RULE 126-127 SEARCH WARRANT AND PROVISIONAL REMEDIES

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 to bring it before the court.

In arrest warrant the judge merely have to review the record, do we apply the same rule for
the issuance of search warrant?

 No. In search warrant the judge is required to interview each witness and cannot just
rely on the affidavits.

If a judge issued a search warrant relying only on the affidavits, Is the search warrant valid?
What is the remedy?

 No. Motion to quash search warrant.

Is it true that before a search warrant is issued there must first be an information filed with
the court?

 No.

Where do you apply for search warrant? Is this subject to exceptions?

 It should be filed with the court whose territorial jurisdiction the crime was committed

Yes. Exceptions:

1. For compelling reasons, it could be filed with the court within whose judicial region
the crime was committed or where the warrant shall be enforced.
2. If the criminal action has already been filed, the application for search warrant can
only be made in the court where the criminal action is pending
3. In cases of search warrants involving heinous crimes, illegal gambling, dangerous
drugs and illegal possession of firearms and ammunitions as well as violations of the
Intellectual Property Code, the Anti-Money Laundering Act of 2001, the Tariff and
Customs Code, as amended, and other relevant laws that may hereafter be enacted
by Congress, and included herein by the SC, the Executive Judges and whenever they
are on official leave of absence or are not physically present in the station, the Vice
Executive Judges of Regional Trial Courts of Manila and Quezon City shall have
authority to act on applications filed by the Philippine National Police (PNP), the
National Bureau of Investigation (NBI), The Presidential Anti-Organized Crime Task
Force (PAOC-TF) and the Reaction Against Crime Task Force (REACT-TF).

The applications shall be personally endorsed by the Heads of the said agencies, 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 outside the territorial jurisdiction of said courts.

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RULE 126-127 SEARCH WARRANT AND PROVISIONAL REMEDIES

The authorized judges shall keep a special docket book listing the details of the
applications and the result of the searches and seizures made pursuant to the
warrants issued. chan

What is the period of a valid search warrant?

 10 days

After the lapse of 10 days, can you still use the same search warrant?

 No.

The search warrant states that it is to be searched in Number 10-A Macatangay St., Sampaloc
Manila. When the police went there they found out that 10-A does not exist there is only 10,
11, 12. Can the police use the same warrant and search in 10, 11, 12 even when what is stated
in it is 10-A?

 No. They can only search in the place specifically stated in the warrant.

What is a Scatter-Shot Warrant?

 A search warrant issued for more than one offense. It is not valid because it is in
violation of the Constitution.

Can you waive your right to object to an illicit search being conducted without a warrant?

 Yes.

If there was a search without a warrant and you waive it do you also waive the inadmissibility
of evidence?
No. It is subject to a separate waiver. A waiver of an illegal warrantless arrest does not also
mean a waiver of the inadmissibility of evidence seized during an illegal warrantless arrest.

In warrant of arrest, the officers may break open the premises to effect the arrest, in search
warrant can they also do this?

 Yes.

Can an immovable property be the subject of a search warrant?

 No, only personal property.

What are these properties that may be seized by virtue of a warrant?

1. Subject of the offense

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

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RULE 126-127 SEARCH WARRANT AND PROVISIONAL REMEDIES

Let us say you were selling drugs and while selling it you’re using the car of Ms. Soriano.
There is a search warrant for the drugs so they seized it but they also seized the car. An info
was filed against you for abuse of trust. Ms. Soriano asked for the return of the car. You filed
a motion. Can the court release the car while the case is pending?
 No. It does not matter that Ms. Soriano is the registered owner, the car is still a property
used in the commission of the offense thus an evidence to prove it. Ms. Soriano can
only recover it after there is judgment.

Let us say that you were acquitted but they did not release the car. What is Ms. Soriano’s
remedy?

 Replevin

When you are conducting a search there are certain requirements, can it be done during the
night time?

 The general rule is no, it can only be done during the day time.

What are the exceptions?

1. When 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. In other words, if it is positively asserted that the subject of the search
warrant is on the person or in the place ordered to be searched it is possible to conduct
the search at night time.

2. If there are emergencies

3. Generally, in all instances of valid warrantless search

Is it needed that the search warrant be conducted in the presence of a witness?

 Yes. In order to ensure that the execution of the warrant is fair and reasonable, it is
required that it be conducted in the presence of:

1. Lawful occupant of the place to be searched; or

2. Any member of his family; or
3. In their absence, in the presence of two witnesses of sufficient age and discretion
residing in the same locality.

Does the “two witnesses” need to be at the age of majority?

 No. It is only required that he/she is sufficient age and discretion residing in the same
locality. A 17 year old will do.

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RULE 126-127 SEARCH WARRANT AND PROVISIONAL REMEDIES

In Drug cases there is what you call chain of custody from the time that you make a seizure.
There is a procedure under RA9165 as amended. If you fail to strictly comply with this
procedure does it render the drugs confiscated to be inadmissible?

 No, as long as you can prove the authenticity and the identity of the drugs that it is the
same one.

There are instances where you can make a valid search even without a search warrant. One is a
search that is done as a consequence of a valid arrest. The search cannot precede the arrest. It
should be an arrest first before a search.

What is the fruit of the poisonous tree?

 Also called the Exclusionary rule, it is the principle that prohibits the use of an evidence
that was culled directly from from an illegal Search and Seizure.

It is based on the principle that evidence illegally obtained by the state should not be
used to gain other evidence because the original illegally obtained evidence taints all
those subsequently obtained.

What are the instances where we can have a valid search without warrant?

1. Search incidental to a lawful arrest

2. Waiver or Consent searches
3. Customs Searches
4. Search of Moving Vehicles, Vessels, and aircrafts
5. Seizure of Evidence in Plain View
6. Stop and Frisk
7. Checkpoint Searches
8. Airport Searches
9. Inspection of Buildings and other premises for the enforcement of fire,sanitary and
building regulations
10. Exigent and Emergency Circumstances
11. Search based on Probable Cause under Extraordinary Cirumstances

There is a search warrant for the search of cocaine in your house. They went to your house
and there were some locked cabinets. They unlocked the cabinets and found inside the
cabinet counterfeit louis vuitton bags. Can they consfiscate those bags?
 No because only cocaine was stated in the warrant.

Did they saw the bags in plain view?

 No. Objects falling in plain view of an officer who has a right to be in a position to have
that view are subject to seizure even without a search warrant and may be introduced
in evidence.

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RULE 126-127 SEARCH WARRANT AND PROVISIONAL REMEDIES

The plain view doctrine applies when the following requisites concur:

(a) the law enforcement officer in search of the evidence has a prior justification for an
intrusion (based on a valid warrantless arrest) or is in a position from which he can view
a particular area;

(b) the evidence was inadvertently discovered;

(c) it is immediately apparent to the officer that the item he observes may be evidence
of a crime, contraband or otherwise subject to seizure;

(d)no further search.

The law enforcement officer must lawfully make an initial intrusion or properly be in a
position from which he can particularly view the area. In the course of such lawful
intrusion, he came inadvertently across a piece of evidence incriminating the accused.
The object must be open to eye and hand and its discovery inadvertent.

In this case it was not inadvertently discovered because it is in a locked cabinet. It is not
in plain view.

You are walking down the street and while you were walking you lighted up drugs and the
police saw you. You stopped and drops the bags you were holding so around you there were
10 bags. Can the police open the bags around you even though they have no search warrant?
 Yes. It is a search incident to arrest. You were caught inflagrante delicto using
drugs/committing a crime.

If the police says, “let’s go to your house because your house is under your control, we’ll
search it”. Valid?

 No. They can only search the premises/are that is within the immediate control of the
person arrested.

You went to SM then the ate guard asked you to put your bag in the table for it to be
searched. You asked, “May search warrant ka ba, te?” and she replied, “No”. You said, “You
cannot search my bag because that would violate my constitutional right”. Correct ka ba?

 No because Constitutional rights are generally invoked only against the state. In this
case SM is a private institution. If you want to enter their premises, you have to abide by
their rules. The same way in schools where they check your bag before you enter, it is a
contract between you and the school. (Read: People vs Marti). While you cannot invoke
the constitutional right against private individuals, you can invoke damages against
them (if sumobra na sila) under the civil law because ‘di naman pwedeng kalkal nalang
sila nang kalkal.

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RULE 126-127 SEARCH WARRANT AND PROVISIONAL REMEDIES

You are in your car and you passed through a checkpoint. You stopped. They asked for you to
open the compartment, can you refuse?

 Yes because it is limited to visual or ocular inspection only.

Let us say that when they flashed the light in your window you have 5 bolos stained with
blood on the seat beside you, can they then ask for you to open the compartment?

 Yes cause there is already a probable cause to believe that a crime was committed.

What is the case of Terry vs Ohio about?

 It is about stop and frisk. It is the right given to police officers to stop a citizen on the
street, interrogate him, and pat him for weapons. It’s not really to search but to
investigate further whether that person is dangerous.

Clarification from Atty. Gabriel: Atty. Senga personally asked him.

The Arvin Tan incident(taking video) that was subject to our exam- when they started to grab
him, it was stop and frisk according to Atty. Senga but Atty. Gabriel said that it was more like a
STOP to INVESTIGATE FURTHER because they started to ask for his name, look for his ID. In any
case it is still under Terry vs. Ohio: Stop to investigate further.

* Frisk means pass the hands over someone in a search for hidden weapons. Instead of Stop
and Frisk, Stop to Investigate further lang daw.”Investigate”.

If sinabi sayo, “Halika ihi ka dito”, you can refuse diba pero ang dahilan ni Atty. Senga its
custodial investigation kasi you’re like being made to answer for an offense pero sabi ni Atty.
Gabriel hindi daw Custodial Investigation dahil wala naming testimonial statement so the better
answer the is you invoke your right for privacy.

RULE 127 PROVISIONAL REMEDIES

Diba in appeals I told you to connect it to rules 40-45. When you read your provisional
remedies, you also refer to Rules 57-61. Just note:

1. what are your grounds for preliminary attachment,

2. your grounds to ask for injunction,
3. Is injunction the same as a TRO?

Is it possible for you to have preliminary attachment issued ex-parte? *Ex-parte means
without notice.

 Yes because what are the grounds for attachment? Fraud, trying to abscond, etc. So
siyempre pag binigyan mo ng notice bibilisan nilang itago yun

Is it possible to make an application for injunction or restraining order ex-parte.

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RULE 126-127 SEARCH WARRANT AND PROVISIONAL REMEDIES

Yes, as an exception to the general rule. Sabi sa RULE 58, SECTION 1. Preliminary Injunction
defined; classes. – A preliminary injunction is an order granted at any stage of an action or
proceeding prior to the judgment or final order, requiring a party or a court, agency or a person
to refrain from a particular act or acts. It may also require the performance of a particular act or
acts, in which case it shall be known as a preliminary mandatory injunction.

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SEC. 5. Preliminary Injunction not granted without notice; exception. – No preliminary

injunction shall be granted without hearing and prior notice to the party or person
sought to be enjoined. If it shall appear from facts shown by affidavits or by the
verified application that great or irreparable injury would result to the applicant
before the matter can be heard on notice, the court to which the application for
preliminary injunction was made, may issue ex parte a temporary restraining order to
be effective only for a period of twenty (20) days from service on the party or person
sought to be enjoined, except as herein provided. Within the said twenty-day period,
the court must order said party or person to show cause at a specified time and place,
why the injunction should not be granted, determine within the same period whether or
not the preliminary injunction shall be granted, and accordingly issue the corresponding
order.

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In the event that the application for preliminary injunction is denied or not resolved
within the said period, the temporary restraining order is deemed automatically
vacated. The effectivity of a temporary restraining order is not extendible without
need of any judicial declaration to that effect and no court shall have authority to
extend or renew the same on the same ground for which it was issued.

However, if issued by the Court of Appeals or a member thereof, the temporary

restraining order shall be effective for sixty (60) days from service on the party or person
sought to be enjoined.

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