RULE 126 (SEARCH

AND SEIZURE) TO
RULE 127 March 11, 2020 Wed

(PROVISIONAL
RULE 126 – SEARCH AND SEIZURE

What is a search warrant?

WHAT IS A SEARCH WARRANT?
- 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. (S1
R126)
 MAY A JUSTICE OF A COLLEGIAL
COURT ISSUE A SEARCH WARRANT?
No. The power to issue search
warrants is exclusively vested with
trial judges in the exercise of their
judicial functions.
(Manly Sportswear Mfg. Inc. vs. Dadodette
Enterprises, G.R. No. 165306, Sept. 20,
2005; citing Sec. 2, Art. III, Constitution )
 Section 2, Article III, Constitution
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.
 What is the nature of a search warrant?
A search warrant is 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 however has no relation to
a civil process. 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. (United Laboratories, Inc. vs. Isip
[2005])
 Nature of a Search Warrant
United Laboratories, Inc. vs. Isip, G.R. No. 163858, June 28, 2005
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 the search warrant
proceedings to maintain, inter alia, the validity of a
search warrant issued by the court and the
admissibility of 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.
Pilipinas Shell Petroleum Corp. vs. Romars International Gases Corp., G.R.
No. 189669, February 16, 2015
An application for a search warrant is a “special
criminal process,” rather than a criminal action.
Proceedings for applications for search warrants
are not criminal in nature and thus, the rule that
venue is jurisdictional does not apply thereto.
Evidently, the issue of whether the application
should have been filed in RTC-Iriga or
RTC-Naga, is not one involving jurisdiction
because the power to issue a special criminal
process is inherent in all courts.
Laud vs. People, G.R. No. 199032, November 19, 2014
The Court observes that all the above-stated
requirements were complied with in this case.
As the records would show, the SW application
was filed before the Manila-RTC by the PNP xxx,
particularly describing the place to be searched
and the things to be seized in connection with
the heinous crime of Murder. Finding probable
cause therefor, Judge Peralta, xxx, issued SW
which, as the rules state, may be served in
places outside the territorial jurisdiction of the
said RTC.
CASE: The police filed with the RTC an application for search
warrant for theft following the complaint of PLDT that officers
and employees of Worldwide Web Corporation (WWC) were
using the facility of PLDT in order to redirect long-distance calls
to WWC’s customers to the damage and prejudice of PLDT.
The trial court issued search warrants but on a motion to
quash, the trial court later quashed the search warrants for
being general warrants. PLDT filed a MR but this was denied by
the trial court on the ground that PLDT did not get the
conformity of the public prosecutor as required by S5 R110.
PLDT appealed the order quashing the SW to the CA.
a) Does PLDT have the personality to challenge the quashal of
the search warrants?
b) Is appeal or a special civil action for certiorari the proper
mode to challenge the order quashing the SW?
a) Yes.
PLDT has the legal personality to file appeals from
the orders quashing the search warrant. The petition
filed by PLDT before the Court does not involve an
ordinary criminal action which requires the
participation and conformity of the City Prosecutor or
the Solicitor General when raised before appellate
courts. On the contrary, what is involved here is a
search warrant proceeding which is not a criminal
action, much less a civil action, but a special criminal
process. (HPS Software vs. PLDT [2012]; Worldwide
Web Corp. vs. People [2014])
CASE: The police filed with the RTC an application for search
warrant for theft following the complaint of PLDT that officers and
employees of Worldwide Web Corporation (WWC) were using the
facility of PLDT in order to redirect long-distance calls to WWC’s
customers to the damage and prejudice of PLDT.
The trial court issued search warrants but on a motion to quash,
the trial court later quashed the search warrants for being general
warrants. PLDT filed a MR but this was denied by the trial court on
the ground that PLDT did not get the conformity of the public
prosecutor as required by S5 R110. PLDT appealed the order
quashing the SW to the CA.
b) Is appeal or a special civil action for certiorari
the proper mode to challenge the order quashing
the SW?
b) Appeal is the appropriate mode.
Worldwide Web Corp. vs. People (2014)
Where a search warrant is applied for
and issued in anticipation of a criminal
case yet to be filed, the order quashing
the warrant ends the judicial process.
Hence, the remedy from such an order
is appeal and not certiorari.
 CASE: RTC Judge Paul issued a search
warrant against Tommy upon the
application of the NBI on the basis of his
finding of probable cause for a violation
of Section 2(b) of BP Blg. 33 for hoarding
large quantities of LPG in steel cylinders
belonging to Pryce Gases. The application
for SW was filed at the instance of Pryce
Gases through its letter to the NBI.
Tommy filed a motion to quash the
search warrant, raising therein, inter alia,
… Tommy then filed a SCA for certioriari with the CA.
The CA dismissed the petition on the ground that the
People of the Philippines was not impleaded and no
copy of the petition was served on the OSG. Tommy
filed a MR arguing that it was premature to implead the
People as respondents because no criminal case had
yet been filed against him with only the application for
the issuance of the search warrant having been made;
and that serving the copy of the petition on the OSG
pursuant to S3 R46 was not indispensable.
Nevertheless, he attached to his MR the affidavit of
service attesting that the copy of the petition and the
MR were served on the OSG by registered mail…
… The CA denied the Tommy’s MR on the
ground that although Tommy had served
on the OSG copies of the petition and the
MR, he did not amend the petition in order
to implead the People as respondents.
Was Tommy correct in arguing that his
petition for certiorari did not need to
implead the People because there was yet
no criminal action commenced in court?
No.
Impleading the People in the petition for certiorari did
not depend on whether or not an actual criminal action
had already been commenced in court against the
petitioner. It cannot be denied that the search warrant in
question had been issued in the name of the People, and
that fact rendered the People indispensable parties in the
special civil action for certiorari brought to nullify the
questioned orders of RTC Judge Paul. The impleading is
further expressly demanded in S3 R46. Every search
warrant is applied for and issued by and under the
authority of the State, regardless of who initiates its
application or causes its issuance.
 … The CA denied the petitioner’s MR
on the ground that although the
petitioner had served on the OSG
copies of the petition and the MR, he
did not amend the petition in order
to implead the People as
respondents.
Did the CA act properly in dismissing
the petition for certiorari?
Yes.
Te vs. Breva (2015)
The petitioner could have quickly rectified his
omission by the immediate amendment of the
petition. However, although made aware of the
omission as a fatal defect, he did not cause the
amendment but continued to ignore the need to
amend. He thereby exhibited his adamant
refusal to recognize the People as indispensable
parties, which impelled the CA to dismiss the
petition.
SEARCH WARRANT VS. WARRANT OF
ARREST
Search Warrant (Rule 126) Warrant of Arrest (Rule
113)
A search warrant is an
order in writing issued in
the name of the People of Arrest is the taking of
the Philippines., signed by a person into custody
a judge and directed to a
peace officer, commanding in order that he may
him to search for personal be bound to answer
property described therein for the commission of
and bring it before the
court (S1 R126). an offense (S1 R113).
 Search Warrant (Rule 126) Warrant of Arrest (Rule 113)

Requisites:
Requisites:
A search warrant shall not
issue except upon probable Within 10 days from the filing
cause in connection with one of the complaint or
specific offense to be information, the judge shall
determined personally by the personally evaluate the
judge after examination under
oath or affirmation of the resolution of the prosecutor
complainant and the witness and its supporting evidence.
he may produce, and If he finds probable cause, he
particularly describing the shall issue a warrant of
place to be searched and the arrest. (S5 R112)
things to be seized which may
be anywhere in the Philippines
(S4 R126)
 Search Warrant (Rule 126)
Search or seizure without warrant, when
lawful
(a)Consented search,
(b)As an incident to a lawful arrest,
(c) Searches of vessels and aircrafts for
violation of immigration, customs and
drug laws,
(d)Searches of moving vehicles,
(e)Searches of automobiles at borders or
constructive borders,
(f) Where the prohibited articles are in
plain view,
(g)Searches of buildings and premises to
enforce fire, sanitary and building
regulations,
(h)Stop and frisk operation
(i) Exigent and emergency circumstances
in times of war and within the area of
military operation
Warrant of Arrest (Rule 113)
Arrest without warrant, when lawful:
(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 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 xxx.
Distinguish a search warrant from a warrant of
arrest.
A search warrant is for the seizure of personal
property while a warrant of arrest is for the
seizure of a person.

A search warrant may issue even if there is no

criminal case filed in court, while a warrant of
arrest may issue only in connection with a
criminal case filed in court.
Where shall an application for a search warrant 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 crime’s commission is known,
or any court within the judicial region where the warrant
shall be enforced.
(c) However, if the criminal action has already been filed,
the application shall be made only in the court where the
criminal action is pending (S2 R126).
A search warrant was issued by the RTC of Manila.
May the search warrant be enforced in Davao City?
Yes.
Malaloan vs. Court of Appeals (1994)
A search warrant is a judicial process, not
among the specified writs which are
enforceable only within the judicial region.
Hence, it is enforceable anywhere in the
Philippines.
What are the requisites for the issuance of a search warrant?
(a) There must be a probable cause.
(b) The probable cause must be determined
personally by the judge after examination under
oath or affirmation of the complainant and the
witnesses he may produce.
(c) The search warrant must particularly describe
the place to be searched and the things to be
seized.
(d) The search warrant shall issue in connection
with one specific offense only.
How shall the judge make the personal
determination of probable cause?
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. (S5 R126)
CASE: Convicted by the trial court of possession
of shabu, the accused Ogayon for the first time
on appeal in the CA argued that the search
warrant was null and void since there was
nothing in the records or evidence to show that
the judge undertook a searching personal
examination in writing and under oath of the
complainant and the witnesses. The CA ruled
however that the accused waived the objection
to the nullity of the search warrant when he
failed to raised it before the trial court, invoking
S14 R126. Was the CA’s ruling correct?
No.
Ogayon vs. People (2015)
The requirement to raise objections against
search warrants during trial is a procedural rule
established by jurisprudence. Compliance or
noncompliance with this requirement cannot in
any way diminish the constitutional guarantee
that a search warrant should be issued upon a
finding of probable cause. Ogayon’s failure to
make a timely objection cannot serve to cure
the inherent defect of the warrant…
Ogayon vs. People (2015)
…To uphold the validity of the void warrant
would be to disregard one of the most
fundamental rights guaranteed in our
Constitution. In the light of the nullity of the
search warrant, the search conducted on its
authority is likewise null and void. Under the
Constitution, any evidence obtained in violation
of a person’s right against unreasonable
searches and seizures shall be inadmissible for
any purpose in any proceeding. Ogayon should
be acquitted.
What are the personal property which may
be seized under the warrant?
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.
(c) Used or intended to be used as the
means of committing the offense. (S3
R126)
What are the exceptions to the rule that a search
or seizure must be authorized by a warrant?
The following are the exceptions wherein a
warrantless search may be validly made:
1. Search incidental to lawful arrest,
2. Consent or waiver,
3. Search of moving vehicle,
4. Check points,
5. Body checks in airports,
6. Plain view exception,
7. Stop and frisk
1) Search incidental to lawful arrest
A person lawfully arrested may be searched
for dangerous weapons or anything which
may have been used or constitute proof in
the commission of an offense without a
search warrant. (S13 R126). The scope
thereof should be limited to the area within
which the arrestee can reach for a weapon
or for evidence in order to destroy it.
(Chimel vs. California)
Search incidental to lawful arrest
The law requires that there first be a lawful
arrest before a search can be made. The
process cannot be reversed. (People vs.
Malmstedt)
In a buy-bust operation conducted to entrap a
drug pusher, the law enforcement agents may
seize the marked money found on the person
of the pusher immediately after the arrest
even without arrest and search warrants.
(People vs. Paco)
Buy-bust; presumption, evidence against
It is important to note that the presumption
that official duty has been regularly
performed, and the corresponding testimony
of the arresting officers on the buy-bust
transaction, can only be overcome through
clear and convincing evidence showing either
of two things: (1) that they were not properly
performing their duty, or (2) that they were
inspired by any improper motive. (People vs.
Tancinco [2014])
Search Incidental to LA vs. Plain View
The accused cannot claim that the evidence
obtained from a search conducted incident
to an arrest is inadmissible because it is
violative of the plain view doctrine. The plain
view doctrine only applies to cases where
the arresting officer is not searching for
evidence against the accused, but
nonetheless inadvertently comes across an
incriminating object. (People vs. Calantia
[2014])
2. Consent or Waiver / Consented Search
If the person searched consented to the
warrantless search, then the same is
valid. However, silence or implied
acquiescence is not considered as a
consent to a warrantless search. The
right against a warrantless search may
be waived but the waiver must be clear
and unequivocal, that is, no room for
doubt must be left.
Silence, not a consent
As the constitutional guarantee is not dependent
upon any affirmative act of the citizen, the courts
do not place the citizen in the position of either
contesting an officer’s authority by force, or
waiving his constitutional rights, but instead they
hold that a peaceful submission and silence of
the accused in a search or seizure is not a
consent or an invitation thereto, but is merely a
demonstration of regard to the supremacy of the
law. (People vs. Barros)
3. Search of a Moving Vehicle
The guaranty of freedom from unreasonable
searches and seizures is construed as
recognizing a necessary difference between a
search of a dwelling house or other stationary
structure in respect of which a search warrant
may readily be obtained and a search of a
moving vehicle where it is not practicable to
secure a warrant because the vehicle can be
quickly moved out of the locality or jurisdiction in
which the warrant must be sought. (Caroll vs.
United States)
Search of a Moving Vehicle

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 in which the warrant must
be sought. (People vs. Lo Ho Wong)
4. Checkpoint search
“Stop and search” without warrant at
military or police checkpoints have been
declared valid so long as it is required by
the exigencies of public order and
conducted in the least intrusive manner to
motorists. (Valmonte vs. de Villa)
A checkpoint search may either be a mere
routine inspection or it may involve an
extensive search…
Checkpoints
…For a mere routine inspection, the search is
normally permissible when it is limited to a mere
visual search, where the occupants are not
subjected to a physical or body search. On the other
hand, when the vehicle is stopped and subjected to
an extensive search, it would be constitutionally
permissible only if the officers conducting the
search had probable cause to believe before the
search that either the motorist is a law offender or
they will find the instrumentality or evidence
pertaining to a crime in the vehicle to be searched.
ROUTINE INSPECTIONS…
… are not regarded as violative of an individual’s right against
unreasonable search. The search which is normally
permissible:
(1)where the officer merely draws aside the curtain of a vacant
vehicle which is parked on the public fair grounds,
(2)simply looks into a vehicle,
(3)flashes a light therein without opening the car’s doors,
(4)where the occupants are not subjected to a physical or body
search,
(5)where the inspection of the vehicle is limited to a visual
search or visual inspection, and
(6)where the routine check is conducted in a fixed area.
(Caballes vs. CA [2002])
5. Body Checks in Airports
Search made pursuant to routine
airport security procedure, which is
allowed under Section 9 of R.A. No.
6235, constitutes another exception
to the proscription against
warrantless searches and seizures.
R.A. No. 6235 authorizes search for
prohibited materials or substances.
Section 9, R.A. No. 6235
Every ticket issued to a passenger by the
airline or air carrier concerned shall contain
among others the following condition printed
thereon: “Holder hereof and his hand-carried
luggage(s) are subject to search for, and
seizure of, prohibited materials or
substances. Holder refusing to be searched
shall not be allowed to board the aircraft,”
which shall constitute a part of the contract
between the passenger and the air carrier.
Strip search in the ladies’ room, justified
To limit the action of the airport security
personnel to simply refusing her entry into the
aircraft and sending her home (as suggested by
appellant), and thereby depriving them of ‘the
ability and facility to act accordingly, including to
further search without warrant, in light of such
circumstances, would be to sanction impotence
and ineffectivity in law enforcement, to the
detriment of society.’ Thus, the strip search in
the ladies’ room was justified under the
circumstances. (People vs. Canton [2002])
 6. Plain View Doctrine
Objects falling in plain view are subject
to seizure and may be introduced in
evidence. Harris vs. United States
Objects inadvertently falling in plain
view of an officer who has the right to
be in the position to have that view are
subject to seizure without warrant.
 Plain View Doctrine, elements
a) prior valid intrusion based on the valid
warrantless arrest in which the police are legally
present in the pursuit of their official duties;
b) the evidence was inadvertently discovered by
the police who had the right to be where they
are;
c) the evidence must be immediately apparent;
and d) “plain view” justified mere seizure of
evidence without further search. (People vs.
Aruta)
7. Stop and Frisk
Also known as “Terry search” is the right of a police
officer to stop a citizen on the street, interrogate him
and pat him for weapons and contraband whenever he
observes unusual conduct which leads him to conclude
that criminal activity may be afoot. (Terry vs. Ohio)
People vs. Sy Chua (2003)
The police officer must have a genuine reason, in
accordance with his experience and the surrounding
conditions, to warrant the belief that the person to be
searched has weapons or contraband concealed about
him.
Stop and frisk, justified
This is based on the conduct of the person, who acts
suspiciously, and when searched, such search would yield
unlawful items in connection with an offense, such as
unlicensed firearms, and prohibited drugs. Thus, it has
been held that a person who was carrying a bag and
acting suspiciously could be searched by police officers
and the unlicensed firearm seized inside the bag is
admissible in evidence being an incident of a lawful arrest.
Similarly, a person roaming around in a place where drug
addicts usually are found, whose eyes were red and who
was wobbling like a drunk, could be legally searched of his
person and the illegal drug seized from him is admissible
in evidence against him. (Manalili vs. CA)
CASE: In a buy-bust operation, the police operatives
arrested the accused and seized from him a sachet
of shabu and an unlicensed firearm. The accused
was charged in 2 informations, one for violation of
the Dangerous Drugs Act, and another for illegal
possession of firearms.
The accused filed an action for recovery of the
firearm in another court against the police officers
with an application for the issuance of a writ of
replevin. He alleged in his Complaint that he was a
military informer who had been issued a written
authority to carry said firearm. The police officers
moved to dismiss the complaint on the ground that
(a) Was seizure of the firearm
valid?
(a) Was seizure of the firearm
valid?
Yes.
The seizure of the firearm was
valid because it was seized in the
course of a valid arrest in a buy-
bust operation (S12 and S13,
R126). A search warrant was not
necessary.
(b) Was the denial of the motion
to dismiss proper?
(b) Was the denial of the motion to
dismiss proper?
No.
The court had no authority to
issue the writ of replevin whether
the firearm was in custodia legis
or not. The motion to recover the
firearm should be filed with the
court where the action is pending.
CASE: Police officers received a text message
that a Marvin Buya would be transporting
marijuana. They put up a check-point. A jeepney
was stopped and the driver signaled to the
policeman two passengers who were carrying
marijuana. Accused Victor Cogaed, one of the
indicated passengers, was asked to open his bag
and when he did, marijuana was found inside.
May the marijuana be admitted in evidence
against the accused?
No.
There was no valid search. The case would not
come under the “stop and frisk” exception to the
search warrant requirement. A basic criterion of this
exception would be that the police officer, with his or
her personal knowledge, must observe the facts
leading to the suspicion of an illicit act. It is the police
officer who should observe acts that would lead to a
reasonable degree of suspicion of a person. The police
officer should not adopt the suspicion initiated by
another person. This is necessary to justify that the
person suspected be stopped and reasonably
searched. Anything less than this would be an
infringement upon one’s basic right to security of
People vs. Cogaed (2014)
Cogaed was simply a passenger carrying a bag
and travelling aboard a jeepney. There was nothing
suspicious, moreover, criminal, about riding a jeepney
or carrying a bag. The assessment of suspicion was
not made by the police officer but by the jeepney
driver. It was the driver who signaled to the police that
Cogaed was “suspicious.”
The fact that Cogaed was the one who opened his
bag would not amount to a waiver of the Constitutional
right against unlawful search. The waiver must be
clear and unequivocal. Here, the act of opening the
bag was brought about by the directive of the police
officer, a person in authority and an intimidating
CASE: Accused Calantiao was chased and
arrested by the police after he had fired a gun
against them. Recovered from him was a bag
containing marijuana. Convicted of illegal
possession of drugs, he argues that the
marijuana could not be used against him as it
was not seized by virtue of the plain view
doctrine, the same being contained inside the
bag.
Was the accused’s contention correct?
 No.
Under S13 R 126, a person lawfully arrested may
be searched for dangerous weapons or for anything
which may be used in evidence without a search
warrant.
The marijuana was found in a black bag in
Calantiao’s possession and within his immediate
control. He could have easily taken any weapon from
the bag or dumped it to destroy the evidence inside it.
As the black bag containing the marijuana was in
Calantiao’s possession, it was within the permissible
area that the apprehending officers could validly
conduct a warrantless search.
People vs. Calantiao (2014)
Calantiao’s argument that the marijuana cannot
be used as evidence against him because its discovery
was in violation of the Plain View Doctrine is
misplaced. The doctrine is usually applied where a
police officer is not searching for evidence against the
accused, but nonetheless inadvertently comes across
an incriminating object xxx.
The PVD finds no applicability in Calantiao’s
situation because the police officers purposely
searched him upon his arrest. The police officers did
not inadvertently come across the black bag, which
was in Calantiao’s possession; they deliberately
opened it, as part of the search incident to Calantiao’s
Remedies from unlawful search and
seizure
Alternative remedies of the accused
adversely affected by a search warrant:
(a) Motion to quash the search warrant
with the issuing court; or
(b) Motion to suppress evidence
obtained by the unlawful search warrant
with the court trying the criminal case.
Remedies from unlawful search and
seizure
Notes:
The remedies are alternative, not cumulative.
If the motion to quash is denied, a motion to
suppress cannot be availed of subsequently.
If no motion to suppress evidence was filed,
the aggrieved party may still object to the
evidence so obtained when the same is
offered, invoking Sec. 3(2), Article III,
Constitution.
CASE: The NBI applied with the RTC of Makati City for
the issuance of a search warrant covering documents
and articles found in the offices of Maressa. The NBI
alleged that these documents and articles were being
used to a) violate the Securities Regulation
Code, and b) commit estafa under Article 315 of the
RPC. The court granted the application.
Subsequently, Maressa filed with the RTC of
Muntinlupa City a petition for prohibition and injunction
seeking to enjoin the NBI and the SEC from using the
seized items in prosecuting them.
Does the RTC of Muntinlupa have jurisdiction to
entertain the petition for prohibition and injunction?
 No.
The motion to quash a search warrant and to
suppress evidence obtained thereby should be filed
with the issuing court (where the criminal action has
not yet been instituted) pursuant to S14 R126.
SEC vs. Mendoza (2012)
The petition for prohibition and injunction that
respondents filed with the Muntinlupa RTC is actually
an action to suppress the use of the items seized
under the search warrant as evidence. Hence, the
petition should have been filed with the Makati RTC
which issued such warrant.
Describe the procedural device of a motion to
suppress evidence
Under American procedural law, a motion to
suppress evidence is a motion, usually a pretrial one or
a motion in limine, the purpose of which is to prevent
the prosecution from using or presenting during the
trial illegally obtained evidence. The advantage of a
motion to suppress is that the evidence would not go
to the jury and would not have any prejudicial effect
against the movant. Furthermore, if the motion to
suppress evidence is granted, the defense may file a
motion to dismiss the criminal case for lack of probable
cause and thereby avoid the agony and expense of a
trial.
Describe the procedural device of a motion to
suppress evidence
Under Philippine evidentiary law, the
admissibility of evidence may be assailed by objection
only after it has been offered in evidence. We have
however adopted the motion to suppress evidence
with respect to evidence obtained by virtue of an
unlawful search warrant. S14 R126. Hence the
evidence may be assailed even before the trial and
even before a criminal case is filed.
Section 14, Rule 126
XXX
BAR Q: The search warrant authorized the seizure of
“undetermined quantity of shabu.” During the service
of the search warrant, the raiding team also recovered
a kilo of dried marijuana leaves wrapped in newsprint.
The accused moved to suppress the marijuana leaves
as evidence for the violation of S11 of the
Comprehensive Dangerous Drugs Act of 2002 since
they were not covered by the search warrant. The
State justified the seizure of the marijuana leaves
under the “plain view” doctrine. There was no
indication of whether the marijuana leaves were
discovered and seized before or after the seizure of the
shabu. If you were the judge, how would you rule on
the motion to suppress?
 I would grant the motion to suppress.
A search warrant should particularly describe the
things to be seized (S2, Art. III, Const.; S2 R126). Any
evidence obtained in violation of S2, Art. III of the
Constitution shall be inadmissible for any purpose in
any proceeding. (Sec. 3(2), Article III, Constitution).
The marijuana was not particularly described or
even mentioned in the search warrant. Hence, its
seizure was unlawful and it shall be inadmissible for
any purpose in any proceeding.
 May the question of whether or not there was
abuse in the enforcement of a search warrant be
raised in a motion to quash?

No. In a motion to quash, what should be

assailed is the validity of the warrant’s issuance. The
manner of serving the warrant and of effecting the
search are not proper issues in a motion to quash. The
remedies against such abuse are through appropriate
penal, administrative or civil proceedings. (Kho vs.
Makalintal)
RULE 127 – PROVISIONAL REMEDIES
IN CRIMINAL CASES

May provisional remedies be

availed of in a criminal case?
Yes.
The provisional remedies in civil
actions, insofar as they are applicable,
may be availed of in connection with
the civil action deemed instituted with
the criminal action (S1, R127).
Necessarily, it would be the offended
party who may avail of the same
May the offended party avail of the provisional remedy of preliminary
ATTACHMENT against the accused?
Yes.
When the civil action is properly instituted in the criminal action as
provided in R111, the offended party may have the property of the
accused attached as security for the satisfaction of any judgment that
may be recovered from the accused in the following cases:
(a) When the accused is about to abscond from the Philippines,
(b) When the criminal action is based on a claim for money or
property embezzled or fraudulently misapplied or converted to the
use of the accused who is a fiduciary, or for willful violation of duty,
(c) When the accused has concealed, removed, or disposed of his
property, or is about to do so.
(d) When the accused resides outside the Philippines (non-resident).
S2 R127
What is the procedure to secure an
attachment?

Rule 57 on preliminary attachment

applies on the procedure to secure an
attachment in the cases authorized
under Rule 127.
Grounds upon which attachment may issue
At the commencement of the action or at any time before
entry of judgment, a plaintiff or any proper party may have
the property of the adverse party attached as security for
the satisfaction of any judgment that may be recovered in
the following cases:
a) In an action for the recovery of a specified amount of
money or damages, other than moral and exemplary, on a
cause of action arising from law, contract, quasi-contract,
delict or quasi-delict against a party who is about to depart
from the Philippines with intent to defraud his creditors;
b) In an action for money or property embezzled or
fraudulently misapplied or converted to his own use by a
public officer, xxx (S2, R57)
IMPORTANT NOTES
1. The provisional remedies under Rule 127 are
proper only where the civil action for the recovery of
civil liability ex delicto has not been expressly
waived or the right to institute such civil action
separately is not reserved, in those cases where
such reservation may be made.
2. Where the civil action has actually been
instituted, whether such action has been suspended
by the subsequent institution of the criminal action
(S2, R111) or may proceed independently of the
criminal action but may be applied for in the
separate civil action.