Key LS Personnel

(as of February 2012) Director, LS Deputy Director, LS Chief of Staff, LS : : : PCSUPT FRANCISCO A UYAMI JR PSSUPT ULYSSES J ABELLERA PSSUPT BARTOLOME C TOBIAS PSUPT GEORGE L ALMADEN PSUPT ARTHUR LLAMAS PSUPT ROMAN E LORETO PCINSP LYRA C VALERA PSINSP GARRY FRANCO C PUASO For this month, the PNP Legal Service will discuss under what circumstances the right to privacy of our citizen will be disturbed through reasonable search and seizure. Any PNP member who will fail to follow the strict rules on search and seizure is in truth courting a suit. Hence, the following topics will be discussed:

Monthly Publication of PNP Legal Service, Camp Crame, Quezon City www.legalservice.org.ph

February 2012

Chief, Legal Assistance Div: Chief , Special Cases Div. : Chief, Administrative & Resource Mgt. Div OIC, Legal Research & Evaluation Div. : :

A. Search and Seizure B. Arbitrary Detention

Supervisor, Legal Advice : 24/7

PARA MAGAMPANAN NG TAMA ANG TUNGKULING PULIS, MAGTANONG

Bad Search!!

SEARCH and SEIZURE

Search is a legal term used to describe examination of a person, home, vehicle, or business to find evidence that a crime has been committed.

Seizure is the confiscation, taking or removal of such piece of evidence to support an indictment. Q: When are searches and seizures legally allowed? A: It is allowed as long as it is reasonable. The Constitution itself provides that it is reasonable if it is based on a valid search warrant. Q: Are allowed? warrantless searches

peace officer, commanding him to search for personal property described therein and bring it before the court. (SEC. 1, RULE 126) Q: What properties may be the subject of an application for a search warrant? A: A search warrant may be issued for the search and seizure of personal property which is: a. Subject of the offense; b. Stolen or embezzled and other proceeds, or fruits of the offense; or c. Used or intended to be used as the means of committing an offense. (SEC. 3, RULE 126) Q: Where should a police officer file an application for a search warrant? A: An application for search warrant shall be filed with the following: (a) Any court within whose territorial jurisdiction a crime was committed. (b) For compelling reasons stated in the application, any court within the judicial region where the crime was committed if the place of the commission of the crime is known (c) For compelling reasons, any court within the judicial region where the warrant shall be enforced (SEC. 2, RULE 126). Important: Pursuant to Supreme Court resolution in A.M. No. 99-2009-SC (Resolution Clarifying Guidelines on the Application for and Enforceability of Search Warrants), applications for search warrant involving heinous crimes, illegal gambling, dangerous drugs and illegal possession of firearms can be filed and validly granted by the Executive Judge and Vice-executive Judges of RTCs of Manila and Quezon City even if the applicant is from, or the crime is committed in, other places of the country. Search warrants issued by these courts ICOW the above-enumerated offenses can be enforced anywhere in the Philippines.

A: Yes, warrantless search and seizure is allowed. In People of the Philippines vs. Nuevas, et al., G.R. No. 170233, promulgated February 22, 2007 the Supreme Court declared that the following instances are valid warrantless search: 1. Warrantless search incidental to a lawful arrest (SEC. 13, RULE 126); 2. Seizure of evidence in "plain view." 3. Search of a moving vehicle 4. Consented warrantless search; 5. Customs search; 6. Stop and Frisk; 7. Exigent and emergency circumstances; and, 8. Searches at airports Q: What is the effect if the search is made without a search warrant or is declared as an invalid warrantless search? A: The pieces of evidence obtained cannot be used against the suspect in any case and for whatever purpose. This is the socalled exclusionary rule or the fruit of poisonous tree doctrine.

Q: What is a search warrant? A: A search warrant is an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a

Q: How long is a search warrant valid? A: A search warrant shall be valid for ten (10) days from its date. Thereafter, it shall be void (SEC. 10, RULE 126). Q: Can a police officer break a window to go inside a house to effect a search if refused admittance? How about to get outside? A: The officer may break open any outer or inner door or window of a house or any part of a house or anything therein to execute the warrant or liberate himself, if after giving notice of his purpose and authority, said officer is still refused admittance (SEC. 7, RULE 126). Q: Can a Search Warrant cover more than one offense? A: No, a search warrant shall only cover one specific offense (SEC. 4, RULE 126). Q: How should a search is conducted? A: Generally, in executing a Search Warrant, the officer must first give notice of his purpose and authority. A search of a house, room, or any other premises shall be made in the presence of: a. The lawful occupant thereof; b. Any member of his family or in the absence of the latter c. Two (2) witnesses of sufficient age and discretion residing in the same locality. (SEC. 8, RULE 126) Note: This has to be distinguished from the execution of a Search Warrant for violation of RA 9165 (Comprehensive Dangerous Drugs Act of 2002) which has more stringent requirements. (This topic will be discussed in the upcoming issues of this brochure).

Q: Can you search a person prior to his arrest? A: As a general rule, arrest must precede the search, the process cannot be reversed (People vs. Nuevas, et al., G.R. No. 170233, February 22, 2007). Q: Could an arrested person be searched without a warrant? A: 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 ( SEC. 13, RULE 126). Q: What should be furnished, and to whom it will be furnished, after a search pursuant to a search warrant was conducted? A: The following must be accomplished: 1. A detailed Receipt of Property Seized This should be accomplished by the officer seizing the properties and must be furnished to the lawful occupant of the premises in whose presence the search and seizure were made; and 2. Certificate of Orderly Search This must be issued by Barangay Officials or witnesses present during the conduct of search. Note: In the absence of such occupant, the officer must, in the presence of at least two witnesses of sufficient age and discretion residing in the same locality, leave a receipt in the place in which he found the seized property (SEC. 11, RULE 126). Q: What are the requirements of the Court after the Search Warrant has been implemented? A: The Officer who implemented the Search Warrant shall submit to the issuing Court the following: (a) The property seized, together with a true inventory thereof duly verified under oath; and (b) Return on the search warrant within ten (10) days from issuance (SEC. 11, RULE 126). Note: Failure to do so is a ground to hold the police officer in contempt of court.

Q: When is warrantless search of a moving vehicle considered valid? A: In order for a warrantless search of a moving vehicle to be considered valid, the officers conducting the search must have reasonable or probable cause to believe before the search that they will find the instrumentality or evidence pertaining to a crime, in the vehicle to be searched (People vs. Belen Mariacos, G.R. No. 188611, June 16, 2010). Q: What is probable cause for search? A: Probable cause means such facts and circumstances which would lead a careful man to believe that a crime has been committed and the objects sought in connection with the said crime are in the place to be searched (People vs. MAMARIL, G.R. No. 171980, October 6, 2010). Q: When are extensive searches in checkpoint allowed? A: Although the general rule is that motorists and their vehicles as well as pedestrians passing through checkpoints may only be subjected to a routine inspection or visual search, vehicles may be stopped and extensively searched when there is probable cause which justifies a reasonable belief of the men at the checkpoints that either the motorist is a law offender or the contents of the vehicle are or have been instruments of some offense (People vs Vinecario et al, GR No. 141137, January 20, 2004). Q: What are the basic rights of citizens in military/police checkpoints? A: The Department of Justice released on March 24, 2011 an Advisory Opinion summarizing the basic rights of citizens in military/police checkpoints dubbed as The ten (10) Checkpoint Rules as follows:

1. Checkpoint must be well-lighted, properly identified and manned by uniformed personnel. 2. Upon approach, slow down, dim headlights and turn on cabin lights. Never step out of the vehicle. 3. Lock all doors. Only visual search is allowed. 4. Do not submit to a physical or bodily search. 5. You are not obliged to open glove compartment, trunk or bags. 6. Ordinary/routine questions may be asked. Be courteous but firm with answers. 7. Assert your rights, have presence of mind and do not panic. 8. Keep your drivers license and car registration handy and within reach. 9. Be ready to use your cellphone at anytime. Speed dial emergency number. 10. Report violations immediately. Your actions may save others. Supreme Court Rulings on Search and Seizure: 1. The constitutional rule against warrantless arrests and seizures makes the law enforcement work of police agencies more difficult to carry out. The Bill of Rights was not designed to make life easy for police forces but rather to protect the liberties of private individuals. Our police forces must simply learn to live with the requirements of the Bill of Rights, to enforce the law by modalities which themselves comply with the fundamental law. Otherwise they are very likely to destroy, whether through sheer ineptness or excess of zeal, the very freedoms which make our policy worth protecting and saving (Lacson et al vs Perez et al, GR No. 147780, May 10, 2011). 2. A warrantless search of a vehicle cannot be invalidated where there are indications that the same was consented to by the owner (People vs Usana, 323 SCRA 754) 3. The rule is that a description of a place to be searched is sufficient if the officer with a warrant can, with reasonable effort, ascertain and identify the

place intended and distinguish it from other places in the community (Uy vs BIR, 344 SCRA 36). Frequently asked Questions: Q: Buy-bust operation happened in the lawn of the suspect. Could the operating team search the house for more stuff? A: No. Limit the search in the body of the suspect and in the premises within his immediate control. Q: Is Oplan Galugad or saturation drive lawful? A: The conduct of search in this anti-criminality campaign must be limited to visual search. Occasional limited search can be done provided a reasonable suspicion arise that the person to be searched is committing a crime. Q: During patrolling or during saturation drive, the police officers saw a group of persons gambling inside a house. Could they just barged-in to the house without having to secure a search warrant and arrest the suspects? A: Yes. When crime is committed in plain view, police officers do not need a search warrant in order to enter the premises of the house and arrest the suspects. The constitutional prohibition against unreasonable searches and seizures applies when the law enforcement agencies will conduct search and not when they will stop criminality being committed in plain view.

A: Only public officers or employees may be held liable for Arbitrary Detention. Q: How is Arbitrary Detention committed? A: There are three (3) ways by which public officers or employees may commit arbitrary detention. 1. Detaining a person without legal grounds (Art 124, RPC) 2. Delay in the delivery of detained persons, detained with legal grounds, to the proper judicial authorities (Art. 125, RPC); and 3. Delaying release of a detainee (Art. 126, RPC). Note: The imposable penalties for violations depend on the length of detention (Art. 124, RPC). Q: What are legal grounds for detention of a person? A: The following are the grounds for detention: a. The commission of a crime; and b. Violent insanity or any other ailment requiring the compulsory confinement of the patient in a hospital. Q: How is Article 124 (Arbitrary Detention) distinguished from Article 125 (Delay in the Release), both of the RPC? A: In Article 124, the detention is without legal grounds whereas in Art. 125, the detention is with legal grounds. Q: What are the periods to be observed in the delivery of detained person to the proper judicial authorities? A: The following are the periods to be observed: a. twelve (12) hours, for crimes or offenses punishable by light penalties, or their equivalent. Light Penalty carries imprisonment within the range of one day as minimum to 30 days as maximum; b. eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or their equivalent. Correctional Penalty carries imprisonment within the range of month and one day as minimum to six years as maximum; and c. thirty-six (36) hours, for crimes or offenses punishable by Afflictive Penalties, or their equivalent. Afflictive Penalty carries imprisonment within the range of six years and one day as minimum to death as maximum.

ARBITRARY DETENTION
Q: Who may be held liable for Arbitrary Detention?

Note: In every case, the person detained shall be informed of the cause of his detention and shall be allowed upon his request, to communicate and confer at any time with his attorney or counsel. Q: How is Delaying Release under Article 126 of the RPC committed? A: Delaying Release is committed by any public officer or employee who: a. delays for the period of time specified therein the performance of any judicial or executive order for the release of a prisoner or detention prisoner, or b. unduly delays the service of the notice of such order to said prisoner or the proceedings upon any petition for the liberation of such person. Frequently asked Questions Q: If after inquest the Prosecutor failed to file an information in court within the period fixed by law, are the arresting officers obliged to release the detainee? A: No. The arresting officers must wait for the Order of Release from the Prosecutors office. Q: If the Inquest Prosecutor is not available, do the arresting officers have to release the suspects after the reglementary period to file the case? A: No. Go to the Prosecutors Office and have your intention and readiness to file a case for inquest be entered into the blotter of the (Bulwagan Ng Katarungan) guard on duty. Normally, the Prosecutors Office has a standby Duty Inquest Prosecutor even on Saturdays, Sundays or Holidays. But if theres none, leave a contact number so that the Inquest Prosecutor could contact you should he will be available. Visit the Prosecutors Office again first hour of the following working day.

Q: After inquest proceedings, the police officers were informed by the Prosecutor that he is going to recommend for the dismissal of the case and the Prosecutor strongly advised the police officers to release the respondent. Do the police officers have to follow the advice of the Prosecutor? A: No. The police officers must wait for the Order of Release to be issued by the City/Provincial Prosecutor. Q: Is the Order of Release immediately executory? What if the Chief of Police will file a timely Motion for Reconsideration, will the respondent be released even if the motion is not yet resolved? A: Such order is immediately executory. It is advisable to release the respondent. Q: The suspect signed or executed a waiver of detention. Is it lawful to continue detaining the suspect without filing the case? A: It is NOT lawful. Pursuant to Section 10 of DOJ Circular No. 6 entitled New Rules on Inquest, the waiver of the provisions of Article 125 of the RPC may be executed by the detained person when: 1. the case has already been filed for inquest; 2. the Inquest Prosecutor finds that the arrest was properly effected; 3. the detained person desires or manifests to avail of a regular preliminary investigation; and, 4. such execution of waiver is made with the assistance of a lawyer, or in case of unavailability of a lawyer, a responsible person of his choice.

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