Day 2, Part 2 (34:37-1:30:37) [56 minutes] with any of the permissible ways of seizing objects or articles
without warrant. So in that regard, the Supreme Court said,
“Your honor you’re very lucky because your description of the
person is too general but because I know who boy tigas is” so
with that I will arrest him and detain him. This means that the
police officer who is about to serve the warrant has
independent personal knowledge that he can supply in order to
identify the person who is generally described in the warrant.
Is that allowed?
No. because according to the Supreme Court in People v. Del
Rosario, a search warrant cannot allow the police officers to use
their discretion in serving the warrant because a search warrant
according to the Supreme Court is not a sweeping authority
empowering a raiding party to undertake a fishing expedition
to seize and confiscate any and all kinds of evidence or articles
relating to a crime. So which means that the authority of serving
officers is only limited to what is written in the warrant. So they
cannot use their discretion. In People v. Del Rosario, this is a
case involving a search warrant for the search and seizure of
shabu and other drug paraphernalia. According to the version
of the police officers, they served the search warrant in the
place described in the warrant. During the service of the
warrant, they saw a canister. When they opened the canister,
the police officer said they found shabu inside and a firearm.
When they asked for a license, the owner of the house said
there was no license. So assuming that is what happened
(because the Supreme Court said it didn’t happen) but
assuming for the sake of argument that during the service of
the search warrant for the search and seizure of shabu and
other drug paraphernalia, the police officers indeed found the
canister and when they opened the canister, there was shabu
inside and there was also a (paltik) caliber inside. Based on that,
the shabu is admissible in evidence because it was described in
the warrant and it was found within the premises described in
the warrant.
Anent the case of People v. Del Rosario, the Supreme Court said
that it is highly doubtful that they found that canister inside the
house. But again, on the assumption that it was indeed found
inside the house, the shabu can be used as evidence against the
owner of the house because it was described in the warrant.
How about the gun? So first question: can the police officers
seize the gun? Second question: can the police officer use the
gun as evidence for charging the owners of the house for
possession of unlicensed firearm?
So on the first question, the answer is yes. They can seize it
because it is a prohibited article. So even if it is not included in
the warrant, the police officer cannot just leave it there. Police
officers can seize that gun. But whether it is admissible or not
is a different question. So on the second question, whether it
can be used as evidence against the owner of the house,
Supreme Court said no. It cannot be used as evidence against
the owner of the house. First, because it is not included in the
search warrant, and second it was not procured in accordance
subject to confiscation but not admissible. So again, it is
different as to the question of authority to seize and the
question of admissibility in evidence.
So again, in order to be valid, the warrant must particularly
describe the person to be arrested and objects to be seized. In
the case of Stonehill v. Diokno, the objects to be seized were
described as ledgers, books of accounts, papers, documents
belonging to the corporation and the officers. The purpose is
for violation of Central Bank laws, The Revised Penal Code,
Internal Revenue Code and Customs and Tariff code. In the case
of Alvarez v. CFI, the objects sought be seized are books of
accounts, ledgers, papers, documents used by the accused in
lending transactions charging usurious interest. Note the
description is both cases. Both cases used the description books
of accounts, ledgers and papers. But in the case of Stonehill v.
Diokno, the Supreme Court said that the description is too
general but in the case of Alvarez v. CFI it is specific enough. So
what is the difference between the two descriptions? The
qualifier. In the case of Alvarez v. CFI, the items to be seized are
ledgers, books of accounts, documents USED by the accused in
his usurious transactions. So only documents used in his levy
transactions charging interest are subject to seizure. But in the
case of Stonehill v. Diokno, it covers all documents belonging to
the corporation and the officers. So which means the warrant
does not describe with sufficient particularity the subject which
are sought to be ceased in that warrant. So in that regard, the
Supreme Court in Stonehill v. Diokno declared the search
warrant as general warrants.
So what is the difference between general warrant and scatter-
shot warrant?
A general warrant is a warrant that does not describe with
sufficient particularity the objects sought to be seized or the
person sought to be arrested. On the other hand, a scatter-shot
warrant is a warrant that does not relate to one specific
offense. So just like in the case of Stonehill v. Diokno, the
purpose of the seizure was for violation of the Revised Penal
Code. We all know that under book II the RPC, each article
constitute a separate crime. So according to the Supreme Court
it would be a legal heresy to convict a person for violation of
the revised penal code. If it involves a code, the specific article
of the law must be specified. So according to the Supreme
Court, a warrant can only be issued for one specific offense to
be considered as a sufficient warrant. If it covers multiple
offenses, it is a scatter-shot warrant.
So again, we have learned that the reasonableness or
unreasonableness of searches, seizures or arrest does not
depend on the presence or absence of a warrant because a
search, seizure or arrest can be considered as unreasonable
even if it is by virtue of a warrant. One good example is Stonehill
v. Diokno. Even if the search and seizure was through a warrant,
the search and seizure was still considered as unreasonable.
Similarly, even if the search, seizure or arrest is effected
without a warrant, they can still be considered as reasonable
and valid as long as they falls under any of the permissible
warrantless arrest and warrantless searches and seizures.
So most legal scholars say that there are three permissible
warrantless arrest. They always cite section 5 of Rule 113. So
most commentators said that the only three permissible
warrantless arrest are: 1) arrest in Flagrante Delicto, 2) Hot
Pursuit and 3) arrest of prisoner. So can we say that these are
the only three instances of permissible warrantless arrest?
No. Aside from the 3, there are other warrantless arrest
allowed under the rules of court. One is section 13 of rule 113.
Section 13 of rule 113 allows arrest even without a warrant if a
person who is lawfully arrested escapes or is rescued. So if a
person lawfully arrested escapes or is rescued, he may be
pursued immediately and arrested anytime even without
warrant under section 13 of rule 113. What is the difference
between this rule and arrest of a prisoner? In the case of
section 13 of rule 113, the person sought to be arrested is not
yet a prisoner. Because when you consider him a prisoner, the
person must have already been booked in detention. So there
must already be a commitment order. So under section 13 of
rule 113, the person arrested when he escapes is not yet a
prisoner. But since he is lawfully arrested, he can be pursued
anytime even without a warrant.
So another instance of permissible warrantless arrests are
those provided for under section 23 of rule 114. Note that
under section 23 of rule 114, a bondsman can order the arrest
of a person who is out on bail. So even without a warrant the
bondsman himself can cause the arrest without a warrant or he
can make an indorsement at the back of the bond to order any
person to cause the arrest, even without judicial warrant.
Another instance of permissible warrantless arrest is when a
person who is an accused is out on bail, attempts to leave the
Philippines without authority from the court that granted the
bail. So same under section 23 of rule 114. He can be arrested
anytime if he attempts to leave the Philippines without
authority from the court that issued or approved the bail. So
again, permissible warrantless are not only confined to those in
section 5 of rule 113.
Under Rule 113, the first instance of permissible warrantless
arrest is arrest in flagrante delicto. And in order to be
considered in flagrante delicto, the person or the police officer
effecting the arrest must be… because under the rules of court,
it is provided that when in his presence, the person to be
arrested has committed, is actually committing or attempting
to commit an offense. “In his presence” refers to the arresting
officer. Can we say that “in his presence” requires physical
presence at the place where the offense was committed? So
can we say that to effect an in flagrante delicto arrest, the
person effecting the arrest must be physically present at the
place where the offense was committed?
So in this regard, let’s take the case of People v. Sucro. In People
v. Sucro, this is a modified buy bust operation. The police officer
was at the other side of the street. So the police officer hid in
one of the houses across the street about two meters away
from the place where the subject of the surveillance is
conducting his illegal trade (selling of marijuana). So the police
officer saw the accused talking to a person and then the
accused went inside the chapel, took out something and then
he gave it to the third person and then the third person paid
him. So the police officer accosted the third person and it was
confirmed that it was marijuana. So the police officer who was
across the street arrested the accused. The basis was in
flagrante delicto arrest. But the accused said that the police
officer was not present at the place where he committed the
offense. He was across the street. So according to the Supreme
Court, “in his presence” does not mean physically present, it
means that the police officer has seen the commission of the
offense or has heard the commotion created by the offense and
immediately proceeded to the place where the offense was
committed. So which means that “in his presence” means that
the police officer or the person effecting the warrantless arrest
has observed the commission of the crime through the use of
any of his sensory perception. So he can use his sense of sight,
hearing, smell, taste, if it can be used in order to detect the
commission of the crime. So as long as the police officer
effecting the warrantless arrest has observed the commission
of the offense through any of the sensory perception, that is an
in flagrante delicto arrest, even if he has observed the
commission of the crime at a distance.
Ordinarily, in flagrante delicto arrest presupposes that the
arrest must be effected at the time that the person to be
arrested has committed the act constituting the crime, so “red-
handed”. That is the general connotation of in flagrante delicto
arrest. Can an in flagrante delicto arrest be effected one day or
several days after the commission of the acts constituting the
crime?
Generally, no; except for continuing offenses. In the case of
Umil v. Ramos, there was a shooting incident of police officers
and the person who shot police officer was also wounded and
he was being treated in a hospital in Roosevelt, Quezon City. So
one day after the shooting incident, that accused was arrested
for insurrection. Note that the time he was arrested, he was not
committing any act constituting the crime of
rebellion/insurrection because he was just lying in bed being
treated so he is not performing any acts; publicly uprising, or
taking arms against the government to overthrow the
government. He was just lying in the hospital being treated. But
the Supreme Court said that the nature of this offense is
different because this is a continuing offense. Rebellion is
considered as continuing. Not because of the nature of the
offense but because of the character of this offense, because
they are directed against the government. So the reason why
they are considered as continuing is in order to prevent any
further act that can compromise the safety and security of the
state. So in that case the Supreme Court said that there is no
need to wait for them to take arms before they can be arrested
on the ground of rebellion or insurrection because the crimes
involved are special in character because they are committed
against the government. So it is intended to stop further acts
that can compromise the safety and security of the
government.
So we go to another permissible warrantless arrest: hot pursuit.
In order to constitute a hot pursuit the rules require that the
offense has just been committed. In order to effect a hot
pursuit, is it required by the rules that the person or the police
officer effecting the hot pursuit arrest must have personal
knowledge of the commission of the offense? Under the rule,
no. The rules only require probable cause. So note that under
paragraph (b), section 5 of rule 113, the rules of court provide
that when an offense has just been committed and he has
probable cause based on personal knowledge of facts and
circumstances that the person to be arrested has committed it.
So note that the personal knowledge does not refer to the
commission of the offense. Personal knowledge refers to
probable cause. So as long as the probable cause is based on
the personal knowledge of the person effecting the warrantless
arrest, that is a valid warrantless arrest. There is no need to
have a personal knowledge of the commission of the offense.
Even if the police officer did not see who committed the act, as
long he has probable cause based on his personal knowledge
that the person to be arrested is the one who committed the
crime, he can effect a hot pursuit arrest.
So again in order to constitute a hot pursuit arrest, the offense
must have just been committed. In the case of Go v. CA, there
was a shooting incident in San Juan involving Maguan. The news
reports point to the accused as the prime suspect. So what
petitioner did was he dropped by the at the San Juan police
together with his two lawyers. The purpose why he dropped by
is only to confirm whether he was the subject of a manhunt
operation and he was arrested. The basis of the arrest of the
San Juan police officer is hot pursuit arrest. So he dropped by 6
days after the shooting incident. The Supreme Court said that
“we cannot stretch the hot pursuit arrest to cover that arrest 6
days after the commission of the offense”. To constitute a hot
pursuit arrest, there must be immediacy between the
commission of an offense and the actual arrest. So in that
regard, the Supreme Court said that 6 days cannot by any
stretch of imagination be considered as “has just been
committed”.
Supposing the offense was committed 5:00 pm. Can a hot
pursuit arrest be effected 10:00 pm of the same day? So let’s
take the case of People v. Rodrigueza. Let’s take the version of
the police officer. The version of the police officer was that,
they conducted a test buy (not a buy bust) which is only to
confirm whether the subject is engaged in an illicit trade. So the
test buy was positive. So 5:00 pm there was a transaction
between the police officer who acted as a poseur buyer and the
subject of the surveillance. So it was confirmed that he was
selling marijuana. Upon confirmation that the accused is
engaged in an illegal trade, the police officer went back to the
police precinct. He reported the matter to his superior. So his
superior said “let’s plan the arrest this evening. Let’s form a
team to arrest him in his house”. So 10:00 pm, they went to the
house of the accused while he was sleeping and then effected
his arrest. Is that hot pursuit arrest? So within the day, just a
matter of several hours in between. Can that be considered as
hot pursuit arrest?
So let’s take the factual circumstances of another case. In
People v. Gerente, there was a group having a drinking session
and there was a conversation which was heard by the socially
conscious neighbor. So the neighbor heard that the group is
planning to kill the victim. So 3:00 in the afternoon, they
implemented their plan. They killed the victim. Immediately
after the incident, the victim was rushed to the hospital and the
police officer proceeded to the hospital in order to investigate.
Once the police officer confirmed that the victim was already
dead, they went to the place where the offense was
committed. They investigated the place, they gathered
evidence, they interviewed witness and that socially conscious
neighbor told the police officer what she heard and she pointed
to the place where the accused lives. The accused was arrested
while he was sleeping. So it happened 3:00 pm, 6:00 he was
arrested. So is that a valid arrest? In People v. Gerente,
Supreme Court said that it was a valid arrest. In the case of
People v. Rodrigueza, the Supreme Court said that even
assuming for the sake of argument that what the police officers
reported is true, that they conducted a test buy at 5:00 and that
they effected the arrest in the afternoon that cannot be
considered as a hot pursuit arrest. Because in order to be
considered as a hot pursuit arrest, the term implies “hot
pursuit”. Hot pursuit means that there should be no break
between the discovery of the offense up to the actual arrest. In
the case of People v. Rodrigueza, according to the Supreme
Court, when the police officer left the place where the offense
was committed and went back to the police precinct, the series
of event is already broken. There is no longer continuity. While
in the case of People v. Gerente, the discovery of the crime, the
interview of the witnesses, the procuring of the evidence and
the arrest are connect with a series of unbroken events. That is
why it is considered as hot pursuit arrest. So which means that
in order to constitute hot pursuit, the essential factor is the
continuity of the series of events. Not so much on the time that
has elapsed.
So in order to highlight this, let’s give an example. Suppose
police officer saw A killing B. Police officer was not able to arrest
A when he killed B because A was able to flee when he saw the
police officer. At this point, it cannot be considered already as
an in flagrante delicto because in flagrante delicto arrest means
that he must be arrested at the time that he committed the
offense. So supposing that A is a long distance marathon runner
as well as the police officer. Supposing the chase lasted for 30
days. So on the 30th day, A said “suko na ko. I now admit you’re
better. You can arrest me now.” Is that hot pursuit? Yes.
Notwithstanding the fact that there is already a thirty day lapse,
because of the continuity of the series of event from the actual
commission of the offense or the discovery of the commission
of the offense to the actual arrest. So again, while the rules of
court require “has just been committed”, the most important
factor is the continuity of the series of events.
So we go to warrantless searches. So there are several
instances of permissible warrantless searches. In Malacat v. CA,
the Supreme Court enumerated six (6). So according to the
Supreme Court permissible warrantless searches include:
1. Custom Searches
2. Searches of moving vehicles
3. Seizure of evidence in plain view
4. Search incident to a warrantless arrest
5. Consented search
6. Stop and frisk
So in the case of Luz v. People, the Supreme Court added one
which is arrest during exigencies or emergencies. And among
these warrantless searches, there are only few that are
provided for by law or by the rules of court. The warrantless
searches mandated by law is custom search. Provided for by
rules of court is search incident to a lawful arrest under rule
126. So which means that most of the permissible warrantless
searches are by case law. So unlike warrantless arrest, which
are specifically provided for under the rules of court. So insofar
as searches without warrants are concerned, they can be
expanded by the court depending on the circumstances.
So one of the permissible warrantless searches is “stop and
frisk”. What is the difference between “stop and frisk” and
“stop and search”? In the case of Posadas v. CA, police officers
were conducting a patrol. While conducting a patrol, they
spotted the accused. So the police officer followed the accused.
He was carrying a “buri” bag (a bag made out of nipa leaves).
The police officers noted that he was acting suspiciously. And
then when the accused saw the police officers, the accused ran.
The police officers chased him and upon catching the accused
conducted a limited search on his body and outer clothing and
the buri bag. It yielded a discovery of firearms, ammunitions
and grenade. The main question in the case of Posadas v. CA is
whether the items procured from bag of the accused are
admissible in evidence. The Supreme Court said yes it is
admissible under STOP and SEARCH akin to STOP and FRISK. So
which means that stop and search is similar to but not the same
as stop and frisk because stop and frisk is undertaken by the
police officer who based on their training and experience
believe that a crime may be afoot and they need to investigate
further the incident. So to better understand this, let’s take the
case of Terry v. Ohio. So this is the source of the stop and frisk
search. That is why it is called “terry search”. In Terry v. Ohio,
the police officer involved here was detective McFadden. So
detective McFadden was a police officer for 39 years. He has
been a detective for 35 years. And he was patrolling downtown
Cleveland for a period of 30 years. So for 30 years he is
patrolling that area. So which means that he is familiar with the
persons in the area, he is familiar with the activities in the area.
One afternoon, while detective McFadden was having a patrol,
he spotted Terry and Chilton. He does not know both guys. They
were standing at the corner of Huron Road and Euclid Avenue
in downtown Cleveland. So it aroused his interest because
when he saw Terry and Chilton standing at the corner of that
street, Terry walked towards Euclid Avenue and when he
passed by a store, he looked in the window then he went back
to that corner. He talked with Chilton and Chilton also did the
same thing. He walked the street, looked at the window of the
store and goes back. It happened, according to detective
McFadden 12 times. And then both the accused left that corner
and detective McFadden saw a third person (Katz) now talking
with the two. In the belief of detective McFadden, this group is
casing up the store. And the objective of detective McFadden
is to investigate further. So he approached the group, and
introduced himself and then when he asked for their names,
one member of the group mumbled something. So this is the
time when detective McFadden spun Terry, patted his outer
garment and he felt a gun at the pocket of the overcoat of
Terry. He took it out and did the same thing with Chilton and
Katz. Another gun was taken from Chilton and none from Katz.
So the main issue in Terry v. Ohio is the admissibility of the two
revolvers taken from Terry and Chilton. So according to the U.S.
Supreme Court, what happened there is not a search. The
Supreme Court distinguished “search” from “frisk”. The
Supreme Court said that what happened there is not an arrest.
The Supreme Court distinguished “arrest” from “stop”.
According to the Supreme Court, there is a difference between
arresting and stopping. So what the police officer did was not
to arrest them but he stopped the group to further investigate
the incident. So when the police officer patted the outer
garments of the accused, he did not conduct a search. He only
frisked the accused because his purpose is to maintain the
status quo while he is conducting further investigation. So this
is the origin of the phrase “stop and frisk”. Stop as distinguished
from arrest and frisk as distinguished from search. According to
the Supreme Court, police officers based on their training and
experience who observe an activity which in their belief is
prohibited by law can conduct a limited frisking on the outer
clothing of the person so that they may investigate further
without causing harm or risk to their life.
So according to the Supreme Court in Malacat v. CA, there are
two objectives of stop and frisk searches: 1) General objective
of crime prevention and detection; 2) for the more pressing
interest of safety and self-preservation. So again, in stop and
search searches, the rules of court require probable cause.
Why? Because stop and search searches involve not only the
outer clothing to be searched but also within his immediate
crevices. So just like in the case of Posadas, the ammunitions
were not found in his clothing. They were found in the bag he
was carrying. That is stop and search. Because stop and search
requires probable cause and in probable cause the standard is
belief of a reasonably discreet and prudent man. So which
means that the suspicious activity is so obvious even to an
ordinary man. But in stop and frisk, the standard is a trained
and seasoned police officer. So which means that the activity
may not be so obvious to an ordinary man but obvious to a
trained and seasoned police officer.
So another instance of permissible warrantless search is search
incident to a lawful arrest. According to the Supreme Court in
Malacat v. CA, (this involves a case in Quiapo) the police officer
said that he was observing a group of Muslim boys in Quiapo.
And according to the police officer, the members of the group
were acting suspiciously because their eyes were moving too
fast. So the police officer was about to approach the group but
when the group saw him, they ran different directions. He
chased one, he caught the accused, searched him, he found a
grenade tucked in his waist. So the main issue in Malacat v. CA
is the admissibility of that hand grenade taken from one of the
accused. The Supreme Court discussed stop and frisk as well as
search incident to a lawful arrest. With regard to stop and frisk,
the Supreme Court said no. the version of the police officer is
incredible because at the distance where the police officer was
observing the group, the Supreme Court, the group already saw
him. So no need for him to approach them before they will run.
So the Supreme Court did not believe the version of the police
officer. How about search as an incident to a lawful arrest?
Supreme Court said that is not applicable either because search
incident to a lawful arrest requires a previous valid arrest. So
Supreme Court said they cannot reverse the event. We cannot
have a search first before an arrest but note that, that
statement is applicable only to search incident to a lawful
arrest. Because search can be done even prior to arrest under
the instances of permissible warrantless searches. But search
incident to a lawful arrest requires a prior valid arrest. So
according to the Supreme Court, when the police officer caught
the boy, the police officer does not know that he was carrying
a grenade, so therefore it is not an arrest. So in that regard, the
discovery of the hand grenade according to the Supreme Court
cannot be covered by search incident to a lawful arrest.
What is the extent of search incident to a lawful arrest? Search
incident to a lawful arrest covers the body, the outer clothing
of the person arrested, and the premises within his immediate
control. In Espano v. CA, (this is a buy bust operation) police
officers conducted a buy bust operation in the street several
meters away from the house of the accused. So when the crime
was consummated, police officers arrested the accused,
conducted a search on his outer clothing. They found 3
cellophanes of marijuana in his pocket. And then the police
officers went to the house of the accused. They searched the
house of the accused. They also found 10 cellophanes of
marijuana inside the house of the accused. So the main issue in
the case of Espano v. CA is the admissibility of these 13
cellophanes of marijuana. The Supreme Court said, as to the
three cellophanes discovered in the pocket of the accused, it is
admissible in evidence because they are covered by search
incident to a lawful arrest. But for the ten cellophanes found
inside the house of the accused, it is not covered anymore
because it is not within the immediate control of the accused.
So what does immediate control mean?
So let’s take the case of People v. Musa. In People v. Musa, (also
a buy bust operation) the buy bust operation happened inside
the house of the accused. The transaction happened in the
living room of the accused. The police officer after arresting the
accused and conducting a search on his person saw a plastic
hanging in the kitchen, several meters away. The police officers
took the plastic and opened it to find marijuana. So one of the
issues in this case, is whether that plastic found in the kitchen
is admissible in evidence as search incident to a lawful arrest.
The Supreme Court said no. “Within immediate control” means
within the reach of the person arrested because the purpose of
search incident to a lawful arrest is in order for the accused not
to be allowed to discard or to destroy evidence. So which
means that it must within his reach. And secondly to protect
the police officers conducting the arrest. So since these are the
purposes of search incident to a lawful arrest, if the object is
already beyond the reach of the accused, it can no longer be
considered as search incident to a lawful arrest.
So again in order to effect a valid search incident to a lawful
arrest, there must be a prior valid arrest. What does arrest
mean? Does roadside questioning for a traffic violation
constitute an arrest? So in the case of Luz v. People, what
happened there was the accused was apprehended for
violating an ordinance. He was riding a motorcycle without a
helmet. So when he was apprehended for a traffic violation, he
was asked by the police officer (because he was apprehended
several meters away from the police precinct) to wait inside the
police precinct while he prepares the traffic ticket. So while the
police officer while preparing the traffic ticket, he observed that
the accused was acting suspiciously because he was looking
frequently inside his pocket. So the police officer ordered the
accused to take out all the things inside his pocket and put it on
the table. The police officer saw an object wrapped in foil.
Police officer opened it and found shabu. So the main issue in
the case of Luz v. People is the admissibility of that object. Was
it covered by search incident to a lawful arrest because he was
apprehended prior to that search? Supreme Court said no. That
is not a search incident to a lawful arrest. Arrest presupposes
that the person is apprehended and the detention is more or
less permanent. In roadside questioning for traffic violation, the
apprehension is only momentary. The expectation of the
motorist is that once the ticket is issued, he can already leave.
That is the expectation. SO which means that, that is not arrest.
And according to the Supreme Court, apprehension for
violation of law, rules, or ordinance can only constitute an
arrest if the penalty for violation of such is imprisonment. If the
penalty for the law, rules, or ordinance violated is only fine, the
apprehension is not an arrest. Because according to the
Supreme Court, for offenses punishable by fine, there is no
need to arrest. This is under the rules of court. So in that regard,
in Luz v. People the Supreme Court said that does not constitute
search incident to a lawful arrest.
How about consented search? Note that when the police
officer ordered the accused to take out everything in his pocket,
he did not object. He just followed and put everything on the
table. Can we say that, that is a consented search? Supreme
Court said no. For a consented search to be valid the consent
must be specific, categorical, intelligently given and unvitiated
by any force or coercion. And according to the Supreme Court,
voluntariness of giving consent depend on several factors. The
Supreme Court in Luz v. People enumerated nine factors that
must be considered by the courts in determining whether the
consent was voluntarily given. According to the Supreme Court,
the factors that must be considered include:
1. Age of defendant
2. Whether the defendant was in public or secluded
location
3. Education and intelligence of the defendant
4. Whether the defendant objected to the search or
possibly looked on
5. Defendant’s belief that no incriminating evidence
could be found
6. Presence of coercive police procedure
7. the nature of questioning of the police officer
8. the environment in which the questioning happened
9. Vulnerable subjective state of the person consenting
So in order to be considered as voluntary, the person giving the
consent must know the implication of his consent. So the mere
following of an order of a police officer in a police precinct does
not constitute consent said the Supreme Court.
In the case of People v. Peralta, the accused was arrested while
he was about to board a bus. So he was arrested for violation
of central bank laws because the accused was an employee of
central bank. There was no warrant of arrest. He was arrested
while waiting for the bus. So when the police officer took out
his wallet, police officer saw perforated notes (the job of the
accused was to destroy demonetized bills). This was according
to the police officers. The version of the accused was different.
According to the accused he was tortured. So let’s assume the
version of the police officers is true (that they arrested the
accused while waiting for a bus and they found perforated
notes inside his wallet). During arraignment, the accused did
not raise any objection on his arrest. Under the rules of court,
the failure of the accused to raise objection of his arrest prior
to arraignment constitutes waiver of the validity of his arrest.
So can we say now that since there is waiver of his right to
question the validity of his arrest, that the search conducted
subsequent thereto is already considered as a search incident
to a valid arrest? So in the case of people v. Peralta, the
Supreme Court said no. Mere waiver of the right to question
the validity of the arrest does not make the arrest valid. It only
means that the accused can no longer question it. But that does
not necessarily mean that the arrest is already in compliance
with the rules in accordance with the law. So in order to
constitute a search incident to a lawful arrest, it is incumbent
upon the prosecution to show that the arrest is in accordance
with law and in accordance with the rules of court. Failure to do
that, mere waiver will not make it valid.
Seizure of evidence in plain view. There are three conditions to
effect seizure of evidence in plain view according to the
Supreme Court in the cases of People v. Musa, as well as in
UNILAB v. Isip. Again, in Musa, the police officer arrested the
accused during buy bust operation in his living room. They saw
an opaque plastic (meaning they can’t see what’s inside)
hanging in the kitchen. Police officer asked the accused what
the plastic bag contained. The accused did not answer. The
police officer took it out, opened it and found marijuana. So the
Supreme Court said that, that is not a valid seizure of evidence
in plain view. In the case of UNILAB, the version of the police
officer was that there was a search warrant for the search and
seizure for fake “Revicon” products. According to the police
officer, when they went to the place described in the warrant,
they saw a glass cabinet (they can see through it) with display
of “Disudrin” products. So they confiscated the Disudrin
products. So is there a seizure of evidence in plain view in both
cases? In both cases, the Supreme Court said the plain view
doctrine does not apply. According to the Supreme Court there
are 3 conditions in order to effect seizure of evidence in plain
view:
1. Police officer conducting the seizure must have a prior
justification for an initial intrusion or must be in the
place where they have observed the existing order.
2. The police officer must have discovered the
incriminating evidence inadvertently. (they weren’t
looking for it. They accidentally found it.)
3. It must be immediately apparent to the police officer
that the object that they observed is subject to
seizure. (either it is a contraband or in relation to a
crime)
But these requirements must be likewise qualified by the ruling
of the Supreme Court in the case of People v. Del Rosario. So
again remember in the case of People v. Del Rosario, there is a
search warrant issued by the court for the search and seizure
of shabu and other drug paraphernalia. So when the police
officers (according to them) were serving the search warrant,
they were looking for shabu. While they were looking shabu,
they saw a canister, opened it and found shabu and a gun. The
police officers said that they weren’t looking for a gun and that
they accidentally stumbled upon it inadvertently. We have an
authority to be there because we are serving a search warrant
and definitely an unlicensed firearm is incriminating. So
applying the three conditions in UNILAB v. Isip, it appears that,
that is a valid seizure of evidence in plain view. But again, as we
said earlier, these three conditions must be qualified.
Particularly under the second requirement. So under the
second requirement, we said earlier that the police officer must
have discovered the incriminating evidence inadvertently. It
must be qualified by the phrase “without conducting any
search”. So which means seizure of evidence in plain view
means that it is plain sight. They do not need to open anything.
They do not need to open cabinets or canisters. The object is in
plain view. So if they open something that is not covered
anymore by plain view.
In the case of UNILAB v. Isip, the police officer said that
“Disudrin” products were displayed openly and that they did
not need to open anything. They accidentally found it. Is that
already covered by plain view doctrine? Supreme Court said no.
there is nothing wrong with displaying “Disudrin” products.
According to the Supreme Court, to effect a seizure of evidence
in plain view, the incriminating character of the evidence must
be apparent. It is not only the object which is apparent but its
incriminating character as well. So according to the Supreme
Court, the police officers did not know that it was a contraband
until the report of the FDA came out that it was fake. So in that
regard, the seizure of evidence in plain view does not apply.
In searches of moving vehicles, in the case of Valmonte v. De
Villa, is limited only to visual search. When we say visual search,
the police officer can use a flashlight, and look inside the vehicle
but they cannot require the opening of trunks, compartments
or other enclosures. That is regular checkpoint. But checkpoints
where police officers have a probable cause to believe that
either the vehicle or the occupant is involved in a crime can
conduct a more extensive search. So this happened in the case
of Robin Padilla. When there was a report involving the vehicle
which was later discovered to be ridden by Robin Padilla was
involved in a hit and run. Police officers conducted a check
point. They saw the vehicle reported, opened the trunk and
found firearms. That is a valid checkpoint because the police
officers have probable cause to believe that the vehicle or the
occupant is involved in a crime.
Areal saturation drives in the case of Guazon v. De Villa. Areal
saturation drives mean that if we have “Oplan Tokhang” now,
during the martial law, they have this search called areal
saturation drive or they call it then “SONA”. In areal saturation
drive, a community is being cordoned off and all the male
person are being flushed out of their respective houses and
they are herded in an open space (usually a basketball court)
where they will be required to remove their shirts for
identifying marks. In the case of Guazon v. De Vila, that search
was questioned but the Supreme Court dismissed the petition
based on technical procedure. Because of the absence of a
requisite of judicial inquiry, particularly locus standi. Because
the persons who filed the petition were not the persons who
were subjected to this type of searches. SO that’s the reason
why Supreme Court dismissed it. Despite this, the Supreme
Court gave general requirements in conducting search.
According to the Supreme Court, particularly at that time it was
under martial law, during extraordinary circumstances police
officers can implement extraordinary activities like the areal
saturation drive. But the Supreme Court said that even under
these conditions, the police officers must observe the
constitutional rights of the person. So there should be no
banging of doors, no kicking of walls and the right to privacy of
the individuals must be respected. So again it must only be in
accordance with the constitution.
Custom Searches: Papa v. Mago. Custom searches can be
effected even outside the customs premises. Custom searches
can be effected on any building, enclosure as long as it is not a
dwelling, meaning it is not a house. So once the object is already
inside the house, search warrant should be obtained by
customs officers. What could be seized by virtue of a
warrantless customs search? Only “dutiable” goods. These are
imported goods or goods which are for export. So which means
that locally produced goods from local distribution are not
subject to custom search because they are not subject to
customs duties. So again, custom searches can only be effected
in warehouses, buildings other than dwellings.