Search Warrant & Warrant of Arrest

Question 1

The life span of a search warrant:

Answer 1

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

Question 2

The distinction between warrant of arrest and search warrant:

Answer 2

a. The warrant of arrest and search warrant are orders in writing issued in the name of the people of the Philippines, signed by a judge and directed to a peace officer;

b. The warrant of arrest and search warrant are issued only upon probable cause;

c. The warrant of arrest is intended to arrest a person, while a search warrant is intended to search and seize things specified therein;

d. The warrant of arrest remains valid as long as the person stated therein is not arrested regardless of the number of days that already lapsed, while a search warrant is valid within 10 days from issue;

e. The warrant of arrest may not be in possession of the arresting person while conducting arrest, while the search warrant must be in possession of the police officer when while conducting search and seizure; and

f. The warrant of arrest maybe executed anytime of the day and night, while search warrant as rule must be executed during daytime.

Question 3

What is the rule in conducting search and seizure? What are the exemption to this rule?

Answer 3

As a rule, every search and seizure must be done by virtue of a search warrant.

Question 4

The exemption to this rule include the following:

Answer 4

a. Consented search

Under consented search, the right against unreasonable search and seizure maybe voluntarily waived by a person being searched provided the following requisites of a waived are present:

● Existence of a right;

● Person has knowledge, either actual or constructive, of the existence of such right; and

● Said person had an actual intention of relinquishing such right.

b. Search incidental to lawful arrest;

Under search incidental to lawful arrest, a person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without search warrant.

c. Plainview search;

Under plain view search, illegal things at sight maybe seized even without a warrant to do so. The things must be readily seen without any effort of locating it. An example of Plainview search is while a policeman was conducting patrol, he saw a handgun held by a person whom he believes not to be a policeman. In such case, the policeman may inquire about the license and other documents pertinent to the lawful possession of that handgun. In case no document is presented, that person maybe arrested and his hand gun may be seized.

d. Search in moving vehicle; and

Under search in moving vehicle especially in checkpoints, moving vehicles may be searched provided that it is limited to visual search, except in the case of national emergency.

e. Customs search

Under custom search, the personnel of Bureau of Customs conduct search to enforce customs law or to regulate exports and imports. Take note: these enumerated instances are also known as warrantless search.

Question 5

What are the crimes may be committed by a policeman while conducting search?

Answer 5

A. Violation of domicile;

Violation of domicile is committed by any public officer or employee who, not being authorized by judicial order, shall enter the dwelling against the will of the owner thereof, search papers or other effects found therein without the previous consent of the owner or having surreptitiously entered said dwelling and being required to leave said premises, shall refuse to do so.

B. Search warrant maliciously obtained;

Search warrant maliciously obtained is committed by a public officer or employee who procures a search warrant without just cause. An example of this is if a police officer applies for search warrant and intentionally lied in his affidavit. Basing on said affidavit, the judge issued a search warrant.

C. Abuse in the authority of search warrants legally obtained; and

Abuse in the authority of search warrants legally obtained is committed by a public officer or employee who has legally procured a search warrant but exceeds his authority or uses unnecessary severity in executing the same.

D. Searching domicile without witnesses

Searching domicile without witnesses is committed by a public officer or employee who is armed with a search warrant legally procured and searches the domicile, papers, or other belongings of any person without the presence of the owner, or any member of the family, or at least two witnesses residing in the same locality.

An example of this is a policeman, armed with search warrant legally procured, searches the house of a person without the owner but with the presence of a 7-year old child of the owner. Take note: the phrase “any member of the family or at least two witnesses resides in the same locality” as stated above refers to a person of sufficient age and discretion. A person is considered of sufficient age if he attains the age of majority (18 years old) and he is of sufficient discretion if he is sane.