CONSTITUTIONAL LAW REVIEW Session 20 BILL OF RIGHTS SEARCHES AND SEIZURES Some Procedural Rules Requisites of a Valid Warrant:

b.) Determination of probable cause personally by a judge Issuance of a Search Warrant Section 4, Rule 126 of the Rules of Court requires that the judge must personally examine in the form of searching questions and answers, in writing and under oath, the complainants and any witness he may produce on facts personally known to them, and attach to the record their sworn statements together with any affidavits submtted. (Silva v. Presiding Judge) A search warrant proceeding 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 discovey 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. (Unilab v. Isip) The bill of rights does not make it an imperative necessity that the depositions be attached to the records of an application for a search warrant. The omission would not be fatal if there is evidence on record showing that such personal examination was conducted and what testimony was presented. (People v. Tee) c.) After examination, under oath or affirmation of the complainant and the witnesses he may produce. The personal examination must not be merely routinary or pro forma,but must be probing and exhaustive. The purpose of this rule is to satisfy the examining magistrate as to the existence of probable cause. (Nachura, ORPL) In Soliven v. Makasiar, the SC laid down the procedure in the issuance of a warrant of arrest: What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts. The evidence offerred by the complainant and his witnesses should be based on their own personal knowledge and not on mere information or belief. The oath required must refer to the truth of the facts within the personal knowledge of the applicant or his witnesses, because the purpose is to Session20 Consti review (Atty. Cubero) 1

convince the committing magistrate, not the individual making the affidavit and seeking the issuance of the warrant, of the existence of probable cause. (Cupcupin v. People) Reliable information was held insufficient. (Alvarez v. CFI) Evidence gathered and collated by our unit was anot sufficient. (Burgos v. Chief of Staff) In Mata v. Bayona, the SC held that mere affidavits of the complainant and his witnesses were not enough to sustain the issuance of a search warrant. Where the police officers acted not merely on the information given by the Thai Royal Police, but also conducted thorough surveillance on the accused, it was held that the police officers had personal knowledge. (People v. Woolcock) If the judge fails to determine probable cause in the form of searching questions before issuing a search warrant, it constitutes grave abuse of discretion. (People v. Delos Reyes) d.) Particularity of description According to the SC in People v. Tee, this requirement is primarily meant to enable the law enforcers serving the warrant to: 1.) readily identify the properties to be seized and thus prevent them from seizing the wrong items; and 2.) leave said peace officers with no discretion regarding the articles to be seized and thus prevent unreasonable searches and seizures.

It is also aimed at preventing violations of security of persons and property, and unlawful invasions of the sanctity of the home and giving them remedy against such usurpation when attempted. (People v. Damaso) General warrants are proscribed and unconstitutional. (Nolasco v. Pano) What the constitution seeks to avoid are search warrants of broad and general characterization or sweeping descriptions which will authorize police officers to undertake a fishing expedition to seize and confiscate any and all kinds of evidence or articles relating to an offense. (People v. Tee) Warrant of Arrest A warrant of arrest is said to particularly describe the person to be seized if it contains the name/s of the person/s to be arrested. If the name of the person to be arrested is not known, then a John Doe warrant may be issued. A John Doe warrant will satisfy the constitutional requirement of particularity of description, if there is some descriptio persona which will enable the officer to identify the accused. (Nachura, ORPL) However, in Pangandaman v. Casar, the SC held that warrants issued against 50 John Does none of whom the witnesses could identify, were considered as general warrants and thus void. Search Warrant A search warrant may be said to particularly describe the things to be seized when the description therein is as specific as the circumstances will ordinarily allow. (People v. Rubio) Failulre to specify detailed descriptions in the warrant does not necessarily make the warrant a general warrant the description of the property to be seized need not be technically accurate nor necessarily precise, and its nature will necessarily vary according to whether the identity of the property, or its character, is a matter of concern. (Kho v. Judge Makalintal) Session20 Consti review (Atty. Cubero) 2

Ex: An undetermined amount of marijuana was held to satisfy the requirement for particularity of description. A search warrant is severable. The general description of most of the documents in the warrant will not invalidate the entire warrant. Those items which are not particularly described may simply be cut of without destroying the whole warrant. (Uy v. BIR) Only the articles particulary described in the warrant may be seized. People v. Salanguit After showing the search warrant (for methampethamine hydrochloride and drugh paraphernalia) to the occupants of the house, Lt. Cortes and his group started searching the house. They found small heat-sealed transparent plastic bags containing a white crystalline substance, a paper clip box also containing a white crystalline substance, and two bricks of dried leaves which appeared to be marijuana wrapped in newsprint9 having a total weight of approximately 1,255 grams. The seizure of the marijuana was deemed unlawful. Place to be searched: The rule is that a description of the place to be searched is sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intended to be searched. For example, a search warrant authorized a search of Apartment Number 3 of a building at 83 Pleasant Street, Malborough, Massachusetts. As it turned out, there were five apartments in the basement and six apartments on both the ground and top floors and that there was an Apartment Number 3 on each floor. However, the description was made determinate by a reference to the affidavit supporting the warrant that the apartment was occupied by the accused "Morris Ferrante of 83 Pleasant Street, Malboro Mass." In this case, the location of accused-appellant's house being indicated by the evidence on record, there can be no doubt that the warrant described the place to be searched with sufficient particularity.(People v. Salanguit) In PICOP v. Asuncion, the search warrant issued to search the compound of petitioner for unlicensed firearms was held invalid for failing to describe the place with particularity, considering that the compound is made up of 200 buildings, 15 plants, 84 staff houses, 1 airstrip, 3 piers, 23 warehouses, 6 depots and 800 miscellaneous structures, spread out over 155 hectares. The place to be searched as described in the warrant cannot be amplified or modified by the peace officers own personal knowledge of the premises or the evidence which they adduced in support of their application for a warrant. (People v. CA) Persons to be searched The validity of the search warrant was upheld despite the mistake in the name of the persons to be searched, because the authorities conducted surveillance and a test-buy operation before obtaining the search warrant and subsequently implementing it. They had personal knowledge of the identity of the persons and the place to be searched, although they did not specifically know the names of the accused. (People v. Tiu Won Chua) However, the above case is different from what happened in the case of People v. Priscilla del Norte wherein the search warrant was issued against one Ising Gutierrez Diwa, residing in 275 North Service Road corner Cruzada St., Bagong Barrio, Caloocan City. Arrested in the house at the address named and eventually charged, was Priscilla del Norte, who claimed to be a residen tof 376 Dama de Noche, Caloocan City as later shown by the barangay certification and receipt evidencing rental payment. The authorities in this case did not conduct any prior surveillance. It was only when they implemented the warrant that they coordinated with barangay officials, and of the barangay officials informed the police officers that Ising Gutierrez Diwa and Priscilla del Norte were one and the same person but said official was not presented in court. Properties subject to seizure (Sec. 2, Rule 126 of the Rules of Court) Session20 Consti review (Atty. Cubero) 3

a.) Subject of the offense; b.) Stolen or embezzled property and other proceeds or fruits of the offense; and c.) Property used or intended to be used as means for the commission of an offense 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) Conduct of the Search Sec. 8, Rule 126 of the Rules of Court requires that no search of a house, room or any of the 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, in the presence of two witnesses of sufficient age and discretion, residing in the same locality. Failure to comply with this requirement invalidates the search. (People v. Gesmundo)

Police Officers may use force in entering the dwelling if justified by Rule 126 of the Rules of Court. In People v. Salanguit, the occupants of the house refused to open the door despite the fact that the searching party knocked on the door several times, and the agents saw suspicious movements of the people inside the house. These circumstances justified the searching parties forcible entry, as it was done on the apprehension that the execution of their mission would be frustrated unless they did so. Section 7., Rule 126 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 RULE 126, Sec. 14. Motion to quash a search warrant or to suppress evidence; where to file . A motion to quash a search warrant and/or to suppress evidence obtained thereby may be filed in and acted upon only by the court where the action has been instituted. If no criminal action has been instituted, the motion may be filed in and resolved by the court that issued search warrant. However, if such court failed to resolve the motion and a criminal case is subsequently filed in another court, the motion shall be resolved by the latter court Motion in Limine - in limine (in limb-in-ay) from Latin for "at the threshold," referring to a motion before a trial begins. A motion to suppress illegally-obtained evidence is an example of such a motion. (thefreedictionary.com) - of, relating to, or being a motion, petition or order regarding the admissibility of evidence whose exclusion is sought especially on the ground that it is prejudicial (Merriam Websters Dictionary of Law)

Session20 Consti review (Atty. Cubero)

WARRANTLESS ARRESTS RULE 113, Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. OTHER INSTANCES: RULE 113, Sec. 13. Arrest after escape or rescue. If a person lawfully arrested escapes or is rescued, any person may immediately pursue or retake him without a warrant at any time and in any place within the Philippines RULE 114, Sec. 23. Arrest of accused out on bail. For the purpose of surrendering the accused, the bondsmen may arrest him or, upon written authority endorsed on a certified copy of the undertaking, cause him to be arrested by a police officer or any other person of suitable age and discretion. An accused released on bail may be re-arrested without the necessity of a warrant if he attempts to depart from the Philippines without permission of the court where the case is pending. RULE 113, Sec. 5. (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; Rebellion is a continuing offense. Accordingly, a rebel may be arrested at any time, with or without a warrant, as he is deemed to be in the act of committing the offense at any time of day or night. (Umil v. Ramos) Kidnapping with serious illegal detention is deemed a continuing crime, it can be considered as such only when the deprivation of liberty is persistent and continuing from one place to another. (Larranaga v. CA) When a police officer sees the offense, although at a distance, or hears the disturbances created thereby, and proceeds at once to the scene thereof, he may effect an arrest without a warrant. The offense is deemed committed in the presence of or within the view of the officer. (People v. Sucro) The arrest of the accused inside his house following hot pursuit of the person who committed the offense in flagrante was held valid. (People v. De Lara) A buy-bust operation is a valid in flagrante arrest. (People v. Hindoy) However, in People v. Rodrigueza, the police officer acting as poseur-buyer in a buy-bust operation instead of arresting the suspect and taking him into custody after the sale, returned to police headquarters and filed his report. It was only in the evening of the same day that the police officer, without a warrant arrested the suspect at the latters house where dried marijuana leaves were found and confiscated. It was held that the arrest and the seizure was unlawful. People v. Molina: In effecting a valid in flagrante arrest, it is necessary that two requisites concur: 1.) the person to be arrested must execute an overt act indicating that he had just committed, is actually committing, or is attempting to commit a crime; and 2.) such overt act is done in the presence or within the view of the arresting officer. Session20 Consti review (Atty. Cubero) 5

Reliable information alone, absent any overt act indicative of a felonious enterprise in the presence or within the view of the arresting officers, is not sufficient to constitute probable cause to justify the arrest. (People v. Tudtud) It must be stressed at this point that "presence" does not only require that the arresting person sees the offense, but also when he "hears the disturbance created thereby AND proceeds at once to the scene. (US v. Samonte) In the Molina case, the accused manifested no outward indication that would justify their arrest. In holding a bag on board a trisikad, accused-appellants could not be said to be committing, attempting to commit or have committed a crime. It matters not that accused-appellant Molina responded Boss, if possible we will settle this to the request of SPO1 Pamplona to open the bag. Such response which allegedly reinforced the suspicion of the arresting officers that accused-appellants were committing a crime, is an equivocal statement which standing alone will not constitute probable cause to effect an in flagrante delicto arrest. Note that were it not for SPO1 Marino Paguidopon (who did not participate in the arrest but merely pointed accused-appellants to the arresting officers), accused-appellants could not be the subject of any suspicion, reasonable or otherwise. Note: Even if the warrantless arrest is considered to be invalid/illegal, if the accused fails to assert their constitutional right prior to arraignment, and by entering a plea of not guilty, and participating actively in the trial, they were deemed to have waived their right to raise the issue of the illegality of the arrest. (People v. Galves; People v. Conde) In People v. Sy Chua, the apprehending officers had already prior knowledge from the very same information (who had been telling them about the activities of the accused for two years prior to the actual arrest). Considering that the identity, address and activities of the suspected culprit was already ascertained two years previous to the actual arrest, there was no reason why the police officers could not have obtained a judicial warrant before arresting the accused appellant and searching him. RULE 113, Sec. 5 (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; Two requirements There must be a large measure of immediacy between the time the offense was committed and the time of the arrest, and if there was an appreciable lapse of time between the arrest and the commission of the crime, a warrant of arrest must be secured. Aside from the sense of immediacy, it is also mandatory that the person making the arrest has personal knowledge of certain facts indicating that the person to be taken into custody has committed the crime. (Nachura, ORPL) People v. Del Rosario: The arrest came a day after the offense was committed and thus, the offense had not been just committed. Furthermore, the arresting officers had no personal knowledge of the facts indicating that the person to be arrested had committed the offense, since they were not present and were not actual eyewitnesses to the crime, and they became aware of the identity of the driver of the getaway tricycle only during the custodial investigation. Go v. CA: Six days after the shooting, as the petitioner presented himself before the San Juan Police Station to verify news reports that he was being hunted, the police detained him because an eyewitness had positively identified him as the gunman who shot Maguan. The Court held that there was no valid arrest; it cannot be considered as within the meaning of the offense has just been committed inasmuch as six days had already elapsed; neither did the policemen have personal knowledge of the facts that Go shot Maguan. People v. Gerente: Session20 Consti review (Atty. Cubero) 6

The policemen saw the victim dead at the hospital and when they inspected the crime scene, they found the instruments of death and the eyewitnesses reported the happening and pointed to Gerente as one of the killers, the warrantless arrest of Gerente only 3 hours after the killing was held valid, since the policemen had personal knowledge of the violent death of the victim and of the facts indicating that Gerente and two others had killed the victim. Robin Padilla v. CA: the policemen's warrantless arrest of petitioner could likewise be justified under paragraph (b) as he had in fact just committed an offense. There was no supervening event or a considerable lapse of time between the hit and run and the actual apprehension. Moreover, after having stationed themselves at the Abacan bridge in response to Manarang's report, the policemen saw for themselves the fast approaching Pajero of petitioner, its dangling plate number (PMA 777 as reported by Manarang), and the dented hood and railings thereof. These formed part of the arresting police officer's personal knowledge of the facts indicating that petitioner's Pajero was indeed the vehicle involved in the hit and run incident. Verily then, the arresting police officers acted upon verified personal knowledge and not on unreliable hearsay information. People v. Abriol: The warrantless arrest was valid, as it was made after the fatal shooting and pursuit of a fast -moving vehicle seeking to elude pursuing police officers, and a more than reasonable belief on the part of the police officers that the fleeing suspects aboard the motor vehicle had just engaged in criminal activity. Cadua v. CA: Personal knowledge of facts in arrests without a warrant must b based on probable cause, which means an actual belief or reasonable ground of suspicion. Peace officers may pursue and arrest without warrant any person found in suspicious places or under suspicious circumstances reasonably tending to show that such person has committed, or is about to commit, any crime or breach of the peace. Probable cause for an arrest without a warrant is such a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a reasonable man in believing the accused to be guilty. People v. Escordial: Reasonable suspicion must be founded on probable cause coupled with good faith on the part of the peace officer making the arrest. People v. Bansil: The SC held that there was no probable cause to justify the warrantless arrest, considering the following circumstances: a.) the arresting team was only armed with the knowledge of the suspects attire which the prosecution witness admitted during the trial that he could not even remember; b.) the team did not have a physical description of the suspect nor his name; c.)the team was not given a specific place to search as only a vicinity of the Muslim area in Quiapo was given; and d.) the team zeroed in on the accused who were eating halo-halo, which is not a crime initself. The bulging waistline, in light of prevailing circumstances, is insufficient to constitute probable cause for the arrest of the accused. RULE 113, Sec. 5 (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another

RULE 113, Sec. 13. Arrest after escape or rescue. If a person lawfully arrested escapes or is rescued, any person may immediately pursue or retake him without a warrant at any time and in any place within the Philippines RULE 114, Sec. 23. Arrest of accused out on bail. For the purpose of surrendering the accused, the Session20 Consti review (Atty. Cubero) 7

bondsmen may arrest him or, upon written authority endorsed on a certified copy of the undertaking, cause him to be arrested by a police officer or any other person of suitable age and discretion. An accused released on bail may be re-arrested without the necessity of a warrant if he attempts to depart from the Philippines without permission of the court where the case is pending. WHEN THE RIGHT IS VOLUNTARILY WAIVED then the illegality of the arrest amy no longer be invoked to effect the release of the person arrested. The appellant is estopped from questioning the illegality of his arrest when he voluntarily submitted himself to the jurisdiction of the court by entering a plea of not guilty and by participating in the trial. (People v. Salvatierra) It is necessary therefore, that the petitioner should question the validity of the arrest before he enters his plea. Failure to do so, would constitute a waiver of his right against unlawful restraint of his liberty. (People v. Penaflorida) Note: Such waiver is limited to the illegal arrest. It does not extend to the search made as incident thereto, or to the subsequent seizure of evidence allegedly found during the search. Thus, when the arrest is incipiently illegal even if the right to question the same is deemed waived by the accused entering his plea it follows that the subsequent search is similarly illegal. Any evidence obtained in violation of the constitutional provision is legally inadmissible in evidence under the exclusionary rule. (People v. Peralta)s Under Sec. 26. Rule 114, an application or admission to bail, shall not bar the accused from challenging the validity of his arrest, provided that he raises the challenge before entering his plea. The consequent filing of charges and the issuance of a warrant of arrest against a person invalidly detained will cure the dfect of such detention or at least deny him the right to be released. (Larranaga v. CA)

END OF SESSION

THANK YOU!!!

Session20 Consti review (Atty. Cubero)