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Wombat No More

SEARCH AND SEIZURE

 

Section 1. Search warrant defined. – 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.

 

 

 

WHAT IS A SEARCH WARRANT?

> 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.

 

 

 

WHAT IS THE CONCEPT OF A SEARCH WARRANT?

> It is a criminal process akin to a mode of discovery

> It is a special and peculiar remedy, which is drastic in nature

 

 

 

ARE SEARCH AND SEIZURES PROHIBITED UNDER THE CONSTITUTION?

> No. The constitutional guarantee embodied in Article 3, Section 2 of the Constitution is not a blanket prohibition against all searches and seizures as it operates only against unreasonable searches and seizures

 

 

 

WHEN IS THE SEARCH OR SEIZURE UNREASONABLE?

> A search and seizure is unreasonable if it is made without a warrant, or the warrant was invalidly issued.

> In all instances, what constitutes reasonable or unreasonable search or seizure is a purely judicial question determinable from a consideration of the attendant circumstances.

 

 

WHAT ARE THE THREE SITUATIONS WHEREIN THERE MUST BE FINDING OF PROBABLE CAUSE?

1. Probable cause in filing of an information

> Facts and circumstances that would engender a well-grounded belief that a crime has been committed and the person to be charged is probably guilty thereof

2. Probable cause in the issuance of a search warrant

> Facts and circumstances that would lead a reasonable discreet and prudent man to believe that there has been a crime committed and the things and objects connected to the crime committed are in the place to be searched

3. Probable cause in the issuance of a warrant of arrest

> Facts and circumstances that would engender a well-grounded belief that a crime has been committed and the person to be arrested committed it

 

 

 

WHY ARE THE REQUIREMENTS FOR THE ISSUANCE OF A SEARCH WARRANT MORE STRINGENT THAN THE REQUIREMENTS FOR THE ISSUANCE OF A WARRANT OF ARREST?

> The right against unreasonable search and seizure is a core right implicit in the natural right to life, liberty and property. Even in the absence of a constitution, individuals have a fundamental and natural right against unreasonable search and seizure under natural law.

> Moreover, the violation of the right to privacy produces a humiliating effect that cannot be rectified anymore.

> This is why there is no other justification to speak of for a search, except for a warrant.

> On the other hand, in a warrant of arrest, the person to be arrested can always post bail to prevent the deprivation of liberty.

 

Sec. 2. Court where application for search warrant shall be filed. – An application for search warrant shall be filed with the following:

 

(a) Any court within whose territorial jurisdiction a crime was committed.

 

(b) For compelling reasons stated in the application, any court within the judicial region where the crime was committed if the place of the commission of the crime is known, or any court within the judicial region where the warrant shall be enforced.

 

However, if the criminal action has already been filed, the application shall only be made in the court where the criminal action is pending.

 

 

 

WHERE SHOULD ONE FILE AN APPLICATION FOR SEARCH WARRANT?

> As a general rule, any court within whose territorial jurisdiction a crime was committed BUT FOR COMPELLING REASONS stated in the application, any court within the judicial region where the crime was committed if the place of the commission of the crime is known, or any court within the judicial region where the warrant shall be enforced.

> For example, a drug syndicate keeps his drugs in a warehouse in Pasay for the reason that it has connections in Pasay and can easily get a tip when the police officers will file for a search warrant. To avoid the drug syndicate from getting a tip of the impending search, the police officers apply for a search warrant in Makati stating the compelling reason.

 

> However, if the criminal action has already been filed, the application shall only be made in the court where the criminal action is pending.

 

Sec. 3. Personal property to be seized. – A search warrant may be issued for the search and seizure of personal property:

 

(a) Subject of the offense;

 

(b) Stolen or embezzled and other proceeds, or fruits of the offense; or

 

© Used or intended to be used as the means of committing an offense.

 

 

 

WHAT MAY BE THE SUBJECT OF A SEARCH WARRANT?

1. Subject of the offense;

2. Stolen or embezzled and other proceeds, or fruits of the offense; or

3. Used or intended to be used as the means of committing an offense.

 

 

 

IS IT NECESSARY THAT THE PERSON NAMED IN THE SEARCH WARRANT BE THE OWNER OF THE THINGS TO BE SEIZED?

> No, ownership is of no consequence.

> What is relevant is that the property is connected to an offense.

 

Sec. 4. Requisites for issuing search warrant. – A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witness he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines.

 

 

 

WHAT ARE THE REQUISITES OF A VALID SEARCH WARRANT?

1. There must be probable cause—facts and circumstances that would engender a well-founded belief in a reasonable prudent and discreet man that a crime has been committed and the things and objects to be seized can be found in the place to be searched

2. Which must be determined by the judge personally through searching and probing questions—questions not merely answerable by yes or no but could be answered by the applicant and the witnesses on facts personally known to them

3. (Upon whom?) The complainant and the witnesses he may produce are personally examined by the judge, in writing and under oath and affirmation

4. (Based on what?) The applicant and the witnesses testify on facts personally known to them

5. The probable cause must be in connection with the specific offense

6. The warrant specified describes the person and place to be searched and the things to be seized

7. The sworn statement together with the affidavits of the witnesses must be attached to the record

 

 

 

WHAT IS THE PURPOSE FOR THE PARTICULARITY OF DESCRIPTION OF THE PLACE TO BE SEARCHED AND THE THINGS TO BE SEIZED?

> The evident purpose and intent of this requirement is to limit the things to be seized to those, and only those, particularly described in the search warrant—to leave officers of the law with no discretion regarding what articles they should seize, to the end that unreasonable searches and seizures may not be committed, that abuses may not be committed.

 

Sec. 5. 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.

 

 

 

WHEN IS THE AFFIDAVIT OR TESTIMONY OF THE WITNESS SAID TO BE BASED ON PERSONAL KNOWLEDGE?

> The test is whether perjury could be charged against the witness

 

 

 

WHAT ARE THE REQUISITES OF THE PERSONAL EXAMINATION THAT THE JUDGE MUST CONDUCT BEFORE ISSUING THE SEARCH WARRANT?

1. The judge must examine the witness personally

2. The examination must be under oath

3. The examination must be reduced into writing in the form of searching questions and answers

 

Sec. 6. Issuance and form of search warrant. – If the judge is satisfied of the existence of facts upon which the application is based or that there is probable cause to believe that they exist, he shall issue the warrant, which must be substantially in the form prescribed by these Rules.

 

 

 

 

 

WHAT IS A SCATTER SHOT WARRANT?

> It is a warrant of arrest that is issued for more than one offense

> It is void for the law requires that a warrant of arrest should only be issued in connection with one specific offense

 

 

 

A WARRANT WAS ISSUED FOR THE SEIZURE OF DRUGS CONNECTED WITH THE VIOLATION OF THE DANGEROUS DRUGS ACT. IS THE WARRANT VALID?

> The warrant is valid

> Although there are many ways of violating the Dangerous Drugs Act, it is not a scatter shot warrant since it is in connection with only one penal law

 

 

 

POLICE OFFICERS APPLIED FOR A WARRANT TO SEARCH DOOR #1 OF AN APARTMENT COMPLEX. THE COURT ISSUED THE WARRANT. WHEN THEY WENT TO THE APARTMENT COMPLEX, THEY REALIZED THAT WHAT THEY THOUGHT WAS DOOR #1 WAS ACTUALLY DOOR #7. CAN THEY SEARCH DOOR #7?

> No, what is controlling is what is stated in the warrant, and not what the peace officers had in mind, even if they were the ones who gave it the description to the court.

> This is to prevent abuses in the service of search warrants

 

 

 

CAN THE POLICE OFFICER SEIZE ANYTHING THAT IS NOT INCLUDED IN THE WARRANT?

> No, anything not included in the warrant cannot be seized EXCEPT if its mala prohibita, in which case, the seizure is justified under the plain view doctrine.

> Even if the object was related to the crime, but it is not mentioned in the warrant nor is it mala prohibita, it still cannot be seized

 

 

 

POLICE OFFICERS WENT TO THE HOUSE TO EXECUTE A SEARCH WARRANT. THEY FOUND A PISTOL ON THE TABLE, BUT THE PISTOL WASN’T INCLUDED IN THE SEARCH WARRANT. CAN THEY SEIZE THE PISTOL?

> No, it is not mala prohibita and they have no proof that it is unlicensed.

 

 

 

WHAT SHOULD THE POLICE OFFICER OR COURT TO DO THINGS SEIZED ILLEGALLY?

> Anything seized illegally must be returned to the owner unless it is mala prohibita. In such a case, it should be kept in custodia legis.

 

Sec. 7. Right to break door or window to effect search. – The officer, if refused admittance to the place of directed search after giving notice of his purpose and authority, may break open any outer or inner door or window of a house or any part of a house or anything therein to execute the warrant to liberate himself or any person lawfully aiding him when unlawfully detained therein.

 

Sec. 8. Search of house, room, or premises to be made in presence of two witnesses. – No search of a house, room, or any other premises shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality.

 

NOTE: The two witness rule only applies in the absence of the lawful occupants of the premises searched

 

 

PEACE OFFICERS RAIDED A HOUSE, WHICH WAS SUSPECTED TO BE A FACTORY FOR ILLEGAL DRUGS. DURING THE RAID, 8 CHINESEMEN WERE FOUND INSIDE WHO COULDN’T SPEAK ENGLISH OR FILIPINO. THE CHINESE WERE LOCKED INSIDE A ROOM AND TWO WITNESSES WHO WERE NOT OCCUPANTS WERE USED WHILE SEARCHING THE HOUSE AND SEIZING THE PROHIBITED DRUGS. VALID?

> No.

> The two-witness rule can only apply when there is absence of the lawful occupants of the premises searched.

> In this case, they locked the occupants in a room while doing the search and seizure and used 2 witnesses who weren’t the occupants of the premises.

 

Sec. 9. Time of making search. – 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.

 

 

 

WHEN SHOULD THE SEARCH WARRANT BE EXECUTED?

> If possible, it should be executed during the daytime

> But in certain cases, such as when the things seized are mobile or are in the person of the accused, it can be served during nighttime

 

Sec. 10. Validity of search warrant. – A search warrant shall be valid for ten (10) days from its date. Thereafter, it shall be void.

 

 

FOR HOW LONG IS THE SEARCH WARRANT VALID?

> It is valid for 10 days, after which the police officer should make a return to the judge who issued it

> If the police officer doesn’t make a return, the judge should summon him and require him to explain why no return was made

> If the return was made, the judge should determine if the peace officer issued the receipt to the occupant of the premises from which the things were taken.

> The judge shall also order the delivery to the court of the things seized.

 

 

 

 

IF THE WARRANT WAS EXECUTED EVEN BEFORE THE EXPIRATION OF THE 10-DAY PERIOD, CAN THE PEACE OFFICER USE THE WARRANT AGAIN BEFORE IT EXPIRES?

> No, of the purpose for which it was issued has already been carried out, the warrant cannot be used anymore.

> The exception is if the search wasn’t finished within 1 day, the warrant can still be used the next day, provided it is still within the 10-day period

 

Sec. 11. Receipt for the property seized. – The officer seizing the property under the warrant must give a detailed receipt for the same to the lawful occupant of the premises in whose presence the search and seizure were made, or in the absence of such occupant, must, in the presence of at least two witnesses of sufficient age and discretion residing in the same locality, leave a receipt in the place in which he found the seized property.

 

 

 

WHAT IS THE DUTY OF THE OFFICER WHEN HE SEIZES THE PROPERTY?

> The officer seizing the property under the warrant must give a detailed receipt for the same to the lawful occupant of the premises in whose presence the search and seizure were made, or in the absence of such occupant, must, in the presence of at least two witnesses of sufficient age and discretion residing in the same locality, leave a receipt in the place in which he found the seized property.

 

 

 

CAN THE OWNER OF THE THINGS SEIZED BE MADE TO SIGN THE RECEIPT?

> No since this would be tantamount to a violation of one’s right against self-incrimination. It is a confession without the assistance of counsel.

 

 

 

IS THERE PERIL TO THE OWNER OF THE THINGS SEIZED IF HE IS MADE TO SIGN THE BOOKING SHEET?

> There is no peril since he would just be made to acknowledge that a case has been filed against him

 

 

 

THE ACCUSED WAS ARRESTED DURING A BUY-BUST OPERATION. PESO BILLS WERE SEIZED FROM HIM. CAN THE ACCUSED BE MADE TO SIGN THE BILLS?

> Yes, having the bills is not a crime.

> This applies even if the bills involved is marked money.

 

Sec. 12. Delivery of property and inventory thereof to court; return and proceedings thereon. –

 

(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 complied 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.

 

© 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.

 

 

 

WHAT IS THE DUTY OF THE OFFICER AFTER THE PROPERTY SOUGHT UNDER THE SEARCH WARRANT HAS BEEN SEIZED?

> 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.

 

Sec. 13. Search incident 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 a search warrant.

 

 

 

IN WHAT INSTANCES WOULD A SEARCH AND SEIZURE WITHOUT A WARRANT BE ALLOWED?

1. A warrantless search incidental to a lawful arrest

a. Arrest must be lawful

b. It must be contemporaneous with the arrest in both time and place

c. Within the vicinity of the person arrested, immediate control, which is the evidence of the offense or weapon

2. Search of evidence in plain view

3. Search of a moving vehicle

a. Must be cursory

b. Cant make a thorough search; just have to take a look; not to open trunks

4. Consented warrantless searches

a. The right exists

b. Person making the consent knows that he has the right

c. In spite of the knowledge of the right, he voluntarily and intelligently gives his consent

5. Customs searches

6. Stop and frisk

7. Exigent and emergency circumstances

8. Checkpoints

9. Republic Act requiring inspections or body checks in airports

10. Emergency

11. In times of war and within military operations

 

 

 

WHAT ARE THE INSTANCES OF A PERMISSIBLE WARRANTLESS ARREST?

1. Arrest in flagrante delicto

2. Arrest effected in hot pursuit

3. Arrests of escaped prisoners

 

 

 

WHAT IS THE AREA OF COVERAGE OF AN OFFICER’S SEARCH? IS IT LIMITED TO THE PERSON OF THE ACCUSED?

> Under this rule, the search being an incident to a lawful arrest may extend beyond the person of the one arrested to include the premises or surrounding under his immediate control

> The search must be made after the arrest. The objective is to make sure that the life of the peace officer will not be endangered. It must be contemporaneous with the arrest in both time and place.

 

 

 

WHEN IS THE WARRANTLESS SEARCH OF A MOVING VEHICLE ALLOWED?

> It is allowed when it is not practicable to secure a warrant

 

 

 

 

WHAT ARE THE REQUIREMENTS IN A WARRANTLESS SEARCH INCIDENTAL TO A LAWFUL ARREST?

1. Arrest must be lawful

2. It must be contemporaneous with the arrest in both time and place

3. Within the vicinity of the person arrested, immediate control, which is the evidence of the offense or weapon

 

 

WHO SHOULD GIVE CONSENT TO A WARRANTLESS SEARCH AND WHAT ARE THE REQUISITES?

> Only the person whose right may be violated can give the consent; it is a personal right that cannot be availed of by third parties. The requisites are:

1. The person has knowledge of his right against the search

2. He freely and intelligently gives his consent in spite of such knowledge

 

 

 

WHAT ARE THE REQUISITES FOR THE PLAIN VIEW DOCTRINE TO APPLY?

1. There must have been a prior valid intrusion based on the warrantless arrest in which the police are legally present in the pursuit of their official duties

2. The evidence was inadvertently discovered by the police who had the right to be where they are

3. The evidence must be immediately apparent

4. There was no need for further search

 

 

 

WHAT IS A STOP AND FRISK SITUATION? WHEN IS IT VALID?

> It is a situation wherein there is a limited protective search of outer clothing for weapons

> While probable cause is not required to conduct a stop and frisk, mere suspicion or a hunch will not validate such a procedure.

> A genuine reason must exist, in light of the police officer’s experience and surrounding conditions, to warrant the belief that the person has detained the weapons concealed about him.

 

Sec. 14. Motion to quash a search warrant or to suppress evidence; where to file. – A motion to quash a search warrant and/or to suppress evidence obtained thereby may be filed in and acted upon only by the court where the action has been instituted. If no criminal action has been instituted, the motion may be filed in and resolved by the court that issued search warrant. However, if such court failed to resolve the motion and a criminal case is subsequently filed in another court, the motion shall be resolved by the latter court.

 

 

 

A POLICE OFFICER WAS GRANTED TO SEARCH THE HOUSE FOR REBEL OFFICERS. CAN THE POLICEMAN CONDUCT A WARRANTLESS SEARCH?

> NO, the permission didn’t include the room to room search and anything confiscated will be inadmissible

 

 

 

IF AN OBJECT HAS BEEN SEIZED UPON ORDERS OF THE COURT, MAY A COORDINATE COURT ISSUE A REPLEVIN ORDER FOR THE RELEASE OF THE OBJECT?

> No, only the court that ordered its confiscation may release the object

 

 

 

IF THE ARRESTED PERSON SIGNS THE RECEIPT OF THE PROPERTY SEIZED WITHOUT THE ASSISTANCE OF COUNSEL, IS THE RECEIPT ADMISSIBLE?

> No, because it was done without assistance of counsel

 

 

 

WHAT IS THE MULTI-FACTOR BALANCING TEST?

> It requires officers to weigh the manner and intensity of the interference of the right of the people, the gravity of the crime committed, and the circumstances attending the incident.

 

 

 

WHERE SHOULD ONE FILE THE NOTION TO QUASH WARRANT OR TO SUPPRESS EVIDENCE?

1. In the court where the action has been instituted

2. If no criminal action has been filed, in the court that issued the warrant

3. However, if said court failed to resolve the motion and a criminal case is subsequently filed in another court, the motion shall be filed in the latter court

 

 

 

A MOTION TO QUASH WAS FILED IN THE COURT WHERE THE CRIMINAL ACTION WAS FILED. DURING THIS TIME, THE PRELIMINARY INVESTIGATION WAS ONGOING. THE ACCUSED MOVES FOR THE SUSPENSION OF THE PRELIMINARY INVESTIGATION. VALID AND PROPER?

> No, the preliminary investigation is of different nature from deciding on whether to grant the motion to quash the warrant

> The result of one will not affect the other. One deals on probable cause on whether there are facts and circumstances that would engender a well-founded belief that a crime has been committed and the accused is probably guilty thereof. The other deals on whether the things and objects were seized legally or not.

 

NOTE: The Motion To Quash, filed in the issuing court, or to Suppress Evidence, filed with the court trying the case, are alternative, not cumulative remedies. If one is filed, the other can no longer be availed of. The court first taking cognizance of the motion does so to exclusion of the other. The proceedings thereon are subject to the omnibus motion rule and the rule against forum shopping.

 

 

 

WHAT IS THE TOTAL EXCLUSIONARY RULE?

> Things and objects seized in violation of the right against unreasonable searches and seizures are fruits of the poisonous tree and are inadmissible as evidence

 

 

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  • 5 weeks later...

thanks wombat...my ice melted in my drink...took that long to read this info that any of use will never use in the phils.

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Davaoeno

where did active content go?

this format sucks

 

you reposted a 2 foot long post and then you dare to ask where active content has gone ?????????? :stick_poke::biggrin_01:

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hey fan in the time it took you to read phils post you could of had sex with gigi 4 times.. no one is faster at the draw then you buddy

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Wombat No More

Rather than being of no use to any of us Fanboat, the point of putting this info up is if in the event any of us are the subject of a search warrant, especially a bullshit search warrant that was generated on shaky ground... It is also in response to the original thread I put in (passed on by Paul over 12 months ago) whereby one 70+ year old Aussie John Martin, a well off businessman who built and owned the large Lawn Bowls club Greenlands, in Quezon City, was subject to exactly the bullshit warrant I intimated at and instigated by senior police with a judge obviously in cahoots, to strip him of some of the money he was receiving monthly in selling his club.

 

Look for the John Martin thread mate and read with avid interest and disgust at the actions of completely criminal and greedy public officials/law enforcers, in incarcerating this old man, with a severe heart condition, and destroying his life with absolute lies and planted evidence as several cops ran all over his house. And then come back here and apologise for suggesting my effort to inform people is without use for any of us. Any more misinformed info for us mate? Shit, why do I bother? Because I care!

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