Reviewer by: OLIVE CACHAPERO
CRIMINAL PROCEDURE
ARREST
Laws and Jurisprudence
ARREST
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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.
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 Court and
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
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Sec. 2, Art. III, of the 1987
Constitution
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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.
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Sec. 3, Rule 126, Revised Rules of Court
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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.
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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
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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.
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PERSONAL EXAMINATION BY A
JUDGE
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Sec.
4, Rule 126, Revised Rules of Court
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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.
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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
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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.
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