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Unlawful Search Discussion

The document provides a basic guide on the right against unreasonable searches and seizures under the Philippine Constitution. It discusses that (1) the protection applies to individuals and not places, (2) the search or seizure must be a government action to violate the prohibition, and (3) searches and seizures are unreasonable if conducted without a valid warrant, under an invalid warrant, or under circumstances that do not fall under exceptions allowing warrantless searches. The guide outlines the requirements and exceptions to the unreasonable search and seizure prohibition.

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0% found this document useful (0 votes)
32 views7 pages

Unlawful Search Discussion

The document provides a basic guide on the right against unreasonable searches and seizures under the Philippine Constitution. It discusses that (1) the protection applies to individuals and not places, (2) the search or seizure must be a government action to violate the prohibition, and (3) searches and seizures are unreasonable if conducted without a valid warrant, under an invalid warrant, or under circumstances that do not fall under exceptions allowing warrantless searches. The guide outlines the requirements and exceptions to the unreasonable search and seizure prohibition.

Uploaded by

Ei Ac
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd
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The Right Against

Unreasonable Searches & Seizures:


A BASIC GUIDE

Sections 2 and 3 (2) of Article III of the Constitution provide:

"SECTION 2. 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.”

“SEC 3. x x x

(2) Any evidence obtained in violation of x x x the preceding section shall be inadmissible for any purpose in
any proceeding.”

GUIDE OUTLINE

1. How to determine if the search or seizure violates the Constitutional prohibition

2. How to determine if the search or seizure is a government action

3. How to determine if the search or seizure is unreasonable

4. How to determine the legal consequences of the unlawful search or seizure

I.

DOES THE SEARCH OR SEIZURE VIOLATE THE CONSTITUTION?

Protection guaranteed: Immunity of persons, not places

The right against unreasonable searches and seizures is the immunity of one's person, which includes his
residence, his papers, and other possessions. The guarantee refers to "the right of personal security" of the
individual. What is sought to be protected against the State's unlawful intrusion are persons, not places. To
conclude otherwise would lead to the absurd logic that for a person to be immune against unreasonable searches
and seizures, he must be in his home or office, within a fenced yard or a private place. The Bill of Rights belongs as
much to the person in the street as to the individual in the sanctuary of his bedroom.

Basic Requirements for the constitutional prohibition to apply

The search or seizure violates the prohibition under Section 2, Article III of the 1987 Constitution, if it is:

1. a government or state action; and

2. “unreasonable”

Requirement No.1: Government/State action

Rule: The search or seizure must be an action by the government or state, otherwise the Constitutional prohibition
against unreasonable searches and seizures and the exclusionary rule will not apply.

The protection against unreasonable searches and seizures proscribes only “governmental action.” It is “wholly
inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an
agent of the Government or with the participation or knowledge of any governmental official."

Reason: The constitutional proscription against unlawful searches and seizures applies as a restraint directed only
against the government and its agencies tasked with the enforcement of the law. It could only be invoked against
the State. This is because Bill of Rights governs the relationship between the individual and the state, and not the
relation between private individuals.

Requirement No. 2: “Unreasonable” Search or Seizure

What the constitution prohibits are “unreasonable” searches and seizures.

The constitutional guarantee is not a blanket prohibition against all searches and seizures as it operates only against
“unreasonable” searches and seizures. Searches and seizures are as a rule unreasonable unless authorized by a
validly issued search warrant or warrant of arrest. “Reasonableness” is the touchstone of the validity of a
government search or intrusion.

“Reasonable” searches and seizures are allowed

The Constitutional proscription against unreasonable searches and seizures does not, of course, forestall reasonable
searches and seizure. What constitutes a reasonable or even an unreasonable search in any particular case is
purely a judicial question, determinable from a consideration of the circumstances involved.

II.

IS THE SEARCH OR SEIZURE A GOVERNMENT ACTION?

Rule: A search by a private individual, without the intervention of the police, is not covered by the constitutional
prohibition

If the search is made at the behest or initiative of the proprietor of a private establishment for its own and private
purposes, and without the intervention of police authorities, the right against unreasonable search and seizure
cannot be invoked.

Thus, in People v. Bangcarawan, the baggage of the accused was searched by the vessel security personnel. It
was only after they found shabu inside the suitcase that they called the Philippine Coast Guard for assistance. The
Supreme Court ruled that the search and seizure of the suitcase and the contraband items were carried out
without government intervention, and hence, the search did not come under the Constitutional prohibition, and
the seized shabu was deemed admissible as evidence.

III.

IS THE SEARCH OR SEIZURE “UNREASONABLE”?

Unreasonable Searches and Seizures

1. Unreasonable: Searches and seizures without a warrant

A search and seizure must be carried through or with a judicial warrant; otherwise, such search and seizure
becomes “unreasonable.” Searches, seizures and arrests are normally unreasonable unless authorized by a validly
issued search warrant or warrant of arrest.

No arrest, search and seizure can be made without a valid warrant issued by a competent judicial authority. The
Constitution guarantees the right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures.
The Constitution bars State intrusions to a person's body, personal effects or residence except if conducted by virtue
of a valid search warrant issued in compliance with the procedure outlined in the Constitution and reiterated in the
Rules of Court; “otherwise such search and seizure become ‘unreasonable’ within the meaning of the
aforementioned constitutional provision.

2. Unreasonable: Searches and seizures under an invalid warrant

If the search warrant is null and void, the searches and seizures made therein are illegal.
The search warrant must strictly comply with the requirements of the Constitution and the statutory provisions.
Failure to comply with any requirement mandated by law for the issuance of a search warrant renders such search
warrant invalid, the subsequent search unlawful, and evidence obtained therefrom inadmissible.
If the search warrant is null and void, the searches and seizures made therein are illegal.

Requisites for a valid search warrant

(1) It must be issued upon probable cause;


(2) The probable cause must be determined by the judge himself and not by the applicant or any other person;
(3) In the determination of probable cause, the judge must examine, under oath or affirmation, the complainant
and such witnesses as the latter may produce; and
(4) The warrant issued must particularly describe the place to be searched and persons or things to be seized.
A search warrant shall not issue except upon probable cause in connection with one specific offense to be
determined personally by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and the things to be seized which
may be anywhere in the Philippines.

Probable cause for a search warrant: Defined


The existence of such facts and circumstances which would lead a reasonably discreet and prudent man to
believe that an offense has been committed and that the objects sought in connection with the offense are in the
place to be searched.

Probable cause: How determined


To be determined personally by the judge after examination under oath or affirmation of the complainant and his
witnesses he may produce.

Probable cause: Personal knowledge required


Absent the element of personal knowledge by the applicant or his witnesses of the facts upon which the issuance
of a search warrant may be justified, the warrant is deemed not based on probable cause and is a nullity, its
issuance being, in legal contemplation, arbitrary.

Search warrant does not justify search & seizure of any evidence
A search warrant is not a sweeping authority for a fishing expedition to seize and confiscate any and all kinds of
evidence or articles relating to a crime. Nothing should be left to the discretion of the officer executing the warrant.

Test of particularity of description


A search warrant may be said to particularly describe the things to be seized when the description therein is as
specific as the circumstances will ordinarily allow; or when the description expresses a conclusion of fact — not of
law — by which the warrant officer may be guided in making the search and seizure; or when the things described
are limited to those which bear direct relation to the offense for which the warrant is being issued.

GENERAL RULE:

A search or seizure by the government without a judicial warrant is unreasonable and thus, illegal.

EXCEPTIONS TO THE GENERAL RULE:

Warrantless searches that are “reasonable” and, thus, valid

The Constitutional proscription against unreasonable searches and seizures does not forestall reasonable searches
and seizure. What constitutes a reasonable or even an unreasonable search in any particular case is purely a
judicial question, determinable from a consideration of the circumstances involved.

In the following instances, the search is reasonable even without a warrant:

(1) search incident to a lawful arrest;

(2) search of a moving motor vehicle;

(3) search in violation of customs laws;

(4) seizure of evidence in plain view;


(5) search when the accused himself waives his right against unreasonable searches and seizures (consented
search);

(6) stop and frisk (Terry search); and

(7) search arising from exigent and emergency circumstances.

Other warrantless searches that are reasonable and valid

In People v. Agulay, the Supreme Court enumerated other instances of valid warrantless searches, specifically:

- searches of vessels and aircraft for violation of immigration, customs and drug laws;

- searches of automobiles at borders or constructive borders; and

- searches of buildings and premises to enforce fire, sanitary, and building regulations.

In People v. Johnston, the Supreme Court also held valid a warrantless search pursuant to routine airport security
procedure, which is authorized under Section 9 of Republic Act No. 6235.

Under Section 6 of Commonwealth Act 613 or the Philippine Immigration Act as amended, immigration inspectors
are empowered to go aboard and search for aliens on any vessel or other conveyance in which they believe
aliens are being brought into the Philippines.

VALID WARRANTLESS SEARCHES & SEIZURES:

A CLOSER LOOK

(1) Search incident to a lawful arrest

Purpose of search
A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or
constitute proof in the commission of an offense without a search warrant.

There must first be a valid arrest before a search


The law requires that there first be a valid arrest before a search can be made—the process cannot be reversed.

Limits to the scope of search incidental to a lawful arrest

As to Area: Immediate Control Test


The seizure of evidence or dangerous weapons must be either on the person of the one arrested or within the area
of his “immediate control.” The phrase “within the area of his immediate control” means the area from within which
he might gain possession of a weapon or destructible evidence.

Should be limited to the area within which the person to be arrested can reach for a weapon or for evidence that
he or she can destroy.

As to Subject
As to subject, the search must only be with respect to the person of the suspect, and things that may be seized
from him are limited to "dangerous weapons" or "anything which may be used as proof of the commission of the
offense."

A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one
concealed in the clothing of the person arrested.

As to Time
The search must be contemporaneous with the lawful arrest. The search must be conducted at about the time of
the arrest or immediately thereafter and only at the place where the suspect was arrested, or the premises or
surroundings under his immediate control.

(2) Search of a moving motor vehicle


Limited car inspection: Valid even without probable cause
Routine inspections of motor vehicles are “normally permissible” in the following instances: (1) where the officer
merely draws aside the curtain of a vacant vehicle which is parked on the public fair ground; (2) simply looks into a
vehicle; (3) flashes a light therein without opening the car's doors; (4) where the occupants are not subjected to a
physical or body search; (5) where the inspection of the vehicles is limited to a visual search or visual inspection;
and (6) where the routine check is conducted in a fixed area.

Visual search: Probable cause not required


When there is no probable cause, peace officers are limited to routine checks where the examination of the
vehicle is limited to visual inspection.

Extensive search: Probable cause required


When a vehicle is stopped and subjected to an extensive search, such would be constitutionally permissible only if
the officers made it upon probable cause, i.e., upon a belief, reasonably arising out of circumstances known to the
seizing officer, that an automobile or other vehicle contains as item, article or object which by law is subject to
seizure and destruction, or instrumentality or evidence pertaining to a crime, in the vehicle to be searched.

Extensive search must be done only when it is not practicable to secure a warrant
Warrantless search of a moving vehicle is allowed only when it is not practicable to secure a warrant because the
vehicle can be quickly moved out of the area or jurisdiction in which the warrant must be sought.

Search of moving vehicle principle applies to fishing vessels and boats


Search and seizure without search warrant of vessels and aircrafts for violations of customs laws have been the
traditional exception to the constitutional requirement of a search warrant. It is rooted on the recognition that a
vessel and an aircraft, like motor vehicles, can be quickly moved out of the locality or jurisdiction in which the
search warrant must be sought and secured. The same exception ought to apply to seizures of fishing vessels and
boats breaching fishery laws.

(3) Search in violation of customs laws

Enforcers of customs and tariff laws are authorized to effect searches, seizures, and arrests, and to make seizure,
among others, of any cargo, articles or other movable property when the same may be subject to forfeiture or
liable for any fine imposed under customs and tariff laws. They could lawfully open and examine any box, trunk,
envelope or other container wherever found when he had reasonable cause to suspect the presence therein of
dutiable articles introduced into the Philippines contrary to law; and likewise to stop, search and examine any
vehicle, beast or person reasonably suspected of holding or conveying such articles.

Based on Section 2203 of the Tariff and Customs Code, except in the case of the search of a dwelling house,
persons exercising police authority under the customs law may effect search and seizure without a search warrant
in the enforcement of customs laws.

(4) Seizure of evidence in plain view (“plain view doctrine”)

Under the plain view doctrine, objects failing in plain view of an officer who has a right to be in that position to have
that view are subject to seizure even without a search warrant and may be introduced in evidence.

Elements of a valid seizure of evidence in plain view


(a) A prior valid intrusion in which the police are legally present in the pursuit of their official duties;
(b) The evidence was inadvertently discovered by the police who have the right to be where they are;
(c) The evidence must be immediately apparent;
(d) “Plain view” justified mere seizure of evidence without further search.

Evidence in plain view may be seized, although not described in the search warrant

Meaning of “immediately apparent”


At the time of the discovery of the object or facts or at the moment of seizure, the officer has probable cause to
connect the object to criminal activity.

Meaning of ”inadvertence”
The officer must not have known in advance of the location of the evidence and intend to seize it. Discovery is not
anticipated.
(5) Search when the accused himself waives his right against unreasonable searches and seizures (“consented
search”)

The right against unreasonable searches and seizures is a personal right which may be waived expressly or impliedly.

Consent must be unequivocal, specific and intelligently given


The consent to the search must be voluntary, unequivocal, specific, and intelligently given, uncontaminated by
any duress or coercion. The consent to a search must be shown by clear and convincing evidence.

Requisites for a valid waiver


In case of consented searches or waiver of the constitutional guarantee against obtrusive searches, it must first
appear that (1) the right exists; (2) the person involved had knowledge, either actual or constructive, of the
existence of such right; and (3) the said person had an actual intention to relinquish the right.

Peaceful submission is not consent


Peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of
regard for the supremacy of the law. The accused is not to be presumed to have waived the unlawful search
“simply because he failed to object.”

The presumption is against waiver of constitutional right.

(6) Stop and frisk (“Terry search”)

Scope
Limited protective search of outer clothing for weapons.

When stop and frisk is valid


Where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience
that criminal activity may be afoot and that the persons with whom he is dealing may be armed and dangerous,
where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable
inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or
others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited
search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.

Mere suspicion is not enough for a “stop-and-frisk”; there must be “genuine reason” to believe that the person has
a concealed weapon
Mere suspicion or a hunch will not validate a “stop-and-frisk”. A genuine reason must exist, in light of the police
officer’s experience and surrounding conditions, to warrant the belief that the person detained has weapons
concealed about him.

(7) Search arising from exigent and emergency circumstances

In People v. De Gracia (233 SCRA 716, [1994]), there were intelligence reports that the building was being used as
headquarters by the RAM during a coup d’etat. A surveillance team was fired at by a group of armed men
coming out of the building and the occupants of said building refused to open the door despite repeated
requests. There were large quantities of explosives and ammunitions inside the building. Nearby courts were closed
and general chaos and disorder prevailed. The existing circumstances sufficiently showed that a crime was being
committed. In short, there was probable cause to effect a warrantless search of the building.

Probable cause:
The basic requirement in all warrantless searches

In People v Aruta 3 April 1998, the Supreme Court declared that the essential requisite of probable cause must still
be satisfied before a warrantless search and seizure can be lawfully conducted. In searches and seizures effected
without a warrant, it is necessary for probable cause to be present.
IV.

WHAT ARE THE LEGAL CONSEQUENCES OF


AN UNLAWFUL SEARCH OR SEIZURE?

1) The exclusionary rule applies: Evidence obtained is inadmissible for any purpose in any proceeding.

If a search or seizure is “unreasonable,” any evidence obtained therefrom is “inadmissible for any purpose in any
proceeding.”

Thus, evidence obtained during an illegal search or seizure . . .

(a) is inadmissible to prove the guilt of the accused.


(b) cannot be used to legally obtain other evidence.

Evidence obtained from/as a result of evidence obtained in an illegal search would also be inadmissible for being
“fruit of the poisonous tree.”

Under, the exclusionary rule known as the "fruit of the poisonous tree," once the primary source (the "tree") is shown
to have been unlawfully obtained, any secondary or derivative evidence (the "fruit") derived from it is also
inadmissible. The rule is based on the principle that evidence illegally obtained by the State should not be used to
gain other evidence because the originally illegally obtained evidence taints all evidence subsequently obtained.

(c) cannot be used to justify a subsequent warrantless arrest.

2) Even if the search was unlawful, and the evidence obtained was excluded, the court may still convict the
accused on the basis of other pieces of admissible evidence.

Thus, in People v. Che Chun Ting, the Supreme Court declared that the search in the condominium unit of the
accused was illegal (the area was not within the immediate control of the accused at the time of the arrest), and
the shabu seized therein was inadmissible as evidence. However, the Supreme Court upheld the conviction of the
accused on the basis of evidence consisting of, among others, shabu which was found in bag of the accused at
the time the police arrested him in flagrante delicto in a buy-bust operation.

3) If the items seized in an illegal search are contraband or prohibited by law, the same cannot be returned to
the owner.

However, objects and properties the possession of which is prohibited by law cannot be returned to their owners
notwithstanding the illegality of their seizure.

4) If the items seized in an illegal search are not contraband, the same should be returned to the owner.

Seized items that are products of an illegal search, and are not contraband per se, nor objects in connection with
the offense, should be returned to the person from whom the same were taken.

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