SEARCH AND SEIZURE

committed and the person to be arrested committed it

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 personal property described therein
and bring it before the court.

WHY ARE THE REQUIREMENTS FOR THE

ISSUANCE OF A SEARCH WARRANT MORE
STRINGENT THAN THE REQUIREMENTS FOR THE
ISSUANCE OF A WARRANT OF ARREST?

WHAT IS A SEARCH WARRANT?

>
A search warrant is an order in writing issued in the
name of the People of the Philippines, signed by a
judge and directed to a peace officer, commanding him
to search for personal property described therein and
bring it before the court.

WHAT IS THE CONCEPT OF A SEARCH WARRANT?

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It is a criminal process akin to a mode of discovery
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It is a special and peculiar remedy, which is drastic in
nature

ARE SEARCH AND SEIZURES PROHIBITED UNDER THE

CONSTITUTION?
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No. The constitutional guarantee embodied in Article
3, Section 2 of the Constitution is not a blanket prohibition
against all searches and seizures as it operates only
against unreasonable searches and seizures

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The right against unreasonable search and seizure is a
core right implicit in the natural right to life, liberty and
property. Even in the absence of a constitution, individuals
have a fundamental and natural right against
unreasonable search and seizure under natural law.
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Moreover, the violation of the right to privacy
produces a humiliating effect that cannot be rectified
anymore.
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This is why there is no other justification to speak of for
a search, except for a warrant.
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On the other hand, in a warrant of arrest, the
person to be arrested can always post bail to prevent the
deprivation of liberty.
Sec. 2. Court where application for search warrant shall be
filed. An application for search warrant shall be filed with
the following:
(a) Any court within whose territorial jurisdiction a
crime was committed.
(b) For compelling reasons stated in the application, any
court within the judicial region where the crime was
committed if the place of the commission of the crime is
known, or any court within the judicial region where the
warrant shall be enforced.
However, if the criminal action has already been
filed, the application shall only be made in the court
where the criminal action is pending.

WHEN IS THE SEARCH OR SEIZURE UNREASONABLE?

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A search and seizure is unreasonable if it is made
without a warrant, or the warrant was invalidly issued.
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In all instances, what constitutes reasonable or
unreasonable search or seizure is a purely judicial question
determinable from a consideration of the attendant
circumstances.
WHAT ARE THE THREE SITUATIONS WHEREIN
THERE MUST BE FINDING OF PROBABLE CAUSE?
1. Probable cause in filing of an information
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Facts and circumstances that would engender
a well-grounded belief that a crime has been
committed and the person to be charged is probably guilty
thereof
2. Probable cause in the issuance of a search
warrant
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Facts and circumstances that would lead a
reasonable discreet and prudent man to believe that
there has been a crime committed and the things and
objects connected to the crime committed are in the place
to be searched
3. Probable cause in the issuance of a warrant of
arrest
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Facts and circumstances that would engender
a well-grounded belief that a crime has been

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WHERE SHOULD ONE FILE

FOR SEARCH WARRANT?

AN

APPLICATION

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As a general rule, any court within whose territorial
jurisdiction a crime was committed BUT FOR
COMPELLING REASONS stated in the application, any
court within the judicial region where the crime was
committed if the place of the commission of the crime is
known, or any court within the judicial region where the
warrant shall be enforced.
>
For example, a drug syndicate keeps his drugs in a
warehouse in Pasay for the reason that it has
connections in Pasay and can easily get a tip when
the police officers will file for a search warrant. To
avoid the drug syndicate from getting a tip of the
impending search, the police officers apply for a search
warrant in Makati stating the compelling reason.
> However, if the criminal action has already been
filed, the application shall only be made in the court
where the criminal action is pending.
Sec. 3. Personal property to be seized. A search warrant
may be issued for the search and seizure of personal
property:
(a) Subject of the offense;

(b) Stolen or embezzled and other proceeds, or fruits

of the offense; or
(c) Used or intended to be used as the means of
committing an offense.
WHAT MAY BE THE SUBJECT OF A SEARCH WARRANT?
1. Subject of the offense;
2. Stolen or embezzled and other proceeds, or fruits of the
offense; or
3. Used or intended to be used as the means of
committing an offense.

IS IT NECESSARY THAT THE PERSON NAMED IN

THE SEARCH WARRANT BE THE OWNER OF THE
THINGS TO BE SEIZED?
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No, ownership is of no consequence.
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What is relevant is that the property is connected to an
offense.
Sec. 4. Requisites for issuing search warrant. A
search warrant shall not issue except upon probable cause
in connection with one specific offense to be determined
personally by the judge after examination under oath or
affirmation of the complainant and the witness he may
produce, and particularly describing the place to be
searched and the things to be seized which may be
anywhere in the Philippines.

WHAT ARE THE REQUISITES OF A VALID SEARCH

WARRANT?
1. There must be probable causefacts and
circumstances that would engender a well-founded belief in
a reasonable prudent and discreet man that a crime has
been committed and the things and objects to be seized can
be found in the place to be searched
2. Which must be determined by the judge personally
through searching and probing questionsquestions
not merely answerable by yes or no but could be
answered by the applicant and the witnesses on facts
personally known to them
3. (Upon whom?) The complainant and the witnesses
he may produce are personally examined by the judge,
in writing and under oath and affirmation
4. (Based on what?) The applicant and the witnesses
testify on facts personally known to them
5. The probable cause must be in connection with the
specific offense
6. The warrant specified describes the person and
place to be searched and the things to be seized
7. The sworn statement together with the affidavits of the
witnesses must be attached to the record

WHAT IS THE PURPOSE FOR THE PARTICULARITY OF

DESCRIPTION OF THE PLACE TO BE SEARCHED AND
THE THINGS TO BE SEIZED?
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The evident purpose and intent of this requirement is
to limit the things to be seized to those, and only those,
particularly described in the search warrantto leave
officers of the law with no discretion regarding what

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articles they should seize, to the end that

unreasonable searches and seizures may not be
committed, that abuses may not be committed.
Sec. 5. Examination of complainant; record. The
judge must, before issuing the warrant, personally
examine in the form of searching questions and
answers, in writing and under oath, the complainant and
the witnesses he may produce on facts personally known
to them and attach to the record their sworn
statements, together with the affidavits submitted.

WHEN IS THE AFFIDAVIT OR TESTIMONY OF THE

WITNESS SAID TO BE BASED ON PERSONAL
KNOWLEDGE?
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The test is whether perjury could be charged against
the witness

WHAT ARE THE REQUISITES OF THE PERSONAL

EXAMINATION THAT THE JUDGE MUST CONDUCT
BEFORE ISSUING THE SEARCH WARRANT?
1.
2.
3.
the

The judge must examine the witness personally

The examination must be under oath
The examination must be reduced into writing in
form of searching questions and answers

Sec. 6. Issuance and form of search warrant. If the

judge is satisfied of the existence of facts upon which
the application is based or that there is probable cause to
believe that they exist, he shall issue the warrant, which
must be substantially in the form prescribed by these
Rules.
WHAT IS A SCATTER SHOT WARRANT?
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It is a warrant of arrest that is issued for more than one
offense
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It is void for the law requires that a warrant of arrest
should only be issued in connection with one specific
offense

A WARRANT WAS ISSUED FOR THE SEIZURE OF

DRUGS CONNECTED WITH THE VIOLATION OF THE
DANGEROUS DRUGS ACT. IS THE WARRANT
VALID?
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The warrant is valid
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Although there are many ways of violating the
Dangerous Drugs Act, it is not a scatter shot warrant since
it is in connection with only one penal law

POLICE OFFICERS APPLIED FOR A WARRANT TO

SEARCH DOOR #1 OF AN APARTMENT COMPLEX. THE
COURT ISSUED THE WARRANT. WHEN THEY WENT TO
THE APARTMENT COMPLEX, THEY REALIZED THAT
WHAT THEY THOUGHT WAS DOOR #1 WAS ACTUALLY
DOOR #7. CAN THEY SEARCH DOOR #7?
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No, what is controlling is what is stated in the
warrant, and not what the peace officers had in mind,
even if they were the ones who gave it the description to

the court.
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This is to prevent abuses in the service of search
warrants

CAN THE POLICE OFFICER SEIZE ANYTHING

THAT IS NOT INCLUDED IN THE WARRANT?
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No, anything not included in the warrant cannot be
seized EXCEPT if its mala prohibita, in which case, the
seizure is justified under the plain view doctrine.
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Even if the object was related to the crime, but it is not
mentioned in the warrant nor is it mala prohibita, it still
cannot be seized

POLICE OFFICERS WENT TO THE HOUSE TO

EXECUTE A SEARCH WARRANT. THEY FOUND A
PISTOL ON THE TABLE, BUT THE PISTOL WASNT
INCLUDED IN THE SEARCH WARRANT. CAN THEY
SEIZE THE PISTOL?

who werent the occupants of the premises.

Sec. 9. Time of making search. The warrant must direct
that it be served in the day time, unless 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.

WHEN SHOULD THE SEARCH WARRANT BE

EXECUTED?
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If possible, it should be executed during the daytime
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But in certain cases, such as when the things seized
are mobile or are in the person of the accused, it can be
served during nighttime
Sec. 10. Validity of search warrant. A search warrant
shall be valid for ten (10) days from its date. Thereafter, it
shall be void.
FOR HOW LONG IS THE SEARCH WARRANT VALID?

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No, it is not mala prohibita and they have no
proof that it is unlicensed.

WHAT SHOULD THE POLICE OFFICER OR COURT

TO DO THINGS SEIZED ILLEGALLY?
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Anything seized illegally must be returned to the owner
unless it is mala prohibita. In such a case, it should be kept
in custodia legis.
Sec. 7. 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 to liberate himself or any
person lawfully aiding him when unlawfully detained
therein.
Sec. 8. Search of house, room, or premises to be made in
presence of two witnesses. No search of a house,
room, or any other 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, two
witnesses of sufficient age and discretion residing in the
same locality.
NOTE: The two witness rule only applies in the
absence of the lawful occupants of the premises searched
PEACE OFFICERS RAIDED A HOUSE, WHICH WAS
SUSPECTED TO BE A FACTORY FOR ILLEGAL
DRUGS.
DURING THE RAID, 8 CHINESEMEN
WERE FOUND INSIDE WHO COULDNT SPEAK
ENGLISH OR FILIPINO. THE CHINESE WERE
LOCKED INSIDE A ROOM AND TWO WITNESSES
WHO WERE NOT OCCUPANTS WERE USED
WHILE SEARCHING THE HOUSE AND
SEIZING THE PROHIBITED DRUGS. VALID?
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No.
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The two-witness rule can only apply when there is
absence of the lawful occupants of the premises searched.
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In this case, they locked the occupants in a room while
doing the search and seizure and used 2 witnesses

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>
It is valid for 10 days, after which the police officer
should make a return to the judge who issued it
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If the police officer doesnt make a return, the
judge should summon him and require him to explain why
no return was made
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If the return was made, the judge should determine if
the peace officer issued the receipt to the occupant of
the premises from which the things were taken.
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The judge shall also order the delivery to the court of
the things seized.
IF THE WARRANT WAS EXECUTED EVEN BEFORE THE
EXPIRATION OF THE 10-DAY PERIOD, CAN THE
PEACE OFFICER USE THE WARRANT AGAIN BEFORE
IT EXPIRES?
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No, of the purpose for which it was issued has
already been carried out, the warrant cannot be used
anymore.
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The exception is if the search wasnt finished
within 1 day, the warrant can still be used the next
day, provided it is still within the 10-day period
Sec. 11. Receipt for the property seized. The officer
seizing the property under the warrant must give a
detailed receipt for the same to the 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 residing in the same locality, leave a receipt in
the place in which he found the seized property.

WHAT IS THE DUTY OF THE OFFICER WHEN HE

SEIZES THE PROPERTY?
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The officer seizing the property under the warrant
must give a detailed receipt for the same to the
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 residing in the same locality,
leave a receipt in the place in which he found the seized
property.

CAN THE OWNER OF THE THINGS SEIZED BE

MADE TO SIGN THE RECEIPT?
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No since this would be tantamount to a violation
of ones right against self-incrimination.
It is a
confession without the assistance of counsel.

IS THERE PERIL TO THE OWNER OF THE THINGS

SEIZED IF HE IS MADE TO SIGN THE BOOKING SHEET?
>
There is no peril since he would just be made to
acknowledge that a case has been filed against him

THE ACCUSED WAS ARRESTED DURING A BUYBUST OPERATION. PESO BILLS WERE SEIZED FROM
HIM. CAN THE ACCUSED BE MADE TO SIGN THE
BILLS?
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>

Yes, having the bills is not a crime.

This applies even if the bills involved is marked money.

1.

A warrantless search incidental to a lawful arrest

a. Arrest must be lawful
b. It must be contemporaneous with the arrest in both
time and place
c.
Within the vicinity of the person arrested,
immediate control, which is the evidence of the offense or
weapon
2. Search of evidence in plain view
3. Search of a moving vehicle
a. Must be cursory
b. Cant make a thorough search; just have to take a
look; not to open trunks
4. Consented warrantless searches
a. The right exists
b. Person making the consent knows that he has the
right
c.
In spite of the knowledge of the right, he voluntarily
and intelligently gives his consent
5. Customs searches
6. Stop and frisk
7. Exigent and emergency circumstances
8. Checkpoints
9. Republic Act requiring inspections or body checks in
airports
10. Emergency
11. In times of war and within military operations

Sec. 12. Delivery of property and inventory thereof to court;

return and proceedings thereon.

WHAT ARE THE INSTANCES OF A PERMISSIBLE

WARRANTLESS ARREST?

(a) The officer must forthwith deliver the property

seized to the judge who issued the warrant, together
with a true inventory thereof duly verified under oath.

1.
2.
3.

(b) Ten (10) days after issuance of the search warrant, the
issuing judge shall ascertain if the return has been made,
and if none, shall summon the person to whom the
warrant was issued and require him to explain why no
return was made. If the return has been made, the
judge shall ascertain whether section 11 of this Rule has
been complied with and shall require that the property
seized be delivered to him. The judge shall see to it
that subsection (a) hereof has been complied with.
(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 date of the return, the result,
and other actions of the judge.
A violation of this section shall constitute contempt of court.

WHAT IS THE DUTY OF THE OFFICER AFTER THE

PROPERTY SOUGHT UNDER THE SEARCH WARRANT
HAS BEEN SEIZED?
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The officer must forthwith deliver the property seized
to the judge who issued the warrant, together with a
true inventory thereof duly verified under oath.
Sec. 13. Search incident to lawful arrest. A person
lawfully 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
search warrant.
IN WHAT INSTANCES WOULD A SEARCH AND SEIZURE
WITHOUT A WARRANT BE ALLOWED?

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Arrest in flagrante delicto

Arrest effected in hot pursuit
Arrests of escaped prisoners

WHAT IS THE AREA OF COVERAGE OF AN OFFICERS

SEARCH? IS IT LIMITED TO THE PERSON OF THE
ACCUSED?
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Under this rule, the search being an incident to a
lawful arrest may extend beyond the person of the one
arrested to include the premises or surrounding under his
immediate control
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The search must be made after the arrest. The
objective is to make sure that the life of the peace
officer will not be endangered. It must be
contemporaneous with the arrest in both time and place.

WHEN IS THE WARRANTLESS SEARCH OF A

MOVING VEHICLE ALLOWED?
>
It is allowed when it is not practicable to secure a
warrant
WHAT ARE THE REQUIREMENTS IN A
WARRANTLESS SEARCH INCIDENTAL TO A LAWFUL
ARREST?
1. Arrest must be lawful
2. It must be contemporaneous with the arrest in
both time and place
3. Within the vicinity of the person arrested,
immediate control, which is the evidence of the offense or
weapon

WHO SHOULD GIVE CONSENT TO A

WARRANTLESS SEARCH AND WHAT ARE THE
REQUISITES?

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No, only the court that ordered its confiscation
may release the object

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Only the person whose right may be violated can
give the consent; it is a personal right that cannot be
availed of by third parties. The requisites are:
1. The person has knowledge of his right against the
search
2. He freely and intelligently gives his consent in
spite of such knowledge

IF THE ARRESTED PERSON SIGNS THE RECEIPT OF

THE PROPERTY SEIZED WITHOUT THE ASSISTANCE
OF COUNSEL, IS THE RECEIPT ADMISSIBLE?
>

No, because it was done without assistance of counsel

WHAT IS THE MULTI-FACTOR BALANCING TEST?

WHAT ARE THE REQUISITES FOR THE PLAIN VIEW
DOCTRINE TO APPLY?
1. There must have been a prior valid intrusion
based on the warrantless arrest in which the police are
legally present in the pursuit of their official duties
2. The evidence was inadvertently discovered by the
police who had the right to be where they are
3. The evidence must be immediately apparent
4. There was no need for further search

WHAT IS A STOP AND FRISK SITUATION? WHEN IS IT

VALID?
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It is a situation wherein there is a limited
protective search of outer clothing for weapons
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While probable cause is not required to conduct a stop
and frisk, mere suspicion or a hunch will not validate such a
procedure.
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A genuine reason must exist, in light of the police
officers experience and surrounding conditions, to warrant
the belief that the person has detained the weapons
concealed about him.
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.

A POLICE OFFICER WAS GRANTED TO SEARCH

THE HOUSE FOR REBEL OFFICERS. CAN THE
POLICEMAN CONDUCT A WARRANTLESS SEARCH?
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NO, the permission didnt include the room to
room search and anything confiscated will be inadmissible

>
It requires officers to weigh the manner and
intensity of the interference of the right of the people,
the gravity of the crime committed, and the
circumstances attending the incident.

WHERE SHOULD ONE FILE THE NOTION TO

QUASH WARRANT OR TO SUPPRESS EVIDENCE?
1. In the court where the action has been instituted
2. If no criminal action has been filed, in the court
that issued the warrant
3. However, if said court failed to resolve the motion and a
criminal case is subsequently filed in another court, the
motion shall be filed in the latter court

A MOTION TO QUASH WAS FILED IN THE COURT

WHERE THE CRIMINAL ACTION WAS FILED.
DURING THIS TIME, THE PRELIMINARY
INVESTIGATION WAS ONGOING. THE ACCUSED
MOVES FOR THE SUSPENSION OF THE PRELIMINARY
INVESTIGATION. VALID AND PROPER?
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No, the preliminary investigation is of different
nature from deciding on whether to grant the motion to
quash the warrant
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The result of one will not affect the other. One deals on
probable cause on whether there are facts and
circumstances that would engender a well-founded belief
that a crime has been committed and the accused is
probably guilty thereof. The other deals on whether the
things and objects were seized legally or not.
NOTE: The Motion To Quash, filed in the issuing
court, or to Suppress Evidence, filed with the court
trying the case, are alternative, not cumulative
remedies. If one is filed, the other can no longer be availed
of. The court first taking cognizance of the motion does so
to exclusion of the other. The proceedings thereon are
subject to the omnibus motion rule and the rule against
forum shopping.

WHAT IS THE TOTAL EXCLUSIONARY RULE?

IF AN OBJECT HAS BEEN SEIZED UPON ORDERS
OF THE COURT, MAY A COORDINATE COURT ISSUE
A REPLEVIN ORDER FOR THE RELEASE OF THE
OBJECT?

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>
Things and objects seized in violation of the right
against unreasonable searches and seizures are fruits
of the poisonous tree and are inadmissible as evidence