental, G.R. No. 81756, October 21, 1991)

 Insufficiency of Affidavits
- Mere affidavits of the complainant and his witnesses are not
sufficient. The examining Judge has to take depositions in

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writing of the complainant and the witnesses he may produce
and to attach them to the record. Such written deposition is
necessary in order that the Judge may be able to properly
determine the existence or non-existence of the probable cause,
to hold liable for perjury the person giving if it will be found later
that his declarations are false. (Mata v. Bayona, 128 SCRA 388)
- Search warrants are not issued on loose, vague or doubtful basis
of fact, nor on mere suspicion or belief. The facts recited in an
affidavit supporting the application for a search warrant must be
stated with sufficient definiteness, so that, if they are false,
perjury may be assigned on the affidavit. Hence, affidavits which
go no further than to allege conclusions of law, or of fact, are
insufficient. (Quintero v. National Bureau of Investigation, 162 SCRA
483)

- Personal knowledge of witness - not necessarily the applicant is


sufficient; Alvarez test of sufficiency of deposition reiterated;
(People v. Tee, G.R. No.140546-47, January 20, 2003 [En Banc])

- Presumption of regularity in determination of probable cause; as


long as there is substantial basis for that determination;

- Substantial basis means that the questions of the


examining judge brought out such facts and circumstances as
would lead a reasonably discreet and prudent man to believe
that an offense has been committed, and the objects in
connection with the offense sought to be seized are in the place
sought to be searched. (People v. Tee, supra.)

 Mere Information Insufficient


- A mere statement that as a result of their continuous surveillance
for several days, they gathered informations from verified
sources that the holders of the said firearms and explosives are
not licensed to possess them is insufficient. (Prudente v. Dayrit,
supra.) but Personal knowledge of witness- not necessarily the
applicant is sufficient (People v. Tee, supra.).

* Reason for Rule


- The rationale of the requirement, is to provide a ground for a
prosecution for perjury in case the applicant’s declarations are
found to be false. Where his application, standing alone, is
insufficient to justify the issuance of the warrant sought. It is
necessary for the witness themselves, by their own personal
information, to establish the applicant’s claims. (Roan v. Gonzales,
145 SCRA 6)

 Presumption of Regularity
- The presumption of regularity in determination of probable cause;
as long as there is substantial basis for that determination is
sufficient. Substantial basis means that the questions of the
examining judge brought out such facts and circumstances as
would lead a reasonably discreet and prudent man to believe that

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an offense has been committed, and the objects in connection with
the offense sought to be seized are in the place sought to be
searched. Alvarez test of sufficiency of deposition reiterated;
(People v. Tee, supra.)

 PERSONAL KNOWLEDGE BASED ON CONFIDENTIAL


INFORMATION BUT CONFIRMED BY SURVEILLANCE AND
INVESTIGATION SUFFICIENT

- Petitioner contends that the items allegedly seized from his


residence are inadmissible as evidence because the search
warrants issued against him failed to comply with the
constitutional and statutory requirements for the issuance of a
valid search warrant. Specifically, petitioner claims that said
warrants were defective on the grounds that: (1) NBI Agent
Timoteo Rejano who applied for the issuance thereof had no
personal knowledge of the facts on which the warrants were
based; and (2) subject warrants failed to particularly describe
the place to be searched because there are two houses located
in the address stated in the said warrants.

The contentions are without merit. n determining probable


cause in the issuance of a search warrant, the oath required
must refer to the truth of the facts within the personal
knowledge of the applicant or his witnesses, because the
purpose thereof is to convince the committing magistrate, not
the individual, making the affidavit and seeking the issuance of
the warrant, of the existence of probable cause. Search
warrants are not issued on loose, vague or doubtful basis of
fact, nor on mere suspicion or belief.

In the case at bar, NBI Agent Timoteo Rejano who applied for
the issuance of Search Warrant Nos. 56-93 and 57-93, had
personal knowledge of the circumstances on which the warrants
were based. Admittedly, Rejano's knowledge of petitioner's
illegal possession of firearms and prohibited drugs came
from a confidential informant, and therefore, initially
hearsay. Nevertheless, the surveillance and investigation
he conducted on the basis of said confidential information
enabled him to gain personal knowledge of the illegal
activities of petitioner. Hence, his testimony was sufficient
justification for the examining judge to conclude that there
was probable cause for the issuance of a search warrant.
(PEDRO CUPCUPIN vs. PEOPLE OF THE PHILIPPINES. G.R. No.
132389, November 19, 2002 [392 SCRA 203])

 Time of application in relation to alleged offense considered in


determination of probable cause.
- In Asian Surety & Insurance Co., Inc. vs. Herrera, 54 SCRA
312, the Supreme Court observed that the offenses alleged took
place from 1961 to 1964, and the application for search warrant
was made on October 27, 1965. The time of the application is
so far remote in time as to make the probable cause of doubtful
veracity and the warrant vitally defective. Thus, Mr. Joseph
Varon, an eminent authority on Searches, Seizures and
Immunities, has this to say on this point:

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The following general rules are said to apply to affidavits for
search warrants:
(1) xxx
(2) Such statement as to the time of the alleged
offense must be clear and definite and must not
be too remote from the time of the making of the
affidavit and issuance of the search warrant.
(3) There is no rigid rule for determining whether the
stated time of observation of the offense is too
remote from the time when the affidavit is
made or the search warrant issued, but,
generally speaking, a lapse of time of less
than three weeks will be held not to invalidate
the search warrant, while a lapse of four
weeks will be held to be so.
A good and practical rule of thumb to measure the
nearness of time given in the affidavit as to the date
of the alleged offense, and the time of making the
affidavit is thus expressed: “The nearer the time at
which the observation of the offense is alleged to
have been made, the more reasonable the
conclusion of establishment of probable cause. ”
[Italics Ours]

 Need of Competent Proof of Particular Acts for Specific


Offense
- Need of presentation of master tapes of the copyrighted film from
which pirated copy allegedly copied (20th Century Fox Films
Corporation v. Court of Appeals, supra.) This does not,
however, rule out the use of other classes of evidence tending to
prove the factum probandum (Columbia Pictures v. Court of
Appeals, 261 SCRA 144 [1996]). All that is needed is to establish
the existence of probable cause sufxficient to justify the issuance
of a search warrant with the best evidence that could be obtained
under the circumstances (People v. Judge Estrada G.R. No. 124461
September 25, 1998).

VI. Execution and Enforcement

A. Manner of Conducting Search and Seizure

1. Right to break door or window to effect search. — The officer, if


refused admittance to the place of directed search after giving notice
of his purpose and authority, may break open any outer or inner door
or window of a house or any part of a house or anything therein to
execute the warrant or liberate himself or any person lawfully aiding
him when unlawfully detained therein. (Sec. 7.)

2. The knock and announce rule. — Officers must first announce his
purpose.

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Exceptions:
1. The destruction of evidence exception — reasonable cause to
believe that the notice would endanger the successful execution of the
warrant.
2. The danger to person exception.
3. The useless gesture exception — when it is evident from the
circumstances that the authority and purpose of the police is already
known to those within the premises. (2 La Fave, pp. 280-286)

B. Authority to Break Open, Arrest & Search


Police officers are authorized to break down the door and enter the
premises of the building occupied by the so called Parliamentary Club.
When inside, they then had the right to arrest the persons presumably
engaged in a prohibited game, and to confiscate the evidence of the
commission of the crime. It has been held that an officer making an arrest
may take from the person arrested any money or property found upon his
person, which was used in the commission of the crime or was the fruit of
the crime, or which may furnish the person arrested with the means of
committing violence or of escaping, or which may be used as evidence on
the trial of the case, but not otherwise. (People v. Veloso, supra.)

C. Search of house, room, or premise, to be made in presence of two


witnesses
No search of house, room, or any other premise shall be made except in
the presence of the lawful occupant thereof or any member of his family or
in the absence of the latter, in the presence of two witnesses of sufficient
age and discretion residing in the same locality. (Sec.7)
This requirement is mandatory to ensure regularity in the execution of the
search warrant. Violation of said rules is punishable under Article 130 of
the Revised Penal Code. (People v. Gesmundo, 219 SCRA 743 [1993])

D. Time of service
- The warrant must direct that it be served in the daytime, unless
the affidavit asserts that the property is on the person or in the
place ordered to be searched, in which case a direction may be
inserted that it be served at any time of the day or night. (Section
8, Rule 126)

General Rule: Search warrants must be served during the daytime.

Exception:
1) A search at any reasonable hour of the day or night, when the application
asserts that the property is on the person or in the place ordered to be searched,
in which case a direction may be inserted that it be served at any time of the day or
night. (People v. Court of Appeals, G.R. No. 117412, December 8, 2000; Section 8, Rule 126)

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2) If the judge is satisfied that the property is in the person or in the place ordered
to be searched, a direction may be inserted in the warrants that it be served at any
time of the day or night (Adm. Circular No. 13 dated October 1, 1985; People v. Court of
Appeals, supra.)

3) Where a search is to be made during the night time, the authority for executing
the same at that time should appear in the directions on the face of the warrant
otherwise a search and seizure made at nighttime is invalid (Asian Surety &Insurance
Co. Inc. v. Herrera, supra.)

Rationale:
The policy behind the prohibition of nighttime searches in the absence of specific
judicial authorization is to protect the public from the abrasiveness of official
intrusions. A nighttime search is a serious violation of privacy. (People v. Court of
Appeals, supra.)

 No exact time limit for duration of a search


- While it is required that the search must be at a reasonable hour the exact time
of the execution of a warrant should be left to the discretion of the law enforcement
officers. In judging the conduct of said officers, judicial notice may be taken not just
of the realities of law enforcement, but also the prevailing conditions in the place to
be searched. No exact time limit can be placed on the duration of a search (People
v. Court of appeals, supra.)

- Thus, where there is no showing that the search which began at 7:30 p. m.
caused an “abrupt intrusion upon sleeping residents in the dark” or that it caused
private respondent’s family such prejudice as to make the execution of the warrant
a voidable act the search is valid. The court took judicial notice that 7:30 p.m. in a
suburban subdivision in Metro Manila is an hour at which the residents are still up-
and-about. to hold said hour as an unreasonable time to serve a warrant would not
only hamper law enforcement, but could also lead to absurd results, enabling
criminals to conceal their illegal activities by pursuing such activities only at night
(People v. Court of Appeals, Supra)

E. Scope of Search

1. The described Place and Adjacent Area


The Supreme Court of the United States in United States vs. Ross, 456
U.S. 798, defined the scope of the search as follows:
A lawful search of fixed premises generally extends to the entire area in
which the object of the search may be found and is not limited by the
possibility that separate acts of entry or opening may be required to
complete the search. Thus, a warrant that authorizes an officer to search a
home for illegal weapons also provides authority to open closets, chests,
drawers, and containers in which the weapon might be found. A warrant to
open a footlocker to search for marijuana would also authorize the
opening of packages found inside. A warrant to search a vehicle would
support a search of every part of the vehicle that might contain the object
of the search. When a legitimate search is under way, and when its
purpose and its limits have been precisely defined, nice distinctions
between glove compartments, upholstered seats, trunks, and wrapped

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packages, in the case of a vehicle, must give way to the interest in the
prompt and efficient completion of the task at hand.

2. Search of Vehicles Does Not Include Entry to Private Premises


In People vs. Sciacca (45 N.Y. 2d 122, 408 N.Y.S. 2d 22, 379), where the
police, armed with a warrant which made no reference to any premises
and which authorized search of a certain vehicle, broke into a garage to
get at the vehicle. The court held “that a warrant to search a building does
not include authority to search vehicles at the premises. * * * The converse
is also true. Authority to search a vehicle does not include authority to
enter private premises to effect a search of a vehicle within those
premises.

3. Personal effects in described premises.


In Commonwealth vs. Platou (455 Pa. 258, 312 A. 2d 29 [1973]), where
police executing a warrant for narcotics at a described apartment
extended the search to two suitcases they knew belonged to the tenant’s
guest, the court concluded that on the facts presented the search of the
suitcases offended the Fourth Amendment’s directive that “no warrants
shall issue, but upon probable cause * * * particularly describing the place
to be searched, and the persons or things to be seized.” The police had no
knowledge of the existence of appellant, or of his property, prior to the
time they entered Wander’s apartment. A fortiori, neither did the issuing
magistrate. The warrant therefore could not possibly have described
appellant’s effects. If the officer executing the warrant, by his own choice,
could extend its reach by searching things not particularly described
therein, the constitutional prescription of particularity would be violated.

4. Vehicles on or near described premises


Ordinarily, a description in a warrant of a dwelling at a certain place is
taken to include the area within the curtilage of that dwelling, so that it
would cover a vehicle parked in the driveway rather than the garage. But
such a warrant would not cover a car parked nearby on a public street,
even if it were clear beyond question that the vehicle belonged to the
occupant of the described premises. (People v. Dumas, 9 Cal. 3d 871, 109 Cal.
Rptr. 304, 512 P. 2d 1208 [1973]; Sec. 4. [10]; C p. 324 W La Fave, supra)

F. Intensity of Search
- The permissible intensity of the search within the described premises is
determined by the description of the thing to be seized as the Supreme
Court has noted in a similar context, “the same meticulous investigation
which would be appropriate in a search for two small canceled checks
could not be considered reasonable where agents are seeking a stolen
automobile or an illegal still. (Harris v. Unites States, 331 U.S. 145)
- A search into closets, desks, boxes and other containers is permissible
only if at least one of the items described in the warrant as an object of the
search could be concealed therein.

- Invalid search or seizure of illegal drug in a hut that has not been proven
to be owned, controlled, or used by the appellant for residential or any
other purpose.

13
- Search and seizure incident to lawful arrest limited to the area within
which the person to be arrested can reach for a weapon or for evidence
that he or she can destroy (immediate control test). (People v. Estella, G.R.
Nos. 138539-40, January 21, 2003 [395 SCRA 553])

G. Receipt for the property.


The officer seizing property under the warrant must give a detailed
receipt for the same to the lawful occupant of the premises in whose
presence the search and seizure were made, or in the absence of such
occupant, must, in the presence of at least two witnesses of sufficient
age and discretion residing in the same locality, leave a receipt in the
place in which he found the seized property. (Sec. 11)

1) Delivery of property and inventory thereof to court


The officer must forthwith deliver the property seized to the judge who
issued the warrant, together with a true inventory thereof duly verified
under oath. (Sec. 12.)

2) Court Approval to Retain Seized Property


Approval by the court which issued the search warrant is necessary for
the retention of the property seized by the police officers; and only then
will their custody be considered custody of the court. Absent such
approval, the police officers have no authority to retain possession of
the marijuana and more so, to deliver the property to another agency,
like the NBI. (People vs. Gesmundo, 219 SCRA 743; Vide Tambasen
vs. People, G.R. No. 89103, July 14, 1995, 62 SCAD 679) In like
manner, only the court which issued the search warrant may order their
release, supra, citing Templo vs. De La Cruz, 60 SCRA 295 and
Pagkalinawan vs. Gomez, 21 SCRA 1275. This latter principle applies
only if no criminal case arising from the search warrant is filed in
another court.

IV. VALID WARRANTLESS SEARCHES and SEIZURES

Searches without a warrant are allowed in the following cases:

a) Search Incidental to a Lawful Arrest

- In in flagrante delicto arrests, the accused is apprehended at the


very moment he is committing or attempting to commit or has just
committed an offense in the presence of the arresting officer.
Emphasis should be laid on the fact that the search be incidental to a
lawful arrest. Therefore, it is beyond cavil that a lawful arrest must
precede the search of a person and his belongings. (People vs.
Aruta, 288 SCRA 626, 643 [1998]) Accordingly, for this exception to
apply 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; (2) such overt act is
done in the presence or within the view of the arresting officer.
(Concurring opinion of Justice Artemio V. Panganiban in People v. Doria, 301
SCRA 668, 729 [1999])

1. Property to be seized

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- The search incidental to a lawful arrest is limited to a search for:
a. Dangerous Weapons, or
b. Anything which may used as proof of the
commission of the offense

2. Extent and Scope of Warrantless Search

 Immediate Control Test

- Clearly, the search made by the police officers in the instant


case was incidental to a lawful arrest. Section 13, Rule 126 of
the Revised Rules of Criminal Procedure explicitly states that ‘a
person lawfully arrested may be searched for dangerous
weapons or anything which may be searched for dangerous
weapons or anything which may have been used or constitute
proof in the commission of an offense without a search warrant.”
Undoubtedly, appellant was lawfully arrested, caught as he was
in flagrante delicto as a result of a buy-bust operation conducted
by police officers.

A buy-bust operation is vastly different from an ordinary arrest.


In lawful arrests in the course of buy-bust operation, it becomes
both the duty and the right of the apprehending officers to
conduct warrantless search not only on the person of the
accused but also in the permissible area within his reach, i.e.,
that point which is within the effective control of the person
arrested, or that which may furnish him the means of committing
violence or of escaping. In other words, a warrantless search
incidental to a lawful arrest may extend beyond the person of
the one arrested to include the premises or surroundings under
his immediate control. (People v. Jerry Ting Uy, G.R. No. 144506-07,
April 11, 2002)

- Search and seizure incident to lawful arrest limited to the area


within which the person to be arrested can reach for a weapon
or for evidence that he or she can destroy (immediate control
test). (People v. Estella, supra.)

- Search on Person As Incident To Lawful Arrest vs


Terry Frisk or Pat Down Search For Weapons
The extent of a search incident to a lawful arrest is more
extensive than the extent of a Terry frisk, which is limited to a
pat down of his outer clothing for weapons as a measure of self-
protection during the brief Terry Stop. On the other hand, the
danger to an officer is far greater in the case of extended
exposure which follows the taking of a suspect into custody
(having been lawfully arrested) and transporting him to the
police station than in the relatively fleeting contact from the
typical Terry set-up. 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. It is the fact of the
lawful arrest which establishes the authority to search, and that
in case of a lawful custodial arrest a full search of the person is
not only an exception to the warrant requirement but is also a

15
reasonable search under the Fourth Amendment. (U.S. v.
Robinson, 414 U.S. Ct. 218 94 S. Ct. 467 38 L. Ed. 2d 427 [1973])

b) Moving Vehicles

Rationale:

- Warrantless search and seizure of moving vehicles are allowed


in recognition of the impracticability of securing a warrant under
said circumstances as the vehicle can be quickly moved out of
the locality or jurisdiction in which the warrant may be sought.
Peace officers in such cases, however, are limited to visual
inspection. When a vehicle is stopped and subjected to an
extensive, such would be constitutionally permissible only if the
officers made it upon probable cause, i.e., upon a belief,
reasonably arising out of circumstances known to the seizing
officer, that an automobile or other vehicle contains as item,
article or object which by law is subject to seizure and
destruction. (People v. Lacerna, 278 SCRA 561 [1997], cited in People
v. Libnao, 395 SCRA 407-415 [2003])

- A warrantless search of a moving vehicle is justified on the


ground that it is not practicable to secure a warrant because the
vehicle can be quickly moved out of the locality or jurisdiction on
which the warrant must be sought. Searches without a warrant
of automobiles is also allowed for the purpose of preventing
violations of smuggling or immigration laws, provided such
searches are made at orders or constructive borders like
checkpoints near the boundary line of the State. (Caballes v.
Court of Appeals, G.R. No. 136292, January 15, 2002; People v. Laptaje
397 SCRA 674, 690 [2003])

Scope of Search of Motor Vehicle

- Where the police officers did not merely conduct a visual search
or inspection of the vehicle but had to reach inside the vehicle,
lift the kakawati leaves and look inside the sacks before they
were able to see the cable wares, it cannot be considered as a
simple routine check (Caballes v. Court of Appeals, supra.)

- The physical intrusion of a part of the body of an agent, like his


head into the vehicle allowed him to see and smell things which
is beyond that portion of the vehicle which may be viewed from
outside and into the area protected by the Fourth Amendment
and is not permissible in the absence of probable cause (United
States v. Pierre cited in Caballes v. Court of Appeals, supra.)

- The fact that the vehicles looked suspicious simply because it is


not common for such to be covered with kakawati leaves does
no constitute “probable cause” as would justify the conduct of a
search without a warrant (Caballes v. Court of Appeals, supra.)

c) Consented Search

- It is extant from the records that accused-appellant did not


consent to the warrantless search and seizure conducted. While
the right to be secure from unreasonable search and seizure
may, like every right, be waived either expressly or impliedly,

16
such waiver must constitute a valid waiver made voluntarily,
knowingly and intelligently. The act of the accused-appellant in
allowing the members of the military to enter his premises and
his consequent silence during unreasonable search and seizure
could not be construed as voluntary submission or an implied
acquiescence, to warrantless search and seizure especially so
when the members of the raiding team were intimidatingly
numerous and heavily armed. His implied acquiescence, if any,
could not have been more than mere passive conformity given
under coercive or intimidating circumstances and is, thus,
considered no consent at all within the purview of the
constitutional guarantee. Consequently, herein accused-
appellant’s lack of objection to the search warrant and seizure is
not tantamount to a waiver of his constitutional right or a
voluntary submission to the warrantless search and seizure.
(People v. Compacion, 361 SCRA 540 [2002])

- A waiver, or consent cannot however, be presumed simply


because the accused failed to object to the search. To constitute
a waiver, it must appear, first, that the right exists; secondly, that
the person involved had knowledge, actual or constructive, of
the existence of such right; and lastly, that said person had an
actual intention to relinquish the right. The fact that the accused
failed to object to the entry into his house does not amount to a
permission to make a search therein. (People v. Burgos, 144 SCRA
1 [1986], cited in People v. Barros, G.R. No. 90640, March 28, 1994 [231
SCRA 557])

d) Plain View Doctrine

 Under the “plain view doctrine,” unlawful objects within the “plain
view” of an officer who has the right to be in the position to have
that view are subject to seizure and may be presented in
evidence. Nonetheless, the seizure of evidence in plain view
must comply with the following elements: (1) a prior valid
intrusion based on the valid warrantless arrest in which the
police are legally present in the pursuit of their official duties; (2)
the evidence was inadvertently discovered by the police who
had the right to be where they are; (3) the evidence must be
immediately apparent; and (4) “plain view” justified mere seizure
of evidence without further search. (People v. Rolando Aspiras, 376
SCRA 546)

 It is important to note Court’s holding that the “plain view


doctrine” cannot be used to expand a search authorized by a
warrant after its object has already been accomplished.
“Because the location of the shabu was indicated in the warrant
and thus known to the police operatives, it is reasonable to
assume that the police found the packets of shabu first. Once
the valid portion of the search warrant has been executed, the
“plain view” doctrine can no longer provide any basis for
admitting the other items subsequently found.” The doctrine
may not be used to extend a general exploratory search from
one object to another until something incriminating at last
emerges. (People v. Salanguit, 356 SCRA 683 [2001])

 Limitation on Plain View Seizure

17
- For the doctrine to apply, the following elements must be
present:
1) A prior valid intrusion based on the valid
warrantless arrest in which the police are legally
present in the pursuit of their official duties;
2) The evidence was inadvertently discovered by the
police who have the right to be where they are;
3) The evidence must be immediately apparent; and
4) Plain view justified mere seizure of evidence
without further search. (People v. Bolosa, G.R. No.
125754, December 22,1999, citing People v. Aruta, 288
SCRA 626, 637-638)

e) Searches of Vessels and Aircraft for Violation of Immigration, Customs,


and Drug Laws

- Search and seizure without search warrant of vessels and


aircrafts for violations of customs laws have been the traditional
exceptions to the constitutional requirement of a search warrant.
It is rooted on the recognition that a vessel and an aircraft, like
motor vehicles, can be quickly moved out of the locality or
jurisdiction in which the search warrant must be sought or
secured. Yielding to this reality, judicial authorities have not
required a search warrant of vessels and aircrafts before their
search and seizures can be constitutionally effected.

- The same exception ought to apply to seizures of fishing


vessels and boats breaching our fishery laws. These vessels
are normally powered by high-speed motors that enable them to
elude arresting ships of the Philippine Navy, the Coast Guard
and other government authorities enforcing our fishery laws.
(Hizon v. Court of Appeals, 265 SCRA 517 [1996])

 Other warrantless search and seizure under Special Laws

a. Section 80 of PD 705 Revised Forestry Code


of the Philippines
SEC. 80. Arrest, Institution of Criminal Actions. — A
forest officer or employee of the Bureau of Forestry shall
arrest even without warrant any person who has committed,
or is committing in his presence any of the offenses defined
in this Chapter. He shall also seize and confiscate, in favor of
the Government, the tools, and equipment used in
committing the offense, and the forest products cut, gathered
or taken by the offender in the process of committing the
offense. The arresting forest officer or employee shall
thereafter deliver within six (6) hours from the time of arrest
and seizure, the offender and the confiscated forest
products, tools and equipment to, and file the proper
complaint with, the appropriate official designated by law to
conduct preliminary investigations and file informations in
court.

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b. Search Under Customs Laws

Tariff and Customs Code authorizes Customs officials to


make arrests, search and seizure of any vessel, aircraft,
cargo, article, animal or other movable property, when the
same is subject to forfeiture or liable for any fine imposed
under the Tariff and Customs laws, rules and regulations
(Sec. 2205) and, may at anytime enter, pass through, or
search any land or enclosure or any warehouse, store or
other building not being a dwelling house. (Sec. 2208) A
dwelling house may be entered or searched only upon
warrant issued by a judge (or such other responsible officer
as may be authorized by law) upon sworn application
showing probable cause and particularly describing the
place to be searched and persons or things to be seized.
(Sec. 2209)

Exceptions: Dwelling of House, There Must be Search


Warrant
As enunciated in the leading case of Papa vs. Mago, 22
SCRA 857, in the exercise of the specific functions
aforecited, the Code does not mention the need of a search
warrant, unlike Section 2209 which explicitly provides that a
“dwelling house may be entered and searched only upon
warrant issued by a judge (or justice of the peace), upon
sworn application showing probable cause and particularly
describing the place to be searched and person or thing to
be seized.” Aware of this delineation, the Court in that case
expressed the considered view that “except in the case of
the search of a dwelling house, persons exercising police
authority under the customs law may effect search and
seizure without a search warrant in the enforcement of
customs laws.” (See also Salvador v. People, GR. No. 146706 July
15, 2005)

f) Under Exigent and Emergency Circumstances

- It is admitted that the military operatives who raided the Eurocar


Sales Office were not armed with a search warrant at that time.
The raid was actually precipitated by intelligence reports that
said office was being used as headquarters by the RAM. Prior
to the raid, there was a surveillance conducted on the premises
wherein the surveillance team was fired at by a group of men
coming from the Eurocar Building. When the military operatives
raided the place, the occupants thereof refused to open the door
despite requests for them to do so, thereby compelling the
former to break into the office. The Eurocar Sales Office is
obviously not a gun store and is definitely not an armory or
arsenal which are the usual depositories for explosives and
ammunition. It is primarily and solely engaged in the sale of
automobiles. The presence of an unusual quantity of high-
powered firearms and explosives could not be justifiably or even
colorably explained. In addition, there was general chaos and
disorder at that time because of simultaneous and intense firing
within the vicinity of the office and in the nearby Camp

19
Aguinaldo which was under attack by the rebel forces. The
courts in the surrounding areas were obviously closed and for
that matter, the building and houses therein were deserted.
Under the foregoing circumstances, it is our considered opinion
that the instant case falls under one of the exceptions to the
prohibition against warrantless search. (People v. De Gracia, 233
SCRA 716)

g) Stop and Frisk Rule

- This concerns the right of a police officer to stop a citizen on the


street, interrogate him, and pat him for weapons. In the
landmark case of Terry vs. Ohio, 392 U.S. 1, the ruling in which
was eventually adopted in several cases in the Philippines, five
conditions are required to justify the right of a police officer to
frisk citizens on the street, i.e., (1) unusual conduct to lead the
police to reasonably conclude that criminal activity may be
afoot; (2) the person with whom the police is dealing may be
armed and dangerous; (3) in the course of the frisk, the
policeman identifies himself as an officer of the law; (4) the
police officer makes a reasonable inquiry; and (5) nothing in the
initial stages of the encounter seems to dispel reasonable fear
of his own safety. (Manalili v. Court of Appeals, 280 SCRA 400 [1997])

h) Checkpoints

- This Court has ruled that not all checkpoints are illegal. Those
which are warranted by the exigencies of public order and are
conducted in a way least intrusive to motorists are allowed. For,
admittedly, routine checkpoints do intrude, to a certain extent,
on motorists’ right to “free passage without interruption,” but it
cannot be denied that, as a rule, it involves only a brief
detention of travellers during which the vehicle’s occupants are
required to answer a brief question or two. For as long as the
vehicle is neither searched nor its occupants subjected to a
body search, and the inspection of the vehicle is limited to a
visual search, said routine checks cannot be regarded as
violative of an individual’s right against unreasonable search. In
fact, these routine checks, when conducted in a fixed area, are
even less intrusive. (People v. Escaño, et al., 323 SCRA 754 [2000])

- A warrantless search of a motor vehicle is limited only to a


visual search thereof and its occupants. An extensive search
without a warrant can only be resorted to if the police
conducting the search have reasonable or probable cause to
believe before the search that either the motorist was a law
offender or that they would find the instrument or evidence
pertaining to the commission of a crime in the vehicle to be
searched. The existence of probable cause justifying the
warrantless search is determined by the facts of each case.
(People v. Balingan, G.R. No. 105834, February 13, 1995)

i) Airports

- Persons may lose the protection of the search and seizure


clause by exposure of their persons or property to the public in a

20
manner reflecting a lack of subjective expectation of privacy,
which expectation society is prepared to recognize as
reasonable. Such recognition is implicit in airport security
procedures. With increased concern over airplane hijacking and
terrorism has come increased security at the nation’s airports.
Passengers attempting to board an aircraft routinely pass
through metal detectors; their carry-on baggage, as well as
checked luggage are routinely subjected to x-ray scans. Should
these procedures suggest the presence of suspicious objects,
physical searches are conducted to determine what the objects
are. There is little question that such searches are reasonable,
given their minimal intrusiveness, the gravity of the safety
interests involved, and the reduced privacy expectations
associated with airline travel. Indeed travellers are often notified
through airport public address systems, signs, and notices in
their airline tickets that they are subject to search and, if any
prohibited materials or substances are found, such would be
subject to seizure. These announcements place passengers on
notice that ordinary constitutional protections against
warrantless searches and seizures do not apply to routine
airport procedures. (People v. Johnson, 348 SCRA 526 [2000])

- Another exception is a search made pursuant to routine airport


security procedure, which is authorized under Section 9 of R.A.
No. 6235. (People v. Macalaba, G.R. Nos. 146284-86, January 20, 2003
[395 SCRA 461,470])

j) Inspection of Buildings and other Premises to enforce Fire Safety,


Sanitary, and other Building Regulations

NOTE: These instances however do not dispense with the requisite of probable
cause before a warrantless search and seizure can be lawfully conducted. In
warrantless search cases, probable cause must only be based on reasonable
ground of suspicion or belief that a crime has been committed or is about to be
committed. (People v. Sarap, G.R. NO. 132165, March 26, 2003 [399 SCRA 503])

V. REMEDIES
A. GENERAL PRINCIPLE: Consequence of illegal search and
seizure = Total Exclusionary Rule

The 1987 Constitution, however provides for two exclusionary rules:


(1) Total Exclusionary Rule
Any evidence obtained in violation of the search and seizure and
privacy of communication clause shall be inadmissible for any
purpose in any proceeding. (Sec. 3[2], Article III, 1987 Constitution)

(2) The Exclusionary Rules


The exclusionary rule in Section 12, which is not couched in the
same language but makes confession or admission obtained during
an investigation for the commission of an offense or in violation of

21
the right against self-incrimination inadmissible in evidence against
him.

 Four (4) situations covered by the Exclusionary Rule under


Article III of the 1987 Constitution
1. Violation of the search and seizure clause;
2. Violation of the right to the privacy and confidentiality of
private communications;
3. Violation of the rights of the accused during investigation by
the police; and
4. Violation of the right against self-incrimination.

 Fruit of poisonous tree doctrine in Philippine Courts. — The


principle adopted in this jurisdiction.
- The fruit of the poisonous tree doctrine first found
expression in this jurisdiction in People vs. Burgos, 144
SCRA 1 (1986), per Justice Hugo Gutierrez as follows: “If
an arrest without warrant is unlawful at the moment it is
made, generally nothing that happened or is described
afterward can make it lawful. The fruit of the poisonous
tree is necessarily also tainted.’’6

 Total Exclusionary Rule Applies Only to Illegal Search and


Seizure by the Government or Its Agents
The constitutional proscription against unlawful searches and
seizures therefore applies as a restraint directed only against the
government and its agencies tasked with the enforcement of the
law. Thus, it could only be invoked against the State to whom the
restraint against arbitrary and unreasonable exercise of power is
imposed. (People v. Marti, 193 SCRA 57 [1991])

B. How to Challenge Illegality and Seizure


The illegality of a search and seizure may be raised:
(a) in a motion to quash the search warrant (Roan vs. Gonzales, 145
SCRA 698), in which case, the motion to quash search warrant
must contain a notice of hearing and proof of service to the adverse
party (Meris v. Ofilada, A.M. No. RTJ 97, August 5, 1998) or
(b) in a motion to suppress evidence (Malaloan v. Court of Appeals, G.R.
No. 104879, May 06, 1994 [232 SCRA 249]); or
(c) in a special civil action for certiorari under Rule 65 (Burgos v. Chief of
Staff, supra.; Roan vs. Gonzales, supra); or
(d) by objecting to admissibility of evidence during the trial.

* In any event, the legality of the warrant of arrest must be raised


before the accused enters his plea (People v. Gallena, G.R. No. 123546,
6
Other cases where this phrase was used are Alih vs. Castro, 151 SCRA 279 (1987); People vs. Aminnudin,
163 SCRA 402, 410; in the dissenting opinion of Justice Cruz in People vs. Malsmtedt, 198 SCRA 401 and
Umil vs. Ramos, 202 SCRA 251, 284; People vs. Aminnudin, 163 SCRA 402, 410

22
July 2, 1998) otherwise, it is waived. (Andal v. People, G.R. No. 124933,
September 25, 1977; People v. Gastador, G.R. No. 123727, April 14, 1999;
People v. Atotado, G.R. No. 122966, March 25, 1999)

 Limited Scope of Motion To Quash Search Warrant


It has been held that the question of whether there was abuse in the
enforcement of the challenged search warrants is not within the scope
of a Motion to Quash, which is limited to the validity of the issuance of
the warrant. The manner of serving the warrant and of effecting the
search are not an issue to be resolved in a motion to quash the search
warrant. As aptly opined and ruled by the respondent Judge,
petitioners have remedies under pertinent, civil and administrative laws
for their problem at hand, which cannot be solved by their present
motion to quash.
Whether the places searched and objects seized are government
properties are questions of fact outside the scope of the petition under
consideration. The Court does not see its way clear to rule on such
issues lest it preempts the disposition of the cases filed by the
respondent NBI against the herein petitioners.
Considering that cases for Illegal Possession of Firearms and
Explosives and Violation of Section 3 in relation to Section 14 of
Republic Act No. 6539, otherwise known as the “Anti-Carnapping Act
of 1972,’’ have been instituted against the petitioners, the petition for
mandamus with preliminary and mandatory injunction to return all
objects seized and to restrain respondent NBI from using the said
objects as evidence, has become moot and academic. (Kho and
Alindogan v. Hon. Makalintal, supra.)

CUSTODIAL INVESTIGATION

I.

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