BERNAS - PRIMER

SECTION 2

Q. What is the purpose of this provision?

A. The purpose of the provision is to protect the privacy and sanctity of the person and of his house and other possessions against arbitrary
intrusions by State officers.

Q. Does the provision prohibit all searches and seizures?

A. No. What it prohibits are Unreasonable searches and seizures."

Q. When are searches and seizures unreasonable?

A. Searches and seizures are normally unreasonable unless authorized by a validly issued search warrant or warrant of arrest. Thus, the
fundamentalprotection given by the search and seizure clause is that between person and police must stand the protective authority of a magistrate
clothed with power to issue or refuse to issue search warrants or warrants of arrest.

Q. Is there a presumption of regularity in search cases?

A. No. To prevent stealthy encroachment upon, or gradual depreciation of the right to privacy, a liberal construction in search and seizure cases is
given in favor of the individual. Sony Music v. Judge Espanol, G.R. No. 156804, March 14, 2005.

Q. Does Section 2 of the Bill of Rights protect citizens from unreasonable searches and seizures perpetrated by private individuals?
A. No. "The constitutional proscription against unlawful searches and seizures . .. applies as a restraint directed only against the government and
its agencies tasked with enforcement of th law..People v. Marti, G.R. No. 81561, January 18,1991. However, it may be possible to find a remedy
in the Civil Code.

Q. When does an inquiry become a search such that it comes under the rule of Section 2? Are "check points,0 for instance, "search points?" Are
checkpoints constitutional?

A. "Not all searches and seizures are prohibited. Those which are reasonable are not forbidden. A reasonable search is not to be determined by
any fixed formula but is to be resolved according to the facts of each case." Valmonte v. General de Villa, G.R. No. 83988, September 29,1989.

Q. When are checkpoints allowed?

A. Checkpoints are not illegal per se. Thus, under exceptional circumstances, as where the survival of organized government is on the balance, or
where the lives and safety of the people are in grave peril, checkpoints may be allowed and installed by the government. Routine inspection and a
few questions do not constitute unreasonable searches. If the inspection becomes more thorough to the extent of becoming a search, this can be
done when there is deemed to be probable cause. In the latter situation, it is justifiable as a warrantless search of a moving vehicle. Valmonte v.
General de Villa, G.R. No. 83988, May 24, 1990.

Q. Must checkpoints be announced?

A. We see no need for checkpoints to be announced. Not only would it be impractical, it would also forewarn those who intend to violate the ban.
Even so, badges of legitimacy of checkpoints may still be inferred from their fixed location and the regularized manner in which they are
operated. People v. Escano, G.R. Nos. 129756-58, January 28, 2000.

Q. Is every warrantless search or seizure unreasonable?

A. No. As will be shown later, there are exceptions to the rule.

Q. What are the essential requisites of a valid warrant?

A. The following are the requisites: (1) it must be issued upon "probable cause;" (2) probable cause must be determined personally by a judge; (3)
such judge must examine under oath or affirmation the complainant and the witnesses he may produce; (4) the warrant must particularly describe
the place to be searched and the person or things to be seized.

Probable cause
Q. What is "probable cause?"
A. Probable cause means such facts and circumstances antecedent to the issuance of a warrant that are in themselves sufficient to induce a
cautious man to rely upon them. Specifically, probable cause must be defined in relation to the action which it justifies. Probable cause for the
issuance of a warrant of arrest would mean 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. Probable cause for a search would mean 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 sought to be searched. Henry v. United States, 361 U.S 98,102 (1959).

Q. What kind of evidence is needed to establish probable cause?

A. As implied by the words themselves, "probable cause" is concerned with probability, hot absolute or even moral certainty. The prosecution
need hot present at this stage proof beyond reasonable doubt. The standards of judgment are those of a reasonably prudent man, hot the exacting
calibrations of a judge after a full-blown trial. Microsoft Corporation v. Maxicorp, G.R. No. 140946, September 13,2004.

NOTE: To establish probable cause of illegal possession of firearms the witness must have personal knowledge of the existence of the firearms
and of the absence of license for such firearms. Betoy v. Judge, A.M. No. MTJ-05-1608, February 26, 2006.
Q. The affidavit of Col. Castillo stated that in several issues of the Philippine Times: .. we found that the said publication in fact foments distrust
and hatred against the government of the Philippines and its duly constituted authorities, defined and penalized by Article 142 of the Revised
Penal Code .. and the affidavit of Lt. Ignacio read: . . the said periodical published by Rommel Corro, contains articles tending to incite distrust
and hatred for the Government of the Philippines or any of its duly constituted authorities."

Q. Do the affidavits establish probable cause?

A. No. They are nothing but conclusions of law. Corro v. Using, 137 SCRA 541 (July 15,1985).

Q. A search warrant for the newspaper WE Forum is issued on the basis of a broad statelnent of the military that Burgos, Jr. "is in possession or
has in his control printing equipment and other paraphernalia, news publications and other documents which were used and are all continuously
being used as a means of committing the offense of subversion." Is such allegation sufficient to establish probable cause?
A. No. It is a mere conclusion of law unsupported by particulars. Burgos, Sr. v. Chief of Staff, AFP, 133 SCRA 800 (December 26, 1984).

Q. Must proof of probable cause for a warrant point to a specific offender?

A. For a search warrant for things, no; for warrants of arrest, yes. Webb v. de Leon, G.R. No. 121234, August 23,1995.

Q. Who may detehnine probable cause for the purpose of issuing a warrant?
A. Only a judge.

Q. Who determines probable cause for the purpose of filing an information?

A. The prosecution. The determination of probable cause during a preliminary investigation is an executive function. Its correctness is a matter
that the trial court itself does not and may not be compelled to pass upon. People v. Court of Appeals, G.R. No. 126005, January 21,1999.

Q. An anonymous caller tipped off police officers that a man and a woman were repacking prohibited drugs at a certain house. The officers
immediately proceeded to the house. When they reached the house they "peeped (inside) through a small window and ... saw one man and a
woman repacking suspected marijuana." They entered the house and confiscated the tea bags and some drug paraphernaliA. Subsequent
examination of the tea bags by NBI confirmed the suspicion that the tea bags contained marijuana.

Q. Was there a valid search and seizure?

A. No. The State cannot in a cavalier fashion intrude into the persons of its citizens as well as into their houses, papers and effects.
The constitutional provision protects the privacy and sanctity of the person himself against unlawful arrests and other forms of restraint, and
prevents him from being irreversibly "cut off from that domestic security which renders the lives of the most unhappy in some measure
agreeable." People v. Bolasa, G.R. No. 125754, December 22,1999.

Q. May the Commissioner on Immigration issue warrants of arrest?

A. Since the Commissioner on Immigration is not a judge, he may not issue warrants of arrest in aid merely of his investigatory power. However,
he may order the arrest of an alien for the purpose of carrying out a deportation order that has already become final. Qua Chee Gan v.
Deportation Board, 9 SCRA 27 (1963); Dalamal v. Deportation Board, 9 SCRA 382 (1963); Calacday v. Vivo, 33 SCRA 413 (1970); Board of
Commissioners (CID) v. de la Rosa, 197 SCRA 853,879 (1991).

Q. Where the PCGG issues a search and seizure order which has all the features of a search warrant, is such order valid?
A. No, because only a judge may issue a search warrant. (Besides, in this case, there was no probably cause.) Republic v. Sandiganbayan, G.R.
Nos. 112708-09, March 29,1996.

Q. What is needed in order to show probable cause of infringement of copyright by renting agencies of cassette tapes? Is the presentation of
master tapes required?
A. Not all the time. It is needed only where there is doubt as to the true nexus between the master tape and the pirated copies. Columbia Pictures
v. CA, G.R. No. 110318, August 28,1996.

Personal examination
Q. What is the meaning of "personally" in the search and seizure clause?
A. What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of
probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest the judge is not required to
personally examine the complainant and his witnesses and on the basis thereof, issue a warrant of arrest. He may also rely on the fiscal's report or
if on the basis thereof he finds no probable cause he may disregard the fiscal's report and require the submission of supporting affidavits of
witnesses to aid him in arriving at a conclusion as to the existence of probable cause. This means that what is required is personal determination
and not personal examination. Sound policy dictates this procedure; otherwise judges would be unduly laden with the preliminary examination
and investigation of criminal complaints. Note that in the text the adverb "personally" modifies "determined." Soliven u. Judge Makasiar, Beltran
v. Makasiar, G.R. No. 8287, November 14,1988.
NOTE: A judge is not required to personally examine the complainant and his witnesses or to await the submission of counter affidavits from an
accused. Following established doctrine and procedure, the judge shall (1) personally evaluate the report and the supporting documents submitted
by the prosecutor regarding the existence of probable cause, and on the basis thereof, he may already make a personal determination of the
existence of probable cause; and (2) if he is not satisfied that probable cause exists, he may disregard the prosecutor's report and require the
submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. Borlongan, Jr. v.
Pefia, G.R. No. 143591, November 23, 2007. To establish probable cause of illegal possession of firearms the witness must have personal
knowledge of the existence of the firearms and of the absence of license for such firearms. Betoy v. Judge, A.M. No. MTJ-05- 1608, February 26,
2006.

NOTE: Compare this with Bache and Co. case, infra.

Q. What procedure must be followed in determining probable cause?
A. The judge must examine the complainant and his witnesses under oath or affirmation. This has been interpreted as requiring a personal and not
merely delegated examination by the judge or by the proper officer, because the purpose of the examination is to convince the judge or officer
himself and not any other individual. Alvarez v. Court, 64 Phil. 33 (1922); Bache and Co. v. Ruiz, 37 SCRA 823 (1971).

Q. For the purpose of satisfying the requirement that the judge examine under oath the complainant and the witnesses, are affidavits of the
complainant and of the witnesses sufficient?
A. No. The examining Judge has to take depositions in writing of the complainant and the witnesses he may produce and to attach them to the
record. Such written deposition is necessary in order that the Judge may be able to properly determine the existence or non-existence of the
probable cause, to hold liable for perjury the person giving it if it will be found later that his declarations are false. People v. Mamaril, G.R. No.
147607, January 22, 2004. [But the actual taking of deposition, etc. maybe done by the prosecutor but it is the judge who evaluates the evidence.]

Q. Can a judge rely solely on the certification or recommendation of a prosecutor that probable cause exists in issuing a warrant of surest?
A. No. By itself, the Prosecutor's certification of probable cause is ineffectual. The judge must look at the report, the affidavits, the transcripts of
stenographic notes (if any), and all other supporting documents behind the Prosecutor's certification. Lirn v. Felix, G.R. No. 94054-57,19
February 1991.

Particularity of description
Q. What is the meaning of particularity of description?
A. A search warrant may be said to particularly describe the things to be seized when the description therein is as specific as the circumstances
will ordinarily allow and by which the warrant officer may be guided in making the search and seizure. Backe & Co. v. Ruiz, 37 SCRA 823,835
(1971).

Q. What is the purpose of requiring particularity of description?

A. Its purpose is to prevent abuse by the officer enforcing the warrant by leaving to him no discretion as to who or what to search or seize.

Q. Where the warrant describes what is to be seized as "an undetermined amount of marijuana," is it sufficient?
A. Yes. It is not required that technical precision of description be required, particularly where, by the nature of the goods to be seized, their
description must be rather general, since the requirement of a technical description would mean that no warrant could issue. People v. Tee, G.R.
Nos. 140546-47, January 20, 2003.

Q. Does a "John Doe" warrant satisfy the requirement of particularity of description?

A. Yes, provided that it contains a descriptio personae such as will enable the officer to identify the accused. People v. Veloso, 48 Phil. 169
(1925). But a warrant of arrest against 50 John Does is of the nature of a general warrant clearly violative at least of the requirement of
particularity of description. Pangandaman v. Casar, 159 SCRA 599,611 (1988).

Q. Is the following description sufficient? "Books of accounts, financial records, vouchers, journals, correspondence, receipts, ledgers, portfolios,
credit journals, typewriters, and other documents and/or papers showing all business transactions including disbursement receipts, balance sheets
and related profit and loss statements."
A. No. This amounts to a general warrant authorizing the officer to pick up anything he pleases. Stonehill v. Diokno, L-19550, June 19,1967.
See also Microsoft Corporation v. Maxicorp, Inc., G.R. No. 140946, September 13,2004.

Q. The search warrant described the articles sought to be seized as: "All printing equipment, typewriters, cabinets, tables, communications,
recording equipment used or connected in the printing of the "WE FORUM" newspaper and any other documents/ communications, letters and
facsimile of prints related to the "WE FORUM" newspaper." Is this description adequate?
A. No. The sweeping tenor of the description makes the document a general warrant. Burgos, Sr. v. Chief of Staff, AFP, 133 SCRA 800
(December 26,1984).

Q. The military applied for a search warrant for two addresses of the newspaper WE Forum: 728 Units C & D, RMS Building, Quezon Avenue,
Q.C. and No. 19, Road 3, Project 6, Q.C. Two warrants were issued both of them referring to the Project 6 address. Search nonetheless was made
of the RMS Building address. The search of the latter is sought to be invalidated on the ground that the place was not sufficiently described.
Decide.
A. The defect pointed out is obviously a typographical error. In determining the sufficiency of the description of the address, the executing
officer's prior knowledge of the place intended in the warrant is relevant. In this case the executing officer was also the affiant on whose affidavit
the warrant had issued. He therefore knew what addresses were referred to. Burgos, Sr. v. Chief of Staff, AFP, 133 SCRA 800 (December
26,1984).

Q. If in a warrant for the search of the place there is a mistake in the identification of the owner of the place, does it invalidate the warrant?
A. Not if the place is properly described. Frank Uy v. BIR, G.R. No. 129651, October 20,2000.

Q. What could be referred to by the phrase searches and seizures "of whatever nature and for whatever purpose?"
A. It is submitted that the phrase effectively extends the search and seizure clause to at least two penumbral areas. The first is the sub poena duces
tecum under Rule 27 of the Rules of Court. See Material Distributors v. Judge, 84 Phil. 127 (1949) and Oklahoma Press v. Walling, 327 U.S.
186, 208-9 (1948). The second, as yet untouched by Philippine jurisprudence, is building inspection by administrative officers. See Camara v.
Municipal Court, 387 U.S. 523 (1967), overruling Frank v. Maryland, 359 U.S. 360 (1959).

Q. What is the rule on examination of bank deposits?

A. An examination of the secrecy of bank deposits law (R. A. No. 1405) would reveal the following allowable exceptions: Where the depositor
consents in writing; Impeachment case; By court order in bribery or dereliction of duty cases against public officials; Deposit is subject of
litigation; Sec. 8, R.A. No. 3019, in cases of unexplained wealth as held in the case of PNB vs. Gancayco. Marquez v. Desierto, G.R. No. 135882,
June 27,2001.

Q. Are warrantless drug tests in public schools allowable?

A. In the criminal context, reasonableness usually requires a showing of probable cause. The probable-cause standard, however, is peculiarly
related to criminal investigations and may be unsuited to determining the reasonableness of administrative searches where the Government seeks
to prevent the development of hazardous conditions. The American Court has held that a warrant and finding of probable causeare unnecessary in
the public school context because such requirements would unduly interfere with the maintenance of the swift and informal disciplinary
procedures [that are] needed. Vernonia Sch. Dist. 47J v. Acton, Decided June 26,1995; Board of Education v. Earls, No. 01332, Decided June
27,2002 Republic Act No. (RA) 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, requires mandatory drug testing of
candidates for public office, students of secondary and tertiary schools, officers and employees of public and private offices, and persons charged
before the prosecutor's office with certain offenses, among other personalities. As applied to candidates for national office, the requirement is
unconstitutional because it adds to the exclusive qualifications for such offices prescribed by the Constitution. As applied to students, following
US jurisprudence, the Court upheld the law for the reasons that: (1) schools and their administrators stand in loco parentis with respect to their
students; (2) minor students have contextually fewer rights than an adult, and are subject to the custody and supervision of their parents,
guardians, and schools; (3) schools, acting in loco parentis, have a duty to safeguard the health and wellbeing of their students and may adopt
such measures as may reasonably be necessary to discharge such duty; and (4) schools have the right to impose conditions on applicants for
admission that are fair, just, and non-discriminatory. Essentially this is the reasonable test. As to employees, the reasonable test was applied. As
to candidates for local office, the mandatory character was found to be unreasonable ad oppressive to privacy. Similarly it was declared
unconstitutional for people charged before the prosecutor's office. Social Justice Society v. Dangerous Drugs Board, G.R. Nos.
157870,158633,161658, November 03,2008.

NOTE: The Constitution and the Rules of Court prescribe particular requirements attaching to search warrants. These are not imposed by the
AMLA with respect to bank inquiry orders. A constitutional warrant requires that the judge personally examine under oath or affirmation the
complainant and the witnesses he may produce such examination being in the form of searching questions and answers. Those are impositions
which the legislative did not prescribe as to the bank inquiry order under the AMLA. Simply put, a bank inquiry order is not a search warrant or
warrant of arrest as it contemplates a direct object but not the seizure of persons or property. Republic v. Eugenio, G.R. No. 174629, February 14,
2008.

Exclusionary rule
Q. What is the consequence of a search or seizure without a warrant or by authority of an invalid warrant?
A. Any evidence obtained in such search or seizure, "shall be inadmissible for any purpose in any proceeding." Article III, ! Section 3 (2). The
Constitution explicitly follows the exclusionary rule.

Q. Does an application for bail have the effect of waiver of the right to challenge the validity of a warrant?
A. No. Section 26, Rule 114 of the Revised Rules on Criminal Procedure is a new one, intended to modify previous rulings of this Court that an
application for bail or the admission to bail by the accused shall be considered as a waiver of his right to assail the warrant issued for his arrest on
the legalities or irregularities thereon. The new rule has reverted to the ruling of this Court in People v. Red, [55 Phil. 706 1931)]. The new rule is
curative in nature because precisely, it was designed to supply defects and curb evils in procedural rules. Okabe v. Judge de Leon, G.R. No.
150185, May 27,2004.

Q. Are firearms which have been illegally seized in a "zona" admissible in evidence?
A. No. "Pending determination of the legality of such articles, however, they shall remain in custodia legis, subject to such appropriate
disposition as the corresponding courts may decide." Alih v. Castro, 151 SCRA 279 (1987).

Q. Must goods illegally seized be returned?

A. Yes, unless the possession of such goods is prohibited by law. Castro v. Judge Pabalan, L-28642, April 30,1976.

Q. Petitioner was the owner of a motorcycle suspected to be the get-away vehicle of the assailant of the late Moises Espinosa. It was seized two
days after the killing in the house of petitioner. There was no warrant for the seizure. When petitioner sought to recover the vehicle, police
claimed that it was needed for the prosecution. Comment.
A. It must be returned. The fact that it might be needed for the prosecution of an important crime is no exception to the rule on warrants.
Bagalihog v. Fernandez, G.R. No. 96356, June 27,1991.

Q. Who may avail of the defense of an unlawful search or seizure?

A. The objection to an unlawful search or seizure and to evidence obtained thereby is purely personal and cannot be availed of by third parties.
Stonehill v. Diokno, 20 SCRA (June 19,1967); Nasiad v. Court of Tax Appeals, 61 SCRA 238 (November 29, 1974).

Q. Is it required that the property to be searched should be owned by the person against whom the search warrant is directed?
A. No. It is sufficient that the property is under the control or possession of the person sought to be searched. Burgos, Sr. v. Chief of Staff, AFP,
133 SCRA 800 (December 26,1984).

Allowable warrantless searches

Q. Is every warrantless search an illegal search?
A. No. According to People v. Aruta, G.R. No. 120915, April 3, 1998.
1. Warrantless search incidental to a lawful arrest recognized under Section 12, Rule 16 of the Rules of Court and by prevailing jurisprudence.
But the tests for a valid warrantless search incidental to a lawful arrest are:
(1) "the item to be searched was within the arrestee's custody or area of immediate control" (United
States v. Tarazon, 989 F2d 1045,1051 [1993]) and (2) "the search was contemporaneous with the arrest" (Shipley v. California, 395 U.S. 818, 819
[1969]). Padilla v. Court of Appeals, G.R. No. 121917, March 12, 1997, 269 SCRA 402,421.
2. Seizure of evidence in "plain view." The requisites for this are the elements of which are: (1) a prior valid intrusion in to a place; (2) the
evidence was inadvertently discovered by the police who had the right to be where they are; (3) the illegality of the evidence must be immediately
apparent; and, (4) and is noticed without further search. People v. Evaristo, 216 SCRA 413 [1992]).

3. Search of a moving vehicle. Highly regulated by the government, the vehicle's inherent mobility reduces expectation of privacy. But there must
be a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity.

4. Consented warrantless search. De Garcia v. Locsin, 65 Phil. 689, 694-5 (1938) says: But it must appear first, that the right exists; secondly, that
the person involved had knowledge, either actual or constructive, of the existence of such right; lastly, that said person had an actual intention to
relinquish the right." Thus, where the accused has voluntarily surrendered his gun, he cannot claim illegality of the seizure. People v. Agbot, 106
SCRA 325,331 (L-376541, July 31,1981).

5. Customs search or Seizure of goods concealed to avoid duties. Uykheytin v. Villareal, 116 U.S. 746 (1886); Papa v. Mago, 22 SCRA 857
(February 28,1968); Pacis v. Pamaran, 56 SCRA 16 (March 15,1974).

6. Stop and Frisk; situations (see below).

7. Exigent and Emergency Circumstances. (See below).

Q. What is the "stop and frisk" rule?

A. The U.S. Supreme Court laid down stop-and-frisk as an instance of a valid warrantless search in Terry v. Ohio, 392 U.S. 1,88 S. Ct. 1868,20 L.
Ed. 2d. 889 (1968). The Philippine Supreme Court adopted it in Posadas v. Court of Appeals, G.R. No. 89139, August 2,1990,188 SCRA 288.
Subsequently, the Court notably applied it in the following cases: People v. Solayao, G.R. No. 119220, September 20,1996,262 SCRA 255; and,
Malacat v. Court of Appeals, G.R. No. 123595, December 12,1997,283 SCRA 159. The rule is stated thus by Terry: "[Wjhere a police officer
observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the
person with whom he is dealing may be armed and presently dangerous, where in the course of investigation of this behavior he identifies himself
as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his
own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing
of such persons in an attempt to discover weapons which might be used to assault him. Such a search is reasonable search under the Fourth
Amendment..." Malacat, 283 SCRA at 176 (quoting Terry , 20 L.Ed.2d at 911); Solayao, 262 SCRA at 261.

In Malacat, the Court discussed the ^justification for and allowable scope of a 'stop-and-frisk' as a limited protective search of outer clothing for
weapons. Thus, the Court said that: "...while probable cause is not required to conduct a 'stop and frisk,' it nevertheless holds that mere suspicion
or a hunch will not validate a 'stop and frisk.' A genuine reason must exist, in light of the police officer's experience and surrounding conditions,
to warrant the belief that the person detained has weapons concealed about him. Finally, a 'stop-and-frisk' serves a two-fold interest: (1) the
general interest of effective crime prevention and detection, which underlies the recognition that a police officer may, under appropriate
circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable
cause; and (2) the more pressing interest of safety and self- preservation which permit the police officer to take steps to assure himself that the
person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used against the police officer." Malacat,
283 SCRA at 176-77.

Q. Illustrate the warrantless search arising from exigent circumstance.

A. This was applied in People v. De Gratia, G.R. Nos. 102009-10, July 6,1994, 233 SCRA 716 where there were intelligence reports that the
building was being used as headquarters by the RAM during the 1989 coup d'itat. Surveillance indicated rebel activities in the building. Nearby
courts were closed and general chaos and disorder prevailed. Under the situation then prevailing, the raiding team had no opportunity to apply for
and secure a search warrant from the courts. Under such urgency and exigency of the moment, a search warrant should lawfully be dispensed
with." De Gratia, 233 SCRA at 729.

Q. Police operatives went to Zamora and Pandacan Streets, Manila to confirm reports of drug pushing in the area. They saw E selling
"something" to another person. After the latter had left, they approached E, introduced themselves as policemen, and frisked him. The search
yielded 2 plastic cellophane tea bags of marijuana. When asked if he had more, E replied that there were more in his house. The policemen went
to his house where they found 10 more cellophane tea bags of marijuana. E charged with and convicted of possession of prohibited drugs. E
assails the admissibility in evidence of the seized tea bags. Decide.
A. "The articles seized from [E] during his arrest were valid under the doctrine of search made incidental to a lawful arrest. The warrantless
search made in his house, however, which yielded ten cellophane bags of marijuana became unlawful since the police officers were not armed
with a search warrant at the time. Moreover, it was beyond the reach and control of [E]." Espano v. Court of Appeals, G.R. No. 120431, April
1,1998, 288 SCRA 558, 567.

Q. Do these exceptions declare a field day for searching officers?

A. No, because "[t]he essential requisite of probable cause [except in stop and frisk] must still be satisfied before a warrantless search and seizure
can be lawfully conducted." People v. Aruta, G.R. No. 120915, April 3,1998, 288 SCRA 626, 638. "Probable cause, in these cases, must only be
based on reasonable ground of suspicion or belief that a crime has been committed or is about to be committed as determined by the searching
officer/'

Q. May a fishing vessel found to be violating fishery laws be seized without a warrant?
A. Yes, on two grounds: (1) because they are usually equipped with powerful motors that enable them to elude pursuit, and (2) because the
seizure would be incidental to the lawful arrest of the crew. Roldan, Jr. v. Area, 65 SCRA 336 (July 25,1975).

Q. Convicted by the RTC of illegal fishing, petitioners contend that the NBI finding of sodium cyanide in the fish specimens should not have
been admitted because the fish samples were seized from their fishing vessel without a search warrant. Decide.
A. This is a case of search of moving vehicle. Hizon v. Court of Appeals, G.R. No. 119619, December 13,1996,265 SCRA 517,527-28.

Q. Twenty meters away from the gate of the Batasan, a truck was stopped and searched. The motorists had not given any evidence of suspicious
behaviour nor had the searching officers received any confidential information about the car. Could the search be justified as a warrantless search
of a moving vehicle?
A. No. There was no probable cause. Aniag, Jr. v. Commission on Elections, 237 SCRA 424 (1994).

Q. On the basis of a tip, accused was arrested and searched upon disembarking from M/V Wilcon in Hoilo City. The detention and search yielded
marijuana. The officers were not armed with a warrant although the officers had at least two days to obtain a warrant. Was the search and seizure
valid?
A. No. The officers had all the. time to obtain a warrant. People v. Amminudin, 163 SCRA 402.

Q. Accused, Malmstedt, was a passenger on a bus from Sagada to Baguio City which was stopped at a checkpoint in Camp Dangwa. The
checkpoint was set up on the basis of reports that vehicles from Sagada were being used to transport marijuana. Moreover, information had been
received that a Caucasian coming from Sagada had prohibited in his possession. During the inspection, officers noticed a bulge in accused's waist.
When accused refused to comply with the request for identification papers, he was made to show what he had on his waist. It was found to
contain hashish. On stepping outside, accused stopped to pick up two traveling bags which, upon being opened, were also found to contain
prohibited drugs. Accused claimed illegal search. Decide.
A. The search was made as an incident to his arrest when he was found in possession of illegal drugs. The arrest was made on probable cause that
he was committing a crime. The warrantless search of the bus was a valid search of a moving vehicle. People v. Malmstedt, G.R. No. 91107, June
19,1991. (See dissents and compare Math People v. Amminudin, 163 SCRA 402.)

Q. Upon arrival at the NAIA and after boarding a taxi, defendants' vehicle was stopped by the PC after a tip from a "deep penetration agent" of
the arrival of the defendants with metamphetamine hydrochloride ("shabu"). Defendants allege that it is an illegal search as the PC knew two days
in advance of their arrival and yet did not obtain a search warrant.
A. It is a legal search falling under the exception of search of a moving vehicle. People v. Lo Ho Wing, et al., G.R. No. 88017, 21 January
1991.

Q. Upon a warrantless search of a hotel room, consent was given and voluntary surrender of papers belonging to the registered but absent
occupant was given by a woman identified as the wife of the occupant but who in fact was a "mere manicurist." Was such consent sufficient to
justify a warrantless search?
A. Yes. The officers of the law cannot be blamed if they would act on the appearances. There was a person inside who from all indications was
ready to accede to their request. Even ordinary courtesy would preclude them from inquiring too closely as to why she was there. Lopez v.
Commissioner of Customs, 68 SCRA 320 (December 12, 1975)

(Comment: If the right against unreasonable search and seizure is a personal right, may it be waived by somebody other than the person himself?)

NOTE: A permission granted for officers to enter a house to look for rebel soldiers does not include permission for a room to room search for
firearms. Spouses Veroy v. Layague, G.R. No. 95632, June 18,1992.

NOTE: Where marijuana sticks fall before the eyes of a police officer from an object a person is carrying, seizure of the sticks would not require
a warrant. They are evidence "in plain view." People v. Tabar, 222 SCRA 144 (1993). Where, however, police officers find an object only after
making some search, the "plain view" rule cannot be applied. Roan v. Gonzales, 145 SCRA 687 (November 25,1986).

Warrantless arrests
Q. Is every warrantless arrest illegal?
A. No. Rule 113, Section 5, Rules of Court, summarizes the exceptions thus: A peace officer or a private person may, without warrant, arrest a
person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or attempting to commit an offense; (b) When
an offense has in fact been committed, and he has personal knowledge of facts indicating 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
temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

Q. Appellant assails as unconstitutional the manner in which the so-called buy-bust operation is conducted in order to enforce the Dangerous
Drugs Act. He stigmatizes it as no different from seizure of evidence from one's person or abode without a search warrant. Comment.
A. A buy-bust operation is a form of entrapment. The method is for an officer to pose as a buyer. He, however, neither instigates nor induces the
accused to commit a crime because in these cases the "seller" has already decided to commit a crime. And since the offense happens right before
the eyes of the officer, there is no need for a warrant either for the seizure of the goods or for the apprehension of the offender. People v. de la
Cruz, G.R. No. 83260, April 18,1990.

Q. What is entrapment and when is it allowed?

A. "It is recognized that in every arrest, there is a certain amount of entrapment used to outwit the persons violating or about to violate the law.
Not every deception is forbidden. The type of entrapment the law forbids is the inducing of another to violate the law, the 'seduction' of an
otherwise innocent person into a criminal career. Where the criminal intent originates in the mind of the entrapping person and the accused is
lured into the commission of the offense charged in order to prosecute him, there is entrapment and no conviction may be had. Where, however,
the criminal intent originates in the mind of the accused and the criminal offense is completed, the fact that a person acting as a decoy for the
state, or public officials furnished the accused an opportunity for commission of the offense, or that the accused is aided in the commission of the
crime in order to secure the evidence necessary to prosecute him, there is no entrapment and the accused must be convicted. The law tolerates the
use of decoys and other artifices to catch a criminal." People v. Doria, G.R. No. 125299, January 22,1999.
Q. A surveillance team of police officers saw two men "looking from side to side," and one of them holding his abdomen. When approached, the
two men ran away but were caught. When searched, they yielded a .38 caliber Smith and Wesson revolver with six live bullets in the chamber.
The weapons were taken, given to the police who used it as evidence in a prosecution for possession of an unlicensed firearm. Was the
warrantless arrest and search valid?
A. The Court ruled the evidence inadmissible saying that no offense was involved in "looking from side to side" and holding the abdomen.
People v. Mengote, G.R. No. 87059, June 22, 1992. (Is this not a "stop and frisk situation?")

Q. From a report, a police officer hears of the recent commission of a crime. Does such knowledge justify a warrantless arrest?
A. No. Regarding Section 5(b), "it is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime. A
crime must in fact or actually have been committed first. That a crime has been committed is an essential precondition." And the arresting officer
must have personal knowledge of the commission of the crime. Go v. Court of Appeals, 206 SCRA 138,150 (1992). Moreover, an arrest made
nineteen hours after the offense has been committed cannot be of one whose crime "in fact has just been committed." People v. Manlulu, 231
SCRA 701 (1994). See also People v. Rodrigueza, 205 SCRA 791, 796-797 (1992) and People u. Enrile, 222 SCRA 586 (1993).

Q. While patrolling in their car, policemen received a radio message from their camp directing them to proceed to "Ihaw-Ihaw" where there had
been a shooting. They went to the place and there saw the victim. Bystanders pointed to the accused as the assailant. The accused by then was
fleeing but had not gone very far from the place. The police officers arrested the accused and seized the gun from him. Valid warrantless arrest
and search?
A. Valid warrantless arrest under Rule 113, §5(b): an offense has in fact just been committed, and the officers had personal knowledge of the
facts indicating that the accused has committed it. Valid warrantless search under Rule 126, §12: search incidental to a lawful arrest. People v,
Jayson, G.R. No. 120330, November 18, 1997, 282 SCRA 166.

Q. Must a police officer who mistakenly arrests a person on the ground of being in flagrante delicto be made liable?
A. For the arrest of one in flagrante delicto to be valid under Rule 112, Section 5(a), the law tilts in favor of authority. Thus, speech which in an
officer's estimation is criminally seditious can justify warrantless arrest in flagrante delicto even if upon prosecution the officer is proved wrong.
The criminal character of speech is something that is not easily determined and must await court estimation. Espiritu v. Lim, G.R. No. 85727,
October 3,1991. But see dissents.

Q. May a person charged with rebellion, subversion, conspiracy or proposal to commit such crimes, and crimes or offenses committed in
furtherance thereof be arrested without a warrant?
A. Yes, since these are continuing offenses and therefore the accused are assumed to be always continuing the offense. Umil and Dural v. Fidel
Ramos, G.R. No. 81567, July 9,1990. (The decision was a reaffirmation of the notorious Garcia-Padilla v. Enrile, 121 SCRA 472 [April 20,
1983]). Reaffirmed on reconsideration in In re Umil, October 3,1991.

Q. Armed with a search warrant elements of PC/INP conducted a raid at a residence where they found several people in conference who
scampered in different directions leaving behind subversive materials of various kinds, a .38 caliber revolver, assorted ammunition, money,
medicine, and printing paraphernalia. The persons there and then were arrested. Was the arrest legal?
A. Yes. This is arrest of persons actually committing a crime justified, even without warrant, under Rule 113, Section 6(a). Garcia-Padilla v.
Enrile, G.R. No. 61388, April 20,1983.

Q. The accused raised the issue of the irregularity of his arrest only during trial. Will it prosper?
A. No. "Any objection involving a warrant of arrest or procedure in the acquisition by the court of jurisdiction over the person of the accused
must be made before he enters his plea, otherwise the objection is deemed waived." People v. Cabiles, G.R. No. 112035, January 16,1998,284
SCRA 199,210 (citingPeople v. Lopez, Jr., 245 SCRA 95 [1995], People v. Rivera, 245 SCRA 421 [1995]).

Q. When is the accused estopped from assailing the illegality of his arrest?
A. "[J]urisprudence is settled that an accused is estopped from assailing the illegality of his arrest if he fails to move for the quashing of the
Information against him before his arraignment." People v. Hernandez, G.R. No. 117624, December 4, 1997, 282 SCRA 387, 402 (citing People
v. Lopez, Jr., 245 SCRA 95, 105-06 [1995]; People v. Samson, 244 SCRA 146, 150 [1995]; People v. Compil, 244 SCRA135,144 [1995]).

SECTION 3

Q. What is the reason for Section 3(1)?

A. When the 1935 Constitution was being formulated, the controlling doctrine was that the search and seizure clause did not prohibit non
trespassory wiretaps. This was the doctrine established in 1928 in Olmstead v. United States, 277 U.S. 438 (1928). Briefly, the argument in
Olmstead was that where there is no physical trespass there is no search, and where the object is not tangible it cannot be seized. The "tangibles
only" rule was anchored on the text of the Fourth Amendment which enumerates tangibles: house, person, papers, effects. Id. at 464-465. The
framers of the 1935 Constitution were quite aware of the Olmstead doctrine and their realization of the inadequacy of the search and seizure
clause as a protection for personal privacy must have at least partly motivated the adoption of the privacy provision. It has no counterpart in the
American Constitution nor in earlier Philippine organic law. In effect, the privacy provision anticipated future development of American
jurisprudence, for in 1967 Katz v. United States, 389 U.S. 347 (1967) overruled the Olmstead doctrine and placed wiretapping, with or without
physical trespass, under the ban of the search and seizure clause.

Q. What forms of correspondence and communication are covered by this provision?

A. It covers letters, messages, telephone calls, telegrams, and the like.

Q. When is intrusion into the privacy of communication and correspondence allowed?

A. It is allowed "upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law."
Q. Upon what grounds may a court allow intrusion?
A. The text does not give any ground. It is submitted that the requirement of probable cause in the preceding section should be followed. After
all, as may be seen in the development of American jurisprudence on the subject, the privacy right is but an aspect of the right to be secure in
one's person. Cf. Material Distributor Inc. v. Natividad, 84 Phil. 127,136 (1949).

Q. Should the order also particularly describe the communication or correspondence sought to be seized?
A. When the correspondence soiight is written correspondence, it would seem that there should be no inconvenience in requiring particularity of
description. But if the intrusion is to be done through wiretaps, how is the description to be made? Evidently, it would be impossible to describe
the contents of a communication that has not yet been made. Hence, it would be unreasonable to require a description of the contents of the
communication. But the identity of the person or persons whose communication is to be intercepted, and the identity of offense or offenses sought
to be prevented, and the period of the authorization given can be specified. In fact, an attempt in this direction is made by
Section 3 of R.A. 4200, the Anti- Wiretapping Law, and similar safeguards are also found in Title III of the Omnibus Crime Control and Safe
Streets Act, 18 U.S.C. Section 2518, which was discussed in the wiretapping case of United States v. U.S. Districts Ct., Eastern Michigan, 40 LW
4761 (1972).

Q. What are the requisites when intrusion is made without judicial order?
A. When intrusion is made without a judicial order, it would have to be based upon a government official's assessment that public safety and
order demand such intrusion. In addition to what has been said about what transpired at the 1935 Convention, it was also made clear in the 1972
Convention that an executive officer can order intrusion when in his judgment and even without prior court approval he believes that public
safety or order so requires. And public order and safety were defined as 'the security of human lives, liberty and property against the activities of
invaders, insurrectionists, and rebels." 1971 Constitutional Convention, Session of November 25,1972. The discretion of the public officer,
moreover, must be exercised "as prescribed by law." This is a phrase added to the 1973 version by the new Constitution. It should also be added
that the exercise of this power by an executive officer is subject to judicial review. Moreover, other than the President who may be deemed to
have this power because under the Constitution he is charged with the exercise of executive power, other executive officers should first be
properly authorized. To hold otherwise would be to opt for a government of men and not of laws. Every police agent would feel authorized to
snoop.

Q. Is there any implementing statute covering this subject?

A. Yes. R.A. 4200 known as the Anti-Wiretapping Law provides penalties for specific violations of private communication. Note that Section
3 of the Act allows court- authorized taps, under specific conditions, for the crimes of "treason, espionage, provoking war and disloyalty in case
of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting rebellion, sedition, conspiracy to commit
sedition, inciting to sedition, kidnapping."

Q. What is the effect of violation of Sections 2 and 3(1)?

A. "Any evidence obtained . . . shall be inadmissible for any purpose in any proceeding." As already discussed in the preceding section, however,
this defense is purely personal.

Q. Mr. Job Reyes, proprietor of Manila Packing and Export Forwarders, a private firm, opened boxes of Andre Martin for final inspection as part
of standard operating procedure before delivery to the Bureau of Posts or Bureau of Customs. Reyes found dried marijuana leaves inside and took
samples to the NBI, who verified thai'the dried leaves were marijuana leaves. Information was filed against Martin for violation of RA 6425, or
the Dangerous Drugs Act. Martin says that the marijuana leaves are fruits of an illegal search and therefore under the exclusionary rule of Section
3(2) of the Bill of Rights. Can an act of a private individual, allegedly in violation of appellant's constitutional rights, be invoked against the
State? A. No. In the absence of governmental interference, the constitutional right against unreasonable search and seizure cannot be invoked
against the State. "[T]he protection against unreasonable search and seizure cannot be extended to acts committed by private individuals so as to
bring it within the ambit of alleged unlawful intrusion by the government." People v Andre Marti, G.R. No.81561,18 January 1991.

Q. Are firearms which have been illegally seized in a"zona" admissible in evidence?
A. No. "Pending determination of the legality of such articles, however, they shall remain in custodia legis, subject to such appropriate
disposition as the corresponding courts may decide." Alih v. Castro, 151 SCRA 279 (1987).

NOTE: Section 26, Rule 114 of the Revised Rules in Criminal Procedure says that an application for bail or the admission to bail by an accused
is not considered a waiver of his right to assail the warrant issued for his arrest or the legalities or irregularities thereof. This is a new rule
intended to modify previous rulings of this Court. The new rule is curative in nature because precisely, it is designed to supply defects and curb
evils in procedural rules. Okabe v. Judge de Leon, G.R. No. 150185, May 27,2004. But it is long settled that where the accused, by his voluntary
submission to the jurisdiction of the court, as shown by the counsel-assisted plea he entered during the arraignment and his active participation in
the trial thereafter, voluntarily waives his constitutional protection against illegal arrests and searches. We have consistently ruled that any
objection concerning the issuance or service of a warrant or a procedure in the acquisition by the court of jurisdiction over the person of the
accused must be made before he enters his plea, otherwise, the objection is deemed waived. People v. Rivera, G.R. No.177741, August 27^009.