Constitutional Law II - Bill of Rights Section 2

Question 1

Sec. 2, Art. III, 1987 Constitution

Answer 1

The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched and the
persons or things to be seized.

Question 2

Is the right against
unreasonable search and
seizure absolute?

Answer 2

Yes, the right against
UNREASONABLE search and
seizure is
inviolable.

Question 3

Can a person avail of the right
against unreasonable search
and seizure in the absence of a
provision in the Constitution?

Question 4

Against whom is the right
against unreasonable search
and seizure enforceable?

Answer 4

the
constitutional protection against unreasonable searches and seizures refers
to the immunity of one’s person from interference by government and it
cannot be extended to acts committed by private individuals so as to bring it
within the ambit of alleged unlawful intrusion.

Question 5

What is arrest?

Answer 5

Arrest is the taking of a person into custody in order that he may be bound to answer
for the commission of an offense. (1)

Question 6

How is arrest made?

Answer 6

An arrest is made by an actual restraint of a person to be arrested, or by his
submission to the custody of the person making the arrest.
No violence or unnecessary force shall be used in making an arrest. The person
arrested shall not be subject to a greater restraint than is necessary for his detention.
(2a)

Question 7

When should an arrest be
made?

Answer 7

An arrest may be made on any day and at any time of the day or night. (6)

Question 8

What is the duty of the police
officer tasked to execute the
Warrant of Arrest?

Answer 8

The head of the office to whom the warrant of arrest was delivered for execution shall
cause the warrant to be executed within ten (10) days from its receipt. Within ten (10)
days after the expiration of the period, the officer to whom it was assigned for
execution shall make a report to the judge who issued the warrant. In case of his
failure to execute the warrant, he shall state the reasons therefor. (4a)

Question 9

What is the duty of the
arresting officer in case the
accused is arrested?

Answer 9

It shall be the duty of the officer executing the warrant to arrest the accused and to
deliver him to the nearest police station or jail without unnecessary delay. (3a)

Question 10

What are the requisites for the
issuance of a Warrant of
Arrest?

Answer 10

1. Probable cause;
2. Probable cause is determined personally by the judge;
3. The judge must examine other documents other than the resolution of the
   prosecutor;
4. Particularly describing the person to be arrested.

Question 12

Distinguish Probable Cause for
Indictment by the Prosecutor
and Probable Cause for
Issuance of WA?

Answer 12

PROBABLE CAUSE BY THE PROSECUTOR

Whether there is reasonable ground to believe that the accused is guilty of the offense
charged and should be held for trial.

PROBABLE CAUSE BY THE JUDGE (ISSUANCE OF WARRANT OF ARREST)

In turn, probable cause for the issuance of a warrant of arrest has been defined as
such facts and circumstances which would lead a reasonably discreet and prudent
man to believe that an offense has been committed by the person sought to be
arrested.

Question 13

Requisites for the warrant of arrest to pass the test of particularity

Answer 13

For a warrant of arrest to pass the test of
particularity it should state:
1. Name of the accused.
2. Descriptio personae
3. Assumed Appellation (John Doe, Jane Doe)

Question 14

What is a search warrant?

Answer 14

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. (1)

Question 15

When should a search be made?

Answer 15

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. (8)

Question 16

What is the period of validity of
a search warrant?

Answer 16

A search warrant shall be valid for ten (10) days from its date. Thereafter it shall be void.

Question 17

What is the duty of the police officer tasked to execute the Search Warrant?

Answer 17

(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.

(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 complained 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.(11a)

Question 18

What is the rule of construction in case of doubt in the issuance of a Search Warrant?

Answer 18

The general rule that statutes authorizing searches and seizures or search warrants must be strictly construed.

Question 19

Who can assail the validity of a
Search Warrant?

Answer 19

Parties whose rights are impaired

Question 20

What are the requisites for the
issuance of a Search Warrant?

Answer 20

1. Probable cause;
2. Probable cause is determined personally by the judge;
3. The judge must examine must examine under oath or affirmation the complainant
   and the witnesses he may produce;
4. Particularly describing the place to be searched and the things to be seized.

Question 21

What is probable cause for the
issuance of SW?

Answer 21

the applicant must show “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
connection with the offense are in the place sought to be searched.”

Question 22

What is the requirement in
personal determination of
probable cause by the judge in
the issuance of SW?

Answer 22

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. (4a)

Question 23

What is EXAMINATION UNDER
OATH OR AFFIRMATION

Answer 23

In its broadest sense, an oath includes any form of attestation by which a party
signifies that he is bound in conscience to perform an act faithfully and
truthfully; and it is sometimes defined as an outward pledge given by the
person taking it that his attestation or promise is made under an immediate
sense of his responsibility to God

Question 24

What is the rule as to
particularity of the PLACE to be
searched?

Answer 24

The particularization of the
description of the place to be searched may properly be done only by the Judge, and
only in the warrant itself; it cannot be left to the discretion of the police officers
conducting the search.

Question 25

What is the rule as to
particularity of the THINGS to
be seized?

Answer 25

These provisions are mandatory and
must be strictly complied with

but where, by the nature of the goods to be seized, their description must be
rather general, it is not required that a technical description be given, as this
would mean that no warrant could issue

Question 26

What is the rule as to
particularity of the OFFENSE?

Question 27

When can a warrantless arrest
be made ?

Answer 27

Section 5. Arrest without warrant; when lawful. — A peace officer or a private person may,
without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) 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
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or is temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.

Question 28

Requisites of In flagrante delicto

Answer 28

(1) the person to be
arrested must execute an overt act indicating that he has just
committed, is actually committing, or is attempting to commit a
crime; and (2) such overt act is done in the presence or within
the view of the arresting officer.

Question 29

What is the meaning of
“PRESENCE” in
in flagrante delcito?

Answer 29

It must be stressed at this point that “presence” does not only require
that the arresting person sees the offense, but also when he “hears
the disturbance created thereby AND proceeds at once to the scene

Question 30

Requisites in a Hot Pursuit arrest

Answer 30

(1) an offense has just been committed; and, (2) the person making
the arrest has personal knowledge of facts indicating that the person
to be arrested had committed it.

Question 31

Search and seizures that can be done without a search warrant

Answer 31

(1) search incident to a lawful arrest; (2) search of a
moving motor vehicle; (3) search in violation of customs laws; (4) seizure of
the evidence in plain view; (5) search when the accused himself waives his
right against unreasonable searches and seizures; (6) stop and frisk; and
(7) exigent and emergency circumstances.

Question 32

Arrests that can be done without a warrant

Answer 32

In flagrante delicto

Hot pursuit

arrest of an escapee

Question 33

What is the scope STOP AND FRISK

Answer 33

“stop and-
frisk” as a “limited protective search of outer
clothing for weapons,”

Question 34

What is stop and frisk

Answer 34

a stop-and-frisk
was defined as the vernacular designation of the right of a police
officer to stop a citizen on the street, interrogate him, and pat him for
weapon.

Question 35

elements of the plain view doctrineThe seizure of evidence in “plain view” applies only where the police officer
is not searching for evidence against the accused, but inadvertently comes
across an incriminating object.

Answer 35

(a) a prior valid intrusion based on the valid warrantless arrest in which
the police are legally present in the pursuit of their official duties;
(b) the evidence was inadvertently discovered by the police who have
the right to be where they are; and
(c) the evidence must be immediately apparent; and
(d) plain view justified mere seizure of evidence without further search

Question 36

what does the plain view doctrine

Answer 36

The seizure of evidence in “plain view” applies only where the police officer
is not searching for evidence against the accused, but inadvertently comes
across an incriminating object.

Question 37

When does the plain view doctrine apply?

Answer 37

(a) a prior valid intrusion in which the police are legally present in the
pursuit of their official duties; (b) the evidence was inadvertently
discovered by the police who had the right to be where they are; (c)
the evidence must be immediately apparent; and (d) the plain view
justified mere seizure of evidence without further search.

Question 38

Why is consented search valid even it is without a search warrant

Answer 38

It is fundamental, however, that to constitute a waiver,
it must first appear that the right exists; secondly, that the
person involved had knowledge, actual or constructive, of the
existence of such a right; and lastly, that said person had an
actual intention to relinquish the right

Question 39

Why is airport search a valid search without a warrant?

Answer 39

Persons may lose the protection of the search and seizure clause by
exposure of their persons or property to the public in a manner
reflecting a lack of subjective expectation of privacy, which
expectation society is prepared to recognize as reasonable.

Question 40

When are checkpoints allowed?

Answer 40

They are allowed in
exceptional circumstances to protect the lives of individuals
and ensure their safety.

They are also sanctioned in cases where the
government’s survival is in danger.

Question 41

Scope of search in checkpoints

Answer 41

visual search but an extensive search may be conducted on a vehicle at a
checkpoint when law enforcers have probable cause to believe that
the vehicle’s passengers committed a crime or when the vehicle
contains instruments of an offense

Question 42

Can a tip constitute a probable cause?

Answer 42

the Court now holds that the cases
adhering to the doctrine that exclusive reliance on an unverified, anonymous tip
cannot engender probable cause that permits a warrantless search of a moving
vehicle that goes beyond a visual search

Question 43

Who are immune to arrest?

Answer 43

A Senator or Member of the House of Representatives shall

President