Permissible Searches & Seizures

It is the communal right of any given society to be protected from crimes and offenses. Peace, order and security are necessary for the welfare and development of the people and their communities. It is for such purposes that impels and moves our police officers to perform their bounden duties.

However, there have been many instances when, instead of effecting these noble purposes, police officers fail in such regard and criminals, fortunate for them but not for others, escape penalties, endangering the communities that deserve protection.

          This is an article that seeks to prevent these untoward outcomes by informing our police forces of searches and seizures permissible under the rules and jurisprudence.

Lawyers and judges may also utilize this article as a jump-off point for further research on the permissibility of searches and seizures conducted by police officers.

Constitutional Right in Focus

          A citizen’s right to privacy is a constitutional right that cannot be infringed. Because of its inviolability, police officers are made to respect such sacrosanct right in conducting their operations, lest their efforts be put at naught when courts determine, in meticulous fashion, that a violation of this right has taken place.

Doctrine of the Fruit of the Poisonous Tree

          If the evidence is obtained through an unlawful search, the seized item is inadmissible in evidence against the accused. (Villanueva v. People, G.R. No. 199042, November 17, 2014)

General Rule

          All searches and seizures made without a search warrant are invalid. (Riano, p.304)

Exceptions

          A search warrant is not necessary in the following instances:

(a)   Warrantless search incidental to a lawful arrest

(b)  Seizure of evidence in “plain view” (Plain View Doctrine)

(c)   Search of a moving vehicle

(d)  Consented warrantless search

(e)   Customs search

(f)    Stop and frisk or Terry searches

(g)   Exigent and emergency circumstances

(h)  Search of vessels and aircraft

(i)     Inspection of buildings and other premises for the enforcement of fire, sanitary and building regulations

 

-          Valeroso v. Court of Appeals, G.R. No. 164815, September 3, 2009

Requirements for Exceptions to Apply

          The exceptions are permitted only if their requirements are complied with, most of which arose in order to respect the citizens’ right to privacy.

Exceptions	Requirements
(a)   Search incidental to lawful arrests Purposes: To protect the arresting officer from being harmed by the person arrested, who might be armed with a concealed weapon, and to prevent the latter from destroying evidence within reach. (Riano, p. 278)	The law requires that there be first a lawful arrest before a search can be made – the process cannot be reversed. (Omar v. People, G.R. No. 182534, September 2, 2015) Arrests are lawful when warrants of arrest were issued for that purpose. However, Rule 113, Section 5 provides the instances when warrantless arrests may still be considered lawful, to wit: (a) When, in the presence of police officer, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. The things that may be seized in a search incident to a lawful arrest is however limited by Rule 126, Section 13, into the following: (i) dangerous weapons (ii) anything which may have been used in the commission of the offense (iii) anything which constitute proof in the commission of an offense The scope of the search is not limited to the person arrested but cannot extend beyond premises or surroundings under his immediate control. (Espano v. Court of Appeals, 288 SCRA 558, 566-567, cited in Riano, p. 281)
(b)  Plain View Doctrine Reason for the exception: When police officers come across immediately upon incriminating evidence not covered by the warrant, they should not be required to close their eyes to it, regardless whether it is evidence of the crime they are investigating or evidence of some other crime because it would be needless to require the police to obtain another warrant. Under the plain view doctrine, there is no legitimate expectation of privacy. (United Laboratories v. Isip, 461 SCRA 574, 595-6, cited in Riano, 288)	The plain view doctrine applies when the following requisites concur: (1)  The officer has a prior justification for an intrusion or is in a position from which he can view a particular area (2)  The discovery of the evidence in plain view is inadvertent (3)  It is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure (Riano, 286, citing Abelita v. Doria, 596 SCRA 220, 228; Zalameda v. People, 598 SCRA 537, 553-554) An object is in plain view if it is plainly exposed to sight. Where the object seized was inside a closed package, the object itself is not in plain view and, therefore, cannot be seized without a warrant. However, if the package proclaims its contents, whether by its distinctive configuration, its transparency, or if its contents are obvious to an observer, then the contents are in plain view and may be seized. If the package is such that an experienced observer could infer from its appearance that it contains the prohibited article, then the article is deemed in plain view. (People v. Nuevas, 516 SCRA 463, 478, cited in Riano, 287) Not only must the item be in plain view. Its incriminating character must also be “immediately apparent”. (United Laboratories v. Isip, 461 SCRA 574, 595, cited in Riano, 288) It is immediately apparent if the officer, at the moment of seizure, had probable cause to connect or associate it to a crime without the benefit of an unlawful search or seizure; a nexus exists between the viewed object and the criminal activity. (Id., pp.595-6) The rule does not require an unduly high degree of certainty as to the incriminating character of the evidence. (Ibid.)
(c)     Search of a Moving Vehicle (a.k.a. Car Search Doctrine or Carroll Doctrine) Reason: It is impracticable to obtain a warrant when the search is conducted on a mobile ship, on an aircraft, or in other motor vehicles since they can be quickly moved out of the locality or jurisdiction where the warrant must be sought. (People v. Mariacos, 621 SCRA 327, 341-2, cited in Riano, 282-3)	Peace officers are limited only to routine checks where the examination of a vehicle is limited to visual inspection. When a vehicle is stopped and subject to extensive search, such would be 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 an item, article or object which by law is subject to seizure and destruction. (People v. Libnao, 395 SCRA 407, cited by Riano, 283) When a vehicle is flagged down and subjected to an extensive search, such a warrantless search has been held to be valid as long as the officers conducting the search have reasonable or probable cause to believe prior to the search that they would find the instrumentality or evidence pertaining to a crime, in the vehicle to be searched. (People v. Tuazon, 532 SCRA 152, 169, cited in Riano, ibid.) Checkpoints Moving vehicles may be searched in checkpoints but must only be limited to visual examinations and cannot extend to body searches. (See Riano, 284-6, citing Valmonte v. De Villa, 185 SCRA 665, People v. Vinecario, 420 SCRA 280) There is nothing in the law that authorizes checkpoint-manning policemen to order the occupant of a car to get out of the vehicle for a search of both his body and vehicle. (Sydeco v. People, G.R. No. 202692, November 12, 2014, cited in Riano, 286) Under exceptional circumstances, as where the survival of organized government is on the balance, or where the lives and safety of the people are in grave peril, checkpoints may be allowed and installed by the government. Implicit in this proposition is, that when the situation clears and such grave perils are removed, checkpoints will have absolutely no reason to remain. (Valmonte, supra.)
(d)  Consented Searches	To constitute waiver, 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. (People v. Nuevas, 516 SCRA 463, 482, cited in Riano, 297) Silence should not be lightly taken as consent to the search. The implied acquiescence to the search, if there was any, could not be more than mere passive conformity given under intimidating or coercive circumstances. In such case, it could not be considered consent at all within the purview of the constitutional guarantee. (People v. Cogaed, G.R. No. 200334, July 30, 2014) For a valid waiver by the accused of his or her constitutional right, it is not sufficient that the police officer introduce himself or herself or be known as a police officer. (Ibid.) The police officer must also inform the person to be searched that any inaction on their part will amount to a waiver of any of their objections that the circumstances do not amount to a reasonable search. (Ibid.) The police officer must communicate this clearly in a language known to the person who is about to waive their constitutional rights. (Ibid.) There must be an assurance given to the police officer that the accused fully understands their rights. The fundamental nature of a person’s constitutional right to privacy requires no less. (Ibid.) The prosecution and the police carry the burden of showing that the waiver of a constitutional right is one which is knowing, intelligent, and free from any coercion. In all cases, such waivers are not to be presumed. (Ibid.) In short: (1) communication; and (2) full understanding that the person is about to waive their constitutional right to privacy. Silence does not mean yes.
(e)   Customs searches Reason: Customs searches done for the collection of customs duties are allowed even without the necessity of search warrants. However, if dwelling houses are to be searched, warrants must first be secured. (See Sections 2208, 2209, and 2211 of the Tariff & Customs Code). The reason for the necessity or dispensation of search warrants in the particular places is the compliance with the constitutional rights of persons to privacy.	The officer must make known his official character as such and, if his authority is derived from special authorization in writing, he must exhibit the same for inspection, if demanded. (Tariff & Customs Code, Section 2206) If the place to be searched is a box, trunk, envelope or other container being carried by a moving vehicle, beast, or person, he must have a reasonable cause to suspect the presence therein of dutiable or prohibited article or articles introduced into the Philippines contrary to law before he can open or examine the said container. (Tariff & Customs Code, Section 2211)
(f)    Stop & Frisk or Terry Searches Purpose: To enable the police officers to prevent the commission of crimes. Reason for Exception: Terry searches are not invasive and overly intrusive as to be violative of the constitutional right to privacy. (See Terry v. Ohio, 392 US 1) It is used when dealing with a rapidly unfolding and potentially criminal situation in the city streets where unarguably there is no time to secure a search warrant. (Manalili v. Court of Appeals [1997], cited in People v. Cogaed, supra)	The Terry doctrine is of two parts: the “stop” and the “frisk.” (Riano, 294) A valid “stop” by an officer requires that he has a reasonable and articulable belief that criminal activity has happened or is about to happen. (Ibid.) The “frisk” made after the stop must be done because of a reasonable belief that the person stopped is in possession of a weapon that will pose a danger to the officer and others. (Ibid.) The “frisk” must be a mere pat down outside the person’s outer garment and not unreasonably intrusive. (Ibid.) A 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. (Malacat v. Court of Appeals [1997], cited in People v. Cogaed, supra) The assessment of genuine reason must be made by the police officer himself who should not adopt the suspicion initiated by another person. (See People v. Cogaed, supra) Terry v. Ohio did not justify every “stop.” Before an officer stops a private citizen in the street, the act must be justified by concrete facts pointing at least towards a possible criminal activity, where no crime is still apparent to the officer. (Riano, pp. 295-6) Law enforcers are given the legal arsenal to prevent commission of offenses but this should be balanced with the need to protect the privacy of citizens in accordance with Article III, Section 2 of the Constitution. (People v. Cogaed, supra)
(g)   Exigent and emergency circumstances	This rule applies only in cases where the survival of the government is at stake such as in rebellion, coup d’ etat, insurrection, and invasion. (People v. De Gracia, G. R. Nos. 102009-10, July 6, 1994, cited in People v. Aruta, G.R. No. 120915, April 3, 1998) In People v. De Gracia, supra, the Supreme Court applied this exception in this wise: Under the foregoing circumstances, it is our considered opinion that the instant case falls under one of the exceptions to the prohibition against a warrantless search. In the first place, the military operatives, taking into account the facts obtaining in this case, had reasonable ground to believe that a crime was being committed. There was consequently more than sufficient probable cause to warrant their action. Furthermore, under the situation then prevailing, the raiding team had no opportunity to apply for and secure a search warrant from the courts. The trial judge himself manifested that on December 5, 1989 when the raid was conducted, his court was closed.  Under such urgency and exigency of the moment, a search warrant could lawfully be dispensed with. (Emphases supplied; citations omitted.)
(h)  Search of vessels and aircraft
(i)     Inspection of buildings and other premises for enforcement of fire, sanitary and building regulations