CONSTITUTIONAL LAW II

by: A.D. Bautista

V. SEARCH AND
SEIZURE CLAUSE
 Search and Seizure Clause (Section 2)
1. History

2. Purpose
 protection of privacy of the person and her possessions
 place judge between individual and law enforcement officer

3. Scope
 prohibition is with respect to unreasonable searches (of property)
and seizures (of persons or things)
 search or seizure without warrant is presumptively unreasonable
 Search and Seizure Clause (Section 2)
4. Characteristics
 Personal
 Ownership not material
 State action

5. Essential Requisites of a Valid Warrant

a. Probable cause
b. Determined personally by a judge
c. After examination under oath or affirmation of the complainant and
the witnesses he may produce

d. Particularly describing the place to be searched and the person or

things to be seized
 Search and Seizure Clause (Section 2)
6. Probable Cause
Definition
 Such facts and circumstances that would lead a reasonably
discreet and prudent man to believe that an offense has
been committed
- by the person sought to be arrested (Arrest)
- and that the objects sought in connection with the offense
are in the place sought to be searched (Search)
 Concerned with probability, not absolute or even moral
certainty; standards of judgment are those of a reasonably
prudent man not the exacting calibrations of a judge after a
full-blown trial (Microsoft – 2004)
Search and Seizure Clause (Section 2)
Characteristics
 Findings of fact not conclusions of law

 Probable cause for issuing a warrant is different from

probable cause for the purpose of filing an information

 Only a judge can determine probable cause for issuing a warrant

- except a final order of deportation (Sy-2002)
- weird case of Harvey v. Santiago
 Warrant can be valid in part only (Salangvit– 2001)
 Search and Seizure Clause (Section 2)

7. Personal Examination
Definition
 Exclusive and personal responsibility of the judge to satisfy
himself of the existence of probable cause (Soliven - 1988)

 Personal examination in the form of searching questions and

answers placing under oath and in writing 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 affidavit submitted (Rule 126, Section 4)
Search and Seizure Clause (Section 2)

 The probing must be exhaustive and not merely routinary and pro
forma (Pendon - 1990)

 The examining judge has to take depositions in writing of the

complainant and the witnesses and to attach them to the record.
This will enable the judge to hold liable for perjury the person
giving it if it will be found later that his declarations are false
(Mamaril – 2004)
 Search and Seizure Clause (Section 2)
8. Particularity of Description
Characteristics
 As specific as the circumstances will ordinarily allow
 Conclusions of fact not of law
 Limit discretion / prevent abuse by the officer enforcing the
warrant
 John Doe warrants (Veloso)
 Search and Seizure Clause (Section 2)

9. Allowable Warrantless Searches

a. Incident to a lawful arrest
 recognized under Rule 126, Section 12 and jurisprudence
 item to be searched was within the arrestee’s custody or area of
immediate control
 search was contemporaneous with the arrest (Nuevas – 2007)
 Search and Seizure Clause (Section 2)
b. Evidence in plain view
 a prior valid intrusion in which the police are
legally present in the pursuit of their official duties
 evidence was inadvertently discovered by the police who
had the right to be where they are
 evidence must be immediately apparent (Evaristo)

c. Search of a moving vehicle

 includes fishing vessels (Roldan - 1975, Hizon - 1991)
 checkpoints (Caballes – 2002), Libnao – 2003)
 Search and Seizure Clause (Section 2)
d. Consent

To constitute a waiver of constitutional right, it must appear that:

 the right exists

 the person involved had knowledge, either actual or
constructive, of the existence of such right
 said person had an actual intention to relinquish the
right (Lopez - 1975) (Spouses Veroy - 1992) (Asisdeaf-mute –
2002)
 Search and Seizure Clause (Section 2)
e. Customs search (Papa - 1968)

f. Stop and Frisk (Manalili – 1997)

Characteristics

 a limited protective search of outer clothing for

weapons
 probable cause not required but mere suspicion or
hunch will not validate a stop and frisk
Search and Seizure Clause (Section 2)
 genuine reason must exist in light of the officer’s experience
and surrounding conditions to warrant the belief that the
person detained has weapons concealed (Malacat – 1997)

 difference with search incident to lawful arrest

(Mengote - 1992)

 search and seizure should precede the arrest for the principle
to apply (Sy Chua – 2003)

Purpose
 effective crime prevention
 safety of police officers
 Search and Seizure Clause (Section 2)
g. Exigent Circumstances (De Gracia - 1994)

9. Warrantless Arrest

a. Definition
A peace officer or private person may, without warrant, arrest a person:
 When in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
Search and Seizure Clause (Section 2)
 When an offense has just been committed, and he has probable
cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it; and

 When the person to be arrested is a prisoner who has escaped from

a penal establishment or place where he is serving final judgement
or temporarily confined while his case was pending, or has escaped
while being transferred from one confinement to another.
(Rule 113, Section 5)
Search and Seizure Clause (Section 2)

b. Entrapment
 Criminal intent originates in the mind of accused
(Doria– 1999)
 Buy bust operation
 Distinguish with instigation

c. Continuing Offenses (Umil)

 Search and Seizure Clause (Section 2)
d. Waiver / Estoppel

 Any objection involving a warrant of arrest or procedure in

the acquisition of jurisdiction over the accused must be
made before plea is entered (Cabiles - 1998)

 Accused is estopped from assailing legality of arrest if he

fails to move to quash information before arraignment
(Hernandez - 1997)
 Search and Seizure Clause (Section 2)
10. Of whatever nature and for whatever purpose

 Subpoena duces tecum (Rule 27)

 Administrative searches

11. Recent Cases

 Just because marijuana plants were found in an unfenced lot
does not mean that the defence of unreasonable search cannot
be raised (Valdez-2000)

 Use of a generic term or a general description in a warrant is

acceptable only when a more specific description of the things to
be seized is unavailable (Uy - 2000)
Search and Seizure Clause (Section 2)
 Judge cannot rely solely and completely on certification made by
the prosecutor that probable cause exists (Abdula -2000)

 Place to be searched as set out in the warrant, cannot be

amplified or modified by the officer’s own personal knowledge
of the premises or the evidence they adduce in support of their
application for the warrant (CA-1998, as distinguished from Burgos
- 1984)

 7:30 p.m. “night time” search in the metropolis deemed

reasonable (Chua-2000)
Search and Seizure Clause (Section 2)
 Witness to search rule- No search made except in the presence
of a lawful occupant or any member of the family or in the
absence of the latter, in the presence of two witnesses of
sufficient age and discretion. What if wife/maid refuses to act as
witnesses? (CA-2000)

 Law requires that there be first a lawful arrest before a search can
be made- the process cannot be reversed (Malacat -1997 and
Chua-1999)
Search and Seizure Clause (Section 2)

 Objects and properties the possession of which is prohibited

by law cannot be returned to their owners notwithstanding
the illegality of their seizure (Chin-Chin Ting-2000)

 Searches at airports- reasonable because of 1) minimal

intrusiveness; 2) gravity of the safety interests involved and 3)
reduced privacy expectations associated with airline travel
(Johnson -2000 and Suzuki- 2003)
Search and Seizure Clause (Section 2)
 Courts can pass upon the validity or regularity of seizure and
forfeiture proceedings by the Bureau of Customs only in
cases of grave abuse of discretion (Bureau of Customs-
2000)

 Bank Secrecy Act– Before in camera inspection may be

allowed, there must be a pending case before a court (not
investigation by the Ombudsman) (Marquez -2001)

 While an application for a search warrant is entitled like a

criminal action, it does not make it such an action (United
Lab– 2005)
Search and Seizure Clause (Section 2)
 Search of moving vehicles- Extensive search allowed only if
officers have probable cause to believe, before the search,
that either the motorist is a law-offender or they will find the
instrumentality or evidence pertaining to a crime in the
vehicle (Caballes– 2002)

 Consent- accused to be presumed to have waived the

unlawful search simply because he failed to object
(Compacion- 2001)

 Application for bail does not have the effect of waiver

of right to challenge the validity of a warrant (Okabe
- 2004)
 Where warrant is shown to be defective, all evidence
obtained shall be inadmissible (Francisco– 2002)
CONSTITUTIONAL LAW II

by: A.D. Bautista