Crimes Against the Fundamental Laws of the State: Sec II- Violation of Domicile

Question 1

What are the crimes under Title 2-Section II of the RPC?

Answer 1

Article 128- Violation of domicile

Article 129- Search warrant maliciously obtained and abused in the service of those legally obtained

Article 130-searching domicile without witnesses

Question 2

What are the elements of violation of domicile?

Answer 2

(1) Entering any dwelling against the will of the owner thereof;
(2) Searching papers or other effects found therein without the consent of
such owner; or
(3) Refusing to leave the premises, after having surreptitiously entered said dwelling,
and after having been required to leave the same.

Common elements:
(1) Offender is a public officer or employee;
(2) He is not authorized by judicial order to enter the dwelling or to make a search
therein for papers or other effects.

Question 3

What are the elements for search warrant maliciously obtained or abused in the service of those legally obtained?

Answer 3

Acts punished and their respective elements:

(1) Procuring a search warrant without just cause.
(a) Offender is a public officer or employee;
(b) He procures a search warrant;
(c) There is no just cause.

(2) Exceeding authority or using unnecessary severity in executing a search warrant
legally procured.
(a) Offender is a public officer or employee;
(b) He has legally procured a search warrant;
(c) He exceeds his authority or uses unnecessary severity in executing the same.

Question 4

What are the elements for searching the domicile without witnesses?

Answer 4

(1) Offender is a public officer or employee;
(2) He is armed with a search warrant legally procured;
(3) He searches the domicile, papers or other belongings of any person;
(4) The owner, or any member of his family, or two witnesses residing in the same
locality are not present.

Question 5

Under Article 123 (violation of domicile) what are the instances that changes the penalty from prision correccional minimum to prision correccional medium to maximum?

Answer 5

1. Committed at night time
2. If any paper or effects not constituting evidence of a crime are not returned immediately after the search is made by the offender.

Question 6

When is the officer have the right to break into dwelling or enclosure?

Answer 6

1. by virtue of search warrant

2. without search warrant as provided by ARTICLE 113 SECTION 5 OF THE ROC

Question 7

What crime is committed if the search is done not in the dwelling and it involves violence or intimidation?

Answer 7

Article 286 of the Revise Penal Code

Grave Coercion

Question 8

What crime is committed if the search is done not in the dwelling and it does not involves violence or intimidation?

Answer 8

Article 287 of the Revise Penal Code

Unjust Vexation

Question 9

What is the difference between arbitrary detention and trespass to dwelling?

Answer 9

Article 128 vs. Article 280 of the RPC

Question 10

What is probable cause?

Answer 10

Facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the object sought in connection with the offense are in the place sought to be search.

Question 11

What is the crime when the public officer in order to procure warrant without just cause- made a willful and deliberate assertion of falsehood in the affidavit filed in support of the application for search warrant?

Answer 11

Perjury

Article 183 of the RPC

(separate and distinct from the crime committed under article 129 of the RPC)

Question 12

What is “search warrant”?

Answer 12

Order in writing issued in the name of the people of the Philippines signed by the judge and directed to a peace officer. Commanding him to search personal property described therein and present it before the court.

Question 13

What are the personal property to be search?

Answer 13

Section 5 Rule 126 of ROC

1. Personal property subject of the offense
2. Stolen or embezzled and other proceeds or fruits of the offense
3. used or intended to be used as the means of committing an offense

Question 14

What are the requisites for issuing a search warrant?

Answer 14

Section 4 Rule 126 of the ROC

Question 15

Validity of search Warrant.

Answer 15

10 days from its date

Section 10 Rule 116 of ROC

Question 16

What are the punishable acts under “Violation of Domicile”?

Answer 16

1. Entering any dwelling against the will of the owner
2. Searching papers or other effects found therein without the previous consent of such owner
3. Refusing to leave the premise after having surreptitiously entered said dwelling and after having been required to leave the same

Question 17

Violation of Domicile va Trespass to Dwelling

Answer 17

• violation of Domicile: public officer or employee

- trespass to dwelling: private person

Question 18

What is the crime if the public officer not armed with search warrant or a warrant of arrest searches person outside his dwelling and it is committed with violence and intimidation?

Answer 18

Grave coercion (Article 286)

Question 19

What is the crime if the public officer not armed with search warrant or a warrant of arrest searches person outside his dwelling and it is committed without violence and intimidation?

Answer 19

Unjust vexation [Article 287]

Question 20

What is the consequence if the evidence obtained was through a search warrant without just cause?

Answer 20

Not admissible for any purpose in any proceedings.

Question 21

What if the search warrant was secured through a false affidavit?

Answer 21

It would be a separate crime of Perjury and violation of Article of 128.
The liability of the offender under Article 129 shall be in addition to his liability.