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RULE126SEARCHANDSEIZURE

Section 1. Search warrant defined. 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
personalpropertydescribedthereinandbringitbeforethecourt.

SW is legal process which has been likened to be a writ of


discovery employed by the state to procure relevant evidence of a
crime.
SW is not acriminal action nor does it representa commencement
ofacriminalprosecutionevenifitisentitledtoacriminalaction.

ARRESTvSEARCH&SEIZURES
A:seizureofperson.takingofpersonincustody.
SS: search may followarrestbut search must be incident tolawful
arrest
A: PC, judge must have sufficient facts in his hands that willshow
thatacrimehasbeencommittedandapersoncommittedit
SS:PC,factstoshowthatparticularthingisconnectedwithacrime
isfoundinaspecificlocation
A: Judge not necessarily required to make personal examination
beforeissuingWA
SS:Judgemustpersonallyexaminethecomplainantandwitnesses
hemayproduceindetPC
A:Arrestbemadeanydayandatanytimeofday/night.
SS: Generally served in day time unless there be adirection inthe
warrantthatitmaybeservedatanytimeoftheday/night

Sec. 2. Court where application for search warrant shallbefiled.An


applicationforsearchwarrantshallbefiledwiththefollowing:

(a) Any court within whose territorial jurisdiction a crime was


committed.chanroblesvirtuallawlibrary
(b) Forcompellingreasons stated inthe application, any court within
the judicial region where the crime wascommitted iftheplaceofthe
commission of the crime is known, or any court within the judicial
regionwherethewarrantshallbeenforced.
However, if the criminal action has already been filed, the application
shallonlybemadeinthecourtwherethecriminalactionispending.

Sec. 3. Personal property to be seized. A search warrant may be


issuedforthesearchandseizureofpersonalproperty:
(a)Subjectoftheoffense
(b)Stolenorembezzledandotherproceeds,orfruitsoftheoffenseor
(c)Usedorintendedtobeusedasthemeansofcommittinganoffense.

Sec. 4. Requisites for issuing search warrant. (PODEP) A search


warrant shall notissue except uponprobablecauseinconnectionwithone
specific offense to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witness
he may produce, andparticularlydescribing theplace tobe searchedand
thethingstobeseizedwhichmaybeanywhereinthePhilippines.

Probable Cause for SW is facts and circumstances which would


lead a reasonably discreet and prudent man to believe that an
offense has been committed and that the objects sought in
connectionwiththeoffenseareinplacesoughttobesearched.

The requirement is less than certainty of proof and more than


suspicionorpossibility.

Thedescription neednot to be accurate in every detailbutratherit


issufficient to enable officer to locate and identifythe premisewith
reasonableeffort.


JohnDoewarrantdoesnotnameatheperson,subjectofthesame.
The particularity is designed to prevent general exploratory
searched which reasonable interfere with a persons right to
privacy.

Generalwarrant which do not describe things to be seizedwiththe


requiredparticularity.

Requirements for description:1)specific asthe circumstances will


ordinarily allow 2) expresses conclusion of fact notoflawwhich
will guide the peace officers 3) limit the things to be seized which
beardirectrelationtotheoffense.

Search warrant is not a sweeping authority empowering a raiding


party to undertake a finishing expedition to seize and confiscate
anyandallkindsofevidenceorarticlesrelatingtoacrime.

Sec. 5. Examination of complainant record. The judge must,before


issuing thewarrant, personallyexaminein theformofsearchingquestions
andanswers,inwriting and underoath, the complainantandthewitnesses
he may produce on facts personally known to them and attach to the
recordtheirswornstatements,togetherwiththeaffidavitssubmitted.

Personally conducted, examination informofsearchingq&a,comp


&witness examined on factspersonallyknowntothem, mustbein
writingandunderoath,affidavitsattachedtotherecord.

Sec. 6. Issuance andformof search warrant. If thejudgeissatisfied


of the existenceof facts uponwhich theapplicationis based or thatthere
is probable cause to believe that they exist, he shall issue the warrant,
whichmustbesubstantiallyintheformprescribedbytheseRules.

Sec. 7. Right to breakdoororwindow toeffectsearch.Theofficer,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 to liberate himself or any person lawfully aiding him when
unlawfullydetainedtherein.

Sec.8.Searchofhouse,room,orpremisestobemadeinpresenceof
twowitnesses. No search of ahouse,room,oranyotherpremisesshall
be made except in the presence of the lawful occupant thereof or any
member of his family or in the absence of the latter, two witnesses of
sufficientageanddiscretionresidinginthesamelocality.

Sec. 9. Time of making search. The warrant must direct that it be


served in the day time, unless the affidavit asserts thatthe property ison
the person or in the place ordered to be searched, in which case a
directionmaybeinsertedthatitbeservedatanytimeofthedayornight.

Sec. 10. Validityofsearchwarrant.Asearchwarrantshallbevalidfor


ten(10)daysfromitsdate.Thereafter,itshallbevoid.

Sec. 11. Receipt for the property seized. The officer seizing the
propertyunder thewarrant must give adetailedreceiptforthesametothe
lawful occupant of the premises in whose presence the search and
seizure were made, or in the absence of such occupant, must, in the
presence of at least two witnesses of sufficient age and discretion
residingin thesame locality,leave areceiptin theplaceinwhichhefound
theseizedproperty.

Sec. 12. Delivery of propertyand inventorythereoftocourtreturnand


proceedingsthereon. (a)Theofficermustforthwithdelivertheproperty

seized to the judge who issued the warrant, together with atrue inventory
thereofdulyverifiedunderoath.
(b) Ten (10)days after issuance ofthesearchwarrant,theissuingjudge
shall ascertain ifthe returnhas beenmade, and ifnone,shallsummonthe
person to whomthe warrant was issued andrequire himto explainwhyno
return was made. If the return has been made, the judge shall ascertain
whether section 11 of this Rule has been complied with andshall require
that the propertyseizedbe delivered tohim.The judge shall seeto it that
subsection(a)hereofhasbeencompliedwith.
(c) 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
dateofthereturn,theresult,andotheractionsofthejudge.
Aviolationofthissectionshallconstitutecontemptofcourt.

Sec. 13. Search incident to lawful arrest. Apersonlawfully arrested


may be searched for dangerous weapons or anything which may have
been used or constitute proof in the commission of an offense without a
searchwarrant.

ExceptionstotheSWRequirements(WPVCCFEVI)
1. Warrantless arrest incidental to a lawful arrest (dangerous
weapons or anything whichmayhavebeenusedorconstitute
proofinthecommofanoffensewithoutasearchwarrant)
2. Seizure of evidence in plain view (within permissible area
within the latters reach or of his immediate control) (1) the
search of evidence has a prior justification 2) evidence inPV
is inadvertent [discovery not anticipated] 3) immediately
apparent)
3. Searchofmovingvehicle
4. Consentedwarrantlessarrest
5. Customssearch
6. Stopandfriskorterrysearches
7. Exigentandemergencycircumstances

8.
9.

Searchofvesselsandaircraft
Inspection of buildings and other premises for enf of fire
sanitaryandbldgregulation

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 hasbeen
instituted, themotionmaybefiledin and resolved by the courtthatissued
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
resolvedbythelattercourt.

Civil Damages (separate civil action separate from all criminal


liability)
1. ViolationofDomicile
2. SW Maliciously Obtained and Abuse in the Service of those
LegallyObtained
3. SearchingDomicilewithoutWitnesses

RULE127PROVISIONALREMEDIESINCRIMINALCASES

Section 1. Availability of provisional remedies. The provisional


remedies in civilactions, insofar as they areapplicable, may be availedof
inconnectionwiththecivilactiondeemedinstitutedwiththecriminalaction.

Sec.2.Attachment.(ACCO)Whenthecivilactionisproperlyinstituted
inthecriminalactionasprovidedinRule111,theoffendedpartymayhave
the property of the accused attached assecurityforthesatisfactionofany
judgmentthatmayberecoveredfromtheaccusedinthefollowingcases:
(a)WhentheaccusedisabouttoabscondfromthePhilippines

(b) When the criminal action is based on a claim for money or property
embezzled or fraudulently misapplied or converted to the use of the
accused who is a public officer, officer of a corporation, attorney, factor,
broker, agentorclerk, inthe course of his employmentas such, orbyany
otherpersoninafiduciarycapacity,orforawillfulviolationofduty
(c) When the accused has concealed, removed, or disposed of his
property,orisabouttodosoand
(d)WhentheaccusedresidesoutsidethePhilippines.