DEFINE LIFE: 2015

Reviewer by: OLIVE CACHAPERO

CRIMINAL PROCEDURE

ARREST

Laws and Jurisprudence

ARREST

GENERAL RULE:

The fundamental law of the land mandates that searches and seizures be carried out in a reasonable fashion, that is, by virtue or on the strength of a search warrant predicated upon the existence of a probable cause.

Sec. 2, Art. III, 1987 Constitution

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

People v. Inting,

Important features of the constitutional mandate:

a) The determination of probable cause is a function of the judge; it is not for the provincial fiscal or prosecutor to ascertain. Only the judge and the judge alone makes this determination;

b) The preliminary inquiry made by a prosecutor does not bind the judge. It merely assists him in making the determination of probable cause. The judge does not have to follow what the prosecutor presents to him. By itself, the prosecutor's certification of probable cause is ineffectual. It is the report, the affidavits, the transcript of stenographic notes (if any), and all other supporting documents behind the prosecutor's certification which are material in assisting the judge in his determination of probable cause; and,

c) Judges and prosecutors alike should distinguish the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest from the preliminary investigation proper which ascertains whether the offender should be held for trial or released. Even if the two inquiries be conducted in the course of one and the same proceeding, there should be no confusion about their objectives.

1) Judicial Determination by the Judge- The determination of probable cause for the warrant is made by the judge.

2) Executive determination by the prosecutor in the preliminary investigation proper — whether or not there is reasonable ground to believe that the accused is guilty of the offense charged and therefore, whether or not he should be subjected to the expense, rigors and embarrassment of trial.

Section 2, Art. III, of the 1987 Constitution, lays down the requirements for the issuance of a warrant of arrest:

a) a warrant of arrest shall issue only upon probable cause

b) to be determined personally by the judge

c) after examination under oath or affirmation of the complainant and the witnesses he may produce.

PROBABLE CAUSE

^·The existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.

^·Such facts and circumstances which would lead a reasonable discreet and prudent man to believe that an offense has been committed by the person sought to be arrested.

NOTE: The term does not mean "actual and positive cause" nor does it import absolute certainty. It is merely based on opinion and reasonable belief. Thus, a finding of probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is it believed that the act or omission complained of constitutes the offense charged.

EXCEPTIONS:

1) Valid warrantless arrest

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 is attempting to commit an offense (arrest in flagrante delicto);

b) when an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it (arrest effected in hot pursuit); and

c) when the person to be arrested is a prisoner who has escaped from a penal establishment or a place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another (arrest of escaped prisoners). (Sec. 5, Rule 113, Rules of Court)

In flagrante delicto arrests; Two elements:

1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and

2) such overt act is done in the presence or within the view of the arresting officer.

NOTE: “Reliable information” alone, absent any overt act indicative of a felonious enterprise in the presence and within the view of the arresting officers, are not sufficient to constitute probable cause that would justify an in flagrante delicto arrest.

2) Valid warrantless search

Search and seizure may be made without a warrant and the evidence obtained therefrom may be admissible in the following instances:

1) Warrantless search incidental to a lawful arrest recognized under Section 12 [now Section 13], Rule 126 of the Rules of Courtand by prevailing jurisprudence;

2) Seizure of evidence in plain view

3) Search of a moving vehicle. Highly regulated by the government, the vehicle's inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity;

4) Consented warrantless search;

5) Customs search;

6) Stop and Frisk;and

7) Exigent and Emergency Circumstances.

Search incidental to a lawful arrest

· The law requires that there be first a lawful arrest before a search can be made; generally, the process cannot be reversed.

· Nevertheless, a search substantially contemporaneous with an arrest can precede the arrest if the police have probable cause to make the arrest at the outset of the search.

Plain View Doctrine

Objects falling in plain view of an officer who has a right to be in a position to have that view are subject to seizure even without a search warrant and may be introduced in evidence.

Plain View Doctrine; Requisites: (PIA)

a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties;

b) the evidence was inadvertently discovered by the police who had the right to be where they are;

c) the evidence must be immediately apparent, and;

d) plain view justified mere seizure of evidence without further search.

Consented Warrantless Search

To constitute a waiver, it must appear first:

a) the right exists;

b) that the person involved had knowledge, actual or constructive, of the existence of such right;

c) that said person had an actual intention to relinquish the right .

· The fact that the accused failed to object to the entry into his house does not amount to a permission to make a search therein .

NOTE: As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizen in the position of either contesting an officer’s authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law.

We apply the rule that: ‘courts indulge every reasonable presumption against waiver of fundamental constitutional rights and that we do not presume acquiescence in the loss of fundamental rights.’”

SEARCH & SEIZURE

Sec. 2, Art. III, of the 1987 Constitution

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized.

Sec. 3, Rule 126, Revised Rules of Court

Requisites for issuing search warrant. — A search warrant shall not issue but

a) upon probable cause to be determined by the judge or justice of the peace after examination under oath or affirmation of the complainant and the witnesses he may produce

b) in connection with one specific offense

c) particularly describing the place to be searched and the persons or things to be seized.

d) No search warrant shall issue for more than one specific offense.

PARTICULARITY OF DESCRIPTION

· The rule is that a description of the place to be searched is sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intended to be searched. The description can be made determinate by a reference to the affidavit supporting the warrant. The place being indicated by the evidence on record, there can be no doubt that the warrant described the place to be searched with sufficient particularity.

· While it is true that the property to be seized under a warrant must be particularly described therein and no other property can be taken thereunder, yet the description is required to be specific only in so far as the circumstances will ordinarily allow.” Where by the nature of the goods to be seized, their description must be rather general, it is not required that a technical description be given, as this would mean that no warrant could issue. (People v. Rubio)

TEST: A search warrant may be said to particularly describe the things to be seized when:

a) the description therein is as specific as the circumstances will ordinarily allow; or

b) when the description expresses a conclusion of fact — not of law — by which the warrant officer may be guided in making the search and seizure; or

c) when the things described are limited to those which bear direct relation to the offense for which the warrant is being issued (Sec. 2, Rule 126, Revised Rules of Court).

SPECIFIC OFFENSE:

The evident purpose and intent of this requirement is:

a) to limit the things to be seized to those, and only those, particularly described in the search warrant;

b) to leave the officers of the law with no discretion regarding what articles they shall seize;

c) to the end that ‘unreasonable searches and seizures’ may not be made;

d) that abuses may not be committed.

TWO-WITNESS REQUIREMENT:

Section 10, Rule 126, Revised Rules of Court

Receipt for the property seized.—The officer seizing 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.

PERSONAL EXAMINATION BY A JUDGE

Sec. 4, Rule 126, Revised Rules of Court

Examination of the applicant. — The judge or justice of the peace must, before issuing the warrant, personally examine on oath or affirmation the complainant and any witnesses he may produce and take their depositions in writing, and attach them to the record, in addition to any affidavits presented to him."

· The examination of the complainant and the witnesses he may produce, required by Art. III, Sec. 1, par. 3, of the Constitution, and by Secs. 3 and 4, Rule 126 of the Revised Rules of Court, should be conducted by the judge himself and not by others.

· Personal examination by the judge of the complainant and his witnesses is necessary to enable him to determine the existence or non-existence of a probable cause.

RULES:

1) Personal examination by a judge is mandatory and indispensable in the determination of probable cause for the issuance of a search warrant.

2) Personal examination by a judge is not mandatory and indispensable in the determination of probable cause for the issuance of a warrant of arrest.

Soliven v. Makasiar,

a) the judge shall personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or,

b) if on the basis thereof he finds no probable cause, may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion on the existence of probable cause.

Lim v. Felix

· The Judge does not have to personally examine the complainant and his witnesses. The Prosecutor can perform the same functions as a commissioner for the taking of the evidence. However, there should be a report and necessary documents supporting the Fiscal's bare certification. All these should be before the Judge.

· The extent of the Judge's personal examination of the report and its annexes depends on the circumstances of each case. We cannot determine beforehand how cursory or exhaustive the Judge's examination should be. To be sure, the judge must go beyond the Prosecutor's certification and investigation report whenever necessary. He should call for the complainant and witnesses themselves to answer the court's probing questions when the circumstances of the case so require.

CASE DOCTRINES

ARREST

1) AAA vs. Carbonel

Facts: Respondent Judge Carbonel dismissed the case for lack of probable cause on the ground that petitioner and her witnesses failed to comply with his orders to take the witness stand. He claims that under Section 2, Article III of the 1987 Constitution, no warrant of arrest shall issue except upon probable cause “to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce.”

Held: True, there are cases where the circumstances may call for the judge’s personal examination of the complainant and his witnesses. But it must be emphasized that such personal examination is not mandatory and indispensable in the determination of probable cause for the issuance of a warrant of arrest. The necessity arises only when there is an utter failure of the evidence to show the existence of probable cause. Otherwise, the judge may rely on the report of the investigating prosecutor, provided that he likewise evaluates the documentary evidence in support thereof.

Indeed, what the law requires as personal determination on the part of the judge is that he should not rely solely on the report of the investigating prosecutor. In Okabe v. Gutierrez, we stressed that the judge should consider not only the report of the investigating prosecutor but also the affidavit and the documentary evidence of the parties, the counter-affidavit of the accused and his witnesses, as well as the transcript of stenographic notes taken during the preliminary investigation, if any, submitted to the court by the investigating prosecutor upon the filing of the Information. If the report, taken together with the supporting evidence, is sufficient to sustain a finding of probable cause, it is not compulsory that a personal examination of the complainant and his witnesses be conducted.

2) Roberts, Jr. vs. CA

Facts: Petitioners filed with the DOJ a Petition for Review wherein they prayed that the Joint Resolution be reversed and the complaints dismissed. They also filed in Criminal Case No. Q-93-43198 Motions to Suspend Proceedings and to Hold in Abeyance Issuance of Warrants of Arrest on the ground that they had filed the aforesaid Petition for Review.

Petitioner Paul Roberts, Jr., filed a Supplemental Urgent Motion to hold in Abeyance Issuance of Warrant of Arrest and to Suspend Proceedings. He stressed that the DOJ had taken cognizance of the Petition for Review and asserted that the petition for review was an essential part of the petitioners’ right to a preliminary investigation.

Respondent RTC Judge Asuncion issued an order advising the parties that his court would “be guided by the doctrine laid down by the Supreme Court in the case of Crespo vs. Mogul, 151 SCRA 462 and not by the resolution of the DOJ on the petition for review undertaken by the accused. This case is already pending in this Court for trial. To follow whatever opinion the Secretary of Justice may have on the matter would undermine the independence and integrity of this Court. This Court is still capable of administering justice.

Held: There is nothing in Crespo vs. Mogul which bars the DOJ from taking cognizance of an appeal, by way of a petition for review, by an accused in a criminal case from an unfavorable ruling of the investigating prosecutor. It merely advised the DOJ to, “as far as practicable, refrain from entertaining a petition for review or appeal from the action of the fiscal, when the complaint or information has already been filed in Court.” More specifically, it stated:

In order therefore to avoid such a situation whereby the opinion of the Secretary of Justice who reviewed the action of the fiscal may be disregarded by the trial court, the Secretary of Justice should, as far as practicable, refrain from entertaining a petition for review or appeal from the action of the fiscal, when the complaint or information has already been filed in Court. The matter should be left entirely for the determination of the Court.

The real and ultimate test of the independence and integrity of this court is not the filing of the aforementioned motions at that stage of the proceedings but the filing of a motion to dismiss or to withdraw the information on the basis of a resolution of the petition for review reversing the Joint Resolution of the investigating prosecutor. Before that time, the following pronouncement in Crespo did not yet truly become relevant or applicable.

However, once a motion to dismiss or withdraw the information is filed the trial judge may grant or deny it, not out of subservience to the Secretary of Justice, but in faithful exercise of judicial prerogative.

Crespo vs. Mogul stated as follows:

· The rule is that ‘x x x once a complaint or information is filed in Court, any disposition of the case as to dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court, he cannot impose his opinion on the trial court. The court is the best and sole judge on what to do with the case before it.

3) Pangandaman vs. Casar

Before the investigating judge may order arrest, he must examine the witnesses to the complaint, the examination to be under oath and reduced to writing in the form of searching questions and answers.

Insofar, however, as said warrant is issued against fifty (50) "John Does" not one of whom the witnesses to the complaint could or would Identify, it is of the nature of a general warrant, one of a class of writs long proscribed as unconstitutional and once anathematized as "totally subversive of the liberty of the subject." Clearly violative of the constitutional injunction that warrants of arrest should particularly describe the person or persons to be seized, the warrant must, as regards its unidentified subjects, be voided.

4) People vs. Nasario Molina

Facts: A “trisikad” carrying the accused-appellants passed by. At that instance, SPO1 Paguidopon pointed to the accused-appellants as the pushers. Thereupon, the team boarded their vehicle and overtook the “trisikad.” The police officers then ordered the “trisikad” to stop. At that point, accused-appellant Mula who was holding a black bag handed the same to accused-appellant Molina. Subsequently, SPO1 Pamplona introduced himself as a police officer and asked accused-appellant Molina to open the bag. Molina replied, “Boss, if possible we will settle this.” SPO1 Pamplona insisted on opening the bag, which revealed dried marijuana leaves inside. Thereafter, accused-appellants Mula and Molina were handcuffed by the police officers.

Held: No personal knowledge. Accused-appellants manifested no outward indication that would justify their arrest. In holding a bag on board a trisikad, accused-appellants could not be said to be committing, attempting to commit or have committed a crime. It matters not that accused-appellant Molina responded “Boss, if possible we will settle this” to the request of SPO1 Pamplona to open the bag. Such response which allegedly reinforced the “suspicion” of the arresting officers that accused-appellants were committing a crime, is an equivocal statement which standing alone will not constitute probable cause to effect an inflagrante delicto arrest.

SPO1 Pamplona could not have learned the name of accused-appellants from SPO1 Paguipodon because Paguipodon himself, who allegedly conducted the surveillance, was not even aware of accused-appellants’ name and address prior to the arrest. Evidently, SPO1 Paguidopon, who acted as informer of the arresting officers, more so the arresting officers themselves, could not have been certain of accused-appellants’ identity, and were, from all indications, merely fishing for evidence at the time of the arrest.

No consented search. Moreover, it could not be said that accused-appellants waived their right against unreasonable searches and seizure. Implied acquiescence to the search, if there was any, could not have been more than mere passive conformity given under intimidating or coercive circumstances and is thus considered no consent at all within the purview of the constitutional guarantee. ACQUITTED.

5) People vs. Dequina

Facts: The police received a tip that a huge amount of marijuana would be transported from Baguio City to the Manila pier. Acting on the information he received, the police went to the corner of Juan Luna Streets where they were supposed to watch out for two females and one male. They spotted three persons, two females and one male – who turned out to be accused-appellants – alighting from a taxi at the corner of Raxabago and Juan Luna Streets, each carrying a traveling bag. PO3 Masanggue and SPO1 Blanco then followed accused-appellants until one of them, Dequina, dropped her traveling bag. The traveling bag fell open and inside, PO3 Masanggue and SPO1 Blanco saw dried leaves in transparent plastic bags. It was only then that the two police officers apprehended accused-appellants and their persons and belongings searched.

Held: The evidence in this case shows that at the time of their arrest, accused-appellants were caught in flagrante delicto carrying/transporting dried marijuana leave in there traveling bags. PO3 Masanggue and SPO1 Blanco need not even open Dequina’s traveling bag to determine its content because when the latter noticed the police officers’ presence, she walked briskly away and in her hurry, accidentally dropped her traveling bag, causing the zipper to open and exposed the dried marijuana bricks therein. Since a crime was then actually being committed by the accused-appellants, their warrantless arrest was legally justified, and the following warrantless search of their traveling bags was allowable as incidental to their lawful arrest. GUILTY.

Consented Search. Besides, accused-appellants did not raise any protest when they, together with their bags containing marijuana, were brought to the police station for investigation and subsequent prosecution. In People v. Fernandez, we ruled that:

When one voluntarily submits to a search or consents to have it made of his person or premises, he is precluded from later complaining thereof. x x x. The right to be secure from unreasonable search may, like every right, be waived and such waiver may be made either expressly or impliedly.

6) Abraham Miclat vs. People

Facts: Agents of the Station Drug Enforcement Unit of the Caloocan City Police Station were conducting a surveillance operation to verify the reported drug-related activities of several individuals, which included the petitioner. During the operation, PO3 Antonio, through petitioner’s window, saw petitioner arranging several plastic sachets containing what appears to be shabu in the living room of their home. The plastic sachets and its suspicious contents were plainly exposed to the view of PO3 Antonio, who was only about one and one-half meters from where petitioner was seated. PO3 Antonio then inched his way in the house by gently pushing the door. Upon gaining entrance, the operative introduced himself as a police officer. After which, petitioner voluntarily handed over to PO3 Antonio the small plastic sachets. PO3 Antonio then placed petitioner under arrest.

Held: In flagrante delicto. Considering the circumstances immediately prior to and surrounding the arrest of the petitioner, petitioner was clearly arrested in flagrante delicto as he was then committing a crime, violation of the Dangerous Drugs Act, within the view of the arresting officer.

Plain View. The law enforcement officer must lawfully make an initial intrusion or properly be in a position from which he can particularly view the area. In the course of such lawful intrusion, he came inadvertently across a piece of evidence incriminating the accused. The object must be open to eye and hand and its discovery inadvertent. The object is in plain view because the object itself is plainly exposed to sight. GUILTY.

7) Pollo vs. Constantino-David

Doctrine:

Public employer intrusions on the constitutionally protected privacy interests of government employees for non-investigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances. Under this reasonableness standard, both the inception and the scope of the intrusion must be reasonable:

“Determining the REASONABLENESS OF ANY SEARCH involves a twofold inquiry: first, one must consider ‘whether the…action was justified at its inception,’ x x x ; second, one must determine whether the search as actually conducted ‘was reasonably related in scope to the circumstances which justified the interference in the first place.

Ordinarily, a search of an employee’s office by a supervisor will be “justified at its inception”:

1) Inception - when there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct, or that the search is necessary for a non-investigatory work-related purpose such as to retrieve a needed file.

2) Scope - The search will be permissible in its scope when “the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of …the nature of the [misconduct].

Petitioner failed to prove that he had an actual (subjective) expectation of privacy either in his office or government-issued computer which contained his personal files. Petitioner did not allege that he had a separate enclosed office which he did not share with anyone, or that his office was always locked and not open to other employees or visitors. Neither did he allege that he used passwords or adopted any means to prevent other employees from accessing his computer files.

The search conducted on petitioner’s computer was justified at its inception and scope. We quote with approval the CSC’s discussion on the reasonableness of its actions, consistent as it were with the guidelines established by O’Connor:

The search of Pollo’s computer has successfully passed the test of reasonableness for warrantless searches in the workplace as enunciated in the above-discussed American authorities. It bears emphasis that the Commission pursued the search in its capacity as a government employer and that it was undertaken in connection with an investigation involving a work-related misconduct, one of the circumstances exempted from the warrant requirement. At the inception of the search, a complaint was received recounting that a certain division chief in the CSCRO No. IV was “lawyering” for parties having pending cases with the said regional office or in the Commission. The nature of the imputation was serious, as it was grievously disturbing. Considering the damaging nature of the accusation, the Commission had to act fast, if only to arrest or limit any possible adverse consequence or fall-out.

8) People vs. Aruta

Facts: A police officer was tipped off by his informant that a certain “Aling Rosa” would be arriving from Baguio City the following day with a large volume of marijuana. Acting on said tip, the police assembled a team and deployed themselves near the PNB in Olongapo City. While thus positioned, a Victory Liner Bus stopped in front of the PNB building where two females and a man got off. The informant then pointed to the team members the woman, “Aling Rosa,” who was then carrying a traveling bag. Thereafter, the team approached her and introduced themselves. When asked about the contents of her bag, she handed it to the apprehending officers. Upon inspection, the bag was found to contain dried marijuana leaves.

Held: In instant case, the apprehending officers already had prior knowledge from their informant regarding Aruta’s alleged activities.

Accused-appellant Aruta cannot be said to be committing a crime. Neither was she about to commit one nor had she just committed a crime. Accused-appellant was merely crossing the street and was not acting in any manner that would engender a reasonable ground for the NARCOM agents to suspect and conclude that she was committing a crime. It was only when the informant pointed to accused-appellant and identified her to the agents as the carrier of the marijuana that she was singled out as the suspect. The NARCOM agents would not have apprehended accused-appellant were it not for the furtive finger of the informant because, as clearly illustrated by the evidence on record, there was no reason whatsoever for them to suspect that accused-appellant was committing a crime, except for the pointing finger of the informant.

Consequently, there was no legal basis for the NARCOM agents to effect a warrantless search of accused-appellant’s bag, there being no probable cause and the accused-appellant not having been lawfully arrested.

a.) Search incidental to a lawful arrest - the arrest being illegal, it logically follows that the subsequent search was similarly illegal, it being not incidental to a lawful arrest. The constitutional guarantee against unreasonable search and seizure must perforce operate in favor of accused-appellant. As such, the articles seized could not be used as evidence against accused-appellant for these are “fruits of a poisoned tree” and, therefore, must be rejected, pursuant to Article III, Sec. 3(2) of the Constitution.

b.) Plain view doctrine - In the absence of probable cause to effect a valid and legal warrantless arrest, the search and seizure of accused-appellant’s bag would also not be justified as seizure of evidence in “plain view” under the second exception. The marijuana was obviously not immediately apparent as shown by the fact that the NARCOM agents still had to request accused-appellant to open the bag to ascertain its contents.

c.) Search of a moving vehicle - Neither would the search and seizure of accused-appellant’s bag be justified as a search of a moving vehicle. There was no moving vehicle to speak of in the instant case as accused-appellant was apprehended several minutes after alighting from the Victory Liner bus. In fact, she was accosted in the middle of the street and not while inside the vehicle.

d.) Stop and frisk - there was no observable manifestation that could have aroused the suspicion of the NARCOM agents as to cause them to “stop and frisk” accused-appellant. To reiterate, accused-appellant was merely crossing the street when apprehended.

e.) Exigent and emergency circumstances - The warrantless search and seizure could not likewise be categorized under exigent and emergency circumstances, as applied in People v. De Gracia. In said case, there were intelligence reports that the building was being used as headquarters by the RAM during a coup d’etat. A surveillance team was fired at by a group of armed men coming out of the building and the occupants of said building refused to open the door despite repeated requests. There were large quantities of explosives and ammunitions inside the building. Nearby courts were closed and general chaos and disorder prevailed. The existing circumstances sufficiently showed that a crime was being committed. In short, there was probable cause to effect a warrantless search of the building. The same could not be said in the instant case.

f.) Consented search - When one voluntarily submits to a search or consents to have it made on his person or premises, he is precluded from complaining later thereof. The right to be secure from unreasonable search may, like every right, be waived and such waiver may be made either expressly or impliedly.”

The act of herein accused-appellant in handing over her bag to the NARCOM agents could NOT be construed as voluntary submission or an implied acquiescence to the unreasonable search. Appellant’s silence should not be lightly taken as consent to such search. The implied acquiscence to the search, if there was any, could not have been more than mere passive conformity given under intimidating or coercive circumstances and is thus considered no consent at all within the purview of the constitutional guarantee.

Ø Furthermore, considering that the search was conducted irregularly, i.e., without a warrant, we cannot appreciate consent based merely on the presumption of regularity of the performance of duty.”

Ø Thus, accused-appellant’s lack of objection to the search is not tantamount to a waiver of her constitutional rights or a voluntary submission to the warrantless search. ACQUITTED.

SEARCHES & SEIZURE

1) Stonehill vs. Diokno

Offense stated in the search warrant: "violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal Code."

Held:

No specific offense had been alleged in said applications. As a consequence, it was impossible for the judges who issued the warrants to have found the existence of probable cause, for the same presupposes the introduction of competent proof that the party against whom it is sought has performed particular acts, or committed specific omissions, violating a given provision of our criminal laws. As a matter of fact, the applications involved in this case do not allege any specific acts performed by herein petitioners.

No Particularity of description. The warrants authorized the search for and seizure of records pertaining to all business transactions of petitioners herein, regardless of whether the transactions were legal or illegal. The warrants sanctioned the seizure of all records of the petitioners and the aforementioned corporations, whatever their nature, thus openly contravening the explicit command of our Bill of Rights — that the things to be seized be particularly described — as well as tending to defeat its major objective: the elimination of general warrants.

Admissibility. Exclusionary rule is the only practical means of enforcing the constitutional injunction against unreasonable searches and seizures. The non-exclusionary rule is contrary, not only to the letter, but also, to the spirit of the constitutional injunction against unreasonable searches and seizures. The only possible explanation for its issuance is the necessity of fishing evidence of the commission of a crime. But, then, this fishing expedition is indicative of the absence of evidence to establish a probable cause. INADMISSIBLE.

2) Bache vs. Ruiz

· Void Search Warrant

Doctrine:

No Personal examination. Respondent Judge failed to personally examine the complainant and his witness. No personal examination at all was conducted by respondent Judge of the complainant and his witness.

Ø respondent Judge did not ask either of the two any question the answer to which could possibly be the basis for determining whether or not there was probable cause against herein petitioners.

Ø The participation of respondent Judge in the proceedings which led to the issuance of Search Warrant was limited to listening to the stenographer’s readings of her notes, to a few words of warning against the commission of perjury, and to administering the oath to the complainant and his witness. This cannot be considered a personal examination. If there was an examination at all of the complainant and his witness, it was the one conducted by the Deputy Clerk of Court. The reading of the stenographic notes to respondent Judge did not constitute sufficient compliance with the constitutional mandate and the rule;

Ø respondent Judge did not have the opportunity to

a) observe the demeanor of the complainant and his witness, and

b) to propound initial and follow-up questions which the judicial mind, on account of its training, was in the best position to conceive. These were important in arriving at a sound inference on the all-important question of whether or not there was probable cause.

No One Specific Offense. Against petitioners for violation of Section 46(a) of the National Internal Revenue Code, in relation to all other pertinent provisions thereof, particularly Sections 53, 72, 73, 208 and 209. The search warrant was issued for more than one specific offense. The search warrant was issued for at least four distinct offenses under the Tax Code.

No Particularity of description. The search warrant does not particularly describe the things to be seized. The documents, papers and effects sought to be seized are described in Search Warrant No. 2-M-70 in this manner: "Unregistered and private books of accounts (ledgers, journals, columnars, receipts and disbursements books, customers ledgers); receipts for payments received; certificates of stocks and securities; contracts, promissory notes and deeds of sale; telex and coded messages; business communications, accounting and business records; checks and check stubs; records of bank deposits and withdrawals; and records of foreign remittances, covering the years 1966 to 1970."

While the term "all business transactions" does not appear in Search Warrant No. 2-M-70, the said warrant nevertheless tends to defeat the major objective of the Bill of Rights, i.e., the elimination of general warrants, for the language used therein is so all-embracing as to include all conceivable records of petitioner corporation, which, if seized, could possibly render its business inoperative.

TEST: A search warrant may be said to particularly describe the things to be seized when:

d) the description therein is as specific as the circumstances will ordinarily allow; or

e) when the description expresses a conclusion of fact — not of law — by which the warrant officer may be guided in making the search and seizure; or

f) when the things described are limited to those which bear direct relation to the offense for which the warrant is being issued (Sec. 2, Rule 126, Revised Rules of Court).

The herein search warrant does not conform to any of the foregoing tests. If the articles desired to be seized have any direct relation to an offense committed, the applicant must necessarily have some evidence, other than those articles, to prove the said offense; and the articles subject of search and seizure should come in handy merely to strengthen such evidence. In this event, the description contained in the herein disputed warrant should have mentioned, at least, the dates, amounts, persons, and other pertinent data regarding the receipts of payments, certificates of stocks and securities, contracts, promissory notes, deeds of sale, messages and communications, checks, bank deposits and withdrawals, records of foreign remittances, among others, enumerated in the warrant.

3) People vs. Salanguit

Facts: Application for a warrant in the RTC to search the residence of accused-appellant Robert Salanguit. He presented as his witness SPO1 Edmund Badua, who testified that as a poseur-buyer, he was able to purchase 2.12 grams of shabu from accused-appellant. The sale took place in accused-appellant’s room, and Badua saw that the shabu was taken by accused-appellant from a cabinet inside his room.

The policemen went to the residence of accused-appellant to serve the warrant. The police operatives knocked on accused-appellant’s door, but nobody opened it. They heard people inside the house, apparently panicking. The police operatives then forced the door open and entered the house. After showing the search warrant to the occupants of the house, the group started searching the house.

Things seized:

1) 12 small heat-sealed transparent plastic bags containing a white crystalline substance – ADMISSIBLE

2) a paper clip box also containing a white crystalline substance - ADMISSIBLE

3) two bricks of dried leaves which appeared to be marijuana wrapped in newsprint - INADMISSIBLE

Search warrant provides:

For: Violation of RA 6425

Place: Binhagan St., San Jose, Quezon City

Properties: Undetermined Quantity of Shabu and Drug Paraphernalia

Held:

No probable cause to search for drug paraphernalia. However, the fact that there was no probable cause to support the application for the seizure of drug paraphernalia does not warrant the conclusion that the search warrant is void. This fact would be material only if drug paraphernalia was in fact seized by the police. The fact is that none was taken by virtue of the search warrant issued. If at all, therefore, the search warrant is void only insofar as it authorized the seizure of drug paraphernalia, but it is valid as to the seizure of methamphetamine hydrochloride as to which evidence was presented showing probable cause as to its existence. Although the warrant was defective in the respects noted, it does not follow that it was invalid as a whole. It would be a drastic remedy indeed if a warrant, which was issued on probable cause and particularly describing the items to be seized on the basis thereof, is to be invalidated in toto because the judge erred in authorizing a search for other items not supported by the evidence. Accordingly, we hold that the first part of the search warrant, authorizing the search of accused-appellant’s house for an undetermined quantity of shabu, is valid, even though the second part, with respect to the search for drug paraphernalia, is not.

One specific offense. Appellant contentend that the search warrant is clearly for more than 1 specific offense, one for illegal possession of shabu, the second for illegal possession of marijuana and the third for illegal possession of paraphernalia. This argument is pedantic. The Dangerous Drugs Act of 1972 is a special law that deals specifically with dangerous drugs which are subsumed into “prohibited” and “regulated” drugs and defines and penalizes categories of offenses which are closely related or which belong to the same class or species. Accordingly, 1 search warrant may thus be validly issued for the said violations of the Dangerous Drugs Act. (are so related as to be subsumed within the category of illegal possession of firearms, etc. under P.D. No. 1866.)

Particularity of description. While the address stated in the warrant is merely “Binhagan St., San Jose, Quezon City,” the trial court took note of the fact that the records of Search Warrant Case No. 160 contained several documents which identified the premises to be searched. We hold that with respect to the seizure of shabu from accused-appellant’s residence, Search Warrant No. 160 was properly issued.

Plain view. The search warrant authorized the seizure of methamphetamine hydrochloride or shabu but not marijuana. However, seizure of the marijuana is being justified on the ground that the drug was seized within the “plain view” of the searching party. The marijuana bricks were wrapped in newsprint. Not being in a transparent container, the contents wrapped in newsprint could not have been readily discernible as marijuana. Nor was there mention of the time or manner these items were discovered. Accordingly, for failure of the prosecution to prove that the seizure of the marijuana without a warrant was conducted in accordance with the “plain view doctrine,” we hold that the marijuana is inadmissible in evidence against accused-appellant. The ‘plain view’ doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.

4) Al-Ghoul vs. CA

Facts:

Search warrants 54-95 and 55-95

Place: Apartment No. 2 at 154 Obiniana Compound, Deparo Road, Kalookan City.

Apartment No. 8: found one (1) .45 caliber pistol.

Apartment No. 2: found firearms, ammunitions, explosives and other devices

Held:

Search made at Apartment No. 8. Illegal and the .45 caliber pistol taken thereat is inadmissible in evidence against petitioners. The place to be searched cannot be changed, enlarged nor amplified by the police. INADMISSIBLE.

Search made at Apartment No. 2. Valid and legal. Items seized are ADMISSIBLE.

Particularity of description. That the articles seized during the search of Apartment No. 2 are of the same kind and nature as those items enumerated in the search warrant above-quoted appears to us beyond cavil. The items seized from Apartment No. 2 were described with specificity in the warrants in question. The nature of the items ordered to be seized did not require, in our view, a technical description. Moreover, the law does not require that the things to be seized must be described in precise and minute details as to leave no room for doubt on the part of the searching authorities, otherwise, it would be virtually impossible for the applicants to obtain a search warrant as they would not know exactly what kind of things they are looking for. Once described, however, the articles subject of the search and seizure need not be so invariant as to require absolute concordance, in our view, between those seized and those described in the warrant. Substantial similarity of those articles described as a class or species would suffice.

Two-witness requirement. The two-witness rule applies only in the absence of the lawful occupants of the premises searched. In the case at bar, petitioners were present when the search and seizure operation was conducted by the police at Apartment No. 2.

5) Social Justice Society vs. Dangerous Drugs Board

Facts: Constitutionality of Section 36 of RA 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, insofar as it 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, is put in issue.

Held:

(c) Students of secondary and tertiary schools. - Students of secondary and tertiary schools shall, pursuant to the related rules and regulations as contained in the school's student handbook and with notice to the parents, undergo a random drug testing – CONSTITUTIONAL

The provisions of RA 9165 requiring mandatory, random, and suspicionless drug testing of students are constitutional. Indeed, it is within the prerogative of educational institutions to require, as a condition for admission, compliance with reasonable school rules and regulations and policies. To be sure, the right to enroll is not absolute; it is subject to fair, reasonable, and equitable requirements.

(d) Officers and employees of public and private offices. - Officers and employees of public and private offices, whether domestic or overseas, shall be subjected to undergo a random drug test as contained in the company's work rules and regulations, x x x for purposes of reducing the risk in the workplace. Any officer or employee found positive for use of dangerous drugs shall be dealt with administratively which shall be a ground for suspension or termination - CONSTITUTIONAL

The mandatory but random drug test prescribed by Sec. 36 of RA 9165 for officers and employees of public and private offices is justifiable. The constitutional soundness of the mandatory, random, and suspicionless drug testing proceeds from the reasonableness of the drug test policy and requirement. While every officer and employee in a private establishment is under the law deemed forewarned that he or she may be a possible subject of a drug test, nobody is really singled out in advance for drug testing. The goal is to discourage drug use by not telling in advance anyone when and who is to be tested.

(f) All persons charged before the prosecutor's office with a criminal offense having an imposable penalty of imprisonment of not less than six (6) years and one (1) day shall undergo a mandatory drug test - UNCONSTITUTIONAL

The Court finds no valid justification for mandatory drug testing for persons accused of crimes. The operative concepts in the mandatory drug testing are "randomness" and "suspicionless." In the case of persons charged with a crime before the prosecutor's office, a mandatory drug testing can never be random or suspicionless. The ideas of randomness and being suspicionless are antithetical to their being made defendants in a criminal complaint. They are not randomly picked; neither are they beyond suspicion. When persons suspected of committing a crime are charged, they are singled out and are impleaded against their will. The persons thus charged, by the bare fact of being haled before the prosecutor's office and peaceably submitting themselves to drug testing, if that be the case, do not necessarily consent to the procedure, let alone waive their right to privacy. To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case would violate a persons' right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves.

(g) All candidates for public office whether appointed or elected both in the national or local government shall undergo a mandatory drug test - UNCONSTITUTIONAL

Viewed, therefore, in its proper context, Sec. 36(g) of RA 9165 and the implementing COMELEC Resolution add another qualification layer to what the 1987 Constitution, at the minimum, requires for membership in the Senate. The unconstitutionality of Sec. 36(g) of RA 9165 is rooted on its having infringed the constitutional provision defining the qualification or eligibility requirements for one aspiring to run for and serve as senator.

NOTE: The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for secondary and tertiary level students and public and private employees, while mandatory, is a RANDOM and SUSPICIONLESS arrangement. The objective is to stamp out illegal drug and safeguard in the process "the well being of the citizenry, particularly the youth, from the harmful effects of dangerous drugs." The primary legislative intent is not criminal prosecution, as those found positive for illegal drug use as a result of this random testing are not necessarily treated as criminals.

Thursday, July 23, 2015

Cachapero Realty Office: List of Real Properties for Sale

Real Properties for Sale

Tuesday, July 21, 2015

CRIMINAL PROCEDURE; LAWS & JURISPRUDENCE: Arrest and Searches & Seizures