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United States Supreme Court opinion concurring in part and concurring in the judgment, in which Stevens and Ginsburg,
JJ., joined. Alito, J., took no part in the consideration or decision of the case.
UNITED STATES v. GRUBBS, (2006)
No. 04-1414
Argued: January 18, 2006 Decided: March 21, 2006 UNITED STATES, PETITIONER v. JEFFREY GRUBBS

A Magistrate Judge issued an "anticipatory" search warrant for respondent Grubbs' house based on a on writ of certiorari to the united states court of
federal officer's affidavit. The affidavit explained that the warrant would not be executed until a parcel appeals for the ninth circuit
containing a videotape of child pornography--which Grubbs had ordered from an undercover postal
inspector--was received at, and physically taken into, the residence. The affidavit also referred to two [March 21, 2006]
attachments describing the residence and the items to be seized. After the package was delivered and
the search commenced, Grubbs was given a copy of the warrant, which included the attachments but
not the supporting affidavit. When he admitted ordering the videotape, he was arrested, and the Justice Scalia delivered the opinion of the Court.
videotape and other items were seized. Following his indictment for receiving child pornography, see 18
U. S. C. §2252(a)(2), Grubbs moved to suppress the seized evidence, arguing, inter alia, that the warrant Federal law enforcement officers obtained a search warrant for respondent's house on the basis of an
was invalid because it failed to list the triggering condition. The District Court denied the motion, and affidavit explaining that the warrant would be executed only after a controlled delivery of contraband to
Grubbs pleaded guilty. The Ninth Circuit reversed, concluding that the warrant ran afoul of the Fourth that location. We address two challenges to the constitutionality of this anticipatory warrant.
Amendment's particularity requirement, which, under Circuit precedent, applied to the conditions
precedent to an anticipatory warrant. I
Held: Respondent Jeffrey Grubbs purchased a videotape containing child pornography from a Web site
operated by an undercover postal inspector. Officers from the Postal Inspection Service arranged a
1. Anticipatory warrants are not categorically unconstitutional under the Fourth Amendment's controlled delivery of a package containing the videotape to Grubbs' residence. A postal inspector
provision that "no Warrants shall issue, but upon probable cause." Probable cause exists when "there is submitted a search warrant application to a Magistrate Judge for the Eastern District of California,
a fair probability that contraband or evidence of a crime will be found in a particular accompanied by an affidavit describing the proposed operation in detail. The affidavit stated:
place." Illinois v. Gates, 462 U. S. 213, 238. When an anticipatory warrant is issued, the fact that the
contraband is not presently at the place described is immaterial, so long as there is probable cause to
believe it will be there when the warrant is executed. Anticipatory warrants are, therefore, no different "Execution of this search warrant will not occur unless and until the parcel has been received by a
in principle from ordinary warrants: They require the magistrate to determine (1) that it is now
person(s) and has been physically taken into the residence . . . . At that time, and not before, this search
probable that (2) contraband, evidence of a crime, or a fugitive will beon the described premises (3)
when the warrant is executed. Where the anticipatory warrant places a condition (other than the mere warrant will be executed by me and other United States Postal inspectors, with appropriate assistance
passage of time) upon its execution, the first of these determinations goes not merely to what will
probably be found if the condition is met, but also to the likelihood that the condition will be met, and from other law enforcement officers in accordance with this warrant's command." App. to Pet. for Cert.
thus that a proper object of seizure will be on the described premises. Here, the occurrence of the 72a.
triggering condition--successful delivery of the videotape--would plainly establish probable cause for the
search, and the affidavit established probable cause to believe the triggering condition would be In addition to describing this triggering condition, the affidavit referred to two attachments, which
satisfied. Pp. 3-7. described Grubbs' residence and the items officers would seize. These attachments, but not the body of
the affidavit, were incorporated into the requested warrant. The affidavit concluded:
2. The warrant at issue did not violate the Fourth Amendment's particularity requirement. The
Amendment specifies only two matters that the warrant must "particularly describ[e]": "the place to be
searched" and "the persons or things to be seized." That language is decisive here; the particularity "Based upon the foregoing facts, I respectfully submit there exists probable cause to believe that the
requirement does not include the conditions precedent to execution of the warrant. Cf. Dalia v. United items set forth in Attachment B to this affidavit and the search warrant, will be found [at Grubbs'
States, 441 U. S. 238, 255, 257. Respondent's two policy rationales--that setting forth the triggering
condition in the warrant itself is necessary (1) to delineate the limits of the executing officer's power and residence], which residence is further described at Attachment A." Ibid.
(2) to allow the individual whose property is searched or seized to police the officer's conduct--find no
basis in either the Fourth Amendment or Federal Rule of Criminal Procedure 41. Pp. 7-9. The Magistrate Judge issued the warrant as requested. Two days later, an undercover postal inspector
delivered the package. Grubbs' wife signed for it and took the unopened package inside. The inspectors
377 F. 3d 1072 and 389 F. 3d 1306, reversed and remanded. detained Grubbs as he left his home a few minutes later, then entered the house and commenced the
search. Roughly 30 minutes into the search, Grubbs was provided with a copy of the warrant, which
Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, and Breyer, included both attachments but not the supporting affidavit that explained when the warrant would be
JJ.,joined, and in which Stevens, Souter, and Ginsburg, J., joined as to Parts I and II. Souter, J., filed an executed. Grubbs consented to interrogation by the postal inspectors and admitted ordering the
videotape. He was placed under arrest, and various items were seized, including the videotape.
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A grand jury for the Eastern District of California indicted Grubbs on one count of receiving a visual crime-related conversations will ensue."). Thus, when an anticipatory warrant is issued, "the fact that the
depiction of a minor engaged in sexually explicit conduct. See 18 U. S. C. §2252(a)(2). He moved to contraband is not presently located at the place described in the warrant is immaterial, so long as there
suppress the evidence seized during the search of his residence, arguing as relevant here that the is probable cause to believe that it will be there when the search warrant is executed." United
warrant was invalid because it failed to list the triggering condition. After an evidentiary hearing, the States v. Garcia, 882 F. 2d 699, 702 (CA2 1989) (quoting United States v. Lowe, 575 F. 2d 1193, 1194 (CA6
District Court denied the motion. Grubbs pleaded guilty, but reserved his right to appeal the denial of his 1978); internal quotation marks omitted).
motion to suppress.
Anticipatory warrants are, therefore, no different in principle from ordinary warrants. They require
The Court of Appeals for the Ninth Circuit reversed. 377 F. 3d 1072, amended, 389 F. 3d 1306 (2004). the magistrate to determine (1) that it is now probable that (2) contraband, evidence of a crime, or a
Relying on Circuit precedent, it held that "the particularity requirement of the Fourth Amendment fugitive will beon the described premises (3) when the warrant is executed. It should be noted, however,
applies with full force to the conditions precedent to an anticipatory search warrant." 377 F. 3d, at 1077- that where the anticipatory warrant places a condition (other than the mere passage of time) upon its
1078 (citing United States v. Hotal, 143 F. 3d 1223, 1226 (CA9 1998)). An anticipatory warrant defective execution, the first of these determinations goes not merely to what will probably be found if the
for that reason may be "cur[ed]" if the conditions precedent are set forth in an affidavit that is condition is met. (If that were the extent of the probability determination, an anticipatory warrant could
incorporated in the warrant and "presented to the person whose property is being searched." 377 F. 3d, be issued for every house in the country, authorizing search and seizure if contraband should be
at 1079. Because the postal inspectors "failed to present the affidavit--the only document in which the delivered--though for any single location there is no likelihood that contraband will be delivered.) Rather,
triggering conditions were listed"--to Grubbs or his wife, the "warrant was ... inoperative, and the search the probability determination for a conditioned anticipatory warrant looks also to the likelihood that the
was illegal." Ibid. We granted certiorari. 545 U. S. ___ (2005). condition will occur, and thus that a proper object of seizure will be on the described premises. In other
words, for a conditioned anticipatory warrant to comply with the Fourth Amendment's requirement of
II probable cause, two prerequisites of probability must be satisfied. It must be true not only that if the
triggering condition occurs "there is a fair probability that contraband or evidence of a crime will be
Before turning to the Ninth Circuit's conclusion that the warrant at issue here ran afoul of the Fourth found in a particular place," Gates, supra, at 238, but also that there is probable cause to believe the
Amendment's particularity requirement, we address the antecedent question whether anticipatory triggering condition will occur. The supporting affidavit must provide the magistrate with sufficient
search warrants are categorically unconstitutional.1 An anticipatory warrant is "a warrant based upon an information to evaluate both aspects of the probable-cause determination. See Garcia, supra, at 703.
affidavit showing probable cause that at some future time (but not presently) certain evidence of crime
will be located at a specified place." 2 W. LaFave, Search and Seizure §3.7(c), p. 398 (4th ed. 2004). Most In this case, the occurrence of the triggering condition--successful delivery of the videotape to Grubbs'
anticipatory warrants subject their execution to some condition precedent other than the mere passage residence--would plainly establish probable cause for the search. In addition, the affidavit established
of time--a so-called "triggering condition." The affidavit at issue here, for instance, explained that probable cause to believe the triggering condition would be satisfied. Although it is possible that Grubbs
"[e]xecution of th[e] search warrant will not occur unless and until the parcel [containing child could have refused delivery of the videotape he had ordered, that was unlikely. The Magistrate therefore
pornography] has been received by a person(s) and has been physically taken into the residence." App. "had a 'substantial basis for . . . conclud[ing]' that probable cause existed." Gates, 362 U. S. 257,
to Pet. for Cert. 72a. If the government were to execute an anticipatory warrant before the triggering 271 (1960)).
condition occurred, there would be no reason to believe the item described in the warrant could be
found at the searched location; by definition, the triggering condition which establishes probable cause III
has not yet been satisfied when the warrant is issued. Grubbs argues that for this reason anticipatory
warrants contravene the Fourth Amendment's provision that "no Warrants shall issue, but upon The Ninth Circuit invalidated the anticipatory search warrant at issue here because the warrant failed
probable cause." to specify the triggering condition. The Fourth Amendment's particularity requirement, it held, "applies
with full force to the conditions precedent to an anticipatory search warrant." 377 F. 3d, at 1077-1078.
We reject this view, as has every Court of Appeals to confront the issue, see, e.g., United States v. Loy,
191 F. 3d 360, 364 (CA3 1999) (collecting cases). Probable cause exists when "there is a fair probability The Fourth Amendment, however, does not set forth some general "particularity requirement." It
that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U. S. 213, specifies only two matters that must be "particularly describ[ed]" in the warrant: "the place to be
238(1983). Because the probable-cause requirement looks to whether evidence will be found when the searched" and "the persons or things to be seized." We have previously rejected efforts to expand the
search is conducted, all warrants are, in a sense, "anticipatory." In the typical case where the police seek scope of this provision to embrace unenumerated matters. In Dalia v. United States, 441 U. S.
permission to search a house for an item they believe is already located there, the magistrate's 238 (1979), we considered an order authorizing the interception of oral communications by means of a
determination that there is probable cause for the search amounts to a prediction that the item will still "bug" installed by the police in the petitioner's office. The petitioner argued that, if a covert entry is
be there when the warrant is executed. See People v. Glen, 30 N. Y. 2d 252, 258, 282 N. E. 2d 614, 617 necessary to install such a listening device, the authorizing order must "explicitly set forth its approval of
(1972) ("[P]resent possession is only probative of the likelihood of future possession.").2 The anticipatory such entries before the fact." Id., at 255. This argument fell before the " 'precise and clear' " words of the
nature of warrants is even clearer in the context of electronic surveillance. See, e.g., Katz v. United Fourth Amendment: "Nothing in the language of the Constitution or in this Court's decisions interpreting
States, 389 U. S. 347 (1967). When police request approval to tap a telephone line, they do so based on that language suggests that, in addition to the [requirements set forth in the text], search warrants also
the probability that, during the course of the surveillance, the subject will use the phone to engage in must include a specification of the precise manner in which they are to be executed." Id., at 255
crime-related conversations. The relevant federal provision requires a judge authorizing "interception of (quoting Stanford v. Texas, 379 U. S. 476, 481 (1965)), 257. The language of the Fourth Amendment is
wire, oral, or electronic communications" to determine that "there is probable cause for belief that likewise decisive here; its particularity requirement does not include the conditions precedent to
particular communications concerning [one of various listed offenses] will be obtained through such execution of the warrant.
interception." 18 U. S. C. §2518(3)(b) (emphasis added); see also United States v. Ricciardelli, 998 F. 2d 8,
11, n. 3 (CA1 1993) ("[T]he magistrate issues the warrant on the basis of a substantial probability that
3

Respondent, drawing upon the Ninth Circuit's analysis below, relies primarily on two related policy I agree with the Court that anticipatory warrants are constitutional for the reasons stated in Part II of
rationales. First, he argues, setting forth the triggering condition in the warrant itself is necessary "to the Court's opinion, and I join in the disposition of this case. But I would qualify some points made in Part
delineate the limits of the executing officer's power." Brief for Respondent 20. This is an application, III.
respondent asserts, of the following principle: "[I]f there is a precondition to the valid exercise of
executive power, that precondition must be particularly identified on the face of the warrant." Id., at 23. The Court notes that a warrant's failure to specify the place to be searched and the objects sought
That principle is not to be found in the Constitution. The Fourth Amendment does not require that the violates an express textual requirement of the Fourth Amendment, whereas the text says nothing about
warrant set forth the magistrate's basis for finding probable cause, even though probable cause is the a condition placed by the issuing magistrate on the authorization to search (here, delivery of the package
quintessential "precondition to the valid exercise of executive power." Much less does it require of contraband). That textual difference is, however, no authority for neglecting to specify the point or
description of a triggering condition. contingency intended by the magistrate to trigger authorization, and the government should beware of
banking on the terms of a warrant without such specification. The notation of a starting date was an
Second, respondent argues that listing the triggering condition in the warrant is necessary to established feature even of the objectionable 18th-century writs of assistance, see, e.g., Massachusetts
" 'assur[e] the individual whose property is searched or seized of the lawful authority of the executing Writs of Assistance Bill, 1762, reprinted in M. Smith, The Writs of Assistance Case 567-568 (1978); Writ of
officer, his need to search, and the limits of his power to search.' " Id., at 19 (quoting United Assistance (English) of George III, 1761, reprinted in id., at 524-527. And it is fair to say that the very
States v. Chadwick, 433 U. S. 1, 9(1977)). The Ninth Circuit went even further, asserting that if the word "warrant" in the Fourth Amendment means a statement of authority that sets out the time at
property owner were not informed of the triggering condition, he "would 'stand [no] real chance of which (or, in the case of anticipatory warrants, the condition on which) the authorization begins.**
policing the officers' conduct.' " 377 F. 3d, at 1079 (quoting Ramirez v. Butte-Silver Bow County, 298 F. 3d
1022, 1027 (CA9 2002)). This argument assumes that the executing officer must present the property An issuing magistrate's failure to mention that condition can lead to several untoward consequences
owner with a copy of the warrant before conducting his search. See 377 F. 3d, at 1079, n. 9. In fact, with constitutional significance. To begin with, a warrant that fails to tell the truth about what a
however, neither the Fourth Amendment nor Rule 41 of the Federal Rules of Criminal Procedure imposes magistrate authorized cannot inform the police officer's responsibility to respect the limits of
such a requirement. See Groh v. Ramirez, 540 U. S. 551, 562, n. 5 (2004). "The absence of a constitutional authorization, see Groh v. Ramirez, 540 U. S. 551, 560-563, 561, and n. 4 (2004), a failing assuming real
requirement that the warrant be exhibited at the outset of the search, or indeed until the search has significance when the warrant is not executed by the official who applied for it and happens to know the
ended, is ... evidence that the requirement of particular description does not protect an interest in unstated condition. The peril is that if an officer simply takes such a warrant on its face and makes the
monitoring searches." United States v. Stefonek, 179 F. 3d 1030, 1034 (CA7 1999) (citations omitted). The ostensibly authorized search before the unstated condition has been met, the search will be held
Constitution protects property owners not by giving them license to engage the police in a debate over unreasonable. It is true that we have declined to apply the exclusionary rule when a police officer
the basis for the warrant, but by interposing, ex ante, the "deliberate, impartial judgment of a judicial reasonably relies on the product of a magistrate's faulty judgment or sloppy practice,
officer . . . between the citizen and the police." Wong Sun v. United States, 371 U. S. 471, 481-482 (1963), see Massachusetts v. Sheppard, 468 U. S. 981, 987-991 (1984). But when a government officer obtains
and by providing, ex post, a right to suppress evidence improperly obtained and a cause of action for what the magistrate says is an anticipatory warrant, he must know or should realize when it omits the
damages. condition on which authorization depends, and it is hard to see why the government should not be held
to the condition despite the unconditional face of the warrant. Cf. Groh v. Ramirez, supra, at 554-555,
Because the Fourth Amendment does not require that the triggering condition for an anticipatory 563, and n. 6 (declaring unconstitutional a search conducted pursuant to a warrant failing to specify the
search warrant be set forth in the warrant itself, the Court of Appeals erred in invalidating the warrant at items the government asked the magistrate permission to seize in part because "officers leading a search
issue here. The judgment of the Court of Appeals is reversed, and the case is remanded for further team must 'make sure that they have a proper warrant that in fact authorizes the search and seizure
proceedings consistent with this opinion. they are about to conduct' " (brackets omitted)).

It is so ordered. Nor does an incomplete anticipatory warrant address an owner's interest in an accurate statement of
the government's authority to search property. To be sure, the extent of that interest is yet to be settled;
Justice Alito took no part in the consideration or decision of this case. in Groh v. Ramirez, supra, the Court was careful to note that the right of an owner to demand to see a
copy of the warrant before making way for the police had not been determined, id., at 562, n. 5, and it
remains undetermined today. But regardless of any right on the owner's part, showing an accurate
UNITED STATES, PETITIONER v. JEFFREY GRUBBS warrant reliably "assures the individual whose property is searched or seized of the lawful authority of
the executing officer, his need to search, and the limits of his power to search." United
on writ of certiorari to the united states court of States v. Chadwick, 433 U. S. 1, 9 (1977), quoted in Groh v. Ramirez, supra, at 561. And if a later case
appeals for the ninth circuit holds that the homeowner has a right to inspect the warrant on request, a statement of the condition of
authorization would give the owner a right to correct any misapprehension on the police's part that the
[March 21, 2006] condition had been met when in fact it had not been. If the police were then to enter anyway without a
reasonable (albeit incorrect) justification, the search would certainly be open to serious challenge as
unreasonable within the meaning of the Fourth Amendment.
Justice Souter, with whom Justice Stevens and Justice Ginsburg join, concurring in part and concurring
in the judgment.
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Oral argument: January 18, 2006 an undercover United States Postal Inspector. Grubbs allegedly sent the Inspector $45 in February of
2002 for the video.
Appealed from: United States Court of Appeals, Ninth Circuit
On April 17, 2002, Postal Inspector Gary Welsh applied to a magistrate judge for an anticipatory warrant
Anticipatory search warrants are used by law enforcement to gain permission to perform a search where to search Grubbs’ residence should Grubbs or anyone in the residence take possession of the video
the probable cause mandated by the Fourth Amendment does not yet exist. Instead, probable cause is following a controlled delivery by a team of Inspectors. Inspector Welsh filed a twenty-five page affidavit,
expected to materialize through the anticipated conduct of the suspect, such as when a suspect takes which set forth in two places the requirement that this “triggering condition” be met before the search
delivery of an illegal item or receives payment for an illegal act. Currently, there is a split between could be conducted. Unfortunately for the government, no such language appeared in the text of the
federal circuits as to how much information must be provided about a party against whom such a warrant itself as served at Grubb’s residence. The warrant did, however, refer to the affidavit generally.
warrant is served. In this case, the Ninth Circuit reiterated its position that the Fourth Amendment
requires the warrant to enumerate plainly the triggering event, just as it requires a particular description When the Inspector and his team delivered the video two days later, Grubbs’ wife accepted delivery of
of the place to be searched and persons or items to be seized. The Ninth Circuit believes anticipatory the package and took it into the house. A few minutes later, as Grubbs attempted to leave the residence,
warrants are particularly vulnerable to abuses of police power, and requiring the warrant to articulate Inspectors approached him and detained him. The rest of the team, ten officers in all, then arrived. At
the triggering event allows citizens to ensure that such searches are lawfully executed. The government some point, apparently before the search began in earnest, Grubbs allegedly told Inspector Welsh that
argues, and other Federal Courts of Appeal have agreed, that the Fourth Amendment contains no such what the officers were looking for was in the garage.
requirement, and the unique aspects of anticipatory warrants are adequately shielded from abuse by
existing probable cause requirements inherent in the warrant application process. Inspectors did not show the warrant to Grubbs until approximately half an hour after they initially
approached him, some time after his alleged statement about the garage. Additionally, no one showed
Questions Presented either Grubbs or his wife the affidavit containing the triggering language, nor did the Inspectors leave a
copy of the affidavit at the residence—they left just the warrant and the attachments detailing both the
Whether the Fourth Amendment requires suppression of evidence when officers conduct a search under place to be searched and the items to be seized. Inspector Welsh claims that his entire team read the
an anticipatory warrant after the warrant’s triggering condition is satisfied, but the triggering condition is affidavit prior to the search, and that they were aware of the required “triggering event.” He further
not set forth either in the warrant itself or in an affidavit that is both incorporated into the warrant and claims that he had a copy of the affidavit with him during the search of Grubbs’ residence. (That Grubbs
shown to the person whose property is being searched. and his wife never saw the affidavit is not in dispute).

Issues Grubbs pled guilty to one count of violating federal anti-child pornography laws for receiving the video.
However, his guilty plea was conditioned on the outcome of his motion to suppress the evidence of the
Anticipatory search warrants can only be executed after the occurrence of a “triggering event,” such as tape seized during the search. While the trial judge denied the motion on all three of the grounds alleged
when a suspect takes possession of contraband from an undercover agent. If that event occurs as by Grubbs, the Ninth Circuit found merit in his argument that the failure to present the affidavit
anticipated prior to the search, must the suspect receive notice of the triggering condition during the containing the triggering condition rendered the search illegal under the Fourth Amendment. On appeal
search through express reference to the triggering event in the language of the warrant itself or in a by the United States, the Supreme Court granted certiorari to address the holding of the Ninth Circuit.
supporting affidavit accompanying the warrant?
Discussion
Facts
This case demonstrates the sort of situation that frustrates many Americans: a criminal defendant
The following Facts is derived from the United State’s Supreme Court Brief, see Brief of the United States caught receiving child pornography may be exonerated because of an investigator’s failure to meet a
as Petitioner, and the Ninth Circuit’s amended opinion, see United States v. Grubbs, 377 F.3d 1072 (9th technical requirement. While adequately aware of the dangers of unchecked police powers, many
Cir. 2004). Because of the procedural complexities detailed below, there has not yet been a trial to citizens express frustration when upholding constitutional rights involves suppressing damning evidence
determine the facts of this case. The reader should thus note that what follows are essentially the of a crime. Thus, the boundaries of police searches and the necessary prerequisites for conducting such
government’s allegations against Jeffrey Grubbs, and they may not ultimately prove to be the facts of searches remain a topic of tremendous interest to people from all walks of life—not just law
this case. enforcement personnel, lawyers, or would-be criminals. While it is difficult to muster sympathy for
Jeffrey Grubbs, it is easy to imagine the confusion and vulnerability we would feel should federal agents
On December 20, 2001, Jeffrey Grubbs allegedly contacted the operator of a website offering videos knock on our door one morning, search warrant in hand. Thus, the Court has always treated questions
depicting minors engaged in sex acts. A week later, he allegedly sent via email an order for a videotape about the propriety of police searches as central to protecting important constitutional rights, and not a
entitled “Lolita Mother and Daughter,” which was described on the website as depicting “a lovely young matter of quibbling over “formalities.” See McDonald v. United States, 335 US 451, 455 (1948).
girl”—“If she’s over 10 I’d be shocked”—engaged in sex acts with “Mom.” The website was operated by
5

The Supreme Court most recently had an opportunity to address the mandates of the Fourth also that the required triggering event has occurred. Other courts, and the United States as Petitioner,
Amendment in Groh v. Ramirez.540 U.S. 551 (2004). In Groh, the Court noted that the Fourth believe that function is adequately addressed by the judicial branch in issuing the warrant conditioned
Amendment requires a search warrant to be particular about both the place to be searched and the on the occurrence and in scrutinizing the legality of such searches in litigation after the fact, and they see
persons or things to be seized. Id. at 557. The Court further insisted that the particularity occur in the no constitutional requirement vesting such a right in each and every citizen.
warrant itself and not in supporting documents. However, the Court explicitly stated that it was not
holding that “the Fourth Amendment forbids a warrant from cross-referencing other documents. Indeed, Analysis
most Courts of Appeal have held that a court may construe a warrant with reference to a supporting
application or affidavit if the warrant uses appropriate words of incorporation, and if the supporting The Fourth Amendment states that “no warrants shall issue, but upon probable cause, supported by
document accompanies the warrant.” Id. at 557–58. oath or affirmation, and particularly describing the place to be searched, and the persons or things to be
seized.” (Emphasis added.) The United States argues that because “triggering events” are not included in
The Ninth Circuit explicitly relied on this language in its Grubbs decision. It held thatbecause an affidavit the text of the Fourth Amendment, the amendment does not require that warrants describe them with
incorporated by a warrant does not meet the Fourth Amendment’s particularity requirement if the particularity. See Brief for Petitioner at 13.
affidavit is not shown to the party against whom the search is executed, Inspector Welsh’s warrant did
not meet the particularity requirement because the triggering condition was not shown to Grubbs. See In Groh v. Ramirez, the Supreme Court held that the particularity requirement must be met in the
United States v. Grubbs, 377 F.3d 1072, 1077-79 (9th Cir. 2004). Thus the warrant was invalid, the search warrant itself, or in a supporting affidavit referenced by the warrant and accompanying it. See 540 U.S.
was illegal, and evidence of the video tape was improperly allowed by the trial judge. 551, 557 (2004). The Court, however, only addressed the particularity requirement with respect to the
place to be searched and the persons or things to be seized. See id. In fact, the court explicitly stated that
In appealing to the Supreme Court, the United States essentially argues that the Ninth Circuit is wrong to its decision did not address whether the particularity requirement applied to other elements beyond
read the Fourth Amendment to require an investigator to list the triggering event in the warrant or those expressly stated in the Fourth Amendment (such as a triggering events). Id.
accompanying affidavits. See Brief for Petitioner at 13. The government notes that the particularity
discussed in Groh only pertains to the places to be searched and the persons or things to be seized. Id. It The Ninth Circuit, however, had previously held that the Fourth Amendment particularity requirement
argues that the Ninth Circuit was wrong to extend that requirement to triggering events in anticipatory did apply to triggering events. See United States v. Hotal, 143 F.3d 1223, 1227 (9th Cir. 1998). It thus
warrants. Id. Where the search occurred after the triggering event transpired as anticipated, the read the Groh decision to require that the triggering condition be particularly described in either the
government contends that the warrant meets the probable cause requirements of the Fourth warrant itself, or in a supporting affidavit referenced by the warrant and accompanying it. See id.
Amendment, and the particularity requirement is irrelevant as to the triggering event itself. Id. However, at least one other circuit had previously held that the particularity requirement did not apply
Moreover, the United States believes the Ninth Circuit was wrong to allow a policy judgment regarding to triggering events. See U.S. v. Hernandez-Rodriguez, 352 F.3d 1325, 1332 (10th Cir. 1999); see also, U.S.
the amount of information that must be given to the subject of a search to supplant the text of the v. Moetamedi, 46 F.3d 225, 229 (2d Cir. 1995) (citing cases apparently in contradiction to the Hotal rule
Fourth Amendment. from the 8th Circuit, and concurring with those cases).

Determining the requirements of the Fourth Amendment is essentially a question of constitutional The United States argues that the Fourth Amendment particularity requirement does not apply to
interpretation. In fact, this case demonstrates the limitations of interpreting the Constitution based on anything other than the place to be searched and the persons or things to be seized. See Brief for
the “Framers’ intent” (also called originalist constitutional interpretation). See, e.g., Jesse H. Choper et Petitioner at 13. It contends that Groh clearly articulates four requirements for the “Warrants Clause,”
al., Consitutional Law: Cases, Comments, Questions 394-98 (Ninth Ed. 2001) (discussing Roe v. Wade and that the Ninth Circuit has essentially created a fifth. See id. Because the Fourth Amendment is
from interpretivist and non-interpretivist perspectives). Often associated with judicial conservatism, specific as to what items must meet a particularity standard, the government contends that other
originalism seeks to interpret the Constitution based on the intentions of its drafters, and to limit the elements not so named do not fall under that requirement. Id. at 14.
rights enumerated in the Constitution to those expressly stated therein. Id. But, applying originalist
principles to problems not in existence when the Constitution was written is problematic. Not only did The United States seizes upon the Hotal decision as the weak link in the Ninth Circuit’s logic, and attacks
anticipatory warrants not exist at the time the Constitution was drafted, but today’s notion of a police that ruling as being based on policy considerations unsupported by the Constitution. Id. at 17. The
department (and, more generally, law enforcement), would have been a complete mystery to the government provides a Constitutional history of the concerns that led to the language of the Fourth
Framers. See Brief for Petitioner at 19, n8. Thus, arguments based on how the “founding fathers” Amendment, arguing that the problem feared by the drafters of the Constitution was general warrants,
intended Constitutional language to apply to modern controversies are often of limited value. which contained insufficient specificity as to the location and objectives of the search. Id. at 18. Since
anticipatory warrants did not exist, the government argues, the drafters of the Constitution could not
In the end, the question before the court is simply who is better positioned to monitor law enforcement possibly have sought to include specific requirements for them under the language of the Fourth
agencies when they are executing anticipatory warrants. The Ninth Circuit seems to believe that the Amendment. Id. The Ninth Circuit, however, believed that general concerns over the police power as
individual citizen has a constitutional right to perform this function by checking a warrant not only to be limited by the Fourth Amendment should apply especially to anticipatory warrants as a modern creation.
sure that it accurately and sufficiently describes the place to be searched and the items to be seized, but See United States v. Grubbs, 377 F.3d 1072, 1078 (9th Cir. 2004) (quoting Hotal).
6

The government also makes several “common sense” arguments. See Id. at 20-24. The first is that DISCUSSION:
providing additional information to parties being searched would encourage more confrontations with
law enforcement about the validity of the search at the time and place of its execution. Id. at 20–21. The  The Court held that anticipatory warrants were lawful and that the occurrence of the
triggering condition plainly established probable cause for the search.
proper place for such disputes, the government argues, is in litigation after the search has concluded. Id.
Another noteworthy argument is the United States’ assertion that anticipatory warrants often occur with
 In addition, the affidavit established probable cause to believe the triggering condition would
more probable cause at the time of execution than “standard” warrants because of the occurrence of be satisfied since although it was possible that the defendant could have refused delivery of
the “triggering event.” Id. at 22–24. the videotape he had ordered, that was unlikely.

While Respondent Grubbs’ brief is currently not available, the government’s argument is predictably in
CONCLUSION
sharp contrast to the language of the Ninth Circuit. In its opinion below, that court stated that “a warrant
The judgment of the Court of Appeals for the Ninth Circuit was reversed, and the case was remanded for
conditioned on a future event presents a potential for abuse above and beyond that which exists in more
further proceedings.
traditional settings.” 377 F.3d at 1078. “The only way effectively to safeguard against unreasonable and
unbounded searches,” the opinion reasons, is the “[a]pplication of a particularity requirement.” Id. The
United States essentially argues that those safeguards are best left to the courts through the dual
process of the issuing of the warrant and resolving any disputes over its validity through post-seizure
litigation. Brief for Petitioner at 14–15, 20. Those safeguards address probable cause and not
particularity. Id.

Conclusion

The Court appears poised to determine whether the Fourth Amendment requires—or even allows for—
an enumeration of the triggering event in the language of an anticipatory warrant or accompanying
documents, shown to the party against whom such a warrant is executed. Since a strictly originalist
reading of the Amendment might begin and end by simply noting that the Constitution creates only two
particularity requirements, the Ninth Circuit reached its verdict by reaching beyond the plain language of
the Fourth Amendment and identifying important concerns about the abuse of police power. The
Supreme Court must weigh these policy concerns and consider whether they are adequately addressed
by the Fourth Amendment’s probable cause requirements. In so deciding, the Court should provide
sufficient guidance to resolve the current split among the Federal Circuit Courts of Appeal.

CASE SYNOPSIS:

Defendant pled guilty to one count of receiving a visual depiction of a minor engaged in sexually explicit
conduct, 18 U.S.C.S. § 2252(a)(2), but appealed the denial of his motion to suppress the evidence seized
during the search of his residence. The United States Court of Appeals for the Ninth Circuit ruled that the
search was illegal since a triggering condition was not listed in the warrant. Certiorari was granted.

CASE FACTS:

Defendant purchased a videotape containing child pornography from a Web site operated by an
undercover postal inspector. Postal inspection officers arranged a controlled delivery of a package
containing the videotape to defendant's residence. A postal inspector submitted a search warrant
application to a magistrate judge accompanied by an affidavit describing the proposed operation in
detail. The magistrate judge issued the warrant on the basis of an affidavit explaining that the warrant
would be executed only after the controlled delivery, but that triggering condition was not listed in the
warrant.
7

FIRST DIVISION In an Order17 dated July 23, 2009, the Manila-RTC granted the motion of Laud "after a careful
consideration [of] the grounds alleged [therein]." Aside from this general statement, the said Order
contained no discussion on the particular reasons from which the Manila-RTC derived its conclusion.
G.R. No. 199032 November 19, 2014

Respondent, the People of the Philippines (the People), filed a Motion for Reconsideration18 which was,
RETIRED SP04 BIENVENIDO LAUD, Petitioner,
however, denied in an Order19 dated December 8, 2009, wherein the Manila-RTC, this time, articulated
vs.
its reasons for the warrant’s quashal, namely: (a) the People failed to show any compelling reason to
PEOPLE OF THE PHILIPPINES, Respondent.
justify the issuanceof a search warrant by the Manila RTC which was to be implemented in Davao City
where the offense was allegedly committed, in violation of Section 2, Rule 126 of the Rules of Court;20 (b)
DECISION the fact that the alleged offense happened almost four (4) years before the search warrant application
was filed rendered doubtful the existence of probable cause;21 and (c) the applicant, i.e., the PNP,
PER CURIAM: violated the rule against forum shopping as the subject matter of the present search warrant application
is exactly the sameas the one contained in a previous application22 before the RTC of Davao City, Branch
15 (Davao-RTC) which had been denied.23
Assailed in this petition for review on certiorari1 are the Decision2 dated April 25, 2011 and the
Resolution3 dated October 17, 2011 of the Court of Appeals (CA) in CA-G.R. SP. No. 113017 upholding the
validity of Search Warrant No. 09-14407.4 Unconvinced, the People filed a petition for certioraribefore the CA, docketed as CA-G.R. SP. No. 113017.

The Facts The CA Ruling

On July 10, 2009, the Philippine National Police (PNP), through Police Senior Superintendent Roberto B. In a Decision24 dated April 25, 2011, the CA granted the People’s petition and thereby annulled and set
Fajardo, applied with the Regional Trial Court (RTC) of Manila, Branch50 (Manila-RTC) for a warrant to aside the Orders of the Manila-RTC for having been tainted with grave abuse of discretion.
search three (3) caves located inside the Laud Compound in Purok 3, Barangay Ma-a, Davao City, where
the alleged remains of the victims summarily executed by the so-called "Davao Death Squad" may be It held that the requirements for the issuance of a search warrant were satisfied, pointing out that an
found.5 In support of the application, a certain Ernesto Avasola (Avasola) was presented to the RTC and application therefor involving a heinous crime, such as Murder, is an exception to the compelling reasons
there testified that he personally witnessed the killing of six (6) persons in December 2005, and was, in requirement under Section 2, Rule 126 of the Rules of Court as explicitly recognized in A.M. No. 99-20-
fact, part of the group that buried the victims.6 09-SC25 and reiterated in A.M. No. 03-8-02-SC,26 provided that the application is filed by the PNP, the
National Bureau of Investigation (NBI), the Presidential Anti-Organized Crime Task Force (PAOC-TF) or
Judge William Simon P. Peralta (Judge Peralta), acting as Vice Executive Judge of the Manila-RTC, found the Reaction Against Crime Task Force (REACT-TF),27with the endorsement of its head, before the RTC of
probable cause for the issuance of a search warrant, and thus, issued Search Warrant No. 09- Manila or Quezon City, and the warrant be consequently issued by the Executive Judge or Vice-Executive
144077 which was later enforced by the elements ofthe PNP-Criminal Investigation and Detection Group, Judge of either of the said courts, as in this case.28
in coordination withthe members of the Scene of the Crime Operatives on July 15, 2009.The search of
the Laud Compound caves yielded positive results for the presence of human remains.8 Also, the CA found that probable cause was established since, among others, witness Avasola deposed
and testified that he personally witnessed the murder of six (6) persons in December 2005 and was
On July 20, 2009, herein petitioner, retired SPO4 Bienvenido Laud (Laud), filed an Urgent Motion to actually part of the group that buried the victims – two bodies in each of the three (3) caves.29 Further, it
Quash and to Suppress Illegally Seized Evidence9 premised on the following grounds: (a) Judge Peralta observed that the Manila-RTC failed to consider the fear of reprisal and natural reluctance of a witness
had no authority to act on the application for a search warrant since he had been automatically divested to get involved in a criminal case, stating that these are sufficient reasons to justify the delay attending
of his position asVice Executive Judge when several administrative penalties were imposed against him the application of a search warrant.30 Accordingly, it deemed that the physical evidence of a protruding
by the Court;10 (b) the Manila-RTC had no jurisdiction to issue Search Warrant No. 09-14407 which was human bone in plain view in one of the caves, and Avasola’s first-hand eye witness account both concur
to be enforced in Davao City;11 (c) the human remains sought to be seized are not a proper subject of a and point to the only reasonable conclusion that the crime ofMurder had been committed and that the
search warrant;12 (d) the police officers are mandated to follow the prescribed procedure for exhumation human remains of the victims were located in the Laud Compound.31
of human remains;13 (e) the search warrant was issued despite lack of probable cause;14 (f) the rule
against forum shopping was violated;15 and (g) there was a violation of the rule requiring one specific Finally, the CA debunked the claim of forum shopping, finding that the prior application for a search
offense and the proper specification of the place to be searched and the articles to be seized.16 warrant filed before the Davao-RTC was based on facts and circumstances different from those in the
application filed before the Manila-RTC.32
The Manila-RTC Ruling
Dissatisfied, Laud moved for reconsideration which was, however, denied in a Resolution33 dated
October 17, 2011,hence, this petition.
8

The Issues Before the Court In order for the de facto doctrine to apply, all of the following elements must concur: (a) there must be a
de jureoffice; (b) there must be color of right or general acquiescence by the public; and (c) there must
be actual physical possession of the office in good faith.41
The issues for the Court’s resolution are as follows: (a) whether the administrative penalties imposed on
Judge Peralta invalidated Search Warrant No. 09-14407; (b) whether the Manila-RTC had jurisdiction to
issue the said warrant despite non-compliance with the compelling reasons requirement under Section The existence of the foregoing elements is rather clear in this case. Undoubtedly, there is a de jureoffice
2, Rule126 of the Rules of Court; (c) whether the requirements of probable cause and particular of a 2nd Vice-Executive Judge. Judge Peralta also had a colorable right to the said office as he was duly
description were complied with and the one-specific-offense rule under Section 4, Rule 126 of the Rules appointed to such position and was only divested of the same by virtue of a supervening legal
of Court was violated; and (d) whether the applicant for the search warrant,i.e., the PNP, violated the technicality – that is, the operation of Section 5, Chapter III of A.M. No. 03-8-02-SC as above-explained;
rule against forum shopping.1âwphi1 also, it may be said that there was general acquiescence by the public since the search warrant
application was regularly endorsed to the sala of Judge Peralta by the Office of the Clerk of Court of the
Manila-RTC under his apparent authority as 2nd Vice Executive Judge.42Finally, Judge Peralta’s actual
The Court's Ruling
physical possession of the said office is presumed to bein good faith, as the contrary was not
established.43 Accordingly, Judge Peralta can be considered to have acted as a de factoofficer when he
The petition has no merit. issued Search Warrant No. 09-14407, hence, treated as valid as if it was issued by a de jureofficer
suffering no administrative impediment.
A. Effect of Judge Peralta’s Administrative Penalties.
B. Jurisdiction of the Manila-RTC to Issue Search Warrant No. 09- 14407; Exception to the Compelling
Citing Section 5, Chapter III of A.M. No. 03-8-02-SC which provides that "[t]he imposition upon an Reasons Requirement Under Section 2, Rule 126 of the Rules of Court.
Executive Judge or Vice-Executive Judge of an administrative penalty of at least a reprimand shall
automatically operate to divest him of his position as such,"Laud claims that Judge Peralta had no Section 12, Chapter V of A.M.No. 03-8-02-SC states the requirements for the issuance of search warrants
authority to act as Vice-Executive Judge and accordingly issue Search Warrant No. 09-14407 in view of in special criminal cases by the RTCs of Manilaand Quezon City. These special criminal cases pertain to
the Court’s Resolution in Dee C. Chuan & Sons, Inc. v. Judge Peralta34 wherein he was administratively those "involving heinous crimes, illegal gambling, illegal possession of firearms and ammunitions, as well
penalized with fines of ₱15,000.00 and ₱5,000.00.35 as violations of the Comprehensive Dangerous Drugs Act of 2002, the Intellectual Property Code, the
Anti-Money Laundering Act of 2001, the Tariff and Customs Code, as amended, and other relevant laws
While the Court does agree that the imposition of said administrative penalties did operate to divest that may hereafter be enacted by Congress, and included herein by the Supreme Court." Search warrant
Judge Peralta’s authority to act as ViceExecutive Judge, it must be qualified thatthe abstraction of such applications for such cases may befiled by "the National Bureau of Investigation (NBI), the Philippine
authority would not, by and of itself, result in the invalidity of Search Warrant No. 09-14407 considering National Police(PNP) and the AntiCrime Task Force (ACTAF)," and "personally endorsed by the heads of
that Judge Peralta may be considered to have made the issuance as a de facto officer whose acts would, such agencies." As in ordinary search warrant applications, they "shall particularly describe therein the
nonetheless, remain valid. places to be searched and/or the property or things to be seized as prescribed in the Rules of Court."
"The Executive Judges [of these RTCs] and,whenever they are on official leave of absence or are not
physically present in the station, the Vice-Executive Judges" are authorized to act on such applications
Funa v. Agra36 defines who a de factoofficer is and explains that his acts are just as valid for all purposes and "shall issue the warrants, if justified, which may be served in places outside the territorial jurisdiction
as those of a de jureofficer, in so far as the public or third persons who are interested therein are of the said courts."
concerned, viz.:

The Court observes that all the above-stated requirements were complied with in this case.
A de facto officer is one who derives his appointment from one having colorable authority to appoint, if
the office is an appointive office, and whose appointment is valid on its face. He may also be one who is
in possession of an office, and is discharging [his] duties under color of authority, by which is meant As the records would show, the search warrant application was filed before the Manila-RTC by the PNP
authority derived from an appointment, however irregular or informal, so that the incumbent is not a and was endorsed by its head, PNP Chief Jesus Ame Versosa,44 particularly describing the place to be
mere volunteer. Consequently, the acts of the de factoofficer are just as valid for all purposes as those of searched and the things to be seized (as will be elaborated later on) in connection with the heinous
a de jure officer, in so far as the public or third persons who are interested therein are concerned.37 crime of Murder.45 Finding probable cause therefor, Judge Peralta, in his capacity as 2nd Vice-Executive
Judge, issued Search Warrant No. 09-14407 which, as the rules state, may be served in places outside the
territorial jurisdiction of the said RTC.
The treatment of a de factoofficer’s acts is premised on the reality that third persons cannot always
investigate the right of one assuming to hold an important office and, as such, have a right to assume
that officials apparently qualified and in office are legally such.38 Public interest demands that acts of Notably, the fact that a search warrant application involves a "special criminal case" excludes it from the
persons holding, under color of title, an office created by a valid statute be, likewise, deemed valid compelling reason requirement under Section 2, Rule 126 of the Rules of Court which provides:
insofar as the public – as distinguished from the officer in question – is concerned.39 Indeed, it is far more
cogently acknowledged that the de factodoctrine has been formulated, not for the protection of the de SEC. 2. Court where application for search warrant shall be filed. — An application for search warrant
facto officer principally, but rather for the protection of the public and individuals who get involved in shall be filed with the following:
the official acts of persons discharging the duties of an office without being lawful officers.40
9

a) Any court within whose territorial jurisdiction a crime was committed. Q9-Who are these six (6) male victims who were killed and buried in the caves in December 2005 at
around 9:00 p.m.?
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 isknown, or any court A9-I heard Tatay Laud calling the names of the two victims when they were still alive as Pedro and Mario.
within the judicial region where the warrant shall be enforced. I don’t know the names of the other four victims.

However, if the criminal action has already been filed, the application shall only be made in the court Q10-What happened after Pedro, Mario and the other four victims were killed?
where the criminal action is pending. (Emphasis supplied)
A10-Tatay Laud ordered me and the six (6) killers to bring and bury equally the bodies inthe three caves.
As explicitly mentioned in Section 12, Chapter V of A.M. No. 03-8- 02-SC, the rule on search warrant We buried Pedro and Mario altogether in the first cave, located more or less 13 meters from the
applications before the Manila and Quezon City RTCs for the above-mentioned special criminal cases makeshift house of Tatay Laud, the other two victims in the second cave and the remaining two in the
"shall be an exception to Section 2 of Rule 126 of the Rules of Court." Perceptibly, the fact that a search third cave.
warrant is being applied for in connection with a special criminal case as above-classified already
presumes the existence of a compelling reason; hence, any statement to this effect would be super
Q11-How did you get there at Laud Compound in the evening of December 2005?
fluous and therefore should be dispensed with. By all indications, Section 12, Chapter V of A.M. No. 03-8-
02-SC allows the Manila and Quezon City RTCs to issue warrants to be servedin places outside their
territorial jurisdiction for as long as the parameters under the said section have been complied with, as A11-I was ordered by Tatay Laud to go [to] the place. I ran errands [for] him.46
in this case. Thus, on these grounds, the Court finds nothing defective in the preliminary issuance of
Search Warrant No. 09-14407. Perforce, the RTC-Manila should not have overturned it. Avasola’s statements in his deposition were confirmed during the hearing on July 10, 2009, where Judge
Peralta conducted the following examination:
C. Compliance with the Constitutional Requirements for the Issuance of Search Warrant No. 09-14407
and the One-SpecificOffense Rule Under Section 4, Rule 126 of the Rules of Court. Court: x x x Anong panandaan mo? Nandoon ka ba noong naghukay, nakatago o kasama ka?

In order to protect the people’s right against unreasonable searches and seizures, Section 2, Article III of Mr. Avasola: Kasama po ako sa pagbuhat ng mga tao, sir.
the 1987 Philippine Constitution (Constitution) provides that no search warrant shall issue except upon
probable causeto be determined personally by the judgeafter examination under oath or affirmation of
the complainant and the witnesses he may produce, and particularly describing the place to be searched Court: Mga ilang katao?
and the persons or things to be seized:
Mr. Avasola: Anim (6) po.
SEC. 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 Court: May mass grave ba na nahukay?
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 besearched and the persons or things to be seized. Mr. Avasola: May tatlong kweba po na maliliit yung isa malaki. x x x.47

Complementarily, Section 4, Rule 126 of the Rules of Court states that a search warrant shall not be Verily, the facts and circumstancesestablished from the testimony of Avasola, who was personally
issued except upon probable cause in connection with one specific offense: examined by Judge Peralta, sufficiently show that more likely than not the crime of Murder of six (6)
persons had been perpetrated and that the human remains in connection with the same are in the place
sought to be searched. In Santos v. Pryce Gases, Inc.,48 the Court explained the quantum of evidence
SEC. 4. Requisites for issuing search warrant. - A search warrant shall not issue except upon probable necessary to establish probable cause for a search warrant, as follows:
cause in connection with one specific offenseto 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 Probable cause for a search warrant is defined as such facts and circumstances which would lead a
Philippines. (Emphasis supplied) reasonably discrete 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 sought to be searched. A finding of
probable cause needs only torest on evidence showing that, more likely than not, a crime has been
In this case, the existence of probable cause for the issuance of Search Warrant No. 09-14407 is evident committed and that it was committed by the accused. Probable cause demands more than bare
from the first-hand account of Avasola who, in his deposition, stated that he personally witnessed the suspicion; it requires less than evidence which would justify conviction. The existence depends to a large
commission of the afore-stated crime and was, in fact, part of the group that buried the victims: degree upon the finding or opinion of the judge conducting the examination. However, the findings of
the judge should not disregard the facts before him nor run counter to the clear dictates of reason.49
10

In light of the foregoing, the Court finds that the quantum of proof to establish the existence of probable from place to place are deemed to be personal property. Considering that human remains can
cause had been met. That a "considerable length of time" attended the search warrant’s application generally be transported from place toplace, and considering further that they qualify under
from the crime’s commission does not, by and of itself, negate the veracity of the applicant’s claims or the phrase "subject of the offense" given that they prove the crime’s corpus delicti,56 it
the testimony of the witness presented. As the CA correctly observed, the delay may be accounted for by follows that they may be valid subjects of a search warrant under the above-cited criminal
a witness’s fear of reprisal and natural reluctance to get involved in a criminal case.50 Ultimately, in procedure provision. Neither does the Court agree with Laud’s contention that the term
determining the existence of probable cause, the facts and circumstances must be personally examined "human remains" is too all-embracing so as to subvert the particular description requirement.
by the judge in their totality, together with a judicious recognition of the variable complications and Asthe Court sees it, the description points to no other than the things that bear a direct
sensibilities attending a criminal case. To the Court’s mind, the supposed delay in the search warrant’s relation to the offense committed, i.e., of Murder. It is also perceived that the description is
application does not dilute the probable cause finding made herein. In fine, the probable cause already specific as the circumstances would ordinarily allow given that the buried bodies
requirement has been sufficiently met. would have naturally decomposed over time. These observations on the description’s
sufficient particularity square with the Court’s pronouncement in Bache and Co., (Phil.), Inc. v.
Judge Ruiz,57 wherein it was held:
The Court similarly concludes that there was compliance with the constitutional requirement that there
be a particular description of "the place to be searched and the persons or things to be seized."
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(People v. Rubio, 57 Phil. 384 [1932]); or
"[A] description of a place to be searched is sufficient if the officer with the warrant can, with reasonable
when the description expresses a conclusion of fact — not of law — by which the warrant officer may be
effort, ascertain and identify the place intended and distinguish it from other places in the community.
guided in making the search and seizure (idem., dissent of Abad Santos, J.); or when the things described
Any designation or description known to the locality that points out the place to the exclusion of all
are limited to those which bear direct relation to the offense for which the warrant is being issued(Sec.
others, and on inquiry leads the officers unerringly to it, satisfies the constitutional requirement."51
2, Rule 126, Revised Rules of Court) x x x If the articles desired to be seized have any direct relation to an
offense committed, the applicant must necessarily have some evidence, other than those articles, to
Search Warrant No. 09-14407 evidently complies with the foregoing standard since it particularly prove the said offense; and the articles subject of search and seizure should come in handy merely to
describes the place to be searched, namely, the three (3) caves located inside the Laud Compound in strengthen such evidence. (Emphases supplied)58
Purok 3, Barangay Maa, Davao City:
Consequently, the Court finds that the particular description requirement – both as to the place to be
You are hereby commanded to makean immediate search at any time [of] the day of the premises above searched and the things to be seized – had been complied with.
describe[d] particularly the three (3) caves (as sketched) inside the said Laud Compound, Purok 3, Brgy.
Ma-a, Davao Cityand forthwith seize and take possession of the remains of six (6) victims who were killed
Finally, the Court finds no violation of the one-specific-offense rule under Section 4, Rule 126 of the
and buried in the just said premises.
Rules of Court as above-cited which, to note, was intended to prevent the issuance of scattershot
warrants, or those which are issued for more than one specific offense. The defective nature of scatter-
For further guidance in its enforcement, the search warrant even made explicit reference to the shot warrants was discussed in the case of People v. CA59 as follows: There is no question that the search
sketch53 contained in the application. These, in the Court’s view, are sufficient enough for the officers to, warrant did not relate to a specific offense, in violation of the doctrine announced in Stonehill v. Diokno
with reasonable effort, ascertain and identify the place to be searched, which they in fact did. and of Section 3 [now, Section 4] of Rule 126 providing as follows:

The things to be seized were also particularly described, namely, the remains of six (6) victims who were SEC. 3. Requisites for issuing search warrant.— A search warrant shall not issue but upon probable cause
killed and buried in the aforesaid premises. Laud’s posturing that human remains are not "personal in connection with one specific offense to be determined personally by the judge after examination
property" and, hence, could not be the subject of a search warrant deserves scant consideration. Section under oath or affirmation of the complainant and the witnesses he may produce, and particularly
3, Rule 126 of the Rules of Court states: describing the place to be searched and the things to be seized. Significantly, the petitioner has not
denied this defect in the search warrant and has merely said that there was probable cause, omitting to
SEC. 3.Personal property to be seized. – A search warrant may be issued for the search and seizure of continue that it was in connection withone specific offense. He could not, of course, for the warrant was
personal property: a scatter-shot warrant that could refer, in Judge Dayrit’s own words, "to robbery, theft, qualified theft or
estafa." On this score alone, the search warrantwas totally null and void and was correctly declared to be
so by the very judge who had issued it.60
(a) Subject of the offense;

In Columbia Pictures, Inc. v. CA,61 the Court, however, settled that a search warrant that covers several
(b) Stolen or embezzled and other proceeds, or fruits of the offense; or counts of a certain specific offense does not violate the one-specific-offense rule, viz.:

(c) Used or intended to be used as the means of committing an offense. (Emphases supplied) That there were several counts of the offenseof copyright infringement and the search warrant
"Personal property" in the foregoing context actually refers to the thing’s mobility, and not to uncovered several contraband items in the form of pirated video tapes is not to be confused with the
its capacity to be owned or alienated by a particular person. Article416 of the Civil
Code,54 which Laud himself cites,55 states that in general, all things which can be transported
11

number of offenses charged. The search warrant herein issued does not violate the one-specific-offense
rule. (Emphasis supplied)62

Hence, given that Search Warrant No. 09-14407 was issued only for one specific offense – that is, of
Murder, albeit for six (6) counts – it cannot be said that Section 4, Rule 126 of the Rules of Court had
been violated.

That being said, the Court now resolves the last issue on forum shopping.

D. Forum Shopping.

There is forum shopping when a litigant repetitively avails of several judicial remedies in different courts,
simultaneously or successively, all substantially founded on the same transactions and the same
essential facts and circumstances, and all raising substantially the same issues either pending in or
already resolved adversely by some other court to increase his chances of obtaining a favorable decision
if not in one court, then in another.63

Forum shopping cannot be said to have been committed in this case considering the various points of
divergence attending the search warrant application before the Manila-RTC and that before the Davao-
RTC. For one, the witnesses presented in each application were different. Likewise, the application filed
in Manila was in connection with Murder, while the one in Davao did not specify any crime. Finally, and
more importantly, the places to be searched were different – that inManila sought the search of the
Laud Compound caves, while that in Davao was for a particular area in the Laud Gold Cup Firing Range.
There being no identity of facts and circumstances between the two applications, the ruleagainst forum
shopping was therefore not violated.

Thus, for all the above-discussed reasons, the Court affirms the CA Ruling which upheld the validity of
Search Warrant No. 09-14407.

WHEREFORE, the petition is DENIED. The Decision dated April 25, 2011 and the Resolution dated
October 17, 2011 of the Court of Appeals in CA-G.R. SP. No. 113017 are hereby AFFIRMED.

SO ORDERED.
12

LOS ANGELES COUNTY, CALIFORNIA, et al. v.MAX RETTELE et al. Rettele and Sadler were held at gunpoint for one to two minutes before Rettele was allowed to retrieve
a robe for Sadler. He was then permitted to dress. Rettele and Sadler left the bedroom within three to
on petition for writ of certiorari to the united states court of appeals for the ninth circuit four minutes to sit on the couch in the living room.

By that time the deputies realized they had made a mistake. They apologized to Rettele and Sadler,
No. 06–605.Decided May 21, 2007
thanked them for not becoming upset, and left within five minutes. They proceeded to the other house
the warrant authorized them to search, where they found three suspects. Those suspects were arrested
Per Curiam. and convicted.

Deputies of the Los Angeles County Sheriff’s Department obtained a valid warrant to search a house, but Rettele and Sadler, individually and as guardians ad litem for Hall, filed this §1983 suit against Los
they were unaware that the suspects being sought had moved out three months earlier. When the Angeles County, the Los Angeles County Sheriff’s Department, Deputy Watters, and other members of
deputies searched the house, they found in a bedroom two residents who were of a different race than the sheriff’s department. Respondents alleged petitioners violated their Fourth Amendment rights by
the suspects. The deputies ordered these innocent residents, who had been sleeping unclothed, out of obtaining a warrant in reckless fashion and conducting an unreasonable search and detention. The
bed. The deputies required them to stand for a few minutes before allowing them to dress. District Court held that the warrant was obtained by proper procedures and the search was reasonable.
It concluded in the alternative that anyFourth Amendment rights the deputies violated were not clearly
The residents brought suit under Rev. Stat. §1979, 42 U. S. C. §1983, naming the deputies and other established and that, as a result, the deputies were entitled to qualified immunity.
parties and accusing them of violating the Fourth Amendment right to be free from unreasonable
searches and seizures. The District Court granted summary judgment to all named defendants. The Court On appeal respondents did not challenge the validity of the warrant; they did argue that the deputies
of Appeals for the Ninth Circuit reversed, concluding both that the deputies violated the Fourth had conducted the search in an unreasonable manner. A divided panel of the Court of Appeals for the
Amendment and that they were not entitled to qualified immunity because a reasonable deputy would Ninth Circuit reversed in an unpublished opinion. 186Fed. Appx. 765 (2006). The majority held that
have stopped the search upon discovering that respondents were of a different race than the suspects
and because a reasonable deputy would not have ordered respondents from their bed. We grant the “because (1) no African-Americans lived in [respondents’] home; (2) [respondents], a Caucasian couple,
petition for certiorari and reverse the judgment of the Court of Appeals by this summary disposition. purchased the residence several months before the search and the deputies did not conduct an
ownership inquiry; (3) the African-American suspects were not accused of a crime that required an
I emergency search; and (4) [respondents] were ordered out of bed naked and held at gunpoint while the
deputies searched their bedroom for the suspects and a gun, we find that a reasonable jury could
From September to December 2001, Los Angeles County Sheriff’s Department Deputy Dennis Watters conclude that the search and detention were ‘unnecessarily painful, degrading, or prolonged,’ and
investigated a fraud and identity-theft crime ring. There were four suspects of the investigation. One had involved ‘an undue invasion of privacy,’ Franklin v. Foxworth, 31 F. 3d 873, 876 (9th Cir. 1994).”
registered a 9-millimeter Glock handgun. The four suspects were known to be African-Americans.
Turning to whether respondents’ Fourth Amendment rights were clearly established, the majority held
On December 11, Watters obtained a search warrant for two houses in Lancaster, California, where he that a reasonable deputy should have known the search and detention were unlawful.
believed he could find the suspects. The warrant authorized him to search the homes and three of the
suspects for documents and computer files. In support of the search warrant an affidavit cited various Judge Cowen dissented. In his view the deputies had authority to detain respondents for the duration of
sources showing the suspects resided at respondents’ home. The sources included Department of Motor the search and were justified in ordering respondents from their bed because weapons could have been
Vehicles reports, mailing address listings, an outstanding warrant, and an Internet telephone directory. concealed under the bedcovers. He also concluded that, assuming a constitutional violation, the law was
In this Court respondents do not dispute the validity of the warrant or the means by which it was not clearlyestablished.
obtained.
The Court of Appeals denied rehearing and rehearing en banc.
What Watters did not know was that one of the houses (the first to be searched) had been sold in
September to a Max Rettele. He had purchased the home and moved into it three months earlier with II
his girlfriend Judy Sadler and Sadler’s 17-year-old son Chase Hall. All three, respondents here, are Because respondents were of a different race than the suspects the deputies were seeking, the Court of
Caucasians. Appeals held that “[a]fter taking one look at [respondents], the deputies should have realized that
On the morning of December 19, Watters briefed six other deputies in preparation for the search of the [respondents] were not the subjects of the search warrant and did not pose a threat to the deputies’
houses. Watters informed them they would be searching for three African-American suspects, one of safety.” Ibid. We need not pause long in rejecting this unsound proposition. When the deputies ordered
whom owned a registered handgun. The possibility a suspect would be armed caused the deputies respondents from their bed, they had no way of knowing whether the African-American suspects were
concern for their own safety. Watters had not obtained special permission for a night search, so he could elsewhere in the house. The presence of some Caucasians in the residence did not eliminate the
not execute the warrant until 7 a.m. See Cal. Penal Code Ann. §1533 (West 2000). Around 7:15 Watters possibility that the suspects lived there as well. As the deputies stated in their affidavits, it is not
and six other deputies knocked on the door and announced their presence. Chase Hall answered. The uncommon in our society for people of different races to live together. Just as people of different races
deputies entered the house after ordering Hall to lie face down on the ground. live and work together, so too might they engage in joint criminal activity. The deputies, who were
searching a house where they believed a suspect might be armed, possessed authority to secure the
The deputies’ announcement awoke Rettele and Sadler. The deputies entered their bedroom with guns premises before deciding whether to continue with the search.
drawn and ordered them to get out of their bed and to show their hands. They protested that they were
not wearing clothes. Rettele stood up and attempted to put on a pair of sweatpants, but deputies told In Michigan v. Summers, 452 U. S. 692 (1981) , this Court held that officers executing a search warrant
him not to move. Sadler also stood up and attempted, without success, to cover herself with a sheet. for contraband may “detain the occupants of the premises while a proper search is conducted.” Id., at
13

705. In weighing whether the search in Summers was reasonable the Court first found that “detention As respondents’ constitutional rights were not violated, “there is no necessity for further inquiries
represents only an incremental intrusion on personal liberty when the search of a home has been concerning qualified immunity.” Saucier v. Katz, 533 U. S. 194, 201 (2001) . The judgment of the Court of
authorized by a valid warrant.” Id., at 703. Against that interest, it balanced “preventing flight in the Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
event that incriminating evidence is found”; “minimizing the risk of harm to the officers”; and facilitating
“the orderly completion of the search.” Id., at 702–703; see Muehler v. Mena, 544 U. S. 93 (2005) . It is so ordered.

In executing a search warrant officers may take reasonable action to secure the premises and to ensure Justice Souter would deny the petition for a writ of certiorari.
their own safety and the efficacy of the search. Id., at 98–100; see also id., at 103 (Kennedy, J.,
concurring); Summers, supra, at 704–705. The test of reasonableness under the Fourth Amendment is an
objective one. Graham v. Connor, 490 U. S. 386, 397 (1989) (addressing the reasonableness of a seizure
of the person). Unreasonable actions include the use of excessive force or restraints that cause
LOS ANGELES COUNTY, CALIFORNIA, et al. v.MAX RETTELE et al.
unnecessary pain or are imposed for a prolonged and unnecessary period of time. Mena, supra, at
100; Graham, supra, at 396–399. on petition for writ of certiorari to the united states court of appeals for the ninth circuit
The orders by the police to the occupants, in the context of this lawful search, were permissible, and
perhaps necessary, to protect the safety of the deputies. Blankets and bedding can conceal a weapon, No. 06–605.Decided May 21, 2007
and one of the suspects was known to own a firearm, factors which underscore this point. The
Constitution does not require an officer to ignore the possibility that an armed suspect may sleep with a
Per Curiam.
weapon within reach. The reports are replete with accounts of suspects sleeping close to weapons.
See United States v. Enslin, 327 F. 3d 788, 791 (CA9 2003) (“When [the suspect] put his hands in the air Deputies of the Los Angeles County Sheriff’s Department obtained a valid warrant to search a house, but
and began to sit up, his movement shifted the covers and the marshals could see a gun in the bed next to they were unaware that the suspects being sought had moved out three months earlier. When the
him”); see also United States v. Jones, 336 F. 3d 245, 248 (CA3 2003) (suspect kept a 9-millimeter Luger deputies searched the house, they found in a bedroom two residents who were of a different race than
under his pillow while he slept); United States v. Hightower, 96 F. 3d 211 (CA7 1996) (suspect kept a the suspects. The deputies ordered these innocent residents, who had been sleeping unclothed, out of
loaded five-shot handgun under his pillow); State v. Willis, 36,759–KA, p. 3 (La. App. 4/9/03), 843 So. 2d bed. The deputies required them to stand for a few minutes before allowing them to dress.
592, 595 (officers “pulled back the bed covers and found a .38 caliber Model 10 Smith and Wesson
revolver located near where defendant’s left hand had been”); State v. Kypreos, 115 Wash. App. 207, 61 The residents brought suit under Rev. Stat. §1979, 42 U. S. C. §1983, naming the deputies and other
P. 3d 352 (2002) (suspect kept a handgun in the bed). parties and accusing them of violating the Fourth Amendment right to be free from unreasonable
searches and seizures. The District Court granted summary judgment to all named defendants. The Court
The deputies needed a moment to secure the room and ensure that other persons were not close by or of Appeals for the Ninth Circuit reversed, concluding both that the deputies violated the Fourth
did not present a danger. Deputies were not required to turn their backs to allow Rettele and Sadler to Amendment and that they were not entitled to qualified immunity because a reasonable deputy would
retrieve clothing or to cover themselves with the sheets. Rather, “[t]he risk of harm to both the police have stopped the search upon discovering that respondents were of a different race than the suspects
and the occupants is minimized if the officers routinely exercise unquestioned command of the and because a reasonable deputy would not have ordered respondents from their bed. We grant the
situation.” Summers, 452 U. S., at 702–703. petition for certiorari and reverse the judgment of the Court of Appeals by this summary disposition.
This is not to say, of course, that the deputies were free to force Rettele and Sadler to remain motionless I
and standing for any longer than necessary. We have recognized that “special circumstances, or possibly
a prolonged detention” might render a search unreasonable. See id., at 705, n. 21. There is no accusation From September to December 2001, Los Angeles County Sheriff’s Department Deputy Dennis Watters
that the detention here was prolonged. The deputies left the home less than 15 minutes after arriving. investigated a fraud and identity-theft crime ring. There were four suspects of the investigation. One had
The detention was shorter and less restrictive than the 2- to 3-hour handcuff detention upheld in Mena. registered a 9-millimeter Glock handgun. The four suspects were known to be African-Americans.
See 544 U. S., at 100. And there is no allegation that the deputies prevented Sadler and Rettele from
On December 11, Watters obtained a search warrant for two houses in Lancaster, California, where he
dressing longer than necessary to protect their safety. Sadler was unclothed for no more than two
believed he could find the suspects. The warrant authorized him to search the homes and three of the
minutes, and Rettele for only slightly more time than that. Sadler testified that once the police were
suspects for documents and computer files. In support of the search warrant an affidavit cited various
satisfied that no immediate threat was presented, “they wanted us to get dressed and they were
sources showing the suspects resided at respondents’ home. The sources included Department of Motor
pressing us really fast to hurry up and get some clothes on.” Deposition of Judy Lorraine Sadler in No.
Vehicles reports, mailing address listings, an outstanding warrant, and an Internet telephone directory.
CV–0206262–RSWL (RNBX) (CD Cal., June 10, 2003), Doc. 26, Exh. 4, p. 55.
In this Court respondents do not dispute the validity of the warrant or the means by which it was
The Fourth Amendment allows warrants to issue on probable cause, a standard well short of absolute obtained.
certainty. Valid warrants will issue to search the innocent, and people like Rettele and Sadler
What Watters did not know was that one of the houses (the first to be searched) had been sold in
unfortunately bear the cost. Officers executing search warrants on occasion enter a house when
September to a Max Rettele. He had purchased the home and moved into it three months earlier with
residents are engaged in private activity; and the resulting frustration, embarrassment, and humiliation
his girlfriend Judy Sadler and Sadler’s 17-year-old son Chase Hall. All three, respondents here, are
may be real, as was true here. When officers execute a valid warrant and act in a reasonable manner to
Caucasians.
protect themselves from harm, however, the Fourth Amendmentis not violated.
14

On the morning of December 19, Watters briefed six other deputies in preparation for the search of the Because respondents were of a different race than the suspects the deputies were seeking, the Court of
houses. Watters informed them they would be searching for three African-American suspects, one of Appeals held that “[a]fter taking one look at [respondents], the deputies should have realized that
whom owned a registered handgun. The possibility a suspect would be armed caused the deputies [respondents] were not the subjects of the search warrant and did not pose a threat to the deputies’
concern for their own safety. Watters had not obtained special permission for a night search, so he could safety.” Ibid. We need not pause long in rejecting this unsound proposition. When the deputies ordered
not execute the warrant until 7 a.m. See Cal. Penal Code Ann. §1533 (West 2000). Around 7:15 Watters respondents from their bed, they had no way of knowing whether the African-American suspects were
and six other deputies knocked on the door and announced their presence. Chase Hall answered. The elsewhere in the house. The presence of some Caucasians in the residence did not eliminate the
deputies entered the house after ordering Hall to lie face down on the ground. possibility that the suspects lived there as well. As the deputies stated in their affidavits, it is not
uncommon in our society for people of different races to live together. Just as people of different races
The deputies’ announcement awoke Rettele and Sadler. The deputies entered their bedroom with guns live and work together, so too might they engage in joint criminal activity. The deputies, who were
drawn and ordered them to get out of their bed and to show their hands. They protested that they were searching a house where they believed a suspect might be armed, possessed authority to secure the
not wearing clothes. Rettele stood up and attempted to put on a pair of sweatpants, but deputies told premises before deciding whether to continue with the search.
him not to move. Sadler also stood up and attempted, without success, to cover herself with a sheet.
Rettele and Sadler were held at gunpoint for one to two minutes before Rettele was allowed to retrieve In Michigan v. Summers, 452 U. S. 692 (1981) , this Court held that officers executing a search warrant
a robe for Sadler. He was then permitted to dress. Rettele and Sadler left the bedroom within three to for contraband may “detain the occupants of the premises while a proper search is conducted.” Id., at
four minutes to sit on the couch in the living room. 705. In weighing whether the search in Summers was reasonable the Court first found that “detention
represents only an incremental intrusion on personal liberty when the search of a home has been
By that time the deputies realized they had made a mistake. They apologized to Rettele and Sadler, authorized by a valid warrant.” Id., at 703. Against that interest, it balanced “preventing flight in the
thanked them for not becoming upset, and left within five minutes. They proceeded to the other house event that incriminating evidence is found”; “minimizing the risk of harm to the officers”; and facilitating
the warrant authorized them to search, where they found three suspects. Those suspects were arrested “the orderly completion of the search.” Id., at 702–703; see Muehler v. Mena, 544 U. S. 93 (2005) .
and convicted.
In executing a search warrant officers may take reasonable action to secure the premises and to ensure
Rettele and Sadler, individually and as guardians ad litem for Hall, filed this §1983 suit against Los their own safety and the efficacy of the search. Id., at 98–100; see also id., at 103 (Kennedy, J.,
Angeles County, the Los Angeles County Sheriff’s Department, Deputy Watters, and other members of concurring); Summers, supra, at 704–705. The test of reasonableness under the Fourth Amendment is an
the sheriff’s department. Respondents alleged petitioners violated their Fourth Amendment rights by objective one. Graham v. Connor, 490 U. S. 386, 397 (1989) (addressing the reasonableness of a seizure
obtaining a warrant in reckless fashion and conducting an unreasonable search and detention. The of the person). Unreasonable actions include the use of excessive force or restraints that cause
District Court held that the warrant was obtained by proper procedures and the search was reasonable. unnecessary pain or are imposed for a prolonged and unnecessary period of time. Mena, supra, at
It concluded in the alternative that anyFourth Amendment rights the deputies violated were not clearly 100; Graham, supra, at 396–399.
established and that, as a result, the deputies were entitled to qualified immunity.
The orders by the police to the occupants, in the context of this lawful search, were permissible, and
On appeal respondents did not challenge the validity of the warrant; they did argue that the deputies perhaps necessary, to protect the safety of the deputies. Blankets and bedding can conceal a weapon,
had conducted the search in an unreasonable manner. A divided panel of the Court of Appeals for the and one of the suspects was known to own a firearm, factors which underscore this point. The
Ninth Circuit reversed in an unpublished opinion. 186Fed. Appx. 765 (2006). The majority held that Constitution does not require an officer to ignore the possibility that an armed suspect may sleep with a
“because (1) no African-Americans lived in [respondents’] home; (2) [respondents], a Caucasian couple, weapon within reach. The reports are replete with accounts of suspects sleeping close to weapons.
purchased the residence several months before the search and the deputies did not conduct an See United States v. Enslin, 327 F. 3d 788, 791 (CA9 2003) (“When [the suspect] put his hands in the air
ownership inquiry; (3) the African-American suspects were not accused of a crime that required an and began to sit up, his movement shifted the covers and the marshals could see a gun in the bed next to
emergency search; and (4) [respondents] were ordered out of bed naked and held at gunpoint while the him”); see also United States v. Jones, 336 F. 3d 245, 248 (CA3 2003) (suspect kept a 9-millimeter Luger
deputies searched their bedroom for the suspects and a gun, we find that a reasonable jury could under his pillow while he slept); United States v. Hightower, 96 F. 3d 211 (CA7 1996) (suspect kept a
conclude that the search and detention were ‘unnecessarily painful, degrading, or prolonged,’ and loaded five-shot handgun under his pillow); State v. Willis, 36,759–KA, p. 3 (La. App. 4/9/03), 843 So. 2d
involved ‘an undue invasion of privacy,’ Franklin v. Foxworth, 31 F. 3d 873, 876 (9th Cir. 1994).” Id., at 592, 595 (officers “pulled back the bed covers and found a .38 caliber Model 10 Smith and Wesson
766. revolver located near where defendant’s left hand had been”); State v. Kypreos, 115 Wash. App. 207, 61
P. 3d 352 (2002) (suspect kept a handgun in the bed).
Turning to whether respondents’ Fourth Amendment rights were clearly established, the majority held
that a reasonable deputy should have known the search and detention were unlawful. The deputies needed a moment to secure the room and ensure that other persons were not close by or
did not present a danger. Deputies were not required to turn their backs to allow Rettele and Sadler to
Judge Cowen dissented. In his view the deputies had authority to detain respondents for the duration of retrieve clothing or to cover themselves with the sheets. Rather, “[t]he risk of harm to both the police
the search and were justified in ordering respondents from their bed because weapons could have been and the occupants is minimized if the officers routinely exercise unquestioned command of the
concealed under the bedcovers. He also concluded that, assuming a constitutional violation, the law was situation.” Summers, 452 U. S., at 702–703.
not clearlyestablished.
This is not to say, of course, that the deputies were free to force Rettele and Sadler to remain motionless
The Court of Appeals denied rehearing and rehearing en banc. and standing for any longer than necessary. We have recognized that “special circumstances, or possibly
a prolonged detention” might render a search unreasonable. See id., at 705, n. 21. There is no accusation
II that the detention here was prolonged. The deputies left the home less than 15 minutes after arriving.
The detention was shorter and less restrictive than the 2- to 3-hour handcuff detention upheld in Mena.
See 544 U. S., at 100. And there is no allegation that the deputies prevented Sadler and Rettele from
15

dressing longer than necessary to protect their safety. Sadler was unclothed for no more than two On December 11, Watters obtained a search warrant for two houses in Lancaster, California, where he
minutes, and Rettele for only slightly more time than that. Sadler testified that once the police were believed he could find the suspects. The warrant authorized him to search the homes and three of the
satisfied that no immediate threat was presented, “they wanted us to get dressed and they were suspects for documents and computer files. In support of the search warrant an affidavit cited various
pressing us really fast to hurry up and get some clothes on.” Deposition of Judy Lorraine Sadler in No. sources showing the suspects resided at respondents’ home. The sources included Department of Motor
CV–0206262–RSWL (RNBX) (CD Cal., June 10, 2003), Doc. 26, Exh. 4, p. 55. Vehicles reports, mailing address listings, an outstanding warrant, and an Internet telephone directory.
In this Court respondents do not dispute the validity of the warrant or the means by which it was
The Fourth Amendment allows warrants to issue on probable cause, a standard well short of absolute obtained.
certainty. Valid warrants will issue to search the innocent, and people like Rettele and Sadler
unfortunately bear the cost. Officers executing search warrants on occasion enter a house when What Watters did not know was that one of the houses (the first to be searched) had been sold in
residents are engaged in private activity; and the resulting frustration, embarrassment, and humiliation September to a Max Rettele. He had purchased the home and moved into it three months earlier with
may be real, as was true here. When officers execute a valid warrant and act in a reasonable manner to his girlfriend Judy Sadler and Sadler’s 17-year-old son Chase Hall. All three, respondents here, are
protect themselves from harm, however, the Fourth Amendmentis not violated. Caucasians.

As respondents’ constitutional rights were not violated, “there is no necessity for further inquiries On the morning of December 19, Watters briefed six other deputies in preparation for the search of the
concerning qualified immunity.” Saucier v. Katz, 533 U. S. 194, 201 (2001) . The judgment of the Court of houses. Watters informed them they would be searching for three African-American suspects, one of
Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. whom owned a registered handgun. The possibility a suspect would be armed caused the deputies
concern for their own safety. Watters had not obtained special permission for a night search, so he could
It is so ordered. not execute the warrant until 7 a.m. See Cal. Penal Code Ann. §1533 (West 2000). Around 7:15 Watters
Justice Souter would deny the petition for a writ of certiorari. and six other deputies knocked on the door and announced their presence. Chase Hall answered. The
deputies entered the house after ordering Hall to lie face down on the ground.

The deputies’ announcement awoke Rettele and Sadler. The deputies entered their bedroom with guns
drawn and ordered them to get out of their bed and to show their hands. They protested that they were
not wearing clothes. Rettele stood up and attempted to put on a pair of sweatpants, but deputies told
LOS ANGELES COUNTY, CALIFORNIA, et al. v.MAX RETTELE et al.
him not to move. Sadler also stood up and attempted, without success, to cover herself with a sheet.
on petition for writ of certiorari to the united states court of appeals for the ninth circuit Rettele and Sadler were held at gunpoint for one to two minutes before Rettele was allowed to retrieve
a robe for Sadler. He was then permitted to dress. Rettele and Sadler left the bedroom within three to
four minutes to sit on the couch in the living room.
No. 06–605.Decided May 21, 2007
By that time the deputies realized they had made a mistake. They apologized to Rettele and Sadler,
thanked them for not becoming upset, and left within five minutes. They proceeded to the other house
Per Curiam.
the warrant authorized them to search, where they found three suspects. Those suspects were arrested
Deputies of the Los Angeles County Sheriff’s Department obtained a valid warrant to search a house, but and convicted.
they were unaware that the suspects being sought had moved out three months earlier. When the
Rettele and Sadler, individually and as guardians ad litem for Hall, filed this §1983 suit against Los
deputies searched the house, they found in a bedroom two residents who were of a different race than
Angeles County, the Los Angeles County Sheriff’s Department, Deputy Watters, and other members of
the suspects. The deputies ordered these innocent residents, who had been sleeping unclothed, out of
the sheriff’s department. Respondents alleged petitioners violated their Fourth Amendment rights by
bed. The deputies required them to stand for a few minutes before allowing them to dress.
obtaining a warrant in reckless fashion and conducting an unreasonable search and detention. The
The residents brought suit under Rev. Stat. §1979, 42 U. S. C. §1983, naming the deputies and other District Court held that the warrant was obtained by proper procedures and the search was reasonable.
parties and accusing them of violating the Fourth Amendment right to be free from unreasonable It concluded in the alternative that anyFourth Amendment rights the deputies violated were not clearly
searches and seizures. The District Court granted summary judgment to all named defendants. The Court established and that, as a result, the deputies were entitled to qualified immunity.
of Appeals for the Ninth Circuit reversed, concluding both that the deputies violated the Fourth
On appeal respondents did not challenge the validity of the warrant; they did argue that the deputies
Amendment and that they were not entitled to qualified immunity because a reasonable deputy would
had conducted the search in an unreasonable manner. A divided panel of the Court of Appeals for the
have stopped the search upon discovering that respondents were of a different race than the suspects
Ninth Circuit reversed in an unpublished opinion. 186Fed. Appx. 765 (2006). The majority held that
and because a reasonable deputy would not have ordered respondents from their bed. We grant the
petition for certiorari and reverse the judgment of the Court of Appeals by this summary disposition. “because (1) no African-Americans lived in [respondents’] home; (2) [respondents], a Caucasian couple,
purchased the residence several months before the search and the deputies did not conduct an
I
ownership inquiry; (3) the African-American suspects were not accused of a crime that required an
From September to December 2001, Los Angeles County Sheriff’s Department Deputy Dennis Watters emergency search; and (4) [respondents] were ordered out of bed naked and held at gunpoint while the
investigated a fraud and identity-theft crime ring. There were four suspects of the investigation. One had deputies searched their bedroom for the suspects and a gun, we find that a reasonable jury could
registered a 9-millimeter Glock handgun. The four suspects were known to be African-Americans. conclude that the search and detention were ‘unnecessarily painful, degrading, or prolonged,’ and
involved ‘an undue invasion of privacy,’ Franklin v. Foxworth, 31 F. 3d 873, 876 (9th Cir. 1994).”
16

Turning to whether respondents’ Fourth Amendment rights were clearly established, the majority held The deputies needed a moment to secure the room and ensure that other persons were not close by or
that a reasonable deputy should have known the search and detention were unlawful. did not present a danger. Deputies were not required to turn their backs to allow Rettele and Sadler to
retrieve clothing or to cover themselves with the sheets. Rather, “[t]he risk of harm to both the police
Judge Cowen dissented. In his view the deputies had authority to detain respondents for the duration of and the occupants is minimized if the officers routinely exercise unquestioned command of the
the search and were justified in ordering respondents from their bed because weapons could have been situation.” Summers, 452 U. S., at 702–703.
concealed under the bedcovers. He also concluded that, assuming a constitutional violation, the law was
not clearlyestablished. This is not to say, of course, that the deputies were free to force Rettele and Sadler to remain motionless
and standing for any longer than necessary. We have recognized that “special circumstances, or possibly
The Court of Appeals denied rehearing and rehearing en banc. a prolonged detention” might render a search unreasonable. See id., at 705, n. 21. There is no accusation
II that the detention here was prolonged. The deputies left the home less than 15 minutes after arriving.
The detention was shorter and less restrictive than the 2- to 3-hour handcuff detention upheld in Mena.
Because respondents were of a different race than the suspects the deputies were seeking, the Court of See 544 U. S., at 100. And there is no allegation that the deputies prevented Sadler and Rettele from
Appeals held that “[a]fter taking one look at [respondents], the deputies should have realized that dressing longer than necessary to protect their safety. Sadler was unclothed for no more than two
[respondents] were not the subjects of the search warrant and did not pose a threat to the deputies’ minutes, and Rettele for only slightly more time than that. Sadler testified that once the police were
safety.” Ibid. We need not pause long in rejecting this unsound proposition. When the deputies ordered satisfied that no immediate threat was presented, “they wanted us to get dressed and they were
respondents from their bed, they had no way of knowing whether the African-American suspects were pressing us really fast to hurry up and get some clothes on.” Deposition of Judy Lorraine Sadler in No.
elsewhere in the house. The presence of some Caucasians in the residence did not eliminate the CV–0206262–RSWL (RNBX) (CD Cal., June 10, 2003), Doc. 26, Exh. 4, p. 55.
possibility that the suspects lived there as well. As the deputies stated in their affidavits, it is not
uncommon in our society for people of different races to live together. Just as people of different races The Fourth Amendment allows warrants to issue on probable cause, a standard well short of absolute
live and work together, so too might they engage in joint criminal activity. The deputies, who were certainty. Valid warrants will issue to search the innocent, and people like Rettele and Sadler
searching a house where they believed a suspect might be armed, possessed authority to secure the unfortunately bear the cost. Officers executing search warrants on occasion enter a house when
premises before deciding whether to continue with the search. residents are engaged in private activity; and the resulting frustration, embarrassment, and humiliation
may be real, as was true here. When officers execute a valid warrant and act in a reasonable manner to
In Michigan v. Summers, 452 U. S. 692 (1981) , this Court held that officers executing a search warrant protect themselves from harm, however, the Fourth Amendmentis not violated.
for contraband may “detain the occupants of the premises while a proper search is conducted.” Id., at
705. In weighing whether the search in Summers was reasonable the Court first found that “detention As respondents’ constitutional rights were not violated, “there is no necessity for further inquiries
represents only an incremental intrusion on personal liberty when the search of a home has been concerning qualified immunity.” Saucier v. Katz, 533 U. S. 194, 201 (2001) . The judgment of the Court of
authorized by a valid warrant.” Id., at 703. Against that interest, it balanced “preventing flight in the Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
event that incriminating evidence is found”; “minimizing the risk of harm to the officers”; and facilitating It is so ordered.
“the orderly completion of the search.” Id., at 702–703; see Muehler v. Mena, 544 U. S. 93 (2005) .
Justice Souter would deny the petition for a writ of certiorari.
In executing a search warrant officers may take reasonable action to secure the premises and to ensure
their own safety and the efficacy of the search. Id., at 98–100; see also id., at 103 (Kennedy, J.,
concurring); Summers, supra, at 704–705. The test of reasonableness under the Fourth Amendment is an
objective one. Graham v. Connor, 490 U. S. 386, 397 (1989) (addressing the reasonableness of a seizure
of the person). Unreasonable actions include the use of excessive force or restraints that cause LOS ANGELES COUNTY, CALIFORNIA, et al. v.MAX RETTELE et al.
unnecessary pain or are imposed for a prolonged and unnecessary period of time. Mena, supra, at
100; Graham, supra, at 396–399. on petition for writ of certiorari to the united states court of appeals for the ninth circuit

The orders by the police to the occupants, in the context of this lawful search, were permissible, and
perhaps necessary, to protect the safety of the deputies. Blankets and bedding can conceal a weapon, No. 06–605.Decided May 21, 2007
and one of the suspects was known to own a firearm, factors which underscore this point. The
Constitution does not require an officer to ignore the possibility that an armed suspect may sleep with a Per Curiam.
weapon within reach. The reports are replete with accounts of suspects sleeping close to weapons.
See United States v. Enslin, 327 F. 3d 788, 791 (CA9 2003) (“When [the suspect] put his hands in the air Deputies of the Los Angeles County Sheriff’s Department obtained a valid warrant to search a house, but
and began to sit up, his movement shifted the covers and the marshals could see a gun in the bed next to they were unaware that the suspects being sought had moved out three months earlier. When the
him”); see also United States v. Jones, 336 F. 3d 245, 248 (CA3 2003) (suspect kept a 9-millimeter Luger deputies searched the house, they found in a bedroom two residents who were of a different race than
under his pillow while he slept); United States v. Hightower, 96 F. 3d 211 (CA7 1996) (suspect kept a the suspects. The deputies ordered these innocent residents, who had been sleeping unclothed, out of
loaded five-shot handgun under his pillow); State v. Willis, 36,759–KA, p. 3 (La. App. 4/9/03), 843 So. 2d bed. The deputies required them to stand for a few minutes before allowing them to dress.
592, 595 (officers “pulled back the bed covers and found a .38 caliber Model 10 Smith and Wesson
The residents brought suit under Rev. Stat. §1979, 42 U. S. C. §1983, naming the deputies and other
revolver located near where defendant’s left hand had been”); State v. Kypreos, 115 Wash. App. 207, 61
parties and accusing them of violating the Fourth Amendment right to be free from unreasonable
P. 3d 352 (2002) (suspect kept a handgun in the bed).
searches and seizures. The District Court granted summary judgment to all named defendants. The Court
of Appeals for the Ninth Circuit reversed, concluding both that the deputies violated the Fourth
17

Amendment and that they were not entitled to qualified immunity because a reasonable deputy would On appeal respondents did not challenge the validity of the warrant; they did argue that the deputies
have stopped the search upon discovering that respondents were of a different race than the suspects had conducted the search in an unreasonable manner. A divided panel of the Court of Appeals for the
and because a reasonable deputy would not have ordered respondents from their bed. We grant the Ninth Circuit reversed in an unpublished opinion. 186Fed. Appx. 765 (2006). The majority held that
petition for certiorari and reverse the judgment of the Court of Appeals by this summary disposition.
“because (1) no African-Americans lived in [respondents’] home; (2) [respondents], a Caucasian couple,
I purchased the residence several months before the search and the deputies did not conduct an
ownership inquiry; (3) the African-American suspects were not accused of a crime that required an
From September to December 2001, Los Angeles County Sheriff’s Department Deputy Dennis Watters emergency search; and (4) [respondents] were ordered out of bed naked and held at gunpoint while the
investigated a fraud and identity-theft crime ring. There were four suspects of the investigation. One had deputies searched their bedroom for the suspects and a gun, we find that a reasonable jury could
registered a 9-millimeter Glock handgun. The four suspects were known to be African-Americans. conclude that the search and detention were ‘unnecessarily painful, degrading, or prolonged,’ and
On December 11, Watters obtained a search warrant for two houses in Lancaster, California, where he involved ‘an undue invasion of privacy,’ Franklin v. Foxworth, 31 F. 3d 873, 876 (9th Cir. 1994).” Id., at
believed he could find the suspects. The warrant authorized him to search the homes and three of the 766.
suspects for documents and computer files. In support of the search warrant an affidavit cited various Turning to whether respondents’ Fourth Amendment rights were clearly established, the majority held
sources showing the suspects resided at respondents’ home. The sources included Department of Motor that a reasonable deputy should have known the search and detention were unlawful.
Vehicles reports, mailing address listings, an outstanding warrant, and an Internet telephone directory.
In this Court respondents do not dispute the validity of the warrant or the means by which it was Judge Cowen dissented. In his view the deputies had authority to detain respondents for the duration of
obtained. the search and were justified in ordering respondents from their bed because weapons could have been
concealed under the bedcovers. He also concluded that, assuming a constitutional violation, the law was
What Watters did not know was that one of the houses (the first to be searched) had been sold in not clearlyestablished.
September to a Max Rettele. He had purchased the home and moved into it three months earlier with
his girlfriend Judy Sadler and Sadler’s 17-year-old son Chase Hall. All three, respondents here, are The Court of Appeals denied rehearing and rehearing en banc.
Caucasians.
II
On the morning of December 19, Watters briefed six other deputies in preparation for the search of the
houses. Watters informed them they would be searching for three African-American suspects, one of Because respondents were of a different race than the suspects the deputies were seeking, the Court of
whom owned a registered handgun. The possibility a suspect would be armed caused the deputies Appeals held that “[a]fter taking one look at [respondents], the deputies should have realized that
concern for their own safety. Watters had not obtained special permission for a night search, so he could [respondents] were not the subjects of the search warrant and did not pose a threat to the deputies’
not execute the warrant until 7 a.m. See Cal. Penal Code Ann. §1533 (West 2000). Around 7:15 Watters safety.” Ibid. We need not pause long in rejecting this unsound proposition. When the deputies ordered
and six other deputies knocked on the door and announced their presence. Chase Hall answered. The respondents from their bed, they had no way of knowing whether the African-American suspects were
deputies entered the house after ordering Hall to lie face down on the ground. elsewhere in the house. The presence of some Caucasians in the residence did not eliminate the
possibility that the suspects lived there as well. As the deputies stated in their affidavits, it is not
The deputies’ announcement awoke Rettele and Sadler. The deputies entered their bedroom with guns uncommon in our society for people of different races to live together. Just as people of different races
drawn and ordered them to get out of their bed and to show their hands. They protested that they were live and work together, so too might they engage in joint criminal activity. The deputies, who were
not wearing clothes. Rettele stood up and attempted to put on a pair of sweatpants, but deputies told searching a house where they believed a suspect might be armed, possessed authority to secure the
him not to move. Sadler also stood up and attempted, without success, to cover herself with a sheet. premises before deciding whether to continue with the search.
Rettele and Sadler were held at gunpoint for one to two minutes before Rettele was allowed to retrieve
a robe for Sadler. He was then permitted to dress. Rettele and Sadler left the bedroom within three to In Michigan v. Summers, 452 U. S. 692 (1981) , this Court held that officers executing a search warrant
four minutes to sit on the couch in the living room. for contraband may “detain the occupants of the premises while a proper search is conducted.” Id., at
705. In weighing whether the search in Summers was reasonable the Court first found that “detention
By that time the deputies realized they had made a mistake. They apologized to Rettele and Sadler, represents only an incremental intrusion on personal liberty when the search of a home has been
thanked them for not becoming upset, and left within five minutes. They proceeded to the other house authorized by a valid warrant.” Id., at 703. Against that interest, it balanced “preventing flight in the
the warrant authorized them to search, where they found three suspects. Those suspects were arrested event that incriminating evidence is found”; “minimizing the risk of harm to the officers”; and facilitating
and convicted. “the orderly completion of the search.” Id., at 702–703; see Muehler v. Mena, 544 U. S. 93 (2005) .

Rettele and Sadler, individually and as guardians ad litem for Hall, filed this §1983 suit against Los In executing a search warrant officers may take reasonable action to secure the premises and to ensure
Angeles County, the Los Angeles County Sheriff’s Department, Deputy Watters, and other members of their own safety and the efficacy of the search. Id., at 98–100; see also id., at 103 (Kennedy, J.,
the sheriff’s department. Respondents alleged petitioners violated their Fourth Amendment rights by concurring); Summers, supra, at 704–705. The test of reasonableness under the Fourth Amendment is an
obtaining a warrant in reckless fashion and conducting an unreasonable search and detention. The objective one. Graham v. Connor, 490 U. S. 386, 397 (1989) (addressing the reasonableness of a seizure
District Court held that the warrant was obtained by proper procedures and the search was reasonable. of the person). Unreasonable actions include the use of excessive force or restraints that cause
It concluded in the alternative that anyFourth Amendment rights the deputies violated were not clearly unnecessary pain or are imposed for a prolonged and unnecessary period of time. Mena, supra, at
established and that, as a result, the deputies were entitled to qualified immunity. 100; Graham, supra, at 396–399.

The orders by the police to the occupants, in the context of this lawful search, were permissible, and
perhaps necessary, to protect the safety of the deputies. Blankets and bedding can conceal a weapon,
18

and one of the suspects was known to own a firearm, factors which underscore this point. The Per Curiam.
Constitution does not require an officer to ignore the possibility that an armed suspect may sleep with a
weapon within reach. The reports are replete with accounts of suspects sleeping close to weapons. Deputies of the Los Angeles County Sheriff’s Department obtained a valid warrant to search a house, but
See United States v. Enslin, 327 F. 3d 788, 791 (CA9 2003) (“When [the suspect] put his hands in the air they were unaware that the suspects being sought had moved out three months earlier. When the
and began to sit up, his movement shifted the covers and the marshals could see a gun in the bed next to deputies searched the house, they found in a bedroom two residents who were of a different race than
him”); see also United States v. Jones, 336 F. 3d 245, 248 (CA3 2003) (suspect kept a 9-millimeter Luger the suspects. The deputies ordered these innocent residents, who had been sleeping unclothed, out of
under his pillow while he slept); United States v. Hightower, 96 F. 3d 211 (CA7 1996) (suspect kept a bed. The deputies required them to stand for a few minutes before allowing them to dress.
loaded five-shot handgun under his pillow); State v. Willis, 36,759–KA, p. 3 (La. App. 4/9/03), 843 So. 2d The residents brought suit under Rev. Stat. §1979, 42 U. S. C. §1983, naming the deputies and other
592, 595 (officers “pulled back the bed covers and found a .38 caliber Model 10 Smith and Wesson parties and accusing them of violating the Fourth Amendment right to be free from unreasonable
revolver located near where defendant’s left hand had been”); State v. Kypreos, 115 Wash. App. 207, 61 searches and seizures. The District Court granted summary judgment to all named defendants. The Court
P. 3d 352 (2002) (suspect kept a handgun in the bed). of Appeals for the Ninth Circuit reversed, concluding both that the deputies violated the Fourth
The deputies needed a moment to secure the room and ensure that other persons were not close by or Amendment and that they were not entitled to qualified immunity because a reasonable deputy would
did not present a danger. Deputies were not required to turn their backs to allow Rettele and Sadler to have stopped the search upon discovering that respondents were of a different race than the suspects
retrieve clothing or to cover themselves with the sheets. Rather, “[t]he risk of harm to both the police and because a reasonable deputy would not have ordered respondents from their bed. We grant the
and the occupants is minimized if the officers routinely exercise unquestioned command of the petition for certiorari and reverse the judgment of the Court of Appeals by this summary disposition.
situation.” Summers, 452 U. S., at 702–703. I
This is not to say, of course, that the deputies were free to force Rettele and Sadler to remain motionless From September to December 2001, Los Angeles County Sheriff’s Department Deputy Dennis Watters
and standing for any longer than necessary. We have recognized that “special circumstances, or possibly investigated a fraud and identity-theft crime ring. There were four suspects of the investigation. One had
a prolonged detention” might render a search unreasonable. See id., at 705, n. 21. There is no accusation registered a 9-millimeter Glock handgun. The four suspects were known to be African-Americans.
that the detention here was prolonged. The deputies left the home less than 15 minutes after arriving.
The detention was shorter and less restrictive than the 2- to 3-hour handcuff detention upheld in Mena. On December 11, Watters obtained a search warrant for two houses in Lancaster, California, where he
See 544 U. S., at 100. And there is no allegation that the deputies prevented Sadler and Rettele from believed he could find the suspects. The warrant authorized him to search the homes and three of the
dressing longer than necessary to protect their safety. Sadler was unclothed for no more than two suspects for documents and computer files. In support of the search warrant an affidavit cited various
minutes, and Rettele for only slightly more time than that. Sadler testified that once the police were sources showing the suspects resided at respondents’ home. The sources included Department of Motor
satisfied that no immediate threat was presented, “they wanted us to get dressed and they were Vehicles reports, mailing address listings, an outstanding warrant, and an Internet telephone directory.
pressing us really fast to hurry up and get some clothes on.” Deposition of Judy Lorraine Sadler in No. In this Court respondents do not dispute the validity of the warrant or the means by which it was
CV–0206262–RSWL (RNBX) (CD Cal., June 10, 2003), Doc. 26, Exh. 4, p. 55. obtained.
The Fourth Amendment allows warrants to issue on probable cause, a standard well short of absolute What Watters did not know was that one of the houses (the first to be searched) had been sold in
certainty. Valid warrants will issue to search the innocent, and people like Rettele and Sadler September to a Max Rettele. He had purchased the home and moved into it three months earlier with
unfortunately bear the cost. Officers executing search warrants on occasion enter a house when his girlfriend Judy Sadler and Sadler’s 17-year-old son Chase Hall. All three, respondents here, are
residents are engaged in private activity; and the resulting frustration, embarrassment, and humiliation Caucasians.
may be real, as was true here. When officers execute a valid warrant and act in a reasonable manner to
protect themselves from harm, however, the Fourth Amendmentis not violated. On the morning of December 19, Watters briefed six other deputies in preparation for the search of the
houses. Watters informed them they would be searching for three African-American suspects, one of
As respondents’ constitutional rights were not violated, “there is no necessity for further inquiries whom owned a registered handgun. The possibility a suspect would be armed caused the deputies
concerning qualified immunity.” Saucier v. Katz, 533 U. S. 194, 201 (2001) . The judgment of the Court of concern for their own safety. Watters had not obtained special permission for a night search, so he could
Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. not execute the warrant until 7 a.m. See Cal. Penal Code Ann. §1533 (West 2000). Around 7:15 Watters
and six other deputies knocked on the door and announced their presence. Chase Hall answered. The
It is so ordered. deputies entered the house after ordering Hall to lie face down on the ground.
Justice Souter would deny the petition for a writ of certiorari. The deputies’ announcement awoke Rettele and Sadler. The deputies entered their bedroom with guns
drawn and ordered them to get out of their bed and to show their hands. They protested that they were
not wearing clothes. Rettele stood up and attempted to put on a pair of sweatpants, but deputies told
him not to move. Sadler also stood up and attempted, without success, to cover herself with a sheet.
Rettele and Sadler were held at gunpoint for one to two minutes before Rettele was allowed to retrieve
LOS ANGELES COUNTY, CALIFORNIA, et al. v.MAX RETTELE et al.
a robe for Sadler. He was then permitted to dress. Rettele and Sadler left the bedroom within three to
on petition for writ of certiorari to the united states court of appeals for the ninth circuit four minutes to sit on the couch in the living room.

By that time the deputies realized they had made a mistake. They apologized to Rettele and Sadler,
No. 06–605.Decided May 21, 2007 thanked them for not becoming upset, and left within five minutes. They proceeded to the other house
19

the warrant authorized them to search, where they found three suspects. Those suspects were arrested In executing a search warrant officers may take reasonable action to secure the premises and to ensure
and convicted. their own safety and the efficacy of the search. Id., at 98–100; see also id., at 103 (Kennedy, J.,
concurring); Summers, supra, at 704–705. The test of reasonableness under the Fourth Amendment is an
Rettele and Sadler, individually and as guardians ad litem for Hall, filed this §1983 suit against Los objective one. Graham v. Connor, 490 U. S. 386, 397 (1989) (addressing the reasonableness of a seizure
Angeles County, the Los Angeles County Sheriff’s Department, Deputy Watters, and other members of of the person). Unreasonable actions include the use of excessive force or restraints that cause
the sheriff’s department. Respondents alleged petitioners violated their Fourth Amendment rights by unnecessary pain or are imposed for a prolonged and unnecessary period of time. Mena, supra, at
obtaining a warrant in reckless fashion and conducting an unreasonable search and detention. The 100; Graham, supra, at 396–399.
District Court held that the warrant was obtained by proper procedures and the search was reasonable.
It concluded in the alternative that anyFourth Amendment rights the deputies violated were not clearly The orders by the police to the occupants, in the context of this lawful search, were permissible, and
established and that, as a result, the deputies were entitled to qualified immunity. perhaps necessary, to protect the safety of the deputies. Blankets and bedding can conceal a weapon,
and one of the suspects was known to own a firearm, factors which underscore this point. The
On appeal respondents did not challenge the validity of the warrant; they did argue that the deputies Constitution does not require an officer to ignore the possibility that an armed suspect may sleep with a
had conducted the search in an unreasonable manner. A divided panel of the Court of Appeals for the weapon within reach. The reports are replete with accounts of suspects sleeping close to weapons.
Ninth Circuit reversed in an unpublished opinion. 186Fed. Appx. 765 (2006). The majority held that See United States v. Enslin, 327 F. 3d 788, 791 (CA9 2003) (“When [the suspect] put his hands in the air
“because (1) no African-Americans lived in [respondents’] home; (2) [respondents], a Caucasian couple, and began to sit up, his movement shifted the covers and the marshals could see a gun in the bed next to
purchased the residence several months before the search and the deputies did not conduct an him”); see also United States v. Jones, 336 F. 3d 245, 248 (CA3 2003) (suspect kept a 9-millimeter Luger
ownership inquiry; (3) the African-American suspects were not accused of a crime that required an under his pillow while he slept); United States v. Hightower, 96 F. 3d 211 (CA7 1996) (suspect kept a
emergency search; and (4) [respondents] were ordered out of bed naked and held at gunpoint while the loaded five-shot handgun under his pillow); State v. Willis, 36,759–KA, p. 3 (La. App. 4/9/03), 843 So. 2d
deputies searched their bedroom for the suspects and a gun, we find that a reasonable jury could 592, 595 (officers “pulled back the bed covers and found a .38 caliber Model 10 Smith and Wesson
conclude that the search and detention were ‘unnecessarily painful, degrading, or prolonged,’ and revolver located near where defendant’s left hand had been”); State v. Kypreos, 115 Wash. App. 207, 61
involved ‘an undue invasion of privacy,’ Franklin v. Foxworth, 31 F. 3d 873, 876 (9th Cir. 1994).” Id., at P. 3d 352 (2002) (suspect kept a handgun in the bed).
766. The deputies needed a moment to secure the room and ensure that other persons were not close by or
Turning to whether respondents’ Fourth Amendment rights were clearly established, the majority held did not present a danger. Deputies were not required to turn their backs to allow Rettele and Sadler to
that a reasonable deputy should have known the search and detention were unlawful. retrieve clothing or to cover themselves with the sheets. Rather, “[t]he risk of harm to both the police
and the occupants is minimized if the officers routinely exercise unquestioned command of the
Judge Cowen dissented. In his view the deputies had authority to detain respondents for the duration of situation.” Summers, 452 U. S., at 702–703.
the search and were justified in ordering respondents from their bed because weapons could have been
concealed under the bedcovers. He also concluded that, assuming a constitutional violation, the law was This is not to say, of course, that the deputies were free to force Rettele and Sadler to remain motionless
not clearlyestablished. and standing for any longer than necessary. We have recognized that “special circumstances, or possibly
a prolonged detention” might render a search unreasonable. See id., at 705, n. 21. There is no accusation
The Court of Appeals denied rehearing and rehearing en banc. that the detention here was prolonged. The deputies left the home less than 15 minutes after arriving.
The detention was shorter and less restrictive than the 2- to 3-hour handcuff detention upheld in Mena.
II See 544 U. S., at 100. And there is no allegation that the deputies prevented Sadler and Rettele from
Because respondents were of a different race than the suspects the deputies were seeking, the Court of dressing longer than necessary to protect their safety. Sadler was unclothed for no more than two
Appeals held that “[a]fter taking one look at [respondents], the deputies should have realized that minutes, and Rettele for only slightly more time than that. Sadler testified that once the police were
[respondents] were not the subjects of the search warrant and did not pose a threat to the deputies’ satisfied that no immediate threat was presented, “they wanted us to get dressed and they were
safety.” Ibid. We need not pause long in rejecting this unsound proposition. When the deputies ordered pressing us really fast to hurry up and get some clothes on.” Deposition of Judy Lorraine Sadler in No.
respondents from their bed, they had no way of knowing whether the African-American suspects were CV–0206262–RSWL (RNBX) (CD Cal., June 10, 2003), Doc. 26, Exh. 4, p. 55.
elsewhere in the house. The presence of some Caucasians in the residence did not eliminate the The Fourth Amendment allows warrants to issue on probable cause, a standard well short of absolute
possibility that the suspects lived there as well. As the deputies stated in their affidavits, it is not certainty. Valid warrants will issue to search the innocent, and people like Rettele and Sadler
uncommon in our society for people of different races to live together. Just as people of different races unfortunately bear the cost. Officers executing search warrants on occasion enter a house when
live and work together, so too might they engage in joint criminal activity. The deputies, who were residents are engaged in private activity; and the resulting frustration, embarrassment, and humiliation
searching a house where they believed a suspect might be armed, possessed authority to secure the may be real, as was true here. When officers execute a valid warrant and act in a reasonable manner to
premises before deciding whether to continue with the search. protect themselves from harm, however, the Fourth Amendmentis not violated.
In Michigan v. Summers, 452 U. S. 692 (1981) , this Court held that officers executing a search warrant As respondents’ constitutional rights were not violated, “there is no necessity for further inquiries
for contraband may “detain the occupants of the premises while a proper search is conducted.” Id., at concerning qualified immunity.” Saucier v. Katz, 533 U. S. 194, 201 (2001) . The judgment of the Court of
705. In weighing whether the search in Summers was reasonable the Court first found that “detention Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
represents only an incremental intrusion on personal liberty when the search of a home has been
authorized by a valid warrant.” Id., at 703. Against that interest, it balanced “preventing flight in the It is so ordered.
event that incriminating evidence is found”; “minimizing the risk of harm to the officers”; and facilitating
“the orderly completion of the search.” Id., at 702–703; see Muehler v. Mena, 544 U. S. 93 (2005) . Justice Souter would deny the petition for a writ of certiorari.
20

CASE SYNOPSIS: HELD:

Respondent residents of a home brought an action against petitioners, sheriff's deputies, alleging that NO. The Court held that the search was reasonable under the circumstances.
the deputies unreasonably executed a search warrant for suspects who formerly lived at the home. When the deputies ordered respondents from their bed, they had no way of knowing whether the
Upon the grant of a writ of certiorari, the deputies appealed the judgment of the U.S. Court of Appeals African-American suspects were elsewhere in the house. The presence of some Caucasians in the
for the Ninth Circuit which held that the conduct alleged by the residents was unreasonable. residence did not eliminate the possibility that the suspects lived there as well. As the deputies stated in
their affidavits, it is not uncommon in our society for people of different races to live together. Just as
CASE FACTS: people of different races live and work together, so too might they engage in joint criminal activity. The
deputies, who were searching a house where they believed a suspect might be armed, possessed
The residents recently purchased the home and asserted that, although they were not the same race as authority to secure the premises before deciding whether to continue with the search.
the suspects being sought under the warrant, the deputies ordered the residents to get out of their bed
and remain unclothed until the deputies determined that the suspects were not present. Accordingly, the orders by the police to the occupants, in the context of this lawful search, were
permissible, and perhaps necessary, to protect the safety of the deputies. Blankets and bedding
DISCUSSION: can conceal a weapon, and one of the suspects was known to own a firearm, factors which underscore
this point. The Constitution does not require an officer to ignore the possibility that an armed suspect
 The U.S. Supreme Court held that the execution of the properly issued warrant by the may sleep with a weapon within reach.
deputies was not unreasonable.
Moreover, the deputies needed a moment to secure the room and ensure that other persons
 Regardless of the difference in race, when the residents were ordered from their bed the were not close by or did not present a danger. Deputies were not required to turn their backs to allow
deputies had no way of knowing whether the suspects were elsewhere in the home. Rettele and Sadler to retrieve clothing or to cover themselves with the sheets. Rather, "[t]he risk
 Further, one of the suspects was reported to be armed, and the deputies were justified in of harm to both the police and the occupants is minimized if the officers routinely exercise
ordering the residents from the bed, and refusing to allow them to dress for a brief period, in order to unquestioned command of the situation. In other words, when officers execute a valid warrant and act
insure that no weapons were concealed in the bedding or elsewhere. in a reasonable manner to protect themselves from harm, the Fourth Amendment is not violated.

CONCLUSION
The judgment holding that the search was unreasonable was reversed, and the case was remanded for
further proceedings.

FACTS:
Deputies of the Los Angeles County Sheriff's Department obtained a valid warrant to search two
houses, but they were unaware that the suspects–four African-Americans -being sought had
moved out three months earlier and the house has been sold to Rettle who Moved in there with his
girlfriend and her son – all Caucasians.

Accordingly, when the deputies made the search around 7:15 one
morning, they found in a bedroom two residents who were of a different race than the suspects.
The deputies ordered these innocent residents, who had been sleeping unclothed, out of bed. The
deputies required them to stand for a few minutes (about two minutes) before allowing them to dress.
The residents brought suit under Rev. Stat. §1979, 42 U.S.C. §1983, naming the deputies and
other parties and accusing them of violating the Fourth Amendment right to be free from unreasonable
searches and seizures. The District Court granted summary judgment to all named defendants.

The Court of Appeals for the Ninth Circuit reversed, concluding both that the deputies violated
the Fourth Amendment and that they were not entitled to qualified immunity because a reasonable de
puty would have stopped the search upon discovering that respondents were of a different race than
the suspects and because a reasonable deputy would not have ordered respondents from their bed.

ISSUE: Whether the search violates the Fourth Amendment on the right to be free from unreasonable
searches and seizures?
21

United States Supreme Court (1) The digital data stored on cell phones does not present either Chimel risk. Pp. 10-15.
RILEY v. CALIFORNIA, (2014)
(i) Digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to
No. 13-132 effectuate the arrestee's escape. Officers may examine the phone's physical aspects to ensure that it will
Argued: April 29, 2014 Decided: June 25, 2014 not be used as a weapon, but the data on the phone can endanger no one. To the extent that a search of
In No. 13-132, petitioner Riley was stopped for a traffic violation, which eventually led to his arrest on cell phone data might warn officers of an impending danger, e.g., that the arrestee's confederates are
weapons charges. An officer searching Riley incident to the arrest seized a cell phone from Riley's pants headed to the scene, such a concern is better addressed through consideration of case-specific
pocket. The officer accessed information on the phone and noticed the repeated use of a term exceptions to the warrant requirement, such as exigent circumstances. See, e.g., Warden, Md.
associated with a street gang. At the police station two hours later, a detective specializing in gangs Penitentiary v. Hayden, 387 U. S. 294, 298-299. Pp. 10-12.
further examined the phone's digital contents. Based in part on photographs and videos that the
detective found, the State charged Riley in connection with a shooting that had occurred a few weeks (ii) The United States and California raise concerns about the destruction of evidence, arguing that, even
earlier and sought an enhanced sentence based on Riley's gang membership. Riley moved to suppress all if the cell phone is physically secure, information on the cell phone remains vulnerable to remote wiping
evidence that the police had obtained from his cell phone. The trial court denied the motion, and Riley and data encryption. As an initial matter, those broad concerns are distinct from Chimel's focus on a
was convicted. The California Court of Appeal affirmed. defendant who responds to arrest by trying to conceal or destroy evidence within his reach. The briefing
also gives little indication that either problem is prevalent or that the opportunity to perform a search
In No. 13-212, respondent Wurie was arrested after police observed him participate in an apparent drug incident to arrest would be an effective solution. And, at least as to remote wiping, law enforcement
sale. At the police station, the officers seized a cell phone from Wurie's person and noticed that the currently has some technologies of its own for combatting the loss of evidence. Finally, law
phone was receiving multiple calls from a source identified as "my house" on its external screen. The enforcement's remaining concerns in a particular case might be addressed by responding in a targeted
officers opened the phone, accessed its call log, determined the number associated with the "my house" manner to urgent threats of remote wiping, see Missouri v. McNeely, 569 U. S. ___, ___, or by taking
label, and traced that number to what they suspected was Wurie's apartment. They secured a search action to disable a phone's locking mechanism in order to secure the scene, see Illinois v. McArthur, 531
warrant and found drugs, a firearm and ammunition, and cash in the ensuing search. Wurie was then U. S. 326, 331-333. Pp. 12-15.
charged with drug and firearm offenses. He moved to suppress the evidence obtained from the search of
the apartment. The District Court denied the motion, and Wurie was convicted. The First Circuit reversed (2) A conclusion that inspecting the contents of an arrestee's pockets works no substantial additional
the denial of the motion to suppress and vacated the relevant convictions. intrusion on privacy beyond the arrest itself may make sense as applied to physical items, but more
substantial privacy interests are at stake when digital data is involved. Pp. 15-22.
Held: The police generally may not, without a warrant, search digital information on a cell phone seized
from an individual who has been arrested. Pp. 5-28. (i) Cell phones differ in both a quantitative and a qualitative sense from other objects that might be
carried on an arrestee's person. Notably, modern cell phones have an immense storage capacity. Before
(a) A warrantless search is reasonable only if it falls within a specific exception to the Fourth cell phones, a search of a person was limited by physical realities and generally constituted only a narrow
Amendment's warrant requirement. See Kentucky v. King, 563 U. S. ___, ___. The well-established intrusion on privacy. But cell phones can store millions of pages of text, thousands of pictures, or
exception at issue here applies when a warrantless search is conducted incident to a lawful arrest. hundreds of videos. This has several interrelated privacy consequences. First, a cell phone collects in one
place many distinct types of information that reveal much more in combination than any isolated record.
Three related precedents govern the extent to which officers may search property found on or near an Second, the phone's capacity allows even just one type of information to convey far more than
arrestee. Chimel v. California, 395 U. S. 752, requires that a search incident to arrest be limited to the previously possible. Third, data on the phone can date back for years. In addition, an element of
area within the arrestee's immediate control, where it is justified by the interests in officer safety and in pervasiveness characterizes cell phones but not physical records. A decade ago officers might have
preventing evidence destruction. In United States v. Robinson, 414 U. S. 218, the Court applied occasionally stumbled across a highly personal item such as a diary, but today many of the more than
the Chimel analysis to a search of a cigarette pack found on the arrestee's person. It held that the risks 90% of American adults who own cell phones keep on their person a digital record of nearly every aspect
identified in Chimel are present in all custodial arrests, 414 U. S., at 235, even when there is no specific of their lives. Pp. 17-21.
concern about the loss of evidence or the threat to officers in a particular case, id., at 236. The trilogy
concludes with Arizona v. Gant, 556 U. S. 332, which permits searches of a car where the arrestee is (ii) The scope of the privacy interests at stake is further complicated by the fact that the data viewed on
unsecured and within reaching distance of the passenger compartment, or where it is reasonable to many modern cell phones may in fact be stored on a remote server. Thus, a search may extend well
believe that evidence of the crime of arrest might be found in the vehicle, id., at 343. Pp. 5-8. beyond papers and effects in the physical proximity of an arrestee, a concern that the United States
recognizes but cannot definitively foreclose. Pp. 21-22.
(b) The Court declines to extend Robinson's categorical rule to searches of data stored on cell phones.
Absent more precise guidance from the founding era, the Court generally determines whether to exempt (c) Fallback options offered by the United States and California are flawed and contravene this Court's
a given type of search from the warrant requirement "by assessing, on the one hand, the degree to general preference to provide clear guidance to law enforcement through categorical rules.
which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the See Michigan v. Summers, 452 U. S. 692, 705, n. 19. One possible rule is to import the Gant standard
promotion of legitimate governmental interests." Wyoming v. Houghton, 526 U. S. 295, 300. That from the vehicle context and allow a warrantless search of an arrestee's cell phone whenever it is
balance of interests supported the search incident to arrest exception in Robinson. But a search of digital reasonable to believe that the phone contains evidence of the crime of arrest. That proposal is not
information on a cell phone does not further the government interests identified in Chimel, and appropriate in this context, and would prove no practical limit at all when it comes to cell phone
implicates substantially greater individual privacy interests than a brief physical search. Pp. 8-22. searches. Another possible rule is to restrict the scope of a cell phone search to information relevant to
the crime, the arrestee's identity, or officer safety. That proposal would again impose few meaningful
22

constraints on officers. Finally, California suggests an analogue rule, under which officers could search In the first case, petitioner David Riley was stopped by a police officer for driving with expired
cell phone data if they could have obtained the same information from a pre-digital counterpart. That registration tags. In the course of the stop, the officer also learned that Riley's license had been
proposal would allow law enforcement to search a broad range of items contained on a phone even suspended. The officer impounded Riley's car, pursuant to department policy, and another officer
though people would be unlikely to carry such a variety of information in physical form, and would conducted an inventory search of the car. Riley was arrested for possession of concealed and loaded
launch courts on a difficult line-drawing expedition to determine which digital files are comparable to firearms when that search turned up two handguns under the car's hood. See Cal. Penal Code Ann.
physical records. Pp. 22-25. §§12025(a)(1), 12031(a)(1) (West 2009).

(d) It is true that this decision will have some impact on the ability of law enforcement to combat crime. An officer searched Riley incident to the arrest and found items associated with the "Bloods" street
But the Court's holding is not that the information on a cell phone is immune from search; it is that a gang. He also seized a cell phone from Riley's pants pocket. According to Riley's uncontradicted
warrant is generally required before a search. The warrant requirement is an important component of assertion, the phone was a "smart phone," a cell phone with a broad range of other functions based on
the Court's Fourth Amendment jurisprudence, and warrants may be obtained with increasing efficiency. advanced computing capability, large storage capacity, and Internet connectivity. The officer accessed
In addition, although the search incident to arrest exception does not apply to cell phones, the continued information on the phone and noticed that some words (presumably in text messages or a contacts list)
availability of the exigent circumstances exception may give law enforcement a justification for a were preceded by the letters "CK"--a label that, he believed, stood for "Crip Killers," a slang term for
warrantless search in particular cases. Pp. 25-27. members of the Bloods gang.

No. 13-132, reversed and remanded; No. 13-212, 728 F. 3d 1, affirmed. At the police station about two hours after the arrest, a detective specializing in gangs further
examined the contents of the phone. The detective testified that he "went through" Riley's phone
ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, KENNEDY, THOMAS, GINSBURG, "looking for evidence, because . . . gang members will often video themselves with guns or take pictures
BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed an opinion concurring in part and of themselves with the guns." App. in No. 13-132, p. 20. Although there was "a lot of stuff" on the phone,
concurring in the judgment. particular files that "caught [the detective's] eye" included videos of young men sparring while someone
yelled encouragement using the moniker "Blood." Id., at 11-13. The police also found photographs of
Riley standing in front of a car they suspected had been involved in a shooting a few weeks earlier.
Opinion of the Court
Riley was ultimately charged, in connection with that earlier shooting, with firing at an occupied
573 U. S. ____ (2014) vehicle, assault with a semiautomatic firearm, and attempted murder. The State alleged that Riley had
committed those crimes for the benefit of a criminal street gang, an aggravating factor that carries an
Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, enhanced sentence. Compare Cal. Penal Code Ann. §246 (2008) with §186.22(b)(4)(B) (2014). Prior to
Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be trial, Riley moved to suppress all evidence that the police had obtained from his cell phone. He
made before the preliminary print goes to press. This opinion is subject to formal revision before contended that the searches of his phone violated the Fourth Amendment, because they had been
publication in the preliminary print of the United States Reports. NOTICE: performed without a warrant and were not otherwise justified by exigent circumstances. The trial court
rejected that argument. App. in No. 13-132, at 24, 26. At Riley's trial, police officers testified about the
Nos. 13-132 and 13-212 photographs and videos found on the phone, and some of the photographs were admitted into
evidence. Riley was convicted on all three counts and received an enhanced sentence of 15 years to life
DAVID LEON RILEY, PETITIONER 13-132 v. CALIFORNIA UNITED STATES, PETITIONER 13-212 v.BRIMA in prison.
WURIE
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL OF CALI-FORNIA, FOURTH APPELLATE DISTRICT, The California Court of Appeal affirmed. No. D059840 (Cal. App., Feb. 8, 2013), App. to Pet. for Cert. in
DIVISION ONE No. 13-132, pp. 1a-23a. The court relied on the California Supreme Court's decision in People v. Diaz, 51
Cal. 4th 84, 244 P. 3d 501 (2011), which held that the Fourth Amendment permits a warrantless search
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT of cell phone data incident to an arrest, so long as the cell phone was immediately associated with the
arrestee's person. See id., at 93, 244 P. 3d, at 505-506.
[June 25, 2014]
The California Supreme Court denied Riley's petition for review, App. to Pet. for Cert. in No. 13-132, at
24a, and we granted certiorari, 571 U. S. ___ (2014).
CHIEF JUSTICE ROBERTS delivered the opinion of the Court.
B
These two cases raise a common question: whether the police may, without a warrant, search digital
information on a cell phone seized from an individual who has been arrested. In the second case, a police officer performing routine surveillance observed respondent Brima Wurie
make an apparent drug sale from a car. Officers subsequently arrested Wurie and took him to the police
I station. At the station, the officers seized two cell phones from Wurie's person. The one at issue here
was a "flip phone," a kind of phone that is flipped open for use and that generally has a smaller range of
A features than a smart phone. Five to ten minutes after arriving at the station, the officers noticed that
the phone was repeatedly receiving calls from a source identified as "my house" on the phone's external
23

screen. A few minutes later, they opened the phone and saw a photograph of a woman and a baby set as searches incident to arrest occur with far greater frequency than searches conducted pursuant to a
the phone's wallpaper. They pressed one button on the phone to access its call log, then another button warrant. See 3 W. LaFave, Search and Seizure §5.2(b), p. 132, and n. 15 (5th ed. 2012).
to determine the phone number associated with the "my house" label. They next used an online phone
directory to trace that phone number to an apartment building. Although the existence of the exception for such searches has been recognized for a century, its scope
has been debated for nearly as long. See Arizona v. Gant, 556 U. S. 332, 350 (2009) (noting the
When the officers went to the building, they saw Wurie's name on a mailbox and observed through a exception's "checkered history"). That debate has focused on the extent to which officers may search
window a woman who resembled the woman in the photograph on Wurie's phone. They secured the property found on or near the arrestee. Three related precedents set forth the rules governing such
apartment while obtaining a search warrant and, upon later executing the warrant, found and seized 215 searches:
grams of crack cocaine, marijuana, drug paraphernalia, a firearm and ammunition, and cash.
The first, Chimel v. California, 395 U. S. 752 (1969), laid the groundwork for most of the existing search
Wurie was charged with distributing crack cocaine, possessing crack cocaine with intent to distribute, incident to arrest doctrine. Police officers in that case arrested Chimel inside his home and proceeded to
and being a felon in possession of a firearm and ammunition. See 18 U. S. C. §922(g); 21 U. S. C. §841(a). search his entire three-bedroom house, including the attic and garage. In particular rooms, they also
He moved to suppress the evidence obtained from the search of the apartment, arguing that it was the looked through the contents of drawers. Id., at 753-754.
fruit of an unconstitutional search of his cell phone. The District Court denied the motion. 612 F. Supp.
2d 104 (Mass. 2009). Wurie was convicted on all three counts and sentenced to 262 months in prison. The Court crafted the following rule for assessing the reasonableness of a search incident to arrest:

A divided panel of the First Circuit reversed the denial of Wurie's motion to suppress and vacated
"When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order
Wurie's convictions for possession with intent to distribute and possession of a firearm as a felon. 728
F. 3d 1 (2013). The court held that cell phones are distinct from other physical possessions that may be to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape.
searched incident to arrest without a warrant, because of the amount of personal data cell phones
contain and the negligible threat they pose to law enforcement interests. See id., at 8-11. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is
entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person
We granted certiorari. 571 U. S. ___ (2014).
in order to prevent its concealment or destruction. . . . There is ample justification, therefore, for a
II search of the arrestee's person and the area 'within his immediate control'--construing that phrase to

The Fourth Amendment provides: mean the area from within which he might gain possession of a weapon or destructible evidence."Id., at
762-763.
"The right of the people to be secure in their persons, houses, papers, and effects, against
The extensive warrantless search of Chimel's home did not fit within this exception, because it was not
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon needed to protect officer safety or to preserve evidence. Id., at 763, 768.
probable cause, supported by Oath or affirmation, and particularly describing the place to be searched,
Four years later, in United States v. Robinson, 414 U. S. 218 (1973), the Court applied
and the persons or things to be seized." the Chimel analysis in the context of a search of the arrestee's person. A police officer had arrested
Robinson for driving with a revoked license. The officer conducted a patdown search and felt an object
As the text makes clear, "the ultimate touchstone of the Fourth Amendment is that he could not identify in Robinson's coat pocket. He removed the object, which turned out to be a
'reasonableness.' " Brigham City v. Stuart, 547 U. S. 398, 403 (2006). Our cases have determined that crumpled cigarette package, and opened it. Inside were 14 capsules of heroin. Id., at 220, 223.
"[w]here a search is undertaken by law enforcement officials to discover evidence of criminal
wrongdoing, . . . reasonableness generally requires the obtaining of a judicial warrant." Vernonia School The Court of Appeals concluded that the search was unreasonable because Robinson was unlikely to
Dist. 47J v. Acton, 515 U. S. 646, 653 (1995). Such a warrant ensures that the inferences to support a have evidence of the crime of arrest on his person, and because it believed that extracting the cigarette
search are "drawn by a neutral and detached magistrate instead of being judged by the officer engaged package and opening it could not be justified as part of a protective search for weapons. This Court
in the often competitive enterprise of ferreting out crime."Johnson v. United States, 333 U. S. 10, reversed, rejecting the notion that "case-by-case adjudication" was required to determine "whether or
14 (1948). In the absence of a warrant, a search is reasonable only if it falls within a specific exception to not there was present one of the reasons supporting the authority for a search of the person incident to
the warrant requirement. See Kentucky v. King, 563 U. S. ___, ___ (2011) (slip op., at 5-6). a lawful arrest." Id., at 235. As the Court explained, "[t]he authority to search the person incident to a
lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend
The two cases before us concern the reasonableness of a warrantless search incident to a lawful on what a court may later decide was the probability in a particular arrest situation that weapons or
arrest. In 1914, this Court first acknowledged in dictum "the right on the part of the Government, always evidence would in fact be found upon the person of the suspect." Ibid. Instead, a "custodial arrest of a
recognized under English and American law, to search the person of the accused when legally arrested to suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion
discover and seize the fruits or evidences of crime." Weeks v. United States, 232 U. S. 383, 392. Since being lawful, a search incident to the arrest requires no additional justification." Ibid.
that time, it has been well accepted that such a search constitutes an exception to the warrant
requirement. Indeed, the label "exception" is something of a misnomer in this context, as warrantless
24

The Court thus concluded that the search of Robinson was reasonable even though there was no We first consider each Chimel concern in turn. In doing so, we do not overlook Robinson's admonition
concern about the loss of evidence, and the arresting officer had no specific concern that Robinson that searches of a person incident to arrest, "while based upon the need to disarm and to discover
might be armed. Id.,at 236. In doing so, the Court did not draw a line between a search of Robinson's evidence," are reasonable regardless of "the probability in a particular arrest situation that weapons or
person and a further examination of the cigarette pack found during that search. It merely noted that, evidence would in fact be found." 414 U. S., at 235. Rather than requiring the "case-by-case
"[h]aving in the course of a lawful search come upon the crumpled package of cigarettes, [the officer] adjudication" that Robinson rejected, ibid., we ask instead whether application of the search incident to
was entitled to inspect it." Ibid. A few years later, the Court clarified that this exception was limited to arrest doctrine to this particular category of effects would "untether the rule from the justifications
"personal property . . . immediately associated with the person of the arrestee." United underlying the Chimel exception," Gant, supra, at 343. See also Knowles v. Iowa, 525 U. S. 113,
States v. Chadwick, 433 U. S. 1, 15 (1977) (200-pound, locked footlocker could not be searched incident 119 (1998) (declining to extend Robinson to the issuance of citations, "a situation where the concern for
to arrest), abrogated on other grounds by California v. Acevedo, 500 U. S. 565 (1991). officer safety is not present to the same extent and the concern for destruction or loss of evidence is not
present at all").
The search incident to arrest trilogy concludes with Gant, which analyzed searches of an arrestee's
vehicle.Gant, like Robinson, recognized that the Chimel concerns for officer safety and evidence 1
preservation underlie the search incident to arrest exception. See 556 U. S., at 338. As a result, the Court
concluded that Chimelcould authorize police to search a vehicle "only when the arrestee is unsecured Digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to
and within reaching distance of the passenger compartment at the time of the search." 556 U. S., at effectuate the arrestee's escape. Law enforcement officers remain free to examine the physical aspects
343. Gant added, however, an independent exception for a warrantless search of a vehicle's passenger of a phone to ensure that it will not be used as a weapon--say, to determine whether there is a razor
compartment "when it is 'reasonable to believe evidence relevant to the crime of arrest might be found blade hidden between the phone and its case. Once an officer has secured a phone and eliminated any
in the vehicle.' " Ibid. (quoting Thornton v. United States, 541 U. S. 615, 632 (2004) (SCALIA, J., concurring potential physical threats, however, data on the phone can endanger no one.
in judgment)). That exception stems not from Chimel, the Court explained, but from "circumstances
unique to the vehicle context." 556 U. S., at 343. Perhaps the same might have been said of the cigarette pack seized from Robinson's pocket. Once an
officer gained control of the pack, it was unlikely that Robinson could have accessed the pack's contents.
III But unknown physical objects may always pose risks, no matter how slight, during the tense atmosphere
of a custodial arrest. The officer in Robinson testified that he could not identify the objects in the
These cases require us to decide how the search incident to arrest doctrine applies to modern cell cigarette pack but knew they were not cigarettes. See 414 U. S., at 223, 236, n. 7. Given that, a further
phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from search was a reasonable protective measure. No such unknowns exist with respect to digital data. As the
Mars might conclude they were an important feature of human anatomy. A smart phone of the sort First Circuit explained, the officers who searched Wurie's cell phone "knew exactly what they would find
taken from Riley was unheard of ten years ago; a significant majority of American adults now own such therein: data. They also knew that the data could not harm them." 728 F. 3d, at 10.
phones. See A. Smith, Pew Research Center, Smartphone Ownership--2013 Update (June 5, 2013). Even
less sophisticated phones like Wurie's, which have already faded in popularity since Wurie was arrested The United States and California both suggest that a search of cell phone data might help ensure
in 2007, have been around for less than 15 years. Both phones are based on technology nearly officer safety in more indirect ways, for example by alerting officers that confederates of the arrestee are
inconceivable just a few decades ago, when Chimeland Robinson were decided. headed to the scene. There is undoubtedly a strong government interest in warning officers about such
possibilities, but neither the United States nor California offers evidence to suggest that their concerns
Absent more precise guidance from the founding era, we generally determine whether to exempt a are based on actual experience. The proposed consideration would also represent a broadening
given type of search from the warrant requirement "by assessing, on the one hand, the degree to which of Chimel's concern that an arrestee himself might grab a weapon and use it against an officer "to resist
it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the arrest or effect his escape." 395 U. S., at 763. And any such threats from outside the arrest scene do not
promotion of legitimate governmental interests." Wyoming v. Houghton, 526 U. S. 295, 300 (1999). Such "lurk[ ] in all custodial arrests."Chadwick, 433 U. S., at 14-15. Accordingly, the interest in protecting
a balancing of interests supported the search incident to arrest exception in Robinson, and a mechanical officer safety does not justify dispensing with the warrant requirement across the board. To the extent
application of Robinsonmight well support the warrantless searches at issue here. dangers to arresting officers may be implicated in a particular way in a particular case, they are better
addressed through consideration of case-specific exceptions to the warrant requirement, such as the
But while Robinson's categorical rule strikes the appropriate balance in the context of physical objects, one for exigent circumstances. See, e.g., Warden, Md. Penitentiary v. Hayden, 387 U. S. 294, 298-
neither of its rationales has much force with respect to digital content on cell phones. On the 299 (1967) ("The Fourth Amendment does not require police officers to delay in the course of an
government interest side, Robinson concluded that the two risks identified in Chimel--harm to officers investigation if to do so would gravely endanger their lives or the lives of others.").
and destruction of evidence--are present in all custodial arrests. There are no comparable risks when the
search is of digital data. In addition, Robinson regarded any privacy interests retained by an individual 2
after arrest as significantly diminished by the fact of the arrest itself. Cell phones, however, place vast
quantities of personal information literally in the hands of individuals. A search of the information on a The United States and California focus primarily on the second Chimel rationale: preventing the
cell phone bears little resemblance to the type of brief physical search considered in Robinson. destruction of evidence.

We therefore decline to extend Robinson to searches of data on cell phones, and hold instead that Both Riley and Wurie concede that officers could have seized and secured their cell phones to prevent
officers must generally secure a warrant before conducting such a search. destruction of evidence while seeking a warrant. See Brief for Petitioner in No. 13-132, p. 20; Brief for
Respondent in No. 13-212, p. 41. That is a sensible concession. See Illinois v. McArthur, 531 U. S. 326,
A 331-333(2001); Chadwick, supra, at 13, and n. 8. And once law enforcement officers have secured a cell
25

phone, there is no longer any risk that the arrestee himself will be able to delete incriminating data from agencies around the country already encourage the use of Faraday bags. See, e.g., Dept. of Justice,
the phone. National Institute of Justice, Electronic Crime Scene Investigation: A Guide for First Responders 14, 32 (2d
ed. Apr. 2008); Brief for Criminal Law Professors as Amici Curiae 4-6.
The United States and California argue that information on a cell phone may nevertheless be
vulnerable to two types of evidence destruction unique to digital data--remote wiping and data To the extent that law enforcement still has specific concerns about the potential loss of evidence in a
encryption. Remote wiping occurs when a phone, connected to a wireless network, receives a signal that particular case, there remain more targeted ways to address those concerns. If "the police are truly
erases stored data. This can happen when a third party sends a remote signal or when a phone is confronted with a 'now or never' situation,"--for example, circumstances suggesting that a defendant's
preprogrammed to delete data upon entering or leaving certain geographic areas (so-called phone will be the target of an imminent remote-wipe attempt--they may be able to rely on exigent
"geofencing"). See Dept. of Commerce, National Institute of Standards and Technology, R. Ayers, S. circumstances to search the phone immediately. Missouri v. McNeely, 569 U. S. ___, ___ (2013) (slip op.,
Brothers, & W. Jansen, Guidelines on Mobile Device Forensics (Draft) 29, 31 (SP 800-101 Rev. 1, Sept. at 10) (quoting Roaden v. Kentucky, 413 U. S. 496, 505 (1973); some internal quotation marks omitted).
2013) (hereinafter Ayers). Encryption is a security feature that some modern cell phones use in addition Or, if officers happen to seize a phone in an unlocked state, they may be able to disable a phone's
to password protection. When such phones lock, data becomes protected by sophisticated encryption automatic-lock feature in order to prevent the phone from locking and encrypting data. See App. to
that renders a phone all but "unbreakable" unless police know the password. Brief for United States Reply Brief in No. 13-132, p. 3a (diagramming the few necessary steps). Such a preventive measure could
as Amicus Curiae in No. 13-132, p. 11. be analyzed under the principles set forth in our decision in McArthur, 531 U. S. 326, which approved
officers' reasonable steps to secure a scene to preserve evidence while they awaited a warrant.
As an initial matter, these broader concerns about the loss of evidence are distinct from Chimel's See id., at 331-333.
focus on a defendant who responds to arrest by trying to conceal or destroy evidence within his reach.
See 395 U. S., at 763-764. With respect to remote wiping, the Government's primary concern turns on B
the actions of third parties who are not present at the scene of arrest. And data encryption is even
further afield. There, the Government focuses on the ordinary operation of a phone's security features, The search incident to arrest exception rests not only on the heightened government interests at
apart from any active attempt by a defendant or his associates to conceal or destroy evidence upon stake in a volatile arrest situation, but also on an arrestee's reduced privacy interests upon being taken
arrest. into police custody. Robinson focused primarily on the first of those rationales. But it also quoted with
approval then-Judge Cardozo's account of the historical basis for the search incident to arrest exception:
We have also been given little reason to believe that either problem is prevalent. The briefing reveals "Search of the person becomes lawful when grounds for arrest and accusation have been discovered,
only a couple of anecdotal examples of remote wiping triggered by an arrest. See Brief for Association of and the law is in the act of subjecting the body of the accused to its physical dominion." 414 U. S., at
State Criminal Investigative Agencies et al. as Amici Curiae in No. 13-132, pp. 9-10; see also Tr. of Oral 232 (quoting People v. Chiagles, 237 N. Y. 193, 197, 142 N. E. 583, 584 (1923)); see also 414 U. S., at
Arg. in No. 13-132, p. 48. Similarly, the opportunities for officers to search a password-protected phone 237 (Powell, J., concurring) ("an individual lawfully subjected to a custodial arrest retains no significant
before data becomes encrypted are quite limited. Law enforcement officers are very unlikely to come Fourth Amendment interest in the privacy of his person"). Put simply, a patdown of Robinson's cloth-ing
upon such a phone in an unlocked state because most phones lock at the touch of a button or, as a and an inspection of the cigarette pack found in his pocket constituted only minor additional intrusions
default, after some very short period of inactivity. See, e.g., iPhone User Guide for iOS 7.1 Software 10 compared to the substantial government authority exercised in taking Robinson into custody.
(2014) (default lock after about one minute). This may explain why the encryption argument was not See Chadwick, 433 U. S., at 16, n. 10 (searches of a person are justified in part by "reduced expectations
made until the merits stage in this Court, and has never been considered by the Courts of Appeals. of privacy caused by the arrest").

Moreover, in situations in which an arrest might trigger a remote-wipe attempt or an officer discovers The fact that an arrestee has diminished privacy interests does not mean that the Fourth Amendment
an unlocked phone, it is not clear that the ability to conduct a warrantless search would make much of a falls out of the picture entirely. Not every search "is acceptable solely because a person is in
difference. The need to effect the arrest, secure the scene, and tend to other press-ing matters means custody." Maryland v. King, 569 U. S. ___, ___ (2013) (slip op., at 26). To the contrary, when "privacy-
that law enforcement officers may well not be able to turn their attention to a cell phone right away. See related concerns are weighty enough" a "search may require a warrant, notwithstanding the diminished
Tr. of Oral Arg. in No. 13-132, at 50; see also Brief for United States as Amicus Curiae in No. 13-132, at 19. expectations of privacy of the arrestee." Ibid. One such example, of course, is Chimel. Chimel refused to
Cell phone data would be vulnerable to remote wiping from the time an individual anticipates arrest to "characteriz[e] the invasion of privacy that results from a top-to-bottom search of a man's house as
the time any eventual search of the phone is completed, which might be at the station house hours later. 'minor.' " 395 U. S., at 766-767, n. 12. Because a search of the arrestee's entire house was a substantial
Likewise, an officer who seizes a phone in an unlocked state might not be able to begin his search in the invasion beyond the arrest itself, the Court concluded that a warrant was required.
short time remaining before the phone locks and data becomes encrypted.
Robinson is the only decision from this Court applying Chimel to a search of the contents of an item
In any event, as to remote wiping, law enforcement is not without specific means to address the found on an arrestee's person. In an earlier case, this Court had approved a search of a zipper bag
threat. Remote wiping can be fully prevented by disconnecting a phone from the network. There are at carried by an arrestee, but the Court analyzed only the validity of the arrest itself. See Draper v. United
least two simple ways to do this: First, law enforcement officers can turn the phone off or remove its States, 358 U. S. 307, 310-311 (1959). Lower courts applying Robinson and Chimel, however, have
battery. Second, if they are concerned about encryption or other potential problems, they can leave a approved searches of a variety of personal items carried by an arrestee. See, e.g., United
phone powered on and place it in an enclosure that isolates the phone from radio waves. See Ayers 30- States v. Carrion, 809 F. 2d 1120, 1123, 1128 (CA5 1987) (billfold and address book); United
31. Such devices are commonly called "Faraday bags," after the English scientist Michael Faraday. They States v. Watson, 669 F. 2d 1374, 1383-1384 (CA11 1982) (wallet); United States v. Lee, 501 F. 2d 890,
are essentially sandwich bags made of aluminum foil: cheap, lightweight, and easy to use. See Brief for 892 (CADC 1974) (purse).
Criminal Law Professors as Amici Curiae 9. They may not be a complete answer to the problem, see Ayers
32, but at least for now they provide a reasonable response. In fact, a number of law enforcement
26

The United States asserts that a search of all data stored on a cell phone is "materially phones in the shower. See Harris Interactive, 2013 Mobile Consumer Habits Study (June 2013). A decade
indistinguishable" from searches of these sorts of physical items. Brief for United States in No. 13-212, p. ago police officers searching an arrestee might have occasionally stumbled across a highly personal item
26. That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both such as a diary. See, e.g., United States v. Frankenberry, 387 F. 2d 337 (CA2 1967) (per curiam). But those
are ways of getting from point A to point B, but little else justifies lumping them together. Modern cell discoveries were likely to be few and far between. Today, by contrast, it is no exaggeration to say that
phones, as a category, implicate privacy concerns far beyond those implicated by the search of a many of the more than 90% of American adults who own a cell phone keep on their person a digital
cigarette pack, a wallet, or a purse. A conclusion that inspecting the contents of an arrestee's pockets record of nearly every aspect of their lives--from the mundane to the intimate. See Ontario v. Quon, 560
works no substantial additional intrusion on privacy beyond the arrest itself may make sense as applied U. S. 746, 760 (2010). Allowing the police to scrutinize such records on a routine basis is quite different
to physical items, but any extension of that reasoning to digital data has to rest on its own bottom. from allowing them to search a personal item or two in the occasional case.

1 Although the data stored on a cell phone is distinguished from physical records by quantity alone,
certain types of data are also qualitatively different. An Internet search and browsing history, for
Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept example, can be found on an Internet-enabled phone and could reveal an individual's private interests or
on an arrestee's person. The term "cell phone" is itself misleading shorthand; many of these devices are concerns--perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD.
in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just Data on a cell phone can also reveal where a person has been. Historic location information is a stand-
as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, ard feature on many smart phones and can reconstruct someone's specific movements down to the
televisions, maps, or newspapers. minute, not only around town but also within a particular building. See United States v. Jones, 565 U. S.
___, ___ (2012) (SOTOMAYOR, J., concurring) (slip op., at 3) ("GPS monitoring generates a precise,
One of the most notable distinguishing features of modern cell phones is their immense storage comprehensive record of a person's public movements that reflects a wealth of detail about her familial,
capacity. Before cell phones, a search of a person was limited by physical realities and tended as a political, professional, religious, and sexual associations.").
general matter to constitute only a narrow intrusion on privacy. See Kerr, Foreword: Accounting for
Technological Change, 36 Harv. J. L. & Pub. Pol'y 403, 404-405 (2013). Most people cannot lug around Mobile application software on a cell phone, or "apps," offer a range of tools for managing detailed
every piece of mail they have received for the past several months, every picture they have taken, or information about all aspects of a person's life. There are apps for Democratic Party news and
every book or article they have read--nor would they have any reason to attempt to do so. And if they Republican Party news; apps for alcohol, drug, and gambling addictions; apps for sharing prayer
did, they would have to drag behind them a trunk of the sort held to require a search warrant requests; apps for tracking pregnancy symptoms; apps for planning your budget; apps for every
in Chadwick, supra, rather than a container the size of the cigarette package in Robinson. conceivable hobby or pastime; apps for improving your romantic life. There are popular apps for buying
or selling just about anything, and the records of such transactions may be accessible on the phone
But the possible intrusion on privacy is not physically limited in the same way when it comes to cell indefinitely. There are over a million apps available in each of the two major app stores; the phrase
phones. The current top-selling smart phone has a standard capacity of 16 gigabytes (and is available "there's an app for that" is now part of the popular lexicon. The average smart phone user has installed
with up to 64 gigabytes). Sixteen gigabytes translates to millions of pages of text, thousands of pictures, 33 apps, which together can form a revealing montage of the user's life. See Brief for Electronic Privacy
or hundreds of videos. See Kerr, supra, at 404; Brief for Center for Democracy & Technology et al. Information Center as Amicus Curiae in No. 13-132, p. 9.
as Amici Curiae 7-8. Cell phones couple that capacity with the ability to store many different types of
information: Even the most basic phones that sell for less than $20 might hold photographs, picture In 1926, Learned Hand observed (in an opinion later quoted in Chimel) that it is "a totally different
messages, text messages, Internet browsing history, a calendar, a thousand-entry phone book, and so thing to search a man's pockets and use against him what they contain, from ransacking his house for
on. See id., at 30; United States v. Flores-Lopez, 670 F. 3d 803, 806 (CA7 2012). We expect that the gulf everything which may incriminate him." United States v. Kirschenblatt, 16 F. 2d 202, 203 (CA2). If his
between physical practicability and digital capacity will only continue to widen in the future. pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically
expose to the government far more than the most exhaustive search of a house: A phone not only
The storage capacity of cell phones has several interrelated consequences for privacy. First, a cell contains in digital form many sensitive records previ-ously found in the home; it also contains a broad
phone collects in one place many distinct types of information--an address, a note, a prescription, a bank array of private information never found in a home in any form--unless the phone is.
statement, a video--that reveal much more in combination than any isolated record. Second, a cell
phone's capacity allows even just one type of information to convey far more than previously possible. 2
The sum of an individual's private life can be reconstructed through a thousand photographs labeled
with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones To further complicate the scope of the privacy interests at stake, the data a user views on many
tucked into a wallet. Third, the data on a phone can date back to the purchase of the phone, or even modern cell phones may not in fact be stored on the device itself. Treating a cell phone as a container
earlier. A person might carry in his pocket a slip of paper reminding him to call Mr. Jones; he would not whose contents may be searched incident to an arrest is a bit strained as an initial matter. See New
carry a record of all his communications with Mr. Jones for the past several months, as would routinely York v. Belton, 453 U. S. 454, 460, n. 4 (1981) (describing a "container" as "any object capable of holding
be kept on a phone.1 another object"). But the analogy crumbles entirely when a cell phone is used to access data located
elsewhere, at the tap of a screen. That is what cell phones, with increasing frequency, are designed to do
Finally, there is an element of pervasiveness that characterizes cell phones but not physical records. by taking advantage of "cloud computing." Cloud computing is the capacity of Internet-connected
Prior to the digital age, people did not typically carry a cache of sensitive personal information with them devices to display data stored on remote servers rather than on the device itself. Cell phone users often
as they went about their day. Now it is the person who is not carrying a cell phone, with all that it may not know whether particular information is stored on the device or in the cloud, and it generally
contains, who is the exception. According to one poll, nearly three-quarters of smart phone users report makes little difference. See Brief for Electronic Privacy Information Center in No. 13-132, at 12-14, 20.
being within five feet of their phones most of the time, with 12% admitting that they even use their
27

Moreover, the same type of data may be stored locally on the device for one user and in the cloud for "police officers unbridled discretion to rummage at will among a person's private effects." 556 U. S., at
another. 345.

The United States concedes that the search incident to arrest exception may not be stretched to cover The United States also proposes a rule that would restrict the scope of a cell phone search to those
a search of files accessed remotely--that is, a search of files stored in the cloud. See Brief for United areas of the phone where an officer reasonably believes that infor-mation relevant to the crime, the
States in No. 13-212, at 43-44. Such a search would be like finding a key in a suspect's pocket and arguing arrestee's identity, or officer safety will be discovered. See Brief for United States in No. 13-212, at 51-
that it allowed law enforcement to unlock and search a house. But officers searching a phone's data 53. This approach would again impose few meaningful constraints on officers. The proposed categories
would not typically know whether the information they are viewing was stored locally at the time of the would sweep in a great deal of information, and officers would not always be able to discern in advance
arrest or has been pulled from the cloud. what information would be found where.

Although the Government recognizes the problem, its proposed solutions are unclear. It suggests that We also reject the United States' final suggestion that officers should always be able to search a
officers could disconnect a phone from the network before searching the device--the very solution phone's call log, as they did in Wurie's case. The Government relies on Smith v. Maryland, 442 U. S.
whose feasibility it contested with respect to the threat of remote wiping. Compare Tr. of Oral Arg. in 735 (1979), which held that no warrant was required to use a pen register at telephone company
No. 13-132, at 50-51, with Tr. of Oral Arg. in No. 13-212, pp. 13-14. Alternatively, the Government premises to identify numbers dialed by a particular caller. The Court in that case, however, concluded
proposes that law enforcement agencies "develop protocols to address" concerns raised by cloud that the use of a pen register was not a "search" at all under the Fourth Amendment. See id., at 745-746.
computing. Reply Brief in No. 13-212, pp. 14-15. Probably a good idea, but the Founders did not fight a There is no dispute here that the officers engaged in a search of Wurie's cell phone. Moreover, call logs
revolution to gain the right to government agency protocols. The possibility that a search might extend typically contain more than just phone numbers; they include any identifying information that an
well beyond papers and effects in the physical proximity of an arrestee is yet another reason that the individual might add, such as the label "my house" in Wurie's case.
privacy interests here dwarf those in Robinson.
Finally, at oral argument California suggested a different limiting principle, under which officers could
C search cell phone data if they could have obtained the same information from a pre-digital counterpart.
See Tr. of Oral Arg. in No. 13-132, at 38-43; see also Flores-Lopez, 670 F. 3d, at 807 ("If police are entitled
Apart from their arguments for a direct extension of Robinson, the United States and California offer to open a pocket diary to copy the owner's address, they should be entitled to turn on a cell phone to
various fallback options for permitting warrantless cell phone searches under certain circumstances. learn its number."). But the fact that a search in the pre-digital era could have turned up a photograph or
Each of the proposals is flawed and contravenes our general preference to provide clear guidance to law two in a wallet does not justify a search of thousands of photos in a digital gallery. The fact that someone
enforcement through categorical rules. "[I]f police are to have workable rules, the balancing of the could have tucked a paper bank statement in a pocket does not justify a search of every bank statement
competing interests . . . 'must in large part be done on a categorical basis--not in an ad hoc, case-by-case from the last five years. And to make matters worse, such an analogue test would allow law enforcement
fashion by individual police officers.' " Michigan v. Summers, 452 U. S. 692, 705, n. 19 (1981) to search a range of items contained on a phone, even though people would be unlikely to carry such a
(quoting Dunaway v. New York, 442 U. S. 200, 219-220 (1979) (White, J., concurring)). variety of information in physical form. In Riley's case, for example, it is implausible that he would have
strolled around with video tapes, photo albums, and an address book all crammed into his pockets. But
The United States first proposes that the Gant standard be imported from the vehicle context, because each of those items has a pre-digital analogue, police under California's proposal would be able
allowing a warrantless search of an arrestee's cell phone whenever it is reasonable to believe that the to search a phone for all of those items--a significant diminution of privacy.
phone contains evidence of the crime of arrest. But Gant relied on "circumstances unique to the vehicle
context" to endorse a search solely for the purpose of gathering evidence. 556 U. S., at 343. JUSTICE In addition, an analogue test would launch courts on a difficult line-drawing expedition to determine
SCALIA's Thornton opinion, on which Gant was based, explained that those unique circumstances are "a which digital files are comparable to physical records. Is an e-mail equivalent to a letter? Is a voicemail
reduced expectation of privacy" and "heightened law enforcement needs" when it comes to motor equivalent to a phone message slip? It is not clear how officers could make these kinds of decisions
vehicles. 541 U. S., at 631; see also Wyoming v. Houghton, 526 U. S., at 303-304. For reasons that we before conducting a search, or how courts would apply the proposed rule after the fact. An analogue test
have explained, cell phone searches bear neither of those characteristics. would "keep defendants and judges guessing for years to come." Sykes v. United States, 564 U. S. 1, ___
(2011) (SCALIA, J., dissenting) (slip op., at 7) (discussing the Court's analogue test under the Armed
At any rate, a Gant standard would prove no practical limit at all when it comes to cell phone Career Criminal Act).
searches. In the vehicle context, Gant generally protects against searches for evidence of past crimes.
See 3 W. LaFave, Search and Seizure §7.1(d), at 709, and n. 191. In the cell phone context, however, it is IV
reasonable to expect that incriminating information will be found on a phone regardless of when the
crime occurred. Similarly, in the vehicle context Gant restricts broad searches resulting from minor We cannot deny that our decision today will have an impact on the ability of law enforcement to
crimes such as traffic violations. See id.,§7.1(d), at 713, and n. 204. That would not necessarily be true for combat crime. Cell phones have become important tools in facilitating coordination and communication
cell phones. It would be a particularly inexperienced or unimaginative law enforcement officer who among members of criminal enterprises, and can provide valuable incriminating information about
could not come up with several reasons to suppose evidence of just about any crime could be found on a dangerous criminals. Privacy comes at a cost.
cell phone. Even an individual pulled over for something as basic as speeding might well have locational
data dispositive of guilt on his phone. An individual pulled over for reckless driving might have evidence Our holding, of course, is not that the information on a cell phone is immune from search; it is instead
on the phone that shows whether he was texting while driving. The sources of potential pertinent that a warrant is generally required before such a search, even when a cell phone is seized incident to
information are virtually unlimited, so applying the Gant standard to cell phones would in effect give arrest. Our cases have historically recognized that the warrant requirement is "an important working
part of our machinery of gov-ernment," not merely "an inconvenience to be somehow 'weighed' against
28

the claims of police efficiency." Coolidge v. New Hampshire, 403 U. S. 443, 481 (1971). Recent Case Summary of Riley v. California:
technological advances similar to those discussed here have, in addition, made the process of obtaining a
warrant itself more efficient. See McNeely, 569 U. S., at ___ (slip op., at 11-12); id., at ___ (ROBERTS, Riley was convicted of a shooting related offense after evidence seized from his cell phone (incident to
C. J., concurring in part and dissenting in part) (slip op., at 8) (describing jurisdiction where "police his arrest) was used against him in court.
officers can e-mail warrant requests to judges' iPads [and] judges have signed such warrants and e-
mailed them back to officers in less than 15 minutes").
Riley filed a motion to suppress which was denied and later appealed to the state’s court of appeals
Moreover, even though the search incident to arrest exception does not apply to cell phones, other claiming the search violated his Fourth Amendment rights.
case-specific exceptions may still justify a warrantless search of a particular phone. "One well-recognized
exception applies when ' "the exigencies of the situation" make the needs of law enforcement so Riley, along with and similarly situated Wurie, petitioned the Supreme Court in a consolidated case.
compelling that [a] warrantless search is objectively reasonable under the Fourth
Amendment.' " Kentucky v. King, 563 U. S., at ___ (slip op., at 6) (quoting Mincey v. Arizona, 437 U. S. The Supreme Court held that the government may not conduct a warrantless search of a cell phone’s
385, 394 (1978)). Such exigencies could include the need to prevent the imminent destruction of contents that was seized after an arrest absent any exigent circumstances.
evidence in individual cases, to pursue a fleeing suspect, and to assist persons who are seriously injured
or are threatened with imminent injury. 563 U. S., at ___. In Chadwick, for example, the Court held that Statement of the Facts:
the exception for searches incident to arrest did not justify a search of the trunk at issue, but noted that
"if officers have reason to believe that luggage contains some immediately dangerous instrumentality,
Officers pulled over Riley for a traffic violation, which led to his arrest on weapon-related charges. Riley
such as explosives, it would be foolhardy to transport it to the station house without opening the
luggage." 433 U. S., at 15, n. 9. was searched after his arrest and officers seized his cell phone from his pocket. Riley was convicted after
a trial where evidence seized from his phone was introduced in a shooting related charge. In response,
In light of the availability of the exigent circumstances exception, there is no reason to believe that Riley appealed his conviction to the California state court of appeals. The court upheld the trial court’s
law enforcement officers will not be able to address some of the more extreme hypotheticals that have conviction.
been suggested: a suspect texting an accomplice who, it is feared, is preparing to detonate a bomb, or a
child abductor who may have information about the child's location on his cell phone. The defendants Another defendant, Wurie, had his flip phone seized incident to arrest. Officers used the items seized in
here recognize--indeed, they stress--that such fact-specific threats may justify a warrantless search of the phone to secure a search warrant to search Wurie’s home. After the district court admitted the
cell phone data. See Reply Brief in No. 13-132, at 8-9; Brief for Respondent in No. 13-212, at 30, 41. The
evidence found at the residence, Wurie appealed. The federal court of appeals found that the evidence
critical point is that, unlike the search incident to arrest exception, the exigent circumstances exception
requires a court to examine whether an emergency justified a warrantless search in each particular case. was the fruit of an illegal search of the phone.
See McNeely, supra, at ___ (slip op., at 6).2
The cases were consolidated and the Supreme Court of the United States granted certiorari.
Our cases have recognized that the Fourth Amendment was the founding generation's response to
the reviled "general warrants" and "writs of assistance" of the colonial era, which allowed British officers Procedural History:
to rummage through homes in an unrestrained search for evidence of criminal activity. Opposition to
such searches was in fact one of the driving forces behind the Revolution itself. In 1761, the patriot The district court permitted the evidence to be introduced. On appeal the federal court of appeals
James Otis delivered a speech in Boston denouncing the use of writs of assistance. A young John Adams reversed holding the evidence was the fruit of an illegal search of the arrestee’s phone. The Supreme
was there, and he would later write that "[e]very man of a crowded audience appeared to me to go
Court granted certiorari.
away, as I did, ready to take arms against writs of assistance." 10 Works of John Adams 247-248 (C.
Adams ed. 1856). According to Adams, Otis's speech was "the first scene of the first act of opposition to
the arbitrary claims of Great Britain. Then and there the child Independence was born." Id., at 248 Issue and Holding:
(quoted in Boyd v. United States, 116 U. S. 616, 625(1886)).
May the government conduct a warrantless search of the contents of a cell phone seized after an arrest
Modern cell phones are not just another technological convenience. With all they contain and all they when no exigent circumstances exist? No.
may reveal, they hold for many Americans "the privacies of life," Boyd, supra, at 630. The fact that
technology now allows an individual to carry such information in his hand does not make the information Rule of Law or Legal Principle Applied:
any less worthy of the protection for which the Founders fought. Our answer to the question of what
police must do before searching a cell phone seized incident to an arrest is accordingly simple--get a The government may not conduct a warrantless search of the contents of a cell phone that is seized
warrant.
incident to an arrest absent exigent circumstances, under the Fourth Amendment.
We reverse the judgment of the California Court of Appeal in No. 13-132 and remand the case for
further proceedings not inconsistent with this opinion. We affirm the judgment of the First Circuit in No.
13-212. It is so ordered.
29

Judgment:

The judgment of the federal court of appeals is affirmed and the judgment of the state court of appeals
is reversed.

Reasoning:

Generally, officers must obtain a warrant before conducting a search of the contents of a cell phone
seized incident to an arrest. Otherwise, a Fourth Amendment violation occurs.

The exception to search a person incident to an arrest is a valid exception to the warrant requirement of
the Fourth Amendment. The exception is permitted for officer safety and to prevent destruction of
evidence. However, no safety risk exists in a cell phone that warrants intrusion beyond a preliminary
search to make sure the phone is not holding a weapon or small blade. The Court then distinguishes the
warrantless search of a cell phone from other objects such as a cigarette container.

The Court then considers the separate indigent circumstances exception and whether it applies. The
Court held that once officers have secured a cell phone, there is little risk of destruction of stored
evidence. The concerns of protecting against remote wiping is beyond the concerns expressed in Chimel
v. California, 395 U.S. 752 (1969), which is that an arrestee may destroy evidence that is within reach.

Although an individual’s privacy rights are diminished once arrested, it should not be treated as a
complete deprivation. The Court then distinguishes the search of a cigarette pack from the privacy
invasion at issue regarding a search of a cell phone or residence and determines such a search is not
constitutional. The search of the data on a cell phone is a major invasion of privacy due to the quality
and quantity of information stored on phones.

The Court also concludes the government’s assertion that under Arizona v. Gant, 556 U.S. 332 (2009), a
warrantless search of a cell phone is justified when the cell phone is reasonably believed to contain
evidence of the crime of arrest, applies to the search of vehicles and is inapplicable to a cell phone.
Absent a warrant or demonstration of exigent circumstances, the government may not conduct a search
of a cell phone incident to arrest.

Concurring and Dissenting opinion:

Concurring (Alito):

The history of the search-incident-to-arrest exception is substantially based more on probative evidence
than the destruction of evidence and officer safety. Regardless, the majority correctly holds the rules of a
physical search do not apply to cell phone data.

Significance:

Riley v. California established that a search of information found in a cell phone is not a proper search
incident to an arrest. Due to the personal nature of information stored in a cell phone, a search warrant
must first be obtained.
30

SECOND DIVISION In its 19 February 2009 Decision,4 the RTC convicted petitioner of illegal possession of dangerous
drugs5 committed on 10 March 2003. It found the prosecution evidence sufficient to show that he had
been lawfully arrested for a traffic violation and then subjected to a valid search, which led to the
G.R. No. 197788 February 29, 2012
discovery on his person of two plastic sachets later found to contain shabu. The RTC also found his
defense of frame-up and extortion to be weak, self-serving and unsubstantiated. The dispositive portion
RODEL LUZ y ONG, Petitioner, of its Decision held:
vs.
PEOPLE OF THE PHILIPPINES,1 Respondent.
WHEREFORE, judgment is hereby rendered, finding accused RODEL LUZ y ONG GUILTY beyond
reasonable doubt for the crime of violation of Section 11, Article II of Republic Act No. 9165 and
DECISION sentencing him to suffer the indeterminate penalty of imprisonment ranging from twelve (12) years and
(1) day, as minimum, to thirteen (13) years, as maximum, and to pay a fine of Three Hundred Thousand
SERENO, J.: Pesos (₱ 300,000.00).

This is a Petition for Review on Certiorari under Rule 45 seeking to set aside the Court of Appeals (CA) The subject shabu is hereby confiscated for turn over to the Philippine Drug Enforcement Agency for its
Decision in CA-G.R. CR No. 32516 dated 18 February 20112 and Resolution dated 8 July 2011. proper disposition and destruction in accordance with law.

Statement of the Facts and of the Case SO ORDERED.6

The facts, as found by the Regional Trial Court (RTC), which sustained the version of the prosecution, are Upon review, the CA affirmed the RTC’s Decision.
as follows:
On 12 September 2011, petitioner filed under Rule 45 the instant Petition for Review on Certiorari dated
PO2 Emmanuel L. Alteza, who was then assigned at the Sub-Station 1 of the Naga City Police Station as a 1 September 2011. In a Resolution dated 12 October 2011, this Court required respondent to file a
traffic enforcer, substantially testified that on March 10, 2003 at around 3:00 o’clock in the morning, he comment on the Petition. On 4 January 2012, the latter filed its Comment dated 3 January 2012.
saw the accused, who was coming from the direction of Panganiban Drive and going to Diversion Road,
Naga City, driving a motorcycle without a helmet; that this prompted him to flag down the accused for Petitioner raised the following grounds in support of his Petition:
violating a municipal ordinance which requires all motorcycle drivers to wear helmet (sic) while driving
said motor vehicle; that he invited the accused to come inside their sub-station since the place where he
(i) THE SEARCH AND SEIZURE OF THE ALLEGED SUBJECT SHABU IS INVALID.
flagged down the accused is almost in front of the said sub-station; that while he and SPO1 Rayford
Brillante were issuing a citation ticket for violation of municipal ordinance, he noticed that the accused
was uneasy and kept on getting something from his jacket; that he was alerted and so, he told the (ii) THE PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF DUTY OF THE POLICE
accused to take out the contents of the pocket of his jacket as the latter may have a weapon inside it; OFFICER CANNOT BE RELIED UPON IN THIS CASE.
that the accused obliged and slowly put out the contents of the pocket of his jacket which was a nickel-
like tin or metal container about two (2) to three (3) inches in size, including two (2) cellphones, one (1)
(iii) THE INTEGRITY AND EVIDENTIARY VALUE OF THE ALLEGED SUBJECT SPECIMEN HAS BEEN
pair of scissors and one (1) Swiss knife; that upon seeing the said container, he asked the accused to
COMPROMISED.
open it; that after the accused opened the container, he noticed a cartoon cover and something beneath
it; and that upon his instruction, the accused spilled out the contents of the container on the table which
turned out to be four (4) plastic sachets, the two (2) of which were empty while the other two (2) (iv) THE GUILT OF THE ACCUSED-PETITIONER WAS NOT PROVEN BEYOND THE REASONABLE
contained suspected shabu.3 DOUBT (sic).7

Arraigned on 2 July 2003, petitioner, assisted by counsel, entered a plea of "Not guilty" to the charge of Petitioner claims that there was no lawful search and seizure, because there was no lawful arrest. He
illegal possession of dangerous drugs. Pretrial was terminated on 24 September 2003, after which, trial claims that the finding that there was a lawful arrest was erroneous, since he was not even issued a
ensued. citation ticket or charged with violation of the city ordinance. Even assuming there was a valid arrest, he
claims that he had never consented to the search conducted upon him.
During trial, Police Officer 3 (PO3) Emmanuel Alteza and a forensic chemist testified for the prosecution.
On the other hand, petitioner testified for himself and raised the defense of planting of evidence and On the other hand, finding that petitioner had been lawfully arrested, the RTC held thus:
extortion.
It is beyond dispute that the accused was flagged down and apprehended in this case by Police Officers
Alteza and Brillante for violation of City Ordinance No. 98-012, an ordinance requiring the use of crash
31

helmet by motorcycle drivers and riders thereon in the City of Naga and prescribing penalties for At the time that he was waiting for PO3 Alteza to write his citation ticket, petitioner could not be said to
violation thereof. The accused himself admitted that he was not wearing a helmet at the time when he have been "under arrest." There was no intention on the part of PO3 Alteza to arrest him, deprive him of
was flagged down by the said police officers, albeit he had a helmet in his possession. Obviously, there is his liberty, or take him into custody. Prior to the issuance of the ticket, the period during which
legal basis on the part of the apprehending officers to flag down and arrest the accused because the petitioner was at the police station may be characterized merely as waiting time. In fact, as found by the
latter was actually committing a crime in their presence, that is, a violation of City Ordinance No. 98-012. trial court, PO3 Alteza himself testified that the only reason they went to the police sub-station was that
In other words, the accused, being caught in flagrante delicto violating the said Ordinance, he could petitioner had been flagged down "almost in front" of that place. Hence, it was only for the sake of
therefore be lawfully stopped or arrested by the apprehending officers. x x x.8 convenience that they were waiting there. There was no intention to take petitioner into custody.

We find the Petition to be impressed with merit, but not for the particular reasons alleged. In criminal In Berkemer v. McCarty,13 the United States (U.S.) Supreme Court discussed at length whether the
cases, an appeal throws the entire case wide open for review and the reviewing tribunal can correct roadside questioning of a motorist detained pursuant to a routine traffic stop should be considered
errors, though unassigned in the appealed judgment, or even reverse the trial court’s decision based on custodial interrogation. The Court held that, such questioning does not fall under custodial interrogation,
grounds other than those that the parties raised as errors.9 nor can it be considered a formal arrest, by virtue of the nature of the questioning, the expectations of
the motorist and the officer, and the length of time the procedure is conducted. It ruled as follows:
First, there was no valid arrest of petitioner. When he was flagged down for committing a traffic
violation, he was not, ipso facto and solely for this reason, arrested. It must be acknowledged at the outset that a traffic stop significantly curtails the "freedom of action" of
the driver and the passengers, if any, of the detained vehicle. Under the law of most States, it is a crime
either to ignore a policeman’s signal to stop one’s car or, once having stopped, to drive away without
Arrest is the taking of a person into custody in order that he or she may be bound to answer for the
permission. x x x
commission of an offense.10 It is effected by an actual restraint of the person to be arrested or by that
person’s voluntary submission to the custody of the one making the arrest. Neither the application of
actual force, manual touching of the body, or physical restraint, nor a formal declaration of arrest, is However, we decline to accord talismanic power to the phrase in the Miranda opinion emphasized by
required. It is enough that there be an intention on the part of one of the parties to arrest the other, and respondent. Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but only
that there be an intent on the part of the other to submit, under the belief and impression that in those types of situations in which the concerns that powered the decision are implicated. Thus, we
submission is necessary.11 must decide whether a traffic stop exerts upon a detained person pressures that sufficiently impair his
free exercise of his privilege against self-incrimination to require that he be warned of his constitutional
rights.
Under R.A. 4136, or the Land Transportation and Traffic Code, the general procedure for dealing with a
traffic violation is not the arrest of the offender, but the confiscation of the driver’s license of the latter:
Two features of an ordinary traffic stop mitigate the danger that a person questioned will be induced "to
speak where he would not otherwise do so freely," Miranda v. Arizona, 384 U. S., at 467. First, detention
SECTION 29. Confiscation of Driver's License. — Law enforcement and peace officers of other agencies
of a motorist pursuant to a traffic stop is presumptively temporary and brief. The vast majority of
duly deputized by the Director shall, in apprehending a driver for any violation of this Act or any
roadside detentions last only a few minutes. A motorist’s expectations, when he sees a policeman’s light
regulations issued pursuant thereto, or of local traffic rules and regulations not contrary to any
flashing behind him, are that he will be obliged to spend a short period of time answering questions and
provisions of this Act, confiscate the license of the driver concerned and issue a receipt prescribed and
waiting while the officer checks his license and registration, that he may then be given a citation, but
issued by the Bureau therefor which shall authorize the driver to operate a motor vehicle for a period
that in the end he most likely will be allowed to continue on his way. In this respect, questioning incident
not exceeding seventy-two hours from the time and date of issue of said receipt. The period so fixed in
to an ordinary traffic stop is quite different from stationhouse interrogation, which frequently is
the receipt shall not be extended, and shall become invalid thereafter. Failure of the driver to settle his
prolonged, and in which the detainee often is aware that questioning will continue until he provides his
case within fifteen days from the date of apprehension will be a ground for the suspension and/or
interrogators the answers they seek. See id., at 451.
revocation of his license.

Second, circumstances associated with the typical traffic stop are not such that the motorist feels
Similarly, the Philippine National Police (PNP) Operations Manual12 provides the following procedure for
completely at the mercy of the police. To be sure, the aura of authority surrounding an armed,
flagging down vehicles during the conduct of checkpoints:
uniformed officer and the knowledge that the officer has some discretion in deciding whether to issue a
citation, in combination, exert some pressure on the detainee to respond to questions. But other aspects
SECTION 7. Procedure in Flagging Down or Accosting Vehicles While in Mobile Car. This rule is a general of the situation substantially offset these forces. Perhaps most importantly, the typical traffic stop is
concept and will not apply in hot pursuit operations. The mobile car crew shall undertake the following, public, at least to some degree. x x x
when applicable: x x x
In both of these respects, the usual traffic stop is more analogous to a so-called "Terry stop," see Terry v.
m. If it concerns traffic violations, immediately issue a Traffic Citation Ticket (TCT) or Traffic Violation Ohio, 392 U. S. 1 (1968), than to a formal arrest. x x x The comparatively nonthreatening character of
Report (TVR). Never indulge in prolonged, unnecessary conversation or argument with the driver or any detentions of this sort explains the absence of any suggestion in our opinions that Terry stops are subject
of the vehicle’s occupants; to the dictates of Miranda. The similarly noncoercive aspect of ordinary traffic stops prompts us to hold
32

that persons temporarily detained pursuant to such stops are not "in custody" for the purposes of If it were true that petitioner was already deemed "arrested" when he was flagged down for a traffic
Miranda. violation and while he waiting for his ticket, then there would have been no need for him to be arrested
for a second time—after the police officers allegedly discovered the drugs—as he was already in their
custody.
We are confident that the state of affairs projected by respondent will not come to pass. It is settled that
the safeguards prescribed by Miranda become applicable as soon as a suspect’s freedom of action is
curtailed to a "degree associated with formal arrest." California v. Beheler, 463 U. S. 1121, 1125 (1983) Second, there being no valid arrest, the warrantless search that resulted from it was likewise illegal.
(per curiam). If a motorist who has been detained pursuant to a traffic stop thereafter is subjected to
treatment that renders him "in custody" for practical purposes, he will be entitled to the full panoply of
The following are the instances when a warrantless search is allowed: (i) a warrantless search incidental
protections prescribed by Miranda. See Oregon v. Mathiason, 429 U. S. 492, 495 (1977) (per curiam).
to a lawful arrest; (ii) search of evidence in "plain view;" (iii) search of a moving vehicle; (iv) consented
(Emphasis supplied.)
warrantless search; (v) customs search; (vi) a "stop and frisk" search; and (vii) exigent and emergency
circumstances.15 None of the above-mentioned instances, especially a search incident to a lawful arrest,
The U.S. Court in Berkemer thus ruled that, since the motorist therein was only subjected to modest are applicable to this case.
questions while still at the scene of the traffic stop, he was not at that moment placed under custody
(such that he should have been apprised of his Miranda rights), and neither can treatment of this sort be
It must be noted that the evidence seized, although alleged to be inadvertently discovered, was not in
fairly characterized as the functional equivalent of a formal arrest. Similarly, neither can petitioner here
"plain view." It was actually concealed inside a metal container inside petitioner’s pocket. Clearly, the
be considered "under arrest" at the time that his traffic citation was being made. It also appears that,
evidence was not immediately apparent.16
according to City Ordinance No. 98-012, which was violated by petitioner, the failure to wear a crash
helmet while riding a motorcycle is penalized by a fine only. Under the Rules of Court, a warrant of arrest
need not be issued if the information or charge was filed for an offense penalized by a fine only. It may Neither was there a consented warrantless search. Consent to a search is not to be lightly inferred, but
be stated as a corollary that neither can a warrantless arrest be made for such an offense. shown by clear and convincing evidence.17 It must be voluntary in order to validate an otherwise illegal
search; that is, the consent must be unequivocal, specific, intelligently given and uncontaminated by any
duress or coercion. While the prosecution claims that petitioner acceded to the instruction of PO3
This ruling does not imply that there can be no arrest for a traffic violation. Certainly, when there is an
Alteza, this alleged accession does not suffice to prove valid and intelligent consent. In fact, the RTC
intent on the part of the police officer to deprive the motorist of liberty, or to take the latter into
found that petitioner was merely "told" to take out the contents of his pocket.18
custody, the former may be deemed to have arrested the motorist. In this case, however, the officer’s
issuance (or intent to issue) a traffic citation ticket negates the possibility of an arrest for the same
violation. Whether consent to the search was in fact voluntary is a question of fact to be determined from the
totality of all the circumstances. Relevant to this determination are the following characteristics of the
person giving consent and the environment in which consent is given: (1) the age of the defendant; (2)
Even if one were to work under the assumption that petitioner was deemed "arrested" upon being
whether the defendant was in a public or a secluded location; (3) whether the defendant objected to the
flagged down for a traffic violation and while awaiting the issuance of his ticket, then the requirements
search or passively looked on; (4) the education and intelligence of the defendant; (5) the presence of
for a valid arrest were not complied with.
coercive police procedures; (6) the defendant’s belief that no incriminating evidence would be found; (7)
the nature of the police questioning; (8) the environment in which the questioning took place; and (9)
This Court has held that at the time a person is arrested, it shall be the duty of the arresting officer to the possibly vulnerable subjective state of the person consenting. It is the State that has the burden of
inform the latter of the reason for the arrest and must show that person the warrant of arrest, if any. proving, by clear and positive testimony, that the necessary consent was obtained, and was freely and
Persons shall be informed of their constitutional rights to remain silent and to counsel, and that any voluntarily given.19 In this case, all that was alleged was that petitioner was alone at the police station at
statement they might make could be used against them.14 It may also be noted that in this case, these three in the morning, accompanied by several police officers. These circumstances weigh heavily against
constitutional requirements were complied with by the police officers only after petitioner had been a finding of valid consent to a warrantless search.
arrested for illegal possession of dangerous drugs.
Neither does the search qualify under the "stop and frisk" rule. While the rule normally applies when a
In Berkemer, the U.S. Court also noted that the Miranda warnings must also be given to a person police officer observes suspicious or unusual conduct, which may lead him to believe that a criminal act
apprehended due to a traffic violation: may be afoot, the stop and frisk is merely a limited protective search of outer clothing for weapons.20

The purposes of the safeguards prescribed by Miranda are to ensure that the police do not coerce or In Knowles v. Iowa,21 the U.S. Supreme Court held that when a police officer stops a person for speeding
trick captive suspects into confessing, to relieve the "inherently compelling pressures" "generated by the and correspondingly issues a citation instead of arresting the latter, this procedure does not authorize
custodial setting itself," "which work to undermine the individual’s will to resist," and as much as the officer to conduct a full search of the car. The Court therein held that there was no justification for a
possible to free courts from the task of scrutinizing individual cases to try to determine, after the fact, full-blown search when the officer does not arrest the motorist. Instead, police officers may only conduct
whether particular confessions were voluntary. Those purposes are implicated as much by in-custody minimal intrusions, such as ordering the motorist to alight from the car or doing a patdown:
questioning of persons suspected of misdemeanors as they are by questioning of persons suspected of
felonies.
In Robinson, supra, we noted the two historical rationales for the "search incident to arrest" exception:
(1) the need to disarm the suspect in order to take him into custody, and (2) the need to preserve
33

evidence for later use at trial. x x x But neither of these underlying rationales for the search incident to WHEREFORE, the Petition is GRANTED. The 18 February 2011 Decision of the Court of Appeals in CA-G.R.
arrest exception is sufficient to justify the search in the present case. CR No. 32516 affirming the judgment of conviction dated 19 February 2009 of the Regional Trial Court,
5th Judicial Region, Naga City, Branch 21, in Criminal Case No. RTC 2003-0087, is hereby REVERSED and
SET ASIDE. Petitioner Rodel Luz y Ong is hereby ACQUITTED and ordered immediately released from
We have recognized that the first rationale—officer safety—is "‘both legitimate and weighty,’" x x x The
detention, unless his continued confinement is warranted by some other cause or ground.
threat to officer safety from issuing a traffic citation, however, is a good deal less than in the case of a
custodial arrest. In Robinson, we stated that a custodial arrest involves "danger to an officer" because of
"the extended exposure which follows the taking of a suspect into custody and transporting him to the SO ORDERED.
police station." 414 U. S., at 234-235. We recognized that "[t]he danger to the police officer flows from
the fact of the arrest, and its attendant proximity, stress, and uncertainty, and not from the grounds for
Facts:
arrest." Id., at 234, n. 5. A routine traffic stop, on the other hand, is a relatively brief encounter and "is
more analogous to a so-called ‘Terry stop’ . . . than to a formal arrest." Berkemer v. McCarty, 468 U. S.
PO3 Emmanuel L. Alteza testified that he saw the accused driving a motorcycle without a helmet and so
420, 439 (1984). See also Cupp v. Murphy, 412 U. S. 291, 296 (1973) ("Where there is no formal arrest . .
he flagged him down. He invited the accused to come inside their sub-station since the place where he
. a person might well be less hostile to the police and less likely to take conspicuous, immediate steps to
flagged down the accused is almost in front of the sub-station to where he is assigned as a traffic
destroy incriminating evidence").
enforcer. The accused violated a municipal ordinance which requires all motorcycle drivers to wear
helmet while driving said motor vehicle. While the officers were issuing a citation ticket for violation of
This is not to say that the concern for officer safety is absent in the case of a routine traffic municipal ordinance, PO3 Alteza noticed that the accused was uneasy and kept on reaching something
stop.1âwphi1 It plainly is not. See Mimms, supra, at 110; Wilson, supra, at 413-414. But while the from his jacket. He was alerted and told the accused to take out the contents of his jacket’s pocket as the
concern for officer safety in this context may justify the "minimal" additional intrusion of ordering a latter may have a weapon inside it. The accused obliged, slowly put out the contents of his jacket’s
driver and passengers out of the car, it does not by itself justify the often considerably greater intrusion pocket which included two plastic sachets of suspected shabu.
attending a full fieldtype search. Even without the search authority Iowa urges, officers have other, The RTC convicted petitioner of illegal possession of dangerous drugs as the substances are positive of
independent bases to search for weapons and protect themselves from danger. For example, they may methampethamine hydrochloride. Upon appeal, the CA affirmed the RTCs Decision.
order out of a vehicle both the driver, Mimms, supra, at 111, and any passengers, Wilson, supra, at 414; Upon a petition for reiew on certiorari, petitioner claims that there was no lawful search and seizure,
perform a "patdown" of a driver and any passengers upon reasonable suspicion that they may be armed because there was no lawful arrest. He claims that the finding that there was a lawful arrest was
and dangerous, Terry v. Ohio, 392 U. S. 1 (1968); conduct a "Terry patdown" of the passenger erroneous, since he was not even issued a citation ticket or charged with violation of the city ordinance.
compartment of a vehicle upon reasonable suspicion that an occupant is dangerous and may gain Even assuming there was a valid arrest, he claims that he had never consented to the search conducted
immediate control of a weapon, Michigan v. Long, 463 U. S. 1032, 1049 (1983); and even conduct a full upon him.
search of the passenger compartment, including any containers therein, pursuant to a custodial arrest,
New York v. Belton, 453 U. S. 454, 460 (1981). Issue: Whether or not the arrest, searches and seizure were invalid.

Held:
Nor has Iowa shown the second justification for the authority to search incident to arrest—the need to
discover and preserve evidence. Once Knowles was stopped for speeding and issued a citation, all the
Yes, there was no valid arrest. When he was flagged down for committing a traffic violation, he was not,
evidence necessary to prosecute that offense had been obtained. No further evidence of excessive speed
ipso facto and solely for this reason, arrested. There being no valid arrest, the warrantless search that
was going to be found either on the person of the offender or in the passenger compartment of the car.
resulted from it was likewise illegal.
(Emphasis supplied.)
Under R.A. 4136, or the Land Transportation and Traffic Code, the general procedure for dealing with a
traffic violation is not the arrest of the offender, but the confiscation of the drivers license of the latter.
The foregoing considered, petitioner must be acquitted. While he may have failed to object to the At the time that he was waiting for PO3 Alteza to write his citation ticket, petitioner could not be said to
illegality of his arrest at the earliest opportunity, a waiver of an illegal warrantless arrest does not, have been under arrest. rior to the issuance of the ticket, the period during which petitioner was at the
however, mean a waiver of the inadmissibility of evidence seized during the illegal warrantless arrest.22 police station may be characterized merely as waiting time.
The subject items seized during the illegal arrest are inadmissible. The drugs are the very corpus delicti of
The Constitution guarantees the right of the people to be secure in their persons, houses, papers and the crime of illegal possession of dangerous drugs. Thus, their inadmissibility precludes conviction and
effects against unreasonable searches and seizures.23 Any evidence obtained in violation of said right calls for the acquittal of the accused.
shall be inadmissible for any purpose in any proceeding. While the power to search and seize may at
times be necessary to the public welfare, still it must be exercised and the law implemented without FACTS:
contravening the constitutional rights of citizens, for the enforcement of no statute is of sufficient
importance to justify indifference to the basic principles of government.24 PO3 Alteza flagged down Rodel Luz for violating a municipal ordinance which requires all motorcycle
drivers to wear helmets while driving their motorcyles. PO3 Alteza invited the Luz to come inside their
The subject items seized during the illegal arrest are inadmissible.25 The drugs are the very corpus delicti sub-station since the place where he flagged down the Luz is almost in front of the said sub-station.
of the crime of illegal possession of dangerous drugs. Thus, their inadmissibility precludes conviction and While issuing a citation ticket for violation of municipal ordinance, PO3 Alteza noticed that Luz was
calls for the acquittal of the accused.26 uneasy and kept on getting something from his jacket. Alerted and so, he told the Luz to take out the
34

contents of the pocket of his jacket as the latter may have a weapon inside it. Luzo bliged and slowly put This Court has held that at the time a person is arrested, it shall be the duty of the arresting officer to
out the contents of the pocket of his jacket which was a nickel-like tin or metal container about two (2) inform the latter of the reason for the arrest and must show that person the warrant of arrest, if any.
to three (3) inches in size, including two (2) cellphones, one (1) pair of scissors and one (1) Swiss knife. Persons shall be informed of their constitutional rights to remain silent and to counsel, and that any
Upon seeing the said container, he asked Luz to open it. After Luz opened the container, PO3 Alteza statement they might make could be used against them. It may also be noted that in this case, these
noticed a cartoon cover and something beneath it, and that upon his instruction, the former spilled out constitutional requirements were complied with by the police officers only after petitioner had been
the contents of the container on the table which turned out to be four (4) plastic sachets, the two (2) of arrested for illegal possession of dangerous drugs. [T]here being no valid arrest, the warrantless search
which were empty while the other two (2) contained suspected shabu. Luz was later charged for illegal that resulted from it was likewise illegal. The subject items seized during the illegal arrest are
possession of dangerous drugs. Luz claims that there was no lawful search and seizure because there was inadmissible. The drugs are the very corpus delicti of the crime of illegal possession of dangerous drugs.
no lawful arrest. The RTC found that Luz was lawfully arrested. Upon review, the CA affirmed the RTCs Thus, their inadmissibility precludes conviction and calls for the acquittal of the accused.
Decision.
Facts:
ISSUE #1: Can Luz be considered lawfully arrested based on traffic violation under the city ordinance, and
such arrest lead to a valid search and seizure? On March 10, 2003 at around 3:00 o’clock in the morning, PO2 Emmanuel L. Alteza, who was then
assigned as a traffic enforcer saw the accused, who was coming from the direction of Panganiban Drive
and going to Diversion Road, Naga City, driving a motorcycle without a helmet; that this prompted him
HELD #1: NO, Luz was not lawfully arrested. When he was flagged down for committing a traffic
to flag down the accused for violating a municipal ordinance which requires all motorcycle drivers to
violation, he was not, ipso facto and solely for this reason, arrested. wear helmet while driving said motor vehicle, invited the accused to come inside their sub-station since
the place is almost in front of the said sub-station. He was alerted of the accused’s uneasy movement
Arrest is the taking of a person into custody in order that he or she may be bound to answer for the and thus asked to take out the contents of the pocket of his jacket as the latter may have a weapon
commission of an offense. It is effected by an actual restraint of the person to be arrested or by that inside it; that the accused obliged and slowly put out the contents of the pocket of his jacket which was a
persons voluntary submission to the custody of the one making the arrest. Neither the application of nickel-like tin or metal container about two (2) to three (3) inches in size, including two (2) cellphones,
actual force, manual touching of the body, or physical restraint, nor a formal declaration of arrest, is one (1) pair of scissors and one (1) Swiss knife; that upon seeing the said container, he asked the accused
required. It is enough that there be an intention on the part of one of the parties to arrest the other, and to open it; that after the accused opened the container, he noticed a cartoon cover and something
beneath it; and that upon his instruction, the accused spilled out the contents of the container on the
that there be an intent on the part of the other to submit, under the belief and impression that
table which turned out to be four (4) plastic sachets, the two (2) of which were empty while the other
submission is necessary. At the time that he was waiting for PO3 Alteza to write his citation ticket, two (2) contained suspected shabu.
petitioner could not be said to have been under arrest. There was no intention on the part of PO3 Alteza
to arrest him, deprive him of his liberty, or take him into custody. Prior to the issuance of the ticket, the Issue: Whether or not the roadside questioning of a motorist detained pursuant to a routine traffic stop
period during which petitioner was at the police station may be characterized merely as waiting time. In can be considered a formal arrest.
fact, as found by the trial court, PO3 Alteza himself testified that the only reason they went to the police
Ruling:
sub-station was that petitioner had been flagged down almost in front of that place. Hence, it was only
for the sake of convenience that they were waiting there. There was no intention to take petitioner into There was no valid arrest of petitioner. When he was flagged down for committing a traffic violation, he
custody. was not, ipso facto and solely for this reason, arrested. Arrest is the taking of a person into custody in
order that he or she may be bound to answer for the commission of an offense. It is effected by an actual
This ruling does not imply that there can be no arrest for a traffic violation. Certainly, when there is an restraint of the person to be arrested or by that person’s voluntary submission to the custody of the one
intent on the part of the police officer to deprive the motorist of liberty, or to take the latter into making the arrest. Neither the application of actual force, manual touching of the body, or physical
custody, the former may be deemed to have arrested the motorist. In this case, however, the officers restraint, nor a formal declaration of arrest, is required. It is enough that there be an intention on the
issuance (or intent to issue) a traffic citation ticket negates the possibility of an arrest for the same part of one of the parties to arrest the other, and that there be an intent on the part of the other to
submit, under the belief and impression that submission is necessary. There being no valid arrest, the
violation.
warrantless search that resulted from it was likewise illegal. The following are the instances when a
warrantless search is allowed: (i) a warrantless search incidental to a lawful arrest; (ii) search of evidence
ISSUE #2: Assuming that Luz was deemed arrested, was there a valid warrantless search and seizure that in “plain view;” (iii) search of a moving vehicle; (iv) consented warrantless search; (v) customs search; (vi)
can still produce conviction? a “stop and frisk” search; and (vii) exigent and emergency circumstances. None of the above-mentioned
instances, especially a search incident to a lawful arrest, are applicable to this case.
HELD#2: NO. Even if one were to work under the assumption that Luz was deemed arrested upon being
flagged down for a traffic violation and while awaiting the issuance of his ticket, then the requirements
for a valid arrest were not complied with.
35

SECOND DIVISION In defense, Ramon denied the charge and gave his version of the incident. He narrated that on
December 29, 2007, at around 4:00 in the afternoon, whilewalking alongBalingkit Street to borrow a
welding machine from one Paez Garcia, a man in civilian clothing approached and asked him if he is
G.R. No. 198694 February 13, 2013
Ramon Goco. Upon affirming his identity, he was immediately handcuffed by the man who eventually
introduced himself as a police officer. Together, they boarded a tricycle (sidecar) wherethe said officer
RAMON MARTINEZ y GOCO/RAMON GOCO y MARTINEZ @ MON, Petitioner, asked him if he was carrying illegal drugs. Despite his denial, he was still brought to a precinct to be
vs. detained. Thereafter, PO2 Soquepropositioned Ramon and asked for ₱20,000.00 in exchange for his
PEOPLE OF THE PHILIPPINES, Respondent. release.When Ramon’s wife,AmaliaGoco, was unable to produce the ₱20,000.00 which PO2 Soquehad
asked for, he (Ramon) was brought to the Manila City Hall for inquest proceedings.
DECISION
The RTC Ruling
PERLAS-BERNABE, J.:
In its April 30, 2009 Decision, the RTC convicted Ramon of the crime of possession of dangerous drugs as
Assailed in this Petition for Review on Centiorari1 under Rule 45 of the Rules of Court are the June 30, charged, finding all its elements to have been established through the testimonies of the prosecution’s
2011 Decision2 and September 20, 2011 Resolution3 of the Court of Appeals (CA) in CA-G.R. No. 32544 disinterested witnesses. In this relation, it also upheld the legality of Ramon’s warrantless arrest,
which affirmed the April 30, 2009 Decision4 of the Regional Trial Court of Manila Branch 2 (RTC) in observing that Ramon was disturbing the peace in violation of the Manila City Ordinance during the time
Criminal Case No. 08-358669 convicting petitioner Ramon Martinez y Goco/Ramon Goco y Martinez of his apprehension. Consequently, Ramon was sentenced to suffer the penalty of imprisonment of
(Ramon) of the crime of possession of dangerous drugs punished under Section 11(3) Article II of twelve (12) years and one (1) day as minimum to seventeen (17) years and four (4) months as maximum
Republic Act No. 9165 (RA 9165) otherwise known as the "Comprehensive Dangerous Drugs Act of and to pay a fine of ₱300,000.00. Aggrieved, Ramon elevated his conviction to the CA.
2002.’’
The CA Ruling
The Factual Antecedents
In its June 30, 2011 Decision,the CA denied Ramon’s appeal and thereby affirmedhis conviction. Itupheld
At around 9:15 in the evening of December 29, 2007, PO2 Roberto Soque (PO2 Soque), PO2 Alejandro the factual findings of the RTC which found that the elements of the crime of possession of dangerous
Cepe(PO2 Cepe) and PO3Edilberto Zeta (PO3 Zeta), who wereall assigned tothe Station Anti-Illegal Drugs drugs were extant, to wit: (1) that the accused is in possession of a prohibited drug; (2) that such
(SAID) Section of the Malate Police Station 9 (Police Station 9), conducted a routine foot patrol along possession is not authorized by law; and (3) that the accused freely and consciously possessed the said
Balingkit Street, Malate, Manila. In the process, they heard a man shouting "Putanginamo! drug.6
Limangdaannabaito?" Forpurportedly violating Section 844 of the Revised Ordinance of the City of
Manila (Manila City Ordinance)which punishes breaches of the peace, the man, later identified as Likewise, the CA sustained the validity of the body search made on Ramon as an incident of alawful
Ramon,was apprehended and asked to empty his pockets. In the course thereof, the police officers were warrantless arrest for breach of the peace which he committed in the presence of the police officers,
able to recover from him a small transparent plastic sachet containing white crystalline substance notwithstanding its (the case for breach of the peace)subsequent dismissal for failure to prosecute.
suspected to beshabu.PO2 Soque confiscated the sachet and brought Ramon to Police Station 9 where
the former markedthe item with the latter’s initials, "RMG." There, Police Superintendent Ferdinand
Moreover, the CAobserved that every link in the chain of custody of the prohibited drug wassufficiently
RicafrenteQuirante(PSuptQuirante) prepared a request for laboratory examination which, together with
establishedfrom the time PO2Soque took the sameup to its actual presentation in court.
the specimen, was brought by PO2 Soque to the PNP Crime Laboratory for examination.

Finally, it did not give credence to Ramon’s claim of extortion as his asseverationsfailed to overcome the
Forensic Chemist Police Senior Inspector Erickson Calabocal (PSInspCalabocal)examinedthe specimen
presumption of regularity in the performance of the police officers’ official duties.
which contained 0.173 gram of white crystalline substanceand found the same positive for
methylamphetamine hydrochloride (or shabu).
The Issue
Consequently, Ramon was charged with possession of dangerous drugs under Section 11(3), Article II of
RA 9165 throughan Information dated January 3, 2008 which states: The sole issue raised in this petition is whether or not the CA erred in affirming the Decision of the RTC
convicting Ramon of the crime of possession of dangerous drugs.
That on or about December 29, 2007, in the City of Manila, Philippines, the said accused, without being
authorized by law to possess any dangerous drug, did then and there willfully, unlawfully and knowingly The Ruling of the Court
have in his possession and under his custody and control one (1) heat sealed transparent plastic sachet
containing ZERO POINT ONE SEVEN THREE (0.173) gram of white crystalline substance containing
The petition is meritorious.
methylamphetamine hydrochloride known as SHABU, a dangerous drug.5
36

Enshrined in the fundamental law is a person’s right against unwarranted intrusions by the government. assaulting, beating or using personal violence upon another without just cause in any public place; (3)
Section 2, Article III of the 1987 Philippine Constitution (Constitution) states that: uttering any slanderous, threatening or abusive language or expression or exhibiting or displaying any
emblem, transparency, representation, motto, language, device, instrument, or thing; and (4) doing any
act, in any public place, meeting or procession, tending to disturb the peace or excite a riot, or collect
Section 2.The right of the people to be secure in their persons, houses, papers, and effects against
with other persons in a body or crowd for any unlawful purpose, or disturbance or disquiet any
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no
congregation engaged in any lawful assembly. Evidently, the gravamen of these offenses is the
search warrant or warrant of arrest shall issue except upon probable cause to be determined personally
disruption of communal tranquillity. Thus, to justify a warrantless arrest based on the same, it must be
by the judge after examination under oath or affirmation of the complainant and the witnesses he may
established that the apprehension was effected after a reasonable assessment by the police officer that
produce, and particularly describing the place to be searched and the persons or things to be seized.
a public disturbance is being committed.

Accordingly, so as to ensure that the same sacrosanct right remains revered, effects secured by
In this regard, PO2 Soque’s testimony detailed the surrounding circumstances leading to Ramon’s
government authoritiesin contraventionof the foregoingarerendered inadmissible in evidence for any
warrantless warrant, viz:
purpose, in any proceeding. In this regard, Section 3(2), Article III of the Constitution provides that:

DIRECT EXAMINATION:
2. Any evidence obtained in violation of this or the preceding section [referring to Section 2] shall be
inadmissible for any purpose in any proceeding.
ASST. CITY PROS. YAP:
Commonly known as the "exclusionary rule," the above-cited proscription is not, however, an absolute
and rigid one.7 As found in jurisprudence, the traditional exceptions are customs searches,8 searches of Q: Tell the Court, what happened when you were there on patrol? PO2 Soque:
moving vehicles,9seizure of evidence in plain view,10 consented searches,11 "stop and frisk"
measures12 andsearches incidental to a lawful arrest.13 This last-mentioned exception is of particular
A: While we were on routinary patrol we heard a man shouting on top of his voice telling "Putang ina
significance to this case and thus, necessitates further disquisition.
mo! Limang daan na ba ito?" pointing to his right front pocket, sir.

A valid warrantless arrest which justifies a subsequent search is one that is carried out under the
Q: There was a shouting, where was this man shouting, where was the shouting came from?
parameters of Section 5(a), Rule 113 of the Rules of Court14 which requires that the apprehending officer
must have been spurred by probable cause to arresta person caught in flagrante delicto. To be sure,the
term probable cause has been understood to mean a reasonable ground of suspicion supported by A: Along the street of Balingkit, sir.
circumstances sufficiently strong in themselves to warrant a cautious man's belief that the person
accused is guilty of the offense with which he is charged.15Specifically with respect to arrests, it is such Q: How far were you from this shouting, as you said?
facts and circumstances which would lead a reasonably discreet and prudent man to believe that an
offense has been committed by the person sought to be arrested.16 In this light, the determination of the
existence or absence of probable cause necessitates a re-examination of the factual incidents. A: About ten (10) meters, sir.

Records show that PO2 Soque arrested Ramon for allegedly violating Section 844 of the Manila City Q: Tell the Court what happened, what next follows?
Ordinance which provides as follows:
A: We proceeded to the voice where it came from, then, we saw a man, sir.
Sec. 844. – Breaches of the Peace. – No person shall make, and, countenance, or assist in making any
riot, affray, disorder, disturbance, or breach of the peace; or assault, beat or use personal violence upon Q: Who was that man?
another without just cause in any public place; or utter any slanderous, threatening or abusive language
or expression or exhibit or display any emblem, transparency, representation, motto, language, device,
instrument, or thing; or do any act, in any public place, meeting or procession, tending to disturb the A: Goco, sir.
peace or excite a riot, or collect with other persons in a body or crowd for any unlawful purpose; or
disturbance or disquiet any congregation engaged in any lawful assembly.1âwphi1 Q: Who is this Goco in relation to this case?

PENALTY: Imprisonment of not more than six (6) months and / or fine not more than Two Hundred pesos A: Ramon Martinez Goco, sir.
(PHP 200.00)
Q: Who is this Goco in relation to this case?
As may be readily gleaned, the foregoing ordinancepenalizes the following acts: (1) making,
countenancing, or assisting in making any riot, affray, disorder, disturbance, or breach of the peace; (2)
A: He is the one that we apprehended, sir.
37

Q: What was he doing then when you said you responded immediately, when you saw a man? Q: And there are many people outside their houses?

A: We saw him shouting on top of his voice, sir. A: Yes, sir.

Q: That is why you came near him, the one who shouted? Q: And I can imagine everybody there outside was talking also?

A: Yes, sir. A: Yes, sir.

Q: So, what did you do, Mr. Witness, together with your other cooperatives? Q: I was very noisy, everybody talking, altogether?

A: We apprehended him for bringing [sic] the silence of the serenity of the place, sir. A: They were talking casually.

Q: What time was that already at that time, the incident of shouting? Clearly, a perusal of the foregoing testimony negates the presence of probable cause when the police
officers conducted their warrantless arrest of Ramon.
A: Past 9:00, sir.
To elucidate, it cannot be said that the act of shouting in a thickly-populated place, with many people
conversing with each other on the street, would constitute any of the acts punishable under Section 844
Q: Who actually accosted Goco, the one who shouted?
of the Manila City Ordinance as above-quoted. Ramon was not making or assisting in any riot, affray,
disorder, disturbance, or breach of the peace; he was not assaulting, beating or using personal violence
A: Me, sir. upon another; and, the words he allegedly shouted – "Putanginamo! Limangdaannabaito?" –are not
slanderous, threatening or abusive, and thus, could not have tended to disturb the peace or excite a riot
Q: Tell the Court, how many were there at that time present with Goco? considering that at the time of the incident, Balingkit Street was still teeming with people and alive with
activity.

A: They scampered away when they saw the police were coming near the place, sir, they scampered in
different directions. Further, it bears stressing that no one present at the place of arrest ever complained that Ramon’s
shouting disturbed the public. On the contrary, a disinterested member of the community (a certain
Rosemarie Escobal) even testified that Ramon was merely standing in front of the store of a certain
Q: Tell the Court what were Cepe and Zeta doing also when you approached the accused? MangRomy when a man in civilian clothes, later identified as PO2 Soque, approached Ramon,
immediately handcuffed and took him away.19
A: They followed me, sir.
In its totality, the Court observes that these facts and circumstances could not have engendereda well-
Q: So, tell the Court what happened when you approached accused therein Goco? founded belief that any breach of the peace had been committed by Ramon at the time that his
warrantless arrest was effected. All told, noprobable cause existedto justify Ramon’s warrantless arrest.
A: We apprehended Goco for violation for alarm scandal, sir.
Indeed, while it is true that the legality of arrest depends upon the reasonable discretion of the officer or
functionary to whom the law at the moment leaves the decision to characterize the nature of the act or
xxx x17 deed of the person for the urgent purpose of suspending his liberty,20 this should not be exercised in a
whimsical manner, else a person’s liberty be subjected to ubiquitous abuse. Aslaw enforcers, it is largely
CROSS EXAMINATION: expectedof them to conduct a more circumspect assessment of the situation at hand. The determination
of probable cause is not a blanket-license to withhold liberty or to conduct unwarranted fishing
expeditions. It demarcates the line between legitimate human conduct on the one hand, and ostensible
ATTY. AMURAO:
criminal activity, on the other. In this respect, it must be performedwisely and cautiously, applying the
exacting standards of a reasonably discreet and prudent man. Surely, as constitutionally guaranteed
Q: So, just like Leveriza, Balingkit is also thickly populated? PO2 Soque: rightslie at the fore, the duty to determine probable cause should be clothed with utmost
conscientiousness as well as impelled by a higher sense of public accountability.
A: Yes, sir.
38

Consequently, as it cannot be said that Ramon was validly arrested the warantless search that resulted precisely all the safeguards thrown around an accused by the Constitution, solicitous of the rights of an
from it was also illegal. Thus, the subject shabu purportedly seized from Ramon is inadmissible in individual, would constitute an obstacle to such an attempt at abuse of power. The presumption of
evidence for being the proverbial fruit of the poisonous tree as mandated by the above discussed course is that the judiciary would remain independent. It is trite to say that in each and every
constitutional provision. In this regard, considering that the confiscated shabuis the very corpus delicitof
manifestation of judicial endeavor, such a virtue is of the essence. Petitioners cannot claim their claim to
the crime charged, Ramon's acquital should therefore come as a matter of course.
immunity.

WHEREFORE, the petition is GRANTED. The June 30, 2011 Decision and September 20, 2011 Resolution
***According to Art. VI, Sec. 15 of the Constitution: “The Senators and Members of the House of
of the Court of Appeals in CA-G.R. CR No. 32544 are REVERSED and SET ASIDE. Petitioner Ramon
Martinez y Goco/Ramon Goco y Martinez is hereby ACQUITTED of the crime charged. Representatives shall in all cases except treason, felony, and breach of the peace, be privileged from
arrest during their attendance at the sessions of the Congress, and in going to and returning from the
same; and for any speech or debate therein, they shall not be questioned in any other place.”
SO ORDERED.

EXEMPTION:
Martinez vs Morfe On January 2, 2012
Political Law – Privilege from Arrest They can be arrested in cases of Treason, Felony and Breach of Peace. Treason exists when the accused
levies war against the Republic or adheres to its enemies giving them aid and comfort. A felony is act or
Petitioners Manuel Martinez y Festin and Fernando Bautista, Sr., as delegates of the present
omission punishable by law. Breach of the peace covers any offense whether defined by the Revised
Constitutional Convention would invoke what they consider to be the protection of the above
Penal Code or any special statute. It is a well-settled principle in public law that the public peace must be
constitutional provision, if considered in connection with Article 145 of the Revised Penal Code
maintained and any breach thereof renders one susceptible to prosecution. Petitioners cannot claim
penalizing a public officer or employee who shall, during the sessions of Congress, “arrest or search any
their claim to immunity.
member thereof, except in case such member has committed a crime punishable under [such] Code by a
penalty higher than prision mayor.” For under the Constitutional Convention Act, delegates are entitled
to the parliamentary immunities of a senator or a representative. Both petitioners are facing criminal
prosecutions, the information filed against petitioner Manuel Martinez y Festin for falsification of a
public document and two informations against petitioner Fernando Bautista, Sr. for violation of the
Revised Election Code. The Solicitor General, on behalf of the respondent Judges in the above
proceedings, would dispute such a contention on the ground that the constitutional provision does not
cover any criminal prosecution being merely an exemption from arrest in civil cases, the logical inference
being that insofar as a provision of the Revised Penal Code would expand such an immunity, it would be
unconstitutional or at the very least inoperative.

ISSUE: Whether or not Martinez and Bautista are immune from arrest.

HELD:

There is, to be sure, a full recognition of the necessity to have members of Congress, and likewise
delegates to the Constitutional Convention, entitled to the utmost freedom to enable them to discharge
their vital responsibilities, bowing to no other force except the dictates of their conscience. Necessarily
the utmost latitude in free speech should be accorded them. When it comes to freedom from arrest,
however, it would amount to the creation of a privileged class, without justification in reason, if
notwithstanding their liability for a criminal offense, they would be considered immune during their
attendance in Congress and in going to and returning from the same. There is likely to be no dissent from
the proposition that a legislator or a delegate can perform his functions efficiently and well, without the
need for any transgression of the criminal law. Should such an unfortunate event come to pass, he is to
be treated like any other citizen considering that there is a strong public interest in seeing to it that crime
should not go unpunished. To the fear that may be expressed that the prosecuting arm of the
government might unjustly go after legislators belonging to the minority, it suffices to answer that
39

SECOND DIVISION Consequently, appellant was charged with violation of Section 11, Article II of RA 9165 for illegal
possession of dangerous drugs in an Information10 which reads:
G.R. No. 201363 March 18, 2013
That on or about the 25th day of December, 2006 in Caloocan City, Metro Manila and within the
jurisdiction of this Honorable Court, the above-named accused, without being authorized by law, did
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
then and there willfully, unlawfully and feloniously have in his possession, custody and control,
vs.
METHYLAMPHETAMINE HYDROCHLORIDE (Shabu) weighing 0.03 gram which, when subjected to
NAZARENO VILLAREAL y LUALHATI, Accused-Appellant.
chemistry examination gave positive result of METHYLAMPHETAMIME HYDROCHLORIDE, a dangerous
drug.
DECISION
CONTRARY TO LAW.
PERLAS-BERNABE, J.:
When arraigned, appellant, assisted by counsel de oficio, entered a plea of not guilty to the offense
This is an appeal from the May 25, 2011 Decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 31320 charged.11
which affirmed in toto the December 11, 2007 Decision2
In his defense, appellant denied PO3 de Leon’s allegations and instead claimed that on the date and time
of the Regional Trial Court of Caloocan City, Branch 123 (RTC), convicting appellant Nazareno Villareal y of the incident, he was walking alone along Avenida, Rizal headed towards 5th
Lualhati (appellant) of violation of Section 11, Article II of Republic Act No. 91653 (RA 9165) and
sentencing him to suffer the penalty of imprisonment for twelve (12) years and one (1) day to fourteen
Avenue when someone who was riding a motorcycle called him from behind. Appellant approached the
(14) years and eight (8) months and to pay a fine of ₱300,000.00.
person, who turned out to be PO3 de Leon, who then told him not to run, frisked him, and took his
wallet which contained ₱1,000.00.12
The Factual Antecedents
Appellant was brought to the 9th Avenue police station where he was detained and mauled by eight
On December 25, 2006 at around 11:30 in the morning, as PO3 Renato de Leon (PO3 de Leon) was other detainees under the orders of PO3 de Leon. Subsequently, he was brought to the Sangandaan
driving his motorcycle on his way home along 5th Avenue, he saw appellant from a distance of about 8 Headquarters where two other police officers, whose names he recalled were "Michelle" and "Hipolito,"
to 10 meters, holding and scrutinizing in his hand a plastic sachet of shabu. Thus, PO3 de Leon, a took him to the headquarters’ firing range. There, "Michelle" and "Hipolito" forced him to answer
member of the Station Anti-Illegal Drugs-Special Operation Unit (SAID-SOU) in Caloocan City, alighted questions about a stolen cellphone, firing a gun right beside his ear each time he failed to answer and
from his motorcycle and approached the appellant whom he recognized as someone he had previously eventually mauling him when he continued to deny knowledge about the cellphone.13 Thus, appellant
arrested for illegal drug possession.4 sustained head injuries for which he was brought to the Diosdado Macapagal Hospital for proper
treatment.14
Upon seeing PO3 de Leon, appellant tried to escape but was quickly apprehended with the help of a
tricycle driver. Despite appellant’s attempts to resist arrest, PO3 de Leon was able to board appellant The following day, he underwent inquest proceedings before one Fiscal Guiyab, who informed him that
onto his motorcycle and confiscate the plastic sachet of shabu in his possession. Thereafter, PO3 de Leon he was being charged with resisting arrest and "Section 11."15 The first charge was eventually dismissed.
brought appellant to the 9th Avenue Police Station to fix his handcuffs, and then they proceeded to the
SAID-SOU office where PO3 de Leon marked the seized plastic sachet with "RZL/NV 12-25-06,"
The RTC Ruling
representing his and appellant’s initials and the date of the arrest.5

After trial on the merits, the RTC convicted appellant as charged upon a finding that all the elements of
Subsequently, PO3 de Leon turned over the marked evidence as well as the person of appellant to the
the crime of illegal possession of dangerous drugs have been established, to wit: (1) the appellant is in
investigator, PO2 Randulfo Hipolito (PO2 Hipolito) who, in turn, executed an acknowledgment
possession of an item or object which is identified to be a prohibited drug; (2) that such possession is not
receipt6 and prepared a letter request7 for the laboratory examination of the seized substance. PO2
authorized by law; and (3) that the accused freely and consciously possesses said drug. Finding no ill
Hipolito personally delivered the request and the confiscated item to the Philippine National Police (PNP)
motive on the part of PO3 de Leon to testify falsely against appellant, coupled with the fact that the
Crime Laboratory, which were received by Police Senior Inspector Albert Arturo (PSI Arturo), the forensic
former had previously arrested the latter for illegal possession of drugs under Republic Act No.
chemist.8
642516 (RA 6425), the RTC gave full faith and credit to PO3 de Leon’s testimony. Moreover, the RTC
found the plain view doctrine to be applicable, as the confiscated item was in plain view of PO3 de Leon
Upon qualitative examination, the plastic sachet, which contained 0.03 gram of white crystalline at the place and time of the arrest.
substance, tested positive for methylamphetamine hydrochloride, a dangerous drug.9
On the other hand, the RTC gave scant consideration to the defenses of denial and frame-up proffered
by the appellant, being uncorroborated, and in the light of the positive assertions of PO3 de Leon. It
40

refused to give credence to appellant’s claim that PO3 de Leon robbed him of his money, since he failed For the warrantless arrest under paragraph (a) of Section 5 to operate, two elements must concur: (1)
to bring the incident to the attention of PO3 de Leon’s superiors or to institute any action against the the person to be arrested must execute an overt act indicating that he has just committed, is actually
latter. committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within
the view of the arresting officer.19 On the other hand, paragraph (b) of Section 5 requires for its
application that at the time of the arrest, an offense had in fact just been committed and the arresting
Consequently, the RTC sentenced appellant to suffer the penalty of imprisonment of twelve (12) years
officer had personal knowledge of facts indicating that the appellant had committed it.20
and one (1) day to fourteen (14) years and eight (8) months and to pay a fine of ₱300,000.00.

In both instances, the officer’s personal knowledge of the fact of the commission of an offense is
The CA Ruling
absolutely required. Under paragraph (a), the officer himself witnesses the crime while under paragraph
(b), he knows for a fact that a crime has just been committed.
In its assailed Decision, the CA sustained appellant’s conviction, finding "a clear case of in flagrante
delicto warrantless arrest"17 as provided under Section 5, Rule 113 of the Revised Rules of Criminal
In sustaining appellant’s conviction in this case, the appellate court ratiocinated that this was a clear case
Procedure. The CA held that appellant "exhibited an overt act or strange conduct that would reasonably
of an "in flagrante delicto warrantless arrest" under paragraphs (a) and (b) of Section 5, Rule 113 of the
arouse suspicion,"18aggravated by the existence of his past criminal citations and his attempt to flee
Revised Rules on Criminal Procedure, as above-quoted.
when PO3 de Leon approached him.

The Court disagrees.


Citing jurisprudence, the appellate court likewise ruled that the prosecution had adequately shown the
continuous and unbroken chain of custody of the seized item, from the time it was confiscated from
appellant by PO3 de Leon, marked at the police station, turned over to PO2 Hipolito and delivered to the A punctilious assessment of the factual backdrop of this case shows that there could have been no lawful
crime laboratory, where it was received by PSI Arturo, the forensic chemist, up to the time it was warrantless arrest. A portion of PO3 de Leon’s testimony on direct examination in court is revelatory:
presented in court for proper identification.
FISCAL LARIEGO: While you were there at 5th
The Issue
Avenue, was there anything unusual that transpired?
The sole issue advanced before the Court for resolution is whether the CA erred in affirming in toto the
RTC’s Decision convicting appellant of the offense charged.
PO3 DE LEON: Yes Ma’am.

The Ruling of the Court


Q: What was this incident?

The appeal is meritorious.


A: While I was on board my motorcycle on my home, I saw a man looking at the shabu in his hand,
Ma’am.
Section 5, Rule 113 of the Revised Rules of Criminal Procedure lays down the basic rules on lawful
warrantless arrests, either by a peace officer or a private person, as follows:
Q: And exactly what time was this?

Sec. 5. Arrest without warrant; when lawful. – A peace officer or a private person may, without a
A: Around 11:30 in the morning, Ma’am.
warrant, arrest a person:

Q: How far were you from this person that you said was verifying something in his hand?
(a) When, in his presence, the person to be arrested has committed, is actually committing, or
is attempting to commit an offense;
A: Eight to ten meters, Ma’am.
(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 Q: What exactly did you see he was verifying? A: The shabu that he was holding, Ma’am.
it; and
Q: After seeing what the man was doing, what did you do next?
(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 A: I alighted from my motorcycle and approached him, Ma’am.
pending, or has escaped while being transferred from one confinement to another.
41

Q: In the first place why do you say that what he was examining and holding in his hand was a shabu? power of police officers to effect warrantless arrests based solely on knowledge of a person’s previous
criminal infractions, rendering nugatory the rigorous requisites laid out under Section 5.
A: Because of the numerous arrests that I have done, they were all shabu, Ma’am.
It was therefore error on the part of the CA to rule on the validity of appellant’s arrest based on
"personal knowledge of facts regarding appellant’s person and past criminal record," as this is
On the basis of the foregoing testimony, the Court finds it inconceivable how PO3 de Leon, even with his
unquestionably not what "personal knowledge" under the law contemplates, which must be strictly
presumably perfect vision, would be able to identify with reasonable accuracy, from a distance of about
construed.24
8 to 10 meters and while simultaneously driving a motorcycle, a negligible and minuscule amount of
powdery substance (0.03 gram) inside the plastic sachet allegedly held by appellant. That he had
previously effected numerous arrests, all involving shabu, is insufficient to create a conclusion that what Furthermore, appellant’s act of darting away when PO3 de Leon approached him should not be
he purportedly saw in appellant’s hands was indeed shabu. construed against him. Flight per se is not synonymous with guilt and must not always be attributed to
one’s consciousness of guilt.25It is not a reliable indicator of guilt without other circumstances,26 for even
in high crime areas there are many innocent reasons for flight, including fear of retribution for speaking
Absent any other circumstance upon which to anchor a lawful arrest, no other overt act could be
to officers, unwillingness to appear as witnesses, and fear of being wrongfully apprehended as a guilty
properly attributed to appellant as to rouse suspicion in the mind of PO3 de Leon that he (appellant) had
party.27 Thus, appellant’s attempt to run away from PO3 de Leon is susceptible of various explanations; it
just committed, was committing, or was about to commit a crime, for the acts per se of walking along
could easily have meant guilt just as it could likewise signify innocence.
the street and examining something in one’s hands cannot in any way be considered criminal acts. In
fact, even if appellant had been exhibiting unusual or strange acts, or at the very least appeared
suspicious, the same would not have been sufficient in order for PO3 de Leon to effect a lawful In fine, appellant’s acts of walking along the street and holding something in his hands, even if they
warrantless arrest under paragraph (a) of Section 5, Rule 113. appeared to be dubious, coupled with his previous criminal charge for the same offense, are not by
themselves sufficient to incite suspicion of criminal activity or to create probable cause enough to justify
a warrantless arrest under Section 5 above-quoted. "Probable cause" has been understood to mean a
Neither has it been established that the rigorous conditions set forth in paragraph (b) of Section 5, Rule
reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant
113 have been complied with, i.e., that an offense had in fact just been committed and the arresting
a cautious man's belief that the person accused is guilty of the offense with which he is
officer had personal knowledge of facts indicating that the appellant had committed it.
charged.28 Specifically with respect to arrests, it is such facts and circumstances which would lead a
reasonably discreet and prudent man to believe that an offense has been committed by the person
The factual circumstances of the case failed to show that PO3 de Leon had personal knowledge that a sought to be arrested,29 which clearly do not obtain in appellant’s case.
crime had been indisputably committed by the appellant. It is not enough that PO3 de Leon had
reasonable ground to believe that appellant had just committed a crime; a crime must in fact have been
Thus, while it is true that the legality of an arrest depends upon the reasonable discretion of the officer
committed first, which does not obtain in this case.
or functionary to whom the law at the moment leaves the decision to characterize the nature of the act
or deed of the person for the urgent purpose of suspending his liberty,30 it cannot be arbitrarily or
Without the overt act that would pin liability against appellant, it is therefore clear that PO3 de Leon was capriciously exercised without unduly compromising a citizen’s constitutionally-guaranteed right to
merely impelled to apprehend appellant on account of the latter’s previous charge22 for the same liberty. As the Court succinctly explained in the case of People v. Tudtud:31
offense. The CA stressed this point when it said:
The right of a person to be secure against any unreasonable seizure of his body and any deprivation of
It is common for drugs, being illegal in nature, to be concealed from view.1âwphi1 PO3 Renato de Leon his liberty is a most basic and fundamental one. The statute or rule which allows exceptions to the
saw appellant holding and scrutinizing a piece of plastic wrapper containing a white powderly substance. requirement of warrants of arrest is strictly construed. Any exception must clearly fall within the
PO3 Renato de Leon was quite familiar with appellant, having arrested him twice before for the same situations when securing a warrant would be absurd or is manifestly unnecessary as provided by the
illegal possession of drug. It was not just a hollow suspicion. The third time around, PO3 de Leon had Rule. We cannot liberally construe the rule on arrests without warrant or extend its application beyond
reasonably assumed that the piece of plastic wrapper appellant was holding and scrutinizing also the cases specifically provided by law. To do so would infringe upon personal liberty and set back a basic
contained shabu as he had personal knowledge of facts regarding appellant’s person and past criminal right so often violated and so deserving of full protection.
record. He would have been irresponsible to just ‘wait and see’ and give appellant a chance to scamper
away. For his part, appellant being, in fact, in possession of illegal drug, sensing trouble from an equally
Consequently, there being no lawful warrantless arrest, the shabu purportedly seized from appellant is
familiar face of authority, ran away. Luckily, however, PO3 de Leon caught up with him through the aid
rendered inadmissible in evidence for being the proverbial fruit of the poisonous tree. As the confiscated
of a tricycle driver. Appellant’s act of running away, indeed, validated PO3 de Leon’s reasonable
shabu is the very corpus delicti of the crime charged, appellant must be acquitted and exonerated from
suspicion that appellant was actually in possession of illegal drug. x x x23
all criminal liability.

However, a previous arrest or existing criminal record, even for the same offense, will not suffice to
WHEREFORE, the assailed Decision of the Court of Appeals in CA-G.R. CR No. 31320 is REVERSED and SET
satisfy the exacting requirements provided under Section 5, Rule 113 in order to justify a lawful
ASIDE. Appellant Nazareno Villareal y Lualhati is ACQUITTED on reasonable doubt of the offense charged
warrantless arrest. "Personal knowledge" of the arresting officer that a crime had in fact just been
and ordered immediately released from detention, unless his continued confinement is warranted by
committed is required. To interpret "personal knowledge" as referring to a person’s reputation or past
some other cause or ground.
criminal citations would create a dangerous precedent and unnecessarily stretch the authority and
42

SO ORDERED.

Facts:

In the morning of December 25, 2006, Police officer Renato de Leon was driving his motorcycle. From a
distance of 8 to 10 meters he saw the appellant Villareal, holding a plastic sachet of shabu. When
Villareal saw him, he immediately ran away. When de Leon caught Villareal, he was brought to the police
station where he was arrested and the alleged shabu was turned over to be marked as evidence. The
substance was tested and was proven to be a 0.03 gram of methylamphetamine hydrochloride, a
dangerous drug. The appellant was charged with the violation of Section 11, Article II of R.A. 9165 for
illegal possession of dangerous drugs. During the trial de Leon claimed that the appellant had previous
criminal charges for the same offense and that he arrested the appellant because when he saw that the
appellant was holding a powdery white substance, it immediately gave him suspicion as to the matter
thereof.

Issue: Whether or not there was a valid warrantless arrest based on the police officers personal
knowledge of the criminal record of the appellant.

Held:

No, there was no valid warrantless arrest. A lawful warrantless arrest exists when either of the following
circumstances are present: (a) when, in his presence, 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 he
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 service final judgment or is temporarily
confined while his case is pending, or has escaped while being transferred from one confinement to
another. Based on the distance and the amount of the powdery substance it is insufficient to conclude,
even with clear vision that such substance constitutes as shabu. The act of the appellant of examining
the substance is not tantamount to arouse suspicion of a commission or possible commission of a crime
even if he has previous criminal history on the same offense.

Personal knowledge is not defined as knowledge of a person’s criminal record, but personal knowledge
as to the actual commission of the crime. The act of running away from authority also does not
automatically imply guilt on the accused. There are various reasons to run away from authority, and
commission of a crime is just one of the possible reasons. Because there is an absence of overt act there
is no justification for the appellant’s warrantless arrest. Hence, it cannot be presented as evidence in
court as it is a fruit of the poisonous tree.
43

EN BANC | G.R. No. 157870 In addition to the above stated penalties in this Section, those found to be positive for dangerous drugs
use shall be subject to the provisions of Section 15 of this Act.
SOCIAL JUSTICE SOCIETY (SJS), Petitioner,
G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v. Commission on Elections)
- versus -
On December 23, 2003, the Commission on Elections (COMELEC) issued Resolution No. 6486, prescribing
DANGEROUS DRUGS BOARD andPHILIPPINE DRUG ENFORCEMENT AGENCY (PDEA), Respondents. the rules and regulations on the mandatory drug testing of candidates for public office in connection
with the May 10, 2004 synchronized national and local elections. The pertinent portions of the said
DECISION resolution read as follows:

VELASCO, JR., J.: WHEREAS, Section 36 (g) of Republic Act No. 9165 provides:

In these kindred petitions, the constitutionality of Section 36 of Republic Act No. (RA) 9165, otherwise SEC. 36. Authorized Drug Testing.x x x
known as the Comprehensive Dangerous Drugs Act of 2002, insofar as it requires mandatory drug testing
of candidates for public office, students of secondary and tertiary schools, officers and employees of (g) All candidates for public office x x x both in the national or local government shall undergo a
public and private offices, and persons charged before the prosecutors office with certain offenses, mandatory drug test.
among other personalities, is put in issue.
WHEREAS, Section 1, Article XI of the 1987 Constitution provides that public officers and employees
As far as pertinent, the challenged section reads as follows: must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty
and efficiency;
SEC. 36. Authorized Drug Testing.Authorized drug testing shall be done by any government forensic
laboratories or by any of the drug testing laboratories accredited and monitored by the DOH to WHEREAS, by requiring candidates to undergo mandatory drug test, the public will know the quality of
safeguard the quality of the test results. x x x The drug testing shall employ, among others, two (2) candidates they are electing and they will be assured that only those who can serve with utmost
testing methods, the screening test which will determine the positive result as well as the type of drug responsibility, integrity, loyalty, and efficiency would be elected x x x.
used and the confirmatory test which will confirm a positive screening test. x x x The following shall be
subjected to undergo drug testing: NOW THEREFORE, The [COMELEC], pursuant to the authority vested in it under the Constitution, Batas
Pambansa Blg. 881 (Omnibus Election Code), [RA] 9165 and other election laws, RESOLVED to
(c) Students of secondary and tertiary schools.Students of secondary and tertiary schools shall, pursuant promulgate, as it hereby promulgates, the following rules and regulations on the conduct of mandatory
to the related rules and regulations as contained in the schools student handbook and with notice to the drug testing to candidates for public office[:]
parents, undergo a random drug testing x x x;
SECTION 1. Coverage.All candidates for public office, both national and local, in the May 10, 2004
(d) Officers and employees of public and private offices.Officers and employees of public and private Synchronized National and Local Elections shall undergo mandatory drug test in government forensic
offices, whether domestic or overseas, shall be subjected to undergo a random drug test as contained in laboratories or any drug testing laboratories monitored and accredited by the Department of Health.
the companys work rules and regulations, x x x for purposes of reducing the risk in the workplace. Any
officer or employee found positive for use of dangerous drugs shall be dealt with administratively which On March 25, 2004, in addition to the drug certificates filed with their respective offices, the Comelec
shall be a ground for suspension or termination, subject to the provisions of Article 282 of the Labor Offices and employees concerned shall submit to the Law Department two (2) separate lists of
Code and pertinent provisions of the Civil Service Law; candidates. The first list shall consist of those candidates who complied with the mandatory drug test
while the second list shall consist of those candidates who failed to comply x x x.
(f) All persons charged before the prosecutors office with a criminal offense having an imposable
penalty of imprisonment of not less than six (6) years and one (1) day shall undergo a mandatory drug SEC. 4. Preparation and publication of names of candidates.Before the start of the campaign period, the
test; [COMELEC] shall prepare two separate lists of candidates. The first list shall consist of those candidates
who complied with the mandatory drug test while the second list shall consist of those candidates who
(g) All candidates for public office whether appointed or elected both in the national or local failed to comply with said drug test. x x x
government shall undergo a mandatory drug test.
44

SEC. 5. Effect of failure to undergo mandatory drug test and file drug test certificate.No person elected The Issue on Locus Standi
to any public office shall enter upon the duties of his office until he has undergone mandatory drug test
and filed with the offices enumerated under Section 2 hereof the drug test certificate herein required. First off, we shall address the justiciability of the cases at bench and the matter of the standing of
petitioners SJS and Laserna to sue. As respondents DDB and PDEA assert, SJS and Laserna failed to allege
Petitioner Aquilino Q. Pimentel, Jr., a senator of the Republic and a candidate for re-election in the May any incident amounting to a violation of the constitutional rights mentioned in their separate
10, 2004 elections,[1] filed a Petition for Certiorari and Prohibition under Rule 65. In it, he seeks (1) to petitions.[2]
nullify Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 dated December 23, 2003 for being
unconstitutional in that they impose a qualification for candidates for senators in addition to those It is basic that the power of judicial review can only be exercised in connection with a bona fide
already provided for in the 1987 Constitution; and (2) to enjoin the COMELEC from implementing controversy which involves the statute sought to be reviewed.[3] But even with the presence of an
Resolution No. 6486. actual case or controversy, the Court may refuse to exercise judicial review unless the constitutional
question is brought before it by a party having the requisite standing to challenge it.[4] To have standing,
Pimentel invokes as legal basis for his petition Sec. 3, Article VI of the Constitution, which states: one must establish that he or she has suffered some actual or threatened injury as a result of the
allegedly illegal conduct of the government; the injury is fairly traceable to the challenged action; and
SECTION 3. No person shall be a Senator unless he is a natural-born citizen of the Philippines, and, on the the injury is likely to be redressed by a favorable action.[5]
day of the election, is at least thirty-five years of age, able to read and write, a registered voter, and a
resident of the Philippines for not less than two years immediately preceding the day of the election. The rule on standing, however, is a matter of procedure; hence, it can be relaxed for non-traditional
plaintiffs, like ordinary citizens, taxpayers, and legislators when the public interest so requires, such as
According to Pimentel, the Constitution only prescribes a maximum of five (5) qualifications for one to be when the matter is of transcendental importance, of overarching significance to society, or of paramount
a candidate for, elected to, and be a member of the Senate. He says that both the Congress and public interest.[6] There is no doubt that Pimentel, as senator of the Philippines and candidate for the
COMELEC, by requiring, via RA 9165 and Resolution No. 6486, a senatorial aspirant, among other May 10, 2004 elections, possesses the requisite standing since he has substantial interests in the subject
candidates, to undergo a mandatory drug test, create an additional qualification that all candidates for matter of the petition, among other preliminary considerations. Regarding SJS and Laserna, this Court is
senator must first be certified as drug free. He adds that there is no provision in the Constitution wont to relax the rule on locus standi owing primarily to the transcendental importance and the
authorizing the Congress or COMELEC to expand the qualification requirements of candidates for paramount public interest involved in the enforcement of Sec. 36 of RA 9165.
senator.
The Consolidated Issues
G.R. No. 157870 (Social Justice Society v. Dangerous Drugs Board and Philippine Drug Enforcement
Agency) The principal issues before us are as follows:

In its Petition for Prohibition under Rule 65, petitioner Social Justice Society (SJS), a registered political (1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 impose an additional qualification for
party, seeks to prohibit the Dangerous Drugs Board (DDB) and the Philippine Drug Enforcement Agency candidates for senator? Corollarily, can Congress enact a law prescribing qualifications for candidates for
(PDEA) from enforcing paragraphs (c), (d), (f), and (g) of Sec. 36 of RA 9165 on the ground that they are senator in addition to those laid down by the Constitution? and
constitutionally infirm. For one, the provisions constitute undue delegation of legislative power when
they give unbridled discretion to schools and employers to determine the manner of drug testing. For (2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165 unconstitutional? Specifically, do these
another, the provisions trench in the equal protection clause inasmuch as they can be used to harass a paragraphs violate the right to privacy, the right against unreasonable searches and seizure, and the
student or an employee deemed undesirable. And for a third, a persons constitutional right against equal protection clause? Or do they constitute undue delegation of legislative power?
unreasonable searches is also breached by said provisions.
Pimentel Petition
G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v. Dangerous Drugs Board and Philippine Drug Enforcement
Agency) (Constitutionality of Sec. 36[g] of RA 9165 and COMELEC Resolution No. 6486)

Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also seeks in his Petition for Certiorari and In essence, Pimentel claims that Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 illegally impose
Prohibition under Rule 65 that Sec. 36(c), (d), (f), and (g) of RA 9165 be struck down as unconstitutional an additional qualification on candidates for senator. He points out that, subject to the provisions on
for infringing on the constitutional right to privacy, the right against unreasonable search and seizure, nuisance candidates, a candidate for senator needs only to meet the qualifications laid down in Sec. 3,
and the right against self-incrimination, and for being contrary to the due process and equal protection Art. VI of the Constitution, to wit: (1) citizenship, (2) voter registration, (3) literacy, (4) age, and (5)
guarantees. residency. Beyond these stated qualification requirements, candidates for senator need not possess any
other qualification to run for senator and be voted upon and elected as member of the Senate. The
45

Congress cannot validly amend or otherwise modify these qualification standards, as it cannot disregard, It may of course be argued, in defense of the validity of Sec. 36(g) of RA 9165, that the provision does
evade, or weaken the force of a constitutional mandate,[7] or alter or enlarge the Constitution. not expressly state that non-compliance with the drug test imposition is a disqualifying factor or would
work to nullify a certificate of candidacy. This argument may be accorded plausibility if the drug test
Pimentels contention is well-taken. Accordingly, Sec. 36(g) of RA 9165 should be, as it is hereby declared requirement is optional. But the particular section of the law, without exception, made drug-testing on
as, unconstitutional. It is basic that if a law or an administrative rule violates any norm of the those covered mandatory, necessarily suggesting that the obstinate ones shall have to suffer the adverse
Constitution, that issuance is null and void and has no effect. The Constitution is the basic law to which consequences for not adhering to the statutory command. And since the provision deals with candidates
all laws must conform; no act shall be valid if it conflicts with the Constitution.[8] In the discharge of their for public office, it stands to reason that the adverse consequence adverted to can only refer to and
defined functions, the three departments of government have no choice but to yield obedience to the revolve around the election and the assumption of public office of the candidates. Any other construal
commands of the Constitution. Whatever limits it imposes must be observed.[9] would reduce the mandatory nature of Sec. 36(g) of RA 9165 into a pure jargon without meaning and
effect whatsoever.
Congress inherent legislative powers, broad as they may be, are subject to certain limitations. As early as
1927, in Government v. Springer, the Court has defined, in the abstract, the limits on legislative power in While it is anti-climactic to state it at this juncture, COMELEC Resolution No. 6486 is no longer
the following wise: enforceable, for by its terms, it was intended to cover only the May 10, 2004 synchronized elections and
the candidates running in that electoral event. Nonetheless, to obviate repetition, the Court deems it
Someone has said that the powers of the legislative department of the Government, like the boundaries appropriate to review and rule, as it hereby rules, on its validity as an implementing issuance.
of the ocean, are unlimited. In constitutional governments, however, as well as governments acting
under delegated authority, the powers of each of the departments x x x are limited and confined within It ought to be made abundantly clear, however, that the unconstitutionality of Sec. 36(g) of RA 9165 is
the four walls of the constitution or the charter, and each department can only exercise such powers as rooted on its having infringed the constitutional provision defining the qualification or eligibility
are necessarily implied from the given powers. The Constitution is the shore of legislative authority requirements for one aspiring to run for and serve as senator.
against which the waves of legislative enactment may dash, but over which it cannot leap.[10]
SJS Petition
Thus, legislative power remains limited in the sense that it is subject to substantive and constitutional
limitations which circumscribe both the exercise of the power itself and the allowable subjects of (Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165)
legislation.[11] The substantive constitutional limitations are chiefly found in the Bill of Rights[12] and
other provisions, such as Sec. 3, Art. VI of the Constitution prescribing the qualifications of candidates for The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for secondary and tertiary level
senators. students and public and private employees, while mandatory, is a random and suspicionless
arrangement. The objective is to stamp out illegal drug and safeguard in the process the well being of
In the same vein, the COMELEC cannot, in the guise of enforcing and administering election laws or [the] citizenry, particularly the youth, from the harmful effects of dangerous drugs. This statutory
promulgating rules and regulations to implement Sec. 36(g), validly impose qualifications on candidates purpose, per the policy-declaration portion of the law, can be achieved via the pursuit by the state of an
for senator in addition to what the Constitution prescribes. If Congress cannot require a candidate for intensive and unrelenting campaign against the trafficking and use of dangerous drugs x x x through an
senator to meet such additional qualification, the COMELEC, to be sure, is also without such power. The integrated system of planning, implementation and enforcement of anti-drug abuse policies, programs
right of a citizen in the democratic process of election should not be defeated by unwarranted and projects.[14] The primary legislative intent is not criminal prosecution, as those found positive for
impositions of requirement not otherwise specified in the Constitution.[13] illegal drug use as a result of this random testing are not necessarily treated as criminals. They may even
be exempt from criminal liability should the illegal drug user consent to undergo rehabilitation. Secs. 54
Sec. 36(g) of RA 9165, as sought to be implemented by the assailed COMELEC resolution, effectively and 55 of RA 9165 are clear on this point:
enlarges the qualification requirements enumerated in the Sec. 3, Art. VI of the Constitution. As couched,
said Sec. 36(g) unmistakably requires a candidate for senator to be certified illegal-drug clean, obviously Sec. 54. Voluntary Submission of a Drug Dependent to Confinement, Treatment and Rehabilitation.A
as a pre-condition to the validity of a certificate of candidacy for senator or, with like effect, a condition drug dependent or any person who violates Section 15 of this Act may, by himself/herself or through
sine qua non to be voted upon and, if proper, be proclaimed as senator-elect. The COMELEC resolution his/her parent, [close relatives] x x x apply to the Board x x x for treatment and rehabilitation of the drug
completes the chain with the proviso that [n]o person elected to any public office shall enter upon the dependency. Upon such application, the Board shall bring forth the matter to the Court which shall order
duties of his office until he has undergone mandatory drug test. Viewed, therefore, in its proper context, that the applicant be examined for drug dependency. If the examination x x x results in the certification
Sec. 36(g) of RA 9165 and the implementing COMELEC Resolution add another qualification layer to what that the applicant is a drug dependent, he/she shall be ordered by the Court to undergo treatment and
the 1987 Constitution, at the minimum, requires for membership in the Senate. Whether or not the rehabilitation in a Center designated by the Board x x x.
drug-free bar set up under the challenged provision is to be hurdled before or after election is really of
no moment, as getting elected would be of little value if one cannot assume office for non-compliance
with the drug-testing requirement.
46

Sec. 55. Exemption from the Criminal Liability Under the Voluntary Submission Program.A drug The US Supreme Court, citing Vernonia, upheld the constitutionality of drug testing even among non-
dependent under the voluntary submission program, who is finally discharged from confinement, shall athletes on the basis of the schools custodial responsibility and authority. In so ruling, said court made
be exempt from the criminal liability under Section 15 of this Act subject to the following conditions: no distinction between a non-athlete and an athlete. It ratiocinated that schools and teachers act in
place of the parents with a similar interest and duty of safeguarding the health of the students. And in
School children, the US Supreme Court noted, are most vulnerable to the physical, psychological, and holding that the school could implement its random drug-testing policy, the Court hinted that such a test
addictive effects of drugs. Maturing nervous systems of the young are more critically impaired by was a kind of search in which even a reasonable parent might need to engage.
intoxicants and are more inclined to drug dependency. Their recovery is also at a depressingly low
rate.[15] In sum, what can reasonably be deduced from the above two cases and applied to this jurisdiction are:
(1) schools and their administrators stand in loco parentis with respect to their students; (2) minor
The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by students have contextually fewer rights than an adult, and are subject to the custody and supervision of
the guarantee against unreasonable search and seizure[16] under Sec. 2, Art. III[17] of the Constitution. their parents, guardians, and schools; (3) schools, acting in loco parentis, have a duty to safeguard the
But while the right to privacy has long come into its own, this case appears to be the first time that the health and well-being of their students and may adopt such measures as may reasonably be necessary to
validity of a state-decreed search or intrusion through the medium of mandatory random drug testing discharge such duty; and (4) schools have the right to impose conditions on applicants for admission that
among students and employees is, in this jurisdiction, made the focal point. Thus, the issue tendered in are fair, just, and non-discriminatory.
these proceedings is veritably one of first impression.
Guided by Vernonia and Board of Education, the Court is of the view and so holds that the provisions of
US jurisprudence is, however, a rich source of persuasive jurisprudence. With respect to random drug RA 9165 requiring mandatory, random, and suspicionless drug testing of students are constitutional.
testing among school children, we turn to the teachings of Vernonia School District 47J v. Acton Indeed, it is within the prerogative of educational institutions to require, as a condition for admission,
(Vernonia) and Board of Education of Independent School District No. 92 of Pottawatomie County, et al. compliance with reasonable school rules and regulations and policies. To be sure, the right to enroll is
v. Earls, et al. (Board of Education),[18] both fairly pertinent US Supreme Court-decided cases involving not absolute; it is subject to fair, reasonable, and equitable requirements.
the constitutionality of governmental search.
The Court can take judicial notice of the proliferation of prohibited drugs in the country that threatens
In Vernonia, school administrators in Vernonia, Oregon wanted to address the drug menace in their the well-being of the people,[21] particularly the youth and school children who usually end up as
respective institutions following the discovery of frequent drug use by school athletes. After consultation victims. Accordingly, and until a more effective method is conceptualized and put in motion, a random
with the parents, they required random urinalysis drug testing for the schools athletes. James Acton, a drug testing of students in secondary and tertiary schools is not only acceptable but may even be
high school student, was denied participation in the football program after he refused to undertake the necessary if the safety and interest of the student population, doubtless a legitimate concern of the
urinalysis drug testing. Acton forthwith sued, claiming that the schools drug testing policy violated, inter government, are to be promoted and protected. To borrow from Vernonia, [d]eterring drug use by our
alia, the Fourth Amendment[19] of the US Constitution. Nations schoolchildren is as important as enhancing efficient enforcement of the Nations laws against
the importation of drugs; the necessity for the State to act is magnified by the fact that the effects of a
The US Supreme Court, in fashioning a solution to the issues raised in Vernonia, considered the drug-infested school are visited not just upon the users, but upon the entire student body and
following: (1) schools stand in loco parentis over their students; (2) school children, while not shedding faculty.[22] Needless to stress, the random testing scheme provided under the law argues against the
their constitutional rights at the school gate, have less privacy rights; (3) athletes have less privacy rights idea that the testing aims to incriminate unsuspecting individual students.
than non-athletes since the former observe communal undress before and after sports events; (4) by
joining the sports activity, the athletes voluntarily subjected themselves to a higher degree of school Just as in the case of secondary and tertiary level students, the mandatory but random drug test
supervision and regulation; (5) requiring urine samples does not invade a students privacy since a prescribed by Sec. 36 of RA 9165 for officers and employees of public and private offices is justifiable,
student need not undress for this kind of drug testing; and (6) there is need for the drug testing because albeit not exactly for the same reason. The Court notes in this regard that petitioner SJS, other than
of the dangerous effects of illegal drugs on the young. The US Supreme Court held that the policy saying that subjecting almost everybody to drug testing, without probable cause, is unreasonable, an
constituted reasonable search under the Fourth[20] and 14th Amendments and declared the random unwarranted intrusion of the individual right to privacy,[23] has failed to show how the mandatory,
drug-testing policy constitutional. random, and suspicionless drug testing under Sec. 36(c) and (d) of RA 9165 violates the right to privacy
and constitutes unlawful and/or unconsented search under Art. III, Secs. 1 and 2 of the Constitution.[24]
In Board of Education, the Board of Education of a school in Tecumseh, Oklahoma required a drug test Petitioner Lasernas lament is just as simplistic, sweeping, and gratuitous and does not merit serious
for high school students desiring to join extra-curricular activities. Lindsay Earls, a member of the show consideration. Consider what he wrote without elaboration:
choir, marching band, and academic team declined to undergo a drug test and averred that the drug-
testing policy made to apply to non-athletes violated the Fourth and 14th Amendments. As Earls argued, The US Supreme Court and US Circuit Courts of Appeals have made various rulings on the
unlike athletes who routinely undergo physical examinations and undress before their peers in locker constitutionality of mandatory drug tests in the school and the workplaces. The US courts have been
rooms, non-athletes are entitled to more privacy.
47

consistent in their rulings that the mandatory drug tests violate a citizens constitutional right to privacy For another, the random drug testing shall be undertaken under conditions calculated to protect as
and right against unreasonable search and seizure. They are quoted extensively hereinbelow.[25] much as possible the employees privacy and dignity. As to the mechanics of the test, the law specifies
that the procedure shall employ two testing methods, i.e., the screening test and the confirmatory test,
The essence of privacy is the right to be left alone.[26] In context, the right to privacy means the right to doubtless to ensure as much as possible the trustworthiness of the results. But the more important
be free from unwarranted exploitation of ones person or from intrusion into ones private activities in consideration lies in the fact that the test shall be conducted by trained professionals in access-
such a way as to cause humiliation to a persons ordinary sensibilities. [27] And while there has been controlled laboratories monitored by the Department of Health (DOH) to safeguard against results
general agreement as to the basic function of the guarantee against unwarranted search, translation of tampering and to ensure an accurate chain of custody.[33] In addition, the IRR issued by the DOH
the abstract prohibition against unreasonable searches and seizures into workable broad guidelines for provides that access to the drug results shall be on the need to know basis;[34] that the drug test result
the decision of particular cases is a difficult task, to borrow from C. Camara v. Municipal Court.[28] and the records shall be [kept] confidential subject to the usual accepted practices to protect the
Authorities are agreed though that the right to privacy yields to certain paramount rights of the public confidentiality of the test results.[35] Notably, RA 9165 does not oblige the employer concerned to
and defers to the states exercise of police power.[29] report to the prosecuting agencies any information or evidence relating to the violation of the
Comprehensive Dangerous Drugs Act received as a result of the operation of the drug testing. All told,
As the warrantless clause of Sec. 2, Art III of the Constitution is couched and as has been held, therefore, the intrusion into the employees privacy, under RA 9165, is accompanied by proper
reasonableness is the touchstone of the validity of a government search or intrusion.[30] And whether a safeguards, particularly against embarrassing leakages of test results, and is relatively minimal.
search at issue hews to the reasonableness standard is judged by the balancing of the government-
mandated intrusion on the individuals privacy interest against the promotion of some compelling state To reiterate, RA 9165 was enacted as a measure to stamp out illegal drug in the country and thus protect
interest.[31] In the criminal context, reasonableness requires showing of probable cause to be personally the well-being of the citizens, especially the youth, from the deleterious effects of dangerous drugs. The
determined by a judge. Given that the drug-testing policy for employeesand students for that law intends to achieve this through the medium, among others, of promoting and resolutely pursuing a
matterunder RA 9165 is in the nature of administrative search needing what was referred to in Vernonia national drug abuse policy in the workplace via a mandatory random drug test.[36] To the Court, the
as swift and informal disciplinary procedures, the probable-cause standard is not required or even need for drug testing to at least minimize illegal drug use is substantial enough to override the
practicable. Be that as it may, the review should focus on the reasonableness of the challenged individuals privacy interest under the premises. The Court can consider that the illegal drug menace cuts
administrative search in question. across gender, age group, and social- economic lines. And it may not be amiss to state that the sale,
manufacture, or trafficking of illegal drugs, with their ready market, would be an investors dream were it
The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon not for the illegal and immoral components of any of such activities. The drug problem has hardly abated
which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution, since the martial law public execution of a notorious drug trafficker. The state can no longer assume a
intrudes. In this case, the office or workplace serves as the backdrop for the analysis of the privacy laid back stance with respect to this modern-day scourge. Drug enforcement agencies perceive a
expectation of the employees and the reasonableness of drug testing requirement. The employees mandatory random drug test to be an effective way of preventing and deterring drug use among
privacy interest in an office is to a large extent circumscribed by the companys work policies, the employees in private offices, the threat of detection by random testing being higher than other modes.
collective bargaining agreement, if any, entered into by management and the bargaining unit, and the The Court holds that the chosen method is a reasonable and enough means to lick the problem.
inherent right of the employer to maintain discipline and efficiency in the workplace. Their privacy
expectation in a regulated office environment is, in fine, reduced; and a degree of impingement upon Taking into account the foregoing factors, i.e., the reduced expectation of privacy on the part of the
such privacy has been upheld. employees, the compelling state concern likely to be met by the search, and the well-defined limits set
forth in the law to properly guide authorities in the conduct of the random testing, we hold that the
Just as defining as the first factor is the character of the intrusion authorized by the challenged law. challenged drug test requirement is, under the limited context of the case, reasonable and, ergo,
Reduced to a question form, is the scope of the search or intrusion clearly set forth, or, as formulated in constitutional.
Ople v. Torres, is the enabling law authorizing a search narrowly drawn or narrowly focused?[32]
Like their counterparts in the private sector, government officials and employees also labor under
The poser should be answered in the affirmative. For one, Sec. 36 of RA 9165 and its implementing rules reasonable supervision and restrictions imposed by the Civil Service law and other laws on public
and regulations (IRR), as couched, contain provisions specifically directed towards preventing a situation officers, all enacted to promote a high standard of ethics in the public service.[37] And if RA 9165 passes
that would unduly embarrass the employees or place them under a humiliating experience. While every the norm of reasonableness for private employees, the more reason that it should pass the test for civil
officer and employee in a private establishment is under the law deemed forewarned that he or she may servants, who, by constitutional command, are required to be accountable at all times to the people and
be a possible subject of a drug test, nobody is really singled out in advance for drug testing. The goal is to to serve them with utmost responsibility and efficiency.[38]
discourage drug use by not telling in advance anyone when and who is to be tested. And as may be
observed, Sec. 36(d) of RA 9165 itself prescribes what, in Ople, is a narrowing ingredient by providing Petitioner SJS next posture that Sec. 36 of RA 9165 is objectionable on the ground of undue delegation of
that the employees concerned shall be subjected to random drug test as contained in the companys power hardly commends itself for concurrence. Contrary to its position, the provision in question is not
work rules and regulations x x x for purposes of reducing the risk in the work place. so extensively drawn as to give unbridled options to schools and employers to determine the manner of
48

drug testing. Sec. 36 expressly provides how drug testing for students of secondary and tertiary schools guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced
and officers/employees of public/private offices should be conducted. It enumerates the persons who to incriminate themselves.
shall undergo drug testing. In the case of students, the testing shall be in accordance with the school
rules as contained in the student handbook and with notice to parents. On the part of WHEREFORE, the Court resolves to GRANT the petition in G.R. No. 161658 and declares Sec. 36(g) of RA
officers/employees, the testing shall take into account the companys work rules. In either case, the 9165 and COMELEC Resolution No. 6486 as UNCONSTITUTIONAL; and to PARTIALLY GRANT the petition
random procedure shall be observed, meaning that the persons to be subjected to drug test shall be in G.R. Nos. 157870 and 158633 by declaring Sec. 36(c) and (d) of RA 9165 CONSTITUTIONAL, but
picked by chance or in an unplanned way. And in all cases, safeguards against misusing and declaring its Sec. 36(f) UNCONSTITUTIONAL. All concerned agencies are, accordingly, permanently
compromising the confidentiality of the test results are established. enjoined from implementing Sec. 36(f) and (g) of RA 9165. No costs.

Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue, in consultation with the DOH, SO ORDERED.
Department of the Interior and Local Government, Department of Education, and Department of Labor
and Employment, among other agencies, the IRR necessary to enforce the law. In net effect then, the I. THE FACTS
participation of schools and offices in the drug testing scheme shall always be subject to the IRR of RA
9165. It is, therefore, incorrect to say that schools and employers have unchecked discretion to These consolidated petitions challenge the constitutionality of Sec. 36 of R.A. 9165, the Comprehensive
determine how often, under what conditions, and where the drug tests shall be conducted. Dangerous Drugs Act of 2002, insofar as it requires mandatory drug testing of (1) candidates for public
office; (2) students of secondary and tertiary schools; (3) officers and employees of public and private
The validity of delegating legislative power is now a quiet area in the constitutional landscape.[39] In the offices; and (4) persons charged before the prosecutor’s office of a crime with an imposable penalty of
face of the increasing complexity of the task of the government and the increasing inability of the imprisonment of not less than 6 years and 1 day.
legislature to cope directly with the many problems demanding its attention, resort to delegation of
power, or entrusting to administrative agencies the power of subordinate legislation, has become The challenged section reads:
imperative, as here.
SEC. 36. Authorized Drug Testing. Authorized drug testing shall be done by any government forensic
Laserna Petition (Constitutionality of Sec. 36[c], [d], laboratories or by any of the drug testing laboratories accredited and monitored by the DOH to
safeguard the quality of the test results. x x x The drug testing shall employ, among others, two (2)
[f], and [g] of RA 9165) testing methods, the screening test which will determine the positive result as well as the type of drug
used and the confirmatory test which will confirm a positive screening test. x x x The following shall be
Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court finds no valid justification for subjected to undergo drug testing:
mandatory drug testing for persons accused of crimes. In the case of students, the constitutional viability
of the mandatory, random, and suspicionless drug testing for students emanates primarily from the (c) Students of secondary and tertiary schools. Students of secondary and tertiary schools shall,
waiver by the students of their right to privacy when they seek entry to the school, and from their pursuant to the related rules and regulations as contained in the school's student handbook and with
voluntarily submitting their persons to the parental authority of school authorities. In the case of private notice to the parents, undergo a random drug testing x x x;
and public employees, the constitutional soundness of the mandatory, random, and suspicionless drug
testing proceeds from the reasonableness of the drug test policy and requirement. (d) Officers and employees of public and private offices. Officers and employees of public and private
offices, whether domestic or overseas, shall be subjected to undergo a random drug test as contained in
We find the situation entirely different in the case of persons charged before the public prosecutors the company's work rules and regulations, x x x for purposes of reducing the risk in the workplace. Any
office with criminal offenses punishable with six (6) years and one (1) day imprisonment. The operative officer or employee found positive for use of dangerous drugs shall be dealt with administratively which
concepts in the mandatory drug testing are randomness and suspicionless. In the case of persons shall be a ground for suspension or termination, subject to the provisions of Article 282 of the Labor
charged with a crime before the prosecutors office, a mandatory drug testing can never be random or Code and pertinent provisions of the Civil Service Law;
suspicionless. The ideas of randomness and being suspicionless are antithetical to their being made
defendants in a criminal complaint. They are not randomly picked; neither are they beyond suspicion. (f) All persons charged before the prosecutor's office with a criminal offense having an imposable
When persons suspected of committing a crime are charged, they are singled out and are impleaded penalty of imprisonment of not less than six (6) years and one (1) day shall undergo a mandatory drug
against their will. The persons thus charged, by the bare fact of being haled before the prosecutors office test;
and peaceably submitting themselves to drug testing, if that be the case, do not necessarily consent to
(g) All candidates for public office whether appointed or elected both in the national or local government
the procedure, let alone waive their right to privacy.[40] To impose mandatory drug testing on the
shall undergo a mandatory drug test.
accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the
stated objectives of RA 9165. Drug testing in this case would violate a persons right to privacy
49

Sec. 36(g) is implemented by COMELEC Resolution No. 6486. or after election is really of no moment, as getting elected would be of little value if one cannot assume
office for non-compliance with the drug-testing requirement.
II. THE ISSUES
2. NO, paragraphs (c) and (d) of Sec. 36, RA 9165 are NOT UNCONSTITUTIONAL; YES, paragraphs (f)
thereof is UNCONSTITUTIONAL.

1. Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 impose an additional qualification for As to paragraph (c), covering students of secondary and tertiary schools
candidates for senator? Corollarily, can Congress enact a law prescribing qualifications for candidates for
senator in addition to those laid down by the Constitution? Citing the U.S. cases of Vernonia School District 47J v. Acton and Board of Education of Independent
School District No. 92 of Pottawatomie County, et al. v. Earls, et al., the Court deduced and applied the
2. Are paragraphs (c), (d), and (f) of Sec. 36, RA 9165 unconstitutional? following principles: (1) schools and their administrators stand in loco parentis with respect to their
students; (2) minor students have contextually fewer rights than an adult, and are subject to the custody
III. THE RULING and supervision of their parents, guardians, and schools; (3) schools, acting in loco parentis, have a duty
to safeguard the health and well-being of their students and may adopt such measures as may
[The Court GRANTED the petition in G.R. No. 161658 and declared Sec. 36(g) of RA 9165 and COMELEC reasonably be necessary to discharge such duty; and (4) schools have the right to impose conditions on
Resolution No. 6486 as UNCONSTITUTIONAL. It also PARTIALLY GRANTED the petition in G.R. Nos. applicants for admission that are fair, just, and non-discriminatory.
157870 and 158633 by declaring Sec. 36(c) and (d) of RA 9165 CONSTITUTIONAL, but declaring its Sec.
36(f) UNCONSTITUTIONAL. The Court thus permanently enjoined all the concerned agencies from Guided by Vernonia, supra, and Board of Education, supra, the Court is of the view and so holds that the
implementing Sec. 36(f) and (g) of RA 9165.] provisions of RA 9165 requiring mandatory, random, and suspicionless drug testing of students are
constitutional. Indeed, it is within the prerogative of educational institutions to require, as a condition
1. YES, Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 impose an additional qualification for for admission, compliance with reasonable school rules and regulations and policies. To be sure, the
candidates for senator; NO, Congress CANNOT enact a law prescribing qualifications for candidates for right to enrol is not absolute; it is subject to fair, reasonable, and equitable requirements.
senator in addition to those laid down by the Constitution.
As to paragraph (d), covering officers and employees of public and private offices
In essence, Pimentel claims that Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 illegally impose
an additional qualification on candidates for senator. He points out that, subject to the provisions on As the warrantless clause of Sec. 2, Art III of the Constitution is couched and as has been held,
nuisance candidates, a candidate for senator needs only to meet the qualifications laid down in Sec. 3, “reasonableness” is the touchstone of the validity of a government search or intrusion. And whether a
Art. VI of the Constitution, to wit: (1) citizenship, (2) voter registration, (3) literacy, (4) age, and (5) search at issue hews to the reasonableness standard is judged by the balancing of the government-
residency. Beyond these stated qualification requirements, candidates for senator need not possess any mandated intrusion on the individual's privacy interest against the promotion of some compelling state
other qualification to run for senator and be voted upon and elected as member of the Senate. The interest. In the criminal context, reasonableness requires showing of probable cause to be personally
Congress cannot validly amend or otherwise modify these qualification standards, as it cannot disregard, determined by a judge. Given that the drug-testing policy for employees—and students for that matter—
evade, or weaken the force of a constitutional mandate, or alter or enlarge the Constitution. under RA 9165 is in the nature of administrative search needing what was referred to in Vernonia as
“swift and informal disciplinary procedures,” the probable-cause standard is not required or even
Pimentel’s contention is well-taken. Accordingly, Sec. 36(g) of RA 9165 should be, as it is hereby practicable. Be that as it may, the review should focus on the reasonableness of the challenged
declared as, unconstitutional. administrative search in question.

Sec. 36(g) of RA 9165, as sought to be implemented by the assailed COMELEC resolution, effectively The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon
enlarges the qualification requirements enumerated in the Sec. 3, Art. VI of the Constitution. As which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution,
couched, said Sec. 36(g) unmistakably requires a candidate for senator to be certified illegal-drug clean, intrudes. In this case, the office or workplace serves as the backdrop for the analysis of the privacy
obviously as a pre-condition to the validity of a certificate of candidacy for senator or, with like effect, a expectation of the employees and the reasonableness of drug testing requirement. The employees'
condition sine qua non to be voted upon and, if proper, be proclaimed as senator-elect. The COMELEC privacy interest in an office is to a large extent circumscribed by the company's work policies, the
resolution completes the chain with the proviso that “[n]o person elected to any public office shall enter collective bargaining agreement, if any, entered into by management and the bargaining unit, and the
upon the duties of his office until he has undergone mandatory drug test.” Viewed, therefore, in its inherent right of the employer to maintain discipline and efficiency in the workplace. Their privacy
proper context, Sec. 36(g) of RA 9165 and the implementing COMELEC Resolution add another expectation in a regulated office environment is, in fine, reduced; and a degree of impingement upon
qualification layer to what the 1987 Constitution, at the minimum, requires for membership in the such privacy has been upheld.
Senate. Whether or not the drug-free bar set up under the challenged provision is to be hurdled before
50

Just as defining as the first factor is the character of the intrusion authorized by the challenged law. Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court finds no valid justification for
Reduced to a question form, is the scope of the search or intrusion clearly set forth, or, as formulated in mandatory drug testing for persons accused of crimes. In the case of students, the constitutional viability
Ople v. Torres, is the enabling law authorizing a search "narrowly drawn" or "narrowly focused"? of the mandatory, random, and suspicionless drug testing for students emanates primarily from the
waiver by the students of their right to privacy when they seek entry to the school, and from their
The poser should be answered in the affirmative. For one, Sec. 36 of RA 9165 and its implementing rules voluntarily submitting their persons to the parental authority of school authorities. In the case of private
and regulations (IRR), as couched, contain provisions specifically directed towards preventing a situation and public employees, the constitutional soundness of the mandatory, random, and suspicionless drug
that would unduly embarrass the employees or place them under a humiliating experience. While every testing proceeds from the reasonableness of the drug test policy and requirement.
officer and employee in a private establishment is under the law deemed forewarned that he or she may
be a possible subject of a drug test, nobody is really singled out in advance for drug testing. The goal is to We find the situation entirely different in the case of persons charged before the public prosecutor's
discourage drug use by not telling in advance anyone when and who is to be tested. And as may be office with criminal offenses punishable with 6 years and 1 day imprisonment. The operative concepts in
observed, Sec. 36(d) of RA 9165 itself prescribes what, in Ople, is a narrowing ingredient by providing the mandatory drug testing are “randomness” and “suspicionless.” In the case of persons charged with a
that the employees concerned shall be subjected to “random drug test as contained in the company’s crime before the prosecutor's office, a mandatory drug testing can never be random or suspicionless.
work rules and regulations x x x for purposes of reducing the risk in the work place.” The ideas of randomness and being suspicionless are antithetical to their being made defendants in a
criminal complaint. They are not randomly picked; neither are they beyond suspicion. When persons
For another, the random drug testing shall be undertaken under conditions calculated to protect as suspected of committing a crime are charged, they are singled out and are impleaded against their will.
much as possible the employee's privacy and dignity. As to the mechanics of the test, the law specifies The persons thus charged, by the bare fact of being haled before the prosecutor’s office and peaceably
that the procedure shall employ two testing methods, i.e., the screening test and the confirmatory test, submitting themselves to drug testing, if that be the case, do not necessarily consent to the procedure,
doubtless to ensure as much as possible the trustworthiness of the results. But the more important let alone waive their right to privacy. To impose mandatory drug testing on the accused is a blatant
consideration lies in the fact that the test shall be conducted by trained professionals in access- attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of
controlled laboratories monitored by the Department of Health (DOH) to safeguard against results RA 9165. Drug testing in this case would violate a person’s right to privacy guaranteed under Sec. 2, Art.
tampering and to ensure an accurate chain of custody. In addition, the IRR issued by the DOH provides III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves.
that access to the drug results shall be on the “need to know” basis; that the “drug test result and the
records shall be [kept] confidential subject to the usual accepted practices to protect the confidentiality 570 SCRA 410 – Political Law – Qualifications of a Senator or a Congress Representative
of the test results.” Notably, RA 9165 does not oblige the employer concerned to report to the NOTE: This is consolidated with Laserna vs Dangerous Drugs Board (G.R. No. 158633) and Pimentel vs
prosecuting agencies any information or evidence relating to the violation of the Comprehensive COMELEC (G.R. No. 161658)
Dangerous Drugs Act received as a result of the operation of the drug testing. All told, therefore, the
In 2002, Republic Act No. 9165 or the Comprehensive Dangerous Drugs Act of 2002 was implemented.
intrusion into the employees’ privacy, under RA 9165, is accompanied by proper safeguards, particularly
Section 36 thereof requires mandatory drug testing of candidates for public office, students of secondary
against embarrassing leakages of test results, and is relatively minimal. and tertiary schools, officers and employees of public and private offices, and persons charged before
the prosecutor’s office with certain offenses.
Taking into account the foregoing factors, i.e., the reduced expectation of privacy on the part of the
In December 2003, COMELEC issued Resolution No. 6486, prescribing the rules and regulations on the
employees, the compelling state concern likely to be met by the search, and the well-defined limits set
mandatory drug testing of candidates for public office in connection with the May 10, 2004 synchronized
forth in the law to properly guide authorities in the conduct of the random testing, we hold that the national and local elections. Aquilino Pimentel, Jr., a senator and a candidate for re-election in the May
challenged drug test requirement is, under the limited context of the case, reasonable and, ergo, elections, filed a Petition for Certiorari and Prohibition under Rule 65. In it, he seeks (1) to nullify Sec.
constitutional. 36(g) of RA 9165 and COMELEC Resolution No. 6486 dated December 23, 2003 for being unconstitutional
in that they impose a qualification for candidates for senators in addition to those already provided for in
Like their counterparts in the private sector, government officials and employees also labor under the 1987 Constitution; and (2) to enjoin the COMELEC from implementing Resolution No. 6486.
reasonable supervision and restrictions imposed by the Civil Service law and other laws on public According to Pimentel, the Constitution only prescribes a maximum of five (5) qualifications for one to be
officers, all enacted to promote a high standard of ethics in the public service. And if RA 9165 passes the a candidate for, elected to, and be a member of the Senate. He says that both the Congress and
norm of reasonableness for private employees, the more reason that it should pass the test for civil COMELEC, by requiring, via RA 9165 and Resolution No. 6486, a senatorial aspirant, among other
servants, who, by constitutional command, are required to be accountable at all times to the people and candidates, to undergo a mandatory drug test, create an additional qualification that all candidates for
to serve them with utmost responsibility and efficiency. senator must first be certified as drug free. He adds that there is no provision in the Constitution
authorizing the Congress or COMELEC to expand the qualification requirements of candidates for
senator.
As to paragraph (f), covering persons charged before the prosecutor’s office with a crime with an
imposable penalty of imprisonment of not less than 6 years and 1 day ISSUE: Whether or not Sec 36 of RA 9165 and Resolution 6486 are constitutional.
51

HELD:
No. Pimentel’s contention is valid. Accordingly, Sec. 36 of RA 9165 is unconstitutional. It is basic that if a
law or an administrative rule violates any norm of the Constitution, that issuance is null and void and has
no effect. The Constitution is the basic law to which all laws must conform; no act shall be valid if it
conflicts with the Constitution. In the discharge of their defined functions, the three departments of
government have no choice but to yield obedience to the commands of the Constitution. Whatever
limits it imposes must be observed.
The provision “[n]o person elected to any public office shall enter upon the duties of his office until he has
undergone mandatory drug test” is not tenable as it enlarges the qualifications. COMELEC cannot, in the
guise of enforcing and administering election laws or promulgating rules and regulations to implement
Sec. 36, validly impose qualifications on candidates for senator in addition to what the Constitution
prescribes. If Congress cannot require a candidate for senator to meet such additional qualification, the
COMELEC, to be sure, is also without such power. The right of a citizen in the democratic process of
election should not be defeated by unwarranted impositions of requirement not otherwise specified in
the Constitution.
52

FIRST DIVISION complainants proceeded to the NBI-CEVRO to file a complaint and narrate the circumstances of the
meeting to the authorities. While at the NBI-CEVRO, Charitoeven received calls supposedly from "James"
instructing her to bring the money as soon as possible.
G.R. No. 200748 July 23, 2014

The special investigators at the NBI-CEVRO verified the text messages received by the
JAIME D. DELA CRUZ, Petitioner,
complainants.1âwphi1 A team was immediately formed to implement an entrapment operation, which
vs.
took place inside a Jollibee branch at the corner of Gen. Maxilom and Gorordo Avenues, Cebu City. The
PEOPLE OF THE PHILIPPINES, Respondent.
officers were able to nab Jaime dela Cruz by using a pre-marked 500 bill dusted with fluorescent powder,
which was made part of the amount demanded by "James" and handed by Corazon. Petitioner was later
DECISION brought to the forensic laboratory of the NBI-CEVRO where forensic examination was done by forensic
chemist Rommel Paglinawan. Petitioner was required to submit his urine for drug testing. It later yielded
SERENO, CJ: a positive result for presence of dangerous drugs as indicated in the confirmatory test result labeled as
Toxicology (DangerousDrugs) Report No. 2006-TDD-2402 dated 16 February 2006.

This is a Petition for Review on Certiorari, filed by petitioner Jaime D. dela Cruz, from the Decision1 dated
22 June 2011 issued by the Twentieth Division of the Court of Appeals (CA) and Resolution2 dated 2 VERSION OF THE DEFENSE
February 2012 issued by the Former Twentieth Division of the CA in CA-G.R. C.R. No. 00670.
The defense presented petitioner as the lone witness. He denied the charges and testified that while
THE ANTECEDENT FACTS eating at the said Jollibee branch, he was arrested allegedly for extortion by NBI agents. When he was at
the NBI Office, he was required to extract urine for drug examination, but he refused saying he wanted it
to be done by the Philippine National Police (PNP) Crime Laboratory and not by the NBI. His request was,
Petitioner Jaime D. dela Cruz was charged with violation of Section 15, Article II of Republic Act No. (R.A.) however, denied. He also requested to be allowed to call his lawyer prior to the taking of his urine
9165, or The Comprehensive Dangerous Drugs Act of 2002, by the Graft Investigation and Prosecution sample, to no avail.
Officer of the Office of the Ombudsman - Visayas, in an Information3 dated 14 February 2006, which
reads:
THE RULING OF THE RTC

That on or about the 31st day of January 2006, at Cebu City, Philippines, and within the jurisdiction of
this Honorable Court, the abovenamed accused, JAIME D. DE LA CRUZ, a public officer, having been duly The Regional Trial Court (RTC) Branch 58 of Cebu City, in its Decision4 dated 6 June 2007, found the
appointed and qualified to such public position as Police Officer 2 of the Philippine National Police (PNP) accused guilty beyond reasonable doubt of violating Section 15, Article II of R.A. 9165 and sentenced him
assigned in the Security Service Group of the Cebu City Police Office, after having beenarrested by agents to suffer the penalty of compulsory rehabilitation for a period of not less than six (6) months at the Cebu
of the National Bureau of Investigation (NBI) in an entrapment operation, was found positive for use of Center for the Ultimate Rehabilitation of Drug Dependents located at Salinas, Lahug, Cebu City.5
METHAMPHETAMINE HYDROCHLORIDEcommonly known as "Shabu", the dangerous drug after a
confirmatory test conducted on said accused. Petitioner filed an appeal assigning as error the RTC’s validation of the result of the urine test despite its
dubiousness having been admitted in spite of the lack of legal basis for itsadmission. First, he alleges that
CONTRARY TO LAW. the forensic laboratory examination was conducted despite the fact that he was not assisted by counsel,
in clear violation of his constitutional right. Secondly, he was allegedly held guilty beyond reasonable
doubt notwithstanding the lack of sufficient basis to convict him.
When arraigned, petitioner, assisted by counsel de parte, pleaded not guilty to the charge. The records
do not reveal whether De la Cruz was likewise charged for extortion.
THE RULING OF THE CA

VERSION OF THE PROSECUTION


The CA found the appeal devoid of merit and affirmed the ruling of the RTC.

The evidence of the prosecution reveals that at 8:00 a.m. of 31 January 2006, the agents and special
investigators of the National Bureau of Investigation, Central Visayas Regional Office (NBI-CEVRO) or Petitioner filed a timely Motion for Reconsideration. He argued that the CA overlooked prevailing
simply NBI, received a Complaint from Corazon Absin (Corazon) and Charito Escobido (Charito). The jurisprudence, which states that drug testing conducted under circumstancessimilar to his would violate
complainants claimed that at 1:00 a.m. of that same day, Ariel Escobido (Ariel), the live-in partner of a person’s right to privacy. The appellate court nevertheless denied the motion.
Corazon and son of Charito, was picked up by several unknown male persons believed to be police
officers for allegedly selling drugs. An errand boy gave a number to the complainants, and when the Petitioner thus filed the present Petition for Review on certiorari. He assigns as errors the use of hearsay
latter gave the number a ring, they were instructed to proceed to the Gorordo Police Office located evidence as basis for his conviction and the questionable circumstances surrounding his arrest and drug
along Gorordo Avenue, Cebu City. In the said police office, they met "James" who demanded from them test.
₱100,000, later lowered to ₱40,000, in exchange for the release of Ariel. After the meeting, the
53

Respondent, through the Office of the Solicitor General, filed its Comment,6 saying that "petitioner’s First, "[a] person apprehended orarrested" cannot literally mean any person apprehended or arrested
arguments cannot be the subject of a petition for review on certiorariunder Rule 45, as they involve for any crime.The phrase must be read in context and understood in consonance with R.A. 9165. Section
questions of facts which may not be the subject thereof; after his arraignment, he can no longer contest 15 comprehends persons arrested or apprehended for unlawful acts listed under Article II of the law.
the validity of his arrest, less so at this stage of the proceedings; his guilt has been adequately
established by direct evidence; and the manner in which the laboratory examination was conducted was
Hence, a drug test can be made upon persons who are apprehended or arrested for, among others, the
grounded on a valid and existing law.
"importation,"9 "sale, trading, administration, dispensation, delivery, distribution and
transportation",10"manufacture"11 and "possession"12 of dangerous drugs and/or controlled precursors
THE ISSUE and essential chemicals; possession thereof "during parties, social gatherings or meetings"13 ; being
"employees and visitors of a den, dive or resort";14 "maintenance of a den, dive or resort";15 "illegal
chemical diversion of controlled precursors and essential chemicals"16 ; "manufacture or delivery"17 or
We deem it proper to give due course to this Petition by confronting head-on the issue of whether or not
"possession"18 of equipment, instrument, apparatus, and other paraphernalia for dangerous drugs
the drug test conducted upon the petitioner is legal.
and/or controlled precursors and essential chemicals; possession of dangerous drugs "during parties,
social gatherings or meetings"19 ; "unnecessary"20 or "unlawful"21 prescription thereof; "cultivation or
OUR RULING culture of plantsclassified as dangerous drugs or are sources thereof";22 and "maintenance and keeping
of original records of transactions on dangerous drugs and/orcontrolled precursors and essential
We declare that the drug testconducted upon petitioner is not grounded upon any existing law or chemicals."23 To make the provision applicable to all persons arrested or apprehended for any crime not
jurisprudence. listed under Article II is tantamount to unduly expanding its meaning. Note thataccused appellant here
was arrested in the alleged act of extortion.

We gloss over petitioner’s non-compliance with the Resolution7 ordering him to submit clearly legible
duplicate originals or certified true copies of the assailed Decision and Resolution. Petitioner was A charge for violation of Section 15 of R.A. 9165 is seen as expressive of the intent of the law to
charged with use of dangerous drugs in violation of the law, the pertinent provision of which reads: rehabilitate persons apprehended or arrested for the unlawful acts enumerated above instead of
charging and convicting them of other crimes with heavier penalties. The essence of the provision is
more clearly illustrated in People v. Martinez24 as follows:
Section 15. Use of Dangerous Drugs. – A person apprehended or arrested, who is found to be positive for
use of any dangerous drug, after a confirmatory test, shall be imposed a penalty of a minimum of six (6)
months rehabilitation in a government center for the first offense, subject to the provisions of Article VIII On a final note, this Court takes the opportunity to be instructive on Sec. 11 (Possession of Dangerous
of this Act. If apprehended using any dangerous drug for the second time, he/she shall suffer the penalty Drugs) and Sec. 15 (Use of Dangerous Drugs) of R.A. No. 9165, withregard to the charges that are filed by
of imprisonment ranging from six (6) years and one (1) day to twelve (12) years and a fine ranging from law enforcers. This Court notes the practice of law enforcers of filing charges under Sec. 11 in cases
Fifty thousand pesos (₱50,000.00) to Two hundred thousand pesos (₱200,000.00): Provided,That this where the presence of dangerous drugs as basis for possession is only and solely in the form of residue,
Section shall not be applicable where the person tested is also found to have in his/her possession such being subsumed under the last paragraph of Sec. 11. Although not incorrect, it would be more in keeping
quantity of any dangerous drug provided for under Section 11 of this Act, in which case the provisions withthe intent of the law to file charges under Sec. 15 instead in order to rehabilitate first time offenders
stated therein shall apply.8 of drug use, provided thatthere is a positive confirmatory test result as required under Sec. 15.The
minimum penalty under the last paragraph of Sec. 11 for the possession of residue isimprisonment of
twelve years and one day, while the penalty under Sec. 15 for first time offenders of drug use is a
The RTC subsequently convicted petitioner, ruling that the following elements of Section 15 were minimum of six months rehabilitation in a government center. To file charges under Sec. 11 on the basis
established: (1) the accused was arrested; (2) the accused was subjected to drug test; and (3) the of residue alone would frustrate the objective of the law to rehabilitate drug users and provide them
confirmatory test shows that he used a dangerous drug. with an opportunity to recover for a second chance at life.

Disregarding petitioner’s objection regarding the admissibility of the evidence, the lower court also In the case at bench, the presence of dangerous drugs was only in the form of residue on the drug
reasoned that "a suspect cannot invoke his right to counsel when he is required to extract urine because, paraphernalia, and the accused were found positive for use of dangerous drugs. Granting that the arrest
while he is already in custody, he is not compelled to make a statement or testimony against himself. was legal, the evidence obtained admissible, and the chain of custody intact, the law enforcers should
Extracting urine from one’s body is merely a mechanical act, hence, falling outside the concept of a have filed charges under Sec. 15, R.A. No. 9165 or for use of dangerous drugs and, if there was no
custodial investigation." residue at all, they should have been charged under Sec. 14 (Possession of Equipment, Instrument,
Apparatus and Other Paraphernalia for Dangerous Drugs During Parties, Social Gatherings or Meetings).
We find the ruling and reasoning of the trial court, as well as the subsequent affirmation by the CA, Sec. 14 provides that the maximum penalty under Sec. 12(Possession of Equipment, Instrument,
erroneous on three counts. Apparatus and Other Paraphernalia for Dangerous Drugs) shall be imposed on any person who shall
possess any equipment, instrument, apparatus and other paraphernalia for dangerous drugs. Under Sec.
12, the maximum penalty is imprisonment of four years and a fine of ₱50,000.00. In fact, under the same
The drug test in Section 15 does not cover persons apprehended or arrested for any unlawful act, but section, the possession of such equipment, apparatus or other paraphernalia is prima facieevidence that
only for unlawful acts listed under Article II of R.A. 9165. the possessor has used a dangerous drug and shall be presumed to have violated Sec. 15.
54

In order to effectively fulfill the intent of the law to rehabilitate drug users, this Court thus calls on law [1917]) to have the outline of his foot traced todetermine its identity with bloody footprints; (U.S. vs.
enforcers and prosecutors in dangerous drugs cases to exercise proper discretion in filing charges when Salas, 25 Phil. 337 [1913]; U.S. vs. Zara, 42 Phil. 308 [1921]) and to be photographed or measured, or his
the presence of dangerous drugs isonly and solely in the form of residue and the confirmatory test garments or shoes removed or replaced, or to move his body to enable the foregoing things to be
required under Sec. 15 is positive for use of dangerous drugs.In such cases, to afford the accused a done.(People vs. Otadora, 86 Phil. 244 [1950])28(Emphasis supplied)
chance to be rehabilitated, the filing of charges for or involving possession of dangerous drugs should
only be done when another separate quantity of dangerous drugs, other than mere residue, is found in
In the instant case, we fail to see howa urine sample could be material to the charge of
the possession of the accused as provided for in Sec. 15. (Emphasis supplied)
extortion.1âwphi1 The RTC and the CA, therefore, both erred when they held that the extraction of
petitioner’s urine for purposes of drug testing was "merely a mechanical act, hence, falling outside the
Furthermore, making the phrase "a person apprehended or arrested" in Section 15 applicable to all concept of a custodial investigation."
persons arrested or apprehended for unlawful acts, not only under R.A. 9165 but for all other crimes, is
tantamount to a mandatory drug testing of all persons apprehended or arrested for any crime. To
We note a case where a urine sample was considered as admissible. In Gutang v. People,29 the petitioner
overextend the application of thisprovision would run counter to our pronouncement in Social Justice
therein and his companions were arrested in connection with the enforcement of a search warrant in his
Society v. Dangerous Drugs Board and Philippine Drug Enforcement Agency,25 to wit:
residence. A PNP-NARCOM team found and confiscated shabu materials and paraphernalias. The
petitioner and his companions in that case were also asked to give urine samples, which yielded positive
x x x [M]andatory drug testing can never be random and suspicionless. The ideas of randomness and results. Later, the petitioner therein was found guilty of the crime of illegal possession and use of
being suspicionless are antithetical to their being made defendants in a criminal complaint. They are not prohibited drugs. Gutang claimed that the latter’s urine sample was inadmissible in evidence, since it
randomly picked; neither are they beyond suspicion. When persons suspected of committing a crime are was derived in effect from an uncounselled extrajudicial confession.
charged, they are singled out and are impleaded against their will. The persons thus charged, by the bare
fact of being haled before the prosecutor’s office and peaceably submitting themselves to drug testing, if
In the Gutang et al.case, the Court clarified that "what the Constitution prohibits is the use of physical or
that be the case, do not necessarily consent to the procedure, let alone waive their right to privacy. To
moral compulsion to extort communication from the accused, but not an inclusion of his body in
impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool
evidence, when it may be material." The situation in Gutangwas categorized as falling among the
for criminal prosecution, contrary to the stated objectives of RA 6195. Drug testing in this case would
exemptions under the freedom from testimonial compulsion since what was sought tobe examined
violate a person’s right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the
came from the body of the accused. The Court said:
accused persons are veritably forced to incriminate themselves. (Emphasis supplied)

This was a mechanical act the accused was made to undergo which was not meant to unearth
The drug test is not covered by allowable non-testimonial compulsion.
undisclosedfacts but to ascertain physical attributes determinable by simple observation. In fact, the
record shows that petitioner and his co-accused were not compelled to give samples of their urine but
We find that petitioner never raisedthe alleged irregularity of his arrest before his arraignment and they in fact voluntarily gave the same when they were requested to undergo a drug test.
raises the issue only now before this tribunal; hence, he is deemed to have waived his right to question
the validity of his arrest curing whatever defect may have attended his arrest.26 However, "a waiver of an
Assuming arguendothat the urine samples taken from the petitioner are inadmissible in evidence, we
illegal warrantless arrest does not mean a waiver of the inadmissibility of evidence seized during an
agree with the trial court that the record is replete with other pieces of credible evidence including the
illegal warrantless arrest."27
testimonial evidence of the prosecution which point to the culpability of the petitioner for the crimes
charged.
We are aware of the prohibition against testimonial compulsion and the allowable exceptions to such
proscription. Cases where non-testimonial compulsion has been allowed reveal, however, that the pieces
We emphasize that the circumstances in Gutangare clearly different from the circumstances of
of evidence obtained were all material to the principal cause of the arrest.
petitioner in the instant case.1awp++i1 First, Gutang was arrested in relation to a drug case. Second, he
volunteered to give his urine. Third, there were other pieces of evidence that point to his culpability for
The constitutional right of an accused against self-incrimination proscribes the use of physical or moral the crimes charged. In the present case, though, petitioner was arrested for extortion; he resisted having
compulsion to extort communications from the accused and not the inclusion of his body in evidence his urine sample taken; and finally, his urine sample was the only available evidencethat was used as
when it may be material. Purely mechanical acts are not included in the prohibition as the accused does basis for his conviction for the use of illegal drugs.
not thereby speak his guilt, hence the assistance and guiding hand ofcounsel is not required. (People vs.
Olvis, 238 Phil. 513 [1987]) The essence of the right against selfincrimination is testimonial compulsion,
The drug test was a violation of petitioner’s right to privacy and right against self-incrimination.
that is, the giving of evidence against himself through a testimonial act. (People vs. Casinillo, 213 SCRA
777 [1992]; People vs. Tranca, 235 SCRA 455 [1994]; People vs. Rondero, 378 Phil. 123 [1999]) Hence,it
has been held that a woman charged with adultery may be compelled to submit to physical examination It is incontrovertible that petitioner refused to have his urine extracted and tested for drugs. He also
to determine her pregnancy; (Villaflor vs. Summers, 41 Phil. 62 [1920]) and an accused may be asked for a lawyer prior to his urine test. He was adamant in exercising his rights, but all of his efforts
compelled to submit to physical examination and to have a substance taken from his body for medical proved futile, because he was still compelled to submit his urine for drug testing under those
determination as to whether he was suffering from gonorrhea which was contracted by his victim;(U.S. circumstances.
vs. Tan Teng, 23 Phil. 145 [1912]) to expel morphine from his mouth; (U.S. vs. Ong Siu Hong, 36 Phil. 735
55

The pertinent provisions in Article III of the Constitution are clear:

Section 2. The right of the people to be securein 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.

Section 17. No person shall be compelled to be a witness against himself.

In the face of these constitutional guarantees, we cannot condone drug testing of all arrested persons
regardless of the crime or offense for which the arrest is being made.

While we express our commendation of law enforcement agents as they vigorously track down
offenders intheir laudable effort to curb the pervasive and deleterious effects of dangerous drugs on our
society, they must, however, be constantly mindful of the reasonable limits of their authority, because it
is not unlikely that in their clear intent to purge society of its lawless elements, they may be knowingly or
unknowingly transgressing the protected rights of its citizens including even members of its own police
force.

WHEREFORE, premises considered, the assailed Decision dated 22 June 2011 issued by the Twentieth
Division, and the Resolution dated 2 February 2012 issued by the former Twentieth Division of the Court
of Appeals, in CA-G.R. C.R. No. 00670 are SET ASIDE. Petitioner is hereby ACQUITTED.

SO ORDERED.

FACTS:

Complainants alleged that a certain Ariel Escobedo was picked up by several unknown male persons
believed to be police officers for allegedly selling drugs. Complainants were instructed to proceed to the
Gorordo Police Station. They met “James” at the Police Station, who demanded from them P100,000.00
which was later lowered to P40,000.00, in exchange for the release of Ariel.

The accused was nabbed after an entrapment operation was conducted. The accused was later brought
to the forensic laboratory where he was required to submit his urine for drug testing. The test yielded a
positive result for presence of dangerous drugs.

ISSUE: Whether or not the drug test conducted upon the petitioner is legal. (NO)

HELD:

The drug test in Section 15 does not cover persons apprehended or arrested for any unlawful act, but
only for unlawful acts listed under Article II of the law.

The drug test was in violation of the petitioner’s right to privacy and right against self-incrimination. It is
incontrovertible that petitioner refused to have his urine extracted and tested for drugs.
56

DANNY LEE KYLLO, PETITIONER v. UNITED STATES | [June 11, 2001] “amorphous ‘hot spots’ on the roof and exterior wall,” id., at 1047. We granted certiorari. 530 U.S. 1305
(2000).
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
II
Justice Scalia delivered the opinion of the Court.
The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses,
This case presents the question whether the use of a thermal-imaging device aimed at a private home papers, and effects, against unreasonable searches and seizures, shall not be violated.” “At the very
from a public street to detect relative amounts of heat within the home constitutes a “search” within the core” of the Fourth Amendment “stands the right of a man to retreat into his own home and there be
meaning of the Fourth Amendment. free from unreasonable governmental intrusion.” Silverman v. United States, 365 U.S. 505, 511 (1961).
With few exceptions, the question whether a warrantless search of a home is reasonable and hence
I constitutional must be answered no. See Illinois v. Rodriguez, 497 U.S. 177, 181 (1990); Payton v. New
York, 445 U.S. 573, 586 (1980).
In 1991 Agent William Elliott of the United States Department of the Interior came to suspect that
marijuana was being grown in the home belonging to petitioner Danny Kyllo, part of a triplex on On the other hand, the antecedent question of whether or not a Fourth Amendment “search” has
Rhododendron Drive in Florence, Oregon. Indoor marijuana growth typically requires high-intensity occurred is not so simple under our precedent. The permissibility of ordinary visual surveillance of a
lamps. In order to determine whether an amount of heat was emanating from petitioner’s home home used to be clear because, well into the 20th century, our Fourth Amendment jurisprudence was
consistent with the use of such lamps, at 3:20 a.m. on January 16, 1992, Agent Elliott and Dan Haas used tied to common-law trespass. See, e.g., Goldman v. United States, 316 U.S. 129, 134—136 (1942);
an Agema Thermovision 210 thermal imager to scan the triplex. Thermal imagers detect infrared Olmstead v. United States, 277 U.S. 438,
radiation, which virtually all objects emit but which is not visible to the naked eye. The imager converts
radiation into images based on relative warmth–black is cool, white is hot, shades of gray connote 464—466 (1928). Cf. Silverman v. United States, supra, at 510—512 (technical trespass not necessary for
relative differences; in that respect, it operates somewhat like a video camera showing heat images. The Fourth Amendment violation; it suffices if there is “actual intrusion into a constitutionally protected
scan of Kyllo’s home took only a few minutes and was performed from the passenger seat of Agent area”). Visual surveillance was unquestionably lawful because “ ‘the eye cannot by the laws of England
Elliott’s vehicle across the street from the front of the house and also from the street in back of the be guilty of a trespass.’ ” Boyd v. United States, 116 U.S. 616, 628 (1886) (quoting Entick v. Carrington, 19
house. The scan showed that the roof over the garage and a side wall of petitioner’s home were How. St. Tr. 1029, 95 Eng. Rep. 807 (K. B. 1765)). We have since decoupled violation of a person’s Fourth
relatively hot compared to the rest of the home and substantially warmer than neighboring homes in the Amendment rights from trespassory violation of his property, see Rakas v. Illinois, 439 U.S. 128, 143
triplex. Agent Elliott concluded that petitioner was using halide lights to grow marijuana in his house, (1978), but the lawfulness of warrantless visual surveillance of a home has still been preserved. As we
which indeed he was. Based on tips from informants, utility bills, and the thermal imaging, a Federal observed in California v. Ciraolo, 476 U.S. 207, 213 (1986), “[t]he Fourth Amendment protection of the
Magistrate Judge issued a warrant authorizing a search of petitioner’s home, and the agents found an home has never been extended to require law enforcement officers to shield their eyes when passing by
indoor growing operation involving more than 100 plants. Petitioner was indicted on one count of a home on public thoroughfares.”
manufacturing marijuana, in violation of 21 U.S.C. § 841(a)(1). He unsuccessfully moved to suppress the
evidence seized from his home and then entered a conditional guilty plea. One might think that the new validating rationale would be that examining the portion of a house that
is in plain public view, while it is a “search”1 despite the absence of trespass, is not an “unreasonable”
The Court of Appeals for the Ninth Circuit remanded the case for an evidentiary hearing regarding the one under the Fourth Amendment. See Minnesota v. Carter, 525 U.S. 83, 104 (1998) (Breyer, J.,
intrusiveness of thermal imaging. On remand the District Court found that the Agema 210 “is a non- concurring in judgment). But in fact we have held that visual observation is no “search” at all–perhaps in
intrusive device which emits no rays or beams and shows a crude visual image of the heat being radiated order to preserve somewhat more intact our doctrine that warrantless searches are presumptively
from the outside of the house”; it “did not show any people or activity within the walls of the structure”; unconstitutional. See Dow Chemical Co. v. United States, 476 U.S. 227, 234—235, 239 (1986). In
“[t]he device used cannot penetrate walls or windows to reveal conversations or human activities”; and assessing when a search is not a search, we have applied somewhat in reverse the principle first
“[n]o intimate details of the home were observed.” Supp. App. to Pet. for Cert. 39—40. Based on these enunciated in Katz v. United States, 389 U.S. 347 (1967). Katz involved eavesdropping by means of an
findings, the District Court upheld the validity of the warrant that relied in part upon the thermal electronic listening device placed on the outside of a telephone booth–a location not within the catalog
imaging, and reaffirmed its denial of the motion to suppress. A divided Court of Appeals initially (“persons, houses, papers, and effects”) that the Fourth Amendment protects against unreasonable
reversed, 140 F.3d 1249 (1998), but that opinion was withdrawn and the panel (after a change in searches. We held that the Fourth Amendment nonetheless protected Katz from the warrantless
composition) affirmed, 190 F.3d 1041 (1999), with Judge Noonan dissenting. The court held that eavesdropping because he “justifiably relied” upon the privacy of the telephone booth. Id., at 353. As
petitioner had shown no subjective expectation of privacy because he had made no attempt to conceal Justice Harlan’s oft-quoted concurrence described it, a Fourth Amendment search occurs when the
the heat escaping from his home, id., at 1046, and even if he had, there was no objectively reasonable government violates a subjective expectation of privacy that society recognizes as reasonable. See id., at
expectation of privacy because the imager “did not expose any intimate details of Kyllo’s life,” only 361. We have subsequently applied this principle to hold that a Fourth Amendment search does not
occur–even when the explicitly protected location of a house is concerned–unless “the individual
57

manifested a subjective expectation of privacy in the object of the challenged search,” and “society [is] sound emanating from a house—and a satellite capable of scanning from many miles away would pick
willing to recognize that expectation as reasonable.” Ciraolo, supra, at 211. We have applied this test in up only visible light emanating from a house. We rejected such a mechanical interpretation of the Fourth
holding that it is not a search for the police to use a pen register at the phone company to determine Amendment in Katz, where the eavesdropping device picked up only sound waves that reached the
what numbers were dialed in a private home, Smith v. Maryland, 442 U.S. 735, 743—744 (1979), and we exterior of the phone booth. Reversing that approach would leave the homeowner at the mercy of
have applied the test on two different occasions in holding that aerial surveillance of private homes and advancing technology–including imaging technology that could discern all human activity in the home.
surrounding areas does not constitute a search, Ciraolo, supra; Florida v. Riley, 488 U.S. 445 (1989). While the technology used in the present case was relatively crude, the rule we adopt must take account
of more sophisticated systems that are already in use or in development.3 The dissent’s reliance on the
The present case involves officers on a public street engaged in more than naked-eye surveillance of a distinction between “off-the-wall” and “through-the-wall” observation is entirely incompatible with the
home. We have previously reserved judgment as to how much technological enhancement of ordinary dissent’s belief, which we discuss below, that thermal-imaging observations of the intimate details of a
perception from such a vantage point, if any, is too much. While we upheld enhanced aerial photography home are impermissible. The most sophisticated thermal imaging devices continue to measure heat “off-
of an industrial complex in Dow Chemical, we noted that we found “it important that this is not an area the-wall” rather than “through-the-wall”; the dissent’s disapproval of those more sophisticated thermal-
immediately adjacent to a private home, where privacy expectations are most heightened,” 476 U.S., at imaging devices, see post, at 10, is an acknowledgement that there is no substance to this distinction. As
237, n. 4 (emphasis in original). for the dissent’s extraordinary assertion that anything learned through “an inference” cannot be a
search, see post, at 4—5, that would validate even the “through-the-wall” technologies that the dissent
III purports to disapprove. Surely the dissent does not believe that the through-the-wall radar or ultrasound
technology produces an 8-by-10 Kodak glossy that needs no analysis (i.e., the making of inferences). And,
It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment of course, the novel proposition that inference insulates a search is blatantly contrary to United States v.
has been entirely unaffected by the advance of technology. For example, as the cases discussed above Karo, 468 U.S. 705 (1984), where the police “inferred” from the activation of a beeper that a certain can
make clear, the technology enabling human flight has exposed to public view (and hence, we have said, of ether was in the home. The police activity was held to be a search, and the search was held unlawful.4
to official observation) uncovered portions of the house and its curtilage that once were private. See
Ciraolo, supra, at 215. The question we confront today is what limits there are upon this power of The Government also contends that the thermal imaging was constitutional because it did not “detect
technology to shrink the realm of guaranteed privacy. private activities occurring in private areas,” Brief for United States 22. It points out that in Dow
Chemical we observed that the enhanced aerial photography did not reveal any “intimate details.” 476
The Katz test–whether the individual has an expectation of privacy that society is prepared to U.S., at 238. Dow Chemical, however, involved enhanced aerial photography of an industrial complex,
recognize as reasonable–has often been criticized as circular, and hence subjective and unpredictable. which does not share the Fourth Amendment sanctity of the home. The Fourth Amendment’s protection
See 1 W. LaFave, Search and Seizure §2.1(d), pp. 393—394 (3d ed. 1996); Posner, The Uncertain of the home has never been tied to measurement of the quality or quantity of information obtained. In
Protection of Privacy by the Supreme Court, 1979 S. Ct. Rev. 173, 188; Carter, supra, at 97 (Scalia, J., Silverman, for example, we made clear that any physical invasion of the structure of the home, “by even
concurring). But see Rakas, supra, at 143—144, n. 12. While it may be difficult to refine Katz when the a fraction of an inch,” was too much, 365 U.S., at 512, and there is certainly no exception to the warrant
search of areas such as telephone booths, automobiles, or even the curtilage and uncovered portions of requirement for the officer who barely cracks open the front door and sees nothing but the nonintimate
residences are at issue, in the case of the search of the interior of homes–the prototypical and hence rug on the vestibule floor. In the home, our cases show, all details are intimate details, because the
most commonly litigated area of protected privacy–there is a ready criterion, with roots deep in the entire area is held safe from prying government eyes. Thus, in Karo, supra, the only thing detected was a
common law, of the minimal expectation of privacy that exists, and that is acknowledged to be can of ether in the home; and in Arizona v. Hicks, 480 U.S. 321 (1987), the only thing detected by a
reasonable. To withdraw protection of this minimum expectation would be to permit police technology physical search that went beyond what officers lawfully present could observe in “plain view” was the
to erode the privacy guaranteed by the Fourth Amendment. We think that obtaining by sense-enhancing registration number of a phonograph turntable. These were intimate details because they were details of
technology any information regarding the interior of the home that could not otherwise have been the home, just as was the detail of how warm–or even how relatively warm–Kyllo was heating his
obtained without physical “intrusion into a constitutionally protected area,” Silverman, 365 U.S., at 512, residence.5
constitutes a search–at least where (as here) the technology in question is not in general public use. This
assures preservation of that degree of privacy against government that existed when the Fourth Limiting the prohibition of thermal imaging to “intimate details” would not only be wrong in principle;
Amendment was adopted. On the basis of this criterion, the information obtained by the thermal imager it would be impractical in application, failing to provide “a workable accommodation between the needs
in this case was the product of a search.2 of law enforcement and the interests protected by the Fourth Amendment,” Oliver v. United States, 466
U.S. 170, 181 (1984). To begin with, there is no necessary connection between the sophistication of the
The Government maintains, however, that the thermal imaging must be upheld because it detected surveillance equipment and the “intimacy” of the details that it observes–which means that one cannot
“only heat radiating from the external surface of the house,” Brief for United States 26. The dissent say (and the police cannot be assured) that use of the relatively crude equipment at issue here will
makes this its leading point, see post, at 1, contending that there is a fundamental difference between always be lawful. The Agema Thermovision 210 might disclose, for example, at what hour each night the
what it calls “off-the-wall” observations and “through-the-wall surveillance.” But just as a thermal imager lady of the house takes her daily sauna and bath–a detail that many would consider “intimate”; and a
captures only heat emanating from a house, so also a powerful directional microphone picks up only much more sophisticated system might detect nothing more intimate than the fact that someone left a
58

closet light on. We could not, in other words, develop a rule approving only that through-the-wall Brief Fact Summary.
surveillance which identifies objects no smaller than 36 by 36 inches, but would have to develop a
jurisprudence specifying which home activities are “intimate” and which are not. And even when (if ever) The police obtained evidence of a marijuana growing operation inside the defendant, Kyllo’s (the
that jurisprudence were fully developed, no police officer would be able to know in advance whether his “defendant”�) home, by using a thermal imaging device from outside the home. The police used the
through-the-wall surveillance picks up “intimate” details–and thus would be unable to know in advance device to gather evidence to support issuance of a search warrant for the home.
whether it is constitutional.
Synopsis of Rule of Law.
The dissent’s proposed standard–whether the technology offers the “functional equivalent of actual
presence in the area being searched,” post, at 7–would seem quite similar to our own at first blush. The The use of a device by the government, which is not generally used by the public, to obtain evidence
dissent concludes that Katz was such a case, but then inexplicably asserts that if the same listening from inside a home is a presumptively unreasonable search without a warrant under the Fourth
device only revealed the volume of the conversation, the surveillance would be permissible, post, at 10. Amendment of the United States Constitution.
Yet if, without technology, the police could not discern volume without being actually present in the
phone booth, Justice Stevens should conclude a search has occurred. Cf. Karo, supra, at 735 (Stevens, J., Facts.
concurring in part and dissenting in part) (“I find little comfort in the Court’s notion that no invasion of
Upon suspicion that the defendant was growing marijuana in his home, police used a thermal-imaging
privacy occurs until a listener obtains some significant information by use of the device… . A bathtub is a
device to detect heat radiating from the defendant’s home. With this information, police obtained a
less private area when the plumber is present even if his back is turned”). The same should hold for the
search warrant for the home.
interior heat of the home if only a person present in the home could discern the heat. Thus the driving
force of the dissent, despite its recitation of the above standard, appears to be a distinction among
Issue. Does the use of a device by the government to obtain evidence from a constitutionally protected
different types of information–whether the “homeowner would even care if anybody noticed,” post, at
area without physical intrusion constitute a search under the Fourth Amendment of the Constitution?
10. The dissent offers no practical guidance for the application of this standard, and for reasons already
discussed, we believe there can be none. The people in their houses, as well as the police, deserve more
Held.
precision.6
Where police obtain information about the inside of a home without physical intrusion, using a device
We have said that the Fourth Amendment draws “a firm line at the entrance to the house,” Payton,
not normally used by the public, the police action constitutes a Fourth Amendment search and is
445 U.S., at 590. That line, we think, must be not only firm but also bright–which requires clear
presumptively unreasonable without a warrant.
specification of those methods of surveillance that require a warrant. While it is certainly possible to
conclude from the videotape of the thermal imaging that occurred in this case that no “significant” Discussion.
compromise of the homeowner’s privacy has occurred, we must take the long view, from the original
meaning of the Fourth Amendment forward. The Fourth Amendment of the Constitution protects persons and their property from unreasonable
searches by the government. The home is one place where society deems an expectation of privacy
“The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and reasonable. In order to preserve this degree of privacy, government searches under these circumstances
seizure when it was adopted, and in a manner which will conserve public interests as well as the must be supported by a warrant.
interests and rights of individual citizens.” Carroll v. United States, 267 U.S. 132, 149 (1925).
The Fourth Amendment protections are not conditional upon the quality of information obtained by the
Where, as here, the Government uses a device that is not in general public use, to explore details of the government. So long as there is a subjective expectation of privacy and society is willing to recognize this
home that would previously have been unknowable without physical intrusion, the surveillance is a expectation as reasonable, the government must obtain a warrant before conducting a search.
“search” and is presumptively unreasonable without a warrant.

Since we hold the Thermovision imaging to have been an unlawful search, it will remain for the District
Court to determine whether, without the evidence it provided, the search warrant issued in this case
was supported by probable cause–and if not, whether there is any other basis for supporting admission
of the evidence that the search pursuant to the warrant produced.

The judgment of the Court of Appeals is reversed; the case is remanded for further proceedings
consistent with this opinion. It is so ordered.
59

EN BANC As a concerned citizen of my beloved country, I would like to ask from you personally if it is just alright
for an employee of your agency to be a lawyer of an accused gov’t employee having a pending case in
the csc. I honestly think this is a violation of law and unfair to others and your office.
G.R. No. 181881 October 18, 2011

I have known that a person have been lawyered by one of your attorny in the region 4 office. He is the
BRICCIO "Ricky" A. POLLO, Petitioner,
chief of the Mamamayan muna hindi mamaya na division. He have been helping many who have
vs.
pending cases in the Csc. The justice in our govt system will not be served if this will continue. Please
CHAIRPERSON KARINA CONSTANTINO-DAVID, DIRECTOR IV RACQUEL DE GUZMAN BUENSALIDA,
investigate this anomaly because our perception of your clean and good office is being tainted.
DIRECTOR IV LYDIA A. CASTILLO, DIRECTOR III ENGELBERT ANTHONY D. UNITE AND THE CIVIL SERVICE
COMMISSION, Respondents.
Concerned Govt employee3
Chairperson David immediately formed a team of four personnel with background in information
DECISION
technology (IT), and issued a memo directing them to conduct an investigation and specifically "to back
up all the files in the computers found in the Mamamayan Muna (PALD) and Legal divisions."4 After some
VILLARAMA, JR., J.: briefing, the team proceeded at once to the CSC-ROIV office at Panay Avenue, Quezon City. Upon their
arrival thereat around 5:30 p.m., the team informed the officials of the CSC-ROIV, respondents Director
This case involves a search of office computer assigned to a government employee who was charged IV Lydia Castillo (Director Castillo) and Director III Engelbert Unite (Director Unite) of Chairperson David’s
administratively and eventually dismissed from the service. The employee’s personal files stored in the directive.
computer were used by the government employer as evidence of misconduct.
The backing-up of all files in the hard disk of computers at the PALD and Legal Services Division (LSD) was
Before us is a petition for review on certiorari under Rule 45 which seeks to reverse and set aside the witnessed by several employees, together with Directors Castillo and Unite who closely monitored said
Decision1dated October 11, 2007 and Resolution2 dated February 29, 2008 of the Court of Appeals (CA). activity. At around 6:00 p.m., Director Unite sent text messages to petitioner and the head of LSD, who
The CA dismissed the petition for certiorari (CA-G.R. SP No. 98224) filed by petitioner Briccio "Ricky" A. were both out of the office at the time, informing them of the ongoing copying of computer files in their
Pollo to nullify the proceedings conducted by the Civil Service Commission (CSC) which found him guilty divisions upon orders of the CSC Chair. The text messages received by petitioner read:
of dishonesty, grave misconduct, conduct prejudicial to the best interest of the service, and violation of
Republic Act (R.A.) No. 6713 and penalized him with dismissal. "Gud p.m. This is Atty. Unite FYI: Co people are going over the PCs of PALD and LSD per
instruction of the Chairman. If you can make it here now it would be better."
The factual antecedents:
"All PCs Of PALD and LSD are being backed up per memo of the chair."
Petitioner is a former Supervising Personnel Specialist of the CSC Regional Office No. IV and also the
Officer-in-Charge of the Public Assistance and Liaison Division (PALD) under the "Mamamayan Muna "CO IT people arrived just now for this purpose. We were not also informed about this.
Hindi Mamaya Na" program of the CSC.
"We can’t do anything about … it … it’s a directive from chair."
On January 3, 2007 at around 2:30 p.m., an unsigned letter-complaint addressed to respondent CSC
Chairperson Karina Constantino-David which was marked "Confidential" and sent through a courier
"Memo of the chair was referring to an anonymous complaint"; "ill send a copy of the memo
service (LBC) from a certain "Alan San Pascual" of Bagong Silang, Caloocan City, was received by the
via mms"5
Integrated Records Management Office (IRMO) at the CSC Central Office. Following office practice in
which documents marked "Confidential" are left unopened and instead sent to the addressee, the
aforesaid letter was given directly to Chairperson David. Petitioner replied also thru text message that he was leaving the matter to Director Unite and that he
will just get a lawyer. Another text message received by petitioner from PALD staff also reported the
presence of the team from CSC main office: "Sir may mga taga C.O. daw sa kuarto natin."6 At around
The letter-complaint reads:
10:00 p.m. of the same day, the investigating team finished their task. The next day, all the computers in
the PALD were sealed and secured for the purpose of preserving all the files stored therein. Several
The Chairwoman, Civil Service Commission, Batasan Hills, Quezon City diskettes containing the back-up files sourced from the hard disk of PALD and LSD computers were
turned over to Chairperson David. The contents of the diskettes were examined by the CSC’s Office for
Dear Madam Chairwoman, Legal Affairs (OLA). It was found that most of the files in the 17 diskettes containing files copied from the
computer assigned to and being used by the petitioner, numbering about 40 to 42 documents, were
draft pleadings or letters7 in connection with administrative cases in the CSC and other tribunals. On the
Belated Merry Christmas and Advance Happy New Year! basis of this finding, Chairperson David issued the Show-Cause Order8 dated January 11, 2007, requiring
60

the petitioner, who had gone on extended leave, to submit his explanation or counter-affidavit within not by him but by certain persons whom he permitted, at one time or another, to make use of his
five days from notice. computer out of close association or friendship. Attached to the motion were the affidavit of Atty.
Ponciano R. Solosa who entrusted his own files to be kept at petitioner’s CPU and Atty. Eric N. Estrellado,
the latter being Atty. Solosa’s client who attested that petitioner had nothing to do with the pleadings or
Evaluating the subject documents obtained from petitioner’s personal files, Chairperson David made the
bill for legal fees because in truth he owed legal fees to Atty. Solosa and not to petitioner. Petitioner
following observations:
contended that the case should be deferred in view of the prejudicial question raised in the criminal
complaint he filed before the Ombudsman against Director Buensalida, whom petitioner believes had
Most of the foregoing files are drafts of legal pleadings or documents that are related to or connected instigated this administrative case. He also prayed for the lifting of the preventive suspension imposed
with administrative cases that may broadly be lumped as pending either in the CSCRO No. IV, the CSC- on him. In its Resolution No. 07051912 dated March 19, 2007, the CSC denied the omnibus motion. The
NCR, the CSC-Central Office or other tribunals. It is also of note that most of these draft pleadings are for CSC resolved to treat the said motion as petitioner’s answer.
and on behalves of parties, who are facing charges as respondents in administrative cases. This gives rise
to the inference that the one who prepared them was knowingly, deliberately and willfully aiding and
On March 14, 2007, petitioner filed an Urgent Petition13 under Rule 65 of the Rules of Court, docketed as
advancing interests adverse and inimical to the interest of the CSC as the central personnel agency of the
CA-G.R. SP No. 98224, assailing both the January 11, 2007 Show-Cause Order and Resolution No. 070382
government tasked to discipline misfeasance and malfeasance in the government service. The number of
dated February 26, 2007 as having been issued with grave abuse of discretion amounting to excess or
pleadings so prepared further demonstrates that such person is not merely engaged in an isolated
total absence of jurisdiction. Prior to this, however, petitioner lodged an administrative/criminal
practice but pursues it with seeming regularity. It would also be the height of naivete or credulity, and
complaint against respondents Directors Racquel D.G. Buensalida (Chief of Staff, Office of the CSC
certainly against common human experience, to believe that the person concerned had engaged in this
Chairman) and Lydia A. Castillo (CSC-RO IV) before the Office of the Ombudsman, and a separate
customary practice without any consideration, and in fact, one of the retrieved files (item 13 above)
complaint for disbarment against Director Buensalida.14
appears to insinuate the collection of fees. That these draft pleadings were obtained from the computer
assigned to Pollo invariably raises the presumption that he was the one responsible or had a hand in
their drafting or preparation since the computer of origin was within his direct control and disposition.9 On April 17, 2007, petitioner received a notice of hearing from the CSC setting the formal investigation of
the case on April 30, 2007. On April 25, 2007, he filed in the CA an Urgent Motion for the issuance of TRO
and preliminary injunction.15 Since he failed to attend the pre-hearing conference scheduled on April 30,
Petitioner filed his Comment, denying that he is the person referred to in the anonymous letter-
2007, the CSC reset the same to May 17, 2007 with warning that the failure of petitioner and/or his
complaint which had no attachments to it, because he is not a lawyer and neither is he "lawyering" for
counsel to appear in the said pre-hearing conference shall entitle the prosecution to proceed with the
people with cases in the CSC. He accused CSC officials of conducting a "fishing expedition" when they
formal investigation ex-parte.16 Petitioner moved to defer or to reset the pre-hearing conference,
unlawfully copied and printed personal files in his computer, and subsequently asking him to submit his
claiming that the investigation proceedings should be held in abeyance pending the resolution of his
comment which violated his right against self-incrimination. He asserted that he had protested the
petition by the CA. The CSC denied his request and again scheduled the pre-hearing conference on May
unlawful taking of his computer done while he was on leave, citing the letter dated January 8, 2007 in
18, 2007 with similar warning on the consequences of petitioner and/or his counsel’s non-
which he informed Director Castillo that the files in his computer were his personal files and those of his
appearance.17 This prompted petitioner to file another motion in the CA, to cite the respondents,
sister, relatives, friends and some associates and that he is not authorizing their sealing, copying,
including the hearing officer, in indirect contempt.18
duplicating and printing as these would violate his constitutional right to privacy and protection against
self-incrimination and warrantless search and seizure. He pointed out that though government property,
the temporary use and ownership of the computer issued under a Memorandum of Receipt (MR) is On June 12, 2007, the CSC issued Resolution No. 07113419 denying petitioner’s motion to set aside the
ceded to the employee who may exercise all attributes of ownership, including its use for personal denial of his motion to defer the proceedings and to inhibit the designated hearing officer, Atty. Bernard
purposes. As to the anonymous letter, petitioner argued that it is not actionable as it failed to comply G. Jimenez. The hearing officer was directed to proceed with the investigation proper with dispatch.
with the requirements of a formal complaint under the Uniform Rules on Administrative Cases in the
Civil Service (URACC). In view of the illegal search, the files/documents copied from his computer
In view of the absence of petitioner and his counsel, and upon the motion of the prosecution, petitioner
without his consent is thus inadmissible as evidence, being "fruits of a poisonous tree."10
was deemed to have waived his right to the formal investigation which then proceeded ex parte.

On February 26, 2007, the CSC issued Resolution No. 07038211 finding prima facie case against the
On July 24, 2007, the CSC issued Resolution No. 071420,20 the dispositive part of which reads:
petitioner and charging him with Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest
of the Service and Violation of R.A. No. 6713 (Code of Conduct and Ethical Standards for Public Officials
and Employees). Petitioner was directed to submit his answer under oath within five days from notice WHEREFORE, foregoing premises considered, the Commission hereby finds Briccio A. Pollo, a.k.a. Ricky
and indicate whether he elects a formal investigation. Since the charges fall under Section 19 of the A. Pollo GUILTY of Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of the Service
URACC, petitioner was likewise placed under 90 days preventive suspension effective immediately upon and Violation of Republic Act 6713. He is meted the penalty of DISMISSAL FROM THE SERVICE with all its
receipt of the resolution. Petitioner received a copy of Resolution No. 070382 on March 1, 2007. accessory penalties, namely, disqualification to hold public office, forfeiture of retirement benefits,
cancellation of civil service eligibilities and bar from taking future civil service examinations.21
Petitioner filed an Omnibus Motion (For Reconsideration, to Dismiss and/or to Defer) assailing the formal
charge as without basis having proceeded from an illegal search which is beyond the authority of the CSC On the paramount issue of the legality of the search conducted on petitioner’s computer, the CSC noted
Chairman, such power pertaining solely to the court. Petitioner reiterated that he never aided any the dearth of jurisprudence relevant to the factual milieu of this case where the government as
people with pending cases at the CSC and alleged that those files found in his computer were prepared employer invades the private files of an employee stored in the computer assigned to him for his official
61

use, in the course of initial investigation of possible misconduct committed by said employee and I
without the latter’s consent or participation. The CSC thus turned to relevant rulings of the United States
Supreme Court, and cited the leading case of O’Connor v. Ortega22as authority for the view that
THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED AND COMMITTED SERIOUS
government agencies, in their capacity as employers, rather than law enforcers, could validly conduct
IRREGULARITY AND BLATANT ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION
search and seizure in the governmental workplace without meeting the "probable cause" or warrant
WHEN IT RULED THAT ANONYMOUS COMPLAINT IS ACTIONABLE UNDER E.O. 292 WHEN IN
requirement for search and seizure. Another ruling cited by the CSC is the more recent case of United
TRUTH AND IN FACT THE CONTRARY IS EXPLICITLY PROVIDED UNDER 2nd PARAGRAPH OF
States v. Mark L. Simons23 which declared that the federal agency’s computer use policy foreclosed any
SECTION 8 OF CSC RESOLUTION NO. 99-1936, WHICH IS AN [AMENDMENT] TO THE ORIGINAL
inference of reasonable expectation of privacy on the part of its employees. Though the Court therein
RULES PER CSC RESOLUTION NO. 94-0521;
recognized that such policy did not, at the same time, erode the respondent’s legitimate expectation of
privacy in the office in which the computer was installed, still, the warrantless search of the employee’s
office was upheld as valid because a government employer is entitled to conduct a warrantless search II
pursuant to an investigation of work-related misconduct provided the search is reasonable in its
inception and scope. THE HONORABLE COURT GRIEVOUSLY ERRED AND COMMITTED PALPABLE ERRORS IN LAW
AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT PETITIONER CANNOT
With the foregoing American jurisprudence as benchmark, the CSC held that petitioner has no INVOKE HIS RIGHT TO PRIVACY, TO UNREASONABLE SEARCH AND SEIZURE, AGAINST SELF-
reasonable expectation of privacy with regard to the computer he was using in the regional office in view INCRIMINATION, BY VIRTUE OF OFFICE MEMORANDUM NO. 10 S. 2002, A MERE INTERNAL
of the CSC computer use policy which unequivocally declared that a CSC employee cannot assert any MEMORANDUM SIGNED SOLELY AND EXCLUSIVELY BY RESPONDENT DAVID AND NOT BY THE
privacy right to a computer assigned to him. Even assuming that there was no such administrative policy, COLLEGIAL COMMISSION CONSIDERING THAT POLICY MATTERS INVOLVING SUB[S]TANTIAL
the CSC was of the view that the search of petitioner’s computer successfully passed the test of RIGHTS CANNOT BE COVERED BY AN OFFICE MEMORANDUM WHICH IS LIMITED TO
reasonableness for warrantless searches in the workplace as enunciated in the aforecited authorities. PROCEDURAL AND ROUTINARY INSTRUCTION;
The CSC stressed that it pursued the search in its capacity as government employer and that it was
undertaken in connection with an investigation involving work-related misconduct, which exempts it III
from the warrant requirement under the Constitution. With the matter of admissibility of the evidence
having been resolved, the CSC then ruled that the totality of evidence adequately supports the charges
of grave misconduct, dishonesty, conduct prejudicial to the best interest of the service and violation of THE HONORABLE COURT GRAVELY ERRED AND COMMITTED GRAVE ABUSE OF DISCRETION
R.A. No. 6713 against the petitioner. These grave infractions justified petitioner’s dismissal from the WHEN IT RULED THAT MEMO SEARCH DATED JANUARY 3, 2007 AND THE TAKING OF
service with all its accessory penalties. DOCUMENTS IN THE EVENING THEREOF FROM 7:00 TO 10:00 P.M. IS NOT GRAVE ABUSE OF
DISCRETION LIMITING THE DEFINITION [OF] GRAVE ABUSE OF DISCRETION TO ONE
INVOLVING AND TAINTED WITH PERSONAL HOSTILITY. IT LIKEWISE ERRED IN HOLDING
In his Memorandum24 filed in the CA, petitioner moved to incorporate the above resolution dismissing THAT DATA STORED IN THE GOVERNMENT COMPUTERS ARE GOVERNMENT PROPERTIES
him from the service in his main petition, in lieu of the filing of an appeal via a Rule 43 petition. In a INCLUDING THE PERSONAL FILES WHEN THE CONTRARY IS PROVIDED UNDER SECTION 14 OF
subsequent motion, he likewise prayed for the inclusion of Resolution No. 07180025 which denied his OM. 10 s. 2002. AND GRIEVOUSLY ERRED STILL WHEN IT RULED THAT RESPONDENT DAVID BY
motion for reconsideration. VIRTUE OF O.M. 10 DID NOT ENCROACH ON THE DUTIES AND FUNCTIONS OF A JUDGE
PURSUANT TO ARTICLE III, SECTION 2 OF THE 1987 PHILIPPINE CONSTITUTION;
By Decision dated October 11, 2007, the CA dismissed the petition for certiorari after finding no grave
abuse of discretion committed by respondents CSC officials. The CA held that: (1) petitioner was not IV
charged on the basis of the anonymous letter but from the initiative of the CSC after a fact-finding
investigation was conducted and the results thereof yielded a prima facie case against him; (2) it could
not be said that in ordering the back-up of files in petitioner’s computer and later confiscating the same, THE HONORABLE COURT ERRED WHEN IT FAILED TO CONSIDER ALL OTHER NEW
Chairperson David had encroached on the authority of a judge in view of the CSC computer policy ARGUMENTS, ADDITIONAL EVIDENCE HEREUNTO SUBMITTED AS WELL AS ITS FAILURE TO
declaring the computers as government property and that employee-users thereof have no reasonable EVALUATE AND TAKE ACTION ON THE 2 MOTIONS TO ADMIT AND INCORPORATE CSC
expectation of privacy in anything they create, store, send, or receive on the computer system; and (3) RESOLUTION NOS. 07-1420 DATED JULY 24, 2007 AND CSC RESOLUTION 07-1800 DATED
there is nothing contemptuous in CSC’s act of proceeding with the formal investigation as there was no SEPTEMBER 10, 2007. IT DID NOT RULE LIKEWISE ON THE FOUR URGENT MOTION TO
restraining order or injunction issued by the CA. RESOLVE ANCILLARY PRAYER FOR TRO.26

His motion for reconsideration having been denied by the CA, petitioner brought this appeal arguing that Squarely raised by the petitioner is the legality of the search conducted on his office computer and the
copying of his personal files without his knowledge and consent, alleged as a transgression on his
constitutional right to privacy.
62

The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by declared that "[i]ndividuals do not lose Fourth Amendment rights merely because they work for the
the guarantee against unreasonable search and seizure under Section 2, Article III of the 1987 government instead of a private employer."35 A plurality of four Justices concurred that the correct
Constitution,27 which provides: analysis has two steps: first, because "some government offices may be so open to fellow employees or
the public that no expectation of privacy is reasonable", a court must consider "[t]he operational realities
of the workplace" in order to determine whether an employee’s Fourth Amendment rights are
Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against
implicated; and next, where an employee has a legitimate privacy expectation, an employer’s intrusion
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no
on that expectation "for noninvestigatory, work-related purposes, as well as for investigations of work-
search warrant or warrant of arrest shall issue except upon probable cause to be determined personally
related misconduct, should be judged by the standard of reasonableness under all the circumstances."36
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.
On the matter of government employees’ reasonable expectations of privacy in their workplace,
O’Connor teaches:
The constitutional guarantee is not a prohibition of all searches and seizures but only of "unreasonable"
searches and seizures.28 But to fully understand this concept and application for the purpose of resolving
the issue at hand, it is essential that we examine the doctrine in the light of pronouncements in another Public employees’ expectations of privacy in their offices, desks, and file cabinets, like similar
jurisdiction. As the Court declared in People v. Marti29 : expectations of employees in the private sector, may be reduced by virtue of actual office practices and
procedures, or by legitimate regulation. x x x The employee’s expectation of privacy must be assessed in
the context of the employment relation. An office is seldom a private enclave free from entry by
Our present constitutional provision on the guarantee against unreasonable search and seizure had its
supervisors, other employees, and business and personal invitees. Instead, in many cases offices are
origin in the 1935 Charter which, worded as follows:
continually entered by fellow employees and other visitors during the workday for conferences,
consultations, and other work-related visits. Simply put, it is the nature of government offices that
"The right of the people to be secure in their persons, houses, papers and effects against unreasonable others – such as fellow employees, supervisors, consensual visitors, and the general public – may have
searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be frequent access to an individual’s office. We agree with JUSTICE SCALIA that "[c]onstitutional protection
determined by the judge after examination under oath or affirmation of the complainant and the against unreasonable searches by the government does not disappear merely because the government
witnesses he may produce, and particularly describing the place to be searched, and the persons or has the right to make reasonable intrusions in its capacity as employer," x x x but some government
things to be seized." (Sec. 1[3], Article III) offices may be so open to fellow employees or the public that no expectation of privacy is reasonable.
x x x Given the great variety of work environments in the public sector, the question of whether an
was in turn derived almost verbatim from the Fourth Amendment to the United States Constitution. As employee has a reasonable expectation of privacy must be addressed on a case-by-case
such, the Court may turn to the pronouncements of the United States Federal Supreme Court and State basis.37 (Citations omitted; emphasis supplied.)
Appellate Courts which are considered doctrinal in this jurisdiction.30
On the basis of the established rule in previous cases, the US Supreme Court declared that Dr. Ortega’s
In the 1967 case of Katz v. United States,31 the US Supreme Court held that the act of FBI agents in Fourth Amendment rights are implicated only if the conduct of the hospital officials infringed "an
electronically recording a conversation made by petitioner in an enclosed public telephone booth expectation of privacy that society is prepared to consider as reasonable." Given the undisputed
violated his right to privacy and constituted a "search and seizure". Because the petitioner had a evidence that respondent Dr. Ortega did not share his desk or file cabinets with any other employees,
reasonable expectation of privacy in using the enclosed booth to make a personal telephone call, the kept personal correspondence and other private items in his own office while those work-related files
protection of the Fourth Amendment extends to such area. In the concurring opinion of Mr. Justice (on physicians in residency training) were stored outside his office, and there being no evidence that the
Harlan, it was further noted that the existence of privacy right under prior decisions involved a two-fold hospital had established any reasonable regulation or policy discouraging employees from storing
requirement: first, that a person has exhibited an actual (subjective) expectation of privacy; and second, personal papers and effects in their desks or file cabinets (although the absence of such a policy does not
that the expectation be one that society is prepared to recognize as reasonable (objective).32 create any expectation of privacy where it would not otherwise exist), the Court concluded that Dr.
Ortega has a reasonable expectation of privacy at least in his desk and file cabinets.38

In Mancusi v. DeForte33 which addressed the reasonable expectations of private employees in the
workplace, the US Supreme Court held that a union employee had Fourth Amendment rights with regard Proceeding to the next inquiry as to whether the search conducted by hospital officials was reasonable,
to an office at union headquarters that he shared with other union officials, even as the latter or their the O’Connor plurality decision discussed the following principles:
guests could enter the office. The Court thus "recognized that employees may have a reasonable
expectation of privacy against intrusions by police." Having determined that Dr. Ortega had a reasonable expectation of privacy in his office, the Court of
Appeals simply concluded without discussion that the "search…was not a reasonable search under the
That the Fourth Amendment equally applies to a government workplace was addressed in the 1987 case fourth amendment." x x x "[t]o hold that the Fourth Amendment applies to searches conducted by
of O’Connor v. Ortega34 where a physician, Dr. Magno Ortega, who was employed by a state hospital, [public employers] is only to begin the inquiry into the standards governing such searches…[W]hat is
claimed a violation of his Fourth Amendment rights when hospital officials investigating charges of reasonable depends on the context within which a search takes place. x x x Thus, we must determine the
mismanagement of the psychiatric residency program, sexual harassment of female hospital employees appropriate standard of reasonableness applicable to the search. A determination of the standard of
and other irregularities involving his private patients under the state medical aid program, searched his reasonableness applicable to a particular class of searches requires "balanc[ing] the nature and quality of
office and seized personal items from his desk and filing cabinets. In that case, the Court categorically the intrusion on the individual’s Fourth Amendment interests against the importance of the
63

governmental interests alleged to justify the intrusion." x x x In the case of searches conducted by a circumstances. Under this reasonableness standard, both the inception and the scope of the intrusion
public employer, we must balance the invasion of the employees’ legitimate expectations of privacy must be reasonable:
against the government’s need for supervision, control, and the efficient operation of the workplace.
"Determining the reasonableness of any search involves a twofold inquiry: first, one must consider
In our view, requiring an employer to obtain a warrant whenever the employer wished to enter an ‘whether the…action was justified at its inception,’ x x x ; second, one must determine whether the
employee’s office, desk, or file cabinets for a work-related purpose would seriously disrupt the routine search as actually conducted ‘was reasonably related in scope to the circumstances which justified the
conduct of business and would be unduly burdensome. Imposing unwieldy warrant procedures in such interference in the first place,’" x x x
cases upon supervisors, who would otherwise have no reason to be familiar with such procedures, is
simply unreasonable. In contrast to other circumstances in which we have required warrants, supervisors
Ordinarily, a search of an employee’s office by a supervisor will be "justified at its inception" when
in offices such as at the Hospital are hardly in the business of investigating the violation of criminal laws.
there are reasonable grounds for suspecting that the search will turn up evidence that the employee is
Rather, work-related searches are merely incident to the primary business of the agency. Under these
guilty of work-related misconduct, or that the search is necessary for a noninvestigatory work-related
circumstances, the imposition of a warrant requirement would conflict with the "common-sense
purpose such as to retrieve a needed file. x x x The search will be permissible in its scope when "the
realization that government offices could not function if every employment decision became a
measures adopted are reasonably related to the objectives of the search and not excessively intrusive
constitutional matter." x x x
in light of …the nature of the [misconduct]." x x x39 (Citations omitted; emphasis supplied.)

The governmental interest justifying work-related intrusions by public employers is the efficient and
Since the District Court granted summary judgment without a hearing on the factual dispute as to the
proper operation of the workplace. Government agencies provide myriad services to the public, and the
character of the search and neither was there any finding made as to the scope of the search that was
work of these agencies would suffer if employers were required to have probable cause before they
undertaken, the case was remanded to said court for the determination of the justification for the search
entered an employee’s desk for the purpose of finding a file or piece of office correspondence. Indeed, it
and seizure, and evaluation of the reasonableness of both the inception of the search and its scope.
is difficult to give the concept of probable cause, rooted as it is in the criminal investigatory context,
much meaning when the purpose of a search is to retrieve a file for work-related reasons. Similarly, the
concept of probable cause has little meaning for a routine inventory conducted by public employers for In O’Connor the Court recognized that "special needs" authorize warrantless searches involving public
the purpose of securing state property. x x x To ensure the efficient and proper operation of the agency, employees for work-related reasons. The Court thus laid down a balancing test under which government
therefore, public employers must be given wide latitude to enter employee offices for work-related, interests are weighed against the employee’s reasonable expectation of privacy. This reasonableness
noninvestigatory reasons. test implicates neither probable cause nor the warrant requirement, which are related to law
enforcement.40
We come to a similar conclusion for searches conducted pursuant to an investigation of work-related
employee misconduct. Even when employers conduct an investigation, they have an interest O’Connor was applied in subsequent cases raising issues on employees’ privacy rights in the workplace.
substantially different from "the normal need for law enforcement." x x x Public employers have an One of these cases involved a government employer’s search of an office computer, United States v.
interest in ensuring that their agencies operate in an effective and efficient manner, and the work of Mark L. Simons41where the defendant Simons, an employee of a division of the Central Intelligence
these agencies inevitably suffers from the inefficiency, incompetence, mismanagement, or other work- Agency (CIA), was convicted of receiving and possessing materials containing child pornography. Simons
related misfeasance of its employees. Indeed, in many cases, public employees are entrusted with was provided with an office which he did not share with anyone, and a computer with Internet access.
tremendous responsibility, and the consequences of their misconduct or incompetence to both the The agency had instituted a policy on computer use stating that employees were to use the Internet for
agency and the public interest can be severe. In contrast to law enforcement officials, therefore, public official government business only and that accessing unlawful material was specifically prohibited. The
employers are not enforcers of the criminal law; instead, public employers have a direct and overriding policy also stated that users shall understand that the agency will periodically audit, inspect, and/or
interest in ensuring that the work of the agency is conducted in a proper and efficient manner. In our monitor the user’s Internet access as deemed appropriate. CIA agents instructed its contractor for the
view, therefore, a probable cause requirement for searches of the type at issue here would impose management of the agency’s computer network, upon initial discovery of prohibited internet activity
intolerable burdens on public employers. The delay in correcting the employee misconduct caused by originating from Simons’ computer, to conduct a remote monitoring and examination of Simons’
the need for probable cause rather than reasonable suspicion will be translated into tangible and computer. After confirming that Simons had indeed downloaded pictures that were pornographic in
often irreparable damage to the agency’s work, and ultimately to the public interest. x x x nature, all the files on the hard drive of Simon’s computer were copied from a remote work station. Days
later, the contractor’s representative finally entered Simon’s office, removed the original hard drive on
Simon’s computer, replaced it with a copy, and gave the original to the agency security officer.
In sum, we conclude that the "special needs, beyond the normal need for law enforcement make
Thereafter, the agency secured warrants and searched Simons’ office in the evening when Simons was
the…probable-cause requirement impracticable," x x x for legitimate, work-related noninvestigatory
not around. The search team copied the contents of Simons’ computer; computer diskettes found in
intrusions as well as investigations of work-related misconduct. A standard of reasonableness will
Simons’ desk drawer; computer files stored on the zip drive or on zip drive diskettes; videotapes; and
neither unduly burden the efforts of government employers to ensure the efficient and proper operation
various documents, including personal correspondence. At his trial, Simons moved to suppress these
of the workplace, nor authorize arbitrary intrusions upon the privacy of public employees. We hold,
evidence, arguing that the searches of his office and computer violated his Fourth Amendment rights.
therefore, that public employer intrusions on the constitutionally protected privacy interests of
After a hearing, the district court denied the motion and Simons was found guilty as charged.
government employees for noninvestigatory, work-related purposes, as well as for investigations of
work-related misconduct, should be judged by the standard of reasonableness under all the
64

Simons appealed his convictions. The US Supreme Court ruled that the searches of Simons’ computer This Court, in Social Justice Society (SJS) v. Dangerous Drugs Board43 which involved the constitutionality
and office did not violate his Fourth Amendment rights and the first search warrant was valid. It held that of a provision in R.A. No. 9165 requiring mandatory drug testing of candidates for public office, students
the search remains valid under the O’Connor exception to the warrant requirement because evidence of of secondary and tertiary schools, officers and employees of public and private offices, and persons
the crime was discovered in the course of an otherwise proper administrative inspection. Simons’ charged before the prosecutor’s office with certain offenses, have also recognized the fact that there
violation of the agency’s Internet policy happened also to be a violation of criminal law; this does not may be such legitimate intrusion of privacy in the workplace.
mean that said employer lost the capacity and interests of an employer. The warrantless entry into
Simons’ office was reasonable under the Fourth Amendment standard announced in O’Connor because
The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon
at the inception of the search, the employer had "reasonable grounds for suspecting" that the hard drive
which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution,
would yield evidence of misconduct, as the employer was already aware that Simons had misused his
intrudes. In this case, the office or workplace serves as the backdrop for the analysis of the privacy
Internet access to download over a thousand pornographic images. The retrieval of the hard drive was
expectation of the employees and the reasonableness of drug testing requirement. The employees’
reasonably related to the objective of the search, and the search was not excessively intrusive. Thus,
privacy interest in an office is to a large extent circumscribed by the company’s work policies, the
while Simons had a reasonable expectation of privacy in his office, he did not have such legitimate
collective bargaining agreement, if any, entered into by management and the bargaining unit, and the
expectation of privacy with regard to the files in his computer.
inherent right of the employer to maintain discipline and efficiency in the workplace. Their privacy
expectation in a regulated office environment is, in fine, reduced; and a degree of impingement upon
x x x To establish a violation of his rights under the Fourth Amendment, Simons must first prove that he such privacy has been upheld. (Emphasis supplied.)
had a legitimate expectation of privacy in the place searched or the item seized. x x x And, in order to
prove a legitimate expectation of privacy, Simons must show that his subjective expectation of privacy is
Applying the analysis and principles announced in O’Connor and Simons to the case at bar, we now
one that society is prepared to accept as objectively reasonable. x x x
address the following questions: (1) Did petitioner have a reasonable expectation of privacy in his office
and computer files?; and (2) Was the search authorized by the CSC Chair, the copying of the contents of
x x x We conclude that the remote searches of Simons’ computer did not violate his Fourth Amendment the hard drive on petitioner’s computer reasonable in its inception and scope?
rights because, in light of the Internet policy, Simons lacked a legitimate expectation of privacy in the
files downloaded from the Internet. Additionally, we conclude that Simons’ Fourth Amendment rights
In this inquiry, the relevant surrounding circumstances to consider include "(1) the employee’s
were not violated by FBIS’ retrieval of Simons’ hard drive from his office.
relationship to the item seized; (2) whether the item was in the immediate control of the employee
when it was seized; and (3) whether the employee took actions to maintain his privacy in the item."
Simons did not have a legitimate expectation of privacy with regard to the record or fruits of his These factors are relevant to both the subjective and objective prongs of the reasonableness inquiry, and
Internet use in light of the FBIS Internet policy. The policy clearly stated that FBIS would "audit, we consider the two questions together.44 Thus, where the employee used a password on his computer,
inspect, and/or monitor" employees’ use of the Internet, including all file transfers, all websites did not share his office with co-workers and kept the same locked, he had a legitimate expectation of
visited, and all e-mail messages, "as deemed appropriate." x x x This policy placed employees on notice privacy and any search of that space and items located therein must comply with the Fourth
that they could not reasonably expect that their Internet activity would be private. Therefore, regardless Amendment.45
of whether Simons subjectively believed that the files he transferred from the Internet were private,
such a belief was not objectively reasonable after FBIS notified him that it would be overseeing his
We answer the first in the negative. Petitioner failed to prove that he had an actual (subjective)
Internet use. x x x Accordingly, FBIS’ actions in remotely searching and seizing the computer files Simons
expectation of privacy either in his office or government-issued computer which contained his personal
downloaded from the Internet did not violate the Fourth Amendment.
files. Petitioner did not allege that he had a separate enclosed office which he did not share with anyone,
or that his office was always locked and not open to other employees or visitors. Neither did he allege
The burden is on Simons to prove that he had a legitimate expectation of privacy in his office. x x x that he used passwords or adopted any means to prevent other employees from accessing his computer
Here, Simons has shown that he had an office that he did not share. As noted above, the operational files. On the contrary, he submits that being in the public assistance office of the CSC-ROIV, he normally
realities of Simons’ workplace may have diminished his legitimate privacy expectations. However, there would have visitors in his office like friends, associates and even unknown people, whom he even
is no evidence in the record of any workplace practices, procedures, or regulations that had such an allowed to use his computer which to him seemed a trivial request. He described his office as "full of
effect. We therefore conclude that, on this record, Simons possessed a legitimate expectation of people, his friends, unknown people" and that in the past 22 years he had been discharging his functions
privacy in his office. at the PALD, he is "personally assisting incoming clients, receiving documents, drafting cases on appeals,
in charge of accomplishment report, Mamamayan Muna Program, Public Sector Unionism, Correction of
name, accreditation of service, and hardly had anytime for himself alone, that in fact he stays in the
In the final analysis, this case involves an employee’s supervisor entering the employee’s government
office as a paying customer."46 Under this scenario, it can hardly be deduced that petitioner had such
office and retrieving a piece of government equipment in which the employee had absolutely no
expectation of privacy that society would recognize as reasonable.
expectation of privacy – equipment that the employer knew contained evidence of crimes committed by
the employee in the employee’s office. This situation may be contrasted with one in which the criminal
acts of a government employee were unrelated to his employment. Here, there was a conjunction of the Moreover, even assuming arguendo, in the absence of allegation or proof of the aforementioned factual
conduct that violated the employer’s policy and the conduct that violated the criminal law. We consider circumstances, that petitioner had at least a subjective expectation of privacy in his computer as he
that FBIS’ intrusion into Simons’ office to retrieve the hard drive is one in which a reasonable employer claims, such is negated by the presence of policy regulating the use of office computers, as in Simons.
might engage. x x x42 (Citations omitted; emphasis supplied.)
65

Office Memorandum No. 10, S. 2002 "Computer Use Policy (CUP)" explicitly provides: implies that on-the-spot inspections may be done to ensure that the computer resources were used only
for such legitimate business purposes.
POLICY
One of the factors stated in O’Connor which are relevant in determining whether an employee’s
expectation of privacy in the workplace is reasonable is the existence of a workplace privacy policy.48 In
1. The Computer Resources are the property of the Civil Service Commission and may be used only for
one case, the US Court of Appeals Eighth Circuit held that a state university employee has not shown
legitimate business purposes.
that he had a reasonable expectation of privacy in his computer files where the university’s computer
policy, the computer user is informed not to expect privacy if the university has a legitimate reason to
2. Users shall be permitted access to Computer Resources to assist them in the performance of their conduct a search. The user is specifically told that computer files, including e-mail, can be searched when
respective jobs. the university is responding to a discovery request in the course of litigation. Petitioner employee thus
cannot claim a violation of Fourth Amendment rights when university officials conducted a warrantless
3. Use of the Computer Resources is a privilege that may be revoked at any given time. search of his computer for work-related materials.49

No Expectation of Privacy As to the second point of inquiry on the reasonableness of the search conducted on petitioner’s
computer, we answer in the affirmative.

4. No expectation of privacy. Users except the Members of the Commission shall not have an
expectation of privacy in anything they create, store, send, or receive on the computer system. The search of petitioner’s computer files was conducted in connection with investigation of work-related
misconduct prompted by an anonymous letter-complaint addressed to Chairperson David regarding
anomalies in the CSC-ROIV where the head of the Mamamayan Muna Hindi Mamaya Na division is
The Head of the Office for Recruitment, Examination and Placement shall select and assign Users to supposedly "lawyering" for individuals with pending cases in the CSC. Chairperson David stated in her
handle the confidential examination data and processes. sworn affidavit:

5. Waiver of privacy rights. Users expressly waive any right to privacy in anything they create, store, 8. That prior to this, as early as 2006, the undersigned has received several text messages from unknown
send, or receive on the computer through the Internet or any other computer network. Users sources adverting to certain anomalies in Civil Service Commission Regional Office IV (CSCRO IV) such as,
understand that the CSC may use human or automated means to monitor the use of its Computer staff working in another government agency, "selling" cases and aiding parties with pending cases, all
Resources. done during office hours and involved the use of government properties;

6. Non-exclusivity of Computer Resources. A computer resource is not a personal property or for the 9. That said text messages were not investigated for lack of any verifiable leads and details sufficient to
exclusive use of a User to whom a memorandum of receipt (MR) has been issued. It can be shared or warrant an investigation;
operated by other users. However, he is accountable therefor and must insure its care and maintenance.

10. That the anonymous letter provided the lead and details as it pinpointed the persons and divisions
Passwords involved in the alleged irregularities happening in CSCRO IV;

12. Responsibility for passwords. Users shall be responsible for safeguarding their passwords for access 11. That in view of the seriousness of the allegations of irregularities happening in CSCRO IV and its
to the computer system. Individual passwords shall not be printed, stored online, or given to others. effect on the integrity of the Commission, I decided to form a team of Central Office staff to back up the
Users shall be responsible for all transactions made using their passwords. No User may access the files in the computers of the Public Assistance and Liaison Division (PALD) and Legal Division;
computer system with another User’s password or account.

A search by a government employer of an employee’s office is justified at inception when there are
13. Passwords do not imply privacy. Use of passwords to gain access to the computer system or to reasonable grounds for suspecting that it will turn up evidence that the employee is guilty of work-
encode particular files or messages does not imply that Users have an expectation of privacy in the related misconduct.51 Thus, in the 2004 case decided by the US Court of Appeals Eighth Circuit, it was
material they create or receive on the computer system. The Civil Service Commission has global held that where a government agency’s computer use policy prohibited electronic messages with
passwords that permit access to all materials stored on its networked computer system regardless of pornographic content and in addition expressly provided that employees do not have any personal
whether those materials have been encoded with a particular User’s password. Only members of the privacy rights regarding their use of the agency information systems and technology, the government
Commission shall authorize the application of the said global passwords. employee had no legitimate expectation of privacy as to the use and contents of his office computer, and
therefore evidence found during warrantless search of the computer was admissible in prosecution for
The CSC in this case had implemented a policy that put its employees on notice that they have no child pornography. In that case, the defendant employee’s computer hard drive was first remotely
expectation of privacy in anything they create, store, send or receive on the office computers, and that examined by a computer information technician after his supervisor received complaints that he was
the CSC may monitor the use of the computer resources using both automated or human means. This inaccessible and had copied and distributed non-work-related e-mail messages throughout the office.
When the supervisor confirmed that defendant had used his computer to access the prohibited
66

websites, in contravention of the express policy of the agency, his computer tower and floppy disks were Petitioner’s claim of violation of his constitutional right to privacy must necessarily fail. His other
taken and examined. A formal administrative investigation ensued and later search warrants were argument invoking the privacy of communication and correspondence under Section 3(1), Article III of
secured by the police department. The initial remote search of the hard drive of petitioner’s computer, the 1987 Constitution is also untenable considering the recognition accorded to certain legitimate
as well as the subsequent warrantless searches was held as valid under the O’Connor ruling that a public intrusions into the privacy of employees in the government workplace under the aforecited authorities.
employer can investigate work-related misconduct so long as any search is justified at inception and is We likewise find no merit in his contention that O’Connor and Simons are not relevant because the
reasonably related in scope to the circumstances that justified it in the first place.52 present case does not involve a criminal offense like child pornography. As already mentioned, the
search of petitioner’s computer was justified there being reasonable ground for suspecting that the files
stored therein would yield incriminating evidence relevant to the investigation being conducted by CSC
Under the facts obtaining, the search conducted on petitioner’s computer was justified at its inception
as government employer of such misconduct subject of the anonymous complaint. This situation clearly
and scope. We quote with approval the CSC’s discussion on the reasonableness of its actions, consistent
falls under the exception to the warrantless requirement in administrative searches defined in O’Connor.
as it were with the guidelines established by O’Connor:

The Court is not unaware of our decision in Anonymous Letter-Complaint against Atty. Miguel Morales,
Even conceding for a moment that there is no such administrative policy, there is no doubt in the mind
Clerk of Court, Metropolitan Trial Court of Manila54 involving a branch clerk (Atty. Morales) who was
of the Commission that the search of Pollo’s computer has successfully passed the test of
investigated on the basis of an anonymous letter alleging that he was consuming his working hours filing
reasonableness for warrantless searches in the workplace as enunciated in the above-discussed
and attending to personal cases, using office supplies, equipment and utilities. The OCA conducted a spot
American authorities. It bears emphasis that the Commission pursued the search in its capacity as a
investigation aided by NBI agents. The team was able to access Atty. Morales’ personal computer and
government employer and that it was undertaken in connection with an investigation involving a
print two documents stored in its hard drive, which turned out to be two pleadings, one filed in the CA
work-related misconduct, one of the circumstances exempted from the warrant requirement. At the
and another in the RTC of Manila, both in the name of another lawyer. Atty. Morales’ computer was
inception of the search, a complaint was received recounting that a certain division chief in the CSCRO
seized and taken in custody of the OCA but was later ordered released on his motion, but with order to
No. IV was "lawyering" for parties having pending cases with the said regional office or in the
the MISO to first retrieve the files stored therein. The OCA disagreed with the report of the Investigating
Commission. The nature of the imputation was serious, as it was grievously disturbing. If, indeed, a CSC
Judge that there was no evidence to support the charge against Atty. Morales as no one from the OCC
employee was found to be furtively engaged in the practice of "lawyering" for parties with pending cases
personnel who were interviewed would give a categorical and positive statement affirming the charges
before the Commission would be a highly repugnant scenario, then such a case would have shattering
against Atty. Morales, along with other court personnel also charged in the same case. The OCA
repercussions. It would undeniably cast clouds of doubt upon the institutional integrity of the
recommended that Atty. Morales should be found guilty of gross misconduct. The Court En Banc held
Commission as a quasi-judicial agency, and in the process, render it less effective in fulfilling its mandate
that while Atty. Morales may have fallen short of the exacting standards required of every court
as an impartial and objective dispenser of administrative justice. It is settled that a court or an
employee, the Court cannot use the evidence obtained from his personal computer against him for it
administrative tribunal must not only be actually impartial but must be seen to be so, otherwise the
violated his constitutional right against unreasonable searches and seizures. The Court found no
general public would not have any trust and confidence in it.
evidence to support the claim of OCA that they were able to obtain the subject pleadings with the
consent of Atty. Morales, as in fact the latter immediately filed an administrative case against the
Considering the damaging nature of the accusation, the Commission had to act fast, if only to arrest or persons who conducted the spot investigation, questioning the validity of the investigation and
limit any possible adverse consequence or fall-out. Thus, on the same date that the complaint was specifically invoking his constitutional right against unreasonable search and seizure. And as there is no
received, a search was forthwith conducted involving the computer resources in the concerned regional other evidence, apart from the pleadings, retrieved from the unduly confiscated personal computer of
office. That it was the computers that were subjected to the search was justified since these furnished Atty. Morales, to hold him administratively liable, the Court had no choice but to dismiss the charges
the easiest means for an employee to encode and store documents. Indeed, the computers would be a against him for insufficiency of evidence.
likely starting point in ferreting out incriminating evidence. Concomitantly, the ephemeral nature of
computer files, that is, they could easily be destroyed at a click of a button, necessitated drastic and
The above case is to be distinguished from the case at bar because, unlike the former which involved a
immediate action. Pointedly, to impose the need to comply with the probable cause requirement would
personal computer of a court employee, the computer from which the personal files of herein petitioner
invariably defeat the purpose of the wok-related investigation.
were retrieved is a government-issued computer, hence government property the use of which the CSC
has absolute right to regulate and monitor. Such relationship of the petitioner with the item seized
Worthy to mention, too, is the fact that the Commission effected the warrantless search in an open and (office computer) and other relevant factors and circumstances under American Fourth Amendment
transparent manner. Officials and some employees of the regional office, who happened to be in the jurisprudence, notably the existence of CSC MO 10, S. 2007 on Computer Use Policy, failed to establish
vicinity, were on hand to observe the process until its completion. In addition, the respondent himself that petitioner had a reasonable expectation of privacy in the office computer assigned to him.
was duly notified, through text messaging, of the search and the concomitant retrieval of files from his
computer.
Having determined that the personal files copied from the office computer of petitioner are admissible
in the administrative case against him, we now proceed to the issue of whether the CSC was correct in
All in all, the Commission is convinced that the warrantless search done on computer assigned to Pollo finding the petitioner guilty of the charges and dismissing him from the service.
was not, in any way, vitiated with unconstitutionality. It was a reasonable exercise of the managerial
prerogative of the Commission as an employer aimed at ensuring its operational effectiveness and
Well-settled is the rule that the findings of fact of quasi-judicial agencies, like the CSC, are accorded not
efficiency by going after the work-related misfeasance of its employees. Consequently, the evidence
only respect but even finality if such findings are supported by substantial evidence. Substantial evidence
derived from the questioned search are deemed admissible.53
67

is such amount of relevant evidence which a reasonable mind might accept as adequate to support a that is, the computer and the electricity, to be utilized for purposes other than what they were officially
conclusion, even if other equally reasonable minds might conceivably opine otherwise.55 intended.

The CSC based its findings on evidence consisting of a substantial number of drafts of legal pleadings and Further, the Commission cannot lend credence to the posturing of the appellant that the line appearing
documents stored in his office computer, as well as the sworn affidavits and testimonies of the witnesses in one of the documents, "Eric N. Estrellado, Epal kulang ang bayad mo," was a private joke between the
it presented during the formal investigation. According to the CSC, these documents were confirmed to person alluded to therein, Eric N. Estrellado, and his counsel, Atty. Solosa, and not indicative of anything
be similar or exactly the same content-wise with those on the case records of some cases pending either more sinister. The same is too preposterous to be believed. Why would such a statement appear in a
with CSCRO No. IV, CSC-NCR or the Commission Proper. There were also substantially similar copies of legal pleading stored in the computer assigned to the respondent, unless he had something to do with
those pleadings filed with the CA and duly furnished the Commission. Further, the CSC found the it?56
explanation given by petitioner, to the effect that those files retrieved from his computer hard drive
actually belonged to his lawyer friends Estrellado and Solosa whom he allowed the use of his computer
Petitioner assails the CA in not ruling that the CSC should not have entertained an anonymous complaint
for drafting their pleadings in the cases they handle, as implausible and doubtful under the
since Section 8 of CSC Resolution No. 99-1936 (URACC) requires a verified complaint:
circumstances. We hold that the CSC’s factual finding regarding the authorship of the subject pleadings
and misuse of the office computer is well-supported by the evidence on record, thus:
Rule II – Disciplinary Cases
It is also striking to note that some of these documents were in the nature of pleadings responding to
the orders, decisions or resolutions of these offices or directly in opposition to them such as a petition SEC. 8. Complaint. - A complaint against a civil service official or employee shall not be given due course
for certiorari or a motion for reconsideration of CSC Resolution. This indicates that the author thereof unless it is in writing and subscribed and sworn to by the complainant. However, in cases initiated by the
knowingly and willingly participated in the promotion or advancement of the interests of parties proper disciplining authority, the complaint need not be under oath.
contrary or antagonistic to the Commission. Worse, the appearance in one of the retrieved documents
the phrase, "Eric N. Estr[e]llado, Epal kulang ang bayad mo," lends plausibility to an inference that the No anonymous complaint shall be entertained unless there is obvious truth or merit to the allegation
preparation or drafting of the legal pleadings was pursued with less than a laudable motivation. therein or supported by documentary or direct evidence, in which case the person complained of may
Whoever was responsible for these documents was simply doing the same for the money – a "legal be required to comment.
mercenary" selling or purveying his expertise to the highest bidder, so to speak.

We need not belabor this point raised by petitioner. The administrative complaint is deemed to have
Inevitably, the fact that these documents were retrieved from the computer of Pollo raises the been initiated by the CSC itself when Chairperson David, after a spot inspection and search of the files
presumption that he was the author thereof. This is because he had a control of the said computer. stored in the hard drive of computers in the two divisions adverted to in the anonymous letter -- as part
More significantly, one of the witnesses, Margarita Reyes, categorically testified seeing a written copy of of the disciplining authority’s own fact-finding investigation and information-gathering -- found a prima
one of the pleadings found in the case records lying on the table of the respondent. This was the Petition facie case against the petitioner who was then directed to file his comment. As this Court held in Civil
for Review in the case of Estrellado addressed to the Court of Appeals. The said circumstances Service Commission v. Court of Appeals57 --
indubitably demonstrate that Pollo was secretly undermining the interest of the Commission, his very
own employer.
Under Sections 46 and 48 (1), Chapter 6, Subtitle A, Book V of E.O. No. 292 and Section 8, Rule II of
Uniform Rules on Administrative Cases in the Civil Service, a complaint may be initiated against a civil
To deflect any culpability, Pollo would, however, want the Commission to believe that the documents service officer or employee by the appropriate disciplining authority, even without being subscribed and
were the personal files of some of his friends, including one Attorney Ponciano Solosa, who incidentally sworn to. Considering that the CSC, as the disciplining authority for Dumlao, filed the complaint,
served as his counsel of record during the formal investigation of this case. In fact, Atty. Solosa himself jurisdiction over Dumlao was validly acquired. (Emphasis supplied.)
executed a sworn affidavit to this effect. Unfortunately, this contention of the respondent was directly
rebutted by the prosecution witness, Reyes, who testified that during her entire stay in the PALD, she
never saw Atty. Solosa using the computer assigned to the respondent. Reyes more particularly stated As to petitioner’s challenge on the validity of CSC OM 10, S. 2002 (CUP), the same deserves scant
that she worked in close proximity with Pollo and would have known if Atty. Solosa, whom she consideration. The alleged infirmity due to the said memorandum order having been issued solely by the
personally knows, was using the computer in question. Further, Atty. Solosa himself was never presented CSC Chair and not the Commission as a collegial body, upon which the dissent of Commissioner
during the formal investigation to confirm his sworn statement such that the same constitutes self- Buenaflor is partly anchored, was already explained by Chairperson David in her Reply to the Addendum
serving evidence unworthy of weight and credence. The same is true with the other supporting to Commissioner Buenaflor’s previous memo expressing his dissent to the actions and disposition of the
affidavits, which Pollo submitted. Commission in this case. According to Chairperson David, said memorandum order was in fact
exhaustively discussed, provision by provision in the January 23, 2002 Commission Meeting, attended by
her and former Commissioners Erestain, Jr. and Valmores. Hence, the Commission En Banc at the time
At any rate, even admitting for a moment the said contention of the respondent, it evinces the fact that saw no need to issue a Resolution for the purpose and further because the CUP being for internal use of
he was unlawfully authorizing private persons to use the computer assigned to him for official purpose, the Commission, the practice had been to issue a memorandum order.58 Moreover, being an
not only once but several times gauging by the number of pleadings, for ends not in conformity with the administrative rule that is merely internal in nature, or which regulates only the personnel of the CSC
interests of the Commission. He was, in effect, acting as a principal by indispensable cooperation…Or at and not the public, the CUP need not be published prior to its effectivity.59
the very least, he should be responsible for serious misconduct for repeatedly allowing CSC resources,
68

In fine, no error or grave abuse of discretion was committed by the CA in affirming the CSC’s ruling that Ratio Decidendi
petitioner is guilty of grave misconduct, dishonesty, conduct prejudicial to the best interest of the
service, and violation of R.A. No. 6713. The gravity of these offenses justified the imposition on In this case, the Court had the chance to present the cases illustrative of the issue raised by the
petitioner of the ultimate penalty of dismissal with all its accessory penalties, pursuant to existing rules petitioner.
and regulations.

Katz v. United States 389 U.S. 437 (1967), the US Supreme Court held that the act of FBI agents in
WHEREFORE, the petition for review on certiorari is DENIED. The Decision dated October 11, 2007 and
electronically recording a conversation made by petitioner in an enclosed public telephone booth
Resolutiondated February 29, 2008 of the Court of Appeals in CA-G.R. SP No. 98224 are AFFIRMED. violated his right to privacy and constituted a “search and seizure”. Because the petitioner had a
reasonable expectation of privacy in using the enclosed booth to make a personal telephone call, the
With costs against the petitioner. SO ORDERED. protection of the Fourth Amendment extends to such area. Moreso, the concurring opinion of Mr.
Justice Harlan noted that the existence of privacy right under prior decisions involved a two-fold
requirement: first, that a person has exhibited an actual (subjective) expectation of privacy; and second,
Facts:
that the expectation be one that society is prepared to recognize as reasonable (objective).
Respondent CSC Chair Constantino-David received an anonymous letter complaint alleging of an
Mancusi v. DeForte 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed2d 1154 (1968),thus “recognized that employees
anomaly taking place in the Regional Office of the CSC. The respondent then formed a team and issued a
may have a reasonable expectation of privacy against intrusions by police.”
memo directing the team “to back up all the files in the computers found in the Mamamayan Muna
O’Connor v. Ortega 480 U.S. 709 (1987), the Court categorically declared that “[i]ndividuals do not lose
(PALD) and Legal divisions.”
Fourth Amendment rights merely because they work for the government instead of a private employer.”
In O’Connor the Court recognized that “special needs” authorize warrantless searches involving public
Several diskettes containing the back-up files sourced from the hard disk of PALD and LSD computers employees for work-related reasons. The Court thus laid down a balancing test under which government
were turned over to Chairperson David. The contents of the diskettes were examined by the CSC’s Office interests are weighed against the employee’s reasonable expectation of privacy. This reasonableness
for Legal Affairs (OLA). It was found that most of the files in the 17 diskettes containing files copied from test implicates neither probable cause nor the warrant requirement, which are related to law
the computer assigned to and being used by the petitioner, numbering about 40 to 42 documents, were enforcement.
draft pleadings or lettersin connection with administrative cases in the CSC and other tribunals. On the Social Justice Society (SJS) v. Dangerous Drugs Board G.R. Nos. 157870, 158633 and 161658, November 3,
basis of this finding, Chairperson David issued the Show-Cause Order, requiring the petitioner, who had 2008, 570 SCRA 410, 427, (citing Ople v. Torres, G.R. No. 127685, July 23, 1998, 293 SCRA 141,
gone on extended leave, to submit his explanation or counter-affidavit within five days from notice. 169),recognized the fact that there may be such legitimate intrusion of privacy in the workplace.
The Court ruled that the petitioner did not have a reasonable expectation of privacy in his office and
computer files.
In his Comment, petitioner denied the accusations against him and accused the CSC Officials of “fishing
expedition” when they unlawfully copied and printed personal files in his computer.
As to the second point of inquiry, the Court answered in the affirmative. The search authorized by the
CSC Chair, the copying of the contents of the hard drive on petitioner’s computer reasonable in its
He was charged of violating R.A. No. 6713 (Code of Conduct and Ethical Standards for Public Officials and inception and scope.
Employees). He assailed the formal charge and filed an Omnibus Motion ((For Reconsideration, to
Dismiss and/or to Defer) assailing the formal charge as without basis having proceeded from an illegal
search which is beyond the authority of the CSC Chairman, such power pertaining solely to the court. The Court noted that unlike in the case of Anonymous Letter-Complaint against Atty. Miguel Morales,
Clerk of Court, Metropolitan Trial Court of Manila A.M. Nos. P-08-2519 and P-08-2520, November 19,
2008, 571 SCRA 361, the case at bar involves the computer from which the personal files of the
The CSC denied the omnibus motion and treated the motion as the petitioner’s answer to the charge. In petitioner were retrieved is a government-issued computer, hence government property the use of
view of the absence of petitioner and his counsel, and upon the motion of the prosecution, petitioner which the CSC has absolute right to regulate and monitor.
was deemed to have waived his right to the formal investigation which then proceeded ex parte. The
petitioner was dismissed from service. He filed a petition to the CA which was dismissed by the latter on DECISION
the ground that it found no grave abuse of discretion on the part of the respondents. He filed a motion (En Banc)
for reconsideration which was further denied by the appellate court. Hence, this petition. VILLARAMA, JR., J.:

I. THE FACTS
Issue: WON the search conducted by the CSC on the computer of the petitioner constituted an illegal
search and was a violation of his constitutional right to privacy [This case involves a search of office computer assigned to a government employee who was then
charged administratively and was eventually dismissed from the service. The employee’s personal files
stored in the computer were used by the government employer as evidence of his misconduct.]
Ruling: The search conducted on his office computer and the copying of his personal files was lawful
and did not violate his constitutional right.
69

On January 3, 2007, an anonymous letter-complaint was received by the respondent Civil Service
Commission (CSC) Chairperson alleging that the “chief of the Mamamayan muna hindi mamaya na [The Supreme Court DENIED the petition and AFFIRMED the CA, which in turn upheld the CSC resolution
division” of Civil Service Commission Regional Office No. IV (CSC-ROIV) has been lawyering for public dismissing the petitioner from service. The High Tribunal held that the search on petitioner’s office
officials with pending cases in the CSC. Chairperson David immediately formed a team with background computer and the copying of his personal files were both LAWFUL and DID NOT VIOLATE his
in information technology and issued a memorandum directing them “to back up all the files in the constitutional right to privacy.]
computers found in the [CSC-ROIV] Mamamayan Muna (PALD) and Legal divisions.”
The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by
The team proceeded at once to the CSC-ROIV office and backed up all files in the hard disk of computers the guarantee against unreasonable search and seizure under Section 2, Article III of the 1987
at the Public Assistance and Liaison Division (PALD) and the Legal Services Division. This was witnessed Constitution. The constitutional guarantee is not a prohibition of all searches and seizures but only of
by several employees. At around 10:00 p.m. of the same day, the investigating team finished their “unreasonable” searches and seizures.
task. The next day, all the computers in the PALD were sealed and secured. The diskettes containing the
back-up files sourced from the hard disk of PALD and LSD computers were then turned over to [The Supreme Court then discussed the American cases that served as jurisprudential bases for its ruling:
Chairperson David. It was found that most of the files in the 17 diskettes containing files copied from the
computer assigned to and being used by the petitioner, numbering about 40 to 42 documents, were That the Fourth Amendment [of the U.S. Constitution] equally applies to a government workplace was
draft pleadings or letters in connection with administrative cases in the CSC and other tribunals. addressed in the 1987 case of O’Connor v. Ortega. In O’Connor the [U.S. Supreme] Court recognized that
Chairperson David thus issued a Show-Cause Order requiring the petitioner to submit his explanation or “special needs” authorize warrantless searches involving public employees for work-related reasons. The
counter-affidavit within five days from notice. Petitioner filed his Comment, denying that he is the [U.S. Supreme] Court thus laid down a balancing test under which government interests are weighed
person referred to in the anonymous letter-complaint. He asserted that he had protested the unlawful against the employee’s reasonable expectation of privacy. This reasonableness test implicates neither
taking of his computer done while he was on leave, citing the letter dated January 8, 2007 in which he probable cause nor the warrant requirement, which are related to law enforcement.
informed Director Castillo of CSC-ROIV that the files in his computer were his personal files and those of
his sister, relatives, friends and some associates and that he is not authorizing their sealing, copying, O’Connor was applied in subsequent cases raising issues on employees’ privacy rights in the
duplicating and printing as these would violate his constitutional right to privacy and protection against workplace. One of these cases involved a government employer’s search of an office computer, United
self-incrimination and warrantless search and seizure. He pointed out that though government property, States v. Mark L. Simons where the defendant Simons, an employee of a division of the Central
the temporary use and ownership of the computer issued under a Memorandum of Receipt is ceded to Intelligence Agency (CIA), was convicted of receiving and possessing materials containing child
the employee who may exercise all attributes of ownership, including its use for personal purposes. In pornography. In this case, the US Supreme Court held that the search remains valid under
view of the illegal search, the files/documents copied from his computer without his consent [are] thus the O’Connor exception to the warrant requirement because evidence of the crime was discovered in the
inadmissible as evidence, being “fruits of a poisonous tree.” course of an otherwise proper administrative inspection. Simons’ violation of the agency’s Internet policy
happened also to be a violation of criminal law; this does not mean that said employer lost the capacity
The CSC found prima facie case against the petitioner and charged him with Dishonesty, Grave and interests of an employer. The warrantless entry into Simons’ office was reasonable under the Fourth
Misconduct, Conduct Prejudicial to the Best Interest of the Service and Violation of R.A. No. Amendment standard announced in O’Connor because at the inception of the search, the employer had
6713 (Code of Conduct and Ethical Standards for Public Officials and Employees). Petitioner then filed an “reasonable grounds for suspecting” that the hard drive would yield evidence of misconduct, as the
Omnibus Motion (For Reconsideration, to Dismiss and/or to Defer) assailing the formal charge as without employer was already aware that Simons had misused his Internet access to download over a thousand
basis having proceeded from an illegal search, which is beyond the authority of the CSC Chairman, such pornographic images. The retrieval of the hard drive was reasonably related to the objective of the
power pertaining solely to the court. The CSC denied this omnibus motion. On March 14, 2007, search, and the search was not excessively intrusive. Thus, while Simons had a reasonable expectation of
petitioner filed an Urgent Petition before the Court of Appeals (CA) assailing both the January 11, 2007 privacy in his office, he did not have such legitimate expectation of privacy with regard to the files in his
Show-Cause Order and February 26, 2007 Resolution as having been issued with grave abuse of computer.]
discretion amounting to excess or total absence of jurisdiction. On July 24, 2007, the CSC issued a
Resolution finding petitioner GUILTY of Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Applying the analysis and principles announced in O’Connor and Simons to the case at bar, we now
Interest of the Service and Violation of Republic Act 6713. He is meted the penalty of DISMISSAL FROM address the following questions: (1) Did petitioner have a reasonable expectation of privacy in his office
THE SERVICE with all its accessory penalties. This Resolution was also brought to the CA by herein and computer files?; and (2) Was the search authorized by the CSC Chair, [which involved] the copying of
petitioner. the contents of the hard drive on petitioner’s computer, reasonable in its inception and scope?
(1) NO, the petitioner had no reasonable expectation of privacy in his office and computer files.
By a Decision dated October 11, 2007, the CA dismissed the petitioner’s petition for certiorari after
finding no grave abuse of discretion committed by respondents CSC officials. His motion for Petitioner failed to prove that he had an actual (subjective) expectation of privacy either in his office or
reconsideration having been denied by the CA, petitioner brought this appeal before the Supreme Court. government-issued computer which contained his personal files. Petitioner did not allege that he had a
separate enclosed office which he did not share with anyone, or that his office was always locked and
II. THE ISSUE not open to other employees or visitors. Neither did he allege that he used passwords or adopted any
means to prevent other employees from accessing his computer files. On the contrary, he submits that
Was the search conducted on petitioner’s office computer and the copying of his personal files without being in the public assistance office of the CSC-ROIV, he normally would have visitors in his office like
his knowledge and consent – alleged as a transgression on his constitutional right to privacy – lawful? friends, associates and even unknown people, whom he even allowed to use his computer which to him
seemed a trivial request. He described his office as “full of people, his friends, unknown people” and
III. THE RULING that in the past 22 years he had been discharging his functions at the PALD, he is “personally assisting
70

incoming clients, receiving documents, drafting cases on appeals, in charge of accomplishment drastic and immediate action. Pointedly, to impose the need to comply with the probable cause
report, Mamamayan Muna Program, Public Sector Unionism, Correction of name, accreditation of requirement would invariably defeat the purpose of the wok-related investigation.
service, and hardly had any time for himself alone, that in fact he stays in the office as a paying
customer.” Under this scenario, it can hardly be deduced that petitioner had such expectation of privacy Thus, petitioner’s claim of violation of his constitutional right to privacy must necessarily fail. His other
that society would recognize as reasonable. argument invoking the privacy of communication and correspondence under Section 3(1), Article III of
the 1987 Constitution is also untenable considering the recognition accorded to certain legitimate
Moreover, even assuming arguendo, in the absence of allegation or proof of the aforementioned factual intrusions into the privacy of employees in the government workplace under the aforecited
circumstances, that petitioner had at least a subjective expectation of privacy in his computer as he authorities. We likewise find no merit in his contention that O’Connor and Simons are not relevant
claims, such is negated by the presence of policy regulating the use of office computers [CSC Office because the present case does not involve a criminal offense like child pornography. As already
Memorandum No. 10, S. 2002 “Computer Use Policy (CUP)”], as in Simons. The CSC in this case had mentioned, the search of petitioner’s computer was justified there being reasonable ground for
implemented a policy that put its employees on notice that they have no expectation of privacy suspecting that the files stored therein would yield incriminating evidence relevant to the
in anything they create, store, send or receive on the office computers, and that the CSC may monitor investigation being conducted by CSC as government employer of such misconduct subject of the
the use of the computer resources using both automated or human means. This implies that on-the- anonymous complaint. This situation clearly falls under the exception to the warrantless requirement in
spot inspections may be done to ensure that the computer resources were used only for such legitimate administrative searches defined in O’Connor.
business purposes.
Facts:
(2) YES, the search authorized by the respondent CSC Chair, which involved the copying of the
contents of the hard drive on petitioner’s computer, was reasonable in its inception and scope. Ann anonymous letter-complaint was received by the respondent Civil Service Commission Chairperson
alleging that an officer of the CSC has been lawyering for public officials with pending cases in the CSC.
The search of petitioner’s computer files was conducted in connection with investigation of work-related
Chairperson David immediately formed a team with background in information technology and issued a
misconduct prompted by an anonymous letter-complaint addressed to Chairperson David regarding
anomalies in the CSC-ROIV where the head of the Mamamayan Muna Hindi Mamaya Na division is memorandum directing them “to back up all the files in the computers found in the [CSC-ROIV]
supposedly “lawyering” for individuals with pending cases in the CSC. A search by a government Mamamayan Muna (PALD) and Legal divisions.”
employer of an employee’s office is justified at inception when there are reasonable grounds for
suspecting that it will turn up evidence that the employee is guilty of work-related misconduct. The team proceeded at once to the office and backed up all files in the hard disk of computers at the
PALD and the Legal Services Division. Within the same day, the investigating team finished the task. It
Under the facts obtaining, the search conducted on petitioner’s computer was justified at its inception was found that most of the files copied from the computer assigned to and being used by the petitioner
and scope. We quote with approval the CSC’s discussion on the reasonableness of its actions, consistent were draft pleadings or letters in connection with administrative cases in the CSC and other tribunals.
as it were with the guidelines established by O’Connor: Even conceding for a moment that there is no
Chairperson David thus issued a Show-Cause Order requiring the petitioner to submit his explanation or
such administrative policy, there is no doubt in the mind of the Commission that the search of Pollo’s
computer has successfully passed the test of reasonableness for warrantless searches in the workplace counter-affidavit within five days from notice.
as enunciated in the above-discussed American authorities. It bears emphasis that the Commission
pursued the search in its capacity as a government employer and that it was undertaken in connection Petitioner denied that he is the person referred to in the anonymous letter-complaint. He asserted that
with an investigation involving a work-related misconduct, one of the circumstances exempted from he had protested the unlawful taking of his computer done while he was on leave, and that the files in
the warrant requirement. At the inception of the search, a complaint was received recounting that a his computer were his personal files and those of his relatives and associates, and that he is not
certain division chief in the CSCRO No. IV was “lawyering” for parties having pending cases with the said authorize the activities as they are in violation of his constitutional right to privacy and protection against
regional office or in the Commission. The nature of the imputation was serious, as it was grievously
self-incrimination and warrantless search and seizure. Also, the files/documents copied from his
disturbing. If, indeed, a CSC employee was found to be furtively engaged in the practice of “lawyering”
for parties with pending cases before the Commission would be a highly repugnant scenario, then such a computer without his consent are inadmissible as evidence, being “fruits of a poisonous tree.”
case would have shattering repercussions. It would undeniably cast clouds of doubt upon the
institutional integrity of the Commission as a quasi-judicial agency, and in the process, render it less The CSC found prima facie case against the petitioner and charged him with Dishonesty, Grave
effective in fulfilling its mandate as an impartial and objective dispenser of administrative justice. It is Misconduct, Conduct Prejudicial to the Best Interest of the Service and Violation of R.A. No. 6713 (Code
settled that a court or an administrative tribunal must not only be actually impartial but must be seen to of Conduct and Ethical Standards for Public Officials and Employees). On 24 July 2007, the CSC issued a
be so, otherwise the general public would not have any trust and confidence in it. Resolution finding petitioner GUILTY of the same merits and meted the penalty of DISMISSAL FROM THE
SERVICE with all its accessory penalties. This Resolution was also brought to the CA by herein petitioner.
Considering the damaging nature of the accusation, the Commission had to act fast, if only to arrest or
By a Decision dated 11 October 2007, the CA dismissed the petitioner’s petition for certiorari after
limit any possible adverse consequence or fall-out. Thus, on the same date that the complaint was
received, a search was forthwith conducted involving the computer resources in the concerned regional finding no grave abuse of discretion committed by respondents CSC officials. His motion for
office. That it was the computers that were subjected to the search was justified since these reconsideration having been denied by the CA, petitioner brought this appeal before the Supreme Court.
furnished the easiest means for an employee to encode and store documents. Indeed, the computers
would be a likely starting point in ferreting out incriminating evidence. Concomitantly, the ephemeral Issue: Whether or not the search conducted and the copying of petitioner’s files without his knowledge
nature of computer files, that is, they could easily be destroyed at a click of a button, necessitated and consent lawful?
71

Held: as government employer of such misconduct subject of the anonymous complaint. This situation clearly
falls under the exception to the warrantless requirement in administrative searches defined in O’Connor.
Yes. The right to privacy has been accorded recognition in this jurisdiction as a facet of the right
protected by the guarantee against unreasonable search and seizure under Section 2, Article III of the FACTS:
1987 Constitution. The constitutional guarantee is not a prohibition of all searches and seizures but only
of “unreasonable” searches and seizures. CSC Chairperson Karina David received a document from an anonymous source, making her aware that
there is a corrupt official in the Commission. She then formed personnel and directed them to back up all
Applying the analysis and principles announced in O’Connor and Simons for warrantless searches the files of the computers found therein. David found, in Bricio Pollo, petitioner, legal pleading or
involving public employees for work related reasons to the case at bar, we now address the following documents that are related to administrative cases and were for on the behalf of parties who were
questions: (1) Did petitioner have a reasonable expectation of privacy in his office and computer files? facing charges. David inferred that he was willfully aiding their adverse interests and it was a practice
(2) Was the search authorized by the CSC Chair reasonable in its inception and scope? that he pursued regularly.

The petitioner had no reasonable expectation of privacy in his office and computer files for he failed to Pollo argued that he was not even a lawyer to pursue such acts. He also asserted that the CSC conducted
prove that he had an actual expectation of privacy either in his office or government-issued computer a fishing expedition and his right to privacy was violated and that the source of the complaint was
which contained his personal files. He did not allege that he had a separate enclosed office which he did anonymous. The CSC charged Pollo in violation of RA 6713. After some motions filed to the CSC, he filed
not share with anyone, or that his office was always locked and not open to other employees or visitors. his motion to the CA wherein he was ordered to be dismissed of his governmental duties. The CA ruled
He did not use passwords nor adopted any means to prevent access by others of his computer files. The that the search was legal because in their capacity as employers, the government agencies could validly
CSC also implemented a policy which implies on-the-spot inspections may be done to ensure that the conduct search and seizure in the governmental workplace without meeting the “probable cause” or
computer resources were used only for such legitimate business purposes. warrant requirement for search and seizure.

The search authorized by the respondent CSC Chair was reasonable since it was conducted in connection ISSUE: Whether there was illegal search.
with investigation of work-related misconduct. A search by a government employer of an employee’s
office is justified when there are reasonable grounds for suspecting that it will turn up evidence that the RULING:
employee is guilty of work-related misconduct. Even conceding for a moment that there is no such
administrative policy, there is no doubt in the mind of the Commission that the search of Pollo’s The SC ruled in favor of the CSC. Basing their decision on other cases, the SC asked whether Pollo has a
computer has successfully passed the test of reasonableness for warrantless searches in the workplace. reasonable expectation of privacy in his office and computer files and was the search reasonable in its
It bears emphasis that the Commission pursued the search in its capacity as a government employer and inception and scope.
that it was undertaken in connection with an investigation involving a work-related misconduct, one of
the circumstances exempted from the warrant requirement. The nature of the imputation was serious, On regards the first inquiry, the SC found that he had no actual expectation of privacy on his work
as it was grievously disturbing. If, indeed, a CSC employee was found to be furtively engaged in the computer. He did not have a separate office space nor did he use a password for his computer. He would
practice of “lawyering” for parties with pending cases before the Commission would be a highly have visitors which he let them use his computer. The CSC also implemented a policy that its employees
repugnant scenario, then such a case would have shattering repercussions. It is settled that a court or an on notice that they have no expectation of privacy in anything on their office computers, and that the
administrative tribunal must not only be actually impartial but must be seen to be so, otherwise the CSC may monitor their use. This implies that on-the-spot inspections may be done to ensure that the
general public would not have any trust and confidence in it. Considering the damaging nature of the computer resources were used only for such legitimate business purposes. On the second inquiry, the SC
accusation, the Commission had to act fast, if only to arrest or limit any possible adverse consequence or said that the search Pollo's files were conducted in connection with investigation of work-related
fall-out. misconduct prompted by an anonymous letter-complaint. A search by a government employer of an
employee’s office is justified at inception when there are reasonable grounds for suspecting that it will
Thus, petitioner’s claim of violation of his constitutional right to privacy must necessarily fail. His other
turn up evidence that the employee is guilty of work-related misconduct.
argument invoking the privacy of communication and correspondence under Section 3(1), Article III of
the 1987 Constitution is also untenable considering the recognition accorded to certain legitimate
intrusions into the privacy of employees in the government workplace under the aforecited authorities.
We likewise find no merit in his contention that O’Connor and Simons are not relevant because the
present case does not involve a criminal offense like child pornography. As already mentioned, the
search of petitioner’s computer was justified there being reasonable ground for suspecting that the files
stored therein would yield incriminating evidence relevant to the investigation being conducted by CSC
72

SECOND DIVISION general circulation in the Philippines, and that the Solicitor General be furnished with copies of the Order
and the petition in order that he may appear and represent the State in the case.
G.R. No. 190710 June 6, 2011
On September 4, 2007, unaware of the issuance of the September 3, 2007 Order, respondent filed a
Special Appearance and Comment. He manifested inter alia that: (1) he did not receive the summons and
JESSE U. LUCAS, Petitioner,
a copy of the petition; (2) the petition was adversarial in nature and therefore summons should be
vs.
served on him as respondent; (3) should the court agree that summons was required, he was waiving
JESUS S. LUCAS, Respondent.
service of summons and making a voluntary appearance; and (4) notice by publication of the petition
and the hearing was improper because of the confidentiality of the subject matter.4
DECISION
On September 14, 2007, respondent also filed a Manifestation and Comment on Petitioner’s Very Urgent
NACHURA, J.: Motion to Try and Hear the Case. Respondent reiterated that the petition for recognition is adversarial in
nature; hence, he should be served with summons.
Is a prima facie showing necessary before a court can issue a DNA testing order? In this petition for
review on certiorari, we address this question to guide the Bench and the Bar in dealing with a relatively After learning of the September 3, 2007 Order, respondent filed a motion for
new evidentiary tool. Assailed in this petition are the Court of Appeals (CA) Decision1 dated September reconsideration.5 Respondent averred that the petition was not in due form and substance because
25, 2009 and Resolution dated December 17, 2009. petitioner could not have personally known the matters that were alleged therein. He argued that DNA
testing cannot be had on the basis of a mere allegation pointing to respondent as petitioner’s father.
The antecedents of the case are, as follows: Moreover, jurisprudence is still unsettled on the acceptability of DNA evidence.

On July 26, 2007, petitioner, Jesse U. Lucas, filed a Petition to Establish Illegitimate Filiation (with Motion On July 30, 2008, the RTC, acting on respondent’s motion for reconsideration, issued an
for the Submission of Parties to DNA Testing)2 before the Regional Trial Court (RTC), Branch 72, Order6 dismissing the case. The court remarked that, based on the case of Herrera v. Alba,7 there are
Valenzuela City. Petitioner narrated that, sometime in 1967, his mother, Elsie Uy (Elsie), migrated to four significant procedural aspects of a traditional paternity action which the parties have to face: a
Manila from Davao and stayed with a certain "Ate Belen (Belen)" who worked in a prominent nightspot prima facie case, affirmative defenses, presumption of legitimacy, and physical resemblance between
in Manila. Elsie would oftentimes accompany Belen to work. On one occasion, Elsie got acquainted with the putative father and the child. The court opined that petitioner must first establish these four
respondent, Jesus S. Lucas, at Belen’s workplace, and an intimate relationship developed between the procedural aspects before he can present evidence of paternity and filiation, which may include
two. Elsie eventually got pregnant and, on March 11, 1969, she gave birth to petitioner, Jesse U. Lucas. incriminating acts or scientific evidence like blood group test and DNA test results. The court observed
The name of petitioner’s father was not stated in petitioner’s certificate of live birth. However, Elsie later that the petition did not show that these procedural aspects were present. Petitioner failed to establish
on told petitioner that his father is respondent. On August 1, 1969, petitioner was baptized at San Isidro a prima facie case considering that (a) his mother did not personally declare that she had sexual relations
Parish, Taft Avenue, Pasay City. Respondent allegedly extended financial support to Elsie and petitioner with respondent, and petitioner’s statement as to what his mother told him about his father was clearly
for a period of about two years. When the relationship of Elsie and respondent ended, Elsie refused to hearsay; (b) the certificate of live birth was not signed by respondent; and (c) although petitioner used
accept respondent’s offer of support and decided to raise petitioner on her own. While petitioner was the surname of respondent, there was no allegation that he was treated as the child of respondent by
growing up, Elsie made several attempts to introduce petitioner to respondent, but all attempts were in the latter or his family. The court opined that, having failed to establish a prima facie case, respondent
vain. had no obligation to present any affirmative defenses. The dispositive portion of the said Order
therefore reads:

Attached to the petition were the following: (a) petitioner’s certificate of live birth; (b) petitioner’s
baptismal certificate; (c) petitioner’s college diploma, showing that he graduated from Saint Louis WHEREFORE, for failure of the petitioner to establish compliance with the four procedural aspects of a
University in Baguio City with a degree in Psychology; (d) his Certificate of Graduation from the same traditional paternity action in his petition, his motion for the submission of parties to DNA testing to
school; (e) Certificate of Recognition from the University of the Philippines, College of Music; and (f) establish paternity and filiation is hereby denied. This case is DISMISSED without prejudice.
clippings of several articles from different newspapers about petitioner, as a musical prodigy.
SO ORDERED.8
Respondent was not served with a copy of the petition. Nonetheless, respondent learned of the petition
to establish filiation. His counsel therefore went to the trial court on August 29, 2007 and obtained a Petitioner seasonably filed a motion for reconsideration to the Order dated July 30, 2008, which the RTC
copy of the petition. resolved in his favor. Thus, on October 20, 2008, it issued the Order9 setting aside the court’s previous
order, thus:
Petitioner filed with the RTC a Very Urgent Motion to Try and Hear the Case. Hence, on September 3,
2007, the RTC, finding the petition to be sufficient in form and substance, issued the Order3 setting the WHEREFORE, in view of the foregoing, the Order dated July 30, 2008 is hereby reconsidered and set
case for hearing and urging anyone who has any objection to the petition to file his opposition. The court aside.
also directed that the Order be published once a week for three consecutive weeks in any newspaper of
73

Let the Petition (with Motion for the Submission of Parties to DNA Testing) be set for hearing on January unwarranted expedition to fish for evidence. Such will be the situation in this particular case if a court
22, 2009 at 8:30 in the morning. may at any time order the taking of a DNA test. If the DNA test in compulsory recognition cases is
immediately available to the petitioner/complainant without requiring first the presentation of
corroborative proof, then a dire and absurd rule would result. Such will encourage and promote
SO ORDERED.10
harassment and extortion.

This time, the RTC held that the ruling on the grounds relied upon by petitioner for filing the petition is
At the risk of being repetitious, the Court would like to stress that it sees the danger of allowing an
premature considering that a full-blown trial has not yet taken place. The court stressed that the petition
absolute DNA testing to a compulsory recognition test even if the plaintiff/petitioner failed to establish
was sufficient in form and substance. It was verified, it included a certification against forum shopping,
prima facie proof. x x x If at anytime, motu proprio and without pre-conditions, the court can indeed
and it contained a plain, concise, and direct statement of the ultimate facts on which petitioner relies on
order the taking of DNA test in compulsory recognition cases, then the prominent and well-to-do
for his claim, in accordance with Section 1, Rule 8 of the Rules of Court. The court remarked that the
members of our society will be easy prey for opportunists and extortionists. For no cause at all, or even
allegation that the statements in the petition were not of petitioner’s personal knowledge is a matter of
for [sic] casual sexual indiscretions in their younger years could be used as a means to harass them.
evidence. The court also dismissed respondent’s arguments that there is no basis for the taking of DNA
Unscrupulous women, unsure of the paternity of their children may just be taking the chances-just in
test, and that jurisprudence is still unsettled on the acceptability of DNA evidence. It noted that the new
case-by pointing to a sexual partner in a long past one-time encounter. Indeed an absolute and
Rule on DNA Evidence11 allows the conduct of DNA testing, whether at the court’s instance or upon
unconditional taking of DNA test for compulsory recognition case opens wide the opportunities for
application of any person who has legal interest in the matter in litigation.
extortionist to prey on victims who have no stomach for scandal.15

Respondent filed a Motion for Reconsideration of Order dated October 20, 2008 and for Dismissal of
Petitioner moved for reconsideration. On December 17, 2009, the CA denied the motion for lack of
Petition,12reiterating that (a) the petition was not in due form and substance as no defendant was named
merit.16
in the title, and all the basic allegations were hearsay; and (b) there was no prima facie case, which made
the petition susceptible to dismissal.
In this petition for review on certiorari, petitioner raises the following issues:
The RTC denied the motion in the Order dated January 19, 2009, and rescheduled the hearing.13
I.
Aggrieved, respondent filed a petition for certiorari with the CA, questioning the Orders dated October
20, 2008 and January 19, 2009. WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT RESOLVED THE ISSUE OF LACK OF
JURISDICTION OVER THE PERSON OF HEREIN RESPONDENT ALBEIT THE SAME WAS NEVER
RAISED IN THE PETITION FOR CERTIORARI.
On September 25, 2009, the CA decided the petition for certiorari in favor of respondent, thus:

I.A
WHEREFORE, the instant petition for certiorari is hereby GRANTED for being meritorious. The assailed
Orders dated October 20, 2008 and January 19, 2009 both issued by the Regional Trial Court, Branch 172
of Valenzuela City in SP. Proceeding Case No. 30-V-07 are REVERSED and SET ASIDE. Accordingly, the WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT RULED THAT
case docketed as SP. Proceeding Case No. 30-V-07 is DISMISSED.14 JURISDICTION WAS NOT ACQUIRED OVER THE PERSON OF THE RESPONDENT.

The CA held that the RTC did not acquire jurisdiction over the person of respondent, as no summons had I.B
been served on him. Respondent’s special appearance could not be considered as voluntary appearance
because it was filed only for the purpose of questioning the jurisdiction of the court over respondent.
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT FAILED TO REALIZE
Although respondent likewise questioned the court’s jurisdiction over the subject matter of the petition,
THAT THE RESPONDENT HAD ALREADY SUBMITTED VOLUNTARILY TO THE
the same is not equivalent to a waiver of his right to object to the jurisdiction of the court over his
JURISDICTION OF THE COURT A QUO.
person.

I.C
The CA remarked that petitioner filed the petition to establish illegitimate filiation, specifically seeking a
DNA testing order to abbreviate the proceedings. It noted that petitioner failed to show that the four
significant procedural aspects of a traditional paternity action had been met. The CA further held that a WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT ESSENTIALLY RULED
DNA testing should not be allowed when the petitioner has failed to establish a prima facie case, thus: THAT THE TITLE OF A PLEADING, RATHER THAN ITS BODY, IS CONTROLLING.

While the tenor [of Section 4, Rule on DNA Evidence] appears to be absolute, the rule could not really II.
have been intended to trample on the substantive rights of the parties. It could have not meant to be an
instrument to promote disorder, harassment, or extortion. It could have not been intended to legalize
74

WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT ORDERED THE DISMISSAL OF THE defenses, aside from lack of jurisdiction over the person of the defendant, cannot be considered as
PETITION BY REASON OF THE MOTION (FILED BY THE PETITIONER BEFORE THE COURT A QUO) waiver of the defense of lack of jurisdiction over such person.
FOR THE CONDUCT OF DNA TESTING.
The petition is meritorious.
II.A
Primarily, we emphasize that the assailed Orders of the trial court were orders denying respondent’s
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT ESSENTIALLY RULED THAT DNA motion to dismiss the petition for illegitimate filiation. An order denying a motion to dismiss is an
TESTING CAN ONLY BE ORDERED AFTER THE PETITIONER ESTABLISHES PRIMA FACIE PROOF interlocutory order which neither terminates nor finally disposes of a case, as it leaves something to be
OF FILIATION. done by the court before the case is finally decided on the merits. As such, the general rule is that the
denial of a motion to dismiss cannot be questioned in a special civil action for certiorari, which is a
remedy designed to correct errors of jurisdiction and not errors of judgment. Neither can a denial of a
III.
motion to dismiss be the subject of an appeal unless and until a final judgment or order is rendered. In a
number of cases, the court has granted the extraordinary remedy of certiorari on the denial of the
WHETHER OR NOT THE COURT OF APPEALS ERRED WITH ITS MISPLACED RELIANCE ON THE motion to dismiss but only when it has been tainted with grave abuse of discretion amounting to lack or
CASE OF HERRERA VS. ALBA, excess of jurisdiction.21 In the present case, we discern no grave abuse of discretion on the part of the
trial court in denying the motion to dismiss.
ESPECIALLY AS REGARDS THE ‘FOUR SIGNIFICANT PROCEDURAL ASPECTS OF A TRADITIONAL
PATERNITY ACTION.’17 The grounds for dismissal relied upon by respondent were (a) the court’s lack of jurisdiction over his
person due to the absence of summons, and (b) defect in the form and substance of the petition to
Petitioner contends that respondent never raised as issue in his petition for certiorari the court’s lack of establish illegitimate filiation, which is equivalent to failure to state a cause of action.
jurisdiction over his person. Hence, the CA had no legal basis to discuss the same, because issues not
raised are deemed waived or abandoned. At any rate, respondent had already voluntarily submitted to We need not belabor the issues on whether lack of jurisdiction was raised before the CA, whether the
the jurisdiction of the trial court by his filing of several motions asking for affirmative relief, such as the court acquired jurisdiction over the person of respondent, or whether respondent waived his right to the
(a) Motion for Reconsideration of the Order dated September 3, 2007; (b) Ex Parte Motion to Resolve service of summons. We find that the primordial issue here is actually whether it was necessary, in the
Motion for Reconsideration of the Order dated November 6, 2007; and (c) Motion for Reconsideration of first place, to serve summons on respondent for the court to acquire jurisdiction over the case. In other
the Order dated October 20, 2008 and for Dismissal of Petition. Petitioner points out that respondent words, was the service of summons jurisdictional? The answer to this question depends on the nature of
even expressly admitted that he has waived his right to summons in his Manifestation and Comment on petitioner’s action, that is, whether it is an action in personam, in rem, or quasi in rem.
Petitioner’s Very Urgent Motion to Try and Hear the Case. Hence, the issue is already moot and
academic.
An action in personam is lodged against a person based on personal liability; an action in rem is directed
against the thing itself instead of the person; while an action quasi in rem names a person as defendant,
Petitioner argues that the case was adversarial in nature. Although the caption of the petition does not but its object is to subject that person's interest in a property to a corresponding lien or obligation. A
state respondent’s name, the body of the petition clearly indicates his name and his known address. He petition directed against the "thing" itself or the res, which concerns the status of a person, like a
maintains that the body of the petition is controlling and not the caption. petition for adoption, annulment of marriage, or correction of entries in the birth certificate, is an
action in rem.22
Finally, petitioner asserts that the motion for DNA testing should not be a reason for the dismissal of the
petition since it is not a legal ground for the dismissal of cases. If the CA entertained any doubt as to the In an action in personam, jurisdiction over the person of the defendant is necessary for the court to
propriety of DNA testing, it should have simply denied the motion.18 Petitioner points out that Section 4 validly try and decide the case. In a proceeding in rem or quasi in rem, jurisdiction over the person of the
of the Rule on DNA Evidence does not require that there must be a prior proof of filiation before DNA defendant is not a prerequisite to confer jurisdiction on the court, provided that the latter has
testing can be ordered. He adds that the CA erroneously relied on the four significant procedural aspects jurisdiction over the res. Jurisdiction over the res is acquired either (a) by the seizure of the property
of a paternity case, as enunciated in Herrera v. Alba.19Petitioner avers that these procedural aspects are under legal process, whereby it is brought into actual custody of the law, or (b) as a result of the
not applicable at this point of the proceedings because they are matters of evidence that should be institution of legal proceedings, in which the power of the court is recognized and made effective. 23
taken up during the trial.20
The herein petition to establish illegitimate filiation is an action in rem. By the simple filing of the petition
In his Comment, respondent supports the CA’s ruling on most issues raised in the petition for certiorari to establish illegitimate filiation before the RTC, which undoubtedly had jurisdiction over the subject
and merely reiterates his previous arguments. However, on the issue of lack of jurisdiction, respondent matter of the petition, the latter thereby acquired jurisdiction over the case. An in rem proceeding is
counters that, contrary to petitioner’s assertion, he raised the issue before the CA in relation to his claim validated essentially through publication. Publication is notice to the whole world that the proceeding
that the petition was not in due form and substance. Respondent denies that he waived his right to the has for its object to bar indefinitely all who might be minded to make an objection of any sort to the
service of summons. He insists that the alleged waiver and voluntary appearance was conditional upon a right sought to be established.24 Through publication, all interested parties are deemed notified of the
finding by the court that summons is indeed required. He avers that the assertion of affirmative petition.
75

If at all, service of summons or notice is made to the defendant, it is not for the purpose of vesting the petitioner failed to establish a prima facie case—the first procedural aspect in a paternity case—is
court with jurisdiction, but merely for satisfying the due process requirements.25 This is but proper in therefore misplaced. A prima facie case is built by a party’s evidence and not by mere allegations in the
order to afford the person concerned the opportunity to protect his interest if he so chooses.26 Hence, initiatory pleading.
failure to serve summons will not deprive the court of its jurisdiction to try and decide the case. In such a
case, the lack of summons may be excused where it is determined that the adverse party had, in fact, the
Clearly then, it was also not the opportune time to discuss the lack of a prima facie case vis-à-vis the
opportunity to file his opposition, as in this case. We find that the due process requirement with respect
motion for DNA testing since no evidence has, as yet, been presented by petitioner. More essentially, it
to respondent has been satisfied, considering that he has participated in the proceedings in this case and
is premature to discuss whether, under the circumstances, a DNA testing order is warranted considering
he has the opportunity to file his opposition to the petition to establish filiation.
that no such order has yet been issued by the trial court. In fact, the latter has just set the said case for
hearing.
To address respondent’s contention that the petition should have been adversarial in form, we further
hold that the herein petition to establish filiation was sufficient in form. It was indeed adversarial in
At any rate, the CA’s view that it would be dangerous to allow a DNA testing without corroborative proof
nature despite its caption which lacked the name of a defendant, the failure to implead respondent as
is well taken and deserves the Court’s attention. In light of this observation, we find that there is a need
defendant, and the non-service of summons upon respondent. A proceeding is adversarial where the
to supplement the Rule on DNA Evidence to aid the courts in resolving motions for DNA testing order,
party seeking relief has given legal warning to the other party and afforded the latter an opportunity to
particularly in paternity and other filiation cases. We, thus, address the question of whether a prima
contest it.27 In this petition—classified as an action in rem—the notice requirement for an adversarial
facie showing is necessary before a court can issue a DNA testing order.
proceeding was likewise satisfied by the publication of the petition and the giving of notice to the
Solicitor General, as directed by the trial court.
The Rule on DNA Evidence was enacted to guide the Bench and the Bar for the introduction and use of
DNA evidence in the judicial system. It provides the "prescribed parameters on the requisite elements
The petition to establish filiation is sufficient in substance. It satisfies Section 1, Rule 8 of the Rules of
for reliability and validity (i.e., the proper procedures, protocols, necessary laboratory reports, etc.), the
Court, which requires the complaint to contain a plain, concise, and direct statement of the ultimate
possible sources of error, the available objections to the admission of DNA test results as evidence as
facts upon which the plaintiff bases his claim. A fact is essential if it cannot be stricken out without
well as the probative value of DNA evidence." It seeks "to ensure that the evidence gathered, using
leaving the statement of the cause of action inadequate.28 A complaint states a cause of action when it
various methods of DNA analysis, is utilized effectively and properly, [and] shall not be misused and/or
contains the following elements: (1) the legal right of plaintiff, (2) the correlative obligation of the
abused and, more importantly, shall continue to ensure that DNA analysis serves justice and protects,
defendant, and (3) the act or omission of the defendant in violation of said legal right.29
rather than prejudice the public."35

The petition sufficiently states the ultimate facts relied upon by petitioner to establish his filiation to
Not surprisingly, Section 4 of the Rule on DNA Evidence merely provides for conditions that are aimed to
respondent. Respondent, however, contends that the allegations in the petition were hearsay as they
safeguard the accuracy and integrity of the DNA testing. Section 4 states:
were not of petitioner’s personal knowledge. Such matter is clearly a matter of evidence that cannot be
determined at this point but only during the trial when petitioner presents his evidence.
SEC. 4. Application for DNA Testing Order. – The appropriate court may, at any time, either motu
proprio or on application of any person who has a legal interest in the matter in litigation, order a DNA
In a motion to dismiss a complaint based on lack of cause of action, the question submitted to the court
testing. Such order shall issue after due hearing and notice to the parties upon a showing of the
for determination is the sufficiency of the allegations made in the complaint to constitute a cause of
following:
action and not whether those allegations of fact are true, for said motion must hypothetically admit the
truth of the facts alleged in the complaint.30
(a) A biological sample exists that is relevant to the case;
The inquiry is confined to the four corners of the complaint, and no other.31
The test of the sufficiency of
the facts alleged in the complaint is whether or not, admitting the facts alleged, the court could render a (b) The biological sample: (i) was not previously subjected to the type of DNA testing now
valid judgment upon the same in accordance with the prayer of the complaint.32 requested; or (ii) was previously subjected to DNA testing, but the results may require
confirmation for good reasons;
If the allegations of the complaint are sufficient in form and substance but their veracity and correctness
are assailed, it is incumbent upon the court to deny the motion to dismiss and require the defendant to (c) The DNA testing uses a scientifically valid technique;
answer and go to trial to prove his defense. The veracity of the assertions of the parties can be
ascertained at the trial of the case on the merits.33 (d) The DNA testing has the scientific potential to produce new information that is relevant to
the proper resolution of the case; and
The statement in Herrera v. Alba34 that there are four significant procedural aspects in a traditional
paternity case which parties have to face has been widely misunderstood and misapplied in this case. A (e) The existence of other factors, if any, which the court may consider as potentially affecting
party is confronted by these so-called procedural aspects during trial, when the parties have presented the accuracy or integrity of the DNA testing.
their respective evidence. They are matters of evidence that cannot be determined at this initial stage of
the proceedings, when only the petition to establish filiation has been filed. The CA’s observation that
76

This Rule shall not preclude a DNA testing, without need of a prior court order, at the behest of any and Hear the Case. Hence, on September 3,2007, the RTC, finding the petition to be sufficient in form
party, including law enforcement agencies, before a suit or proceeding is commenced. and substance, issued the Order3setting the case for hearing and urging anyone who has any objection
to the petition to file his opposition. After learning of the September 3, 2007 Order, respondent filed a
This does not mean, however, that a DNA testing order will be issued as a matter of right if, during the motion for reconsideration.5 Respondent averred that the petition was not in due form and substance
hearing, the said conditions are established. because petitioner could not have personally known the matters that were alleged therein. He argued
that DNA testing cannot be had on the basis of a mere allegation pointing to respondent as petitioner’s
In some states, to warrant the issuance of the DNA testing order, there must be a show cause hearing father. Moreover, jurisprudence is still unsettled on the acceptability of DNA evidence.
wherein the applicant must first present sufficient evidence to establish a prima facie case or a
reasonable possibility of paternity or "good cause" for the holding of the test. 36 In these states, a court ISSUE: Should a court order for DNA testing be considered a “search” which must be preceded by a
order for blood testing is considered a "search," which, under their Constitutions (as in ours), must be finding of probable cause in order to be valid?
preceded by a finding of probable cause in order to be valid. Hence, the requirement of a prima facie
case, or reasonable possibility, was imposed in civil actions as a counterpart of a finding of probable
RULING:
cause. The Supreme Court of Louisiana eloquently explained —

Although a paternity action is civil, not criminal, the constitutional prohibition against unreasonable
Although a paternity action is civil, not criminal, the constitutional prohibition against unreasonable
searches and seizures is still applicable, and a proper showing of sufficient justification under the
searches and seizures is still applicable, and a proper showing of sufficient justification under the
particular factual circumstances of the case must be made before a court may order a compulsory blood
particular factual circumstances of the case must be made before a court may order a compulsory blood
test. Courts in various jurisdictions have differed regarding the kind of procedures which are required, test. Courts in various jurisdictions have differed regarding the kind of procedures which are required,
but those jurisdictions have almost universally found that a preliminary showing must be made before a but those jurisdictions have almost universally found that a preliminary showing must be made before a
court can constitutionally order compulsory blood testing in paternity cases. We agree, and find that, as court can constitutionally order compulsory blood testing in paternity cases. We agree, and find that, as
a preliminary matter, before the court may issue an order for compulsory blood testing, the moving a preliminary matter, before the court may issue an order for compulsory blood testing, the moving
party must show that there is a reasonable possibility of paternity. As explained hereafter, in cases in party must show that there is a reasonable possibility of paternity. The same condition precedent should
which paternity is contested and a party to the action refuses to voluntarily undergo a blood test, a show
be applied in our jurisdiction to protect the putative father from mere harassment suits. Thus, during the
cause hearing must be held in which the court can determine whether there is sufficient evidence to
establish a prima facie case which warrants issuance of a court order for blood testing.371avvphi1 hearing on the motion for DNA testing, the petitioner must present prima facie evidence or establish a
reasonable possibility of paternity. Notwithstanding these, it should be stressed that the issuance of a
DNA testing order remains discretionary upon the court. The court may, for example, consider whether
The same condition precedent should be applied in our jurisdiction to protect the putative father from
mere harassment suits. Thus, during the hearing on the motion for DNA testing, the petitioner must there isabsolute necessity for the DNA testing. If there is already preponderance of evidence to establish
present prima facie evidence or establish a reasonable possibility of paternity. paternity and the DNA test result would only be corroborative, the court may, in its discretion, disallow a
DNA testing.
Notwithstanding these, it should be stressed that the issuance of a DNA testing order remains
discretionary upon the court. The court may, for example, consider whether there is absolute necessity FACTS:
for the DNA testing. If there is already preponderance of evidence to establish paternity and the DNA
test result would only be corroborative, the court may, in its discretion, disallow a DNA testing.
Petitioner, Jesse Lucas filed a Petition to Establish Filiation with a Motion for the Submission of Parties to
DNA Testing before the Regional Trial Court (RTC). Jesse alleged that he is the son of his mother Elsie
WHEREFORE, premises considered, the petition is GRANTED. The Court of Appeals Decision dated who got acquainted with respondent, Jesus S. Lucas in Manila. He also submitted documents which
September 25, 2009 and Resolution dated December 17, 2009 are REVERSED and SET ASIDE. The Orders include (a) petitioner’s certificate of live birth; (b) petitioner’s baptismal certificate; (c) petitioner’s
dated October 20, 2008 and January 19, 2009 of the Regional Trial Court of Valenzuela City are college diploma, showing that he graduated from Saint Louis University in Baguio City with a degree in
AFFIRMED. Psychology; (d) his Certificate of Graduation from the same school; (e) Certificate of Recognition from
the University of the Philippines, College of Music; and (f) clippings of several articles from different
SO ORDERED. newspapers about petitioner, as a musical prodigy.

FACTS: Jesus learned of this and he filed a Special Appearance and Comment manifesting that the petition was
adversarial in nature and therefore summons should be served on him. Meanwhile, Jesse filed a Very
Urgent Motion to Try and Hear the Case which the RTC found to be sufficient in form and hence set the
Petitioner, filed a Petition to Establish Illegitimate Filiation (with Motion for the Submission of Parties to
case for hearing. Jesus filed a Motion for Reconsideration arguing that DNA testing cannot be had on the
DNA Testing)2 before RTC of Valenzuela City. Respondent was not served with acopy of the petition. basis of a mere allegation pointing to him as Jesse’s father.
Nonetheless, respondent learned of the petition to establish filiation. Hiscounsel therefore went to the
trial court and obtained a copy of the petition. Petitioner filedwith the RTC a Very Urgent Motion to Try
77

Acting on Jesus’ Motion for Reconsideration, the RTC dismissed the case and held that Jesse failed to order for blood testing is considered a “search,” which, under their Constitutions (as in ours), must be
establish compliance with the four procedural aspects for a paternity action enumerated in the case of preceded by a finding of probable cause in order to be valid. Hence, the requirement of a prima facie
Herrera v. Alba namely, a prima faciecase, affirmative defences, presumption of legitimacy, and physical case, or reasonable possibility, was imposed in civil actions as a counterpart of a finding of probable
resemblance between the putative father and the child. cause. Courts in various jurisdictions have differed regarding the kind of procedures which are required,
but those jurisdictions have almost universally found that a preliminary showing must be made before a
court can constitutionally order compulsory blood testing in paternity cases. We agree, and find that, as
This prompted Jesse to file a Motion for Reconsideration which the RTC granted. A new hearing was
a preliminary matter, before the court may issue an order for compulsory blood testing, the moving
scheduled where the RTC held that ruling on the grounds relied upon by Jesse for filing the instant
party must show that there is a reasonable possibility of paternity. As explained hereafter, in cases in
petition is premature considering that a full-blown trial has not yet taken place. Jesus filed a Motion for
which paternity is contested and a party to the action refuses to voluntarily undergo a blood test, a show
Reconsideration which was denied by the RTC. He then filed a petition for certiorari with the Court of
cause hearing must be held in which the court can determine whether there is sufficient evidence to
Appeals (CA). The CA ruled in favour of Jesus, it noted that Jesse failed to show that the four significant
establish a prima facie case which warrants issuance of a court order for blood testing The same
aspects of a traditional paternity action had been met and held that DNA testing should not be allowed
condition precedent should be applied in our jurisdiction to protect the putative father from mere
when the petitioner has failed to establish a prima facie case.
harassment suits. Thus, during the hearing on the motion for DNA testing, the petitioner must present
prima facie evidence or establish a reasonable possibility of paternity.”
ISSUE: Whether aprima facie showing is necessary before a court can issue a DNA testing order

HELD:

Yes, but it is not yet time to discuss the lack ofa prima facie case vis-à-vis the motion for DNA testing
since no evidence has, as yet, been presented by petitioner.

RATIO:

Misapplication of Herrera v. Alba by the Regional Trial Court and the Court of Appeals. The statement in
Herrera v. Alba that there are four significant procedural aspects in a traditional paternity case which
parties have to face has been widely misunderstood and misapplied in this case. A party is confronted by
these so-called procedural aspects during trial, when the parties have presented their respective
evidence. They are matters of evidence that cannot be determined at this initial stage of the
proceedings, when only the petition to establish filiation has been filed. The CA’s observation that
petitioner failed to establish a prima facie case is herefore misplaced. A prima facie case is built by a
party’s evidence and not by mere allegations in the initiatory pleading.

Section 4 of the Rule on DNA Evidence merely provides for conditions that are aimed to safeguard
the accuracy and integrity of the DNA testing. It states that the appropriate court may, at any time,
either motu proprio or on application of any person, who has a legal interest in the matter in litigation,
order a DNA testing. Such order shall issue after due hearing and notice to the parties upon a showing of
the following: (a) A biological sample exists that is relevant to the case;(b) The biologicalsample: (i) was
not previously subjected to the type of DNA testing now requested; or (ii) was previously subjected to
DNA testing, but the results may require confirmation for good reasons; (c) The DNA testing uses a
scientifically valid technique; (d) The DNA testing has the scientific potential to produce new information
that is relevant to the proper resolution of the case; and (e) The existence of other factors, if any, which
the court may consider as potentially affecting the accuracy or integrity of the DNA testing. This Rule
shall not preclude a DNA testing, without need of a prior court order, at the behest of any party,
including law enforcement agencies, before a suit or proceeding is commenced. This does not mean,
however, that a DNA testing order will be issued as a matter of right if, during the hearing, the said
conditions are established.

In some states, to warrant the issuance of the DNA testing order, there must be a show cause hearing
wherein the applicant must first present sufficient evidence to establish a prima facie case or a
reasonable possibility of paternity or “good cause” for the holding of the test. In these states, a court

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