SEARCHES &

SEIZURES:
(RULE 126)
SEARCHES AND SEIZURES:
The right applies as a restraint
directed only against the
government and its agencies
tasked with the enforcement of
the law (People vs. Marti, 193
SCRA 57)
A bus conductor found a man’s bag left in the
bus. When he opened it, he found inside a
calling card with the name Boy Bato and
address, and a small plastic bag containing a
white powdery substance. He brought it to the
NBI for lab exam and it was found to be shabu.
Boy Bato was charged of illegal possession of
dangerous drugs. Boy Bato contends that the
shabu is inadmissible in evidence.
ANSWER:
Admissible. It was not the NBI but the bus
conductor who opened the bag and brought it
to the NBI.
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.  (Rule
126, Sec. 1)
Personal property that may be seized
pursuant to the search warrant are:
(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.  (Rule
126, Sec. 3)
 PERMISSIBLE AREA OF SEARCH
(1)     Person of the accused;
(2)     Premises or surroundings within the accused's
immediate control

PURPOSE
(1)  A weapon held by the arrested person may be
turned against his captor; and
(2)  The accused may destroy the proof of the crime
if the arresting officer has to first apply for a search
warrant.

LIFETIME OF SW

10 days.
 PROCEDURE
 
(1)  Admittance to the place of directed search
 
The officer, upon reaching the place of directed
search, must give notice of his purpose and
authority to conduct the search to the lawful
occupant of the place.
 
If the officer is refused admittance, he 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.  (Rule
126, Sec. 7)
(2)     Conduct of search
 
Upon admittance, the officer must
conduct the search in the presence of the
lawful occupant of the premises 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.  (Rule 126, Sec.8)  Failure to
comply with this requirement invalidates
the search.  (People v. Gesmundo)
(3)     Seizure of property and issuance of
receipt for the property seized
 
Once the property described in the warrant has
been found and seized, the officer must give a
detailed receipt for such property to the
lawful occupant of the premises.  In the
absence of such occupant, the officer must
leave a receipt in the place in which he found
the seized property in the presence of at least
two witnesses of sufficient age and discretion
residing in the same locality.  (Rule 126, Sec.
11)
(4)     Delivery of property and inventory to
the court
 
The officer must then make a return on
the warrant and deliver forthwith the
property seized to the judge who issued
the warrant, together with a true inventory
thereof duly verified under oath.  The judge
shall ascertain whether the seizing officer
complied with Rule 126, Sec. 11 (as
regards issuance of the detailed receipt). 
The return on the search warrant shall be
filed and kept by the custodian of the
log book on search warrants who shall
enter therein the date of the return, the
result, and other actions of the judge. 
(Rule 126, Sec. 12)
 
A violation of these requirements shall
constitute contempt of court.  (Rule 126,
Sec. 12)
Who May Issue a SW or WOA:
Only a JUDGE

Exception: Administrative authorities may issue

orders of arrest only for the purpose of carrying
out a final finding of a violation of law, but not
for the sole purpose of investigation or
prosecution (Morano vs. Vivo, 20 SCRA 562).
Examples:1) Deportation cases (Qua Chee
Gan vs. Deportation Board, 33 SCRA 413)
2) Contempt cases (Ligot, Chavez)
INSTANCES OF VALID WARRANTLESS
SEARCH:

1. Consented Warrantless Search: Silence is

not construed as consent (People vs. Barros,
231 SCRA 557); Also, no waiver is presumed
where the person merely submits to the
arresting officer in manifestation of his respect
for authority; or where he allows entry into his
home as a sign of hospitality (Magoncia vs.
Palacio, 80 Phil. 770)
Since the right is a personal one, waiver must
be given by the person whose right is violated.
2. PLAIN VIEW DOCTRINE

Under the plain view doctrine,

objects falling in the plain view
of an officer who has a right to
be in the position to have that
view are subject to seizure and
may be presented as evidence.
2. Plain-View Doctrine
Elements (PIWIT):
1.Prior valid intrusion based on the valid warrantless
arrest in which the police are legally present in the pursuit
of their official duties
2.Evidence inadvertently discovered by the police who
had the right to be where they are
3.Evidence immediately apparent
4.“Plain view” justified the seizure of the evidence without
any further search (People vs. Evaristo, 216 SCRA 413)
5.Thing itself is illegal or prohibited.
 SEARCH OF LUGGAGE INSIDE VEHICLE

A valid search of the luggage inside the vehicle would

require the existence of probable cause. On the other
hand, no probable cause is required if the accused
voluntarily opens the trunk and allows the search, as
waiver of one’s right against unreasonable search and
seizures is one of the exceptions.

In the absence of probable cause, the authorities:

(a) cannot compel the passengers to step out of the car;
(b) cannot conduct bodily searches; and
(c) cannot compel the motorist to open the trunk or glove
compartment of the car, or any package contained
therein.
Question:

Suppose there is a warrant for the search of the

premises of Manny Nira for shabu but they find
VCD/DVD tapes which are pirated.  Can they seize
the tapes which are displayed?
ANSWER:

No.  Plain view doctrine presupposes that the

criminal nature of the articles is clear at that point
without further search.  Perhaps, if they were
armalites, yes, because Manny Nira cannot
possibly be licensed to have an armalite as he is
not a soldier/policeman.
3. Stop and Frisk or Terry Search. Limited protective
search of other clothing for weapons (Malacat vs. CA,
283 SCRA 159) It is conducted w/o warrant and
designed to determine the identity of suspicious
individuals or to maintain the status quo while the police
are obtaining more information. (Posadas v. CA, 188
SCRA 288) Ex. Holding one’s stomach (P.P. v. Mingote)
4. Incident to a Lawful Arrest
1.A person lawfully arrested may be searched without a
warrant (i) for dangerous weapons or (ii) anything which
may have been used or constitute proof in the
commission of the offense (Sec. 13, Rule 126, ROC)
2.Must be (i) contemporaneous to the arrest and (ii)
made within the arrestee’s area of immediate control
(People vs. Che Chun Ting, Mar. 21, 2000)
5. Search of Moving Vehicles
1.Because they can quickly move out of the
jurisdiction before a warrant could be secured.
Example, a fish vessel violating fishery laws
(Roldan vs. Arca, 65 SCRA 336)
2.But the warrantless search shall be valid only if
the officers conducting the same had probable
cause (People vs. Aruta, supra)
3.Checkpoints are valid as long as (i) the inspection
is limited to a visual search and (ii) neither the
vehicle itself nor the occupants are subjected to a
search. (iii) An extensive search is allowed only if
the officers have probable cause (Valmonte vs. De
Villa, 185 SCRA 665)
 Why warrantless search and seizure allowed in
moving vehicles
Search and seizure relevant to moving vehicles are
allowed in recognition of the impracticability of
securing a warrant under said circumstances. In such
cases however, the search and seizure may be made
only 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 an item, article or object which by law is
subject to seizure and destruction.
 6. Customs Searches (Sec. 2203 Tariff and
Customs Code)
7. Exigent and Emergency Circumstances.
In People vs. De Gracia (233 SCRA 716),
there was a valid warrantless search for the
following reasons: (i) intelligence reports that
the Eurocar Sales office was being used as HQ
by RAM; (ii) surveillance revealed that there
were high-powered firearms in the office; (iii) it
was during the 1989 coup; (iv) all the courts in
the surrounding areas were closed; (v) the
raiding team had no opportunity to apply for a
warrant.
 8. Airport Search – Such search is minimal
intrusion to privacy compared to the explosion
of the airplane which may result in the loss of
lives of all passengers. (P.P. v. Mariposa)
 P.D. 1866 as Amended by R.A. No. 8294

A. Cal.32, .38 or 9 mm diameter or smaller

bores – Low-powered FAs

B. Bigger in diameter than the above

(Cal.40, .41, .44, .45); OR
Lesser calibered FA but powerful (.357
and .22 center-fire magnum); OR
With firing capability of full automatic &
by burst of 2 or 3 - High-powered FAs
 Use of Unlicensed FA

1.Homicide or Murder (Includes Other

Forms of Killing like Parricide) – Special
Aggravating Circumstance
2.Rebellion, Sedition, Attempted Coup
d’ etat (RSC) – Absorbed as element of
the crime
Defense in Illegal Possession of
FAs – If Crime other than Violation of
R.A. No. 8294 is committed.
 SALE OF DANGEROUS DRUGS
(Sec. 5, RA No. 9165)

Elements: (PP vs. Gutierrez, G.R. No.

179213, Sept. 3, 2009)

1.Identity of the Seller and Buyer

2.Object and Consideration
3.Delivery of the thing sold and payment
therefor
 ILLEGAL SALE OF DRUGS

The consummation of the illegal sale of drugs

may be sufficiently established even in the
absence of an exchange of money. The
payment could precede or follow delivery of the
drug sold. In a “buy-bust” operation, what is
important is the fact that the poseur-buyer
received the shabu from the offender and that
the same was presented as evidence in court.
(People v. Yang, GR No. 148077, Feb. 16,
2004)
 BUY-BUST OPERATION
In determining the credibility of a witness in
buy-bust operation, the “objective test” is utilized.
A complete picture detailing the buy-bust operation
– from the initial contact between the poseur-buyer
and the pusher, the offer to purchase the promise
or payment, until the consummation of the sale.
The manner by which it was done is subject to
strict scrutiny.
If there is failure to prove all material details,
accused can be acquitted. There is a presumption
of innocence which the prosecution must
overcome.
 ATTEMPTED SALE OF DRUGS

Without evidence that the accused

handed over the shabu to the poseur
buyer, he may not be convicted of
consummated sale of shabu. However,
where the accused intended to sell shabu
and shows the substance to the poseur-
buyer, he will be guilty of the crime of
attempted sale of shabu. (People v.
Adam, GR No. 143842, Oct. 13, 2003)
 POSSESSION OF DANGEROUS DRUGS
(Sec. 11, RA No. 9165)

Elements: (Dolera vs. P.P., G.R. No. 180693,

Sept. 4, 2009)

1.Accused was in possession of an item or

object identified to be prohibited or
regulated
2.Possession is not authorized by law
3.Accused was freely and consciously
aware of being in possession of DD
 CONSTRUCTIVE POSSESSION
It is not necessary that the
property to be searched or seized
should be owned by the person
against whom the warrant is issued; it
is sufficient that the property is within
his control or possession.  (Burgos v.
Chief of Staff, 133 SCRA 800)
 CHAIN OF CUSTODY RULE

Sec. 21(1), RA 9165 - physical inventory

- photograph
In the presence of the accused, a
representative of the media and the DOJ
and any elective public official
- required to sign the inventory and be
given a copy thereof
- DD must be submitted w/in 24 hrs from
confiscation to PDEA Lab for examination
 PRESUMPTION OF REGULARITY
Presumption of Regularity: Official duties of
police officers are presumed to have been
regularly performed
Exception: When Chain of Custody Rule was
tainted with irregularities (PP vs. Santos)
Exception to exception: As long as the integrity
and the evidentiary value of the seized items
are properly preserved by the apprehending
team. (PP v. Sta. Maria, GR 171019, Feb. 13,
2007 & PP v. Pringas, GR 175928, Aug. 31,
2007)
 MANDATORY DRUG TESTING
(Under RA No. 9165)
- The law requires mandatory, random,
suspicionless drug testing

1. Electoral Candidate for Pres., V-Pres.,

Senator, Congressman - Unconstitutional
2. Secondary & Tertiary Students – Valid
3. Employees in the Private Sector – Valid
4. Government Officials & Employees –
Valid
5. Accused - Unconstitutional
Reason for Validity/Unconstitutionality of
Drug Test:
1.Electoral Candidates – Increasing
qualifications under the Constitution
2.Students - Proliferation of DD in the country
that threatens the well-being of the people,
particularly the youth and school children
who usually end up as victims
3.Private Employees – Accompanied by
proper safeguards, particularly against
embarrassing leakages of test results
4.Gov’t Employees – high standard of ethics
in the public service
 Reason for Validity/Unconstitutionality of
Drug Test:

5. Accused – In the case of persons charged

with a crime before the prosecutor’s office, a
mandatory drug testing can never be random
or suspicionless. xxx To impose mandatory
drug testing on the accused is a blatant
attempt to harness a medical test as a tool for
criminal prosecution, contrary to the stated
objectives of RA 9165. It would violate a
person’s right to privacy. (SJS v. DDB, G.R.
No. 157870, Nov. 3, 2008, SC en banc)
 Sec. 12, Art. III, 1987 Constitution
(1) Any person under investigation for the
commission of an offense shall have the right to be
informed of his right to remain silent and to have
competent and independent counsel preferably of
his own choice. If the person cannot afford the
services of counsel, he must be provided with one.
These rights cannot be waived except in writing and
in the presence of counsel.

(2) No torture, force, violence, threat, intimidation, or

any other means which vitiate the free will shall be
used against him. Secret detention places, solitary,
incommunicado, or other similar forms of detention
are prohibited.
(3) Any confession or admission
obtained in violation of this or Section 17
hereof (right against self-incrimination)
shall be inadmissible in evidence against
him.

(4) The law shall provide for penal and

civil sanctions for violations of this
section as well as compensation to the
rehabilitation of victims of torture or
similar practices, and their families.
RIGHTS AVAILABLE
1. Right to remain silent
2. Right to counsel
3. Right to be informed of
such rights
EXCLUSIONARY RULE (aka
Fruit of the Poisonous Tree
Doctrine): Any evidence
obtained in violation of this or
the preceding section shall be
inadmissible for any purpose in
any proceeding (Sec. 3(2))
Fruit of the Poisonous Tree or
Exclusionary Rule. Once a primary
source (tree) is shown to have been
unlawfully obtained, any secondary or
derivative evidence (fruit) from it is also
inadmissible. Evidence illegally obtained
should not be used to gain other
evidence, because the originally illegally
obtained evidence taints all evidence
subsequently obtained (Nardone vs.
U.S.)
Question:

X Ampatuan, Y Ampatuan and Z Ampatuan were

accused of multiple murder. X turned state witness
against Y and Z and was accordingly discharged.
Among the evidence presented by the prosecution
was an extrajudicial confession made by X during the
custodial investigation, without counsel, implicating Y
and Z who, he said, together with him (X), committed
the crime. Y and Z objected that said confession was
inadmissible in evidence. Are Y and Z correct?
Answer:

No. Evidence is admissible. Under Sec. 12, the

confession is inadmissible only against the one who
confessed as this right is personal (People vs.
Balisteros, 237 SCRA 499)
END.