ARREST, SEARCH AND SEIZURE – PRE-FINALS

ARREST:
On search and arrest of sec. 2, article 3 of the 1987 constitution provides that:

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.

As it goes sec. 2, article 3 of the 1987 constitution context every person against unreasonable search and
arrest and when you speak of person, the term person refers in the main refers to natural persons, human
beings, or individuals like us. Yet, I’d like to underscore the fact that the protection enshrined under sec.2
article 3 applies not only to Filipinos but also to foreigners, so Filipinos and foreigners alike are entitled to
be secured in their persons, meaning bodies, against unreasonable search or arrest, houses, papers and
effects and in their respective offices. In fact in one case decided by the US Supreme Court a protection
afforded to under sec. 2 article 3 of our 1987 Constitution which was actually copied from the US
constitution was made to apply to a person who was inside a telephone booth, so that is how sacred this
right against unreasonable search and seizure is and indeed it is sacred that under the 2nd paragraph of
sec. 3 article 3 of the 1987 constitution it is provided therein that any evidence obtained in violation of
sec. 2 article 3 shall be inadmissible for any purpose and for any proceedings.

You recall the case of People v. Caballes, the kakawati leaves. It was found out that indeed he was
transporting stolen goods yet it was found out that the search was illegal. Look what happened? Caballes
was acquitted.

You recall the case of People v. CA, regarding the raid of Apartment no. 1 which is adjacent to Abegail’s
store. The search was declared invalid, so accused was acquitted, even if it was found out that the accused
was in possession of explosives.

You look at the case of Malacat, Malacat was found in a possession of a grenade yet considering that the
search was invalid the evidence or grenade that was taken from him was rendered or decreed to be
inadmissible in court.

So the rule is that, any evidence obtained in violation of sec. 2 article 3 among others is inadmissible for
any purpose or in any proceedings, but that is just a general rule.

You recall the case of People v. Bongcarawan, Bongcarawan was searched by the security guards of the
vessel and it yielded a positive result. He argued that the search was invalid. The SC said that the search
was valid because it was with the consent of Bongcarawan, yet the SC in that case went on to rule that
even supposing or even granting arguendo that the search conducted on Bongcarawan was illegal, yet the
evidence obtained from him would still be admissible in court. Why? Because the search, although it may
be regards as illegal was not done with the intervention of the State. Verily, the case of Bongcarawan, our
SC made it clear that the exclusionary rule in respect to evidence illegally obtained or evidence obtained
through illegal search and arrest may only be invoked if the search that is decreed illegal is done with the
active intervention of the State or any of its agents.

Simply put, even if the search is illegal but the search is done without the intervention of the State or that
it is done by a mere private person then the evidence obtained thereby may still be admissible in court.
Again, the rule is that the proscription against unreasonable search and arrest as well as the exclusionary
rule in respect to evidence obtained may only be invoked if the search or the illegal arrest is done with
the active intervention of the State. But actually in the ruling in the case of Bongcarawan is nothing but a
reiteration on the previous rulings in the case of People v. Marti.

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In the case of PP v. Marti, actually Marti sent a package through a private courier and without the
knowledge of Marti the staff of the private courier inspected the package that was sent by Marti and it
was found out that the package contained marijuana. On the basis of such finding, Marti was prosecuted
for illegal possession of prohibited drugs. Marti objected invoking the rule under the Constitution to the
end that any evidence obtained in violation of the right against unreasonable search or arrest should be
inadmissible in evidence. Yet our SC disagreed, again just like in the case of Bongcarawan, our SC declared
in the case of Marti that the exclusionary rule in respect to evidence illegally obtained may only be
successfully invoked if the search or the illegal search is conducted by the State or any of its agents.

In the case of Waterous Drugs Corp v. NLRC, G.R. No. 113271, Oct. 16, 1997, an employee was dismissed
because it was found out that this personnel or employee was receiving kickbacks from the supplier of
the company. But it was found out that this person received kickback because the employer or the
management intercepted a mail matter that was addressed to that employee. There was an envelope, it
was opened without the knowledge of that employee, although it was addressed to him and when it was
opened it was found out that it contained the check representing the kickback of that employee. In the
labour proceedings, the employer introduced evidence the check that it confiscated from the employee
and the employee objected because according to him it was the fruit of the poisonous tree. According to
the employee, such should be inadmissible in court because it was a result of an illegal search, but the SC
again disagreed, because it was found out that the search was without the intervention of the state, such
that in the case of Bongcarawan our SC declared that the exclusionary rule in respect to the evidence
illegally obtained may not be successfully invoked therein.

It can only be invoked, again, if the illegal search or arrest is done with the active intervention of the state
or any of its agents. The reason is that the provisions under the Bill of Rights of art. 3 of the 1987
constitution are directed against the state, because the provisions under article 3 would serve as
limitations in the exercise of the 3 inherent powers of the state. So that is why the SC, again, ruled that
any evidence illegally obtained basically will be admitted in court if such illegal search is perpetrated by
private individuals.

But the ruling in one case is peculiar, I’m referring to Zulueta v. CA, G.R. No. 107303, Feb. 20, 1996. In the
case of Zulueta, Zulueta is a wife of a doctor then his wife suspects that her husband has an illicit
relationship with another woman. So what she did was that she went to the clinic of her husband, then
without the knowledge of the husband the wife ransacked the drawer of the husband. It was forcibly
opened and there upon she discovered that there were letters that were sent by the mistress of the
husband. She filed a case against the husband, using the incriminating evidence as proof of her
concubinage. The husband objected, probably invoking the case of Marti, Waterous Drugs and
Bongcarawan or the provision under sec. 3 Article 3 to the end that any evidence illegally obtained should
be inadmissible in court. The SC said that the evidence obtained by the wife is inadmissible in court,
notwithstanding the fact that the illegal search was perpetrated by a private individual. So the ruling in
the case of Zulueta is diametrically opposed to the rulings in the cases of Bongcarawan, Waterous Drugs,
and Marti.

GENERAL RULE: Warrantless search or arrest is unlawful and whatever evidence recovered will be
inadmissible in any court or proceeding.

EXCEPTION: If the warrantless search or arrest is done by a private individual, it is then valid because sec.
2 Article 3 is only applicable when the warrantless search or arrest is done by the state or any of its agents.

I mentioned earlier that the protection against unreasonable search and arrest is granted to natural
persons. Is that also available or granted to juridical persons, like corporations and partnerships? YES.

You recall the case of David v. Arroyo, G.R. No. 171396, May 6, 2003. You recall that during the celebration
of the People Power the supporters of Erap rallied to Malacañan, such that Gloria declared of State of
National Emergency and pursuant to which the PNP rounded up the premises of the Daily Tribune
and Malaya Newspaper and they conducted a search without a warrant. SC then declared that the
prohibition under unreasonable search and arrest is also applicable or may be in favour of juridical persons
like the Daily Tribune and the Malaya Newspaper.

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The protection of unreasonable search or arrest is available not just to natural persons but also to juridical
persons like partnerships or corporations. Apply Expressio unius clause.

Sec 2 Article 3 of the 1987 constitution protects us against unreasonable search and arrest. Converserly,
that particular provision under the constitution does not protect us from search or arrest that is
considered however as legal. It only protects us against unreasonable search of arrest. As a matter of
general rule, a search and arrest is valid or done legally if the same if the same is covered by a search
warrant or a warrant of arrest as the case may be. You take note however that sec 2 Article 3 prescribes
the requisites for the valid issuance of a search warrant or a warrant of arrest.

As provided for under sec 2 Article 3 that in among others there should be probable cause and such
probable cause must be determined personally by the judge and that such determination of probable
cause must be done after examination under oath or affirmation of the complainant and the witnesses
that may be produced and that there should be particularity in the description of the place to be search
or the person or things to be seized. So in other words, these are four concurring requisites in that absent
of any one of them would whether the issuance of a warrant of arrest or search warrant as the case may
be invalid.

REQUISITES FOR THE ISSUANCE OF A VALID WARRANT OF ARREST OR A SEARCH WARRANT:

1. Probable cause
2. Such probable cause must be personally determined by the judge
3. After examination under oath or affirmation of the complainant and the witnesses produced
4. There should be particularity in the description of the place to be searched or the persons and
things to be seized

A warrant of arrest is a process or a legal document issued by the court of law or a tribunal clothe with
the authority commanding or directing the law enforcement agencies to arrest a designated person. For
such warrant of arrest to be validly issued the same must be done with the concurrence of the four
requisites that we already enumerated.

1. What is probable cause? Is this the same as suspicion? NO. For purposes of the issuance of a search
warrant, the term probable cause refers to such fact or circumstances as to lead a reasonably prudent
man to believe that a crime has been committed and that the person sought to be arrested is the
one responsible for the crime. Probable cause is different from suspicion in that probable cause is
generally based on facts and circumstances, whereas suspicion probably there is a result of a
speculation or guess word so it does not have to be based on facts or circumstances. Probable cause
is more than suspicion.

2. But another requirement is that such probable cause must be personally determined by the judge,
but the question is which judge can issue a warrant of arrest? Well RTC judge no doubt can issue a
warrant of arrest. How about justices of the CA, they do not conduct trial, but can they issue a warrant
of arrest? YES. How about justices of the SC? YES. How about judges of lower courts, like MTC, MTCC,
MCTC? YES. All judges at all court levels have the power to issue a warrant of arrest. How about
administrative tribunals, do they have the power to issue a warrant of arrest? How about
administrative tribunals performing quasi judicial functions? In a case of Morino v. Rovivo (?), SC
ruled that administrative bodies may issue warrants of arrest but the same may only be done to carry
out a final finding of a violation of the law as in a case of enforcing a deportation order or an order
of contempt. That is why if the labor arbiter in the NLRC conducts a hearing and then somebody
disturbs the proceeding then the labor arbiter may cite that person in contempt, and the labour
arbiter may order the arrest of that person even if the labor arbiter of the NLRC is an administrative
body.

Recall what you learned in Consti 1 (Benign ™), isn’t it that the House of Reps, Senate or any committee
thereof has the power to conduct inquiries supposedly in aid of legislation, do they have the power to cite
in contempt the person invited when he does not show up in proceedings? YES. As was ruled in the case
of Arnold v. Nazareno, so no doubt administrative bodies, even the Congress, has the power to issue a
warrant of arrest but only to carry out a final determination of a violation of the law. Example, if there is
then a final order of deportation of a foreigner, the BID commissioner may then issue a warrant of arrest

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for the apprehension of that person. But as a rule, the BID commissioner may only issue a warrant of
arrest for purposes of carrying out and order of deportation and not for the purposes of conducting an
investigation. Again, the rule is that such may only be issued by administrative bodies if only to carry out
a final determination or final finding of a violation of the law.

But in the ruling in the case of Harvey v. Santiago, 164 SCRA 840, is different. Then commissioner Santiago
of BID issued a warrant of arrest if only to apprehend those persons for them to be investigated, so Harvey
et. al questioned the validity of the arrest because according to them citing the case of Morino, the BID
commissioner may only issue a warrant of arrest if there is only an order of deportation. But in case of
Harvey v. Santiago the order of arrest was issued even without the BID having issued yet the order of
deportation, yet in that case our SC upheld the issuance of warrant of arrest because it was established
that there was already a prior surveillance that was conducted. There was already a preliminary finding
that indeed the respondents who were to be arrested were already committing a crime, but the general
rule is that in the case of Morino v. Rovivo.

GENERAL RULE: All judges on any court levels can issue a warrant of arrest

EXCEPTION: Administrative bodies given that there is already a final determination of a violation of the
law

EXCEPTION TO THE EXCEPTION: Administrative bodies that have already a preliminary finding that person
to be arrested had violated the law.

3. But the most ticklish of the requisites for the issuance of a warrant of arrest is the third requirement
that such determination of probable cause by the judge must be done after examination under oath
or affirmation of the complainant or his witnesses. Such is ostensibly clear under sec 2 Article 3. Take
note however of the ruling of Soliven v. Makasiar, is that judge mandated to conduct a personal
examination of the complainant before he can issue a warrant of arrest? NO, not withstanding the
clear import of sec 2 Article 3. According to the SC to require a judge to conduct a personal
examination before he would issue a warrant of arrest it would then eat up the precious time of the
court. So the rule as it is now and pursuant to the rule on Soliven v. Makasiar a judge issuing a warrant
of arrest is not anymore required to conduct a personal examination of the complainant and its
witnesses. All that the judge must do is to evaluate the records of the case, evaluate the affidavit
complaint the supporting evidence, the affidavit of witnesses and counter affidavit is any, as well as
a the resolution of the investigating prosecutor.

Take not however, that the judge is not duty bound to hook line and sinker the resolution of the fiscal. In
order words, the judge must come up with his own personal determination in the existence of absence of
probable cause. He should not rely on the findings or resolutions of the fiscal. The reason is plainly evident
because the resolution of the fiscal is merely in respect to the existence of absence of probable cause for
purposes of indictment, for purposes of filing an information in court. Whereas, the probable cause to be
determined by the judge is for purposes of issuing a warrant of arrest. But then the rule is that the judge,
as what was ruled in the case of Makasiar, is not required to conduct a personal examination of the
complainant and his witnesses, all he has to do is to evaluate the records of the case.

This is anchored however on sec 5 par a Rule 112, ROC wherein it is provided in essence that within 10
days after the filing of the information in court, the judge has to personally evaluate the records of the
case and the resolution of the fiscal. The judge may dismiss the case is he finds that there is no evidence
showing probable cause. Conversely, if records would show that the evidence is showing probable cause
that judge may issue a warrant of arrest or may issue a commitment order if the accused is already
arrested without a warrant. But in case of doubt, the judge will direct the prosecution; direct the
complainant to provide for additional evidence within five (5) days from notice and such incident must
be resolved within a period of thirty (30) days from the submission of such required additional evidence.
In other words, under sec 5 (a) Rule 112, ROC, the judge indeed is not mandated to conduct a personal
examination of the complainant and his witnesses before he can issue a warrant of arrest. Again, all that
the judge must do is just to evaluate the records of the case, including the resolution of the fiscal.

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Q: Is it the same with search warrants? NO, IT IS DIFFERENT. As provided in the case of Makasiar is that it
would in apt the precious time of the court.

ATTY. GALEON’S OBITER DICTUM: The reason behind the relaxation of the rule in respect to the issuance
of the warrant of arrest is that after all before the case is filed in court it already underwent a preliminary
investigation conducted by the fiscal wherein he already determined the existence of probable cause.

Unlike the case of ___, for purposes of search warrant the application for the issuance of a search warrant
is filed directly with the judge. It is filed directly to the court. But in respect to a warrant of arrest, normally
before the case is filed in court the case must be filed in the office of the prosecutor. Such that when the
fiscal finds probable cause that is the time that the information is filed in court. In other words, in respect
to the issuance of a warrant of arrest there is already, more or less a preliminary finding of probable cause
and such circumstance is not obtaining in respect to the issuance of a warrant of arrest. Again, the
application of a search warrant is filed not in the office of the prosecutor, but directly with the court. For
me that is the most compelling reason why somehow there is a relaxation on the rule in respect to the
issuance of a warrant of arrest because of this preliminary determination of existence of probable cause.

I mentioned to you that in sec 5 (a) Rule 112, ROC that the the judge is given ten (10) days within which
to determine the existence of absence of probable cause for purposes of the issuance of a warrant of
arrest. Based on experience, more or less, as soon as the information is filed in court it will only take 2 or
3 days or within 1 week there will be a warrant of arrest. On the lapse of the ten (10) days, judge can still
issue a warrant of arrest, although they are mandated or as a rule that it has to be done within a period
of 10 days.

(TIPS – effective, but quite unethical)

If you are the lawyer of the accused, what will you do? Where more or less the issuance of a warrant of
arrest will be expected once there is an information in court? You file a motion for a judicial determination
of probable cause. Use the same provision of the law or the Rule 112 sec 5 (a), because once you file that
motion the judge will be compelled to examine or evaluate the records of the case. The judge will be
mandated to study the case meticulously, such that in case of doubt the judge will issue an order directing
the complainant or the fiscal to present additional evidence and such incident will be decided within a
period of 30 days. So by doing that therefore, you forestall the issuance of the warrant of arrest, there
will be then a hearing. Giving of course for one to compel the judge to eruditely examine the records of
the case for him to determine the existence or absence of probable cause and the second reason is to give
time for your client to probably abscond. File the motion before the issuance of the warrant of arrest.

GENERAL RULE: Judges are not duty bound to personally examine the complainant and his witness. He
only needs to examine the records of the case and the resolution of the fiscal, in which he is not also
bound to follow.

DIFFERENCE OF JUDGE AND FISCAL’S DETERMINATIONS:

FISCAL is merely in respect to the existence of absence of probable cause for purposes of indictment, for
purposes of filing an information in court.
JUDGE determines the probable cause for purposes of issuing a warrant of arrest.

JUDGE’S OPTIONS:
 Issue a warrant upon finding existence of probable cause.
 In case of doubt, direct the prosecution and complainant to submit additional evidence, in
accordance to sec. 5 (2), Rule 112, ROC

4. The fourth requirement in respect the issuance of a warrant of arrest is that there should be
particularity in the description of the person to be seized and the person to be arrested, so as a rule
if the full name of the person is known that should be stated in the warrant and if his address is
known it should be stated in the warrant. But how about in cases where the true name of the accused
is not known to the authority, may a warrant of arrest be issued to a person? i.e. John/Jane Doe. And
that John/Jane Doe warrant is valid for as long as that is accompanied by a description personae of
that person to be arrested, meaning to say description of that person to be arrested only to guide
the law enforcement agencies on whom to arrest pursuant to that particular warrant. If a John/Jane

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 Doe warrant is issued without an accompanying prescription personae of the person to be arrested
then such warrant of arrest therefore is invalid, that is only valid, again, if that is accompanied by a
description personae sough to be arrested.

Recall the case of PP v. Tui Won Chua, the warrant of arrest was against Timothy Chua but the person
arrested is of the name Tui Won Chua, did the court invalidate the warrant? NO, the warrant was
accompanied by a description personae, the address was stated in the warrant itself. More so that in that
case, the arresting officers had personal knowledge as of the identity of that person to be arrested in the
search because they were the once who conducted the prior surveillance. So the case of Tui Won Chua
only proves that indeed an error or mistake in the description of a person may be cured by a description
personae or by the personal knowledge enforcing the warrant.

But the case of Prescilla del Norte is different because the officers enforcing the warrant were not the
ones who conducted the prior surveillance. In fact they did not know who Ising Diwa is. If the person is
known as Ising Diwa or probably Prescilla del Norte was pointed to by the barangay official who however
did not testify in the course of the trial, so that was the pitfall in the case of Prescilla del Norte. According
to the law, any mistake or imperfection in describing the person sought to be arrested will be cured by
the description personae or even the personal knowledge of the person enforcing the warrant.

GENERAL RULE: imperfection or mistake in the description of the person sought to be arrested will
invalidate an arrest to a person

EXCEPTION: If the arresting officer enforcing the warrant has personal knowledge of the arrest or by a
description personae

Assume that these requisites are present in a particular case such that a judge issues a warrant of arrest.
How should a warrant of arrest be enforced? Who will enforce it? Once the warrant of arrest is issued
copies of which will be furnished to the law enforcement agencies, particularly the PNP. Take note that
under sec 4, Rule 113, ROC, the law enforcement agencies is given 10 days within which to act on that
search warrant and the 10 day period should be reckoned from the date wherein the law enforcement
agency concerned received a copy of such warrant of arrest. After that period that law enforcement
agency concerned is mandated to submit a report to the court on the action that it takes on that particular
warrant of arrest. After 10 days, what happens to the warrant if the same is not served? Does that cease
to be valid? NO, it will remain valid whole throughout until such case is dismissed. The 10 day period is
merely for the law enforcement agency to act on the warrant of arrest and for them to submit to the court
the report as to the actions that they will take on that particular warrant of arrest. Take not further, that
under sec. 6, Rule 113, ROC, a warrant of arrest as distinguished from a search warrant may be served at
anytime of the day or night.

Normally, when we talk about a search warrant it is usually served only on day time except if the judge
states that it may be enforced during night time. But in so far as a warrant of arrest it can be served at
anytime of the day or night, such that even if during night time the accused is still doing his marital
obligation the police officer can still serve the warrant. Again, unlike a search warrant, a warrant of arrest
can be served anytime of the day or night. Take note that under sec. 7, Rule 113, ROC, the officer arresting
a particular person against whom a warrant is already issued by the court may not have with him a copy
of a warrant while he is affecting an arrest. What is important is that the officer knows already that there
is a pending warrant against that person.

This happens in the case of Villaruiz. Villaruiz is a Cebuana and her boyfriend was British national. They
were accused of abducting Ella Joy and for killing the child. Villaruiz was arrested by police officer Labra
there in Manila which at that time Labra did not have with him a copy of the warrant of arrest. It was
questioned by the defense, yet it was ruled that arrest was valid after all there is already a pending warrant
for the arrest of Villaruiz. Take note that under sec. 11, Rule 113, ROC, the police officer enforcing the
warrant is justified to employ reasonable force in effecting the arrest. In that the police officer enforcing
the warrant of arrest may even break open an enclosed premise or any enclosure in only to get out there
from.

Situation:

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On a process of executing a warrant of arrest, the informant decides not to proceed with the case, will
the officer be held liable in case the one supposed to be arrested files a case?

Answer:
No. The police officer will not be held liable. Unless there is an order coming from the court recalling that
particular warrant and unless the same is communicated to the police officer concerned, the police officer
incurs no liability, the same as to search warrants.

Take in note, in course of our discussion, a search warrant has a life span. A search warrant is good for 10
days reckoned from the issuance thereof, but a warrant of arrest is not necessarily invalid after the lapse
of 10 days.

As a rule, for an arrest to be valid is has to be covered by a warrant of arrest, but that is merely a general
rule. In our jurisdiction there are exceptional circumstances under which a warrantless arrest is considered
valid. The exceptions are provided for under sec. 5 Rule 113, ROC, one such exceptional circumstance
under which a warrantless arrest is valid is (1) when the person arrested is actually committing an offense,
is about to commit an offense, or has committed an offense in the presence of the police officer or even
a private citizen. Conversely, under sec. 5 Rule 113, ROC, even a civilian can effect an arrest for as long
the person arrested is committing an offense in his presence, or is about to commit an offense or has
committed an offense. Such that is the arrest is affected by a private citizen then that arrest is termed as
a citizen’s arrest. This is an arrest known as in flagrante delicto where the person arrested is caught red
handed in the act of committing a crime; either he does the act in its consummated stage, in its executory
stage or in its attempted stage.

In this instance, in flagrante delicto arrest it is important or it is imperative that the person making the
arrest has actual or personal knowledge of the commission of the crime. It is either they saw it or he
perceives the commission of the offense through his other senses.

Perception of a crime through your sense of smell, is that allowed? YES. A case in point is the case of PP
v. Claudio, wherein that case, Claudio boarded a bus. She was bringing with her a buri bag and inside the
buri bag was marijuana. Unfortunately for Claudio, she put her buri bag on her back and right in front of
Patrolman Opinion, and Patrolman Opinion is a NARCOM agent. Opinion was very familiar with the smell
of marijuana then he reached inside the buri bag and it was marijuana. On the base of that, he arrested
Claudio. During the trial, Claudio objected the admissibility of the evidence obtained from her contending
that it was the result of an illegal search, because according to her Opinion did not, at the time of the
arrest, he did not know that the bag contained marijuana. SC disagreed. According to SC, perception of
the offense need not be through your eyes only. It may be perceived through your other senses, hearing,
smell, sight, taste or touch.

Under the so called arrest in flagrante delicto, then you can justify the arrest of a person who is said to be
committing what is known to be a continuing offense. Recall the case of Umil v. Ramos, involving the
arrest of Dural. Dural was arrested three (3) days after the commission of the offense for killing 2
patrolmen. He protested to his arrest, contending that he was arrested three days after the commission
of the offense. SC disagreed, because in that case Dural was said to be committing a continuing offense.
What offenses are characterized as continuing offenses? Subversion, rebellion, insurrection or any
conspiracy or proposal to commit of these crimes, these are considered to be continuing offenses. Such
that when a person is committing a continuing offense everything then he can be arrested at anytime
without need of any warrant of arrest.

The same can be said of a person who is committing a crime of kidnapping and illegal detention, especially
if victim has not yet been recovered. If the detention is continuing and the person or the culprit may be
arrested even without a warrant of arrest. Recall the case of the Chiong sisters, a guy who turned out to
be a state witness was arrested without a warrant. He questioned the validity of his arrest but SC ruled
that he was committing a continuing offense. Until now, the body of the victims have not yet been
recovered.

May there be a valid warrantless arrest pursuant by mere reliable information? In the case of PP v. Nuevas,
Nuevas was validly arrested because he voluntarily surrendered the bag that he was carrying which

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contained marijuana. Afterwards, Nuevas pointed to his colleagues, Din and Inocencio, and on the basis
of the tip off or the information relayed to the police authorities by Nuevas, Din and Inocencio were
arrested. SC then said that the arrest of Din and Inocencio was invalid because in our jurisdiction a person
cannot be arrested by a mere suspicion. Yet take note in the cases of Montilla, Malmstedt, Maspi and
Tangliben, the accused also was arrested pursuant to an information, yet this time around or in those
cases the information was given by a civilian informant of the authorities. In the case of Nuevas, it was
Nuevas himself, an accused, who pointed to another accused as malefactors, but in the cases of Montilla,
Malmstedt, Maspi and Tangliben the information was relayed not just by any other person but by an
informant of the police authorities.

In those cases, SC invariably held that the warrantless arrest of the accused were valid because there was
a tip off given by an informant and among other things the accused also at the time of their arrest in those
cases were acting suspiciously and far more important there was, in those cases, urgency in the situation
in that the accused therein were either boarding a vehicle, were about to board a vehicle, or had just
disembarked from a vehicle. In that context therefore, we can differentiate the cases of Montilla,
Malmstedt, Maspil and Tangliben from the case of Nuevas.

Yet you take note also in the cases of PP v. Rodriguez and PP v. Mengote because in those cases there was
also a tip off or an information conveyed to the police authorities. Yet in the cases of Rodriguez and
Mengote the tip off was but conveyed through a telephone call, meaning the informant was not even
around at the time of the arrest of the accused.

The consideration in the cases of Aminnudin and Molina, the informants were at the time of the arrest
present with the police authorities. In those cases, SC held that those arrests were invalid. In the cases of
Montilla, Malmstedt, Maspil and Tangliben the informants were around yet the arrest were valid, but in
the case of Aminnudin and Molina the informants were not around yet the arrest were declared invalid.
In that case of Aminnudin, the police officers had at least 2 days within which to secure a warrant, yet
they did not. In the case of Molina, the officers had 2 months within which to secure a warrant, yet for
the reason one way or another, they did not bother to secure a warrant. In that respect, we need to
distinguish the case of Aminnudin vis a vis the cases of Maspil and Montilla because one in the cases of
Maspil and Montilla, the police authorities had more or less sufficient period of time within which to
secure a warrant wherein which they did not thus it was declared as valid.

In the case of Aminnudin, the identity of the accused, the drug courier was known already before the
arrest. Also the vessel that will bring him to Iloilo was already known as well as the time of arrival. But in
the case of Maspil where there had 3 days to secure a warrant but they did not because the identity of
the drug courier was not known, the mode of transportation that would bring him to a particular place
was not also known, much less the date of arrival. Just like in the case of Montilla, SC said that while it is
true that there is sufficient period of time in which the police officers, in the case of Maspil and Montilla,
would have secured a warrant yet it is highly impossible for them to secure a warrant because they did
not know where the transaction would take place, they do not even know to whom the warrant should
be addressed, much the place where the commodity would be dropped off. This is how to distinguish the
cases of Aminnudina and Molina on one hand vis a vis the cases of Montilla and Maspil on the other hand,
because in those cases there was sufficient period of time for a warrant but in one case the SC declared
the arrest as invalid and in the other book of cases the SC declared also the warrantless arrest as valid.

2. Other exception where they may be a valid warrantless arrest and this is known as the hot pursuit
arrest. Here the arrest made by a law enforcer or a civilian is valid even without a warrant if an offense
has just been committed and that the person making the arrest has probable cause to believe, based
on personal knowledge that he acquired of other facts and circumstances that the person to be
arrested is the one who committed the offense.

Now in flagrante delicto arrest, I mentioned to you earlier that the person making the arrest has actual
personal knowledge of the commission of the offense, meaning to say that the person making the arrest
in in flagrante delicto arrest has perceived the commission of the offense with his eyes or through his
other senses. But in hot pursuit arrest, here it is not necessary that the person making the arrest has
actually witnessed the commission of the offense, he may have not seen the offense, yet he acquired

8
personal knowledge of the facts and other circumstances of the offense which would imbed probable
cause on his part to believe that the person he is going to arrest is the offender.

You recall the case of Padilla, 2 officers positioned themselves in the Abacan bridge they did not actually
see the side swiping incident, they did not actually see Padilla committing the crime involving the balut
vendor. SC then held that they could well arrest Padilla for the side swiping incident because they may
have not actually witnessed the side swiping incident but they have personally acquired knowledge of
facts or other circumstances which made them believe that Padilla was the offender. There was a report
through the radio as relayed through the viper Manarang and they observed that the hood of the car of
Padilla was already dented, the plate number was dangling and matched the plate number that was
announced through the radio. All these circumstances according to SC would impel probable cause that
Padilla was the one referred to in the report.

In the case of PP v. Herente(?) 219 SCRA 756, where in that case a report was relayed to the and acting
on that report the police officers went to the crime scene, they recovered the instrument of the crime,
they interviewed the witnesses pointo to Herente as the culprit, they went to the hospital and saw the
body of the victim and and 3 hours there after Herente was arrested. Herente said that the arrest was
illegal because it was not covered by a warrant. SC disagreed, nothing that the police officers may have
not witnessed the commission of the crime yet they acquired personal knowledge of other facts and
circumstances which would make up a probable cause on their part to believe that Herente was the
offender.

Again, in a hot pursuit arrest, the police officer or the civilian who may make the arrest may not have
actually witnessed the commission of the crime yet he acquired other personal knowledge of facts or
other circumstances which would make him believe that the person is the one who is the offender. You
take not however that in a hot pursuit arrest there should be a large measure of urgency between the
commission of the crime and the actual arrest of the offender. In other words, the warrantless arrest of
the person in a warrantless arrest must not be too far removed from the commission of the offense.

Recall the case of del Rosario, he was arrested a day after the commission of the offense. SC then said
that the arrest was illegal because it was not covered by a warrant. Take not that there was once a cut of
1 day from the time of the commission of the offense and the arrest of del Rosario, yet SC declared that
the arrest was illegal. According to SC, police officers should have secured a warrant for the arrest of del
Rosario. In that regard, the ruling in the case of Umil v. Ramos involving the arrest of Nazareno is therefore
modified. Recall the case of Nazareno, he was arrested for murder for 10 days after the commission of
the offense yet the SC declared the arrest as valid. The ruling in the case of Umil v. Ramos is no longer
controlling, but there is a peculiar circumstance in the case of Nazareno, because in the case of Nazareno
what was filed therein was a petition for habeas corpus for the release of Nazareno, but before the SC
could decide on the case for habeas corpus the information was already filed in court and the court
wherein the case was filed already issued a commitment order, such made the petition for habeas corpus
moot and academic. Again, in hot pursuit arrest the rule as it is now that the warrantless arrest of a person
in a hot pursuit arrest must not be too far removed from the commission of the offense.

3. The other exceptional circumstance where it is a valid warrantless arrest is when the person arrested
has escaped from a penal institution where he is serving a final judgment or where he is temporarily
detained pending the decision of his case or where he escaped when he is transferred from one station
to another. The reason is plainly evident the person is already a fugitive from justice, so you no longer
need a warrant of arrest. He can be arrested at the time even without a warrant of arrest.

4. Another exceptional circumstance where your warrantless arrest may be declared a valid, although
this is not found in the rules, is when there is a waiver of the right of the person arrested, wherein he
waived his right to the legality of the warrantless arrest. If you are a victim of a warrantless arrest, do
not participate in the arraignment, rather before arraignment you question the validity of the arrest
by filing a motion to quash the information and your motion to quash the information must be
grounded on sec 3, par c, Rule 117, ROC, you question the jurisdiction of the court over the person of
the accused. It is only through arrest in criminal cases that the trial court would acquire jurisdiction
over the person over the accused. Failing to file a motion to quash the information would render your
right as having been waived. You file the motion to quash information before arraignment.

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How about this practice of the accused in putting up bail for his temporary liberty, would it not amount
as a waiver of right to question the validity of his arrest? NO. Under sec 26, Rule 124, ROC, putting up a
bail is no longer considered as a waiver of your right to question the validity of the arrest.

EXCEPTION WHEREIN WARRANTLESS ARREST IS VALID:

1. When the person arrested is actually committing, is about to commit, or has committed an
offense in the presence of the police officer or even a private citizen
2. Hot pursuit arrest
3. When the person arrested has escaped from a penal institution where he is serving a final
judgment or where he is temporarily detained pending the decision of his case or where he
escaped when he is transferred from one station to another
4. When there is a waiver of the right of the person arrested

Take note that once a person is arrested you could expect that the person will be searched by the arresting
officer or by a civilian, that once there is an arrest, there would be a consequential search. Such that if the
arrest is illegal it would normally follow that the consequential search or the search that is predicated on
the preceding arrest would also be declared as illegal. So where the arrest or search is illegal, what would
happen to the evidence that is illegally confiscated? May that be admitted in evidence? The rule is that
under par 2, sec 3, article 3 is that any evidence obtained in violation of sec 2, art 3 in the 1987 constitution
is inadmissible in any purpose and in any proceedings. The rule is that any evidence illegally obtained is
inadmissible in court. Such rule applies only if the accused through his lawyer interposed a timely
objection to the admission of evidence otherwise illegally obtained, that has to be invoked. You should
object once that evidence is admitted during trial otherwise, failure to object would render that evidence
otherwise illegally obtained admissible in court, once the prosecution formally offers the evidence to the
court that is the time that you interpose your objection.

While par 2, sec 3, article 3 ostensibly provides that any evidence obtained in violation of sec 2, article 3
is admissible and for any purpose and for any proceedings yet there is another instance where that may
be admitted in evidence. When that evidence although illegally obtained is being offered not against the
person from whom the same is taken but against the person making such illegal search or arrest.

Example:
I am illegally searched by a police officer. I offered my objection without a warrant, so no doubt that such
is illegal. During trial, shabu for example, when the shabu is offered against me, I timely interposed by
objection and the court that that should be excluded. After acquittal, suppose that I filed a counter suit
against the officer who made such illegal search or arrest. I sued him for a criminal case on illegal search.
Question, can I utilize that shabu as my evidence against the police officer? YES, because this time around
that evidence is not offered against me but against such person who made the illegal search or arrest.

Under our jurisdiction, there are actually 3 instances under which an evidence, otherwise illegally
obtained or confiscated may be admitted in court. First, failure to object to the admissibility of the
evidence. Second, if that is rather used not against the person from whom the same was taken, but from
the person or against the person who perpetrated such illegal search or arrest. Third instance is when the
search although illegal is conducted without the intervention of the state or any of its agents. Just like in
the case of Bongcarawan, so that is the third instance when an evidence otherwise illegally obtained may
be admitted in court, when the search otherwise illegal is conducted without the active participation or
intervention of the state or of its agents. Take note of these 3 instances where an evidence illegally
obtained may still be admitted in court.

If there is an illegal arrest, other than objecting to the evidence otherwise illegally obtained, what
remedies do you have against the person making such arrest or search? If the person making an illegal
arrest is a public officer then you can file a counter suit for arbitrary detention and that is a penalized
crime under article 194, RPC and if the person making the illegal arrest is a private citizen then you can
sue him for kidnapping and illegal detention defined under penalized crime under article 267, RPC. These
among other things are your remedies. It is better to file the counter suit after you are acquitted because
once you file it while it is still pending in court that can be abated. Your other remedy is if you are detained

10
illegally, it is to file a petition for habeas corpus under rule 102, ROC, or you may want to file a writ of
amparo.

Take note however that petitions for habeas corpus and amparo, although these are effective remedies,
would be rendered moot and academic once an information of the person illegally detained is already
filed in court and once the court has already issued a commitment order. When this happens, you may
now shift gears by filing another motion, a motion to quash an information the one that is filed against
you based on sec 3, par c, Rule 117, ROC, you question the jurisdiction of the court. Although by
experience, this motion is usually not granted yet this will be treated as a continuing objection in the
illegality of the arrest. In other words, by filing this motion your will not be deemed to have waived already
your right to question the legality of the arrest. You are questioning the jurisdiction over the accused that
is highly waivable, that is again if there is failure in the legality of the arrest.

So you take note of the remedies available to a person who is illegally arrested, again a criminal case for
arbitrary detention, kidnapping, depending on who initiated the arrest, then habeas corpus, writ of
amparo and motion to quash the information pursuant to sec. 3 (c), Rule 117, ROC, unlawful arrest.
Basically, you question that the arrest is illegal. If there are things taken from you, you can sue for robbery,
if there is employment of force, threat or intimidation.

SEARCH:

GENERAL RULE: For a search to be valid it needs a search warrant

Search warrant is a court process directing or allowing the law enforcement agencies to search a particular
place and confiscate or seize the items enumerated in the search warrant itself. For a search warrant to
be valid it has be to issued upon compliance of the four (4) requisites:

(1) There should be probable cause

(2) Such probable cause must be must be determined by the judge or by a judge
(3) Such probable cause must be determined after examination under oath of the complainant and
the witnesses
(4) There should be particularity in the description of the place to be searched and the object or
things to be seized

1. What is probable cause in the context of the issuance of a search warrant? We know already that this
is different from suspicion, but what is probable cause in the connection with the issuance of a search
warrant? Probable cause in a context of a search warrant refers to such facts and circumstances as
would lead a prudent man to believe that an offense has been committed and the objects sought in
connection therewith are in the place described in the search warrant. Take note that that element
is important such that a search warrant that is issued without probable cause is invalid, even if a
judge issues a search warrant but there is not probable cause the search warrant itself is in valid. It
does not matter if there is a warrant issued by the judge because if there is no probable cause for
that the search warrant therefore is invalid.

What would happen if a search warrant is issued authorizing the confiscation of not just one but several
items and there is probable cause in respect to some items but there is none in respect to others? Should
it be voided in its entirety? NO. In fact, that is the ruling in the case of PP v. Salanguit, because in such
case the search warrant is issued for shabu and for drug paraphernalia, yet there is no probable cause in
so far as search for drug paraphernalia is concerned. SC said that a search warrant is severable, meaning
to say that the entire warrant is not voided just because some provisions therein are invalid or that some
items therein are ordered to be confiscated without probable cause. Bottom line, we just have to
disregard the invalid portion of the search warrant. The invalidity of some portions therein will not
invalidate in the whole search warrant by itself. Corollary to the requirement on probable cause is the
provision under sec 4, Rule 126, ROC which mandates that a search warrant must only be issued for one
specific offense. It is clear the under sec 4, Rule 126, ROC that a search warrant should only be issued for
one specific offense, such that is a search warrant is issued for two or more offenses then the search
warrant is invalid. It is considered to be a scatter shot warrant.

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A case in point is the case of Stonehill v. Diokno, in that case our SC declared as invalid the search warrant
that was issued for different offenses like violation of Central Bank circular, violation of tariff and customs
code, violation of the internal revenue code and violation of the RPC. Thus, leading the SC to declare such
search warrant us invalid. It would not matter if the offenses therein are true and subject to probable
cause, because the requirement is clear that such should only be issued for one specific offense. The entire
warrant is then voided, because the requirement under sec 4, Rule 126, ROC is violated.

A similar conclusion was reached in the case of Asian Surety Insurance Company Inc. v. Herrera, where
again the SC declared invalid the search warrant issued for estafa, falsification, tax evation, and insurance
fraud. Again it was issued in violation of the requirement that the search warrant must only be issued for
one specific offense.

Yet we have to take not of the case of Salanguit, though there was probable cause for shabu, there was
none in the case for the drug paraphernalia, yet the SC said that well we just have to disregard the
authority in regards the confiscation of drug paraphernalia because of course there was no probable cause
for that in that the SC did not invalidate the entire warrant. But the lawyer of Salanguit was very smart,
he argued in the alternative that even assuming that the entire warrant is not voided in so far as the drug
paraphernalia is concerned yet the search warrant was issued in violation of sec 4, Rule 126, ROC to the
end that a search warrant must only be issued to one specific offense. His argument was that there is such
crime of illegal possession of shabu which is a crime distinct and separate from illegal possession of drug
paraphernalia.

To bolster his argument he cited that illegal possession of shabu is defined as a crime under a separate
provision under RA 6425, whereas illegal possession of drug paraphernalia is like was defined as a crime
under a separate provision under RA 6425. SC disagreed. According to the SC, while it is true that the
crime of illegal possession of shabu is defined as a crime under a separate provision of RA 6425 in like
manner that illegal possession of drug paraphernalia under a separate section thereof, the fact remains
that these crimes are closely related. In fact they belong to the same species of offense such that they are
penalized under the same law and that was RA 6425. That is rather peculiar, that applies only to situation
where separate crimes are defined as such as defined under one special penal law. Such that if there is a
search warrant authorizing the confiscation of unlicensed firearm and that also authorizes the confiscation
of ammunitions then the search warrant is perfectly valid, for they are penalized under the same special
law. But when the crime is issued for murder and at the same time it also covers homicide, then this is
violative of sec 4, Rule 126, ROC.

2. The second requirement in the issuance of a search warrant is that the search warrant must be issued
by a judge. In our discussion before on arrest we already knew that a warrant of arrest may be by
admin agencies, such as where there is already a final finding of a violation of the law. Verily, the BID
or the commission of immigration and deportation may issue a warrant of arrest for the
implementation of a deportation order or when there is an order of contempt, a warrant of arrest
may be issue to the person cited in contempt of an admin body. The question is, does this rule hold
true in so far as the issuance of a search warrant? In other words, may a search warrant be issued by
an administrative agency? NO.

Do you remember the case of Salazar v. Achakoso(?) where the secretary of labour issued a search
warrant against the person who is suspected to be carrying out an illegal recruitment? According to the
SC, that sec 27 of the Labour Code is unconstitutional, because the rule as it is now is that only a judge of
a court of law has the power to issue a search warrant. In other words, while a warrant of arrest may be
issued by admin bodies if only to carry out a final finding of a violation of the law. A search warrant should
only be issued by a judge of a court of law. So in that context therefore, we need to distinguish between
a search warrant and a warrant of arrest.

Where would you file an application for a search warrant? Because when we speak of arrest, of course
before the information is filed in court, the complaint affidavit must be fist be filed in the office of the
prosecutor. How about in the case of a search warrant? IT SHOULD BE FILED DIRECTLY TO THE COURT.
APPLY TO ANY COURT AS LONG AS IT BELONGS TO THE HEIRARCHY OF COURTS. You take note however
in respect to the filing of application for the issuance of a search warrant we are to be governed by the
provision under sec 2, Rule 126, ROC, there it is provided by way of general rule, that an application for a

12
search warrant must be filed in any court within whose territorial jurisdiction the crime is committed.
Take note that MTC courts or RTC of Cebu City may only take cognizance of cases or criminal cases within
their respective territorial jurisdiction. In like manner that Lapu-Lapu courts may only take cognizance of
cases within their territorial jurisdiction. In other words, the Lapu-Lapu courts cannot take cognizance of
criminal cases which happened in Cebu City, because you take note that in criminal cases venue is
jurisdictional, unlike in civil cases. Such that as a rule, when a crime happens in Cebu City the application
of search warrant in connection therewith should only be filed within the Cebu City courts and vice versa.

However, the same sec 2, Rule 126, ROC provides by way of exception that for compelling reasons the
application for a search warrant may be filed in any court within the judicial region where the offense is
committed or where the search warrant is to be enforced. Take note that Philippines is divided into
different judicial regions not necessarily on the basis of geographical location. Now by way of exception
and when there is compelling reason the application for a search warrant may be filed in any court within
the territorial region or judicial region where the offense is committed.

As a rule an application for a search warrant that is committed in Cebu City must be filed only in Cebu city
courts but by way of exception the same may be filed in Lapu-Lapu city courts or in the court of Bogo city
because this courts in Bogo and Lapu-Lapu all belong to the 7th judicial region, but that can only be done
for compelling reasons. Say for example the subject matter of the raid is drug manufacturing, you these
people have their eyes and ears on the court, and they have their moles, such that to avoid a tip off then
any such application for search warrant may be filed in a far flung court if only to avoid leakage in
information. So for compelling reasons the application for search warrant may be filed in any court within
the judicial region where the offense is committed. Take note however that when a case is filed in court,
and the search warrant is to be issued in connection therewith then an application for such search warrant
must only be filed in the court where the case is pending. This is in observance of the rule on primacy of
jurisdiction, after all a particular court has already taken cognizance of a particular case. Take note of sec
2, Rule 126, ROC.

I would like to invite your attention that there is a circular issued by the SC that is Circular No. 03-8-02,
February 15, 2004, which authorizes the executive judges of RTC in Manila and Quezon city to issue search
warrants upon applications to the PNP, NBI, or ACTAF(?) the same to be enforced in any place in the
Philippines, even if the same is to be enforced outside their respective territorial jurisdiction. But this is
allowed only in the following cases; heinous crimes, illegal gambling, illegal possession of firearms and
ammunitions, violation of the comprehensive dangerous drugs act, violation of the intellectual property
code, violation of anti-money laundering law, and violation of tariff and customs code, but only the
executive judges or in their absence the vice-executive judges in Manila and Quezon City are empowered
to issue search warrants which may be enforced even outside their territorial jurisdiction.

3. The third requisite attended to the issuance of a search warrant is that the probable cause must be
determined by the judge after examination under oath of the complainant and the witnesses he may
produce. This is a requirement under sec 2, Article 3 of the Constitution, and this requirement is
further buttress by sec 5, Rule 126, ROC, which provides and mandates that indeed judges should
examine the applicant and the witnesses in connection to the issuance of the search warrant.

In our discussion on arrest and citing the case of Soliven v. Makasiar, judge in the issuance of a warrant
of arrest is not anymore mandated to conduct a personal examination of the complainant. But this rule
is different in the issuance of a search warrant, because under the rule particularly sec 5, Rule 126, ROC,
the judge is mandated to conduct a personal examination of the applicant and his witnesses. In fact under
the rules, the judge must ask searching questions and that he should ask proving questions, he should
not ask questions answerable by a yes or no. He should more or less cross examine the applicant and his
witnesses before issuing the search warrant. Under the rules, such examination should be conducted
under oath, such that if the applicant is not telling the truth then he can be prosecuted for perjury and
such interrogation must be reduced in writing. While the warrant of arrest may be issued without the
judge having to conduct and examination of the complainant, yet a search warrant can never be issued
without the judge conducting personal examination of the applicant and his witnesses.

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The rule is very strict, such that in one case, the case of Alvarez v. CFI, our SC succinctly ruled that an
applicant for the issuance of a search warrant should only testify on matters which are within his personal
knowledge. In other words, hearsay information will not suffice.

In the case of Burgos v. Chief of Staff, the SC declared as invalid the search warrant that was issued on
the basis of what was termed as the evidence gathered by the military unit. The applicant in that case
was the military commander, but he was not the one who gathered the evidence. It was rather his
subordinate who supposedly gathered the evidence, yet it was him who applied for the search warrant.
So no doubt, his testimony in respect to the existence of the evidence is considered hearsay.

4. The last requirement in the issuance of the search warrant is that there should be particularity in the
description of the place to be searched. I would like to invite your attention to the case of PP v. CA,
you recall the raid of Apartment no. 1 where the address stated in the search warrant is Abegail store.
SC said that it was invalid, because there was no meeting of the minds between the applicant and
the issuing judge. What the applicants had in mind was Apartment no. 1 but the address stated in
the search warrant was rather Abegail store and the judge issued the search warrant authorizing the
search on Abegail store. There was no particularity in the description of the place in that case, such
that the search warrant was declared invalid by the SC. But in actual practice and only to avoid this
kind of problem, normally the authorities in the application of a search warrant present to the judge
the vicinity map or sketch map present the location of the premises sought to be searched.

In the case between PP v. CA, it was argued by the prosecution that there was a sketch that was
submitted, yet it was found out that that sketch was rather submitted belatedly. In fact, that only came
out when the prosecution already filed a motion for reconsideration on the order of the judge quashing
the search warrant. It was rather an attempt to cover up the mistake in the application of the search
warrant.

4.a. Another requirement which is subsumed in the 4th requisite is that in the issuance of the search
warrant there should be particularity in the description of the person subject matter thereof. You recall
the case of Prescilla del Norte, SC said that her arrest was invalid because the person referred to in the
search warrant was a certain Ising Diwa and the person arrested was Priscilla del Norte.

You take note however of the case of Tui Won Chua, because in that case the search warrant was issued
against a certain Timothy Tui, but the person arrested is Tui Won Chua. Unlike in the case of del Norte, SC
affirmed the arrest of Tui Won Chua as valid, because any such mistake subject matter in the search
warrant was however cured by the personal knowledge on the part of the police officers who enforced
the search warrant for they were the same officers who conducted the same surveillance leading to the
issuance of the search warrant. But that was not the circumstance on the case of del Norte, in fact the
police officers did not know the person referred to as Ising Diwa such that they had to employ the help of
the barangay official who pointed to them this person who turned out to be Prescilla del Norte.

4.b. Another equally important requirement which is subsumed under the 4th requisite for the issuance
of the search warrant is that the search warrant also must particularly describe the objects or things
to be searched or to be confiscated, the reason for this are (1) to enable the officers enforcing the
search warrant to identify the objects to be confiscated thereby preventing unlawful seizure of things
and (2) to deny them any discretion as to what things to be confiscated. Such that if the things or
objects are not particularly described in the search warrant itself then the search warrant may be
declared as in invalid for being a general warrant. Therefore, a general warrant is one which does not
particularly describe the things or objects subject matter thereof.

Scatter shot warrant is issued for more than one specific offense, while a general warrant may be issued
for one specific offense yet it does not particularly describe the things or objects subject matter thereof.

In the case of Stonehill v. Diokno, where SC also nullified the warrant for being a general warrant, because
in this case the search warrant was issued for the confiscation of financial records, vouchers, journals,
correspondents, receipts, letters, portfolios, typewriters and other documents evidencing all business
transactions. According to the SC that warrant is defective, because it authorized the confiscation of all

14
documents pertaining to all business transactions without distinctions as to legitimate or illegitimate
transactions.

Similarly, in the case of Burgos v. Chief of Staff, the search warrant was also declared as invalid for being
a general warrant, because it authorized the confiscation of subversive materials without specifying what
materials are to be considered as subversive.

Yet in another case of Alvarez v. CFI, SC however said that when the object or things are incapable of being
technically described then a general description would suffice, because in this case the search warrant for
the seizure of books, documents, receipts and lists, however there was a qualifying clause list as by used
of Alvarez in connection with his usurious money lending transaction which is conducted in violation of
the law. Unlike in the case of Diokno which authorizes the confiscation of all documents evidencing all
and any kind of business transactions, even if the same is a legitimate business.

Assume that the judge issues a search warrant and the search warrant authorized the confiscation of
several items listed in paragraph A and B and the items enumerated under paragraph A are generally
described although the same may be physically described, but the items in paragraph B are particularly
described. Should the entire warrant be voided? NO.

Recall the case of Microsoft, according to the SC only those items that are but generally described are to
be considered invalid, yet the remainder thereof will have to remain valid. Indeed as what was ruled in
the case of Microsoft and Salanguit, a search warrant therefore is severable. Such that when there is a
portion thereof that is invalid then it will not render the entire warrant invalid, so the remainder which is
not affected thereby would have to be enforced.

What are the things that may be ordered confiscated? Items which are the subject matter of the offense
or anything that may be used in the commission of the offense or is intended to be used in the commission
of the offense may also be ordered confiscated. These are the subject of the offense, stolen or embezzled
goods, as well as the instrument of the commission of the offense.

How will the search warrant be enforced? It has to be sent to the law enforcement agencies for their
enforcement. In fact it has to be enforced, normally, by the applicants for the issuance thereof. Take note
that in the enforcement of a search warrant and under sec 7, Rule 126, ROC, the officers enforcing the
search warrant may likewise employ reasonable force. In that under the Rules of Court, particularly sec 7,
Rule 126, they are allowed to break open a window or a door if only to gain entrance of the premises or
to break out there from. Take note also that under sec 8, Rule 126, ROC, if a search is to be conducted in
a house or a room thereof or any other premises that the lawful occupant must be present in each and
every face of the search or in his absence, a member of his family, or in the absence of the latter then
such searched must be witnessed by two (2) persons of sufficient age and discretion and who must be
residents of the same locality. The occupant of the house must be present at every stage of the search, or
else it would invalidate such search. The reason for this requirement is to assure or see to it that there is
no planting of evidence.

Take note also under sec 9, Rule 126, ROC, is that a search warrant is generally enforced during day time,
except where in the search warrant the judge directs or allows that the same may be enforced during
night time. The other rule under sec 10, Rule 126, ROC, is that a search warrant is valid only for 10 days
reckoned from the date of the issuance thereof, as appearing in the search warrant itself there after the
search warrant ceases to be valid.

General rule, for a search to be valid it has to be covered by a search warrant yet that particular rule
admits of some exceptions. One such exceptional circumstance where they may be a valid warrantless
search is in the case of a (1) Consented search, meaning to say that the person concerned has none the
less given his consent to be searched upon without a search warrant. Take note however that for such
consent to be valid it should be given unequivocally, expressly, voluntarily and intelligently.

Recall the case of Caballes, it was argued by the prosecution that Caballes has given his consent because
he did not interpose any objection and that according to the prosecution, according to the police officers
that Caballes did not impose tenacious objections, rather he kept silent. SC said that mere silence is not

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enough, mere passivity is not enough. Consent in the concept of a warrantless search has to be given
freely, intelligently, and for more important expressly.

In that context, recall also the case of Susan Canton, in the plane ticket there is that provision or stipulation
pursuant to RA 6235 whereby the airline passenger is deemed to have given his or her consent to being
searched upon at the terminal otherwise he or she may be refused embarkation into the aircraft. Consent
will validate and in otherwise invalid search or even if the search is conducted without a warrant if the
person concerned has given his consent thereto then it becomes valid already. Take note however that
for such consent to a warrantless search to be valid such consent must only be given by the person who
is the holder of such right. The waiver of right against unreasonable search or giving consent to an
otherwise warrantless search may only be given by the holder of the particular right.

A case in point is the case of Damaso, 212 SCRA 457, where the elements of the defunct Philippine
Constabulary conducted a warrantless search on the house of Damaso. At the time of the search Damaso
was not around, such that the PC sought the permission of the person there who turned out to be a mere
house helper, so she gave her consent for the elements of the PC to conduct a search on the house of
Damaso. After the search, it was found out that Damaso had in his possession subversive materials. In the
ensuing criminal prosecution the contention of Damaso claim that the search was illegal, but the
prosecution countered that the consent was given by the helper of Damaso. SC sided with Damaso that
according to SC that any such consent was invalid because it was given by the person who was not the
holder of the right. If at all it should have been Damaso who should have given his consent to such
warrantless search.

((But the ruling in a different and much earlier case in Lopez v. Collector of Customs, 68 SCRA 320, was
quite different. It was quite disturbing. There was a warrantless searched conducted in a hotel room
occupied by Lopez. At the time of the warrantless search, Lopez was not around and the person present
was the manicurist. So the law enforcers sought the permission of the manicurist for them to be allowed
entry into the room and for them to conduct a search there on. In the ensuing criminal prosecution, Lopez
objected to the validity of the search, yet in this case our SC said that it was enough that a consent was
given for the law officers to conduct such warrantless search.)) SUPERSEDED BY DAMASO CASE. For such
consent to be valid, such consent should be given by the holder of that right. If the officers insisted then
such is may be invalid for it will not be covered by the exceptional circumstance.

2. Another exceptional circumstance where there may be a valid warrantless search is in the event
of what is known as a stop and frisk situation. Under this situation, a police officer is allowed to stop a
person on the street, interrogate that person and search him for concealed weapons if the police officer
observes that the other person is rather acting suspiciously, such that there is probable cause on his part
to believe that criminality is afoot. Take note that base on jurisprudence stop and frisk is only applied to
a situation where the one conducting the search is a police officer and it is important to consider that for
this situation to be allowed the person to be searched must be acting suspiciously. Before conducting such
warrantless search the police officer is mandated to introduce himself first as a person in authority and
ask questions and if he is not satisfied with the answers then that is the time that he may conduct a
warrantless search.

The purpose of allowing this is (1) for the safety of the police officer, because we do not know if the person
is armed and he may use that against the police officer, (2) is to prevent the commission of the offense,
to prevent criminality. Recall the case of Solayao, Solayao was drunk and he was wearing a camouflage
and when his companions were approached by the PC officer some of his companions fled. SC then said
that the search conducted on Solayao was valid. It was rather a stop and frisk situation.

Same ruling was had in the case of Posadas, the one who was bringing with him a buri bag then the police
officers approached him and introduced themselves and he attempted to flee. Such that the police officers
thought that he was doing something illegal. SC also declared the search to be valid even if the same is
done without a search warrant. It was rather akin to a stop and frisk situation.

But the stop and frisk doctrine was not however applied in the case of Malacat. The muslim looking guy
whose eyes were rapidly moving. SC did not apply the stop and frisk doctrine. According to SC it is highly
improbable for police officer Yu to have observed the movement of the eyes of Malacat, after all the police

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officer was nowhere near Malacat and it was already about night time. Same hold true in the case of
Mengote, he was holding his abdomen. He was looking from side to side. SC said that there was nothing
wrong with that. More so in the case of Mengote, the SC did not advance that argument.

ATTY. GALEON’S OBITER DICTUM:

Had the prosecution advance the stop and frisk doctrine in the case of Mengote, probably the decision
would have been different.

I’d like to underscore the fact that in a stop and frisk situation which resulted in a search, normally what
should precede is the fact of search before the fact of arrest. It is not the other way around. Stop and frisk
situation is rather an exception to the on search, in that here what normally precedes is the search before
there may be a warrantless arrest.

3. Third exceptional circumstance under which there may be a valid warrantless search is a search
incidental to a valid arrest. The rule is where a person is validly arrested then the person may be searched
upon for concealed weapons or for anything which may be used as proof of his commission of the offense.
So if a person is legally arrested you could expect that he will be searched by the apprehending officer or
even civilians. The purpose of which is to find out if he has concealed weapons which he may use against
the person effecting the arrest or to recover something that may be used as proof of his commission of
the offense.

Take note however as was ruled in the case of Espano v. CA, this search incidental to a valid arrest is
normally limited only to the body of the person arrested and the immediate surrounding or vicinity within
his immediate control, otherwise stated the search incidental to a valid arrest should not be conducted at
a place which is well beyond the control of the person arrested. In case of Espano, he was arrested on the
street, pursuant to a test buy operation, yet aside from the search conducted upon this person yielding
to the recovery of 2 sachets of marijuana, a search was conducted in this house and ruling as to the search
conducted in his house was illegal it was not considered as a search incidental to the arrest at that time
of his arrest, Espano had no control over his house. He was arrested on the streets yet a search was
conducted in his house.

Take note that a search incidental to a valid arrest what normally precedes is the fact of the arrest and
what follows is the fact of the search or at the very least the search should be done simultaneous with or
contemporaneous with the arrest. So a search conducted incidental to an arrest it is imperative that a
search should be done after or at the very least contemporaneous with the fact of the arrest, but it can
never be conducted before the fact of the arrest. So this is the distinction between a stop and frisk
situation vis a vis a search incidental to an arrest as was clarified in the case of Malacat.

Take note further that a search incidental to a valid arrest it is imperative that the preceding arrest must
be valid for the search to considered also as valid. Conversely, if the preceding arrest is invalid then the
consequential search is likewise invalid. The preceding arrest is valid if such is covered by a warrant of
arrest or it may be a case of a permissible warrantless arrest.

Recall the case of Figueroa, when the police officers went to his house for his warrantless arrest and when
he was arrested they conducted a search on Figueroa that may fall in a search incidental to a valid arrest.
In the case of Espano, he was arrested without a warrant pursuant a buy bust operation the arrest was
valid such that the search conducted in this person which lead to the discovery of 2 sachets of marijuana
was considered also as valid, because the preceding arrest even if the same was without a warrant was
decreed to be valid.

4. Another exceptional circumstance where there may be a valid warrantless search is in the event
known as confiscation of things or items in plain view, the plain view doctrine. Here, incriminating
evidence which is in the so called plain view of the police officer who has the right to be in the position
to have that view may be confiscated and admitted in evidence. It is important that there may be
inadvertent discovery of the incriminating evidence and the illegality of the item must be readily
apparent. So the requisites for the application of the doctrine are as follows; (1) there should be a
valid intrusion, meaning the person must be in the position to have that view (2) there should be

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 inadvertent discovery of that illegal thing or object, meaning that there should not be any conscious
effort to particularly search for or look for that illegal thing, (3) the item must be readily illegal, (4) if
you may want to add, is that the plain view would authorize the outright confiscation of the item.

REQUISITES OF PLAIN VIEW DOCTRINE:

A. there should be a valid intrusion
B. there should be inadvertent discovery of that illegal thing or object
C. the item must be readily illegal
D. would authorize the outright confiscation of the item

A. Recall the case of Figueroa, where the police officers were serving for the arrest of Figueroa, when
he was arrested, they noticed inadvertently that there are packs of marijuana placed on top of the
table. The same was confiscated and the SC said that it was valid, because those items fell within the
plain view of the arresting officers.

SITUATION:
Intrusion may be valid even without a warrant. Let’s say a police officer is pursuing a snatcher, the
snatcher went inside this house the police officer followed only to arrest this person, then once inside the
police officer observed that there are marijuana placed on the table. Can the police officer confiscate the
marijuana? But he went inside the house without a warrant? Is the intrusion valid? YES. In other words,
when we speak of valid intrusion, it does not matter if such intrusion is with or without a warrant. What
matters most is that the same is valid.

B. The other requisite is that there should be inadvertent discovery of the illegal item. Meaning to say
that there should be no conscious effort to locate or look for that particular item. Recall the case of
Salanguit, the search warrant was for shabu and drug paraphernalia and in the course of the
enforcement of the search warrant the police officers discovered marijuana. What was the ruling in
respect to marijuana? According to the SC the marijuana was inadmissible, because it was not shown
in the case as to when marijuana was discovered. As that the SC was of the view that it was discovered
after the discovery of the shabu, after all in the application of the search warrant the witness testified
that he knew for a fact as to where shabu was placed inside the cabinet. In that premise SC was of
the view that marijuana was only confiscated after the discovery of the shabu. SC did not apply the
plain view doctrine because it would appear that there was a conscious effort a further search when
the rule is that when a valid portion of a warrant had already been executed no further search shall
thereafter be allowed. More so the marijuana was not readily apparent for it was wrapped in a
newspaper; it would have been different if such was wrapped in a transparent container.

SITUATION:
What if the marijuana which was wrapped in newsprint was discovered in the course of looking for shabu?
Assume that marijuana which was wrapped in newsprint was placed in the cabinet where the shabu was
located and only to find out what was inside the package the police officer had to cut it open. Would that
be admissible? Would you abide the plain view doctrine? YES. This time around you can apply the plain
view doctrine because it was found in the course of looking for shabu. Although there was an effort at
slicing the container such was precisely done if only to discover what was inside it and the police officer
in doing that did not expect what was really inside the package. There purpose in opening that is for the
purpose of looking for shabu.

In the case of PP v. Musa, 217 SCRA 597, where in this case Musa was arrested pursuant to a test buy
operation but such was conducted inside his living room and after the test buy Musa was placed under
arrest. The police officer tried to locate the mark money, but such was not found. In the search for looking
for the mark money the police officer conducted a search particularly in the entire house of Musa
including the kitchen and in the course thereof, one police officer noticed that there was a package and
when it was opened, it contained marijuana. SC decreed that the marijuana was inadmissible in evidence.
They did not apply the plain view doctrine because it was not apparent what was inside the package.
There was an active search that was conducted. More so the search was conducted after the arrest of
Musa. Search incidental to an arrest cannot also be applied because the kitchen at that time was beyond
the ambit of control of Musa, because he was arrested right in his living room and also the transaction.

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5. Another exceptional circumstance where there may be a valid warrantless search is when there is a
customs search conducted on vessels like ocean going vessels and aircrafts. The reason is plain and
evident, because such are equip with powerful engines which could facilitate their escape. They can
easily elude arrest or pursuit. In this situation the procurement of a search warrant would be futile.
There is urgency in the situation. The search conducted on pump boats for the enforcement of
fisheries laws would also be considered as valid. The case of Aminnudin is different because he was
not searched while he was still in the vessel, he was already disembarking.

6. Another exceptional circumstance where a warrantless search may be decreed as valid is when a
search is conducted at checkpoints. Recall the case of Libnao, there was a checkpoint and it was
decreed as valid. In the case of Caballes, the case was decreed invalid because in the first place the
police officers were not conducting a checkpoint. They were merely on a roving patrol. They chanced
upon the jeepney of Caballes, flagged it down and conducted a warrantless search. It was decreed as
illegal. The reason for this is just like vessels, land based vehicles are also equip with powerful engines
that they can possibly elude arrest.

In the case of Valmonte v. De Villa, 178 SCRA 211, SC already ordained that a check point is valid for as
long as it is impelled in the existence of public order and for as long as it is conducted in a manner that is
least intrusive to motorist. Take note that as was ruled in the case of Caballes the mere mobility of this
vehicle will not authorize the police officers just to conduct and indiscriminate search. For a checkpoint
to be valid, it has to be impelled with probable cause, dictated upon existence of public order and should
be conducted at a definite place. On the rules of engagement, for a valid checkpoint to be had, it should
be manned by uniformed personnel, there should be a proper signage and there should be a patrol car
that is properly marked.

Generally, the search that is permissible in check points are nothing but a peripheral or visual search. In
other words, what may be allowed is the flashing of flashlights without necessarily requesting the motorist
to disembark in the vehicle. They are not allowed to direct to open or close the spectacles. They are not
allowed to conduct body frisking. What they could do is look through the window, have it opened, but are
not allowed to get inside the vehicle. If the vehicle is parked and there is a curtain, they are allowed to
open the curtain but not go inside the vehicle such was permitted in one case. Body frisking is no longer
a peripheral search. However, there are also instances where a thorough search may be conducted. At
check point a thorough search may be conducted if there is already probable cause on the part of the
officers to believe that the motorist is a criminal offender. And based on jurisprudence, probable cause at
check points would take in the form of a tip off or advance information.

SITUATION:
Assume that there is a nearby shot out in the vicinity of San Carlos, a riding in tandem, and then it was
relayed through a radio that the malefactors were riding on a pink motorbike and they are wearing black
jackets with the logo of Spongbob and Patrick. So there is a checkpoint then there is this motorcycle
resembling the one that was reported. On the situation, do you think that police officers are not allowed
to conduct a thorough search? NO, because there is already probable cause to believe that the motorist
is a criminal offender.

Recall the case of Padilla, there was a tip off. According to SC, even is Padilla was searched that would
have been valid, because there was already a tip off and there was already a checkpoint. In the case of
Libnao, there was already advance information by the civilian informant, a checkpoint was conducted and
Libnao was thoroughly searched wherein the bag of Libnao was opened. SC said that it was perfectly valid.
That is why I like to believe that the case of Malmstedt, Montilla and Maspil could be well justified to be
falling under this exceptional circumstance because in those cases checkpoints were held. In those cases
they were already advance information which would make up a probable cause to believe that the one
riding on the vehicle was a criminal offender. That is why I don’t subscribe in the ruling there in where the
SC said that the search there was valid because it was incidental to a valid arrest, because the search was
done first.

7. Another exceptional circumstance where there may be a valid warrantless search is when there is an
inspection conducted on buildings for the enforcement of fire, sanitary and building regulations.

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8. The last exceptional circumstance where there may be a valid warrantless search is when the search
in conducted in exigent or emergency situations. Assume for example that there is a nationwide coup
de etat or even in Manila and the courts there are not functioning. Can the government force conduct
searches in the course of hunting down offenders, without a warrant? Is that allowed? YES because
in the first place there is no court that is open. A case in point a case of PP v. Degrasya, 233 SCRA 716,
wherein at the height of the coup de etat during the time of Aquino the government forces conducted
a raid or a search without a warrant on __ office. And in the course of such it was found out that
there were unlicensed firearms and ammunitions were stored in that place. SC said that the
warrantless search conducted in __ office was valid because it was done under exigent and
emergency situation because at the height of a coup de etat.

 EXCEPTION TO A VALID WARRANTLESS SEARCH

1. Consented search
2. Stop and frisk
3. Search incidental to a valid arrest
4. Plain view
5. Customs search
6. Aircraft, vessel, checkpoints
7. Inspections of building for the inspection of fire, sanitary and building regulations
8. Search under exigent and emergency situations

Normally, when searches are conducted and things are recovered thereby, these things will be presented
as evidence to the crime committed. But what would happen if the search is illegal? May the items illegally
committed be admissible in evidence? Well the rule as provided for under sec 2 Article 3 is that any
evidence illegally obtained is inadmissible for any purpose and for any proceedings. For this exclusionary
rule to apply you have to invoke this particular provision. In other words, there is a need for you or the
accused to interpose and objection the moment the incriminating evidence is already being formally
offered in court.

In the course of the trial the prosecution will present testimonial evidence, witnesses to testify on the
facts and the evidence will be presented for formality purposes. You interpose your objection if such is
formally offered in evidence and formal offering of evidence, normally follows after testimonial evidence.
If you fail to interpose an objection to the formal offer of exhibits then such will be admissible in court.
The exclusionary rule under sec 2 Article 3 will not automatically be applied in such case, it should be
invoked.

While sec 2 Article 3 excludes such inadmissible evidence, yet it can still be applied if the evidence is
offered not against the person from whom the same is taken but to the person who conducted such illegal
search or arrest. There are three (3) instances where illegally admitted evidence may be admitted in court.
The following are; (1) when there is failure in invoking your right against unlawful search or arrest, (2)
when the same is issued not against the person from whom the same is taken but to the person who
conducted the illegal arrest or search, (3) when the search is done without the active intervention of the
state.

Remedies in the event that there is an illegal search, you may want to file a case for violation of domicile
under Article 128, RPC or when the search is done pursuant to a warrant that is rather illegally procured
you can file a case under Article 129, RPC, penalizing the procurement of a search warrant illegally and on
top of the criminal cases you may want to file a motion to quash the search warrant. You may want to file
also a motion to suppress the evidence illegally obtained but under observing the omnibus motion rule it
is better for you to file an omnibus motion. An omnibus motion is first to quash the search warrant and
the second prayer is to suppress the evidence illegally obtained. Before trial you may already file this
motion to quash the search warrant and motion to suppress the evidence illegally obtained. Where would
you file such omnibus motion? As a rule, if no case has not yet been filed in connection with the
enforcement of the search warrant you file the omnibus motion with the issuing court, but if a case has
already been filed in another court in connection with the raid that was conducted then you file such
motion in the court where the case is already filed or pending.

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And if you think the judge who issued the search warrant acted capriciously then you can file a petition
for certiorari under Rule 65, ROC, alleging that the judge acted with grave abuse of discretion, just allege
that the judge acted without authority. Your other remedy if the motion of quash the search warrant and
suppress the evidence is not granted then a trial ensued, then your other remedy is to interpose your
objection the moment the inadmissible evidence is offered in court. Take note as was rule in the case of
Nuevas, even if you failed to question the illegality of your arrest you are not precluded from objecting to
the admission of the evidence illegally obtained.

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