Академический Документы
Профессиональный Документы
Культура Документы
Rule 126 of the 1985 Rules of Criminal Rule 126 of the 2000 Revised Rules on
Procedure covered the following: Criminal Procedure has further expanded
the provisions of Rule 126 to cover the
Definition of a search warrant; following matters:
Personal property to be seized;
Requisites for issuing search Venue of application for the issuance
warrant; of a search warrant (Section 2,
Examination of complaint; records; Rule 1261);
Issuance and form of search warrant;
the time and manner of conducting Motion to quash a search warrant
the search and seizure; and (Section 14)
when there may be a search and
seizure without a warrant (valid
warrantless search); and
Delivery, receipt and inventory of
properties seized
1
the search warrant proceedings to maintain, inter alia, the validity of the
search warrant issued by the court and the admissibility of the properties
seized in anticipation of a criminal case to be filed; such private party may do
so in collaboration with the NBI or such government agency. The party may
file an opposition to a motion to quash the search warrant issued by the court,
or a motion for the reconsideration of the court order granting such motion to
quash”. (United Laboratories Inc. v. Isip, G.R. No. 163858, June 28, 2005)
2
OF INTELLECTUAL PROPERTY RIGHTS (approved En Banc,
January 22, 2002 to be effective February 15, 2002, A.M. No. 02-1-06 SC)
4
Reproduction of Section 2, Rule 126, 1964 Rules of Court as amended in 1985, without change except in
style.
5
A reproduction of Section 3, Rule 126, 1964 Rules of Court as amended in 1985, without change except in
style and adding the phrase “which may be anywhere in the Philippines” after the last word “seized” of this
section.
3
- Probable cause must be shown to be within the personal
knowledge of the complainant or the witnesses he may produce
and not based on mere hearsay, in order to convince the judge,
not the individual making the affidavit and seeking the issuance
of the warrant, of the existence of a probable cause. (20th Century
Fox Film Corp. v. Court of Appeals, G.R. Nos. 76649-51, August 19,
1988; Silva v. RTC of Negros Oriental, G.R. No. 81756, October 21, 1991)
xxx
4
outlaw the so-called general warrants. It is not difficult to
imagine what would happen, in times of keen political strife,
when the party in power feels that the minority is likely to wrest
it, even though by legal means.
d. Particularity of description
Rationale:
- The case of Corro v. Lising, 137 SCRA 541, still provides the
best explanation as to the evident purpose and intent of this
requirement, i.e., to limit the things to be seized to those, and
only those, particularly described in the search warrant – to
leave the officers of the law with no discretion regarding what
articles they shall seize, to the end that “unreasonable searches
and seizures” may not be made, – that abuses may not be
committed;
5
required to be specific only in so far as circumstances will allow.
(Kho v. Judge Makalintal, supra);
- Where the search warrant is issued for the premises only and
not for the search of a person, the failure to name the owner or
occupant of such property in the affidavit and search warrant
does not invalidate the warrant and where the name of the
owner of the premises sought to be searched is incorrectly
inserted in the search warrant, it is not a fatal defect if the legal
description of the premises to be searched is otherwise correct
so that no discretion is left to the officer making the search as to
the place to be searched. The search could not be declared
unlawful or in violation of the constitutional rights of the owner or
6
occupants of the premises, because of inconsistencies in stating
their names. (Uy vs. Bureau of Internal Revenue, supra., citing Miller
v. Sigler, 353 2d 424 [1965])
Insufficiency of Affidavits
- Mere affidavits of the complainant and his witnesses are not
sufficient. The examining Judge has to take depositions in
7
writing of the complainant and the witnesses he may produce
and to attach them to the record. Such written deposition is
necessary in order that the Judge may be able to properly
determine the existence or non-existence of the probable cause,
to hold liable for perjury the person giving if it will be found later
that his declarations are false. (Mata v. Bayona, 128 SCRA 388)
- Search warrants are not issued on loose, vague or doubtful basis
of fact, nor on mere suspicion or belief. The facts recited in an
affidavit supporting the application for a search warrant must be
stated with sufficient definiteness, so that, if they are false,
perjury may be assigned on the affidavit. Hence, affidavits which
go no further than to allege conclusions of law, or of fact, are
insufficient. (Quintero v. National Bureau of Investigation, 162 SCRA
483)
Presumption of Regularity
- The presumption of regularity in determination of probable cause;
as long as there is substantial basis for that determination is
sufficient. Substantial basis means that the questions of the
examining judge brought out such facts and circumstances as
would lead a reasonably discreet and prudent man to believe that
8
an offense has been committed, and the objects in connection with
the offense sought to be seized are in the place sought to be
searched. Alvarez test of sufficiency of deposition reiterated;
(People v. Tee, supra.)
In the case at bar, NBI Agent Timoteo Rejano who applied for
the issuance of Search Warrant Nos. 56-93 and 57-93, had
personal knowledge of the circumstances on which the warrants
were based. Admittedly, Rejano's knowledge of petitioner's
illegal possession of firearms and prohibited drugs came
from a confidential informant, and therefore, initially
hearsay. Nevertheless, the surveillance and investigation
he conducted on the basis of said confidential information
enabled him to gain personal knowledge of the illegal
activities of petitioner. Hence, his testimony was sufficient
justification for the examining judge to conclude that there
was probable cause for the issuance of a search warrant.
(PEDRO CUPCUPIN vs. PEOPLE OF THE PHILIPPINES. G.R. No.
132389, November 19, 2002 [392 SCRA 203])
9
The following general rules are said to apply to affidavits for
search warrants:
(1) xxx
(2) Such statement as to the time of the alleged
offense must be clear and definite and must not
be too remote from the time of the making of the
affidavit and issuance of the search warrant.
(3) There is no rigid rule for determining whether the
stated time of observation of the offense is too
remote from the time when the affidavit is
made or the search warrant issued, but,
generally speaking, a lapse of time of less
than three weeks will be held not to invalidate
the search warrant, while a lapse of four
weeks will be held to be so.
A good and practical rule of thumb to measure the
nearness of time given in the affidavit as to the date
of the alleged offense, and the time of making the
affidavit is thus expressed: “The nearer the time at
which the observation of the offense is alleged to
have been made, the more reasonable the
conclusion of establishment of probable cause. ”
[Italics Ours]
2. The knock and announce rule. — Officers must first announce his
purpose.
10
Exceptions:
1. The destruction of evidence exception — reasonable cause to
believe that the notice would endanger the successful execution of the
warrant.
2. The danger to person exception.
3. The useless gesture exception — when it is evident from the
circumstances that the authority and purpose of the police is already
known to those within the premises. (2 La Fave, pp. 280-286)
D. Time of service
- The warrant must direct that it be served in the daytime, 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. (Section
8, Rule 126)
Exception:
1) A search at any reasonable hour of the day or night, when the application
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. (People v. Court of Appeals, G.R. No. 117412, December 8, 2000; Section 8, Rule 126)
11
2) If the judge is satisfied that the property is in the person or in the place ordered
to be searched, a direction may be inserted in the warrants that it be served at any
time of the day or night (Adm. Circular No. 13 dated October 1, 1985; People v. Court of
Appeals, supra.)
3) Where a search is to be made during the night time, the authority for executing
the same at that time should appear in the directions on the face of the warrant
otherwise a search and seizure made at nighttime is invalid (Asian Surety &Insurance
Co. Inc. v. Herrera, supra.)
Rationale:
The policy behind the prohibition of nighttime searches in the absence of specific
judicial authorization is to protect the public from the abrasiveness of official
intrusions. A nighttime search is a serious violation of privacy. (People v. Court of
Appeals, supra.)
- Thus, where there is no showing that the search which began at 7:30 p. m.
caused an “abrupt intrusion upon sleeping residents in the dark” or that it caused
private respondent’s family such prejudice as to make the execution of the warrant
a voidable act the search is valid. The court took judicial notice that 7:30 p.m. in a
suburban subdivision in Metro Manila is an hour at which the residents are still up-
and-about. to hold said hour as an unreasonable time to serve a warrant would not
only hamper law enforcement, but could also lead to absurd results, enabling
criminals to conceal their illegal activities by pursuing such activities only at night
(People v. Court of Appeals, Supra)
E. Scope of Search
12
packages, in the case of a vehicle, must give way to the interest in the
prompt and efficient completion of the task at hand.
F. Intensity of Search
- The permissible intensity of the search within the described premises is
determined by the description of the thing to be seized as the Supreme
Court has noted in a similar context, “the same meticulous investigation
which would be appropriate in a search for two small canceled checks
could not be considered reasonable where agents are seeking a stolen
automobile or an illegal still. (Harris v. Unites States, 331 U.S. 145)
- A search into closets, desks, boxes and other containers is permissible
only if at least one of the items described in the warrant as an object of the
search could be concealed therein.
- Invalid search or seizure of illegal drug in a hut that has not been proven
to be owned, controlled, or used by the appellant for residential or any
other purpose.
13
- Search and seizure incident to lawful arrest limited to the area within
which the person to be arrested can reach for a weapon or for evidence
that he or she can destroy (immediate control test). (People v. Estella, G.R.
Nos. 138539-40, January 21, 2003 [395 SCRA 553])
1. Property to be seized
14
- The search incidental to a lawful arrest is limited to a search for:
a. Dangerous Weapons, or
b. Anything which may used as proof of the
commission of the offense
15
reasonable search under the Fourth Amendment. (U.S. v.
Robinson, 414 U.S. Ct. 218 94 S. Ct. 467 38 L. Ed. 2d 427 [1973])
b) Moving Vehicles
Rationale:
- Where the police officers did not merely conduct a visual search
or inspection of the vehicle but had to reach inside the vehicle,
lift the kakawati leaves and look inside the sacks before they
were able to see the cable wares, it cannot be considered as a
simple routine check (Caballes v. Court of Appeals, supra.)
c) Consented Search
16
such waiver must constitute a valid waiver made voluntarily,
knowingly and intelligently. The act of the accused-appellant in
allowing the members of the military to enter his premises and
his consequent silence during unreasonable search and seizure
could not be construed as voluntary submission or an implied
acquiescence, to warrantless search and seizure especially so
when the members of the raiding team were intimidatingly
numerous and heavily armed. His implied acquiescence, if any,
could not have been more than mere passive conformity given
under coercive or intimidating circumstances and is, thus,
considered no consent at all within the purview of the
constitutional guarantee. Consequently, herein accused-
appellant’s lack of objection to the search warrant and seizure is
not tantamount to a waiver of his constitutional right or a
voluntary submission to the warrantless search and seizure.
(People v. Compacion, 361 SCRA 540 [2002])
Under the “plain view doctrine,” unlawful objects within the “plain
view” of an officer who has the right to be in the position to have
that view are subject to seizure and may be presented in
evidence. Nonetheless, the seizure of evidence in plain view
must comply with the following elements: (1) a prior valid
intrusion based on the valid 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; and (4) “plain view” justified mere seizure
of evidence without further search. (People v. Rolando Aspiras, 376
SCRA 546)
17
- For the doctrine to apply, the following elements must be
present:
1) A prior valid intrusion based on the valid
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 have the right to be where they are;
3) The evidence must be immediately apparent; and
4) Plain view justified mere seizure of evidence
without further search. (People v. Bolosa, G.R. No.
125754, December 22,1999, citing People v. Aruta, 288
SCRA 626, 637-638)
18
b. Search Under Customs Laws
19
Aguinaldo which was under attack by the rebel forces. The
courts in the surrounding areas were obviously closed and for
that matter, the building and houses therein were deserted.
Under the foregoing circumstances, it is our considered opinion
that the instant case falls under one of the exceptions to the
prohibition against warrantless search. (People v. De Gracia, 233
SCRA 716)
h) Checkpoints
- This Court has ruled that not all checkpoints are illegal. Those
which are warranted by the exigencies of public order and are
conducted in a way least intrusive to motorists are allowed. For,
admittedly, routine checkpoints do intrude, to a certain extent,
on motorists’ right to “free passage without interruption,” but it
cannot be denied that, as a rule, it involves only a brief
detention of travellers during which the vehicle’s occupants are
required to answer a brief question or two. For as long as the
vehicle is neither searched nor its occupants subjected to a
body search, and the inspection of the vehicle is limited to a
visual search, said routine checks cannot be regarded as
violative of an individual’s right against unreasonable search. In
fact, these routine checks, when conducted in a fixed area, are
even less intrusive. (People v. Escaño, et al., 323 SCRA 754 [2000])
i) Airports
20
manner reflecting a lack of subjective expectation of privacy,
which expectation society is prepared to recognize as
reasonable. Such recognition is implicit in airport security
procedures. With increased concern over airplane hijacking and
terrorism has come increased security at the nation’s airports.
Passengers attempting to board an aircraft routinely pass
through metal detectors; their carry-on baggage, as well as
checked luggage are routinely subjected to x-ray scans. Should
these procedures suggest the presence of suspicious objects,
physical searches are conducted to determine what the objects
are. There is little question that such searches are reasonable,
given their minimal intrusiveness, the gravity of the safety
interests involved, and the reduced privacy expectations
associated with airline travel. Indeed travellers are often notified
through airport public address systems, signs, and notices in
their airline tickets that they are subject to search and, if any
prohibited materials or substances are found, such would be
subject to seizure. These announcements place passengers on
notice that ordinary constitutional protections against
warrantless searches and seizures do not apply to routine
airport procedures. (People v. Johnson, 348 SCRA 526 [2000])
NOTE: These instances however do not dispense with the requisite of probable
cause before a warrantless search and seizure can be lawfully conducted. In
warrantless search cases, probable cause must only be based on reasonable
ground of suspicion or belief that a crime has been committed or is about to be
committed. (People v. Sarap, G.R. NO. 132165, March 26, 2003 [399 SCRA 503])
V. REMEDIES
A. GENERAL PRINCIPLE: Consequence of illegal search and
seizure = Total Exclusionary Rule
21
the right against self-incrimination inadmissible in evidence against
him.
22
July 2, 1998) otherwise, it is waived. (Andal v. People, G.R. No. 124933,
September 25, 1977; People v. Gastador, G.R. No. 123727, April 14, 1999;
People v. Atotado, G.R. No. 122966, March 25, 1999)
CUSTODIAL INVESTIGATION
I.
23