SEARCH AND SEIZURE

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.

WHAT IS A SEARCH
WARRANT?

> 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.

WHAT IS THE CONCEPT OF A

SEARCH WARRANT?

> It is a criminal process akin to a mode

of discovery
> It is a special and peculiar remedy,
which is drastic in nature

ARE SEARCH AND SEIZURES

PROHIBITED UNDER THE
CONSTITUTION?

> No. The constitutional guarantee

embodied in Article 3, Section 2 of the
Constitution is not a blanket prohibition
against all searches and seizures as it
operates only against unreasonable
searches and seizures

WHEN IS THE SEARCH OR

SEIZURE UNREASONABLE?

> A search and seizure is

unreasonable if it is made without a
warrant, or the warrant was invalidly
issued.
> In all instances, what constitutes
reasonable or unreasonable search or
seizure is a purely judicial question
determinable from a consideration of the
attendant circumstances.

WHAT ARE THE THREE

SITUATIONS WHEREIN THERE
MUST BE FINDING OF
PROBABLE CAUSE?

1. Probable cause in filing of an

information
> Facts and circumstances that
would engender a well-grounded
belief that a crime has been
committed and the person to be
charged is probably guilty thereof
2. Probable cause in the issuance of a
search warrant
> Facts and circumstances that
would lead a reasonable discreet and
prudent man to believe that there has
been a crime committed and the things
and objects connected to the crime
committed are in the place to be
searched
3. Probable cause in the issuance of a
warrant of arrest
> Facts and circumstances that
would engender a well-grounded
belief that a crime has been
committed and the person to be
arrested committed it

WHY ARE THE

REQUIREMENTS FOR THE
ISSUANCE OF A SEARCH
WARRANT MORE STRINGENT
THAN THE REQUIREMENTS
FOR THE ISSUANCE OF A
WARRANT OF ARREST?

> The right against unreasonable

search and seizure is a core right implicit
in the natural right to life, liberty and
property. Even in the absence of a
constitution, individuals have a
fundamental and natural right against
unreasonable search and seizure under
natural law.
> Moreover, the violation of the
right to privacy produces a humiliating
effect that cannot be rectified anymore.
> This is why there is no other
justification to speak of for a search,
except for a warrant.
> On the other hand, in a warrant
of arrest, the person to be arrested
can always post bail to prevent the
deprivation of liberty.

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 is known, 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.

WHERE SHOULD ONE FILE

AN APPLICATION FOR
SEARCH WARRANT?

> As a general rule, any court within

whose territorial jurisdiction a crime was
committed BUT 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 is
known, or any court within the judicial
region where the warrant shall be
enforced.
> For example, a drug syndicate keeps
his drugs in a warehouse in Pasay for
the reason that it has connections in
Pasay and can easily get a tip when
the police officers will file for a search
warrant. To avoid the drug syndicate
from getting a tip of the impending
search, the police officers apply for a
search warrant in Makati stating the
compelling reason.

> However, if the criminal action has

already been filed, the application shall
only be made in the court where the
criminal action is pending.

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.

WHAT MAY BE THE SUBJECT

OF A SEARCH WARRANT?

1. Subject of the offense;

2. Stolen or embezzled and other
proceeds, or fruits of the offense; or
3. Used or intended to be used as
the means of committing an offense.

IS IT NECESSARY THAT THE

PERSON NAMED IN THE
SEARCH WARRANT BE THE
OWNER OF THE THINGS TO BE
SEIZED?

> No, ownership is of no consequence.

> What is relevant is that the property
is connected to an offense.

Sec. 4. Requisites for issuing search

warrant. – A search warrant shall not
issue except upon probable cause in
connection with one specific offense to
be determined personally by the judge
after examination under oath or
affirmation of the complainant and the
witness he may produce, and particularly
describing the place to be searched and
the things to be seized which may be
anywhere in the Philippines.

WHAT ARE THE REQUISITES

OF A VALID SEARCH
WARRANT?

1. There must be probable cause—

facts and circumstances that would
engender a well-founded belief in a
reasonable prudent and discreet man that
a crime has been committed and the
things and objects to be seized can be
found in the place to be searched
2. Which must be determined by the
judge personally through searching
and probing questions—questions
not merely answerable by yes or no but
could be answered by the applicant and
the witnesses on facts personally known
to them
3. (Upon whom?) The complainant
and the witnesses he may produce are
personally examined by the judge, in
writing and under oath and affirmation
4. (Based on what?) The applicant and
the witnesses testify on facts personally
known to them
5. The probable cause must be in
connection with the specific offense
6. The warrant specified describes
the person and place to be searched
and the things to be seized
7. The sworn statement together with
the affidavits of the witnesses must be
attached to the record

WHAT IS THE PURPOSE FOR

THE PARTICULARITY OF
DESCRIPTION OF THE PLACE
TO BE SEARCHED AND THE
THINGS TO BE SEIZED?

> The evident purpose and intent of

this requirement is to limit the things to
be seized to those, and only those,
particularly described in the search
warrant—to leave officers of the law
with no discretion regarding what
articles they should seize, to the end
that unreasonable searches and seizures
may not be committed, that abuses may
not be committed.

Sec. 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.

WHEN IS THE AFFIDAVIT OR

TESTIMONY OF THE
WITNESS SAID TO BE BASED
ON PERSONAL KNOWLEDGE?

> The test is whether perjury could be

charged against the witness

WHAT ARE THE REQUISITES

OF THE PERSONAL
EXAMINATION THAT THE
JUDGE MUST CONDUCT
BEFORE ISSUING THE
SEARCH WARRANT?

1. The judge must examine the witness

personally
2. The examination must be under oath
3. The examination must be reduced
into writing in the form of searching
questions and answers

Sec. 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 these Rules.

WHAT IS A SCATTER SHOT

WARRANT?

> It is a warrant of arrest that is issued

for more than one offense
> It is void for the law requires that a
warrant of arrest should only be issued in
connection with one specific offense

A WARRANT WAS ISSUED FOR

THE SEIZURE OF DRUGS
CONNECTED WITH THE
VIOLATION OF THE
DANGEROUS DRUGS ACT.
IS THE WARRANT VALID?

> The warrant is valid

> Although there are many ways of
violating the Dangerous Drugs Act, it is
not a scatter shot warrant since it is in
connection with only one penal law

POLICE OFFICERS APPLIED

FOR A WARRANT TO SEARCH
DOOR #1 OF AN APARTMENT
COMPLEX. THE COURT
ISSUED THE WARRANT. WHEN
THEY WENT TO THE
APARTMENT COMPLEX, THEY
REALIZED THAT WHAT THEY
THOUGHT WAS DOOR #1 WAS
ACTUALLY DOOR #7. CAN
THEY SEARCH DOOR #7?

> No, what is controlling is what is

stated in the warrant, and not what the
peace officers had in mind, even if they
were the ones who gave it the description
to the court.
> This is to prevent abuses in the
service of search warrants

CAN THE POLICE OFFICER

SEIZE ANYTHING THAT IS
NOT INCLUDED IN THE
WARRANT?

> No, anything not included in the

warrant cannot be seized EXCEPT if its
mala prohibita, in which case, the
seizure is justified under the plain view
doctrine.
> Even if the object was related to the
crime, but it is not mentioned in the
warrant nor is it mala prohibita, it still
cannot be seized

POLICE OFFICERS WENT TO

THE HOUSE TO EXECUTE A
SEARCH WARRANT. THEY
FOUND A PISTOL ON THE
TABLE, BUT THE PISTOL
WASNʼT INCLUDED IN THE
SEARCH WARRANT. CAN
THEY SEIZE THE PISTOL?

> No, it is not mala prohibita and

they have no proof that it is
unlicensed.

WHAT SHOULD THE POLICE

OFFICER OR COURT TO DO
THINGS SEIZED ILLEGALLY?

> Anything seized illegally must be

returned to the owner unless it is mala
prohibita. In such a case, it should be
kept in custodia legis.

Sec. 7. 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 to
liberate himself or any person lawfully
aiding him when unlawfully detained
therein.

Sec. 8. Search of house, room, or

premises to be made in presence of two
witnesses. – No search of a house,
room, or any other premises 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,
two witnesses of sufficient age and
discretion residing in the same locality.

NOTE: The two witness rule only

applies in the absence of the lawful
occupants of the premises searched

PEACE OFFICERS RAIDED A

HOUSE, WHICH WAS
SUSPECTED TO BE A
FACTORY FOR ILLEGAL
DRUGS. DURING THE
RAID, 8 CHINESEMEN WERE
FOUND INSIDE WHO
COULDNʼT SPEAK ENGLISH
OR FILIPINO. THE CHINESE
WERE LOCKED INSIDE A
ROOM AND TWO
WITNESSES WHO WERE NOT
OCCUPANTS WERE USED
WHILE SEARCHING THE
HOUSE AND SEIZING THE
PROHIBITED DRUGS. VALID?

> No.
> The two-witness rule can only apply
when there is absence of the lawful
occupants of the premises searched.
> In this case, they locked the
occupants in a room while doing the
search and seizure and used 2
witnesses who werenʼt the occupants of
the premises.

Sec. 9. Time of making search. – The

warrant must direct that it be served in
the day time, 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.

WHEN SHOULD THE SEARCH

WARRANT BE EXECUTED?

> If possible, it should be executed

during the daytime
> But in certain cases, such as when
the things seized are mobile or are in the
person of the accused, it can be served
during nighttime

Sec. 10. Validity of search warrant. –

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

FOR HOW LONG IS THE

SEARCH WARRANT VALID?

> It is valid for 10 days, after which the

police officer should make a return to the
judge who issued it
> If the police officer doesnʼt make
a return, the judge should summon him
and require him to explain why no return
was made
> If the return was made, the judge
should determine if the peace officer
issued the receipt to the occupant of
the premises from which the things were
taken.
> The judge shall also order the
delivery to the court of the things seized.

IF THE WARRANT WAS

EXECUTED EVEN BEFORE THE
EXPIRATION OF THE 10-DAY
PERIOD, CAN THE PEACE
OFFICER USE THE WARRANT
AGAIN BEFORE IT EXPIRES?

> No, of the purpose for which it

was issued has already been carried
out, the warrant cannot be used anymore.
> The exception is if the search
wasnʼt finished within 1 day, the
warrant can still be used the next
day, provided it is still within the 10-
day period

Sec. 11. Receipt for the property

seized. – The officer seizing the
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.

WHAT IS THE DUTY OF THE

OFFICER WHEN HE SEIZES
THE PROPERTY?

> The officer seizing the 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