Rule 126- Searches and Seizures

Question 1

What is a search warrant?

Answer 1

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. (Sec. 1, Rule 126, Rules of Court)

Question 2

Arrest distinguished from search and seizure

Answer 2

1. The issuance of warrant of arrest presupposes existence of a pending criminal case that gave rise to the warrant; A search warrant does not require the existence of a criminal case and may be issued prior to the filing of the case;
2. Arrest is concerned with the seizure of a person, thus involves taking of a person into custody; a search is concerned with the seizure of personal property subject of the offense, stolen or embezzled property, fruits of the offense, or those intended to be used to commit an offense;
3. The probable cause to arrest, the judge (not prosecutor) must have sufficient facts in his hands that would tend to show that a crime has been committed and that a particular person committed it; Probable cause to search requires facts to show that particular things connected with a crime are found in a specific location.
4. Arrest with a warrant may be made on any day and at any time of the day or night. a search warrant is served in the day time, unless there be a direction in the warrant that it may be served at any time of the day or night; and
5. The rule on arrest do not provide for a limitation on the duration of the validity of a warrant of arrest. A search warrant shall be valid for 10 days from its date and thereafter, shall be void.

Question 3

Where to file a search warrant?

Answer 3

Generally, it shall be filed before any court within those territorial jurisdiction a crime was committed.

Exceptions:

a. application may be made before any court within the judicial region where the crime was committed if the place of the commission of the crime is known; and
b. before any court within the judicial region where the warrant shall be enforced;

It must be noted that it requires compelling reasons stated in the application for such.

Question 4

What are the property subject of a search warrant?

Answer 4

The property subject is personal property, not real property. It may be issued not only for the search but also for the seizure of the following:

a. personal property subject of the offense;
b. personal property stolen or embezzled and other proceeds or fruits of the offense; or
c. personal property used or intended to be used as a means of committing an offense.

Question 5

What are the requisites for the issuance of a search warrant?

Answer 5

1. must be issued upon probable cause;
2. the probable cause must be determined by the judge himself and not by the applicant or any other person;
3. in the determination of probable cause, the judge must examine, under oath or affirmation, the complainant and such witnesses he may produce; and
4. the warrant issued must particularly described the place to be searched and persons or things to be searched.

Question 6

What is probable cause in search warrants?

Answer 6

The existence of such 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 to be searched.

Question 7

What is the basis on the determination of probable cause?

Answer 7

Based on evidence showing that, more likely than not, a crime has been committed and that it was committed by the offender.

Question 8

What is Substantial basis?

Answer 8

It means that the questions of the examining judge brought out such facts and circumstances as would lead a reaosnably discreet and prudent man to believe that 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.

Question 9

How the examination shall be conducted by the judge?

Answer 9

a. must be personally conducted by the judge;
b. must be in the form of searching questions and answers;
c. complainant and witnesses shall be examined those facts personally known to them;
d. statements must be in writing and under oath; and
e. sworn statements of the complainant and the witnesses, together with the affidavits submitted, shall be attached to the record.

Question 10

What is general warrants?

Answer 10

a search or arrest warrant that is not particular as to the person to be arrested or the property to be seized.

Question 11

What is the duration of the validity of a search warrant?

Answer 11

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

Question 12

What are the duties of officer after the search and seizure?

Answer 12

1. deliver the property seized to the judge who issued the warrant;
2. also deliver a true inventory of the property seized which shall be duly verified under oath.

(Violation of such shall constitute contempt of court)

Question 13

What is the duty of the judge?

Answer 13

1. ascertain if the return has been made and shall do so 10 days after issuance of the search warrant;
2. if no return has been made, he shall summon the person to whom the warrant was issued and require him to explain why no return was made;
3. if return has been made, he shall ascertain whether Sec. 11 of Rule 126 (giving of receipt for the property seized) was complied with and shall require that the property seized be delivered to him.

Question 14

What are the instances where search and seizures are allowed even without a valid warrant?

Answer 14

1. warrantless search incidental to a lawful arrest;
2. seizure of evidence in plain view;
3. search of a moving vehicle;
4. consented warrantless search;
5. customs search;
6. stop and frisk or Terry searches;
7. exigent and emergency circumstances;
8. search of vessels and aircraft; and
9. inspection of buildings and other premises for the enforcement of fire, sanitary and building regulations.

Question 15

What are the requisites under plain view doctrine?

Answer 15

1. the law enforcement officer in search of the evidence has a prior justification for an intrusion or is in a position from which he can view a particular area;
2. discovery of the evidence in plain view is inadvertent; and
3. it is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure.

Question 16

What does “inadvertence” means under the plain view doctrine?

Answer 16

It means that the officer must not have known in advance of the location of the evidence and discovery is not anticipated.

Question 17

What are the dual purpose of the “stop and frisk” principle?

Answer 17

1. the general interest of effective crime prevention and detection; and
2. the safety of police officer with whom he deals with is not armed with a deadly weapon that could be used against him.

Question 18

What is a consented search?

Answer 18

It occurs when a person gives a law enforcement agent permission to search in areas which such person has a reasonable expectation of privacy.

Question 19

Requisites of a valid consented search

Answer 19

1. the right exists;
2. the person involved had knowledge, either actual or constructive, of the existence of such right; and
3. the said person had an actual intention to relinquish the right.

Question 20

What is the effect of an illegal search and seizure?

Answer 20

Any evidence obtained in such unlawful search, the seized items is inadmissible in evidence against the accused. (fruit of the poisonous tree doctrine)